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Full text of "The complete and consolidated digest of Indian civil cases 1901 to 1908. Decided by several Indian High Courts, and reported in the various authorised and unauthorised law reports and publications of Allahabad, Bombay, Burma the (upper and lower), Calcutta, Central Provinces, Madras, Oudh, and Punjab"

Digitized by tine Internet Arciiive 

in 2010 witii funding from 

University of Toronto 



littp://www.arcliive.org/details/completeconsolid11klian 



THE 



Complete and Consolidated Digest 



INDIAN CIVIL CASES 1901 TO1908. 

Decided by tli<' several Indian High Courts, and reported in the 

rnrioiis cucthorised cind unauthorised Law Reports and 

I'uhhcations of Allahabad, Bombay, Burma, 

(Upper and Loiver), Calcutta, Central 

Prorinces, Madias, Oudh, 

and Punjab. 

By _ 

DHANI RAM KHANNAH, b. a , a b 

Vakil High Court U. f and first Srate f leader Chief Court f urjab, SurgaoR. 

(In two VoLiMKs). 

VOLUME I 



PkIxted at the Delhi Centhal Pntss, 



1910. 



V.) 

)IX 



Printed by Cband N;ir,iii), Propiietor, Delhi Central Press 
Nai Saralc, Delhi. 

AND 

Puhlished by Dhani Ram, Khannah b. A. L.L. B, 

Pleader Chief Court Punj-ib 

At his Office Gurgaou (Punjub.) 




To 
SIR PRATUL CHANDRA CHATTERJI. NIA.D.L, CLE. 

(Fj.-merhj Judge of (he Pwjal Chiff Court) 

Well known for his philanthropy and profound learning 

OP TUB 

MOST SINCERE ESTEEM AND REGARD 

THE FOLLOWING 

CONSOLIDATED DIGEST OF INDIAN 
CIVIL CASES 1901 TO 1908 

IS 

Most Respectfully dedicated 

BV 

HIS MOST SINCERE ADMIRER 
DHANI RAM Klianna Vakil. 



PREFACE. 



A work like the present one requires no elaborate preface. 
Buffiee it to sfiy, that both the Bench and the Bar having 
to deal with the Civil Law of the land, have long felt the want 
of such a complete, comprehensive, consclidated, and universal 
Digest of Indian Civil Law, containing the recently decided and 
therefore not over ruled cafes of the si voral High Courts of ]5ri- 
tish India, quite separate from and not intermixed with the Cri- 
minal Case Law. 

None of the Digests now extant meets this want. Almosb 
all of them, end with the year 1900, and Uure is thereafter no 
single consolidated Digest of all-India-Civil-Law. It is not so 
much with a view of a pecuniary gain hut rather to suftply 
the badly felt want referred to above that this work has been 
undertaken. 

Gentlemen might find some short comings in this work 
which are naturally met with in the first edition of a big book 
like the present one, and it is therefore hoped that they would 
kindly excuse them on that account. 

The book is divided into two volumes. It is very well 
arranged into headings and subTieadinga for easy and readv re- 
ference. It contains the case Law trom January 19C1 upto 
December 1908. But the Oudh Rulings have been taken from 
1898 and the Lower Burma Rulings for 1000 also, have been 
inserted. 

1 shall feel myself highly repaid if this work proves use- 
ful to those lor whoip it is intended. 



DHANI RAM Khannak, BA., LLR, 
^^'"«*"N. Vakil High Court U. P. cfc 

The loLh July, 1910 i>Uadcr Chief Court Punjuh. 



Index of Headings. 



A. Part I. 



Col 



Abadi. 1 

Abaudonmoat. 5 

AbatemoQt. 11 

Absconder. 15 

Absouoo, 15 
Ab^jGDoo of raasonablo aad ptobabla oauae. 15 

Abgeiifees. IS 

Absentee Co-sbftrer. 15 

Absolute deorea, 16 

Absolute estate. 16 

Absolute occupancy holding. 16 

Abuse o£ Process. 17 

Abusive language. 18 

AbuHiugor adj lining a public road, 19 

Abwab. 19 

Acceleration of estate. 19 

Acccptanoa of gjods by buyers. 20 

.Accession. 20 

Accidents. 20 

Accounts. 20 

Account Booka. 29 

Accountability. 29 

Accretions. 29 

Accrual of right to eua, 30 

AckMOwledgmeut, 30 

Acquiesoeuo?, 36 

Acquired property. 38 

Acquisition. 39 

Actionable Claim 40 

Actionable wrong. 11 
Action of public servant ultra vires not 

binding on G^vornment. 41 

Action of recissioa of a contract. 41 

Action in Rem. 41 

Action fcr slander, 41 

Act've prosecution of a oontantious suit. 41 

Act of Bankruptcy. 42 

Act of God. 42 

Act of State. 42 

Acts Supreme Government Acts. 47 

Act XXIV of 1839. An Act for the .\dmi- 
nlstration of Justice and oolleotion ,-\t 
the Revenue and certain pp.ris of the 

District of Gail] im and Viziagnpatam. 47 

Act XXIX of 1839. Dower Law Amend- 
ment Act. 48 

Aot XXXII of 1839. An Aot concerning the 

allowance of Interest in certain oases. 43 

Act XIX of 1841. An Aot for protection of 
property against wrongful possession 

in oaees of succession 52 

Aot XIX of 1843 Registration. 54 

Aot XI of 1846 An Act exempting certain 

territory in the Province of Khandesh 54 

Aot XX of 1847, Indian Copy Right Aot. 51 



OOL 

Aot 1849 Indian Inslovent debtors Relief 

Aot 56 

Aot XVIII of 1850 Judicial Offioer3' Pro- 

leotion Act 58 

Act XXI of 1850 Caste Diaabilities-Ra- 

moval Act. 60 

Act XII of 1853 Legal Represantativea 

Suit.^ Acts. 61 

Aot XIII of 1355 Fatal Accidents Act 61 

Aot XXVI II of 1855 Usury Laws Repeal 

Act. 62 

Aot XV of 1856 Hindu Widow Remar- 
riage Act. 62 
Aot XXV of 1858 Court of Wards Act. 61 
AotA'XXI of 1S53 Act for Seltlemont 
of land gained by alluvion in Baogal 
Presidency. 61 
Act XXXV of 1853 Lunatics Estates Aot. 61 
Act XXI of 1P60 Literary Scientific and 

Charitable Societies Registration Aot. 6i 
Aot XX of 1863 Religious Endowment Aot 63 
Aot X ol 1865 Indian Succession Act. 76 

Aot XXI ot 1865. Parsi Intestate Suoces- 

aion Act, 91 

Aot XXV of 1806 Unclaimed deposits 

Act. 94 

Aot XXVII of 1866 Trustees Aot. 93 

Aot XXV of iaS7 Printing Prsss and 

Registration of books. 95 

Act XXX of iSilT Printing Tresses Aot, 9i 
Act IV of 1860 Divorce Act. 93 

,\ct VII of 1870 Court fees Act. 93 

Act XXI of 1S70 Hindu Wills Aot. 13a 

Act YXIII of 1370 Indian Coinaga Aot. ISO 
Aot XXIII of 1871 Pensions Aot. ia9 

Act I of 1872 Evidence Aot. 147 

Aot IX of 1872 Contract Aot. 218 

Aot VUI of 1973 Northern ladian Canal 

and Drainage Aot. 3S3 

Aot X ot 1873 O-itha Aot. 383 

Act II of 1874 Admiaistratorf^Queral'a 

Act 393 

Aot III of 1874 Married Women's Pro- 
perly Act. 383 
Act XIV ot 1874 Sheduled Districts Aot. 3Sa 
Act IX of 1975 Indian JIajority Act. 3SJ 
Aot XIII of 1875. Probata and Ad- 
ministration Act 390 
Aot XVIII of 1875. Indian Law Re- 
ports Act. 390 
Act XI of 1876 Presidency Banks Aot 3',10 
Aot I of 1S77 Specific Relief Act 391 
;ot III of 1877 Registration Act 456 
Act XV of 1377 L raitation Aot 40!) 
Act IX of 1879 Court ot Wards Act 499 
Aot XVII of 1879. Dakhan Agricultur- 
ists Relief Aot 499 



INDEX OF HEADINGS 



Cor. 
Act XVIII ot 1879, Legal Practitioner's 

Act 500 

Act V ot 1881. Probata and Adminis- 

trfttinu Act 512 

Act XXVI of 1881. Negotiable Instru 

ments Act 532 

Act II of 1882 Trust Act 543 

Act IV of 1662. Transfer of Property 

Act 552 

Act V of 1862. Easementg Act 738 

AofcVIofI882 Companies Act 741 

Act XiV of 1882. Civil Procedure Code 750 
Act XV of 1882. Presidency Small 

Cause Courts Act 750 

Act XX of 1882. Paper Currency 755 

Act XV of 1883. N. W. P. and Oudh 

Muuicipilities Act 755 

Act XII oi 1884. Agriculturist's Loans 

Act 755 

Act XVII of 1BS4. Lower Burma Mu- 

nicipaUties Act 755 

Act XVIII of 1884. Punjab Courts Act 755 
Act VIII of 1885. Bengal Tenancy Act 766 
AQt XIII of 1685. Indian Telegraph 

Act 756 

Act XVI of 1885 Central Provinces 

Courts Act 756 

Act XVI II o! 1885 Land Acquisition 

Mines Act 756 

Act XXI of 1885. Madras Civil Courts 

Act 756 

Act II of 1886. Income-tax Act 756 

Act XXII ol 1686. The Oudh Bent Act 758 
Act I of 16S7 General Clauses Act 753 

Act VII of 1887. Suits Valuation Act 758 
Act IX of 1887. Provincial Small Cause 

Courts Act 763 

Act XII of 1887. Bengal N W P and 

Assom Civil Courts Act 786 

Aol XVI of 1887, Pui jab Tenancy Act 792 
Act XVII of 1687. Punjab Laud Reve- 
nue) Act 792 
Act V of 1688. Inventions and Designs 

Act 792 

Act IV of 1889. Merchandise Marks 

Act 794 

Act VII o£ 1889. Succession Certificate 

Act 795 

Act VIII of 1890. Guardian and Wards 

Act 805 

Act IX of 1890, Railway's Act 818 

Act XIV of 1891. The Oudh Courts Act 829 
Act XVIII of 1891, Bankers Book Evi- 
dence Act 829 
Act XX of 1891. The Punjab Municipal 

Act 830 

Act IV of 1893 Partition Act 830 

Act I of 1894, The Land Acquisition 

Act 831 

Act XV of 1895. Crown Grants Act 865 

Act I of 1896. Administrator General's 

Act 867 

Act IX of 1897. Provident Funds Act 868 
Act X of 1897. General Clauses Act 869 
ActVIofl898. Post Offices Act 870 

Act II of 1899. Stamp Act. 871 

Act IX of 1899. Indian Arbitration Act 892 
Act XX ol le^g Coinnge and Paper Cur- 
rency Aot, 895 



Co 
Act V of 1902— Administrator-general 

and official Trustees Act. 8ir, 

Act IV 1 1903. Provident Funds Act 8f 
Act V of 1903. • ivil Procedure Code. 89-' 

171 
202- 
202- 
202; 



Act IX of 1903. Limitatioa Act 

Act in Hem 

Aot of Insolvency. 

Act of Bankruptcy, 

Action of Public officer beyond scope 

of his authority not binding on 

Government. 
Act done in the exercise of sovereign 

power of privilege. 
Aot done by husband in persuanoe ol 

oomm, business binding en wife 
Acts Retrospective eflect of 
Addition of fixtures. 
Addition of names 
Addition of parties 
Additional Court fees on claim for 

mesne profits 
Additional Evidence 
Additional rent 
Adinayavana Tenure 
Ad interim injunction 
Ad interim protection. Application for 

insolvency 
Adjournment 
Adjudication by collector as to stamp 

duty chargeable 
Adjustment of decree 
Administration 
Administration Bond 
Administration suit 
Administrator 
Administrator general 
Administrator general's Aot 
Admiuistratric wasting estate 
Admiralty jurisdiction 
Admissibility of Evidence 
Admission 
Adoption 
Adultery 
.advancement 
Adverse possession 
Adverse title 
Advocate 
Advocate-general 
Affidavit 

Affirms the decision 
Age of ceremonial competanoe 
Agency 
Agent 
Agreement 
Agricultural holding 
Agricultural lease 
Agricultural purpose 
Agricultural Kates Act 
Agricultural tenant 
Agriculturists Loans Act II ol 1884 
Agriculturists 
Ahban Tbakurs of Oudh 
Air— Easement of 
Ajmere Courts Regulation 
, Ajmere Laws 
I Almalik 
I Alienation 
I Alimony pending suit 
j Allotment on partition 
Alluvial and deluvial landg 



202 

202 

202' 
205 
203 

20*.- 
20? 

202' 
20£ 
20:- 
20:! 
20i.' 

202- 
202* 



20S, 
20i 

isor 

20S 
20 

2(?;- 
2(F- 
2Qi 
2diV 

2C!^. 



204i 

205r: 

205|, 

2073^ 

207e'- 

2075 

2075 

2075 

2075 

2076 

2078 

2081 

2037 

2088 

2088 

2089 

2089 

2089 ,' 

2089 ? 

2090 . 

2090 ' 

2091 ' 
2091 • 
2091 ^' 
2091 ^ 
2138 ' 
2138 
2138 



INDEX i;f headings 



roi, 

luvion and deluvion 2^^8 

ims SI'l'l 

Uevatioo. 2145- i 

.Iteriiativa ploaa 2H7 1 

lloroativa reliefs 2147 

lyiseotaaa Law 2143 ; 

mbiguUy 214U 

mandmeufc 2150 | 

mericaa authority 2160 

uibbil badis 2161 

loaatral busineaa 2162 

loestral lands 216^ 

loestral property 2lG2 

loieat document &l6d 

oaient light 2163 

oitaal 2169 

anuity 216U 

onulment of inoumbranoa 2171 

^DDulmeat of Rale 2171 

Qpoinaloua Mortgaga 2171 

^teoadeat debts 2172 

^ta nuptial agreemaot 2172 

i^taouptial settlement 2172 

.,)pareat acquiesoenoa 2173 

-ppeal— Geoeral 2173 

Ujlpaal-seoond appeal 2193 

ppeal further appeal 9197 

.^peal under letters patent 2197 

' oeal to privy oouQoil 2198 

•pearanoe 2199 

gallant 2199 

jSiellate Court 2199 

.^lioatioa 3202 

'isAointed their 9203 

_poititmaat 2?03 

•orlionmaat 2204 

raisement prooaediuga 2204 

robatiou and reprobation 2204 

itration Aot IX of 1893 9208 

.Irator 2208 

at 9210 

menian Christiaa 9210 

fmy Aot 1881 2212 

rcear 9212 

rrangement 221.i 

Arrest 2212 

Articles of assooiatioa 9213 

Ascetic 2213 

Assam Land Raveou Kegulation I of 

1886 9213 

Assessment 9218 

Assets 9213 

Assignment 9214 

Association 9216 

Attaobirgcreditot 9216 

Attestation 2221 

Attorney 2221 

Attorney and client 2222 

Attorneyship 2222 

Auction 22-22 

iucticner 2222 

Auction purobaser 9222 

Auction sale 2222 

Aulad-pisri and Dukhtarl 22?3 

Authority 2223 

Average profits 2223 

Award 2223 



Babuaoa graat 



B Part II. 



Coi. 

Babuana property. 1 

Bick fee 2 

Uidiii anatraat. 2 

B.iiloo. 3 

B.iilmeat. 8 

Bair»gi. 3 
B.ilambhatta, value of the commautaries 

of a 

Balivaco of account. 4 

B.i(roiiy. 4 

Bd.ndliu4 6 

Baniinship. Agreement Lien, 7 

Rink of Bombay. 8 

B.iiik':r and customer. 9 

Bank r's Book, Bvidanoa Aot. 10 

BiMkrupioy Act 1833. 11 

barrister 12 

Baslu land, 14 

Batta. 14 

Bijlabambars rules and orders. 15 

Benami. 16 

Banami transaotioD. 22 

Benamidar 23 

Beneficiaries. 25 
Beae^al acts. 

Act X of 1859. Recovery of Rent Aot. 23 

Aot XI of 1359. Kevauue sale Law. 31 

Aot III of 1864. 50 
Act VIII of 1865. Bengal Rent Recovery 

Aot 50 
Act X of 1865. Land Lord and Tenant 

Act. 51 
Aot VII of 1868. Bengal Revenue Ra- 

oovery Aot 51 

Aot VIII of 1869. Bengal Bent Aot. 52 

Aot V of 1870 Part Commissioner, 54 

Aot VI of 1870. Chowkidari. 55 

Aot V of 1875 Bengal Survey Aot. 57 
Aot III of 1376. Bengal Irrigation Cesa 

Aot. 58 
Aot VI of 1876. Cbota Nagpur E'loum 

berad Batatas Aot. 53 
Aot VII of 1876 Land Registration Aot. 60 
Aot VIII of 1876. Bengal Kstatea Parti- 
tion Aot. 64 
Aot XVIII of 1876. Bengal alluvion and 

diluvion Aot. 65 

Aot II of 1S77. Bengal Cess Act. 65 
Aot I of 1879- Ohota Nigpur Lindlord 

and Tonunt Prooeduio Act. 66 
Aot V I II of 1879. Actdefini g and limit- 
ing Powers of settlement uiiScera. 63 
Aot IX of 1379. Bengal Court of Wards 

Act. 69 

Aot VI of 1880. Bengal Drainage Aot. 71 
Aot VII of 1880. Public Demands Re 

oovery Aot. 73 
Aot IX of 18.'?0. Bangal Road and 

Public Works Cess Aot 77 
Aot II of 1882. Bengal Embankment 

Act 82 
Aot III of 1884. Bengal Municipalitiea 

Aot 83 

.Act Vr I of 1885. Bang»l Tenancy Act 87 
Act I of. 1887. Bengal General Glauses 

Act 162 
Aot XII of 1887. Bengal Civil Courts 

Act 162 

Aot 11 of 1888. Calcutta Municipal Aot 162 



INDEX OP HEADINGS 



Act I of 1895. Public Demand Recovery 
Act 

Bengal Estate Partiliou 



Bengal Teuanoy Ameud- 
Bengal General Clauses 



Act V of 1397. 

Act 
Act m of 189E 

ment Act 
Aoi 1 of 1889. 

Act 
Act III of 1899. Calcutta Municipal 

Act 
Act 1 of 1903. Bengal Tenancy Amend- 

ment Act 
Acl VIII of 1905. Beugal and Assam 

Laws Act 
Act I of 1907. Beugal Tenancy Amend- 
ment Act 
Btquest 

Borar Land Bevenua Coda 
BeLrothal 

Bhngdari and Narvadari Act 
Bbot Begari 
Bbowli Kent 
Bill of exchange 

Bill of exchange. Act of England 1882 
Bill of lading, 
Birt rights. 
Board of examiners. 
Board's ciiculars. 
Board of Revenue. 
Boardiiig bouse— License, 

Bombay act. 

Act XX of 1S39. Hucks. 

Act XLVIII of 1860. Bombay City Police 
.^ct. 

Act V of 1862. Bbagdari and Narvadari 
Tenures Act. 

Act VI of 1863, Bombay City conveyan- 
ces Act, 

Act II of 1864. Aden Courts Act, 

Act XX of 1864. Minors Act. 

Act III of 1869. Local Funds Act. 

Act XIV of 1869. Bombay Civil Courts 
Act. 

Act VI of 1873. District Municipalities 
Act. 

Act I of 1874. The Bombay Tramway 
Act. 

Act III of 1874. Bombay Heriditary vil- 
lage officers and vatan Act. 

Act II of 1876. Bombay City Land Re- 
venue Act. 

Act HI of 1876. Bombay Mamlatdar'a 
Court's Act. 

Act X ol 1876. Bombay Revenue Juris 
diction Act, 

Act V of 1878. Abkari Act. 

Act V of 1879. Bombay Land Revenue 
Code. 

Act VII of 1879. Irrigation Act. 

Act XVII of 1879. Dckban Agricultur- 
ists Relief Act. 

Act I of 18S0 Khoti Settlement Act. 

Act I of 1884. Local Boards Act. 

Act II ol 1684. District Municipal Act. 

Act III of 1888. City of Bombay Muni- 
cipality Act. 

Act VI of"l888. Gujrat Taluqdar's Set 
tl«uiuut Act, 



Col 


Act II of 1890. Salt Act. 






Co 
2i 


162 


Act I of 1894. Bombay Corp 


oration Act. 


22 




Act IV of 1898. Bombay 


Ol 


ty ImproTe- 




167 


ment Trusts Aoi. 






22' 




Act III of 1901. District 


Municipalities 




167 


Act. 






22 




Act I of 1904. General Clauses Act Bom- 




167 


bay. 






22 




Act II of 1906. Mamlatdar'a 


Courts Act. 


2f 


167 


Bombay High Courts Rules. 




2i 




Bombay Regulations. 






22 


174 


Bona fide. 
Bond. 






22- 
22! 


174 


Book. 
Boundaries. 






23 

SS 


175 


Brabmo. 






2c 


175 


Breach of Contract. 






2.: 


175 


Broach of trust. 






2J 


175 


Bribery in election 






2:. 


176 


Brokerage 






23 


176 


Brother, meaning ol 






2» 


176 


Budhist Law 






2^ 


173 


Buildings 






%. 


180 


Burden of proof 






26 


180 


Burial 






3) 


183 
185 
185 


Burial ground 






31 


Baruta act- 








185 










186 


Lower Burma Act 






31 



A«t I of 1873 Lower Burma Land and ,' 

Revenue Act o 

Act III of 1898. Lower Burma Munici- 
palities Act 3> 

Act IV of 1898. Lower Burma Town 

187 and village Lands Act P" 

Act XIII of 1898. Burma Laws Act 'c 

187 Act 1900 Lower Bui ma Oourt Act 3. 
Upper Burma Regulation 32a 

188 Civil Court liegulation 323 

188 Land and Revenue Regulations 32? 

189 I Municipal Act 323 

190 ! Municipal Regulation of 1887 324 
[ Registration Regulation 325 

190 Ruby Regulation 325 
Village Regulation 325 

191 Burmese Law 326 
Burning ghat and ground 326 

194 Bye Laws 325 

G 

195 Calcutta 325 
Calcutta Municipal Act III of 1899 327 

196 ' Calcutta Municipal Consolidation Act II 

i o( 1SS8 327 

193 : Calcutta Small Cause Courts Rule 327 

Call on shares 327 

200 ' Camp 327 

204 \ Canals 327 

Canal dues 329 

204 . Cancellation 329 

207 ' Candidate 331 

Caretaker 332 

203 I Carriers 332 

213 Carrier's Act III of 1865 333 
215 Caste disabilities, Removal Act XXI of 

215 1850 335 

Caste question 335 

215 Cause of action 336 

j Cause paper 362 

221 ' Caveat 363 



INDEX OF HEADINGS 



vCaveat-emptor 

^".OeDsua registers 

s Central Provinces Acts 

(Act XVIII of 1881 C P Land Rovanue 
Act 
\ot IX of 1883 OPTeuarcyAot 

ct XVII of 1885 Court of Warda Aot 
Act XI of 189S P Tenauoy Aot 
Act XXIV of ISaU Court of Warda Aot 
^Ceremonies 
f^Certifioate 
■-Certified copy 
SCertified purchaser 
ICertifyiug Couusel 
''Cess . ,„ 

Oeas Aot II of 1877 and Aot IX of 

1880 Bengal Cesa Aot 
Cestinquo trust 
3hak 
'liakran land 

hambers 
jhamber Judge 
-hamperty 

Jhamperty and maintenaaoe 
Change of Attorney 
Charge 

Charitable Bequest 
Charitable Endowment 
Ibaritable Trust 

baritable uses 

barter Aot 24 and 25 Viot Oh 104 

'barter party 

battel 

'laubana 

heque 
Jbhimbaa 

Chief Court of Punjab 
Chief of Tank 
Child 

Chit Fund 
Cbitty 

Chose in action 

Cbota Nagpus Encumbered Estate Aot 
Chota Nagpur Landlord and Tenant 

Aot 
Chowthria 
Chowkidari Aot 
Ohowkidari Cbakran Land 
Chowkidari rates 
Christians Native Trust 
Chudasama gameti garatiaa 
Chundawand 
Ghur land 
Circuit Committee 
Citation 
City of Bombay Improvement Aot IV 

of 1893 
City of Madras Municipal Aot I of 1884 
Civil Courts 

Civil Courts Aot XII of 1887 
Civil and Revenue Courts 
Civil Courts, Lower Burma 
Civil Injury. Remedies 
Civil Judge, District Court 
Civ 1 Juiiadiotion 
Civil nature, suit of 
Civil Procedure Godo Act V of i909 
Civil iiules of Piuotice, Madras 



Coi. 
363 
303 



382 
S83 
883 
383 
383 
38o 
386 
383 
388 
393 
401 
402 
402 
404 
407 
407 
408 
408 
408 
409 
409 
410 
411 
411 
411 
412 

412 
413 
413 
413 
415 
415 
416 
416 
416 
416 
417 

417 
417 
417 
420 
421 
421 
421 
422 
422 
422 
422 
4SU 



Claim 

Claimant 

Clause for forfeiture of property 

Clerical error 

Client and solioitor'a clerk 

Clog 

Coda 

Co-defsndanta-Resjudicata, betweeen 

Codicil 

Coemption 

Goerioiou and Pressure 

Co heirs 

Coinage Aot XXIII of 1870 

Coinage and Paper Currency Aot XXII 

of 1899 
Co judgraont debtors 
Collateral agreement 
Collection charges 
Collector 
Collectorata 
Collusion 
Commission 
Commissioner 
Committee 
Common business 
Common carriers 
Common land 
Common Manager 
Community ill defined 
Communities Fluctuating 
Community village 
Oommutatioa 
Company 

Compniiies Aot VI of 1382 
Compauies Memorandum of Asaooia- 

tion Act XII of 1895 
Compensation 

Compensation for breach of contract 
Competent jaiisdiotioa 
Compatitioii deed 
Compound lutereat 
Compromise 
Compromise decree 
Comptroller general 
c'omputition of tima 
Concealment of sale 
Cououbiue 

Coucurrent decisions on faota 
Conditions of a mortgage bond 
Conditions, breach of 
Conditional decree 
Conditional injarction 
Gor.diiioiial sale 
Conduct 

Confession of judgment 
ConSrraition of auction sal« 
Confiscation 
Conflict of decisions 
Coi Act of Laws 
Confusion 
Goiij'igal rights 
Content. 
Consent decree. 
Cooscquoutial Relief. 
Consideiation 
Consign' r and Consignee. 
Cons lidating ^ct Code. 
Confolidaiiou of appeal. 
Co'Ti'pirnoy. 
Couauuction. 



Col 
456 
458 
458 
453 
453 
453 
4G0 
460 
460 
460 
461 
461 
4G1 

461 
461 
461 
461 
462 
468 
463 
461 
466 
467 
467 
467 
468 
463 
468 
468 
469 
469 
470 
474 

475 
475 
482 
482 
483 
483 
483 
498 
SOQ 
500 
500 
501 
501 
501 
501 
501 
501 
501 
502 
50a 
50S 
501 
SOS 
505 
506 
506 
508 
508 
509 
509 
516 
516 
5!G 
516 
517 



6 



INDEX OF HEADJNQ3 



Col 

OoDstruotion of Acts. 517 
Construotioa of Articles of Association. 525 

Ooostructioa of compromise, 526 

Conatruotion of coi tract. 527 

Construction of deojree-. 527 

Construction of deeds. 528 

Construction of Hindu Law. 552 

Conslruction of K-ibuliat, 552 

ContruoMon of lease. 553 

Construction of order. 554 

Construction of Ou Ih Estates Act. 551 

Construciii-oa of Settlement decree 655 

Construction of statutes. S5S 

Conslruc'ion of Tbekidar, 556 

Construction of Wiijib ul-atz. 556 

Construction of Wills. 553 

Construction of Words. 577 

Constiuotiva. 695 

Constructive possessio-D'. 597 

Ooutemporaneou'3 deedSi 597 

Contempt. 598 

Contempt of Court. 598 

Contention. 599 

Contentious suit. 599 

Contingent intsreat. 599 

Continuing wrong. 699 

Contract, gOO 

Contract Act IX of 1872, 620 

Contribution. 634 

Contributory negligenoo. 643 

Convenience 613 

Conversion, 643 

Converts. 645 

Conveyance. 646 

Co obligees 616 

Co owners. 647 

Co-ownership, prescription of. 651 

Coparcenary. 651 

Co-parceners. 651 

Copy right 651 

Copy right Act XX of 1817. 662 

Copy of decree. 652 

Copies of documents, 652 

Copies of judgment. 652 

Copies supplied by post. 652 

Corporation. 652 

Corporation of Bombay. 654 

Co-sharers. 664 

Co eharerg and Lambardfti! 672 

Costa 672 

Co-tenancy 686 

Co-tenant 61)0 

Co-tenure 690 

Council 690 

Counsel C90 

Counsel and client 692 

Counsel's fees 692 

Counterfoil 692 

Counterpart 692 

Courses open to applicant 6S3 

Court 693 

Court fees 702 

Court fees Act VII of 1870 708 

Court of wards 712 
Court of wards act IX of 1879 Bengal 716 
Court cf wards act XYII of 1885 G. P, 

Act 716 
Court of Wards Act XXIV of 1899 C P 

Act 7,6 
Court of Wards Act III of 1899 U P Act 716 



Oot 
Court of Warda Act IV ol 1899 Uadrae 

Act 716 

Covenant 716 

Co -widows 718 

Creation of wakf 719 

Creditor and debtor 721 

Criminal MisappropriatiOB 721 

Cross appeal 722 

Cross claim 722 

Cross decrees 723 

Gross examination 723 

Oross objections 723 

Crown 723 

Crown Grants Act XV of 1895. 724 

Cruelty. 724 

Cultivating tenant, 724 

Cultivators 724 

Curators Act XIX of 1841. 725 

Currency note. 725 

Custom. 725 

Custom, of the Punjab, 741 

Custom, Abadi. 741 

Custom, Adoption. 741 

Custom, Alienation. 713 

Custom, Alluvion and deluvion, 761 
Custom, ApplioatioD of custom to nhom. 761 

Custom, Common land. 763 

Custom, Declaratory euita. 764 

Custom, Escheat, 764 

Custom, Gift. 764 

Custom, loheritanoe and sUOOeBsiOQ. 772 

Custom, Maintenance. 793 

Custom, Marriage. 794 

Custom, Occupancy right*, 795 

I Custom, Partition. 795 

Custom, Pre emption, 795 

I Cuatom, Religeoua endowm«Qts. 82(X 

' Custom, Reversioner's suit. 821 
CustoDt, Sons right to coateat alienation. 821 

i Custom, Tribal Custom, 821 

i Custom, Wajib ul-arz. 821 

I Custom, Waiver. 821 

i Custom. Widow. 822 

I Custom, Will. 823 

Customary rent. 823 

Customary right to dam obanoel. 826 

Customary right to privacy, 826 

Cypres doctrine. 823 

D. 

i Dak cesa 829 

Diim in the bed of a atieam 829 

j Damages 829 

' Damdupat 845 

Darkhast grant 845 

Dirkhast rules 845 

Darputni lease 815 

Daughter, Diughter'a daughter, 

Daughter's son, Daughter's son, 

Diughter'a son-in-Law 816 

Dayabhag 816 

Death 846 

I Death, illness 847 

Deadman 8i7 

i Dead person 847 

Debt 847 

Debtor 849 

Dcbutter estate 850 

D-claration 851 

neolaratJOD of title 853 

Declaratory decrae 8&4 



INDEX OP HEADINGS 



Declaratory relief 




Col 

668 


Declaratory suit 




858 


Decree 




864 


Decree-bolder 




885 


Dedication 




€87 


Deduction 




887 


Deed 




887 


Defamation 




888 


Default 




890 


Defeasance clause 




891 


Defective title 




891 


Defence 




891 


Defendant 




891 


Daklian Agriculturists JJeliot Act 


891 


Deligation 




892 


Delivery of possession 




893 


Demand by registered 


lotioa 


893 


Demand and refusal 




894 


Demarcation 




894 


Demolition 




895 


Denial of tenancy 




895 


Denial of title 




895 


Deorha 




896 


D posit 




696 


Deposition 




898 


Depository 




899 


Descent of Jagit'a Act 


Punjab Aot IV 




of 1900 




899 


Desertion 




899 


Design 




899 


Destruction of articles 


unfit for human 




food 




899 


Determination of rent 




899 


Devastanam Oommittea 




899 


Dhardhura 




900 


Dharm 




900 


Dbaram Karta 




900 


Dicta 




900 


Digwari tenur* 




900 


Diligence 




901 


Dihviou 




901 


Directions 




901 


Directors 




901 


Disability and inability 


to sua 


901 


Disciple's claim 




901 


Discharge of debt 




902 


Discharge final, Insolvent debtor's Act 


903 


Discharge of surety 




904 


Discovery 




904 


Discretion of Court 




904 


Dishonor 




905 


Dismissal 




905 


Dispossession 




905 


Disqualified heir 




906 


Disqualified proprietor 




906 


Dissolution 




907 


Distraint 




907 



Distress 

Distribution 

District Court 

District Municipalities Acts 

Divesting of property 

Division Court 

Divisional Bench 

Divorce 

Divorce Act IV of 1869 

Dobaa 

Documents 

Documentary evidence 

Domicile 



908 
910 
910 
910 
910 
910 
911 
912 
912 
918 
913 



DDnee, Donor, Dower 

Drainage Act VI of 1880 Bengal 

Drains 

Drawer 

Duo Diligence 

Dues 

Durbanga Rnj 

Dui raukiraridar 

Duty of Kevenue Court 

Duties 

Dwelling house 

E 
Easement 

Easement Act V of 1882 
Ejectment 
Ejeclmont suit 
Ekj.vddi 

Eldest daughter's right 
Eldest son's right 
Election 

Election municipal 
Elephant 
Encioaohment 
Eadots ment 
Sodowed property 
E'lfraiiclii-ed In m Act IV of 1865 
Eiiliai.chi.-emerit 
E.ighsh Higli Uuurt 
Kiiglish Bnukrupicy 
English Jucigea lu Zanzibar 
English L;iw 
BnlianOLd House rent 
Euhaiici'd rale of interest 
Bnhaucemeut of rent 
Entire estate 
Entry 

Epidemic Diseases Aot III of 1897 
Equitable claim 
Eqaiiablo estoppel 
Equitable plea 
Equitable Relief 
Equitable set off 
Equity 

Equity, Justice and good conscience 
Equity of redemption 
Error on a point uf law 
Escheat 

Estate of divided deceased sister 
Estate of grand parents 
Ealate for life 
Estate of Inheritance 
Estoppel 
Evidence 

Evidence Aot I of 1872 
Evacuations 
Examiners, Board of 
Exchange 

Excise Act XXII of 1881 
Excise Act Punjab XII of 1896 
Exclusion from joiul property 
Exclusion from inberilaDoe 
Execution 

Execution of decree 
Execution proceedings 
Execution signing 
Execution Act 
Execution and heir 
Execution de son tort, order passed 

against 
Executor's year 



Col 
914 
914 
911 
914 
914 
911 
915 
916 
916 
916 
916 

915 
924 
925 
933 
983 
933 
934 
934 
934 
935 
935 
935 
935 
937 
'J.il 
937 
637 
938 
938 
938 
938 
939 
941 
941 
942 
942 
942 
913 
943 
944 
944 
946 
947 
948 
948 
949 
019 
949 
919 
951 
973 
987 



996 
996 
997 
997 
997 
997 
997 
1041 
1042 
1042 
1013 

1046 
1016 



Index op headings 



Executory oontraafe 

Expai'to decree 

Expatte order 

Exp'irte'prooaediaga 

Expediency 

Expert 

Bxpart's opinion 

Exproprietary holding 

Exproprietor 

ExleDsion of time 

Extorritoria.1 rights 

Extiuguishment of mortgagi 

F 
f'air comment — True facts — Public 

papers libel 
Palkar 
False case 

False Imprisonment 
Family arrangement 
Family compromise 
Family custom. Inheritance 
Family disputes, compromise 
Falsi jrtsty 
Father's debt 
Father's share 
i'azuli marriage 
Fees 

Females estate 

Fictions and metapViors in Law 
Fictitious sale deed 
Fiduciary relation 
Filial relation. Inheritance 
Final decree 
f'inality of order 
Final Review and i'evision 
Financial commissioner 
Finding of fact 
Firm 
Fishery 
Fix In res 

Fluctuating body 
Flucluating capacity 
Foil and counterfoil 
Foot race 
Foreclosure 
Foreign company 
Foreign judgment 
Foreigners 
Foreigner's divoros 
Forest lauds 
Forest Rights 
Forever-SIcaoing ol 
Forfeiture 
Forma pauperis 
Form of caveat 
Form of decree 
Form of proceedinga 
Fram of suit 
Fraud 

Fraudulent concealment 
Fraudulent— Execution proceedings 
Fraudulent sale 
Fraudulent Transfer 
Freedom of Religion Act XXI oE 1850f 
Frontier Regulation II of 1900 
Further appeal 
Further wages 

G 
Gambling 
EiambliDg in litigatioa 



Col Col 

1016 Gambling transaction 1075 
lOJG Ganjim and Vieigapatam ageuoy court 1075 

1-048 Gaotia 1U76 

1048 General clauses acts 107G 

1048 General partitioner 107G 

1048 General and special power 1077 

1049 Gharwara dues 1077 

1049 , Ghatwal 1077 

1050 Gliatwali tenure 1077 
1050 ' Gift 1078 
1050 Good faith 1082 

1050 ; Goods 1034 
' Good will 1084 

Hordon settlement 1084 

1049 Goshaiu 1084 

1051 Government 1083 
1051 Government's control 1083 

1051 Qovernmaut officers 10S6 

1052 Govornmont promissory notea 1036 
1052 i Governor general 1086 
1052 I Grand children 1087 

1052 Grandsons 1087 

1053 Grant 1088 

1053 ' Grant by Government 1092 
1093 Grantee 1094 
1058 Grantor 1035 
J053 Gross negligence 1095 
1064 I Ground of appeal 1095 

1054 : Grou'id of second appeal 1095 
1054 I Ground on which compromise 1095 
1054 • Grove land 1095 
1054 ! Guardian 1096 

1054 i Guardian and ward 1107 

1055 Guardian and Wards Act XL of 1858 1109 
1055 Guardian and Wards Act. VIII of 1890 1110 

1055 Guardianship im 

1056 Gujrat Talukdara Settlement Act VI 

1056 of 1883 1112 

1050 Guru 1112 
1058 Guzara laud 1112 
1053 H. 

1058 Hackney Carriage Act im 

1058 Hiik buha 1111 

1058 Hakichaharum. 1112 

1058 Huki jithusi. 1113 

lOCO Haki jari. 1113 

1060 Hak I sukhadi and Rejgi, 1113 

1061 Half brother. 1113 
1061 Hamesha. 1114 
lOGl Hand writing. 1114 
1061 Hard and inequitable oonditioa, 1114 
1061 Hat. 1114 
1061 Hatchita. 1114 
1063 Havala. 1114 
1063 Hearsay evidence. 1114 
1063 Hfir. 1114 

1063 Hereditary claim. 1114 

1064 Hereditary office. 1115 
1061 Hereditary office act Bombay Act III of 
1072 1874. 1115 
1072 Hereditary trustees. 1115 

1072 Hereditary village officers act. 1117 

1073 Heritable and aou-transferable lease. 1117 

1073 Hermit. 1117 

1074 Hibabilewaz. 1117 

1074 High Court, General. 1118 
1076 Bombay High Court rules. 1120 

Calcutta High Court rules. 1122 

1075 Madras High Court rules. 1123 

1075 N. W. P. High Court rules, 1123 



INDEX OF nE\DINGg 



High Court'a Character Act 21 and 25 

Vio Ch 104 1123 

High way 1124 

Hills 1124 

Hill tracts 1124 

Hindu Law 1125 

,, „ Accelaratlon of estate 1125 

„ „ Adoption 1126 

,, „ Advaucement 1141 

„ „ Alienation 1141 

„ „ Applicability of 1149 

„ ,, Apostacyoi change of religion 115o 

„ ,, Asietio 1151 

„ ,, Aulhoritieg on or religious 

texts of Hindu Law 1151 

„■ ,, Caste 1155 

,, ,, Compromise 1155 

,, „ Corjugiil lights 1155 

,, ,, Conversions 1155 

„ „ Corporaiion 1155 

, ,, Custom 1156 

„ „ Dells and decrees 1156 

,1 „ Debutter estate H'^G 

„ ,, Divorce IIIG 

„ „ Domicile ll'i'G 

„ ,, Endowments H'''? 

„ ,, Patlisr and sons ll'?7 

,, ,, Funeral ceremonies 1178 

„ Girt 1178 

„ „ Guardianship 1185 

,, „ Heirs rights and duties 1186 

„ „ Idol 1186 

„ „ Illegitimacy 1186 

,, ,, Impartib'a estate 1187 
„ „ Inheritance and suooession 1193 

„ „ Jains 1207 

„ ,, Joint family 1207 

,, „ Legitimaoy 1207 

„ „ Mahaot 1231 

,, „ Maintenance 1231 

„ „ Manager 1237 

,, ,, Marmakatyam Law 1237 

„ ,, JlarriagQ 1237 

,, „ Partition 1242 

„ ,, Reunion 1252 

„ ,, Relig ous ceremonies 1254 

„ ,, Religious endowments 12f5 

„ ,, Re marriage 12G0 

„ ,, Reunion 1260 

,, „ Reversioners 1261 

„ „ Sale 1274 

„ „ SelfacquieitiDnl 1274 

„ „ Settlement with wife 1275 

„ „ Stridhan 1275 

,, ,, Succession. 12F2 

„ ,, Survivorship, 1282 

„ „ Text 1282 

„ „ Trust. 1282 

,, ,, Uuohastity 1282 

„ „ Widow. 1282 

„ Wife 1300 

„ Will. 13C0 

,, „ Woman's estate 1313 

Hindu Temple 1313 
Hindu Widow remarriage act X V'ot 1856 1311 

Hindu Wills Act XXI of 1870 " 1314 

History of Legislation 1314 

Holder in due ceurse 1314 

Holding 1315 



Holding over 


1315 


Holiday 


1315 


H. lidays 


1315 


HcnT^^teid land 


1315 


H.ju-ti 


1316 


Hundi 


131G 


Husband and wife 


1317 


Hyderabad 

I. 

Idiot 


1310 


1310 


Mol 


1320 


Ignorance of Law 


1301 


Illegal ointnot 


1321 


Illegal ex'>rci3e of jurisdiction 


13n 


Il'egitimacy 


1321 


Illegitimate ohild 


l.':2i 


IlUgitima'c son 


1321 


Illeiera'operson 


1321 


Immoveable prrperty 


1323 


Imparl li'.hty 


132.1 


Impartibhld estala 


lS2t 


I^npanib'e tuluqdari 


132 4 


Implement coolract 


1321 


Implied authority 


132 1 


Impliad contract to payment In mo 




ney 


13? t 


Implied grant 


1324 


Impriscninont 


13 5 


Improper conduct, advocate 


132 1 


Improvement 


13-' t 


Inadequacy of price 


1321 


I nam 


1325 


Iiam, enfranchisement of 


1326 


Inamdar 


1327 


luorma of temple 


1327 


Income taTc 


i32i 


Incon-e tax net II of IB'6 


13 ■? 


Inconsistent allegations 


13'JH 


Inconsistent pleadings 


1320 


Inconsistent pleas 


1320 


Inconsistent position 


1330 


looopsistent reliefs 


1310 


Incorporation. 


1330 


Incorporeal right 


1330 


Incumbrances 


13^0 


Incurable disease 


1330 


Indemnity 


1330 


Independent advioa 


1330 


Indian companies act VI of 1892 


1330 


Indian council's act 


1330 


Ind an Law Reports act XVIII of 




1875 


2331 


Indian mnj^ri'y act IX of 1875 


1331 


Indian succession act X of 1865 


13: 1 


Indigo factory 


13n 


Indorsee 


13U 


Indorsement and delivery 


1331 


Inferior pccpriator 


18 1 


Inlringemeat of patent 


1332 


Inlieritanoa 


1332 


Injunction 


1332 


■ '■jury 


1346 


III part 


1346 


;usanity 


1316 


[ngolvenoy 


1315 


[Qsolvency act 


1351 


insolvent 


1353 



INDEX OF HEADINGS 
Coi. 



Insolvent debtor's Relief Act 18i8 


1354 


Inspection of docunaent 




1354 


Instalmeuts 




1354 


luilalmenl bond 




1354 


Instalment decree 




1355 


Instalments provision 




1356 


Inelalmeiit lUgulatioa XVII 


of 1806 


1356 


Instalment 




1356 


Insufficient deposit 




1357 


Insurable ititereat 




1357 


Insurance 




1357 


Interest 




1358 


Interest act XXXII o£ 1839 


and act 




XXXIII ol 1855 




1373 


Interest in a liovenue holding 




1373 


Interlocutory npplicatioa 




1373 


Interlocutory dcorea 




1374 


Interlocutory order 




1374 


Intermediate laud holders 




1375 


International Law 




1375 


Inter pleader suit 




1375 


Interpretation 




1376 


Interrogatory 




1377 


Intoxicating Drug 




1&78 


Inventions and designs act V 


of 1888 


1378 


Inventory 




1378 


Irregularity 




1378 


Irregular procedure 




1378 


Irrigation 




1379 


Issue 




1379 


Istamrari and makurarl 




1880 


J. 






Jagir 




1379 


Jagirdar 




1379 


Jains 




1379 


Jajman and Acbataj 




1380 


Jajmani Babis 




1380 


Jaikiir rights 




1380 


Jsmabandi 




1381 


Jats 




1381 


Jetbausi 




1381 


Jewish Religion 




1383 


Jhala Gbaiasips of Limri in Kathiawar 


1884 


Jhansi I > cumbered Act XVI 


of 1832. 




(N W P) 




1384 


Joinder of caus" of action 




1384 


Joinder of claims 




1383 


Joinder of claims and parties 




1383 


Joinder of defendants 




1383 


Joinder of parties 




1383 


Joinder of plaintiffs 




1386 


Joint debtors 




1386 


Joint decree 




1386 


Jointidecreo holders 




1386 


Joint estate 




1386 


Joint family 




1386 


Joint holding 




1387 


Joint Mortgage 




1387 


Joint obligers 




1388 


Joint osvuer 




1388 


Joint possession 




1388 


Joint promisors 




1389 


Joint property 




1389 


Joint stock company 




1389 


Joint tenancy 




1389 


Joint tenants 




1390 


Joint Tort feasors 




1390 


Jote 




1390 



Judge 

Judgment 

Judgment creditot 

Judgment debt 

Judgment debtor 

Judicial Calender 

Judicial Commissioner 

Judioial Committee's decision 

Judicial Disiretion 

Judioial Officers Act XVIU of 1850 

Judicial ordi r 

Judicial proceeding 

Junglebural lease 

Jurisdiction 

Jurisdiction of Appellate Court 

Jurisdiction of Chief Court 

Jurisdiction of Civil ' ourta 

Jurisdiction of District Court and High 

Court 
Jurisdiction of Civil and Criminal Courti 
Jurisdiction of Civil and Revenue Courti 
Jurisdiction of Dislriot Judge 
Jurisdiction of Executing Court 
Jurisdiction of Foreign Court 
Jurisdiction of High Court 
Jurisdiction of Indian Courts 
Jurisdiction of Inferior Court 
Jurisdiction of Judge 
Jurisdiction of Judicial Commissioner 
Jurisdiction of Heve: ue Courts 
Jurisdiction of Settlement Court ol 

officers 
Jurisdiction of Small Causs Courts 
Jurisdiction of Sub Courts 
Juslertii 
Justice 

E 

Kabuliyat 

Kamat land 

Kamiana duos 

Kanom 

Karnavan 

Karnavan and auandravan 

Karta 

Katbiavfar state 

Kattalagar, Rights of 

Ivbaikari rights 

Khali fasal of Jeth 

Rhauadamad 

Kbasras 

Kbasra 

Kbata 

Khata book 

Kbaiedar 

Khewat 

Khojas 

Khoja Mahomedans 

Khorposh grant 

Kboli Settlement Act I of 1880 

liboti tenure 

Kbud Kast 

Ifisi 

Kan Kani 

Koran 

Kritrima son 

Kudhi Kamini 

Kumaou Rules 

Kutchi memoDS 



Con 

1390 
1391 
1395 
1395 
1395 
1396 
1396 
1396 
1397 
1397 
1397 
i3yT 
1897 
1397 
1421 
1421 
1421 

1445 
1445 
1445 
1461 
1462 
1462 
1463 
1469 
1469 
1469 
1469 
1471 

1473 
1473 
1479 
1480 
1480 



1479 
1481 
1481 
1481 
1!81 
1481 
1481 
1482 
1482 
1482 
1482 
1482 
1482 
1482 
1482 
1482 
1482 
1482 
1483 
1483 
1483 
1483 
1483 
1484 
1484 
1484 
1484 
1484 
1484 
1434 
1186 



INDEX (JF HEADINGS 



Lao 1485 

Lftobea H8G 

Laklieraj land 1487 

Laklieraj title 1487 

Lambardar 1487 

Lameness 14'J0 

Land Aoquigition Act I ot 1894 1491 

Land Alienation Act XIII of 1900 1497 

Land holders 1497 

Landlord 1497 

Landlord and tenant 1498 

Landlord and tenant act 1549 

Laud marks 1549 
Land Registration Act VII of 1876 1549 

Land Revenue 1549 

Land Revenue Acts 1550 
Laud Revenue Assesament Act I of 

1876 Madras 1550 

Land Revenue Code Berar 1550 
Land Revenue Oode Bombay Act V of 

1879 1551 

Land and Revenue Regulation 1551 

Land Revenue Rules, Bei gal 1551 

Land Revenue Rules Punjab l&SI 
Land Revenue sales Act XI ot 1869 

Bengal 1651 

Land suit 1651 

Land tenure 1552 

Law Merobant 1553 

Law Reports Act XIII of 1875 1553 

Lease 1553 

Leave to appeal 1663 

Leave to sue iaforma pauperis 1565 

Leave to sue a receiver 1563 

Legacy 1563 

Legal necessity 1566 

Legal practitioner 1565 , 
Legal Practitioners Aot XVIII of 1879 1565 

Legal representative 1567 
Legal representatives suits Aot XII ot 

1855 1567 

Legal tender 1667 

Legatee 1668 

Legislature — Power of 1668 

Legitimacy 1568 

Lender and Borrower 1669 

Leprosy 1569 

Lessor and Lessee 1669 

Letter, Stump on 1569 

Letters of administratioQ 1569 

Letter of credit 1571 

Letters Patent 1571 

„ Allahabad 1672 

„ Bombay 1574 

„ Calcutta 1576 

„ Madras 1577 

Libel 1583 

Liberty to file fresh suit 1584 

License 1584 

Lien 1584 

Life estate 15S6 

Life insurance 1586 

Life interest 1586 

Life lenant 1580 

Light 1586 

Light and air 1686 

Limitation 1586 

Limitation act IX of 1908 1605 



Limited interest 

Liquor country made how attaehed 

Lispendens 

Litigatioa 

Loan. 

Loan or deposit 

Loan Register of Public debt 

Local Board Act 

Local custom 

Looal ommissiODSF 

Local Fund Ooss Aot III ot 1869 

Loonl Inspeolioa 

Local investigation 

Locas standi 

Lord's days Aot 

Lower Burma Acta 

Lunacy 

Lunatic 

M. 
Madras Acts. 

Madras Ac' XXIV of 1839 Aganoy Aot 
„ Act XXVIII of 1860. Boundaries 

Aot 
„ Aot II of '86i. Revenue Recovery 

Act 
„ Act VIII ot 1865 Rent Recovery 

Aot 
„ Aot IV ot 1866. EnfraDchished 

I nam 
„ Act III of 1873. Civil Courts Act. 
„ Aot I of 1876. Land Revenue As 

sessmetit Aot 
„ Aot V of 1882. Madras Forest 

Act 
„ XIX of 1883. Land Improvement 

Loans Aot 
„ Aot I of 1884. Oity Municipalities 

Act 
„ Aot IV of 1884. District Munici- 
palities Aot 
„ Aot V of 1884. Looal Riards Act 
„ Aot I of 1886 Abkari Aot 
„ Aot I of 18S7. Malabar Compensa 
tion Act for tenant's Improve- 
ment Aot 
„ Aot I of 1889. Village Courts Aot 
„ Aot IV of 1889 Salt Aot 
„ Act I of 1S91. General clauses Aot 
„ Act VU of 1892. City CiviM'ourt 

Aot 
„ Aot Hot 1894 Hereditary village 

Offices Aot 
,. Act III of 1895. Hereditary vil- 
lage offices Aot 
„ Aot III of 1897 District Muni- 

cipaliti'S Amendm.5nt Aot 
„ Aot IV of 1SSI9. Amending Regu- 
lation Act V of 1904 
,, Aot 1 of 1902. Courts of wards Act 
Mngiptrate 

Maliab'Bhmani Oolleotions. 
Mahabrnhma i ducj 
Maliahrahmani offerings 
Mnhant 

Mjihamat's of muzaffergarh District 
Miihomedao Law 
Mabsul 
Maintenance 
Maiateuauce gr»Qt 



COL 

IGU 
1612 
161-^ 
1614 
1614 
1614 
1614 
1614 
16i4 
1614 
1614 
1615 
1615 
1615 
16)6 
1616 
1616 
1616 

1615 

1616 

1616 

1616 

1622 

1639 
1639 

1639 

1639 

1639 

1640 

1648 
IriSO 
1651 



16.51 
1652 
1652 

ltV)3 

1653 
1653 



16.=j5 

1655 
1656 
1656 
16-G 
1656 
I6ir, 
1657 
1657 
1657 
1700 
1701 
1702 



INDEX OF HEADINGS 



Majority 1702 

llnj-aity Act IX of 1878 1703 
Malabar oompeusatioQ for tenants Im- 

piuvemeul Act 1703 

Malftlar i-aw 17U3 

Waladministratioa '703 

Malice 1708 

M'.licious arrest 1708 

Malicious prosecution 1708 

J'aliciuus suarob 1705 
Malicious aettiug ot tba Ian in motion 17iS 

Milikma 17:5 

Malili mukhuza 1716 
Mouilatclar's Courts' Act III of 1876 1716 

IMamlaldar's Courts Act II of 1906 1716 

Mai;agem6afe 1716 

Mauager 1716 

Maudamus 1716 

Mandatory injunotioa 1716 

Maps 1716 

Marine Insurance 17l6 

Ivlaritime Law 1716 

Jlaiket 1717 

Maikct value 17i7 

Maiksman 1717 

Marriage 1717 

IMairied woman 1720 
Married woman's* property Act III of 

1872 17-20 

Marumakkatbayam Law 1720 i 

Maiwui yraiit 1727 I 

Jfa-hkHbari accounts, 1727 | 

Masttr «iid servant 1727 

Maieiial alteratiou of building 1728 

Mat rial alteration of documents 1728 

Material irregularity 1728 j 

Ma'erial domicile 1729 

M,.uraaidar 1729 

Maxim 1729 

Medical evidence 1731 

Mtdioal practitioner 1731 

Meia 1731 

MLmocaiidum of association 1781 

Jlemorandum of objections 1731 

Meicaiitile law 1731 

lilercanlile usage 1731 

Jurchuudisb Marks Act IV of 1689 1731 
Meicbaob Shipping Act I of 1859 and V j 

o( 1883 1733 

Mfcigr 1733 1 

Mei.ne profits 1734 I 

Miueial rigbts 1739 

Mineials 1739 

Minipg rigbts 1739 | 

Minor 1740 

Minor and guardian 1744 

M.o lis property 1747 i 

l.l.ratd.n's rigbts 1745 

Miiasi lights 1745 

Mivati villages 1745 

Mucouduot 1745 , 

I\Iiii0oi uttuction of deed 1745 

Misdescription 1745 

Mitjiinder of causes of action 1745 j 

Misjoinder of parties 1746 I 

Misrepresentation 1747 | 

Mistake 1748 

Mistake of law 1748 

Mod.lIttMtiou decree I71& 



Col 

Mohini allowance 1748 

Mokarari Tenure 1748 

Mokhasa 1749 

Mokurari Inslemrari 1749 

Money decree 1749 

Money bad aud received 1749 

Monopolies 1749 

Morlgflgage 1749 

Mortgage accession or aocretiot» 1750 

Mortgage accfunls 1750 

Mortgage acknowledgment 1751 

Mortgage acquiescei ce 1753 

Mortgage adverse possession 1753 

Morfgnge anomalous morlgaga 1754 

Morlgnge apportionment 1754 

i\Iortgage assignmei t of 1754 

Mortgage attestation of 1758 

Mortgage charge 1755 
Mortgage compromise decree, treating a 

mortgage 1756 
Mortgage conditional sale and foreclo- 
sure 1757 
Mortgage consideration for 1761 
Mortgage construction ot 1762 
Mortgage contribution 1766 
Mortgage covenant 1767 
Mortgage to defeat creditors 1769 
Mortgage English mortgage 1769 
Mortgage Equitable mortgnge 1769 
Mortgage Equity of redemption 1770 
Mortgage E,toppel 1771 
Mortgage Execution 1771 
Mortgage Extinguishment of security 1771 
Mortgage Foreclosure 1771 
Mortgage Forms of mortgage 1779 
Mortgage Interest 1779 
Mortgage Legacy 1780 
Mortgage Lien 1780 
Mortgage Limitation 1780 
Mortgage marshelling 1780 
Mortgage mortgage decree 1780 
Mortgage mortgage deed 1785 
Mortgage mortgagee's duties 1787 
Mortgage mortgagee's right 1788 
Mortgage mortgagor's duties 1790 
Mortgage mortgagor's rights 1791 
Mortgage mortgage by whom 1792 
Mortgage mortgage of what 1794 
Mortgage mortgage suit 1802 
Mortgage once a mortgage always a 

mortgi\g; 1814 

Modgago onus prolaiuli 1814 
Mortgage Prior aud puisne mortgage 1815 

Mortgage Priority 1819 

Mortgag9 Redemption 18S1 

Mortgage Registration 1851 

Morlg'ige Relicquisbment 1859 

Jlorlgage Resjudioata 1863 

Mortgage Revenue sale 1857 

Mortgage sale 1857 

Mortgiigo sale or mortgage 1863 

Mortgage Satisfaotion 1864 

Mortgage Simple mortgage 1864 
Mortgage special and local laws, eSeot 

00 mortgage 1865 

Mortgage Sub mortgagee's right 1865 

Mortgage ■ ubrog'ttion 1867 

Mortgage 'iBckii.g 1868 

ilortgagu Usutructuary mortgage 1S69 



INDEX OF HEADINGS 



Mother 

Moveable property 

Muafi 

Hukarraridari right 

Miikhi 

Uukktnr's power loaotina 

Mulpatlae 

Mul Haiyat Tenure 

Muuioipal acts 

Municipality 

Municipal orders 

Municipal Register 

Municipal Tax 

Munsarlm 

Murderer 

Mush 

Mustajir 

Mutation prooeedings 

Mutt 

Mutwalli 

N. 

Names 

Naiiksr 

Nativa christians 

Native states 

Natural rights 

Natural stream 

Navigation 

Nazir 

Nazraua 

Nozul 

Niizul land 

Neoesaaries 

Necessity 

Neglect of refusal 

Nogligenoa 

Negotiable instrument 

Negotiable Instrumeat Act 

1881 
Nephesj 
New case 
New plea 
Now Relief 
Newspaper 
New trial 
Next friend 
Niawadari rights 
Nikahnama 
Noabad mehal 
Noabad taluk 
Non ngricultural lease 
Non agriculturists 
Non nppearauoe 
Non joinder 
Non occupancy Raiyat 
Non proprietor 
Non suit 

Non transferable holding 
Northern India C«nal and 

act VIU of 1873 
Nort est WFrontitr Province 



XXVI of 



Drainage 



1889 
1890 
1890 
1890 
1890 
1890 
1890 
1890 
1891 
1891 
1891 
1891 
1S91 
1891 
1892 
1892 
1893 
1823 
1894 
1894 

1894 
1894 



North AVest Proviaces Acts. ISdl 

„ Act XVI of 1865. KuvoDue courts 

Act 1895 

„ Act VIII of 1873. Canal and 

Drainage Act 1895 

„ Act XV of 1873. Municipalities 

Act 18UG 



Col I 

1876 
1876 
1877 
1877 
1877 
civil court 1877 
11)77 
1877 
1877 
1878 
1878 
1878 
1879 
1879 
1879 
1879 
1879 
J879 
1880 
1S81 

1881 
1881 
1881 
I88I 

1881 
1882 
1882 
1882 
1882 
1882 
1882 
1883 
1883 
1883 
1884 
1887 



Col 

North Act XIX of 1873. Land Revenue 

Act 1896 
„ Act 111 of 1873. Local Rates Act 1899 
„ Act XVII of 1878. Feiies Aot 1899 
„ Aot XII of 1881. Rout Act 1900 
„ Aot XVI of 1832. Jbansi Encum- 
bered Estates Aot 1905 
„ XII of 1887. Civil Courts Aot 1905 
„ Act III of 1889. Court of Wards 

Act 1905 
„ Aot IX of 1889. NWPandOudh 

Kanungo and patwaris Aot 1905 
„ Aot IV of 1891; Laud Revenue 

Act 1905 

„ Act I of 1895, Muuic.palities Aot 1906 
„ Aot III ot 1899. N W P and Oudh 

Court of Wards Act 1906 

„ Act I of 1900. Municipalities Aot 1906 

„ Act II of 1901. Tenancy Act 1909 
Act ni of 1901. Laud Revenue 

Aot 1925 
„ Aot 1 ot 1903. Bundolkhaud En- 
cumbered Estates Act 1929 
„ Act I of 1904. General clauses Aot 1930 
Notieo 1930 
Notification 1941 
Novation 1941 
Nuisance 1942 



Oath 1941 

Oaths Act of 1873 1941 

Obiter diota 1941 

Ol>jpctionB 1941 

OLjetor 1942 

Obstructions 1949 

Obtains possession 1942 

OocupaKoy holding 1912 

Occupancy ryot 1949 

Occupancy tenant 1951 

Offerings 1951 

Office brocage 1951 

Officer 1951 

t;fHcial Aot 1951 

Official as!>igne» 1951 

Offioial of Court 1953 

Old grant 1952 

Omission 1952 

Onus of proof 1953 

Opening oases before evidence 1957 

Opinion 1957 

Opium *cA. 1878 1957 

Oral ngre..ment 1957 

Oral CO' veyanoe 1957 

Oral evidence 1957 

Oral Gift 1959 

Oral ,.«er of sale 1968 

(JrnI transfer 1968 

Orasa Child 1958 

Orasa sou 1958 

Order 1959 

Oriler absolute 1961 

Older sheet 1963 

Ordirary holding 196iJ 

Ordiuiiry resides 1963 

Or'.bnmuiyani lease 1363 

Ostensible owner 1963 

Oudh Acts. 1963 

UuUU Aclb XIIl of 1866 1963 



11 



INDEX OP HEADINGS 



Oudh Aot XXVI of 1866. Sub Sflktlament 
Aob 
„ Acl I of 1869. Batatea Aofc 
., Acl. I oi 1869 Taluqdar'a Aot 
,, Act XVII of 187G. Land RevoQUe 

Act 
„ Ac X\f III of 1876 Oudh Laws Aot ; 
„ Aoi XIII of 1879. Civil Courts 

Act 
„ Act XXII of 1886. Bent Aot 
„ Act IX of 1889 
„ Aob XlV of 1891. Court Aot 
„ Act V of 1894. Lcoal Ratea Aot 
„ Acl IV of 1901. Civil Courts Aot 
„ Aot IV of 1901. Rant Aot 
Ouster 

Out of time grand ohild 
Owelty 
Owner 
Ownership 

p. 
Pachis sawal 
Pnf!wand Ohundawand 
Fttkl^a Adatia 
Fanobaoama 

Paper Currency Aot XX of 1882 
Farda nashin lady 
Parents 

Faral evidence 
Parsis 
Farsi Intestate Saooession Aot XXI of 

1865 
Farsi marriage and Divorea Aot XV 

of 1865 
Partial partition 
Parties 
Partition 

Partition Aot IV of 1893 
Partition Estate Aot VIII of 1876. 

Bengal 
Partner 
Partnership 
Part payment 
Party 
Party wall 
Patent 
Patni 

Patni tenure 
Patta 

Pattne a-^d muobilikaa 
ratwBri 
Prtuj'fr 
Pawn Broker 
Pawnee 

Pawnor and Pawnoa 
Paynieiit 
Pedigree 
Peishoush 
Penalty 
I'ereion 

Pension Aot XXXIII ot 1839 
Perifliable properly. 
Perjury 

Permfvt'eiit Lease 
Permanently settled estate 
Permanent occupancy Right 
Peimnrtul leii'inoy 
Permanent tenure 
Fermisaiou 





Parpetual leaai 


8041 


1964 


Perpetuity rules 


2041 


1964 


Persons 


2041 


1976 


Personal Inam 


2041 




Personal law 


2011 


1976 


Per.'^onal liability 


2041 


1977 


Personal signature 


2042 




Personal undertaking 


2042 


1986 


Petition 


2042 


1987 


Physical possasBion 


2042 


1999 


Pin money 


2042 


1999 


Piratlavaru oeaa 


2042 


2000 


Plaoe of performanoa 


2042 


2000, 


Plaint 


2042 


2001 


Plaintifl 


20)8 


2001 


Plead 


2049 


2001 1 


Pleader 


2050 


2002 


Pleaderahip Eraminatioa 


2056 


90U2 


Plpadings 


2056 


2002 


Pledge 


2063 




Pleve administratlva 


2064 


2001 


Poggalika 


2064 


2001 


Policy of inauranoa 


2065 


2001 


Political agent 


2063 


2001 


Political Pension 


2065 


2002 


Polliems 


2065 


2002 


Ports Aot X of 188» 


3065 


2004 


Possessioa 


2066 


2004 


t'osseasory suit 


2075 


2004 


Possessory title 


2075 




Post diem interest 


2075 


2001 


Poathumous chela 


2075 




Posthumous son 


2075 


2005 


Poatponement of hearing 


2076 


2005 


Post Offices Aot VI of 1898 


2075 


2005 


Poverty 


2075 


2011 


Powers 


2076 


2023 


Power of appellate court 


2076 




Power of appointment 


2076 


2023 


Power of attorney 


2075 


2023 


Powers of oolleotor 


2078 


2023 


Powers of court of second appaal 


2078 


2033 


Practice 


2079 


2033 


Practice appeal 


2080 


2033 


„ Appellate Court 


2080 


2034 


,, Application 


2082 


2034 


„ Approbation 


2082 


2034 


„ Attached property 


2082 


2034 


„ Attorney 


2082 


20:i5 


„ Bir if limitation 


SOS 3 


2031 


„ Conversion of appeal 


2084 


2036 


„ Costa 


2084 


2C;'6 


„ Dooision 


2085 


20 36 


„ D claratory Reliefs 


2085 


2037 


„ Deori.'e 


2086 


2037 


Delay 


2087 


2om8 


,, Discovery 


2087 


2 38 


„ Discri'tion 


2087 


2<38 


„ Docuraenta 


2088 


50:,9 


„ Eviilence 


2038 


2039 


„ Ouinilian 


2090 


2039 


„ High Court 


2090 


2039 


,, Inju-'ction 


2091 


2039 


„ Insolvency 


2091 


2039 


„ Issue 


2092 


20.59 


,, Joinder of patties 


2092 


2040 


Judges 


2092 


2C40 


,, Juii^dictiou 


2092 


2040 


„ Laches 


2092 



INDEX OP HEADINGS 



Praotioe Liability 


2092 


Prior 




2179 


„ Mortgage 


2092 


Prior suit 




2179 


,, Motion 


2093 


Priority 




2179 


„ New case and notica 


2093 


Privacy 




2180 


, Objeotions 


2093 


Private 




2180 


I, Order 


2093 


Privilege 




2180 


,, Parties 


2093 


Privy Council 




2180 


„ Payment 


2097 


Probate 




2184 


Petiiiou 


2097 ; 


Probate and administration 


218T 


Flaiut 


2097 


Probate and Administration Act V of 




PlaiutiS 


2098 


1831 




2187 


Plea 


2098 


Probate duty 




2188 


Practice Pleader 


2099 


Probate or letters of administrattoa 


2183 


,, Pleadings 


2099 


Procedure 




2188 


1, Power of court 


2103 


Proceedings 




2191 


1, Prescriptive titla 


2103 


Procesa 




2192 


„ Probate 


2104 


Process fees 




2192 


Procedure 


2105 


Prooessions 




2191 


„ Proof 


2111 


Proclamation 




2192 


,, Remaod 


2111 


Profession tax 




2194 


„ Report 


2111 


Prolessional misconduct 


of Pleader 


2191 


„ ReetoratiOD petition 


2111 


Professional services 




2194 


„ Review 


2111 


Profits 




2194 


„ litvocatioa 


2112 


Profit a prender 




2195 


„ li'gl't 


2112 


Proforma dofeudaut 




219S 


,, Rules 


2112 


Promisee 




2196 


I, Sale 


2118 


Promissory note 




2195 


„ Second appeal 


2113 


Proof of custom 




2193 


„ Service of 


2113 


Property 




2199 


,, Settiug aside compromisa 


2113 


Propinquity 




2200 


„ Special Commissioust 


2113 


Propriuiary estates village service Aot II 




„ Subordinate courts 


2113 


of 1894 Madras 




2200 


„ Stay of exccutiou 


2113 


Proprietor 




2200 


,, Successioa 


2113 


Prosecution 




2200 


„ Suits 


2114 


Prostitute 




2200 


„ Taxation 


2115 


Protection of Judicial officers Aot XVIII 




„ Tliird party 


2115 


of 1850 




2200 


„ Traiisfur uf Judge 


2115 


Protection of property 


aot in cases o 




„ Two Judges 


2115 


succession Aot XIX 


of 1841 


2200 


„ Vakils 


2115 


Provident Funds Aot IX 


of 1857 


2200 


„ Will 


2116 


Provincial insjlvency Aot III of 1907 


V201 


,, Witbdrawal 


2116 


Provincial Legislature 




2203 


„ Witness 


2116 


Provincial Small Cause 


Courts 


2Z03 


Prayer 


2116 


Provincial Small Cause 


Courts Act IX 




Precedent 


2116 


of 1887 




2203 


Pro emption 


2116 


Proxy 




2209 


Pre em p live 


2164 


Puberty and discretion 




2209 


Pre-emptoc 


2164 


Public company 




2-.i09 


Pregnancy 


2164 


Public Demand Recovery Aot I of 1895 




Preliminary decree 


21G4 


Bengal 




2209 


Preliminary issue of law 


2164 


Public document 




2209 


Preliminary order 


21G4 


Public drain 




2210 


Preliminary point 


2164 


Public duties 




2210 


Premature suit ior mortgage 


2164 


Public laud 




2210 


PreBotiption 


2165 


Public officer 




2210 


Presidency Banks Act XI of 1876 


2165 


Public place of worship 




2210 


Presideocy Small Cause Court 


21C5 


Public palicy 




2210 


Presidoncy Small Cause Courts Act XV 




Public strvanfc 




22 U 


of 188-J 


21C0 


Public street 




2211 


Press and Rtgistratioa of Books Act 


2168 


Public thoroughfare 




2212 


Presumption 


2168 


Public lal 




2212 


Price 


2174 


Public trust 




2212 


Primogeniture 


2174 


Public way 




2212 


Prince 


2174 


Puffing statement 




2212 


Priuoipal and Agent 


2174 


Puisne mortgage 




2212 


PriiiOipal and surety 


2179 


Punjab Acts. 




2213 


Principal debtor 


2179 


„ Act IV of iB72. La 


ws Act 


2213 


Principal of assessment 


2179 


„ Act XVllI of 1884 


Courts Aot 


2211 


Printing Ptessea Act XXY oJ 1876 


2179 


„ Act XYi o£ 1887, 


Tenancy Act 


2-iii 



indey of headings 



Col j 



Punjili Act XVII of 1887. Land Revenue 



„ Act XX of 1831 Municipal Act 
„ Act III of 1893 GoveiDmoLt 

Tenant-! act 
„ Act XI of 1896 Excise Act 
„ Act I of 1898 Goi.eral Clauses Act 
,, Act I of 1900. Limitation (aucea- 

tral land alienation aci) 
„ Act IV of 1903. Descent of Jagirs 

act 
„ Act XIII of 1900. Land Alienation 

act 
„ Act 1 of 1904 Loans Limitation 

act 
,, Act II of 1905. Pre emption act 
Purbia Kurmis 
Pure base 
Pui'cbase money 
Purchaser 
Purdaoasbin 
Putni Lease 
Putra 
Pwe 
Pyatpaing 



Qubuliat 
Quasi 

Question for Civil Court 
Question in issue 
Question of fact 
Question of Law 
Question c f title 
Quiet enjoyment 

Quorum 

Kaok rent and net produce 

Railway 

Bailway accident 

Railway act IX of 1890 

Railway administration 

Railway company 

Railway rules 

Rateable contribution 

Rateable sbare of sale proceeds 

Ralifiontion 

Reasonable and probable cauaa 

Reasoi'able compensation 

Reasonable remuneration 

Reasonable time 

Receipt 

Receipted Bill 

Receiver 

Receiver and Executor of trustee 

Reciprocal drmaod 

Recital in deed 

Recital of mortgage in proolamatiou 

I ecognition of claim 

Recognized agent 

Record of right 

Record of suit 

Record of rrvenua 

Kectifioaiiou 

Redemption 

Re entry 

Reference 

Reference to Chief Court 

Reference to full Beach by Division 



2237 
a.i40 

'2244 
2244 
2244 



2245 

2252 
2252 
2268 
2268 
2268 
2269 
8270 
2z70 
2270 
2270 
2271 

2271 
2271 
2271 
2271 
2271 
2271 
2272 
2272 

2273 

2273 

2273 
2273 
2273 
2273 
2274 
2274 
2274 
2275 
2275 
2275 
227G 
2270 
2276 
2276 
2276 
2276 
2281 
2282 
2283 
2283 
2283 
2283 
2283 
2283 
2284 
2284 
2284 
2284 
2284 
2284 



Berch cr the Travanoera High 

Court 2284 

Reference to High Court 2284 

Hefuiid 2285 

Refusal of lender 2285 

Uefu<ir>g to file award '.4285 

Reg'ftpred document 2285 

litgisiered aLd unregistered deeds of 

sale 2286 

Registrar not a court 2286 

liegistrar 2286 

Registrars report 2286 

egistrar's sale 2286 

Degistration 2286 

liegistratiou Act XVI of 1908 2289 

Registration of Societies Act XXI o( 

1860 2291 
Registration Regulation Travanoora act 2291 
Registry 2291 
Registry of tenant 2292 
Kbgular settlement 2292 
Regulation III of 1793 Bengal 2292 
Reguialio . VH of 1893. Bengal Decen- 
nial settlement 2292 
Regulation XlX of 1793 2292 
Regulation XXVlIofl798 2292 
lUgulation XXXVII of 1793 2293 
Regalati.m 1 of 1798 2293 
Regulation V ol I7!*9. N. W. P. and 

Bengal 2293 

Regulation XXV of 1802 Madras 2293 

Regulation II of 1803 as amended by 

Regulation Act 11 of 1805 2293 

Regulalicn V of 1804. Madras 2293 
Regulation XVII of lf06 Bengal Land 

Redf-mption and F reclosute 2294 
Pegulauun XlX of 1810 2295 
Regulation V of 1812 Bengal 2295 
Regulation VII of 1871 Madras 22f5 
Regulation II of 1891 22'. 5 
Regulation VIll of 1810. Putni 2295 
Regulaiion VII of 1822 Bengal 2298 
Regulation XI of 1825. Bengal 22t8 
Regulation Act II of 1827 2299 
Regulation VIII of 1827 22P9 
Kegulatirn VU of \lzl 2299 
Rigulation IX of 1831 2299 
Regulation VllI of 1832 2*i99 
Regulation Act II of 1873 Bombay 2300 
Regulation Act 111 ol 1827 23C0 
Regulation VII of 1881 2300 
Regulation 1 of 1886. Assam Land Re- 
venue 2300 
Regulation HI ol 1891 23C0 
Regulation 11 of 1900 Frontier 2.300 
Regulation VII of 1901, North West 

Frontier Province 2301 

Regulation I of 1906 2301 

Reimbursement 2301 

rteiociorsemeut '^301 

RlJ ctiou of plaint 2301 

Rb ease 2302 

Religion 2303 

Religiuus association 2303 

Religious endowment 2303 
Religious endownments Act XX of 1863 2308 

Religiuus instiiution 2309 

Religious practice 2310 

BeligiouB service . 2310 



INDEX OP HEADINGS 



Cot, I 

Beligioua trust 2310 

Bcliriquislimant 2310 

Remairnige 2315 

Himivirmga o£ widows 2315 

Htmedy 2315 

JJemoily speoinl 2316 

BMiiission 2310 

lUmoiu und indirect damiigea 2316 

Bi'inoioiicra 2316 

Hcmoval 2310 

Removal of ftttaclimunt 2316 

Bemoval of tteeg 23l7 

Bemuueratioii of golioitora 2317 

Roditicu of acoouut 2317 

Beat 2317 

Bent Aot XII o£ 1891. N. W. P. 2322 

Betit ActXXU of 1886. Oudh 2322 

Bent Court 2322 

Bent free land 2322 
Rent Ktoovory Aot X of 1S59 Bengal 2322 
Bent ISeoovory Act VIII of 1865 B,jngal 2322 
Rent Iltoovery Aot VIII of 1865 Madras 2322 

Bent sale 2323 

Bental claim 2323 

Bautal 2323 

Rt partition 2323 

Bt peal of statutag 2323 

Boply to notice 2323 

Report by Buparintaudant 2324 

B I port 2324 

Representation 2324 

Bepresentativo 2324 

Repudiation 2326 

Eepurcliaso 2325 

Reputation and Burner 2326 

Requisition of Headman 232G 

Resale 2326 

Rescission of oontraot 2326 

Residence 2326 

Besiduary Legatee 2326 

Besidue 2326 

Besjudicata 2327 

Bespondent 2358 

Responsibility of Station Master 2358 

Resiituliou ■ 2361 

Restitution of conjugal righta 2^61 

Restoration 2361 

Resulting trust 2361 

Resumption 2361 

Reslrospective 2362 

Beturu of plaint 2362 

Bo union 2362 

Buvenue Aot 2363 
Eevenua Aot XVII of 1876 (Oudh Aot) 2364 

Revenue authoritiea 2370 

Revenue Oourt 2370 

Bevenue Courts 2370 
Bevenue Courts Aot XVII of 1865 

N. W. P. 2371 

Revenue free grant 2371 

Bevenue officer 2371 

Revenue publio 2371 

Eavenua records 2371 
Bevenue Beoovery Aot 11 of 1864 Madras 2371 

B«venue sale 2371 
Bevenue sale law Aot XI of 1859, Bengal 2372 

Beversionaty heir 2372 

Beversionary interest 2372 

Beversioaary righta 2372 



Reversioners 

Review 

B"vision 

Keviaional jurisdiction 

Kevivi>l of claim 

Revinr of eX3cuiion 

Revocaiion 

Rigli ts of suit 

Right of way 

Bight to redeem 

Right to sue 

Riparian ownev 

riipiri:ui pr.'priotors 

Biparian rights 

Risk note 

Rival claimants 

Bivar 

Riwajinra 

Bead a-d Public Works Cess Act IX of 

1880, Bengal 
Roads 

Rokar accounts 
Roman ('atbolio Christiana 
I oyalty 

Rules for Larabirdari 
Rules of double portiong 
Rule of stare decisis 
Buloa of Bombay High Court 
Rules of Ca'cutta High Court 
Rule of Bnglisk Equity Oourt 
Rules of Madras High Court 
Rules of N W. P. High Court 
Rules of Praot'oe Calcutta 
Kulea of Practice Madras 
Rules under Punjab Land Revenue 

Act 1887 
Ruling I'hief 
Rulings of Chief Court 
Rulings of the PiiiaiiL-i ,1 Commissioner 
Rumour and Kepudiatioa 
Byotwari Tenure 

S. 
Sadr Oourt 
Sale 

Sale and prioa 
Salvage Lien 
Same matter 
Sanad 

Sanad bolder 
Sanction 
Sangat 
Santan 

Sahthal Perganaa 
Saranjim lands 
.Sanyasi 

Schedule District Act XlV of 1374 
Scheme of Management 
Sua customs Aot VIII of 1878 
Search 

Second appeal 
Second appeal oourt 
Second mortgage 
Second summary sattlament 
Secondary evidence 
Secret trust 
Secretary of state 
Security 
Security bond 
Security for ooata 



Cor. 

2373 
2374 
2377 
2383 
23-^4 
2384 
2394 
2J87 
2100 
24C0 
2400 
2101 
2401 
2402 
240J 
2402 
2402 
2tOJ 

2103 

2401 
2404 
2104 
2404 
2404 
2404 
2401 
240 4 
2404 
2404 
2104 
2404 
2404 
2404 

2403 
2403 
2403 
2l0'i 
21i}.i 
24013 

2103 
2403 
2418 
2413 
24 a 
2418 
2118 
2419 
2420 
2420 
2420 
2420 
2420 
2120 
2120 
2 J 20 
21-20 
2420 
2422 
2422 
2422 
2422 
2422 
2423 
2423 
2423 
2424 



INDEX OF HEADINGS 



Cm. 



VnlilivUon of nppcal 

Vulu ition C'f liiiiil 

Valunliou o( suit 

Vftiu.vtor 

Vriiurt , , , 

Variivtion botwoon pleading and ptool 

Vatai 3 

Vr.MloQ 

VeiicJ.r arcJ purchaser 

Vendor and vondce 

Vi rifioation 

Vic: filiairmau of Muoioipality 

Vicinage 

■villngo 

Village abadi 

Village cess 

Vill^igo Chawkidara Act VI of 1870 

Village Gomuion 

Village Commuoity 

Village menials 

Village Muneif 

Void contract. 

Void or voidable oontraot 

Volunt-ry payments 

Vyavahar niajukb 

Wager 

Wagering agreomoot 

Wagering oontraot 

Wages 

Waiver 

Wajib ul arz 

Wojib ul arz Nagpur 

Wakt 

Warrant 

Warranty 

Wasika 

Waste 

Waste laud 

Water 

Water ooursi 
Water rate 

Water rigUta 

Way 

Weakness 

Wells 

Whole blood 

Whole blood and halt 

Widow 

Wife 

Wild animal 

Will . 

Winding up order 

Window 

Withdrawal of appeal 

Wiilidrawiil of application 

Withdrawal ul suit 

Witness 

Wards accrual of the right to 8U9 

Word6 and phrases 

Written stalemeut 

Wrong doers 

Wrong person as plaintlfE 

Wrong time 

Wrongful withholding 

Wroog iafoimatioa 



25?2 
•2523 

252^ 
2526 
2556 
2526 
25i6 



Year 

Yoarly tenancy 



Zfiildar 
Zaildari 
Zii z bar 
2626 Z"midar'.-i right Hnk chahavum 

2527 Zomindar's right to hold msiiket 

2528 ' Zeraindiir and Lamhardar 

2530 ', Zemindir and Putnidar 
8531 1 ^i-miridar and Eyoi 

2531 Zenvindari 

2531. I Z^mindnri tenant 

2532 1 Zsmindr.ry impartible 
2532 ' Zeiait land 

2532 j Zorait or Ksmat land 
2532 Zurpcshgidar 
■2532 I Zurpeshgi lease 
2532 
2533 
2533 
•2533 
2533 
2533 
8533 



2534 

2534 

2534 

2534 

2534 

2537 

2541 

2541 

S54I 

2541 

2542 

2542 

2542 

2542 

9543 

2543 

2543 

■2548 

2544 

2514 

254 1 

2544 

2544 

2545 

2546 

2546 

2556 

2556 

2557 

2557 

2557 

2558 

2560 

2560 

2564 

2565 

2565 

2566 

25G6 

2&66 



2566 
2565 

2565 
2565 
2505 
l;666 
2566 
25C6 
2566 
2566 
2566 
2566 
2666 
2567 
2567 
2567 
2567 



THE 

concise and consolidated 

Digest of Indian Civil Cases 

1901 to 1908 

BOTH INCLUSIVE. 



ABADI (Village Site). 

(a) Alienations by non proprietors 
in village Abadi. 

See Nos. 1 lo 4, 

1 Custom— Alienation — Right of non pro- 
priilcrs to transfer hotises — Mauxa Situan, 
Karnal DistHct. 

Bild, that by the custom of the village of 
SiwiD, Karnal District, a non proprietor (who 
was a dyer in this case) could tranafor bis 
house built upon land originally belonging to 
tbe proprietary body and occupied by his 
family lor several generations (in this case 
proved to be at least three) notwithstanding 
that the village Woj b.ulArz prepared long 
after bis family's advent provided to the con- 
trary. The Karnal Distt Gazetteer described 
Siwan as a tovf n v?ith 5000 population with no 
munioipality and taxes. So non proprietors 
were not on tbe looting of those liviog in vil- 
lage!. BADBl u. UDHO. 161PLR 1903 
°=7S P B . 1903' 

2 Landlord and Tevant-Abadi-Site-Aliena- 
lion by tenant-Custom-\NR}ib\i\-&iz Entriesln. 

Apart Irom any custom recorded in the 
Wajib til An which forbids a tenant to sell 
tbe site of bis bouse, a tenant has not, under 
the ordinary law, and in the absence of a cus- 
tom giving to a tenant a transferable right in 
the land held by him, any right to convey the 
land under his bouse. iJHAJAN LAL v. MU- 
HAMMAD ABDUS SAMAD KHAN. AWN 
1806 P 90 87 A 666 

See Landlord and Tenant col 1499 P 11. 

3 Lanlord and Tenant- Abadi-Sale of build- 
ing site In abadi by tenant-Custom-'WB.iih-ul- 
Atz. Entries iii-Ftincipal and agent-Aiicuies- 
cence on lk'> part of agent-Building. 

Tbe plaintiS was the receiver of tbe estate 
of a minor Zamindar situated in tbe district 
of Eulandsbahr. He lived in Calcutta and ap- 
poiited a Karinda to look after and manage 
the property of tbe minor. 

lu 1391 two of the tenauta of a village in 



Ab%di (Village Sito) Continued. 



the Zamindari sold their house io the abadi, 
and the purchaser, who wag a bmia of tha 
same village, took possession of the house. 
During 189-1 189S, be spent a large sum o£ 
m^ney and built a mason ary house on tbe sita 
purchased by bim. While tliebuildihg was be- 
ing erected the plaintiff's Kirinda did not ob- 
jdOt to the building. 

Entries ia the ]Vajibal arz ol the la'it Set- 
tlement of the vallage were as follows-" With- 
out our consent no body can settle in any 
place possessed by us, i e, the zamiudaca *' and 
again, " A rayot occupying any house ca'iu it 
be turned out of it by any body so long ag ha 
lives ia it, but be ia not empowered to alienata 
the site. He can remove and sell materials ot 
tbe building constructed by him. " 

In 1902 tbe plaintiff brought the presaafc 
suit against tbe defendant (purchaser!, and 
prayed to be put in possession ot tbe maaoary 
house, and in the alternative be asked that 
the defendant might be ordered to remove 
the materials of the house within a time to 
be fixed by the Court. 

Held, per Aikman. J.— That the suit must 
be dismissed, for the plaintiff was bound by 
tbe aoquiasoence of his Karinda. L R, 1 E and 
I A.. 1^9 and 20 All, 24S, aud A W N 1881. H 
114 referred to. 

Per Knox acting, C J ,— contra —ThB.t (1) 
the tenants bad no right to sell anything ex- 
cept the materials of their bouse (2) that it 
wa« not shown that the land-bolder knew of, 
or acquiescsd in the building erected by tha 
defendant and (3) that the Karinda had no 
authority to do any act signifying such ao- 
quiescence on his principal's behalf. KAJ 
NAHIAN MITTAR u. BUDH 9EM. lALJ 

673= A W N 1904 P 240=27 A 338 

4 Landlord and ttnant — Custom Tenant's 
right in house in Abadi— Wajib-alarz— Co«- 
strzictioncf. 

Held, that in the N W P ft general cus- 
tom is well established to the efieot that a 



( 3 ) 



CIVIL DIGEST OF OASES 



( i ) 



Abadi (Village Site)-ConCiimed. 

pereon agrioultariet or agricultural tenant, 
who is allowed by the zamindar to build a 
bouse for bia oocupatioa in the abadi obtains, 
if there is no special contract to the ooutiary, 
a mere right to use that bouse for himself and 
bis family so long as he maintains the bouse, 
that is, prevents it from falling down, and so 
long as he does not abandon the house by 
leaving the village. As sucb occupier of a 
house in the abadi occupying under the zi- 
mindar he has, unless he baa obtained by 
special grant from tbe zamindar an interest 
which he can sell, no interest which he oaa 
sell by private sale or which can be sold in 
execution of a decree against him except his 
interest in the timber roofing and wood work 
of the house. 

Held, also that the following clause in 
the Wajib-ul-are of the village did not em- 
power the tenant tomortgage without tbe 
zsmindar's consent the house in abadi occu- 
pied by him ; — 

" Regarding oonstruotion of a new house. 
For tbe construction of a new house a teoaut 
in every way depends upon the zamindar's 
consent. Ko particular fee is fixed. Only 
that which may be agreed on between the 
parties is given and taken. In case of a te- 
Daat leaving his bouse, the zamindar of the 
thok in which the house is situated will be 
considered its owner ; and the teuat, on his 
teturn, will not be entitled to get it back. If 
any tenant wishes to sell his house, tbe ze- 
mindar will be entitled to one fourth of the 
Bale price received. A tenant can with the za,- 
mindar's permission take earth from a new 
place ; he is not competent to do so without 
his consent." MUHAMMAD RAFPl v. TEL- 
BU SINGH. AWN 1902 P 140 

(b) Non proprietor's right to erect 
bailding in Abadi. 

(See Nos. 5 8.) 
5 Landlord and Tenant-khtt^i-RlgUls of 
Unanls in the village abadi— Sitit to remove 
building erected by tenant without ^permission 
of zamindars. 

A dwelling house in a village abadi was 
let to a tenant. There was a shed in the yard 
of the house. A number of Muhammadana 
with the consent of the tenant used to say their 
prayers there. Tbe tenants erected upon tbe 
Bite of the shed a permanent building as a 
mosque. The landlords prayed for tbe demo- 
lition of the building. 

It was provided in the Wajib ul-art that 
no cultivator could build a house outside the 
compound of his house. 

Held, that the suit must be decreed for 
tbe tenant was not entitled to erect a per- 
manent mosque. BASA MAL v. GHAY iS 
UD DIN. 2 A L J 27 = A W » 1904 P 276 
=27 A 356 

Q Landlord and Tenant-House occupied by 

tenant of agricultural lajid for miie than IS 

years — Adverse possession. House in Abadi. 

Held, that the tenant's possession of the 

bouse in suit, situated in village ab^di, built 



Abadi (Village Site) -Continued, 

! by him about fourteen years prior to the suit 
and occupied by him since, could not ba con- 

I sidered as adverse to the landlord and the 
latter was entitled to claim rent for its use 
or to require its demolitioa. (1 A L J 479 dis- 
tinguished. JAIKISHUN SING V. MOTI 
CHAND. 3 A LJ 627 = WN, AM, 1906 
p. 258 

7 Custom —kh&ii— Menial's right to build 
mosque. 

Held, that when a hamin gets laud from 
the proprietary body, the implied understand- 
ing in tbe absence of a contract to the ooa- 
trary is, that it is to be used for purposes of re- 
sidence and for plying his trade. If the kamin 
devotes it to any other purpose the proprietors 
have a right to object. It is not competent 
to the kimin to build a mosque or a temple 
on it or anything that Oitensibly prejudices 
the right of reversion of tba owners when 
tbe kamin leaves the village. In this case th* 
Wajib lUarz stated that previously no kamin 
could alieaate his house or site but lately soma 
attaohments and transfers took place without 
objection. 

Held, that this stated facts and did not 
abrogate the custom. KALU v. WASAWA 
SINGH. 19 P R \904. 

8 Landlord and Tenant-Suit for possession 
of room in Skb&di- Appurtenant — Adverse posset- 
sion. 

The plaintiff, landlord, brought a suit 
against the defendants, his tenants, to recover 
possession of a room iu the abidi of tbe village. 
It was found that tbe defendants had been ia 
possession of the room iu question for a period 
of 30 years. Their tenancy was admittedly a 
subsisting agricultural tenancy. 

Held, that either the tenants were entitled 
to the room as appurtenant to their holding, 
or, it it was not appurtenant to the holding 
they had acquired it by adverse possession- 
On either view the plaintiff's suit could not 
be maintained. NAZtB HASAN «. SHIBBA 
AW N J904, p 163 = 27 A 81. 

(a) Abadi land ia the city of Lucb- 
now. 

Lord Canning's Proclamation of 1868 — 
Confiscation of land in O^ii/t-Abadi land in 
the city of Litck'iow obtained by NjsuI under 
a Settlement decree, renunciation of right of 
Qovernment, as to — Financial Commissioner's 
letter of August 7th ii'tiS 

Tbe plaintiff claimed title through one 3 
who was recorded at the first reguUc settle- 
ment in the hhasra oi-the abadi of village Kha- 
lispur known as Moballa Hkbanganj in the 
city of Liuckncw, as the owner and occupant 
of a bouse which than siojJ on the plot ia 
suit. His case was thatafcer the general con- 

! fisoation of 1853 the Government abandoned 
its rights thereunder thr.jughout the city of 
Luokuow inoludiug Hasnugauj. He relied up- 

' on a Rubkar or duokjt of tuo Fiuaooial Oom- 
missiouor of Aagnst 7tb ISC'J to the effect that 
land occupied by, or appucteaaat to, a housg 



( 6 ) 



CIVIL DIOE&T or CASES 



( 6 ) 



Abadi (Village Site) -Continuid. 

in the city of Luoknow should not ba record- 
ed as Natnl property, but be cotibiJerod to ba 
the property of the owner of the liouso. The 
defence was that Kbalispur was not pirt of tho 
city of Lucknow and the abadi land thereof 
had been decreed by the Sottlemoiit Court in 
1867 to the fjuoknow Municipality ropresont 
ing the Nazal Dopartmerit against certain 
claimants. The abadi portion of tho village 
was entered in the khewat as " patti Nuzal 
Sarkar." The Settlement Officer acting on 
Financial Commissioner's docket of august 
7th 1868 made extensive olterationa in the re- 
cords of the city, but Khalispur or Hasan 
ganj vffta not included in the survey of the 
city proper and no alteration was made in the 
records relating to it in consequence of the 
said docket. The luajlb ul arz prepared in 
1870 reaffirmed the right of the Nazal Depart- 
ment to Khalispur under the settlement 
decree of 1867. 

Held, that the Financial Commissioner's 
docket of August 7th 1808 could not ba treat- 
ed as a renunciation of tho rights of Govern- 
ment in the abadi of Khalispur and that tha 
plaiatiff had no title to tho plot in suit. THE 
BEC/iBTARY OP STATE FOK INDIA IN 
COUNCIL V. BABU TARNI PRiSANNO 
ROY. 90CP249 

{See cols H09 and 1500 P H.) 

ABANDONMENT 

See separate sub lieadings below (a) to (j) 
and C'i/s 1500 P II and 1503 P 11. 

(a) By absentees. 

The failier and unole of the plaintiff were 
shown as absentee owners in 1851, at which 
Settlement it was recorded that if absentees 
returned they could re claim thoir land. This 
entry was not repeated at tho last Sattlemanl 
of 1885, but the names of the plaintiff and his 
unole continued to be shown up to the date 
of the suit. Tbe plaintiff claimed to take his 
own share in the land as well as his un 
cle's. The persons holding land of the 
absentees in a sale deed executed in IS'JO 
agreed with the vendee that if the absentees 
returned and claimed their shares they would 
make up the deficiency by giving other land 
out of their own share, 

The defendants pleaded that the plaintiff's 
claim was barred by adverse possession of tho 
defendants and the abandonment by the plain* 
tiff and his predecessors. 

Held, that there was no abandonment on 
the part of the plaintiff or his predecessors ot 
adverse possession on the part of tho defend 
ants-/' iJ, lis of ISSO, 18 of 1S3S, 8i of ISSS. 
1S6 of ISSS, in, of lSS3,10i of 1SS9. 118 uf 
1893', 100' f 1892, 121 of 18S1, 30 of 1901. referiea 

to. TABA V KAL \. 146, P L R 1903 

2 Abaiidonmsnt of land —Absenlee-SuU for 
possession — Adverse possession. 

H'ld, tliat in tha absence ot a motive for 
or evidence of intention of abandonment or 
of adverse possession for the statutory period, 
tbe suit is not barred by arts 112 or HI Limi- 



Ah a.adonm.'int— Continued. 

talion Act. Here failure to cultivate uncultur- 
able laid does not cinstituti abmdonmmt 
{P 11 109 of 1332, 16 O 313 P G, 105 P II 
laOl referred to) SH\HB\L SH\H v (i\. 

NK-iU DAS. PR 53 Of 190r=39 PLR 
1907. 

3 Ab mdoiiiiient-Abientee-Aduerse possession. 
U'.'ld, that each abandonment case is to 

ba decided on its own set of faots. Tha pre- 
sumption, arising from long continued ab- 
8onc3 and tho omission to taks stepa to kaap 
alive a oiica existing right, that the absentee 
has relinqaishad all claims to bis land, is not 
afljoted by a promise on the pirt of the par- 
son in possession of tho land to restore it oa 
tha return of the absentee to the village. 

Plaintiff's residanca in tha village and yet 
delaying his cluim points still mare strongly 
to abandoomaut. In this case his father left 
the viUaga Ambota before Una settlemant of 
1869 and lived and died in Kiparthala state. 
In that settlemant defendants states to res- 
tore the land to this absaatee or his off ship- 
ing on their return after calculation of !o33 
and profit. Plaintiff sued than in 1809 when 
he was 40 years of age. Entry not repeat ic 79 
aettlemant. P R IS of 18S6, S4 of ISSS, 118 of 
1889, 62 of 1890, 85 of lSi2, lit of 1SS3 referr. 
edto. JUDHA u. DHANI RAM. 30 P L R 
1901 

(b) Of Claim or Portion thereof. 

See Ctuii Proadure Co.le U II R 2.S H. 

(c) By females in 8aooes8iono£f act 
on reversioners. 

4 Abandonment' Effect of giving up of pos- 
S'ss!0« by succes'ilve fcmiles on reoersioneis. 
Limilalion Act arts. 131, Hi, adverse poss'ssion. 

Tue Itvnd in dispute belonged ti one Ilahi 
Bikhsh, on whose death, his widow, Musst, 
Bigam, suocodad him. In 1879 she, being un- 
able to pay the revenue, left the villlage and 
■went away to her parents. The revenue was 
then in arrears far three harvests, and tha 
land was lying uncultivated. Tha plaiotiSj 
were asked by tha Tahsildar to take up tha 
laud and to pay tha revenue due which had 
been realized from tha lambardar wha was 
also a distant relation. They declined, say- 
ing that they would take steps to assert their 
rights when the widow died. Tha lambvrdar 
was put in possession of the laud on his agree- 
i'lg to give it up after cutting the atuMding 
crop whenever Musst. Begam repaid him the 
arrearsof revenue recovered from him Mnsst. 
Begam was entered in the revenue p;ipers 
as absent and the lambardar in possession. 
Shortly after Musst. Begam died without 
making any effort to regain the land In Jan- 
uary 188G, the laod was mutated in tha nama 
of Musst Bburi, the mother of her husband, 
also as an absentee, the lambardar bein^ re- 
corded in possession as before. Musst. Bhari 
died about ten y^ars before the suit filed by 
the plaintiff in which thoy claimed posses- 
sion from the heirs of tbe lambardar on pay- 
ment of the losses that may have beau paid 
by him on account of the land. 



( 7 ) 



CIVIL DIGEST OP OASES 



( 8 ) 



Abandonment- C o»!i!««f<i 

The defendant set up limitfttation and 
also abandonment of their rights by the plain- 
tiffa when, ou Mus3t. Begam's absconding, the 
land waa ofiered to them by the Heveuue 
offioor. 

Held, that abandonment, either by Mu st. 
Begam or by the plaintifTs, was not establish- 
ed. The word abandonment means, if any- 
thing, a conscious renunciation of rights of 
ownership. Musst. Begom left the village ou 
account of poverty and inability to pay reve- 
nue. Her going to her parents at a time of 
distress did not indicate any intention to 
give up her life interest in her land and she 
did no other act) which in the least showed 
any such intention. The natural presump 
tion from the known facts probably waa that 
she meant to resume her land when better 
times oame. The plainliiYs were mere rever- 
sioner?. In 1879, their title to possession had 
not accrued and this they did not abandon, 
but ou the contrery expressly reserved it in 
their statement. A man cannot bo held to 
abandon what he does not possess. The plain- 
tiffs' right to possession accrued only ten years 
before suit on Mussammat Bhari's death and 
there could ba no abandonment before that 
time. Abandonment would be insufficient to 
bar the claim before expiry of twelve years-Sj 
Ptinjab Record 1S92 (F B) 

Plaintiffs could have estopped themselves 
from tuing by promising not to eus when the 
right oame into existence, but this was not 
what they said, but the reverse. Plaintiffs who 
did not derive their tiglu from, or through, 
Musst. Bhari, were not bound by any inten- 
tion she may have had- which was not pro- 
ved— cf giving up her rights which only 
amouotod to a life interest. 

f/eld, also that artiolo 141 of the second 
schedule of Limitation Act was applioable 
to the oasQ and the plaintifi's suil was not 
barred. 

Article 142 would have applied if the ori- 
ginil holder of the land in 1879 had been a 
male. When there are suooessive female heirs 
with limited rights entitled to succeed befoie 
the male reversioners, limitation does not 
begin to return until the death of the last 
female heir — S3, Cal 460. 

No question of adverse possession arose 
in this case, as it appeared that the lambar- 
dar's possession was at its inception not as 
owner on his own behalf, and was not then or 
at any time subsequently adverse to Musst. 
Bhari. 1? Cal 137, 23 P R IS90 P C, 19 All 
357, SO All 42, 22 Cal 4i5, 9 Cal 934, 14 All ItG, 
9 W R 505, 21 Cal 8, 20 Mad 493, 23 Bom 725, 
79 P R 1898, 21 Bom (146, 74 P R 1895, 11 P R 
J899 refer, cd to. BAZKHAN v. SULTAN MA- 
LIK. PR 43 Of 1901. 
(d) Of Inherltancs. 

AbandoDiuent of inheritance. 

5 Adverse posesssion — Oims probandi-Claim 
for a share in Jindivided ancestral property — 
Mutation in faxiour of plaintiffs. 

The plaintiffs sued for possession of one 
third of the lands in dispute as their share in 
the joint ancestral property inherittd by them 



Abandonment— ContinwA. 

from their deceased father and brother. 

The defendants pleaded adverse posses- 
sion and that the deceased had abandoned 
their rights in the property in dispute. The 
abandonment by the deceasd father and 
brother of the plaintiffs pleaded by the 
defendant was not established. 

On the death of the father the lands wera 
mutated in the names of the plaiotiftj and 
ibeir deceased brother who died subsequently. 
It was not till 1891 that mutations adverse 
to the plaintiffs took place, 

Held, that the onus of proving adverse 
possession lay on the defendants and they had 
tailed to prove it for the period prior to 1891, 
Punjab Record 61 of 1S70, lis of 1SS9 116 of 
1900, followed, SAIIIB DADKHAN v AKBAR 

KHAN. 92PLai902. 

6 Of inheritance— The daughter of a JIo- 
hammaden of Beluchi tribe who are governed 
by general Mohammadan Law relying on the 
generosity of the other party executed a d«ed 
of abandonment in his favour. 

Held, the deed was without oonsideratioa 
and void. The burden of proving a custom 
excluding daughters from inheritance lay on 
the other party. 23 A 20 followed. ISM iIL 
KHAN V. UVITIAZ UN NISA. 4 A L J 792. 

See Mohaminadan Latu Succession. 

(e) Of issue by Pleader- 

7 Vakil — Scope of his autliority - His pouiir 
to abmdon issue -LivHtatio}i—Gaun's power 
to raise an issue as to— Hindu Laio — Partition, 
—Suit for— Joint Hindu family — Manager 
bound to account for family jewels admittedly 
belonging to the family — Partial partition. 

Held, that a Vakil's general powers in 
the conduct of a suit include the abandon- 
ment of an issue, which, in his discretion, ba 
thinks it inadvisable to press. 

When no question of limitation was rais- 
ed by the pleadings, or arose upon the evi- 
dence, held, that it was not obligatory on tha 
Court to direct an issue. 

When in a suit tor partition among tha 
members of a jjint Hindu family, the defen- 
daut who was a manager of the family ad- 
mitted the existence of family jewels as j )int 
family property, and oouid nut charga tha 
plaiutiS with posstssion of them, held, that 
the defendant as manager oi the family was 
primarily responsible, and was bound to 
account for them. 

The plaintiff fb a suit for partition did 
not consider some property in his possession 
liable to partition, but at an early itage of tha 
case expressed her willingness to bring it intg 
the hotchpot. It was contended by the defen- 
dant that the plaintiff's failure to disclose at 
the outset his possession of this property con- 
verted the suit into one for partial partition 
only. 

Held, that the cotention was not good, 
and the suit was not liable to be dismissed on 
that ground. (RAJA) B0>IMADEVARA VEN- 
KATA NARASIMHA NAIDU v. (RAJA) BOM- 
MADEVARA BHASHYA KARLU NAIDU. 

6 W N, Cal, 461 (PC) 



( 9 ) 



CIVIL DIGEST OP CASES. 



( 10 ) 



Ahandouxuetlt— (Continued). 

= 29 I. A. 76 = 25 M. 367. P. C 

(f) Abandonment by minor. 

8, Punjab Tenancy Act lSti7, Section 3S — 
Abandonment by minor, 

Wliou during tho minority of an occu- 
pancy tenant his liolding comes without con- 
sidoratiou into the hands o£ his landlords, it 
must bo presumed in the absence of any 
satisfactory evidence to the contrary that in 
such cases the landlords stand in a quasi 
fiduciary position towards the tenant and 
are bound to restore his holding to his pos- 
session when he comes of age. LAKHA v. 
THAKAR DIAL. P. R. 2 Of 1901, (Bev.) 

(g) Abandonment by niortgrasee. 

9. A mortgagee can abandon a portion 
of his mortgaged property and charge the 
remaining property for his wholo mortgage 
debt. 

See T. P. A. S. 85. 
SlIEO TAHAL OJHA i\ SHEW DAN BAI. 
A. W. N. 1005 p. 244 = 2 A. L. J. 630^ 
28 A. 174 (F. B ). 

10. Mortgagee's right to abandon a por- 
tion of his mortgaged property. 

A mortgagee can abandon a portion of his 
mortgaged property and sue for his mortgaged 
debt charging the remaining mortgaged pro- 
perty. The Court cannot compel him to 
distribute liability among mortgaged proper- 
ties nor can compel marshalling so as to pre- 
iudiue the mortgagee. See T. P. A. Section 85. 
KBISUNA AYYAR v. MUTHU KUMABA- 
saw'miya PILLAI. 29 M. 217. 

But see to the contrary, 10 0. W. N. 551 
and 10 C. W. N. 862. 
(h) Abandonment of Partnership. 

See Accounts Partnership 28 G 53 P. C. = 5 
C. W. N. 114. MOUNG THA HUYIN i). MAH 
THEIN MYAH. 

(i) Of survey number, abandon- 
ment. 

11. See C. P. Tenancy Act, Section 35 
and C. P. Revenue Act Section 67 A. and 67 (1) 
16 C. P. L. R. 38. 

(j) Abandonment, by Tenants. 

12. See No. 8 supra (Abandonment by 
minor). 

13. Landlord and tenant — Occupancy 
rights — Alluvion and diluvion— Abandonment. 

Held, that the general rule in the Punjab 
is th^it an occupancy tenant docs not lose his 
right by reason of the land of his holding 
being submerged ; a custom to the contrary 
may be proved, but such a custom is plainly 
inequitable, and very strict proof of it should 
be required before it is acted upon. Held, 
that a custom contrary to the general rule 
was not found to exist in respect of lands in 
Alvvalpur village in the Hushiarpur District 
but it was proved that the tenants had 
abandoned their occupancy rights by failing 
to cultivate the tenancy without sufficient 
cause for more than one year. P. li., 10 of 



Aha/adoiixaeiit— (Continued). 

1S83 ; 122 of 18V0 ; 59 of 1877, 90 and 127 of 
1879 and 152 of 1888, followed. ROSHAN v. 
POHU P. L. a., 5i of 1901=8 P. R., 1901 

(Rev.) 

14. Abandonment or relinquishment of 
part of a holding by a tenant without notice 
to the landlord renders him liable to pay 
rent. 

See N. W. P. Rent Act No. IS of 1581 Sec- 
tion 31. _ 

WARTS KHAN v. DAULAT KHAN. W. 
N. A. 1902, p. 201-25, A. 77. 

15. Abandonment by Tenant— Inleniion 
—See Bengal Tenancy Act 8 of 1685 Section 67. 
7. C. L. J. 77. 

16. Abandonment by Tenant — Landlord 
and Tenant- -Occupancy Tenancy. 

A landlord seeking to eject a trespas- 
ser is not bound to show that the interests of 
the late tenant have ceased to exist unluss 
the question of abandonment arises out of 
the pleadings. HIBA LAL JIISRA v. AOLA 
KUNBI. if. C. P. L. R. 14. 

17. Abandonment by Tenant — Dispute be- 
twee7i rival tenants as to possession— Attach- 
ment by Magistrate under Section litj. Crimi- 
nal Procedure Code — Suit by landlord for pos- 
session and recovery of amount realized by 
Magistrate. 

There was a dispute between certain ten- 
ants as to who were entitled to cultivate 
certain iauds, and the lands were attached by 
a Magistrate under Section 146 of the Crimi- 
nal Procedure Code. The Magisti;ate let out 
the lands to certain outsiders and collocted 
rents. The rival tL-'-'.nts ceased to pay rents 
to the landlord who sued for recovery of pos- 
session of the land and the amount realized 
by the Collector and alleged that the touanta 
had abandoned their holdings. 

Held, that the suit must be dismissed. 
That the dispute V/ng with regard to the 
right of the riva: i.nants to cultivate the 
laud in suit, the subject of the suit was the 
right of the contending parties to possess and 
cultivate the lands as their holdings. That 
the effect of the attachment was that the 
Magistrate took possession on behalf of such 
of the tenants as might eventually establish 
their right to possession, and the amount 
realized by the Magistrate was held by him 
on behalf of the tenants who might establish 
their right to possession and not the landlord. 
That it could not be said that the teiianta 
had abandoned their holdings. BENI PRA- 
SAD KOERI V. SHAHZAD OJHA. 32. C 
850. 

18. Transfer of non-transferable holding 
— Ejectment — Abandonment — Sale. 

Ghose, C. J — Whore a tenant of a non- 
transferable holding sold his holding — 

Held, that in the suit by the landlord for 
recovery of possession .from the transferee, 
that if the transaction of sale was not meant 



( 11 ) 



CIVIL DIGEST OF CASES 



( 12 ) 



Abandonment— (Cuitinucd). 

to be an operative one, the title to the pro- 
perty still continued with the tenant. 

That the true question was, whether there 
was an absolute abandonment of the hold- 
ing by the tenant such as would entitle the 
landlord to treat the purchaser as a trespas- 
ser. If the defendant was holding possession 
on behalf of the tenant, ho could nut be 
evicted, MATHUR MUNDAL v. GANGA 
CHABAN GOPE GHOSE. 10 C. W. N. 1033. 

ABATEMENT. 

1 of appeal No. 1 to 9 

2 of arbitration 

3 of claim 

i of execution proceedings 
6 of nuisance 

6 of partnership 

7 of rent 

8 of suit 

(1) Of appeal. 

1. On the death of one of several defend- 
ant Appellants pending appeal, his represen- 
tative was not brought on record and the 
decree of the Lower Court proceeded on 
common grounds. 

Held, that the appeal abated only as 
regarded the deceased and the right to appeal 
survived to the remaining appellants and 
the whole appeal was not liable to be dis- 
missed 22 A 222 dissented from, 16 A 211 ; 22 
B 710 referred to. BAM SEWAK i'. LAMBER 
PANDE. A. W. N. 1902 P. 171 = 25 A 27. 
(See C. P. C. Section 361 to 363, 5i4 and 582). 

2. Appeal — Civil Procedure Code (Act XIV 
of 1882), Section 368— Death of one of the de- 
fendants — Heirs of the deceased defendant — 
Joint and several liability of defendants — Ben- 
gal Tenancy Act ( YIII of 1885), Section 12— 
Transfer — Rent — Valid transfer. 

Where the liability of the defendants is 
joint and several, and in appeal, on the 
death of one of the defendants, his legal re- 
presentatives are not substituted in his place, 
the appeal abates only so far as the deceased 
defendant is concerned. 22, All, 430, dis- 
tinguished. 

Where a transfer of a tenure is only 
colourable and benami, such a transfer cannot 
discharge the transferer from liability to pay 
rent, even if the tenure was transferable and 
the transfer was made by a registered kabala. 
16 Cal, 642; 19 Cal., 17, dislinguished. JOY 
GOBIND LAHA v. MONMOTHA NATH 
BANEBJI. 33 C 580. 

3. Some of Plaintiffs respondents, who 
were appellants in second appeal, died pend- 
ing the second appeal, and their legal repre- 
sentatives were not brought on file. 

Held, that the right to prosecute the 
appeal survived to the surviving appellants 
and the appeal did not abate. ALLA 
BAKHSH V MADHO RAM. 23 A. 22. 
(See C. P. C. Section 368, 582). 

4- The death of defendant appellant 
against a decree lor damages for malicious 



Abatement— (Continued). 
prosecution passed against him does not 
abate the appeal and his legal representative 
can prosecute it (26 B 597 referred to) 
PARMAN CHETTY v. SUNDRA RAJ NAICK. 
26 M. 499. 

(See C. P. C. Section 361). 

5. The representative of a deceased re- 
spondent selected for the service of a notice 
under Section 30 C. P. C. was not brought on 
record. 

Held, the appeal abated. BAGI RAM v. 
RAMA. 160 p. L. R. 1901. 

(See C. P. a. Sectimi 368). 

6. A reversioner who had sued to set 
aside an alienation by a widow, and on his 
suit being dismissed had filed an appeal, died 
pending the appeal. 

Held, that his this right was personal one 
and his appeal abated on his death and that 
his legal representative could not prosecute 
the appeal. SOKYAHANI JUGLE RAO 
SAHIB V. BHAWNI BOZI SAHIB. 27 M. 
588. 

(See C. P. C. Section 361). 

7. A Mubamadan appellant having died 
pending appeal, his sons alone applied to be 
substituted for him and their sisters (who 
also were heirs under the Muhamadan Law) 
were not brought on record. 

Held, that it was the duty of the' sons to 

bring their sisters also on the file and having 

failed to do so their appeal abated. H.^IDliR 

HUSAIN V. ABDUL AHAD. 5 A. L. J. 62. 

(See C. P. C. Section 362). 

8. The death of a proforma defendant 
Appellant when the other defendants 
could have maintained their appeal in- 
dependently of him does not abate their 
appeal. ASHAQ HUSAIN v. ASHGARI 
BEGUM. 4 A. I.. J. 809 -W.N. A. 1908 
P. 21. 

9. Where several plaintiffs, joint pro- 
prietors of a joiut residu.iry estate with no 
ascertained shares of each of them therein, 
had obtained a decree in their favour setting 
aside its sale and pending appeal by the other 
party two of those respondents died and their 
legal representatives were not brought on 
record: Held that the appeal abated in tolo as 
the decree setting aside the sale of entire 
i >int estate with unascertained shares of the 
respondents could not be set aside in tho 
absence from file of the names of some of the 
joint proprietors with unascertained shares. 
The ruling 33 C. 580, which was decided on the 
ground that tho liability .of the Defendant 
Respondents was pint and several and that 
the Appellants' riyht did survive against the 
surviving Respondents alone, was distinguish- 
ed. DH.^RANJIT NABAYANSINGH and 
others V. CHANDESHWAR PROSAD NARA- 
YANSINGH. new. N. 504. 

(Revision) Sec also 6 C. L. J. 313 same 
case in appeal. 



( 13 ) 



CIVIL DIGEST OF (JASl'',S 



( H ) 



AhOitetABVlt— Continued. 

For other case of abatcme.yit of appeal see 
C. P. C (Act U of ItiHa) Sections 361 to 368 and 



2. Of arbitration. 

Where after the parties to a suit had re- 
ferred their iiartition case to arbitration, and 
the submission was sanctioned by the Court, 
and one of the parties died : Held that in 
order to see whether the parties are bound 
by the submission or not the Court has to 
decide whether the right referred to arbitra- 
tion is of a merely jiersonal nature, or sur- 
vives to the legal repi-eseutative of the deceas- 
ed, and where it is of the litter description, 
the procojdiugsmust, under section 361 C.P.C., 
be held not to abate: Held that in this case 
as the PlaintiS had sued for partition, and 
referred the matter to arbitration, the right 
survived to his heir and the parties were bouud 
by the contract of arbitration which could 
not be revoked at the mere will of a party. 
C. P. G. Sections 361, 365, 367 and 523. VEN- 
KATA S.VrYANARAYANA v. VENK.\TA 
lUNGAYYA. 13 IVI li J 311= 27M 312. 

3. Of Execution Proceedings. 

Applicat ton for execution by twooutof three ex- 
ecutors—Abatement — Revii-al — Sufficient cause 
— C.P.C. Seciions 3ti.j and 371 —Limitation 
Act Section 5 (a) and 17. 

A decree holder, having applied for ex- 
ecution, died leaving a will appointing three 
executors. After the grant of probate two of 
the executors applied for realization of de- 
cree by proceedings in execution. The judge- 
ment debtor objected on the grounds: (1) 
that the executors having omitted to put in 
a specific application to revive execution 
applied for, by the decree holder, the pro- 
ceedings should be considered as having abat- 
ed, (2) that two out of the three executors 
could not make the application and (3) that 
the present application, made after more 
than three years after the decree holders own 
application was time barred: Held, though 
the executors could apply under §. 365 C. P. 
C. to have their names brought on record 
and need not have waited till the grant of 
probate yet they had sufficient cause under 
§. 371 preventing them from continuing the 
execution proceedings started by the decree 
holder himself, as they could have thought 
that the probate might be refused to them 
and that under peculiar circumstances of 
the case §. 372 (a) C. P. C. and §. 5 (a) Limita- 
tion Act extended the time for putting in the 
application in the ease and that the objection 
that only two out of three executors could 
not apply for execution was not sound. It 
is not the probate but the will from which 
the executors derive their title and the pro- 
bate only authenticates the will which gives 
them such a title (P. R. 9 of 1901 and 16. C. 
457 followed in treating the execution pro- 
ceedings as a suit, and 8. B. 211 followed in 
thinking that the probate only authenticates 
the will fi-om which executors derive their 
title.) PRICE t'. GOKAL NATH. 03 P. R. 



Abatement — Continued. 
1903. 

4. Of Nuisance. 

Whore the plaintiff's foundation of build- 
ing and wall were penetrated by the roots of 
trees : 

Held mandatory injunction co.uld be 
granted under Section 55 Specific Relief Act, 
to remove not merely the roots but the trees 
themselves, but if the nuisance and damage 
are due solely to the overhanging of branches 
of trees, a mandatory injunc.i)n for their 
removal would be sufficient (seo Specific Re- 
lief Act Section 65). LAKSHMI NARAIN i'. 
TARA PROSUNNO BANNER-JI. 8 C 'W. 
N 1904 P 710. 

5. Of Partnership. 

See partnership 3 1>. L. R. i!27 = 2.i B. 606. 

6. Of Rent. 

1. Land Acquisition Act (No 1 of lS9i.) — 
Acquisition of portion of a Patni — Division 
of compensation. 

A Patnidar is entitled to compensation 
and abatement of rent proportionately, ou 
the acquisition by Government of a part of 
his holding (pitni)— (2S C. 146 followed) 
BHOBANI NATH CHUCKERBUTTY v. 
L.VNDACQUIsrriON I.)EPUTYC01 LKGTOR 
OP BOGRA (7 C. W. N. 1903 P 1^0.) 

2. Mere acceptance of a reduced rent for 
some years can not operate as a binding 
contract between the parties, without proof 
of the agreement which granted the reduc- 
tion. Section 92 Evidence Act is a bar to tho 
admission of a contemporaneous oral agree- 
ment, to prove that the tenants' rent was less 
than that mentioned in the registered Kabu- 
Hat which was executed by his father. 

RADHA RAWAN CHOWDHRY' v. 

BHOWANI PROSAD. 
6 C. W. N. (1904) P. 60. 

3. Whether abatement or adjust- 
ment of rent.— 

A suit for adjjstmeut of rent, alleging 
that the sum suited in the lease is only 
nominal, but really a lesser sum is due, i3 
not a suit for abatement of rent and caa 
lie in a Civil Court. But a suit by a 
Patnidar for a declaration that he is en- 
titled to an annual abatement of rent, and 
for a rotund of excess rents he had been 
compelled to pay for some years, is a suit 
for abatement of rent within the meaning 
of §. 23 .Act X of 18.58 (Bengal Tenancy Act) and 
is cognizable bv" a Revenue Court (.See Section 
23 .\ct X of 1859) ASUTOSH ROY v. HARI 
NARAIN SINGH DEO 3 C L. J. 143. 

4. A tenant holding under a permanent 
mukarriri lease, is uot entitled to any 
abatement of rent regarding the land taken 
awav by diluvion (Bengal Tenancy ,4ct 8 
of 1S85 §§. 52, 178, and 173). NANDLAUL 
MITICHERTT r. KYMCDDIN SARDAR 
C. W. N. (1905) P. 886. 



( 15 ) 



CIVIL DIGEST OF CASES 



( 16 ) 



Abatement— CoMiiducfZ. 

5. A custom allowing abatement or re- 
mission of rent on diluvion cannot be plead- 
ed by a tenant in a suit for rent, unless 
he has obtained under §. 19 N. W. I?. Rent 
Act (12 of 1881) an order for abatement of 
his rent. (A. W. N. 1893 P. 29 distinguished) 
see §. 93 (a) N. W. P. Rent Act 12 of 1881. 
BENI PERSHAD KUARI v. DUKKHI RAI. 
A. W. N. 1901 P. 69 = 23 A. 270. 

7, Abatement of Suit. 

See Civil procedure Code (li of 1882) S 
361 to 371, 582 and 588 and Limitation Act 
Art. 175. 

Absconder. 

1. Sale of property of an Absco7ider by Cri- 
minal Court — Illegality — Jurisdiction of Civil 
Court — Suit to set aside sale. 

When the property of an absconder is sold 
by a Criminal Court without the proclama- 
tion of sale being duly published the sale is 
liable to be sot aside by a civil court on a 
suit filed by the absconder. MIA JAN v. 
ABDUL A. W. N. 1905 P 102^27 A 572. 

2, Absco7ider's property sold under illegal 
warrant. Cr. P. C. § S8 d 89, Civil Courts 
jurisdiction — Cause of action. 

Where plaintifi's property was sold by 
a Magistrate believing that he had absconded 
to evade the trial, and the time and place at 
which the plaintiff was required to attend 
were not specified in the sale proclamation: — 

Held thi! plaintifi's suit to set aside the 
sale was maintainable in a civil court. 
ABDUL V. KAZAM BEGAM W. N. A. 1904 
P. 159. 

ABSENCE. 

1. Of appellant on the first or any ad- 
journed hearing. See Civil rrocedure Code 
(li of 1882) § 556. 

2. Of defendant on first hearing. See 
C. P. C. §. 100. 

3. Of parties to a suit on first hearing. 
See C. P. C. §. 98. 

4. Of parties or any of them on any ad- 
jouruod hearing. See C. P. C. §. 157. 

5. Of plaintiS on first hearing. See C.P, 
C. §. 102. 

6. Of respondent on the f.rrt or any ad- 
journed hearing. See C. P. C. §. 556. 
Absence of reasonable and proba- 
ble cause. 

Sec suit for damages for malicious prosecu- 
tion. 
Absentees. 

See abandonment, adverse possession it 
Limitation act (1877) articles 142 d 14i. 
Absentee Co-sbarer. 

See abandonment 146 P. L. R. 1003. 



ABSOLUTE DECREE. 

(1.) See T. P. A. § 67 Foreclosure decree 
C. P. C. 1882 S. 331 RAM CHANDER BANIA 
V. BALKRISHNA GANPAT RAO 17 C.»P. 
li R. 62. 

2 Absolute decree. 

Order Absolute for foreclosure of the 
mortgage property — Plea of payment of the 
mortgage debt. T.P.A. § 87 and C.P.C. §. 257 
See T.P.A. §. 67. SITA RAM AMRIT BRAH- 
MIN V. DHARMU 16 C. P. L. K. 111. 

Absolute estate. 

1. Hestrictions upon alienation invalid — See 
Hindu Law Will. CHIMAN RAO SADA SHIV 
V. RAMBHAUGHAMAJEE. 4 B. Ii. R. 
508, 

2. Do. See T. P. A. Sectimi 10. 
Bameshwar Prosad Singh v. Lachhmi 

Prasad Singh 8 C. W. N. 38=31. C. 111. 

3. Condition in restraint of alienation of. 
See T.P.A. §. 10 Mortgage. 

FAIYAZ HUSAIN KHAN v. NIL- 
KANTH and another 4 O. C 163 

Absolute occupancy holding— Pent- 
First Charge— Landlord — Sale of a huiding in 
execution of a money decree — Purchaser 

The rent of the holding of an abso- 
lute occupancy tenant is a first charge on 
that holding, but if the landlord wishes to 
enforce that charge he must bring a suit for 
sale and must join all interested parties. If, 
on the other hand, he is content to take a 
money decree for arrears of rent, he may 
proceed against any property belonging to 
his judgement debtor: but if the holding be 
sola in execution of a money decree, the pur- 
chaser will take the property subject to any 
charges which other persons may have upon 
it (17C. 30, and IIG. P.L.R. 95 followed) The 
holder of a charge under the Tenancy ."icthaa 
no rights superior to those of the holder oi a, 
charge under the Transfer of Property Act. 
An incumbrancer bringing* proijerty to sale 
in execution of a money decree, without giv- 
ing intending iJurchasers notice of his incum- 
brance may be stopped from subsequently 
enforcing the lien of which he has given no 
notice (10 C G09, 12 B 678, 15 M 303 & 21 A. 
309 followed). The same principal would 
apply in the case of a sale held in contraven- 
tion of §. 99 T.P. A . 14 M. 74, 22 B. 624 and 
12 C.P.L.R. 2G followed. BHAGW.^NDAS 
SITARAM V. TARACHAND AGARWAL 
14 C. P. L. R. 17. 

1. Absolute occupancy tenant — co-shar- 
er proprietor — Purchasing the holding in ex- 
ecution of decree. 

If a co-sharer proprietor purchases in the 
execution of a money decree the holding of 
an absolute occupancy tenant he himself be- 
comes an absolute occupancy tenant in re- 
spect thereof, and the right of tenancy is 
not merged in his superior right of pro- 
prietorship 21 C 869 and 24 C 143 which 
are rulings under §. 22 of the Bengal Tenancy 
Act of 1885 (which clearly lays down " If 



( IT ) 



CIVIL DIGEST OP CASES 



( 18 ) 



Absolute Occupancy Holding: (Con.) 

a joint proprietor purchi.-;o^ occupancy 
rights, such rights shall ce 1,0a to exist" wore 
not followed, as the C. P. Tciancy Act is si- 
lent on the subject. JAIR\.\I v. BALAJI 
M >NSABAM 14 C- P- L- R. 9- 

2. Transfer by an absolute occupancy ten- 
ant. 

A transfer effected boforo the expiry oi the 
period referred to in §. 41 (2) 0. P. T. A. after 
the notice of transfer to Ian llord, is voidable 
at the instance of the landlord 1 G. P. L. H. 
53 and 1. G. P. L. R. 132 followed. Mt. 
TULS.\ V. Mt. DASODA 15 C- P- L- R- 173- 

3. Landlord's right to redeem a mortgage 
by absolute occupancy tenant pr.-,-emntion — 
T. P. A. §. 91 (a) G. P. C. §. 54i joinder of 
parties. 

A landlord has no such interest as would 
entitle him to redeem a inortgago of his hold- 
ing by an absolute occupancy tenant. The 
ruling 3. C. P. L. R. 154, which held th:it a 
Maliju3ar had an interest in the property 
and could sue for redemption, was held to be 
purely obiter dictom. If a landlord has an 
interest in the property i. e. absolute oc- 
cupancy holding within the meaning of §. 91 
(a) T. P. A. then ho must under §. 8-5. T. P. A. 
be joined as a p.xrty to every suit relating to 
the mortgage and could re-open a foreclosure. 
But this is never done, and if allowed would 
envolvo great hardship 13. L. J. Ch : 337, 15. 
0. P. L. R. 89, 57 L. J. Gh. 10S5, 39 L. J. 
Ch: 3f2,35. L. J. Gh: 847 discussed, and 4. B. 
1.39 referred to. G.\NPAT v. BHANai 15 

C- P- L. 175- 

4. His right to make a loill—C P T A I il 
The burden of proof lies in every case 

upon the l>arty who I'olies on a will and he 
has to satisfy the Court that the instrument 
is the last will of a free and capable testator. 
An absolute occupancy tenant is not em- 
powered to bequeathe any right in his holding. 
40. R. R. 123 and 13. G. P. L. B. 1.59 were 
followed as to burden of proof. In 11. C. P. 
L. R. 167 an occupancy tenant had made a 
will which he was held to be competent to 
make. But an absolute occupancy tenant 
stands on a different footing from an occu- 
pancy tenant and therefore, that ruling does 
not apply to this case. Mt. AN.\NDI BAI v. 
HARLAt, BRAH.MAN 15 C- P- L- R. 1- 

Abuse of Process. 

1. The High Court has power to direct a 
subordinate court not to examine a woman 
in Court but by a commission. See C. P. G. 
{18S2) §. i.59 and 386. VEEHABADRAN 
CHETTYv. NATARAJA DESIKAR M.L.J. 

1904, P 329=28. M 28 

3. Abuse of process of Gourt — Fraud. 
Where a decree holder obtained leave of 
court to purchase the property for the full 



Abuse of process. (Gontlnuei) 
decretal amount, and it was purchased for him 
benami at a less sum, the judgment debtor not 
objecting at the time and not g.:!ttin'J the 
sale set aside : HjI 1 that the dooreo holder 
could execute decree for the balance notwith- 
standing the abuse of process of Court and 
fraud of the decree holder. See T. P. ». §. 90. 
DURGa v. BUAG WANDAS 1. A. L. J. 483. 

3. Abuse of process of Gourt — Sui* for 
Compensation for wrongful aftachmint a'Hc- 
ing Court seal on outer door of a ware- 
house — Actual seizure — suit for damages by 
other judgment creditor — Limitation Act of 
1877. Art: :!<>. See C. P. C. {188-i) §. 26.9. M^L- 
CHAND KANY.\LAL v. BANK OF MAD- 
R.AS. 27 M. 346. 

4. Suit for compensation for wrongful 
attnciiment — \Vant of probable and reason- 
alije cause — Malice^Sce Mai icioiis p ro-:eru f ion — 
SUUA.T MAL CHUNNI L\L. v. M.^NEK 
CHAND K.\PUR CH.\ND.6 B- LR. 704- 

5. A debutter estate is liable to pay costs 
incurred for prosecuting certain criminal 
cases and also to pay certain amount al- 
leged to have been paid to certain pleaders 
wlio wore engaged for conducting various 
suit-i in connection with the estate. PEARY 
MOHAN MUKER.JEE v. NAHENDRV 
NATH MUKERJEE 9 C- W- N- 421=32 

C- 582- 

6. Every court of competent jurisdic- 
tion has an inherent jurisdiction to pre- 
vent abuse of its process ; by staving or 
dismissing without proof actions which it 
holds to be vexatious, but this power ought 
to be exercised sparingly and only in very 
exceptional cases. 

Where the plaintiff brought a suit for 
declaration of his title to a zimidari re- 
opening therein questions already settled 
by decisions of the Judicial Comraittoa 
and other Courts in more than one litiga- 
tion regarding the same zimil'iri: Held 
that the suit was liable to be dismissed 
as vaxacious. See Specific lleli.-f Act 1 of 
1887 § ii VIJIA SAMY' TEVAR v. SA'?! 
VERMA TEVAR. M- L- J- 1905 P. 4S9-28 
M 560. 

Abusive Language. 

1. The mere use of abusivo and in- 
sulting language not amounting to ueiania- 
tiou and without proof of any special 
damage, is not actionable, although it may, 
under certain circumstances, form a ground 
for criminal prosecution. In this case the 
plaintiff wis called " son of mean parents," 
" ion of a dog," and "son of a pig:" 
Hold these words seam to b3 of mere 
vulgar abise and insult, and no spjcial dam- 
age 1 1 the plaintiff has b3eu proved. It has 
not bdoa proved that tha pliiatiS's reputa- 



( 15 ) 



CIVIL DIGEST OF CASES 



( IG ) 



Abatement— Co^itinuccZ. 

5. A cuatom allowing abatement or re- 
mission of rent on diluvion cannot be plead- 
ed by a tenant in a suit for rent, unless 
he has obtained under §. 10 N. W. I?. Rent 
Act (12 of 1881) an order for abatement of 
his rent. (A. W. N. 1893 P. 29 distinguished) 
SCO §. 93 (a) N. W. P. Rent Act 12 of 1881. 
BENI PERSHAD KUARI v. DUKKHI RAX. 
A. W. N. 1901 p. 69=23 A. HO. 

7. Abateiuent of Suit. 

See Civil l-'tvceduie Code (H of 1S82) S 
361 to 371, 582 and SS3 and Limitation Act 
Art. 175. 

Absconder. 

1. Sale of property of an Absconder by Cri- 
minal Court — Illegality — Jurisdiction of Civil 
Court — Suit to set aside sale. 

When the property of an absconder is sold 
by a Criminal Court without the proclama- 
tion of sale being duly published the sale is 
liable to be set aside by a civil court on a 
suit filed by the absconder. MIA JAN v. 
ABDUL A. W. N. 1903 P 102=27 A 572. 

2, Absconder' s property sold under illegal 
warrant. Cr. P. C. § 6« * S9, Civil Courts 
jurisdiction — Cause of action. 

Where plaintifi's property was sold by 
a Magistrate believing that he had absconded 
to evade the trial, and the time and place at 
which the plaintiff was required to attend 
vvero not siiecified in the sale proclamation: — 

Held thj plaintifi's suit to set aside the 
sale was maintainable in a civil court. 
ABDUL V. KAZAM BEGAM W. N. A. 1904 
P. 159. 

ABSENCE. 

1. Of appellant on the first or any ad- 
journed hearing. See Civil Procedure Code 
(14 of 1S82) § 556. 

2. Of defendant on first hearing. See 
C. P. C. §. ICO. 

3. Of parties to a suit ou first hearing. 
See C. P. C. §. 98. 

4. Of parties or any of them on any ad- 
journed hearing. See G. P. C. §. 157. 

5. Of plaintiS on first hearing. See C.P. 

c. §. loa. 

6. Of respondent on the f.i :t or any ad- 
journed hearing. See C. P. C. §. 556. 
Absence of reasonable and proba- 
ble cause. 

Sec suit for damages for maliciotis prosecu- 
tion. 
Absentees. 

See abandonment, adverse possession it 
Limitation act (1877) articles US it' Hi. 

Absentee Co-sharer. 

See abandonment 146 P. L. B. 1003, 



ABSOLUTE DECREE. 

(1.) See T. P. A. § 67 Foreclosure decree 
C. P. C. 1882 S. 331 BAM CHANDEB BANIA 
V. BALKRISHNA GANPAT RAO 17 C.«P. 
L R 62. 

2 Absolute decree. 

Order Absolute for foreclosure of the 
mortgage property — Plea of payment of the 
mortgage debt. T.P.A. § 87 and C.P.C. §. 257 
See T.P.A. §. 87. SITA HAM AMRIT BRAH- 
MIN V. DHABMU 16 C. P. Ij. K. 111. 

Absolute estate. 

1. Restrictions upon alienation invalid — See 
Hindu Law Will. CHIMAN RAO SADA SHIV 
V. RAMBHAUGHAMAJEE. 4 B. L. R. 
508, 

2. Do. See T. P. A. Section 10. 
Eameshwar Prasad Singh v. Lachkmi 

Prasad Singh 8 C. W. N. 38=31. C. 111. 

3. Condition in restraint of alienation of. 
See T.P.A. §. 10 Mortgage. 

PAIYAZ HUSAIN KHAN v. NIL- 
KANTH and another 4 O. C. 163 
Absolute occupancy holdins— Rent- 
First Charge — Landlord — Sale of a holding in 
execution of a money decree — Purchaser 

The rent of the holding of an abso- 
lute occupancy tenant is a first charge on 
that holding, but if the landlord wishes to 
enforce that charge he must bring a suit for 
sale and must join all interested parties. If, 
on the other hand, he is content to take a 
money decree for arrears of rent, he may 
proceed against any profierty belonging to 
his judgement debtor: but if the holding be 
sola in execution of a money decree, the pur- 
chaser will take the property subject to any 
charges which other persons may have upon 
it (17C. 30, and IIC. P.L.R. 95 followed) The 
holder of a charge under the Tenancy Act has 
no rights superior to those of the holder oi a 
charge under the Transfer of Property Act. 
.'in incumbrancer bringing* property to sale 
in execution of a money decree, without giv- 
ing intending purchasers notice of his incum- 
brance may be stopped from subsequently 
enforcing the lien of which he has given no 
notice (10 C 609, 12 B 078, 15 M 303 & 21 A. 
309 followed). The same principal would 
apply in the case of a sale held in contraven- 
tion of §. 99 T.P.A. 14 M. 74, 22 B. 624 and 
12 C.P.L.R. 2G followed. BHAGWaNDAS 
SITARAM V. TARACHAND AGARWAL 
14 C P. I.. R. 17. 

1. Absolute occjipancy tenant — co-shar- 
er proprietor — Purchasing the holding in ex- 
ecution of decree. 

If a co-sharer proprietor purchases in tho 
execution of a money decree the holding of 
an absolute occupancy tenant he himself be- 
comes an absolute occupancy tenant in re- 
spect thereof, and the right of tenancy is 
not merged in his superior right of pro- 
prietorship 21 C 869 and 24 C 143 which 
are rulings under §. 22 of the Bengal Tenancy 
Act of 1885 (wliich clearly lays dnwn "If 



( 17 



CIVIL DIGEST OP CASES 



( 18 ) 



Absolute Occupancy Holding: (Con.) 

a, joint proprietor purch nos occupancy 
rights, such rights shall ce toO to exist" wore 
not followed, as the 0. P. Tciinoy Act is si- 
lent on the subject. JAIRVM t). BALAJI 
M >NSARAM 14 C- P- L- R. 9. 

2. Transfer by an absolute occupancy ten- 
ant. 

A transfer effected before the expiry 3f the 
period referred to in §. 41 (2) G. P. T. A. after 
the notice of transfer to Ian llord, is voidable 
at the instance of the landlord 1 C. P. L. R. 
53 and 1. G. P. L. R. 132 followed. Mt. 
TULSA V. Mt. DASODA 15 Q. J>. L- R- 173- 

3. Landlord's right to redeem a mortgage 
by absolute occupancii tenant prr.-emntion — 
T. P. A. §. 91 (a) G. P. C. §. 6ii joinder of 
parties. 

A landlord has no such interest as would 
entitle him to redeem a mortgage of his hold- 
ing by an absolute occupancy tenant. The 
ruling 3. C. P. L. R. 1-54, which held thi,t a 
Mahjmar had an interest in the property 
and could sue for redemption, was held to bo 
purely obiter dictom. If a landlord has an 
interest in the property i. e. absolute oc- 
cupancy holding within the meaning of §. 91 
(a) T. P. A. then ho must under §. 85. T. P. A. 
bo joined as a p.trty to every suit relating to 
the mortgage and could re-open a foreclosure. 
But this is never done, and if allowed would 
envolve great hardship 13. L. J. Gh : 337, 1.5. 
0. P. L. R. 89, 57 L. J. Gh. 10S5, 39 L. J. 
Oh: 342,35. L. J. Oh: 847 discussed, and 4. B. 
139 referred to. G.\NPAT v. BHANGI 15 

C P L 175- 

4. His right to make a w ill — C P T A ^ 41 
The burden of proof lies in every case 

upon the party who rolies on a will and he 
has to satisfy the Court that the instrument 
is the last will of a free and capable tcotator. 
An absolute occupancy tenant is not em- 
powered to bequeathe any right in his holding. 
4G. R. R. 123 and 13. G. P. L. R. 1.59 were 
follo\ved as to burden of proof. In 11. C. P. 
L. R. 167 an occupancy tenant had made a 
will which he was held to be competent to 
make. But an absolute occupancy tenant 
stands on .a different footing from an oocu- 
pancv tenant and thereforo that ruling does 
not apply to this case. Mt. ANANUI BAI v. 
H.ARLAL BRAH.MAN 15 C- P- L- R- 1- 

Abuse of Process. 

1. The High Court has power to direct a 
subordinate court not to examine a woman 
in Court but by a commission. See G. P. G. 
(lSS-2) §. 1S9 and 386. VEERABADRAN 
CHKTTTv. NATARAJA DESIKAR. M.L.J. 

1904, P 829=28. M 28 

2. Abuse of pi'ocess of Court — Fraud. 
Wliere a decree holder obtained leave of 

court to purchase the property for the full 



Abuse of process. (Continued) 

decrotal amount, and it was purchased for him 
benami at a less sura, the judgment debtor not 
objecting at the time and not gottinv» the 
sale set aside : H:;! 1 that the doreo holder 
could execute decree for the balance notwitli- 
standins; the abuse of process of Court and 
fraud of thodecres holder. See T. P. ^. §. 90. 
DURGa v. BUAGWANIJ.AS I. A. L. J. 483. 

3- Abuse of process of Court — .^uit for 
Compensation for wron'jful altaihment a 'dic- 
ing Court seai on outer door of a ware- 
house — Actual seizure — suit for damages by 
other judgment creditor — Limitdtio'i Act of 
1H77. Art: ;J'). SeeC. P. C. (18S2J §. 269. MQL- 
CHAND KANYALAL v. BANK OF MAD- 
RAS. 27 M. 346. 

4. Suit for compensation for wrongful 
attachment — Want of jirobable and reason- 
able cause — Malice — See Mali ciou-iprovnif ion — 
SURA.T MAL CHUNNI L\L. v. MANEK 
GHAND K.\PUR CHAND.6 B- L- R- 704- 

5. A debutter estate is liable to pay costs 
incurred for prosecuting certain criminal 
cases and also to pay certain amount al- 
leged to have been paid to certain pleaders 
who ware engaged for conducting various 
suits in connection with the estate. PEARY 
MOHAN MUKER.TEE v. NARENDRV 
NATH JiIUKERJEE 9 C- W- N- 421 = 32 

C. 582- 

6- Every court of competent jurisdic- 
tion has au inherent jurisdiction to pre- 
vent abuse of its process; by staving or 
dismissing without proof actions which it 
holds to be vexatious, but this power ought 
to be exercised sparingly and only in very 
exceptional cases. 

Where the plaintiff brought a suit for 
declaration of his title to a zimidari re- 
opening therein questions already settled 
by decisions of the Judicial Committee 
and other Courts in more than one litiga- 
tion regarding the same zinii.hiri: Held 
that tlie suit was liable to be dismissed 
as vaxacious. Sec Specific Relief Act 1 of 
1NS7 S i' VIJIA S.\MY' TEVAR v. SA^'T 
VERM. A TEVAR. M- L- J- 1903 P. 469 =28 
M 560- 

Abusive Langruage. 

1. The mere use of abusive and in- 
sulting language not amounting to de!ami- 
tioa and without proof of any sp?cial 
damage, is not actionable, altUougii ilj may, 
under certain circumstances, form a ground 
for criminal prosecution. In this oaso the 
plaintiff wis called "soaofm^an parents," 
" ion of a dig," and "son of a pig:" 
Hold these words seem to bj of mare 
vulgar abuse and insult, and no spjcial dam- 
aie t . the plaintiff has been proved. It has 
not baea pro vad that tha pUiutifi's raputa- 



( 10 ) 



CIVIL DIGEST OF CASES 



( 20 ) 



Abusive Language (Continued). 
tiuu has been in any wa}' allootad by thera, 
aud therefore no suit for damages was 
maintainable under these circumstances 
26 C. G53 followed. 15 Bengal L. B. 161 
referred to. jM.\UNG KYAN v. THA DUN 

U.-4 L- B. R. 1907 P 50- 

2. Abusive Language — Defamation Tort. 

Defamation, as distinguished from mere 
vulgar abuse, is actionable without proof of 
special damage. lu this case the plaintiff 
was accused in the hearing of other persons 
of stealing palm loaves and firewood. The 
defendant failed to prove the allegation as 
true. The ruling S JI. 175, which laid down 
that defamation which caused eubstantial 
pain and annoyance to the person defa.med 
without proof of money damage was action- 
able, was followed (12 C. 424 referred to, 26 G. 
65.J discussed and 28 C. 452 dissented from) 
WA PAN YE V. IIAUNG PAN AUNG.— TJ. B- 
R- 1905 P 1- (Tort Defamation) See forts, 
hibci, islander. 

Abutting oradjomingapublic Road 

Sec N. \V. H. and Oudk Maniciiial Act of 
1900 §§ S7, 16S and 132. KING ElIPEROR v. 

MUKANDLAL A- W- N- 901 P- 203- 
Ab W x\a— (Cesses) 

1. All conditions to pay Abiodb Mahtub 
and other like impositions are void — See 
ncngal Tenancy Act 8 of 1885 § 71,-6 G. W. 
N. 360. 

2. Certain collection charges blended 
with rent were held not to be abivdb but rent. 
Sec B. T. A. 8 of 1885. § 74. 8 0. W. N. 539=31 
J. S34. 

3. Conditions to pay the price of three 
cocoanuts aud render one day's service 
be:^ide3 rent fall under ahwab and are void 
— See B. T. A. § 7i~10 C. W. N. 527. 

4. Condition to pay Rs. 3/ instead of 
delivery of 2 goats is void. — See B. T. A. 
I 74-12 C. W. N. 175. 

5. Where rent is fixed in sikka rupees 
aod truita is claimed to make the demand 
equal to current coin the demand is not 
illegal.— See B. T. A. 8 of ISSo § 74 fi C. L. 
C. 637. 

6. Do. 6C.L.J. 667. 

1. Puja expenses realised from a tenant 
in excess of rent is abwab. B. T. A. § 7i- 
3 C. L. J. 391. 

8. Boad cess is not cCbwdb — See Act 
S of 1860—3 C. L. J. 337. 

9. Valuation of property award— Sec 
B. T. A. 1885 § 74—7 C. W. N. 439. 

Acceleration of Estate. 

A widow can, during her lifetime, con- 
vey the estate absolutely to next reversioner, 



Acceleration of Estate (Continiied) 

and thus accelerate such reversioner's suc- 
cession.- fScc Hindu. Widow) 7 B- L- R- 622- 

Acceptance of goods by buyers. 

See Contract Act § 107—7 C. W. A'. 503-30 
C. 649. 

Meaning of acceptance— Sec Stamp Act 
§ 62-4 O. C. 168. 

Of rent by landlord (vide Landlord v. 
Tenant) 15 C. P. L. B. 99 

Accession. 

1. See accritions, alluvion and diluvion. 

2. To mortgage property accrue for the 
benefit of the mortgagee — Sec Mortgage Ac 
cession A. W. N. 1902 p. 176. 

3. To mortgage property — See Mortgage 
Accession 29 G. 803— See T. P. A. § 63—14 C. 
P. L. B. 169. 

Accident. 

Loss of goods bv — See Railway Act 9 
of 1890 § 47 (23 A 367) ; § 72 (27 B. 126) 
and (27 B. 597) etc. 

Accounts. 

(a) Acknowledgement of — See Acknoiu- 
ledgement. 

(b) Account Books — Admissibility op, 
IN EVIDENCE — See Evidence Act § 34, 

1. Bokar and Mashakbari books re- 
gularly kept in ordinary course of business 

are admissible in evidence under § 34 
Evidence Act, though the Ehata books had 
been destroyed by the defendant and were 
not forthcoming. (Sec Evidence Act § 34) 
9 C. TV. N. 1905 P. 421=32 C 582 

2. Do. Admissibility of.— 3 B. L. B. 
213=25 B. 616 (See § 34 Evidence Act). 

3. Copies of account books furnished 
under 5 141 (a) C. P. C. (1882) do not fall 
under Article 24 Stamp Act (1899) and require 
no stamp— See Stamp Act Art 24 4 B. L. B, 
223 = 26 B. 22. 

4. Corroborative Evidence in support of 
account books is necessary. — See § 34 Evid- 
ence Act— 6 B. L. B. 50=28 B. 294. 

5. Do. Do. See Evidence Act § 34-4 B, 
L. B. 378=6 C. W. N. 401=29 I A. 43= 
29 C. 334. 

6. Do. — Do — See Evidence Act § 34-3 
B. L. B- 213=2 B 216. 

7. Corroboration is necessary under § 
34 Evidence Act, but where accounts are 
relevant also under § 32 (2) they are suffi- 
cient evidence and require no corrobora- 
tion. — See § 32 (2) and 34 Evidence Act 
6 B. L: B. 50=28 294. 

(C) Adjustment of accocmt ih execu- 
tion— C. P. C. § 501. 

1. Where a decree did not expressly 
direct an adjustment of accounts in the terms 
of § 501 C. P C.(1882); Held such adjustment 



< 21 ) 



CIVIL DIGEST OF CASES 



( 22 ) 



Accounts {Continued). 
could 1)0 ordcrod in execution by the oxecu- 
tiou court if it could be shown from the 
nature of the decree that it could and should 
have contained such an order and was imper- 
fect without it.— Sec C. P. C. § 50i— RADHiiY 
SINGH V. MAGNI RAM. 6. C W- N- 1902 
P- 710- 

2. Adjustment of partnership — Settled 
accounts— Error — Beopcning— General words of 
release. 

Where partners strictly adjusted tlieir 
partnership accounts and one of them as- 
signed and released his share in the firm for 
a particular sum iu favour of the other, but 
by mistake sonic Government Promissory 
Notes for Rs 7,000 were omitted from the ac- 
counts and he, on the discovery of the mis- 
take, sued the other partner for a share of the 
notes: Held either the whole account may 
be reopened or leave may he given to the 
plaintiff to surcliarge and falsify. The latter 
course seemed more probable on the facts of the 
case. 5 M. I. A. 372, 9 Bean 503 and 9 Ch. D. 
517 referred to. 

General words of a release in a deed can 
only pass what the parties had iu contempla- 
tion and not something with which they had 
no intention of dealing. 4 H. L. 610 and 14 
Ch. D. 820 followed. BANEY MADHUB 
MULLIK II. SUBAL CHANDAR LAW. U 

C- W. N- 776- 

(d) Admissibility op accounts in evidence. 
— See Evidence .ict Scctioi 31. 

(e) Assignment of debt to oeeditobs — 

PUTY OF CBEUXTORS TO RECOVER DEBTS. 

When a creditor accepts from his debtor 
assignment of a debt due to the latter by an- 
other person and the creditor makes no at- 
tempt to recover the same he may be debited 
with the amount of debt, when account is 
settled between him and the debtor. Mt. 
SHAM KUMARI v. raja RAMESHWER 
BINGH BAHADUR. 8 C- W- N- 1904 P- 
86 p. C. 

(f) Accounts between BiNKEiis and cus- 
tomers — Mortgage held by banker — Inter- 
est.— See Banker, THAKURJWALA SINGH 

V. luchhman DAS. 9 C- W- N- 745 P- C- 

(g) Commission for taking accounts — 
C. P. C. Sections 394 and 395 R. M. S. 
CHETTI V. MOHOMED ESSA SAHAB. fi C. 

W- N- 692 
(h) Accounts between co-shaeees ob co- 

OWNEBS CO-TENAKCT. 

A co-owner quarrying a bill to the extent 
of his share is not liable to account to his 
other co-sharers. See Co-tenancy Accounts. 
MAHESH NARAIN v. NAWABAT PATTAK. 

1C;L. J 437=32 887 

(i) Accounts between creditors and deb- 
tors— See Accounts Assignment. 32 C. 27 P. C. 

(j) Decree — Priliminary decree under 
§ 215 (a) C. P. C. for taking accounts. High 
Court's power in appeal of staying under 
Eection 545 further proceedings under section 
645 C, P. C. Sec § 21S {a) C. P. C. BALKISHAN 



Accounts [Continued). 

sahu u. KHUGNO. 8 C- W- N- 672=310. 
722 

3. Decree directing a Company to furnish 
accounts — Transfer of business. 

Where a decree directs a Company to fur- 
nish accounts, but in the meantime the busi- 
ness of that Company is transferred to a 
Limited Company, the accounts directed by 
the decree would not extend beyond, or 
include contribution accrued later than that 
date; for the limited company to whom 
transfer is made is a distinct legal person. 
Sec Contract .Act Srdion 27 S. B. ERASER 
& Co. V. THE BOMBAY ICE M.ANUFAG- 
TURING Co. LIMITED. 7, fi. L- R. 1905 

P 107=29. B. 197 

4, Decree — No specific direction as to ac- 
counts —Practice. 

Where a decree does not contain direc- 
tion as to accounts, but it contemplates an 
account, and the direction ought to have 
been incorporated in the decree when pas- 
sed, the Court can, at any stage of the pro- 
ceedings, direct necessary enquiries to be mado 
or accounts to be taken. SIR JEH.^Ni'rlR 
C()W.\SJI JEH.\NGIR V. THE HOPE 
MILLS LIMITED, g. B. L. R- 1380. 

5. Decree iu favour of defendant — In suit 
for accounts whore the Lower Court passed a 
decree in favour of defendants and tha 
plaintiffs appealed alleging that the Lower 
Court was wrong in awardi".g a sum to tha 
defendants as it they were pir.intiffs, although 
as defendants they had claimed no sot oH, and 
had paid no Court-fee Stamp : Held, over- 
ruling the contention, that iu a partnership 
or partition suit, each party, however arrayed 
formally, becomes in turn either plaintiff 
or dofendauu and that even supposing 
that there was some irregularity, it did 
not affect tne merits and was cured by 
§. 578. C. P. C. NANCHAND AMAR CHAND 
V. MUiSS.\ HUSEIN. 6 B- L- R- 1904- P- 
692. 

6. Form of decree— Principal and agent 
C. P. C. §. 315 (a) 

Whera the plaintiS proves that de- 
fendant is his agent the Court ought to 
fix a date for the daftndants to furnish 
accounts, and it is icr the defendant to 
prove the amount ri his receipts and 
disbursements. See §. '.25 (a) C. P. C. as to 
form of dicree. RAJHU NATH v. GUN- 

P.\TJI. A W- N- 1905- p. 3=27- A- 374- 

(it) En-Ries in Acccunt Books— See Aa- 
counts— Account Books Supra (b). 

(1) Expenses — partnership and private ac- 
counts confused. 

Where a partner mixed up his private 
accounts with those of tha partnership, 
although he honestly incurred expenses 
for the partnership, and the Court could not 
possibly oonjeoture what tbe separata ex- 



( 23 ) 



CIVIL DIGEST OF CASES 



( 24 ) 



Accounts (Continued). 

penses were : Held he could not be allowed 
the expenses. MAUNG THA HUIN v. MA- 
THF.INMAYAH. 5 C- W- N- 114 = 280 53- 

(m^ GUABDIAN AND WARD — GuARDIAn'S 

LIABILITY TO RENDER ACCOUNTS — Sce Guardian 
and Wards Act 8 of 1890 § 34 NABU BE- 
BABl V. SHEIK MAHOMED 5 C. W. N. 
207. 

(n) Hathchita — Entries in-Sign<tore 
ON -Sufficiency thereof-Custom— Intention 
OF parties— See Acknowledgement Limitation 
Act % 19-SADASOOK AGARWALLAH v. BAI- 
KUhTHA NATH B AS UNA 9 C- W- N- 83= 

81 C 1043 

(0) Interest account op— Interest also 

IS BARRED WHERE THE PRINCIPAL IS BARBF.D. SfC 

Interest 071 timebarred debts. DHONDI RAM 

V. TAB A t>A VADAI 5 B L E- 198 = 27 B 330- 

(p) Interest calculation op the date 

ON WHICH MONEY WAS LENT AND THE DATE ON 
WHICH IT WAS REPAID, SHOULD BOTH BE EXCLUD- 
ED IN CALCULATING INTEREST. EAGHAB 

TRUSTI V. BHOBNI SAHOO. 8 C- W. N- 
216- See Interest. 

(Cl) Jurisdiction — Accounts — Suit for— 
Valuation Court-fees. 

(1) 111 a suit for an account the valuation 
fir.st fixed in the plaint is final for purposes 
of jurisdiction and stamp duty on the plaint, 
liut doe.s not preclude the plaintiff from 
getting a decree for such higher amount as 
the accounts may show he is entitled to. He 
must, however, pay extra stamp duty in 
e>:ocution on such higher amount. 

Where in a suit for accounts the Court 
required the plaintiff to pay additional Court- 
fees on the higher amount which might be 
due to him over and above the amount 
claimed on the plaint and the plaintiff offered 
to relinquish his claim for the excess amount, 
but did not pay the extra Court-fees, and 
the Court dismissed the suit: 

Held, that the order of the Court was 
erroneous, and the relinquishment made by 
the plaintif! would not bind him. SEL- 
LAMUTHU SEBVAGAR v. BAMASWAMI 

PILLAI. 12 M- L. J. 1902- P- 66- 

(2) Jurisdiction — Suit for accounts of an 
estate. 

Held that a suit for profits of an estate 
against a co-sharer is a suit for accounts 
anJ is not, as such, cognizable by a court 
of suiall causes.^See Provincial Small Cause 
Courts Act 9 of 1887 Art. 31. GOBIND V. 
INIATHURA 5 0. C. ISO. 

(V) Liability to render accounts. 

(l) AdMISISTRATOB's liability TO RENDER 

accounts. Sec Limitation Act Arts. 120, .'i9 and 
60. KRISTOKAMINI DASSI v. ADMINIS- 
TRATOn GENERAL OF BENGAL 7 C- W- 

N 1903 P 476. 

2. Administrator failing to file accounts 
— ground for revoking probate— See Probate 
and Administratiou Act ^ 50 i B. L. B. 637= 
26 B. 792. 



Accounts (Continued). 

3. Administrator filing inventory power 
of Court Accounts. — See Probate and Letters 
of Administration .Act 5 of 1881 § .30 and 98 
MAHARANI SARAT SUNDRI BARMANI v. 
UMA PROS AD ROY CHOWDHERY 8 G. 
W. N. (1904) P .578 = 31 C. 628. 

(ii) Agent's liability to render accounts. 
—See Civil Procedure Code § 215 A. RAJHU- 
NATHv. GANPATJI 1 A- L- J. 722- A- W- 

N 1905 p. 3 = 27 A- 874. 

(iii) Executoi's Liahilitij to render Accounts. 
An executor whose right to come in and 
apply for probate is reserved, is entitled to 
call upon the executor who has obtained the 
probate to furnish accounts as required by 
Law. JEHANGIR RHSTUMJI v. BAI KU- 

KIBA. 5 B. L. R. 131=27 B- 281- 

(iv) Liability of a firm acting as Ma- 
naging Agents of a Company. 

Where the defendant was sued as the 
surviving partner of a firm, who were Man- 
aging Agents of the plaintiffs, a registered 
Company, for accounts: Held that the re- 
lationship between the parties was of a fi- 
duciary nature and the defendant was liable 
to render accounts, and that it was no 
answer to the suit that the defendant had 
made over the account books to the plain- 
tiffs 14 C. 147 P. G. and 7 C. 627 followed. 
ANDERSON v. DELHI COTTON MILLS 

COMPANY LD. 155 p. L. E- 1903=69 P. 
K- 1903. 

(v) Liability of a Karta of joint Hindu 
family to render accounts of joint property. 

When in a suit for partition among the 
members of a joint Hindu family, the de- 
fendant, who was manager of the family, 
admitted the existence of family jewels as 
joint family property, and could not charge 
the plaintiff with possession of them. Held 
that the defendant as manager of the family 
was primarily responsible, and was bound 
to account for them. RAJA BOMJIADEVA- 
BA VENKATA NARASIMHA NAIDU v. 
RAJA BOMMADEVARA BHASHYA KARLU 

NAIDU, 6- C W N. 1902 p. 641 P- C. 

(vi) Liability op a mortgage to bender 
accounts. — See Mortgage Accounts (See § 74 T. 
P. A.)— 4 B. L. B. 42=26 B. 363. 

(S) Limitation — in suits for account. — 
See Limitation Act (1877) Arts. 57, 57 <£ 85 
(mutual, open d current accounts) 85, S9, 90, 
103, 106 and 120 (see mode of taking accounts 
V. (4) infra-24 A. 527 P. C. 

(t) Misconstruction of portion op docu- 
iiHNi'ABY evidence — ACCOUNTS. — See Contract 
Act § 213 32 C. 719. 

(u) Mode of taking Accounts. 

(1) Decree passed against an estate. Dif- 
ferent judgment debtors paying off at different 
time. See Contribution suit, mode of taking ac- 
counts 8 C.W.N. 265=31 I.A. 94=31 C 597 
P.G. 

(±) Duty of Court in a mortgage suit or 
mode o£ taking accounts — See Mortgage Ac- 
couiUs i B.L.B. 42=26 B. 363. 



( 25 ) 



CIVIL DIGEST OF CASES 



( 26 ) 



ACCOnntS iCmiUnued). 

(■S) Accmnlt. ordered — dissolution dccreed- 
modi' of lakinij Accounts — Partnership — Aban- 
donment accounts. 

HcUl, that it must be docidod in each 
uasu upon facta whetlior a partner has 
aliaiidyiied the partnership or lost his 
interest liy laches. 

Held, also, that expenses incurred by 
a partner for the partnership were rightly 
disallowed because ho had by his own acts in 
iiiixing up his private affairs with those of 
the partnership made it impossible evjii to 
conji c'ure what those expenses were. MOUNG 
TllA UUYIN V. MAH THEIN MYAH. 28 
Cal., 53 P. C 

(1) In a suit to take accounts, it is irre- 
gular to take them irrosiDectivo of he plja of 
limitation. In Art HU (Limitation Act) move- 
able property includes money. ASHG.\U.VLI 

V. KUUUSHEDALI, 3 B LE- 576 = 24A527 

(P.C-). Hi^'' infra Nos. (eH and ^J> infra li 

V. }'. L. n. 01. 

(V) MoRTCiAGEF.'s DUTY TO RENDHai ACCOUNT. 

— tiee Mortgage Accounts 4 B. L. R. 42=26 B 
363. 

iyr) Mutual, open and curuent accounts. 
— Sec Limitation Act Arts 57 and 6'5. 

(x) Omission to exhibit accounts is a 

nOOD GR )UND FOR REVOKING PROBATE — See I'rO- 

bate and Administration Act § 30 B. G. TILAK 

V. SAKWAliBAl. 4 B L IL. 637=26 B- 792- 

(y) Order for accounts, in a suit for pos- 
session without any prayer of the plaintiff in 
his plaint for acconiits. 

Where iu a suit for possos.sion by a 
sharer in a deceased JIaliomedan's estate 
against his widow, the plaintiff asked the 
Court to order accounts to be taken: Their 
Lordships declined to do so, especially as there 
was no prayer in the plaint to tliat effect. 
HUMERA BIBI v. ZUBEDA BIBI 2 ALJ- 
485- 

(z) Plea as to the taking op accounts 

RAISED for THE FIllST TIME IN HiGH CoURT IS 
NOT MAINTAINABLK. 2 A- L. J. 485 • 

(Zl) PaRTNF.H's right to SETTLEMENT OF 

ACCOUNTS. See Settled Accounts infra No. 23 (3) 
(a) l:l M. L. J. i;i03 P. 4U. 



(Z2) Principal and agent. 

1 Burden of proving the correctness 
of accounts lies on the agent and he is bound 
to render accounts. Sec Contract Act § 213-1 
A. ±^. J. 722=27 A 374 and 32 G 719 = 1 C. 
L. J. 232. 

2 The profits made by an agent enure 
to the bouefit of the Principal. See Contract 
Act. § 21G-4 B. L. R. 409=26 B. 659 (see also 
§ 217, 218, and 219 Contract Act). 

3 Whether agent's signature on set- 
tled accounts is on behalf of his principal- 
See Settled Accounts {s3 (2) ) infra 2ii il o!i 



Accounts. (Continved) 
(Z^) Settlhd Aocounts 

1 Necessity of signature on. — 

It is not necessary, in ordor to be a 
settled account, that it should be signed by 
the other party to be bound thereby. Tt 
is enough if it has been submitted to the 
other party sought to be made liable on it, 
and he has by words aud conduct acquiesced 
iu its correctness. HVI ABDUL v. HAJI 
BIBI 7 B. L. R- 151- 

2 Agen.'s Signature whether on behaJf 
of principal or himself. 

The question whether an agent endors;p 
a negotiable iustrumout for himself or on 
behalf of bis priucipil is one of fact to be 
decided with reference to the eviJauce in the 
case. The reception of parol evidence in re- 
gard to .such a matter is subject to muoh th'3 
same rule.^ as govern written contracts 
generally. MaTHAR SAHII'. MARAIKAK 
V. KAUIR SAHIB MAR.\.1KAU. M- L- J- 

1905 p. 384=28 M- 544- 

3 Accounts settled by a ^yartner—bind 
the partnership. 

Under § 251 Contract Act a partner 
is bound by the act of another partner iu 
settling the accounts between the partner- 
ship aud a stranger. MAUJU NATH KAMTl 

V. PEVAMMA. 12 M. L. J- 1902 P- 444 

4. Reopening settled accounts — Surcharjr. 

The plaintiff who seeks to open a sottled 
account must specify in his plaint the grounds 
oa which he claims permission to surcharga 
or falsify, otherwise he will not be allowed to 
prove errors at the hearing. 

In this case the plaiutifi sued his agent 
to render accounts. The defendant pleaded 
tlia't the accounts had been settled and the 
plaiutifi on a certain date acknowledged be- 
ing indebted to the dlifeudaut to the cxtens 
of a certain sum and that now nothing was 
due by one party to the other. The plain- 
tiff denied the alleged settlement of accouuts. 
The first court, instead of framing a pre- 
liminary issue as to the date from which 
accounts were to be rendered, proceeded to 
enquire into the merits of the claim holding 
that, athjugh the acknowledgement wasprov- 
od to have been signed by the plaintiU. yet 
he was entitled to go behind the ficknow- 
Icdgoment and to show that the settled ac- 
count was incorrect. The Appellate Court; 
modified the order and directed that the 
onquiry should be confined to the account 
subsequent to the acknowledgement, as the 
pl.u.itiff, having refrained from raising any 
pica,, of fraud or mistake was debarred ^om 
Ling behind the settled accounts: Held 
fconfirmiug the Lower -^PP^l^'te Coiut s judge- 
mont) and° follo^viug 30 L. J. Ch. ^92 'hat ^ 
partv who seeks to open ^-i. '^'^f !^f "'"f 
point out specific errors in his plaint other- 
wise he will not be permitted to prove them 
at the hearing. The Court's procedure in 



( 27 ) 



CIVIL DIOEST OP CASES 



Accounts (Continned). 
Micb cases ought to be as is well described 
ill 7 C. 654. The Court ought to decide 
whether the defendant is liable to render 
accounts and if so for what period the 
account is to be rendei'ed. When these points 
are decided the Court should order the 
defendant to file accounts in Court, within 
a fixed time. If the defendant omits or 
refuses to obey the order it may be enfor- 
ced under § 260 C. W. P. C. tf at files 
the accounts then the plaintiff should be 
allowed a reasonable time for filing objections 
to its correctness. If the disputed items 
are few the Court may dispose of them. 
If they are numerous and the enquiry is 
complicated the Court should take action 
under § 394 and 395 C. P. C. After the 
proper taking of the accounts the decree 
should be passed for the sum found due. 
:maulvi NIZAMUDDIN SOWDAGAR v. 
SKTH KASTUR CHAND 15. Q. p. L- R. 
61- 

(5) Suit to falsify settled account. 

Specific averment of errors is necessary 
in changing suit of accounts into suit to 
falsify settled accounts. Procedure in ac- 
count suits. Relation between co-mortgagors, 
one of whom is a pleader. See Pleader and 
Chrnt. MOHESH CHANDER BASU v. 

C'^W^N.^'S""^^' ^ ^ ^ ^ ^^°=^^ 

(Z^) Account stated 

1 An account stated respecting a 
debt constitutes a new cause of action, the 
consideration for which is the previous un- 
certain state of transaction and a promise 
to pay is implied by the admission of th e 
balance Sff C. P .C. § 43.- HONO RAJ 

r, LALJI 6B.L. R. 454=28 B- 447- 

(J) Accounts stated. Sec Limitation Act 
Art fi4-7 O. G. 166. 

(3) Account stated — Promise to pay- 
acknowledgement. (See Limitation Act Art. 64', 
1 L. B. R. 190 

(4) Whether account stated or balance 
can form the basis for a suit^cause of action. 
—See accounts— Acknmcledgemcnt anti. 

(Zf>) ACCOtlKTS, SniT FOR 

(i) Acknowledgement or balance of ao- 
counts— basis of— cause of action— See .4c- 
knenvledgcinent clause (d) infra, 

(ii) Amendment of plaint in.— See CPC 
§ 03-117 P. L. E. 1904. 

(iii) Conrt-fees OB.— See Court-Fees Act ^ 

ij ii *D P- •'■ ^^- ^ ^- ^- -"• ^^02- 6 C. W. N. 
d46, .58 P.R. 1903 d- other cn.?es. 

(iy) Limitation in. See Limitation Act 
(187, ) Arts, o?, 65, S9, 90. 102, 106 d IW. 

(v) Meaning of— Sec Provincial Small 
Cause Courts Act Art 31-15 M.L.J. 143- A W 
N. 1904 P. 337, 3H M. 394 and other cases. 

(vi) Mortgagor aiid Mortgagees— Suit for 
Accounts. 



Accounts, (Continued). 

1 Mortgages not realizing 
debt — Sec Mortgage Accounts 33 C 27. 



2 Mortgagee's rate of interest— See 
Mortgage Aaounts 8C. W. N. 609—31 I A S7 = 
31 C. 333 (P.C.) 

3 Mortgagee in posses: ion spending 
money to defend his title. See T P 4 S rl 
5 B. L. R. 916^28 B ISl. 

i Morgagee purchasing mortgaged 
property in execution of a decree. His "liabi- 
lity to account. See T.P.A.i 99— 7C W N 
533=30 C. 463. ' 

5 Liability of mortgagee in possession 
for mesne profits See T.P.A. §§ S2 and 841 -3 
B.L.B. 939=28 B313. 

6 Mortgagor and mortgagee. Possession 
with mortgagee under a consent decree mesno 
profits, suit for account. See T.P.A S8 S3 <6 
84. RAM SAUJI PARULEKAR v.KRISEOS 
SONJI PARULEKAR 3 B.L.R. 939=36 B 312. 

7 Pre-emptor a mortgagee of the pro- 
perty sought to bo pre-empted. 

In a suit for pre-emption whan the 
property is previously mortgaged with the 
pre-emptors and the vendee takes upon him- 
self to pay the mortgagees money deposited 
with him, out of the consideration for sale, 
the Court is not justified in going through 
the mortgage accounts to find what was due 
to the pre-emptors at the date of sale 
MUHAMMED UMAR v. KIRPAL SINGH 
78 PR- 1904- 

8 Suit by second mortgagee to enforce 
his mortgage. See Mortgage Accounts 33 C 27 
(P.C.) 

9 Redemption Sicit — Accounts. 

Held by the Privy Council that a mort- 
gagee is not liable for the amount of the gross 
rentaUas shown in the Jamabandi but only 
for such sums as had been actually received 
by him or on his behalf and such suras, if 
any, as might have been received by him, 
but for his own neglect or fault. BENARSI 
PERSHAD V. RAM NARAIN. 7 C- W- N. 
514PC.=25A227. 

10 Suit for redemption by the first 
mortgage. — See Mortgage Redemption 1-5 C, P. 
L. R. 26. 

11 Redemption suit. See Mortgage Ren 
dempiion 5 C. L. J. 193 and other cases, 

(vii) Partners' suit for Accounts. 

1 Suit by one partner against another 
without praying for dissolution of partcer- 
ship. See partnership, suit for accounts^l. A 
L. J. 04, 38 M. 394 dc. 



( 29 ) 



CIVIL DIGI«T OF CASES 



( 30 ) 



Account Books. 

See Areount — Account Books anti. 
Accountability.— 

Sco accounts — Liability to render ac- 
count anti. 

ACCRETIONS 

(a) To Ancestral Proparty. 

(b) By Alluvion and DuluvioD, 
(C) To mortgaged Property. 

(a.) To Ancestral Property. 

Lauds and houses which accrue to a 
member of the proprietary body by reason 
of his membership of that body are re- 
garded as ancestral property and not as a 
self-acquisition P. R. 10 of 1S93 followed. 

Where the nucleus of the lauded pro- 
perty had descended from an ancestor com- 
mon to the parties, accretions to such a 
nucleus assume such a character. 

But property purchased by the common 
ancestor of the parties and afterwards coufis- 
Cftted by Government and subsequently releas- 
ed in favour of one of his descendants was 
held to be acquired by the person in whose fa- 
vour it was released as it did not appear that 
the release was made to him as the descen- 
dant of the original owner but on account of 
his own capability. Under the customary law 
property acquired by the income of ancestral 
property is not regarded as ancestral proper- 
ty P. L. R. 8 of 1901, 4 P. R. 1900 = P. L. R. 
1900 P. 1.52 & P. R. 12 of 1901 followed. HAI- 
DAR KHAN v. JAHAN KHAN 65 P. L. R. 

1902=50 P R 1902 

(h) By Alluvion and Diluvian, 

1 Auction purchaser in revenue sale for 
arrears of revenue has right to accretion — See 
Bengal Regulation 11 of 1826-% Q. yj. If. 

676. 

2 Custom — Land of adna milik reap- 
pearing after siitmer^er— haq juri. 

Where the land of an Adnd, Mdlik re- 
appeared after sub-merger and the Ala Mdlik 
claimed the land or at least haq-i-juri, 
which was entered in the Wajib-ul-arz Us-1 
to Ss-2per bigah; their claim to haq-i-juri 
was allowed at ^Js-l per bigah and the land 
was decreed to the adjiil mdliks (Muradpur 
village in the Muzaffargarh District) 83 p.R. 

3 Action of river tidal or non-tidal — 
Bee Bengal Regulation 11 of 1825 & Act 18 of 
1876-2 A. L. J. 623^7 B. L. R. 87=2 C. L. j. 
185=9 C. W. N. 889=8 0. C. 293=15 M. L. J. 
849=27 A. 655 (P. C.) 

i Gradual formation — alluvion and di- 
luvion — See Bengal Regulation 11 of 1825 
a Act 18 of 1876 14 C. P. L. R. 97. 

5 Do-l M. L. J. 101. 



Accretion (Continued). 

6 Do— A. W. N. 1905 P. 271 = 2 A. 1 J. 

821 = 28 A. 256. 

7 Do — Reformation of diluviated land 
—1 M. L. T. 175 = 3 C. L. J. 560 (P. C). 

8 Do— Right of Boyat having no pre- 
existing right to land to later accretions 
to such land— See Act 8 of 1885 {Bengal 
Tenancy Act and Bengal Regulation 11 of 
1825—33 C. 444). 

(O) To MORTGAGED PROPEBTY See Accession 
Nos. (2) and (3) supra. 

Accrual of right to sue.— 

Meaning of — Sec Calcutta Municipal Act 
3 of l.'j99 {Bengal Ads) §, 634 (2).~THE 
CORPORATION OF CALCUTTA v. SHYAMA 
CHARANPAL 9 C. W. N. 217=32 C. 277 

ACKNOl^LEDGEItlENT. 

(a) What amounts to an acknowledgement of 
debt. 

1. Where at the bottom of a Hathir.hit- 
ta account the defendant wrote Likh- 
tain khude, i.e., written by self: Held it 
amounted to an acknowledgement to operate 
as such within the meaning of § 19 Limi- 
tation Act.— See L. .4. § 2.9— SADASOOK- 
AGARWALA V. BAKUNTHA NATH BA- 

SUNIA 9 C- W N, 83=31 C 1043 

2. Do., See Limitation Act § 19—9 B. L. 
R. 715 

3. Do, See L. A. ^ 19 and 179— 6 C.L.J. 
141. 

4. Do. Sec L. A. § 192—2 B. L. R. lOSS 
= 25 B. 330. 

5. Judgement debtor's application in 
writing for extension of time is an acknow- 
ledgement and saves limitation— See L. A. § 19 
12 M. L. J. 351. 

6. Defendant's written statement in a 
previous suit dismissed for misjoinder of 
causes of action was treated as "an acknow- 
ledgement. See L. A. § 19—24 M. 361. 

7. Defendant's acknowledgement of lia- 
bility in a letter written by him to his own 
agent and given to the plaintiff to be des- 
patched to that agent is an acknowledgement 
under § 19 L. A. and saves time — 4 B. L. R- 

447=26 B 562. 

(b) What does not amount to an acknow- 
ledgement 

When J, a contractor, sent a letter and 
his bill to one R for whom he had done a 
buiUlint; job and R replied "Received a letter 
and bill Irom J for the building works done 
by him. The bill glanced over seems to be 
inccrrect. I will first have the work and 



( 31 



CIVIL DIGEST OF CASES 



( 32 ) 



AcKuOWledsement (Continued). 
e^tiiiiites examiuocl anl after deducting 
wh;a is to be deducted I will see what ia to 
l.e paid." Held this writing did not amount 
to an acknowledgement under Jj 19 L. A. — 
.TOGF.SHWAR ROY v. RAJ NARAIN MIT- 

TRA. 8 C W- N- 1904 p. 168- 

(c) By Agent. — 

An agency (such as is contemplated by 
5 ]',• [j.A.) can not be inferred from the mere 
fact that the acknowledger is a joint con- 
tractor or a co-mortgagor. The deposition 
in Court as to mortgage by one of several 
co-mortgagors co-defendants liinds him 
alone as an acknowledgement under § 19 L.A. 

It may he shown by evidence that the 
managing member of a j^int Hindu family 
was duly authorised to make the acknovf- 
led^ement on behalf of all the members to 
bind them by the acknowledgement made by 
him. NARAYANA AYYAR, v. VENKBTA 
RAJIANA AYYAR 25 M-220(F. B) 

.4 co-mortgagee is not an agent of other 
co-mortgagees. 

Where a mortgage is joint in favour of 
two moitgagees an acknowledgement by one 
of them can not ensure to the bouefit of the 
mortgagor as against the other and cannot 
save time. 18 A. 4.58 followed. HANUMAN 
PRASAD V. RAGHUNADHA SINGH. 1 
A L J. 355- (See L A. S. 19) 

{(l) Acknowledgement — cause of action, 
inhcther an acknowledgement can constitute a 
cause of action whereon to base ojic's suit. 

1 Acknoivledgement — causa of action- 
mistake in framing plaint. 

When facts on which a claim is based are 
clear the court should not dismis.s a suit 
merely for the cause of action being wrongly 
stated. 

The plaint set out that there were money 
dealiugs between parties and their ancestors 
for many years and that in sambat 1951 
the accounts were made up and a debit 
of -Rsl942 was acknowledged, and that after- 
wards the defendant's estate fell under the 
management of the Court of Wards and that 
in 1897 that Court acknowledged a debit of 
-Rs-1412to save limitation. This last acknow- 
ledgement was assigned as the cause of action 
and the total amount claimed was Bs-2229-7. 
N'o documents were filed with the plaint out 
.^ccount liooks from samt 1942 to St. 1951 were 
produced at the fust hearingand their extracts 
were filed. The defendant's objection that 
tie suit was bad as being based on an 
acknowledgement was overruled and the case 
decreed in toto. 

The Divi.s-onal Judge, on defendant's ap- 
peil, dismissed the plaintiff's suit as being 
bised on an acknowledgement which did not 
constitute a cause of action: Held although 
the plaintiff should have produced his ac- 
count books in Court, witli tho plaint, and 
given their copies to be filed with the plaint, 
and he should have referred to the ackuow- 
eldgement not as oonstitu ing a cause of action 



AcKnowledsrement (Continued). 
but as extending limitation, yet the rcai 
cause of action was perfectly apparent and 
the dismissal of a suit merely because a 
plaint is not artistically worded will never 
find any favour lu our Courts (11 C.P. [j.R. 05 
& 22 B 5] .3 explained and distinguis'ied). In 
the present case even if it be conceded tliat 
the plaintiil put forward the acknowledgement 
as furnishing his causa of action still tlio error 
was perfectly immaterial and the debt itself 
was not open to objection. The judge should 
have disregarded the avermmt. as surplu,sage 
or should have caused the plaint amended 
then and there.— DURGASHUNKER v. R4M 
PERSHAD 14 CP L R. 151- 

2 Suit on a balance of accounts. 

The plaintiff's claim comprised a balance 
for Rs. 479-1 struck in his account books 
Re 1-2 and Rs 42 subsequently, lent to the 
defendant and Rs. .39 and Rs. 42 recovered 
from him. The first court decreed the 
claim, the Lower Appellate Court holding 
that no suit could lie on the basis of a 
mere acknowledgement gave a decree for 
only two items of Re 1-2 and Rs. 42 : Held 
that the plaintiff's suit was rightly framed 
and he was entitled to recover the whole 
amount claimed by him (23 A 502 referred 
to). BHOLA NATH v NET RAM. A- W- 

N- (1906) 185=3 A L- J. 800- 

3 Balance struck — Cause of action — No- 
vation — Limitation. 

The striking of the balance in account 
books may according to the particular facts 
and the nature of the entry amount to a 
mere acknowlodegmeut of liability or to a 
new contract altogether. In the first case it 
is only evidence of the original cause of ac- 
tion and if duly complied with § 19 Limitation 
Act extends the period of limitation, but 
merely as such does not constitute a cause 
of action whereon to sue. The suit must be 
based on the original cause of action. In the 
second case it may amount to a complete 
novation of the old contract for whicii it is 
substituted and can form the basis of suit. 
Whether it falls under the first or the 
second case depends entirely on the circum- 
stancos of each case. Where the balance was 
lekha Ganpat da Sambat 1957 Miti 2:3 Katalc 
Rs- 51/14/- baq^i ande Rs- .51/14/- Halhl Ganpat 
di mawarikhc 2-3 Katak 19-57 Miibligh Rs- 
-51/14/- rubru Ibrahim : Held it was only an 
aokn'jwledgement and not a new contrast in 
substitution of the original cause of action 
njr c )Uld anv promise to pay be roa.sjnably 
implied in it. G.VNP.\T v. DAUL.\T RAM, 

123 P- L. a- 1904=63 P- R. 1904- 

3. Acknowledgement — Suit based on mere 
acknowledgement — Limitation Ad Art. 6i — No- 
vation. 

A mere acknowledgement, or balance 
struck, does not vimount to a new contract 
and can not be sued upon nor is it an account 



( 38 ) 



CIVIL DIGEST OF CASES 



( 34 ) 



Aclmowledgenient (ConHmted). 

elated, for tlio latLt-r in tho strict sense is j 
whoro several cross claiias arc brought into 
Eccount on either side, and are sot off agaiuat 
each other and a balance is struck. The 
consideration for the paymjnt of the balance 
is tho discharge on each side. Article Gl 
Limitation Act applies only to such an ac- 
count staled and not to a case where 
there were no demands to be set off against 
each other, but only debts on one side of the 
account and piymonts made by tho debtor 
on the other. liJ B 5L3, 15 A 1 followed. 2 A 
CU and 872, 3 A li8 A. W. N. 18S3 P. 47, 
A, W. N. 1881 P. 05, Agra F.B. 94— C Mad H. 
C B 1"J7 10 C. 284 referred to — GANGA 
PBRSHAD V. n.nl D.VYAL.— A- W- N- 

1901 P 150= 23 A 502 

4. Acknoioledgem-nl — Construction of do- 
cument — Noimt.ion — Contract Act § 25 and 
Limitation Act § 19 — 

Hold that tho following document em- 
bodied a promise to piy within the moaning 
of § 25 (3) Contract Act and was not a mere 
acknowledgement of a balance. ^ 

"Bais tahrir anki mablagta 1,500 rupei 

az sare nau hisab karki babat hisab bila 

i )ki Hafiz Muhammod Nairn ke sath mera 
nai more zimme baqi rahe, Lihaza yeh 
chand kalmat bataur aanad likh deta hun 
ki sanad rahai aur waqt hiij t kam Ave" 
MAHBUB JAN v. NUKUD-l;IN— 22 P- L- 

R. 1903=102 PE,:1905- 

5 Acknoivledgemcnt of Conditional lia- 
bility- — 

There can not be an acknowledgement of 
a conditional liability unless the condition 
is fulfilled. Although so far as the specific 
cases provided for in tho explanation to § 19 
Limitation Act are concerned, tho Indian 
Law is not the same as the English Law, 
yet there can be no doubt that here as well 
a.s in England an acknowledgement of a 
conditional liability would not give a fresh 
start so long as the condition remains un- 
fulfilled (1 M.L.T. 190 P. C. followed) R.iJAB 
KWALI ARUNA CHliLLA ROW v. SRI 
R.UU BAUGHIA APPA BA.R,— 1 JJ. J, J. 

818=16 ML J 563 = 29 M- 519 

(c) Acknowledgement — Constrvction of a do- 
cument. — 

1 Novation of a contract — See Contract 
Act § 2o (3) S Limitation Act §i9— W P.L. R. 
1-306. 

2 Held that the following dooumont 
was not a promissory note nor a bond, nor 
an acknowledgement o! a debt containing a 
promise to repay the debt or a stipulation to 
pav interest. As it was nothing more than a 
mere memorandum or note drawn up between 
the parties to a transaction which had just 
been settled between them, it was .sufTiciontly 
ttamped (with one anna stamp), and was 
Edmissible in evidence: — 

"Lokha of Bhawani Din (Ac.,) 8th Feb- 
ruary 1901. Interest 1 per cent pjr mensem 



Adsnowledgreinent (Continued). 

payable Srd May 1901, 4te- 500/- borrowed 
from Udit Upadhii for Sugar Factory, signa- 
ture of Bhawiini Din,"— UDIT UPADHIA v. 
BHAWANI DIN,— A. WN- 1904- P- 169 = 
1 A- L- J- 433. = 27 A 84— (Soe Stamp Act 11. 
of ISM Art 1.) 

3 l''or other cases see Stamp Act 2 of 1S93 
Article 1. 

(f) — Deed or docchuest in, a matebial 

ALTEE Alios OF AK — 

1 Material alterations in a document 
— Alterations in acknowledgement. 

The material alteration of a document 
upon which a suit is based by a party 
to it after its execution without the con- 
sent of the other party renders it void. 

A written acknowledgement of his liabili- 
ty by a debtor does not become void and 
inoperative because it is materially altered 
without his consent by his creditor. ATM.i 

BAJi V. uiiKD BAM. 3 Bom. L- E- 213 = 
25 B 616- 

2 Acknowledgement — Material alteration 
in a hathcliitta. Document. Material altera- 
tion of — Acknowledgement Suit on — -Alteration 
with regard to interest — Document merely 
relied on as eoidence. 

The plaintiff sued the defendant for a 
sum of Bs. 300 for money advanced. In a 
business book of the plaintiff, tho defendaut 
had acknowledged his liability for that 
amount, by signing his name in the hook over 
an eight anna stamp. After the defendant 
had signed the book, some words with regard 
tothe payment of interest were interpolated 
into tho entry. The plaintiff put the entry in 
evidence iu support of his claim, merely as 
an acknowledgement of the defendant's lia- 
bility. No rolianca was placed upon the 
entry as to interest, nor was any interest 
asked for. 

Held, that as the plaintiff was not suing 
upon any instrument which he had fraudul- 
ently altered, and the aokuowledgemjut 
as to indebtedness of Bs. 300 was not altered 
or tampered with ; the plaintiff was entitled 
to a decree for Rs. 3GU without iQtere.^;t. 

That the authorities discrim'.aate be- 
tween cases iu which the altered document 
is the foundation of the claim and tho.iO 
in which it is only u.sed as ev.dence. 7 
Cal 616 9 Ma I., 399 and 2-5 Bom., 616 
referred to H\BENDriA LAL BOY CHOW- 
D'HRY V. UMA CHARAN GHO.SH. 9. C- 

WN. 695- 

3 Alteration of date in an acktioioledge- 
msni — Oral evidence — Aimissibility of. 

Held oral evidence is inadmissible to 
prove the date of an acknowledgement where 
its date is unauthorisellv altered subieqjent- 
ly— GULAM ALI v. MIYABHAI. 3 B L" ?,■ 

574- 



( 35 ) 



CIVIL DIGEST OP CASES 



( 36 ) 



Acknowledgement (Continued). 

(u) Acknowledgement — Essentials op 
AN. See Limitaticm Act § 19 cases under the 
heading essentials of an acknowledgement, 

(fe) Effect of — On execution proceed- 
ings. See Limitation Act § 19 rulings under 
this heading 

(i) Forged bond, acknowledgement in a 
Its Effect to save Limitation. See Limitation 
Act § 19—3 C. L. J. 363. 

Do., Where a date in the acknowledge- 
ment is unauthoritatively altered, oral evi- 
dence as to date is inadmissible — See Limi- 
tation Act ^19 3 B. L. B. 574. 

{J) Of Legitimacy or pbatehnity. 

1 See Muhammedan Law — 9 0. C. 246 

2 „ „ „ —9 C. W. N. 352 
(k) By Guardian — See Limitation Act 

§. 19. 

(l) In a Hathchitta — Signed at the foot 
BY the debtor. See L. A. §. 19-9 C. W. N. 
b3 = 31 C. 1043. 

2. Entry in a Hathchitta — See Material 
Alteration of a deed, ackjiowledgement (/) 
supra 9 C. W. N. 695. 

(m) By a Karta or manager op a joint 
HiNDn FAMILY. See Limitation Act §. 19 
{and Hindu Law) 25 M. 220. 

(n) Limitation — acknowledgement of lia- 
bility to save limitation must be stated in a 
plaint. 

1 Where the right claiasd is a debt, 
it is necessary that an unequivocal and 
unqualified admission of the debt or a part 
of it or of the subsisting relationship of 
a debtor and creditor should be established 
to satisfy §. 19 L. A (26 C. 715 and 16 M. 
220 referred to.) There is a distinction be- 
tween the law of limitation as to acknow- 
ledgements applicable in England and that 
in force in India. The plaintiff ought not 
to be allowed to put forth a new case, 
inconsistent with the plaint to enable him to 
avoid limitation. BINODE EEHARI MU- 
KERJI V. BAJ NARAIN MITTRA. 7 Q. W. 

N 1903 P. 651=3 0. C 699. 

2 Acknowledgement not set out in the 
plaint can not be relied upon to save limi- 
tation L. A. §. 19. 

A plaintiff cannot rely on any ground 
of exemption from limitation, e. g., an ack- 
nowledgement of liability to save limitation, 
when he has not set out in the plaint that 
ground as required by §. 50 C. P. C. 
GOGESHWAR RAI v. RAJ NARAIN MIT- 
TRA. 8 C- W. N. 1904 P 171- 

3 Do.— 8 0. W. N. 168 = 31 C. 195. 

(o) Material alteration in an — See 
Acknowledgement Deed (f) supra. 

{p) By Minor. See L. A. §. 19—59 P. R. 
1901. 

(q) By Mortgagees. See L. A. §. 19. 

(7) Navotion of a contract. See Ack- 
noivlcdgement cause of action {d) supra 13 
P. R. 1904=123 P. L. R. 1904 ajid 102 P R 
1905^- 22 P.L. R. 1906. 

(s) By a partner. See L. A. §. J9. 



Acliuowledgrenient (Continued). 

(t) By a person having no interest*!* 

THE property WHEN MAKING AN — 3 A. L. J 

6S0 (See L. A. §. 19.) 

(u) Proof op — By accounts. See L. A. 
§. 19, 25 B. 330. 

(v) By a receiver. See L. A. § 19 — 10 C. 
W. N. 959. 

(w.) Requisites of an — See Limitation 
Act § 19. (Under that heading). 

(x) By Settlement Officer 75 P. L. R, 
1905. =33 P. R. 1905. 

(y) Special and Local Laws. See L. A. 
§ 19 under that heading A. W. N 1902 P. 34. 

(z) Stamp on. 

1 An acknowledgement stamped with 
a postage stamp instead of receipt stamp 
was held to be unstamped ( % 37 Stamp Act) 
23 A. 213. 

2 Unstamped — Evidence (See Stamp 
Act Art. 1). 30 C. 087. 

8 Stamped promise to pay. (See 
Stamp Act § 23 and Art. 1} 3 B. L. R. 839= 
30 C. 687. 

i Bond, Pro-note, Memorandum of 
a loan (See Stdmp Act Art. i) A. W. N. 1904 
P. 169=27 A. 84. 

5 Held that an entry in account 
books being an acknowledgement of a debt 
signed by the debtor and attested by 
witness was a bond and chargeable as such 
and not as acknowledgement § 2 (5) Stamp 
Act 35 P. B. 1903 = 101 P. L. -R. 1903. 

(zl) Staeiing point of Limitation. See 
L. A. §i&. 

{z2j Of Title. See L. A. § 19 26 M. 34 

ACQUIHSCENCE. 

(a) In adoptions. (In adoption by a co- 
widow)— .See Hindu Law. BHIMAPPA v. 
BASAWA 7 B. L. R. 405=29 C. 400. 

(b) In Alienations. 

1 Long silence in alienation or unequal 
distribution of property by a childless pro- 
prietor among heirs amounts to an ac- 
quiescence on the part of reversioners. Sea 
Custom Alienation 42 P. B. 1902=97 P. L. B. 
1902. 

2 Do. — Alienation was made in 1867 
and plaintiff's reversioners sued in 1891. 
See Custom Alienation 102 P. B. 1902=9 P. 
L. R. 1903. 

3 Alienation by sonless proprietor ac- 
quiescence. See Custom Alienation 97 P. L. R. 
1902. 

i. In alienation or gift by a sonless pro- 
prietor to a daughter. See Custom Alienation 
and Limitation Act Art 91—133 P. L. B. 1902. 

5. In Alienation by a widow, Assent of 
only reversioners. See Custom Alienation and 
Hindu Law. 83 P. L. B. 1905 = 1 P. B. 1905. 

(c) Arbitration reference to — Acquis- 
CENCE IN. See C. P. C. § 506. 

There can be no acquiescence to arbitra- 
tion by the parties, as that section requires a 
clear written application of the parties. 5 C. 
IF. lY. 268=28 C. 303. 



( 37 ) 



CIVIL DIGEST OP CASES 



( 



) 



AOIluieSCence {Contimied). 

H Bcference to arbitration by a ploador. 
His Client's knowledge of referenoa. See C. 
P. C. 506— i A. L. J. 312. 

d- By A Company. 

Agreement betwoen a company and direc- 
tors how far binding on the company. Scope 
of authority of companies' officers. Batifica- 
tion-acquisoouoo. See Contract Act §§ 6i — 
100 p. L. B. 1905 = 10 P, R. 1905. 

e. By pathek in an alienation how far 

BINniNO ON HIS SON. SON's RIGHT TO OBJECT. 
See Custom Alienation 66 P. L. B. 1905=7 P. 
R. 1905. 

t. By Guardian. 

Where the Government gave sanction to 
the Collector to manage the property of a 
minor, and intimated the Collector that on 
ascertainment of the debts owed by the 
minor's deceased falhev the plan for their li- 
quidation would be determined and the Collec- 
tor, without obtaining orders from the Govern- 
ment, executed a permanent lease of some 
11,000 acres of minor's land to the defendant: 
Held that the Government was the guardian 
of the minor and the Collector could not 
grant a permanent lease, and there was no 
acquiescence or ratification by the Govern- 
ment. The Government had delegated merely 
the management of the estate and had re- 
served the power to determine the best plan 
for liquidation of debts. That there can be no 
ratification by a person who at the time of 
ratification could not have done tho act 
himself, even though he had the power to do 
it when the original act unauthorised by him 
was done, for no one can supply an author- 
ity who does not possess it. 19 L. J. Ex. 15i. 
That full knowledge is essential to ratification 
13 M. and W. 834 (1897) 1 C. H. 313, 33 L. J, Ex. 
190. That the registration of the lease was 
compulsory and it was inadmissible in evi- 
dence for want of registration. That the 
Collector was not an administrator and did not 
purport to act as agent. The plaintiff (minor 
on attaining his majority) was not bound 
and could not ratify the transaction. That 
the plaintiff had not acquiesced in the tran- 
eaotion by his receipt of rent from the defen- 
dant. THAKORE PATEH SINGH JI DIP 
SINGH JI V BAMANJI ARDESHIR DAL- 

LAL.-5 B L E. 274=27 B- 615. 

g. By a Parda Nashin Hindu female. 
It is not the practice of the courts in 
India to press a presumption by acquiesc- 
ence against a parda nashin female in a rival 
claim, from the mere non-contestation for a 
limited time of an adverse title. EBRAHIM 
KAHIM BHOY v FALBAI-4 B- L- R. 180 
=26 B, 677- 

h. In Jurisdiction op Court. 

1 See C. P. C. §. 17 and 120—7 B. L. R. 
289. 

2 Do. C. P. C. § 17—36 P. B. 1902=22 P. 
L. R. 190a. 



Acquiescence (Continued).' 

3 Do. See C. P. C. § 17, 20, 57.-386 P. L. 
B. 1903 = 27 P. R. 1903. 

i. Laches — Waiver — Acquiescence— Evi- 
dence. 

Laches to operate as a bar to the plaintiff's 
suit must amount to waiver, abandonment, 
or acquiscence, and to raise the presumption 
of any of these, the evidence of conduct 
must bo plain and unambiguous. PIR M.\- 
HOMMED DIN JI v MAHOMMED EBRA- 

HiM-7 B L R 200=29 B- 234, Se» 

Specific Relief act § 22. 

j. In mispl.\cement op burden of proof 
Where misplacement of the onus has 
been acquiesced by the parties, the High Court 
would be very reluctant to interfere with 
the result, unless there were reasons to sup- 
pose that the error might have produced 
error in tho decision of the case on the 
merits. GANGA DAS JUMNA DAS v DAMA 
CHANGO-5 B. L. R 1903, P- 177- 

ll. Under a MisTiiKE of pact — See Estoppel 
GAURA CHANDRA GAJAPATI— (Ba/a o/ 
Parlikamadi) v THE SECRETARY OP 
STATE 1 G. L. J. 360=9 C. W. N. 553=32 I. 
A. 53 P. C.=2el M. 130. 

1. By a mohtqaoee. — 

1 By a mortgagee of a usufructuary 
mortgage, — Diminution of Security, Ac- 
quiescence, Interest, Rents and profit. — See 
Mortgage Acquiesence—B,X3A. PARTAB B.-V- 
HADUR SINGH v GAJADHAR BAKHSH 

SINGH 4 B. L- R. 845 F 0=7 C W- N 
1903, L C 

2 By a mortgagee in the loss of part 
security — See Mortgage acquiescence. 1 A. L. J. 
715 = A. W. N. 1907, P. 273=27 A. 313. 

3 Diminution of Security — claim by 
mortgagee to profits of the lost portion of 
his security, — See Mortgage acquiescence A. W. 
N. 1904 P. 273. 

4 Whether a question of law or fact. 
Acquiescence is not a question of fact but 

of a legal inference from the facts found, 
and upon it the iadgemeut of the Appellate 
Court is not final, 3 C. W. N. 502 = 21 A. 496, 
L. R. 26 I. A. 58 refer to, A. A. C.^SPERSZ v 
KIDAR NATH SARBADHIKARI, 6 C- W. 
N. 858- 

ni. Receipt of rent by landlords. 
The receipt of rent by landlord from tho 
alleged adopted son of an occupancy tenant 
does not amount to such an acquiescence as 
to preclude the Civil Court from trying the 
suit of the landlords for possession against 
the alleged adopted son of the occupancy 
tenskut.— See Limitation Act Art : llx HOSH- 
NAKI V LACHHMAN, 14 p. L- R 1902- 

Acquired Property 

Held that income and profits derived 



( 39 ) 



CIVIL DIGEST OF CASES 



( *0 ) 



Acquired Property (Continued).^ 

form ancestral property do not constitute 
ancestral property under Customnry Law 
i P. R. I'JOO follo\ved. MEHR KHAN r. 
KARM ILLAHI— 161P- L • E 1601 = 1S P- 

R- 1902. 
Acquisition 

a. AccaETiON — See supra 

b- Acquisition of domicile. 

Where a widow residing in the French 
Territory on her husband's death became an 
absolute owner of his property according to 
the Hindu Law prevailing there, and after 
that she migrated to British Territory: Held 
that acquisition of a British Indian domicile 
by her did not change the character of her 
estate, when it was not suggested that she 
had adopted the system of Law prevalent in 
British India. — See Hindu Laus, Widows 
i'stofp— MILATTIOE AWIR v SUBHABA- 
YA MUDALIAE— M- L- J- 1801 P SC9 = 24 

M. 650- 

C. Of equity or kedemptiok — See Mortgage 
Accession.— AJVVHIA I'EIiSHAD v MAN- 
Sli^GH, A. IF. N. 1902. r. 176=25 A. i6 

d. Of Lakd. 

1 By Government. 

Suit for money paid as compensation is 
not a land suit. See Jurisdiction, land suit. 
V. B. R. 1901, P. 1. 

2 Of land for public purposes — See 
Land acquisition Act 1 of 1894 §§ 17 & 48, M. 
L. J. 1904 P. 173. 

e. By a Moetgaqee. 

Acquisition by a mortgagor after the 
mortgage, enures for the benefit of the mort- 
gagee — See Mortgage Accession — AJL'LiHI.i- 
PBASAD SINOH v MAN SINGH A. W. N. 
1902 P. 174=25 A. 46. 

f. Of poetion of patni. 

Land Acquisitioti Act {I of 1S94) — Acgvi- 
rition of portion af putni — Abatement of rent 
— Division of ix'ni2'ensaticn. 

When a portion of a,jii:lni was acquired 
by Government under the Laud Acquistion 
Act— 

Held that as the land acquired by Govern- 
ment was absolutely lost to the pi'lnidtir, the 
I'-tter was entitled to abatement of rent at the 
hands of the Zcntiiiular, and he v.'as also enti- 
tled to some share of ',he compensation money. 

With regard to abatement of rent as the 
pross rental of the whole putni is to the gross 
rent of the land proposed to be taken, so will 
the entire ^ni/iii rent ba tc tlie jiarticular 
j'Ortion of the rent to be remitted, S. D. A. 
ISGO p. 336, followed. 

With regard to the amount of compensa- 
tion, as the gross profit of the putni is to the 
profits of the putnidar, bo will the gross 
compensation be to the portion of the 
compensation the patni lar is entitled to 
rtcover. 28 Cal. 146 folloived. BHOBAKI 



Acquired Property (Continued). 

NATH GHUOKEBBUTTY v. LAND ACQUI- 
SITION DEPUTY COLLECTUK OF BOGBA 
7 C W N- ISO- 

g. By ri'.KoOniPTioN. 

1 Acquisition of under proprietory rights 
by prescription — See Specific Uelief Act § 42, 
4 C 207- 

2 A right of trusteeship with power to 
Buocessors can be acquired by prescription 
See Adverse possession of Trusteeship with 
power to appoint successors, ANNA SAMI 
PILLAI V UAMA KISUNA MUDALIAH 2* 
M 219- 

ll. Op site AKD BtnLMKGS BY TENANTS — 

PAYMENT OF Haqe chaharum — Scc Landlord 
and tcjiant — Haqe chaharum by whom pay- 

able. A W. N 1903 p. 6- 
Actiouable Claim. 

1 1'ri.rcliase of property to which there 
are adverse claims is legal, but the purchase 
■merely for litigaiiou is illegal. 

P sued for possession on purchase from 
S, an alleged adopted son of T. The defen- 
dants, other than b, pleaded that the sale deed 
was a champertous transaction, without 
consideration and void its object being to 
disturb the jieace of the defendant's family 
and to promote gambling in litigation. The 
District Judge found that the purchase was 
speculative and without consideration, and 
executed mainly to harass the Defendants, 
the whole transaction was a speculation in 
litigation and not a bou4 fide purchase of an 
actionable claim and dismissed the suit. 

Held reversing the decision, even if the 
recital in the sale deed as to consideration is 
false and the transaction is of a highly specu- 
lative character it is not necessarily an 
offence against the law of champerty, im- 
moral or against public pjlicy. 

The question in sucL oases is whether the 
real ol j ct of the transaction is to acquire an 
iutoresi m property for the purchaser or mere- 
ly to speculate in litigation on the account 
either of the vendor aluae, or the vendor and 
the vei:dcc jointly. It is not illegal to pur- 
chase an interest in property, though adverse 
claims exist which neces.sitate litigation for 
realising the interest, but it is illegal to pur- 
chase an interest for the purpose of litigation. 
In other words the sale of an interest to 
which a right to sue is incident is good, 
but the sale of a mere right to sue is bad for 
champerty. The object of the law is not so 
much to prevent the purchase or assignment 
of a matter then in htigatiou as the 
purchase or assignment of a matter in liti- 
gation for the purpose of maintaining the 
action 8 M. 2 A. 170, 14 B. 72, 18 M. 374, 22 -M. 
aiO, 27 A. 270 referred to.— DEORAO GOPAL- 
Jl V SADASHEO,— 2 N- L- E- 17- 

2- Whether an executory contract comes 
U'ithin the meaning of actionable claim. — See 
T. P. A. § 3, 10 C. W. N. 755 = 33 C. 207. 



( -11 



CIVIL DIGEST OF CASES 



f 42 ) 



Actionable Claim (Continued) , 

3. Mo)i'in(ii', redemption, assignment of 
mortgaf.e. See 'T. P. A. § § WO, 131,135, See 
Mortgage Redemption.— JAWAHIB SINGH v 
PAKWANSINGH— 4 0- C. 210- 

4. Sale of a Share in a Law suit — Right 
of Pre-empt ion— VUAR KHAN v KHADIM 
HUSAIN— 9 0- C- 76- 

5. Transfer by a Hindu Reversioner of 
his '.nterestin inheritance is not the transfer of 
an actionable claim within the meaning of § 130 
T. P. O. .4 — MATA PRASAD v Mt. AUDAN 
KUWAR— 3. 0- C- 215. 

6. What is an actionable clain', explained 
See T. P. A. § 135 (d) AZIM ALI KHAN v. 
CHOWHARJA BAKHSH— 3 0- C- 18- 

7. Where a tenant was ejected, and the 
yalue of his standing crops was fixed by the 
Assistant Collector under § 95 Act 1-2 of 1881 
(N. W. P. Rent Act) and the tenant assigned 
his right to receive the sum to the plaintiff 
(assignee) who brought the suit to receive the 
amount assessed with interest in the Court of 
the Munsiff ; Held that the assignment of the 
right to receive the sum awarded was not an 
assignmeutof an actionable claim havingregard 
to the provisions of clause (d) § 135 T. P. A. 
and the defendants (landlords) were not 
entitled to be discharged by paying to the 
assignee the price and the incidental expenses 
of the sale of the claim with interest; that 
the assignee's remedy was by a suit in the 
Revenue Court but as the ol j.'ction to the 
Munsifi's jurisdiction was not taken in the 
Lower Courts it could not be entertained in 
the High Court (Act 12 of 1881 § 206). MATH- 
UBA DAS V MURLIDHAR— A- W- N- 1902 
p. 150-24 A 517- 

Actionable Wrong. 

1. Abusive language Is actionable without 
proof of damages. ih.B.R. 50 See Abusive 
Language Col 18 

2. Do. U. B. B. 1905 P. 1 See Abusive 
Language Col 19 See Torts. 

Action of Public servant ultra 
vires not binding on Government 

M. L. J. 1902 P. -132, See Agency. 

Action for recission of a Contract 

See Contract Act § 7S, 14 C. P. L. H. 57 

Action in Rem. 

Hee Admiralty Jurisdiction 6 C. W. N. 1902 
p. 773 = 29 C. 302. 

Action for Slander. 

See Abusive, language Cols 19 <f W it Torts. 

Active prosecution of a conten- 
tious Suit. 

Sec T. P. A. § ,52 Lispendeiis. J« C. 23. 



Act of Bankruptcy. {Condnued) 

See Insolvency G B. L. R. 296=28 B. 3r>i 

Act of God. 

See Vis— Major (Vis Major.) 

Act of State. 

1 Government and Government Officer,^. Smt 
against — Power of Government as to dismisacl, 
reduction, die, of public servant^ Act of 
State — Suit for libel — Privileged communica- 
tion—Civil Procedure Code {Act XIV of ISO'!), 
Section 424 — Notice. Object of — 

The object of such notices as that re- 
quired by section 424, Civil Procedure Co;lt), 
is to inform Government or the public ofli- 
cers concerned generally of the nature o£ 
the suit, which is intended to be filed 
against them. These notices mast not be too 
strictly or too narrowly construed. They 
must not be construed as if they were plead- 
ings; they need not set out all the details 
and facts of the case, which the plaintiS 
intends to prove, and the notice must bo 
considered sufficient, if it substantially ful- 
fils its object in informing the parties con- 
cerned generally of the nature of the suit 
intended to be filed. 

The Governor and Members of the Coun- 
cil are exempt from the jurisdiction of tha 
High Court, so far as their acts in public 
capacity are concerned. 

As no action will lie against the Go- 
vernor and the Members of his Council, 
none will lie against the Secretary of State. 

The Secretary of State can bo sued 
in respect of those matters for which the 
East India Company could have been sued. 
The East India Company could only have 
been sued in regard to those matters for 
which private individuals or trading cor- 
porations could have been sued, or in regard 
to those matters for which there was ex- 
press statutory provision. 

The Sovereign and his ministers and 
those who represent him have the right 
to employ and dismiss public servants at 
pleasure, ou public grounds. 

The power of the Crown to dismiss its 
public officers is necessarily limited by any 
statutory provision that may have been 
enacted for the benefit of such public ser- 
vants; it has no application to such of the 
servants of Government, as are not charged, 
with functions which are iu themselves the 
acts or the attributes of Sovereignty. 

A Hazur Deputy Collector in Bombay 
is liable to be dismissed at the pleasure of 
the 'Crown, or agents of the Crown, that 
is. the Government of Bombay. 

It is open to Government, by resolu- 
tion or otherwise, to censure or reprimand 
an officer. 

All communications between Ministers 
of Statj, with regard to public matters or 
public functions, and all expressions of opi- 
nion in the conduct of public duties by 
the officers of State, and all recoids and 



( 43 ) 



CIVIL DIGEST OF CASES 



( ii ) 



Act of State [Continued) 
tlocuments in which the opinions or orders 
of Public officers relating to other Public 
officers are contained, are absolutely privi- 
luced. They are privileged to such an extent 
that they cannot be compelled to be pro- 
duced, and that even if the defendant or 
any party, in whose possession that docu- 
ment uiaiy bo, ia willing to produce it, the 
Court ouflit not to notice it and ought not 
allow that document to be put in or pro- 
duced. If primd facie the document is pri- 
vileged, if primd facie it purports to be an 
official communication which would be pri- 
vileged, then no allegation of malice would 
be allowed and no proof of malice will take 
away the privilege. 

Any charge of libel against a public 
officer must fall, if it is contained in a 
d'joumeut which is privileged, because that 
document cannot be produced and so is 
iucapalile of being proved in a Court. JEHAN- 
(ili) Jl.VNAKJI CURSETJI v. THE'SEC- 
KKTARY OF STATE FOR INDIA 27- B- 

188 =5 Bom L R 30 

(3) Act op State 

(}ovirnment Sovereign — Gevernor and 
Memlier of his Council — Defamation in a 
Goii'inrnent Resolution — i Geo. IV. C. 11 — 
at. 2i. and. 22 Vic. C. 106— Act of State- 
Servant, power to dismiss — Civil Procedure 
Code (Act XIV of 1S82), Sections 416 and 
575. Suit against Oovemment — Notice — Croion, 
irretponsibility of, for the negligence of its 
servants- — Plaint — Cause of action, statement of 
— Privileged communication — Pablication — 

Evidence Act (2 of 1872). Sections 123 and 134 
— Master and servant — Wrong by servant — 
Course of service — Corporation — Principal and 
agent — Reference to a third Judge — Statutory 
body — Liability of the Croion. 

Per Batty, J. — No action can lie in this 
country against the Governor and Members 
oi his Council for acts done in their public 
capacity, but an action will lie against the 
Secretary of State for India in Council, al- 
though his liability can only be traced through 
the Governor and Members of his Council. 
The exemption conferred on the Governor and 
Council at Bombay by 4 Geo. IV. C. 71 is local 
and not absolute and does not affect any 
liability to suit on the part of the Secretary 
of State for India in Council, in respect of 
any acts of the Executive Government or 
Members thereof, for which the Esst India 
Company, then might have been, or the Sec- 
retary of State for India in Council now 
be, liable. 

The liability of the Secretary of State 
for India in Council to be sued is co-exten- 
sive with the liability to which the East 
India Company wassubiact at date of 21 and 
22. Vic. C 106.' 

Though the appointment or dismissal 
of a certain class of officers is among the 
functions of a Government and is not ex- 
crcisoable by private individuals as such, it 



Act Of State (Contimied) 
is a power which is exerciseable only in 
pursuance of an authority conferred and re- 
gulated by Municipal Law and deriving its 
justification therefrom and subject to limi- 
tations thereby imposed. It is a power not 
uufrequently conferred on some persons 
designatce by the Legislature. If the donee of 
the power acts within the powers conferred 
or is vested with final and exclusive dis- 
cretion the Courts cannot interfere with the 
exercise of that power or substitute its own 
discretion for that of the authority so em- 
powered. Yet the power is none the less oua 
which must be exorcised in conformity with 
the law and subject to all conditions which 
may have been imposed by the law, and if 
those conditions be not fulfilled or if those 
conditions be exceeded the j'lrisdiction of 
the Courts is not ousted. 

The test whether an Act ia or is not an 
Act of State excluding the j irisdiction of the 
Courts is not whether it is capable of being 
legally performed only by pei-sons specially 
empowered in that behalf as authorized by 
the law to perform specific acts of Govern- 
ment, but whether it is an Act of State in 
those external relations, which Municipal or 
positive law addressed by political superiors 
to political inferiors does not profess to regu- 
late. An Act of State in respect of which tha 
jurisdiction of the Courts is barred must ba 
an act which does not purport to be done un- 
der colour of a legal title at all, and which 
could neither assert or violate any right con- 
ferrible by law, but which must rest for ita 
jurisdiction on considerations of external 
politics and interstatal duties of rights. 

The power to dismiss a servant, which is 
exerciseable conditionally by all employers, 
does not extend to or include the right to 
publish statements of the principal's un- 
favourable opinion as to the dismissed agent's 
character. The publication of the censure, 
and not the making of it, furnishes a causa 
of action. 

Section 416 of the Civil Procedure Coda 
does not enlarge or in any way afieot the ex- 
tent of the claims or liabilities enforceable by 
or against the Secretary of State for India in 
Council, which must always depend on the 
provisions of 21 and 22 Vic. C. 106. It only 
provides a means of aflecting the revenues of 
India, in cases where these revenues could 
have been affected when in the hands of the 
East India Company. No power is given by 
that Section to Government, to bind or other- 
wise affect the revenues. It gives no cause of 
action but only declares the mode of pro- 
cedure when a cause of action has arisen. 

The doctrine, as to the irresponsibility of 
the Crown for the negligence or misconduct 
of its officers, does not apply in the case of the 
East India Company, which is liable fcr the 
acts of its servants in the same way as an or- 
dinary principal is liable for the acts of his 
agent- 

The plaintiff is bound by law to state b g 



( t& ) 



CIVIL DIGEST OF CASES 



Act of State (Continued) 
cause of action not only in the plaint but in 
the notice required by section 424 o£ the Civil 
Procedure Code. And where the pliintiS 
charges the publication of a libel by a UoTern- 
rncnt Resolution, which on the face of it pur- 
ports to be an official decument and a pri- 
vileged communication addressed only to 
specified officials, he is bound to allege in his 
plaint the publication on which he relies as 
giving him a cause o£ aotioa in respect of 
such a communication. 

It is clear that what determines whether 
a communication is privileged or not is the 
occasion on which and the circumstances in 
which it is made, and not the possibility of 
the persons receiving it making further com- 
munication to others in circumstances that 
would not be privileged. 

Even in the weakest form of qualified 
privilege, in order for an action for libel to be 
sustainable, actual malice must be alleged 
and proved. 

The privilege attaching to an official pub- 
lication is not absolute, but is subject to the 
condition that it is without malice actual, 
express and in fact. 

Where a printed Resolution issued by the 
Government of Bombay containing defama- 
tory matter about a Huzur Deputy Collector 
is circulated to the Commissioner, the Collec- 
tor, the Acoountant-General, the Secretary to 
the Government in the Judicial Department, 
and the Private Secretary to the Governor of 
Bombay, there is no excessive publication of 
it by reason of such communication. 

The question whether an official com- 
munication is privileged from production in 
evidence is distinct from the question whether 
it would, if produced, be privileged in respect 
of liability for libel. The first point is in In- 
dia governed not by English cases but by 
sections 123 and 124 of the Indian Evidence 
Act, the first of which excludes only unpub- 
lished official records relating to any affairs 
of State except with the permission of the 
head of the Department, while in the other 
ofBcial matters, the public officer claiming 
privilege may exercise his own discretion 
in giving or refusing disclosure. 

The master is answerable for every such 
wrong of the servant, or agent, as is committed 
in the course of the service and for the tjiastcr' s 
benefit, though no express command or privity 
of the master be proved. The expression 
"course of business or service" does not con- 
note mere continuity of employment or ser- 
vice, but continuity of purpose — the uninter- 
rupted progress of work to subserve the in- 
terest of the master. The word "course" has 
no reference to time, but to running on of 
■work, devoted to the master. Any deviation 
to other interests is an interruption of such 
course although it takes place in point of time 
in the middle of such work: it then ceases, 
though it be but momentarily, to be the work 
for the master. The crucial tost is not whe- 
ther the act is done duriu^ a time while Ite 



Act of State {Continued) 
servant is performing a duty for his ma.itor 
but whether it was done in the performance 
and for the purpose of performing that duty 
and for the master's interests and not the 
servant's purposes instead. 

If the agents, of a corporation, act in pur- 
suance of real or supposed powers in its be- 
half, the corporation is liable, for their acts. 
And even if the acts of the agents amount to 
implied malice or even express malice on 
behalf of, and in the interest of, the corpo- 
ration, the corporation is still liable. 

The ground of the principal's liability 
for the acts of his agent, must always rest on 
the very simple ground that he was not 
merely a causa sine qua non, of the ir.j jrious 
act of his agent, but the causa causand. 

For a principal to be liable for an 
agent's acts, it must always be necessary 
that to the question "What made the agent 
to do it" the only answer possible should 
be " He was doing the thing for his 
principal." 

Per Jacob J. — The Government of Bombay 
is not empowered (and the East India Com- 
pany, not being a Sovereign power, would 
not have been empowered) wrongfully and 
capriciously, to dismiss or to libellously cen- 
sure au officer, with immunity from liability 
to question in the Civil Courts. 

The Resolution issued by the Govern- 
ment of Bombay libellously censuring a 
public officer for his delinquencies is not 
an act of S'^ate, and has therefore no absolute 
privilege. 

The Governor of Bombay in Council and 
the Secretary of State for India«in Council 
in his statutory, capacity as transferee of 
the liability of the East India Company can- 
not be put on the same level wjth great 
officers of State, who cannot be sued because 
they are servants of the Crown. 

The principle of the liability of a^master 
for the wrongful acts of his servant is 
equally applicable whether tlio agency is for 
a corporation in a matter within the scope 
of the corporate powers or for an individual. 
And where a libel arises out of excoss^of censure 
by a servant, the act becomes one of au autho- 
rized class which becomes wrongful by reason 
of excess, and the master is liable for such act 
of his servant, since but for such excess it 
would have been clearly within the scope 
of the authority and the master would ba 
responsible for the manner in which the 
servant had discharged the duty entrusted to 
him, although he might not have authorised 
the particular act. 

Per Chandavarkar, J. — There is nothing in 
the language of section 575 of the Civil Pro- 
cedure Code, to fupport the view that the 
third Judge to whom reference is made 
under the section cannot sit and hoar the 
appeni alone. 

The notice under section 424 of the Civil 
Procedure Code should state tho relief which 
the plaintiti claims; it should be absolute 



( 47 ) 



CIVIL DTOEST OF CASES 



) 



Act of State (Continued) 
in terms and not conditional. 

Where the persoua comprising a statu- 
tory body, a3 the Government of Bombay, 
outstep the limits o£ their authority and 
commit a wrong, thoy are no longer the 
aoaut3 of the East India Company or o£ the 
c"ro\vn and their tortious acts do not bind 
either.-JAHANGIB M. CUBSETJI v SEC- 
EETARY OF STATE FOR INDIA— 6 B. 
li R. 133- 

3. Appeal to Frivy Co7mcil — Act of the 
Govcrnor-Qeneral of India in Council-— Act of 

SM^- ,.-.,, . , 

The petitioner applied for leave to appeal 
to Privy Council against an order of the 
Governor-General of India in Council remov- 
ing bim from the Government of the State 
of Pauna. 

Held, that the act was clearly a political 
act— an act of State— done by the Viceroy 
in Council in the interest of the State of 
Pauna, and the inhabitants of Panna, and 
for the peace and good Government of 
India generally, and the Privy Council were 
precluded from entertaining a petition for 
leave to appeal against an act of that 
character.— r»i re MAHARAJA MADHAVA 
SINGH.-6 BLR 763=8 C WN- 841= 
831 A 239P C. = 82C 1(P C) 

ACTS. 

I. Supreme Government Acts (i. e. 
Acts op the GovEnNOR-GENEBAL 
OP India in Coonoil). 
II. Bengal Government Acts. 
Ill, Bombay Government Acts. 
IV. Burma Acts. 
V. Central Provinces Acts. 
VI. Madras CiovEiiNMENT Acts. 
VII. North-Western Frontier Pro- 
vince Acts. 
VIII. North-Western Provinces Acts. 
IX. OuDH Acts. 
X. PuNj.^B Acts. 

I. Supreme Government Acts. 

(1) Act XXIV of 1839.-(-4» Act for 

the Ad:iiin.istralioii of Justice and collection of 
the llcvennv in certain parts of the Dislricis of 
C'injam and Vizigapatain.) 

1 XXXIV of 1S39.— Agency Rules, Nos. 
XX and XXXI.— 

This was an application presented 
bv theMahariji of Jeypur under Rule No. 
XX. of the Ageucy Rules praying the High 
Court to direct the Agent to the Governor 
at Vizagapatara to reveiw his judgment in 
a certain oppe.il reversing the decision of 
the Senior Assistimt Agent giving a decree 
in favour of the Mahar: ]■- for possession of 
ceitaiu villages, on the ground that ho was 
entitled to resume the villages as ths tfrmc, 
on which tht-y had been granted to the 
defendants, had bean violated. 

On behalf of the defendants two pre- 



ActS (Continued) 

liminary objections were raised: — (1) that 
the latter part of Rule No. XX, under 
which the application was made, was ultra 
vires; and (2) that even if it were not idtra 
vires the application should not have been 
presented to the High Court but to the 
Governor in Council under Rule No. 
XXXI. 

Held, that Rule No. XX was not ultra 
vires; and rule No. XXXI did not apply to 
this case.— 23 Mad., 329, refered to. MAHA- 
RAJA OP JEYPUR V. JAMMANADHORA. 
24 Mad. 345- 

2. Agency Rules for Oanjam and Vizaga- 
patam — Bide XXXI— Appeal against order in 
execution passed by the Agent— Decree. 

No provision is made in the Agency Rules 
for Ganjam and Vizagapatam for an appeal 
against an order in execution passed by the 
Agent. 

An order passed in execution under the 
Agency Rules is not a decree within the 
meaning of these rules. SRI SRI SRI 
VIKRAMADEO-MAHARAJULUM GABU v. 
SRI NELADEVI PATTAMADHADEVI 
GARU 26 M- 266. 

(2) Act XXIX Of 1839 (Dower Law 
Amendment Act) Section 4— Rule 20. Compro- 
mise by father. 

Held, that provision in rule 20 framed un- 
der Section i Act XXIX of 1839 to the effect 
that the finality of the agent's decision shall 
be suViect to the power of the Sader Court to 
direct the agent to review his decision on 
special grounds is not ultra vires. 

The High Court may pass order under rule 
20 on its own motion or on the application of 
parties. Such application may be made 
directly to the High Court. 

In the absence of fraud or any other 
ground invalidating it, a compromise of a 
disputed claim entered into by the father ia 
binding on the fomily. MAHARAJA OP 
JEYPUR V. JAYAKOTA. Mad. L. J., 1901. 
P. 70 

(3) Act XXXII of 1839 (^'^ ^ci con- 
cerning the allowance of Interest in certain 
cases). Seclio7i 2. 

1. Interekt— Compound interest-Unconscion- 
able agreement— Delay in riling smU- Pardah- 
nashm ladi/. Dealings with—Mortgage execut- 
ed by Pard'ahnashin ladies and their male re- 
latives. 

There is no authority for the rule that a 
bargain which in itself is not open to objec- 
tion as hard and unconscionable can be held 
to have assumed that character in conse- 
quence of the delay on the part of the crodi- 
t,.r in suing on the agreements comprising 
the bargain. • . u • i f 

It is not in every case in which the interest 
charged is very high that the Court will inter- 
fere when ti 6 debtors who contracted the 
loan were snijuris and there was no proof ot 



( 49 ) 



CIVIL DIGEST OP CASES 



( 50 ) 



Acts (Continued) 

unfair dealings. The cases of a female debtor 
in fiduciary relation to the creditor and of 
an expectant heir are exceptions to the gene- 
ral rule. 

The mere tact that a person is in urgent 
need of money is not sulficicnt in itself to 
raise the presumption that the persons to 
whom ho applies for the loan will take unfair 
advantage of his necessity. Undue influence 
or unfair dealing must be proved before such 
a prosumptiou can arise. U All., 228 disnented 
from, 21 11^. R; 352; 4 Cat., i:i7; 20 Cal., 3G6; 
2 K. B., 110; 1 B. L. B., (0. C.,) 31 Note; 7 Cal., 
245- s c, L.R., 8 I. A., 39; 2G Cal, 8'Jl, 918; 5 
W. 'n , Cal., 505; 12 C(d., 225; s. c, L. R. 12 I. 
A 215- L.R., WCh.. 380 referred to. UMESH 
cii.\NDRA KHASNAVIS v. GOLPA LAL 
MUSTAPI. 7C. W.N. 876 = 310 233. 

2. Interest — Policy of insurance — De- 
mand of insnrance money — Acceptance with- 
out prejudice to the claim for interest. 

In this case certain goods were con- 
signed by a firm iu Mauritius to plaintiffs 
in Bombay, in October 1890. The goods were 
covered by a policy of insurance, dated 
the I'Jth September 189G, olTeoted with the 
defendant Compauy for a sum of Rs. 4,911, 
The ship, with the goods on board, was 
totally lost. On 12th November 1890 the 
plaintiffs gave notice to the agents in 
Bombay of the defendant Insurance Com- 
pany of the loss, and demanded payment 
of the insurance money. On 17th Novem- 
ber 1890 the agents replied asking to be 
allowed to see the policy of insurance. 
On 5th January 1897 plaintiffs, by their 
solicitors, made a formal demand, and giv- 
ing notice that in default proceedings would 
be taken against the Company for re- 
covery thereof with costs. On 7th January 
1897 the agents replied, through their so- 
licitors, stating that " their principals deny 
their liability on the policy in question, 
on the ground (inter alia) that the ship 
(S. S. Taif) was not sea-worty when she 
sailed. " They also mentioned certain liti- 
gation pending at Mauritius, in which the 
question was being raised, "and (without 
prejudice) we should be glad to know whe- 
ther your client is prepared to allow his 
claim to stand over for the present to 
enable our clients to see if some arrange 
ment can be come to. " Plaintiffs' solicitors 
replied, on 2Cth January 1897, saying, " since 
your clients raise an issue as to the sea- 
worthiness of the vessel, the matter is one 
which is to be [sic in copy) settled in Court, 
and our client will now take proceedings. 
With reference to your suggestion to wait 
until the result of the suit or suits said 
to bo filed in the Mauritius is known, our 
client has no knowledge of such suit or 
suits, save what is derived from your letter 
under reply, and, even if he had, the result 
of such suit or suits cannot bind our 
client. " The correspondence then appar«ut- 



ActS (Continued) 

ly ceased for a while. Nearly two years 
afterwards, on 18th November 1898, plaintiffs' 
solicitors repealed their fonnal claim on 
defendants for the payment of the insur- 
ance money " with interest thereon from 
the date thereof " (apparently the date of 
the policy) " till Payment. " The agents 
wrote to the plaintiffs, stating they had 
received advice to pay the amount of the 
policy, and ou 25th May 1901 they wrote 
that they had received advice from their 
head office " that they do not sou their 
way to pay interest on your claim. " Plain- 
tiffs' solicitors made the following proposal. 
" With a view, however, not to lengthen 
the correspondence our client will accept 
the sum of Rs. 4,914 (insurance money) now 
offered by you on account of his claim and 
without prejudice to his right to recover 
the interest thereon as claimed. " The plain- 
tiffs were offered the insurance money which 
was accepted, and discharge receipt given 
with the condition — " exclusive of interest 
which I claim, but which claim the Union 
Marine Insurance Co., Ld., dispute, and 
without prejudice to any right to recover 
such interest." The litigation in the Mau- 
ritius was finally concluded on 2nd March 
1901, when the Privy Council found that 
♦he sea-worthiness of the vo-.scl had not been 
proved, and judgment was entered f jr the 
plaintiffs in the case for the sum assured, 
and damages iu the nature of interest at 
4 per cent, pjr annum from 21st Decem- 
ber 1890 until payment. 

On the 2nd September 1901 the presoni; 
plaintiffs filed a suit in Bombay Court of 
Small Causes, to recover interest from the 
date when payment of the insurance money 
became due, «!?, 12th November 1896, up 
to the date, when the amount was actually 
paid, vis., 7th June 1901. This claim was 
rejected by Court for want of jurisdiction. 
The present suit was filed on 11th Decem- 
ber 1901. The defendants contended that 
the plaintiffs' claim was barred by limita- 
tion, and the plantiffs had no right of 
suit in respect of interest claimed. 

Held, that interest could not ho allowed 
before notice of the claim was made. With 
reference to the period subsequent to tho 
demind, which was on 18th November 1898, 
tho matter was withiu the discretion of 
tlie Court, and there was no bar to the 
plaintiffs" right of suit in rospeot of interest 
from the date of demand to the date of 
receipt, 7tli June 1901. AHMED r. UNION 
MA.RINE INSURANCE COY. 4 B- L- R. 

205- 

8. Interest on rent — Oudh Rent Act (XXII 
of 18S6), Sections 12 and HI— Contract Act 
(IX of 1872,) Section 73— Intend Act (XXXII 
of lil39) - Landlord ajid Tenant — Bent — Com- 
promise — Under-proprietor. Liability of, for 
interest. 

There is nothing in the Oudh Rent 



( M ) 



CIVIL DIGfiST OF CASES 



( 52 



Acts {ConUnued) 

Act or in Medhi All K'lan v. Tasin Khan 

(3 C. W. N., 2 IS, s. c, go I. A., 41 P. C.) 

xvhieli excludes any liability for payment 
of interest which the undor-proprietor might 
be under, apart from the Act. 

Interest on arrears of rent cannot be 
claimed under section 73 of the Contract 
Act by a Talukdar from an under-proprietor 
holding land under a compromise-decree 
when the compromise and the decree did not 
fix any date for payment of rent. 

In such a case interest could not bo 
claimed under Act XXXII of 1839 for no 
time was fixed for payment of rent. 

And section 12 of the Oudh Rent Act 
was not applicable to such a case, for the 
provisions of an Act could not apply to a 
compromise entered into previous to the 
passing of the Act. (THAKUR) GANESH 
B\KH3H f.(THAKUR) HARIHAR BAKHSH 

8 W. N. Cal, 521 (P C) = 6 Bom L 
K., 505 (P C.)=7 O.C. 116=M. L J. 1904 
p. 190 (P. C.) = 26 A 299 (P. C). 

4. Interest Act XX of lS39—Eaks— 
Sitkhadi and Rcjyi — Notification of Bombay 
Government— Act XXXH of 1839— Interest. 

The liaks of Sukhdi and Rejgi do not 
fall within the purview of the notificatiou 
issued by the Government of Bombay on 
the 11th June, 1841, issued under Act XX 
of 18:39 ; and they, therefore, are not af- 
fected by the Act. 

Interest prior to the institution of the 
fiuit cannot be given, under Act XXXII 
of 1839, unless a demand of payment has 
been made in writing ; and it can not be 
pivcn in the shape of damages. PEZ.4LI 
GULAMALI V. MAHOMED SADIK MIYA. 
7- B. Ii R.798- 

(5) Interest on arrears of rent. 

Held that the arrears of rent due from 
an under proprietor are not liable to inter- 
est under § 141 Oudh Rent Act 1881, but 
these arrears might be charged with interest 
under Act XXXII of 1839, if the condi- 
tions, specified under that .\ct. ai-e satisfac- 
torv. RAJA MUHAMMAD ALI KHAN f MU- 
II.UIMAD YASIKKHAN 1 Q- C- 267 

(6) Interest on arrears of rent. 

Under-proprietors whose beneficial inter- 
est has been transferred by an official act 
to persons who thereby lieeome possessors 
of the whole maJial are not liable to pay 
rent to the Taluqdar for such time as theV 
are out of possession. They arc, moreover, not 
liable to pay interest on arrears of rent «lue 
from them, for propiietors are not tenants 
within tlie mciuing of 5 141 Oudh Rent Act 
ol 1S36. MUHAMMAD MAHDI ALI KH\X 
r. Ml HA:iI.MaLi YASIN KHAN 26 I A- 11 

= 3 C W N 218 = 26 C 523=2 C 233- 

See Int. rest 

7. IiUcrtst Act (XXXII of lS39)—Con- 



ActS (Continued) 

tract Act (IX of 1S72) — Debtor withholding pay- 
ment — Interest — Hindu law. 

Neither the Interest Act nor the Indian 
Contract Act aflects the rule of Hindu law 
that, in the case o' a debt wrongfully with- 
held, after demand of payment has been 
made, interest becomes payable from the 
date of demand by way of damages. That 
law was in force, when the Interest Act was 
pafsed, and, under that Act, it has contin- 
ued to be in force. The Indian Contract 
Act has not interfered with it. S.\UND.\- 
NAPPA ANDANAPPA v. SHIVBASAWA 

AMINGOWDA, 9 Bom. L. R. 439- 

(4) Act XIX of 1841. (An Act for pro- 
tection of property against wrongful possession 
in cases of siiccessiotis). 

1. Act XIX of ISll Sections 1, 3, 4—Inles- 
tatt's property— Jurisdiction of Judge — Review 
— Rectification of mistake by successor of Judge 
who passed the order — Revision. 

Before the procedure provided by Act 
XIX of 18il can be set in motion the title 
and bona fides of the applicant must be 
2Jrima facie clear, it must be manifest that 
the party complained of had no lawful title 
to possession and if the applicant were re- 
ferred to a regular suit, he would he a 
serious sufferer, as by the risk, of waste or 
misappropriation or by bis inability to pro- 
secute his rights when out of possession. 

When it appeared that before issuing 
citation under Act XIX of 1841 the Judge 
did not satisfy himself that the person in 
possession had no lawful title and the per- 
son applying was in danger of being in- 
jured by delay and his successor after record- 
ing evidence did not consider it right to 
disturb possession and passed order accord- 
ingly. 

Held, that the order was not open to 
objection. (6 W. R. 63 & 7 P. R. 1904 Ref. to) 
RAJJI v. LAL CHAND. 188 P- E- 1906- 

2. Act XIX of ISil, Ss. &—S, -Jurisdiction- 
Procedure. 

The District Judge upon an application 
filed under Act XIX of 1841 called upon the 
Collector under section 8 of the Act lo sub- 
mit a report on the case. On the Collector 
recommending that action be taken under 
the Act the District Judge directed the 
party complained against to be cited but 
before the date fixed for the hearing of the 
case — appointed a person i-ocommended by 
the Collector as curator to take possession 
of the estate. 

Held by the Chief Justice— That the 
District Judge was not competent to pro- 
ceed on the mere report of the Collector. 
The Judge should have bimieli exercised a 
j dicial discretion before making use of the 
.-.uramary powers conferred by the Act. The 
word 'shall' in section .3 is not directory 
but mendatory and tbo order passed by 
the District Judge without adopting the 
procedure laid down in section 3 was with- 



( 53 ) 



CIVIL DIGEST OP CASES 



( 5i ) 



Acts {Continued) 

out jurisdiction. If not without j irisdio- 
tion tho Judge acted witb material irregu- 
larity. 

Held by Subrahmania J. — That whore- 
as in the case of property other than land 
paying revenue to Government, the Judge 
must, in order to determine whether a party 
is to be cited or a curator is to be appoint- 
ed, . satisfy himself by an enquiry under 
sectiou 3, in the case of land paying re- 
venue to Government for the determination 
of the propriety of citing the party or ap- 
pointing a curator, the Judge need not make 
any enquiry, but may make the Collector's 
report the basis of his action. 

Held by Shepherd J.— That tho District 
Judge had not acted without jurisdiction 
by reason of his omission to comply with 
the terms of Section 3 of the Act. But ho 
had acted with material irregularity in pas- 
sing his order without adopting the course 
prescribed in section 3. Section 8 cannot 
bo read as containing an alternative state- 
ment of the course to be pursued in the 
cases therein moutioned so that tho Judge 
can properly dispense with tho examina- 
tion of witnesses and act upon the report 
of the Collector only. KRISHNaSWAMY 
PANNIKONDAR v. MUTHU KRISHNA 

PANNIKONDAB. Mad. L- J-, 1901, P- 78- 
F B 

3. S. IS — Original jurisdiction vested in 
District Judge in Berar — High Court, competent 
to revise proceedings of the District Judge. 

The original jurisdiction under tho Act 
now vests in Berar, in the District Judge. 
The words 'Sudfler Diwaui Adawlut' in the 
Act signify a High Court in British India, 
and 'The Judicial Commissioner of Berar' 
was duly invested with the powers given 
by the Act to a High Court in British In- 
dia. (See S. 4 (3) of the Hyderabad As- 
signed Districts Courts Law, 1889). The en 
tire jurisdiction of the Judicial Commis- 
sioner of Berar has been trausfeifed to tho 
Court of the Judicial Commissioner at Nag- 
pur, by S. 3 (1) Berar Courts Law 1905. 

The High Court can not revise tho pro- 
ceedings of the District Court under tho 
Act, except as expressly provided by that 
Act. Though S. 622 of the Civil Procedure 
Code has been modified in its application 
to Berar so as to remove tho restrictions 
which have been placed by that section up- 
on the revisional juri^:diction of the High 
Courts in British India, yet the revision 
can only bo in ta os where it is not ex- 
pressly forbidden by some other enactment. 
The order which S. 18 of the Act declares 
to be final is intended to be a legal order, 
and so a totally illegal order would always 
b-3 sui j ct to the High Court's revision. But 
where the District Court has exercised its 
power log-.illy under the Act, then, how- 
ever erroneous its procedure, or unj ist or 
improper its order might be, tb.; High 



Acts (Coyitinued) 

Court has no power of revision. 

The Act is only to be used where es- 
coptional grounds for prompt action are 
necessary to guard against misappropriation, 
waste, or neglect of the deceased persons' 
estate.^. KHAJA KUTBUDDIN v. KHAJA 
FAIZUDDIN, 2 N- L- E 72- 

4- This Act is not ai^plicable to Mitakshara 
joint Hindu familij. 

Where a momber of a joint Mitakshara 
Hindu family died leaving a widow, a 
daughter and two brothers; and the brothers 
applied under Act XIX of 1841 for an 
order declaring their title to the pro- 
p3rty and also for possession and the D.s- 
trict Judge granted their application; held 
on widow's revision application that Act 
XIX of 1841 does not apply to a Hindu 
family governed by tho Mitakshara Law, 
whereby the surviving members of a j int 
family take the deceased's property by survi- 
vorship and not by succession and the D. J. 
had no jurisdiction in tho case and he 
should have loft tho parties to establish 
their title bv a regular suit. Held also that 
tho D. J. acted illegally and with material 
irregularity and the High Court had full 
jurisdiction in Revision to reverse his order. 
6. W. R. 53 followed and 4. C. W. N. 1900 
and 10 M. G8 referred to. SATOKOER v GO- 
PAL SAHU-12 C W N 65=34 C 929 

5 Act XIX of 18i3 (Uegisl ration) 

§ 2.— See Uegistration Act § 50—3 A.D.J. 
320= A. W. N. 1906 P. 113=28 A. 607. 

6 Act XI of 1846.— (.4(1 Act exemptinf 
certain tcrritorg in the Province of Khandah 
from the operation of the general Regulations). 

Act XI of lSi6, Sectio7i 3— Bale 3.5 of 
the Rules promulgated in 18,55. — Reference 
in a criminal case to the Higli, Court from the 
Scheduled Districts. 

In this case the Agent to His Excellency 
the Governor in Khandosh submitted for 
tho confirmation of the High Court of 
Bombay his proceedings in which he had 
convicted the prisoner of murder in the 
Mehwashi Estate of Kathi, and sentenced 
him to transportation for life. 

Held, that the High Court had j irisdic- 
tion to hear and determine the reference. — 
IMPERATRERI v R.\TNYA.— 25 Bom., 667 

7. Act XX of 1847 (Indian Copy Right 
Act) 

Sections 3, 6 — Press and Registration of 
Boo'cs Act (XSV of 1367;, Section 18 -Expung- 
ing entry from the Catalopiz of books kept in 
Bombay — Jurisdiction of High Court of Calcut- 
ta — '21 and 25 Vic'oria C. 104, Sectimi 9— Ac- 
quiring of copyright in British India t)y foreig- 
ner residing abroa i. 

By section 6 of Act XX of 1847, the only 
Court having jurisdiction to deal with the 
Register of Copyrights for the purpose of vary- 



( 55 ) 



CIVIL DIGEST OP CASES 



{ 56 ) 



Acts {Continued) 

iug or expunging an entry was the Supreme 
Court iu Calcutta. It liad, therefore, juris- 
diction 0Vi,r the book of Kegibtjry wherever it 
happened to be kept. 

By section 9 of 21 and 25 Vic. C. 104, the 
High Court of Calcutta took over all the 
powers of the Supreme Court including the 
powers which the Supreme Court exercised 
absolutely in respect of any Copyright Regis- 
ter. 

Held, that the High Court, therefore, has 
jurisdiction to order the expunging of an 
entry iu the Catalogue of books kept in Bom- 
bay under section 18 of Act XXV of 1867. 
ISMAIL BIN SHAIKH BADAL v. ALI- 
BHOY SABAP ALL 1 C. L. J. 278 = 
9 C W. N. 591- (On appeal from this case 
see No. (2) next. 

(2) Sections 6, li-Printing Presses and News- 
papers Act (XXV of 1867), Section 18— Book of 
Bcgisti-y — Catalogue of Books — Application to 
have a name expunged from such catalogue — 
Assignee of proprietor of copyright — Infringe- 
ment of Copyright — Supreme Court of Calcutta. 
Jurisdiction of — High Court of Calcutta. Juris- 
dictio:i of — High Court of Bombay. Vesting of 
jurisdiction In — Judge of the Original Side. 
Power of. to try the case — Charter Act ("24 and 
25 Vict. Cap. 104), Sections 9, 13, U—Tjetters 
patent. Section 36 — Person aggrieved. Meaning 
of — Affidavit evidence if proper — Summary 
proceeding. 

Section 18 of Act XXV of 1867 has not 
ousted the jurisdiction of the Supreme Court 
of Calcutta specially vested in it by section 6 
of Act XX of 1847 to entertain an application 
to have the name of a person who has got his 
name registered in the Catalogue of Books at 
Bombay iu fraud of the applicant's rights' 
under the provisions of the Act, expunged 
from such Catalogue; nor has it vested such 
jurisdiction in the High Court of Bombay. 

A Judge of the High Court appointed by 
the Chief Justice of the Court under section 
14 of the Charter Act (24 and 25 Victoria Cap. 
104) to take the work of the Original Side of 
the Court, has, having regard to sections 9, 
13 and 14 of that Act, and to section 36 of the 
Letters Patent, j irisdiction to try the case. 

A proprictoi of the Copyright of books is 
a person aggrieved within the meaning of 
section C of Act XX of 1847 when he finds 
that another person has got his name regis- 
tered iu the Catalogue of Books at Bombay in 
fra.ud of his rights. 

The summary proceeding mentioned in 
section 14 of Act XX of 1847 means the sum- 
mary proceeding mentioned in section 6 of 
the Act. A proprietor of the Copyright of 
books, whose name has not been entered in 
the Book of Registry at the office of the Sec- 
retary of the Home Department of India at 
the time the proceeding is commenced, is 
precluded by section 14 of the Act from main- 
taiuing an application to have the name of 
a persou expunged from the Catalogue of 



Acts (Continued) 

Books at Bombay, the proceeding being one 

in respect of an infringement. 

I'er Sale, J. — The high Court in its Origi- 
nal Jurisdiction is the successor in the direct 
lino of descent of the Supreme Court and all 
the powers and functions of the Supreme 
Court uow fall to be exercised by the Judge 
or Judges of the High Court who ai-e appoint- 
ed by the Chief Justice to exercise the Origi- 
nal Jurisdiction of the Court. ABDOOLLA 
BHAY SARAPALLI v. ISMAIL. 2 C Ii j 

511 = 10 W. N., Cal , 134, 33 C 571 

3. Section 14^ Act (XXV of 1867)— Copy- 
right— No copyright in unregistered publica- 
tions. 

In the case of a book which has been 
published there is no right to sue on account 
of piracy, except when the copyright has been 
registered, and subsists under statutory pro- 
visions. The effect of the proviso to section 
14 of Act XX of 1847 is to protect copyright iu 
unpublished works as also copyright where 
there is registry under the statute in the case 
of published works inclusive of cases in which 
there ha.s been registry before the suit, though 
after the infringement complained of. 17 
Cnl., 951 distinguished. SABAPATHY 
IMUDALIAR V. SEETHARAMIAH, 99 M. 

292- 

4. Section 18— See No. (3) Supra 

8. Act 1848 — (Indian Insolvent debtors 
Relief Act.) 

1. § 7 Vesting order, withdrawal of peti- 
tion. Reversion of property. 

When a petition is filed in insolvency, a 
vesting order is made in the official assignee's 
favour and the insolvent's property vests in 
him. The ac'jidication of a man to be insol- 
vent has the same effect On the withdrawal 
of the petition for insolvency, the vesting 
order determines and must be taken to be 
annulled: and the property of the insolvent 
vests in him.— MACLEOD v. HAJI SAJAN 
LALJl-9 B L R. 1006- 

2- § 7. Thelenefitof an executory con- 
tract can vest in official assignee, as it is 
an actionable claim under § 8. T. P. A. and 
a such property as would vest in the Offi- 
cial assignee under § 7. of the Indian Insol- 
vencv Act. JAPPER MEHER 4LI v 
BUDGE BUDGE JUTE MILLS & Co. 11 C. 

W W 566-34 C. 289. 

(1! liuii teas a case on appeal from 10 C.W. 
N. 755 = 33 C. r02.) 

3- §§ la and 49.—% 49 is not directory but 
merely permissive, and after a vesting order 
has been made and the schedule filed, the 
Court can under § 245 B. C. P. C. direct execu- 
tion against the per':on of the defendant by 
his arrest and imprl:,onmeut iu oases of fraud 
or misconduct. EHASKAR W.A^L^N RA- 
NADErSRIDHAR KRISHNA KOTHAULE 

-9 B L. R. 898. 



( 57 ) 



CIVIL DIGEST OF CASES 



( 58 



Acts {Conliviicd) 

4. Act 1848 — (Indian Insolvent Debtoi's 
Ilelirf Act) Insolvency — Indian Insolvency Act, 
184li — ai>j)cal from order refusing benefit of — 
ap2>iieation by appellatit for protection from 
arrest — section IS, 73 — Loicer Burma Courts 
Act, 19UU, § 8— Civil Procedure Code, §§ 5^5, 
c3i), nr, 4,. 

Applicaut had filed an appeal against 
the Older of the learned Judge on the Origi- 
nal Side of the Chief Court, dismissing his 
petition for the hencfit of the Act for the Re- 
lief of Iusoh'oi>t Debtors. He applied for an 
order of i)rotection from arrest during the 
hearing of the appeal. 

Ueld — after examination of the law applica- 
ble, that such an order could not be granted. 

Agabob, F., in re-3 L. B- K- 1906 P- 

241. 

(5) Insolvent Debtor — comiiosition with 
creditors — unchcduled debt— liability of nego- 
cited promiisory note— fraud— bar to suit — In- 
dian Insolvency Act, ISiS. 

A was aoj idicated an insolvent, and en- 
tered into a composition deed with certain of 
his creditors, which was to operate, on com- 
pliance with its terms, as effectually as an 
order of final discharge under the Indian in- 
solvency Act, in respect of the debts due to 
the assenting creditors. The amount due to 
each was shown in a schedule to the deed. 

B, one of those creditors, subsequently sued 
A for a sum due on two promissory notes 
made in favour of A by C, and negociatcd by 
A with B. The amount due on these notes 
had not been included as due to B in the 
schedule to the composition deed or brought 
to the notice of the other creditors. 

Held, — that B was therefore debarred from 
suing A for the amount. Britten v. Hughes, 
C182y) 5 Bingham, 4G0; followed. Puyler v. 
Homershan, (1815) 5 Maule and Selwyu, 423; 
referred to. M. N. N. RAMAN CHETTY 
1-. ABDUL KAULK and others. 4 L. B. R. 
1907 P. 101 

6. §§ 36, 37, 47, 50, 60— The whole object 
of the Act imiilies that the insolvent must 
place all the property he has in the hands 
of the Cjurt for being collected and distri- 
buted a nougst his creditors, and that he 
mi st re ider every assistance to unable the 
Court aud tlic oflicial assignee to realize the 
prop. ry. Whore the applicant only informs 
the Cjurt in his schedulj that he has certain 
debts due to LIlu but does nothing more, 
held that the Court is justified in adj lurniug 
the hearing until the p.ppUoaut h .s taken 
the necessary steps before the benefit of the 
Act can be extended to him. 

The vesting order vests in the official 
assignee all the property which the insolvent 
possesses or is entitled to when the order is 
made, but also all property which be may 
thereafter become entitle to until he obtains 
a certificate of final discharge either under 
Section 50 or CO of the Act. Therefore the 



Acts (Coiitiiiucd) 

official assignee is entitled to receive the whole 
salary which the insolvent was at the time 
of the order earning or might there iftjr 
earn until ho obtains the certificate of dis- 
charge. The Court can, however, under § 47 
make a reasonable allowaaco for the appli- 
cant's maintenance until final order. 
MAUNG CHIT U. y. OFFICIAL ASSIGNEE 

L. B. P.. 1900-02 p. 249. 

9. Act XVIII of 1850 -{Judicial Offi- 
cers' I'rohclioK Act.) 

1. Judicial Officers' Protection Act 
(XVIII of 1850), — Judicial officers — Act done 
in discharge of duty — Protection afforded as a 
matter of pid>lic policy — Jurisdiction — Civil 
Procedure Code (Act XIV of 1882), Section 
liOi — Judgement 

To secure the protection of Act XVIII 
of 1850, the defendant must show — 

i. That the act complained of was done 
or ordered by him in the discharge of his 
judicial duty, aud (ii) that it was witliin 
tlio limit.! of his jurisdiction, or if not with- 
in those limits, that he, at the time in good 
faith believed lilmself to have jurisdiction 
to do or order the acts complained of. 

Jurisdiction mentioned above rests, not 
on the proof adduced in sujiport of the 
charge, but on the nature of the charge 
actually made. 

The protection afforded to judicial officers 
rests on public policy. And thought hereby 
a malicious Judge or Magistrate may gain 
a protection designed not for him but in 
the public interest, it happily does not 
follow that he can exercise his malice with 
impunity. His conduct can be investigated 
elsew here and due punishment awarded. 

A judgement was written by a Judge 
after he was transferred frojn 1;ho District 
and it was pronounced by his successor. 

Held, that section 191) of the Civil 
Procedure Code, 1882, afforded a compleia 
answer to the objection that the jadgem;nt 
was illegal. 

Per Jenkins, C. 7.—" We earnestly hope 
that those judicial officers whose official 
movements miy leave them open to this 
charge (that is of wilfully compelling the 
defendant to follow the movements of his 
camp) will strive to esercise their powers 
with such consideration for those who 
appear before them as will secure them 
from any imputation of misconduct in this 
respect." GIK-TASHANKAH. NARSIRAM v. 
GOPALJI GULABBHAI, ^ B- L- E. 951. 

=30 B 241 

2. Cicil Procedure Code {Act XIV of 
1SS2), Section 5SS— Tort — Tort committed by 
Gocei-nm-nt scrcant-Goeernment, LUihility of 
—Provincial Small Cause Courts Act {IX of 
18S7) Schedule II, Exceptions 1 and 3— Second 
appeal — Gocernmcnt. Suit against. — 

In cases of torts commited by Govern- 
ment officials the person to be sued is the 
person who has actuallv dune ths alleged 



( 59 ) 



CIVIL DIGEST OF CASES 



( 60 ) 



Acts {Continued) 

wrongful act, wbo may or may not liave a 

statutory or other defence. 

The' plaintiffs sued Government for re- 
covery of money alleged to have been 
wioiigfully made over by a Magistrate pur- 
porting to act under the provisions of 
section 577 of the Cirminal Procedure 
Code. 

Hiid, that the Government was not 
liable, for the Magistrate was in sucb a 
jiosition that, for all practical purposes, 
the Goverument had no control over him, 
it did not cause the act complained^ of, 
did not authorise or adopt it, and gained 
no profit from it. 4 Mad., 34ti ; 17 Cal., 290 
referred to. 

That the suit was cognizable by a Small 
Cause Court; and its value being less than 
Ks 500, second appeal did not lie. MOTI 
L\L GHOSE V. SECRETARY OP STATE 
FOB INDIA. 1. C- L. J. 855=9 C- W. N- 
495- 

3. CivU Procedure Code {Act XIV of 1882), 
Section 220 — Costs— Discretion. 

The fact that the defendant is protect- 
ed under the provisions of Act XVIII of 
1850 does not take away the discretion of 
the Court under section 220 of the Civil 
rrooedure Code as to the award of costs. 
G\NESH MAHADEV v. NARAYAN BAL- 

SHET. 4B. L.R 109- 

4. Daviages for plaintiff ' s property having 
been wrongly attached as that of the accused 
wilder Section 88; Criminal Procedure Code 
— Liability of Secretary of State and the cmn- 
plainant—Act XVIII of 1850. 

The plaintiff brought this suit against 
(1) the Secretary of State for India in Coun- 
cil; (2) Messrs. Ralli Brothers; and (3) B. 
P. R. Chowdhry for recovery of certain im- 
movable property aud mesne profits, on the 
allegations that the property in dispute 
belonged to the plaintiff; that defendant 
No. 2, Messrs. Ralli Brothers, having in- 
stituted criminal proceedings against defen- 
dant No. 3, B. P. B. Chowdhry, and the 
accused not having appeared, the property 
in dispute was, on the 1st of July, 1895, 
attached, at the instance of defendants No. 
2, under Section 88 of the Code of Crimi- 
nal Procedure, as the property of the ac- 
cused ; that the plaintiff was thereby dls- 
j)o-osessed of the property in dispute which 
remained in the possession of the servants 
of defendant No. 1, the Secretai-y ofS'ate; 
and that notwithstanding that the plain- 
tiff served defendant No. 1 with a notice 
under Section 424 of the Code of Civil Pro- 
cedure before bringing the suit, the property 
in dispute was not released. 

Held, that the defendant No. 1 could 
not be made liabls for mesne profits and 
damages for any period preceding the date 
on which the property, if it had been pro- 
perty of the absconding offender, would have 
eome to be at the disposal of Government 



Acts {Continved) 

under Section 88 of the Code of Criminal 
Procedure ; the Officers of Government were 
protected by Act XVIII of ]850, the attach- 
ment being an act of the magistrate in the 
discharge of judicial duty and no want of 
good faith being imputed to the Magistrate 
or to the Police-officers who acted under 
his orders. But the defendant No. 1 must 
be held liable for mesne profits and dama- 
ges in respect of the period subsequent to 
the date when the property, if rightly at- 
tached, would have come to be at the dis- 
posal of the Government under Section 88 
of the Criminal Procedure Code. 

Held, also, that the defendants No. 2 
were liable for damages as they, as private 
prosecutors through legal aud other agents, 
did cause the attachment to be effected. — 12 
W. R., 339, referred to. THE SECRETARY 
OF STATE.FOR INDIAN IN COUNCIL v. 
GAGATMOHINI DASSI. 28 Cal. 540. 

10. Act XXI of 1850 (Caste Disabilities 
Removal Act.) 

1. Object and Meaning of the Act — 
See Act X of 1S65. -Mrs. EDITH SUSAN 
JIUKERJI V. Mrs. GEORGE ALFRED and 
others 52 P. W. B. 1907 

2 Guardians and Wards Act (VIII o/1890;, 
Section 17 (2) — Hindu Law—Ouardian and 
Ward — Mother preferable guardian of her 
daughter than paternal grand-father — Act XXI 
of 1850, Section 1 Excommunication from 
caste — No disqualification. 

A Hindu mother is a preferable guardian 
of her infant daughter than paternal grand- 
father. The fact that the mother lias been 
outcasted does not stand in the way of her 
being appointed as guardian by Court.^ 
KAULESRA v. JORAI KASAUNDHAN,— 

A W N- 1905 P 205=2 A L J 663=28 
A 233 

3 Hindu Law — Adoption — Boy given iri 
adoption by his uncle under the atithority of his 
father converted to Muhammadanism. 

Held, that an adoption among Rajputs 
is not invalid under Hindu Law because 
the boy is given under the authority of his 
father converted to Mahomadanism by his 
uncle. Adoption may be regarded as a civil 
transaction as well as a religious ceremoni- 
al. If civilly the father is competent to give 
he is equally competent to sanction the 
giving. The Court observed " were the parties 
here Brahmins, and not Rajputs, and datta 
liom essential then possibly the father after 
becoming a MubammaJan could not sanc- 
tion his brother to be present at the giving 
during the datta horn, but the point does not 
arise here." 8 Bom. H. C. R., 244; 24 Bom. 89, 
referred to. SHAJI SINGH OMRAY SINGH 

V. SANTABAI.-3 BOM- L- R P 89=25 B. 
551. 

4. Effect of conversion or change. of reli- 
gion before the passing of Act XXI ol 1850, 



( 61 ) 



CIVIL DIGEST OF CASES 



( 62 ) 



Acts (Continued) 

Sec Hindu Law Conversion, GOBIND KRI- 
SHNA NARAIN V. KHUNNI LAL 4 A- L 

J. 365 = A. W Jf 1907 P 151=29 A. 487 

5 A Hiudu daughter converted to Mo- 
hammadism and marrying a Mohamraadan 
during the life of her Hindu husband, has 
110 right of inheritance to her Hindu father. 
See Hindu Law Inhn-itance, SUNDARI LE- 
TANI I'. PITAMCARl LETANI, 2 C L. J. 

97=9C.W N 1003 

6 Muhammadan Convert's right to con- 
test alienatio7i by his Hindzi Collateral (See 
Custom Punjab 77 P. W. B. 1007, (Jiwan r. 
Harnani Dass) 

(11) Act XII Of 18S5 {Legal Representa- 
tivi's Suits Ads) Tort — Malicious prosecution — 
Suit for damages not to proceed against repire- 
sentatives of deceased u- rang doer— Act XIl of 
1855, section 1, clause 2 — Abatement of suit. 

Clause 2 of Section 1 of Act XII of 1855 
does not apply to an action commenced 
against the defendant in his life time, but 
only to actions commenced against the exe- 
cutors, administrators or other representa- 
tives of a deceased wrong doer. Therefore a 
suit, brought against a wrong doer during his 
life time, will abate on his death. 

13 Bom., &T1 followed, 31 Cat., 406 referred 
to. RAMCHODE DOSS r.RUKMANY BHOY. 
28 Va. 487. 

(12) Act XIII of 1855 (Fatal, accidents 
Act) Limitation Act (XV of 1877), Sections 7, 8, 
Schedule 11, Art 21 — Tort — Death caused bij 
wrongful act — Suit by deceased's representatives 
for compensation — Limitation — Joint claim- 
ants. Meaning of — Some of the beneficiaries 
being minors. Effect of — 

The relations of a person whose death 
was caused by the wrongful act of another 
could not, prior to the enactment of Act XIII 
of 1865, claim compensation on account of 
the death. Such a right to claim compensa- 
tion was conferred by Act XIII of 1855. 

It is not correct to say that the term 
" representatives " as used in section 1 of Act 
XIII of 1855 has no application to Europeans 
and Eurasians, nor is it correct to say that it 
includes all the "heirs" of the deceased. 

It means and includes all or any one of 
the persons for whose benefit a suit under 
the Act can be maintained. 

Only one suit is allowed to enforce the 
claims of all the persons beneficially entitled 
and in such suit the right of eacli and every 
one of them shall be adjudged and adj isted 
by the Court. Such suit may be brouyht by 
the executor or administrator of the deceas- 
ed, or where there is none such or where such 
executor or adminstrator fails or is unwilling 
to sue, the suit may be brought by and in the 
name of the representatives of the deceased. 

The right of the beneficiaries to compen- 
Bation is a right distinct in each so that the 



Acts {Continued) 

beneficiaries are not entitled to clainl com- 
pensation jointly but are entitled to claim re- 
lief severally in respect of the same cause of 
action. 

Where of several beneficiaries entitled to 
claim compensation under Act XIII of 1855 
some are under no disability while others are 
the latter will not ba entitled to claim the 
benefit of section 7 of the Limitation Act for 
tliey are neither " joint creditors" nor " j^int 
claimants" within the meaning of section 8 
of the Act. A suit brought by poi-sons under 
disability under sucli circumstances will 
therefore be barred if brought more than one 
year after the accrual of the cause of action. 

The term "joint claimants" in section 8 
of the limitation Act is used with reference 
to persons whose substantive right is joint or 
who possess the same identical substantive 
right. The expression does not compreliand 
persons whose riglits are distinct and diifor- 
ent. JOHN v. THE MADRAS RAILWAY 
COMPANY. 15 M. L. J., 1905. p. 383 = 
28 M. 479. 

(12a) Act XXVIII of 1855 {Usury 
Laws Repeal Act (XX VIII of Itioj). Evidence 
Act {1 of 1872) S. 92, 2>rov. 2. 

Certain Hundis upon which a suit was 
brought were silent as to interest. But it was 
proved that according to the custom of the 
district the parties had entered into a colla- 
teral written agreement, that the hundis 
should bear interest at 30 per cent, per 
annum. 

Hcid— That S. 80 of the Negotiable Instru- 
ments Act was an enabling section, and did 
not bar the recovery of interest at the rate. 
GOSWAMI SRI GHANSHIAM LALJI. v 
RAM NARAIN, H C- W- N- 105 (P- C ) 

=4A 1 J 29=9 Bom. L R I=IMLT- 
427=17 ML J. 35 = 5 CL J- 7=29 A 33 

13. Act XXVIII of 1855- (Usury 
Laws Repeal Act). 

Interest Act {XXVIH of 1*3.5;, Section 2— 
Exorbitant rate when not allowable. 

The mere fact of the rate of interest 
being exorbitant is not sufficient to entitle 
the debtor to exemption from liability. 

Where the terms of a contract are so 
extortionate as to involve the conclusion 
that the party did not understand what 
he was about or was the victim of severe 
imposition, such a contract is not enforced 
by Courts of Justice. SATISH CHUNDER 
GIBI V. HEM CHUNDER MOOKHOPAD- 
H.AY. 29 C- 823. 

14. Act XV of 1856. (Sindu Wi- 
dow Remarriage Act). 

1. Re-Marriage of Hindu-Widows Act 
(XV of 1856) Section 2— Hindu, widow — 
Second marriage — Property left by son from 
former husband — Succession to such property. 

Held, that a Hindu widow who con- 
tracted second marriage after the death of 



( C3 ) 



CIVIL DIGEST OF CASES 



( ei ) 



Acts (Coti'iniicd) 

lier fornii^r husband is entitlad to sueoeod 
to the property left by her son from her 
former husband, the sou having died after 
her contracting the second marriage. 11 W. 
li. 5-2 followed. BASAPPA 6i)^ FAKIPAPPA 
r. RAYAVA kom BASAPPA. S. C, 6 Bom 

L E...779 (F- B)=29 B 91 

2. Act XV of lS5ti Section S— Effect of re- 
viarriacje on the rights of a llindu widow. 

A Hindu widow is net piciladod by re- 
marriage from inheriting the property left 
by hsr son from her first husband. CH.^- 
JIAR HARU HALMEL v. KASHI. 4 Bom 

L.R 73=26 B 883- 

3. Act XVrof 1856 (Widmi' Marriage) 
Marriage between a Khatri and a Khat- 

rani «;«rfo(«— chadar andazi — Legitimacy of 
issue-inheritance. 

The plaintifis, being the collaterals of 
a deeeas:;d Khatri, c'a'.med his estate against 
the defendants, whom they alleged to be 
the illegitimate sous of the deceased as 
tieir mother was a widow at the time of 
her allowed marriage with the deceased, and 
that no legal marriage had been contracted 
Le'weeu her and the deceased. It was 
found that the defendant's mother was a 
Kluitrani widow and that a marriage by 
the chadar andazi form (which prevailed 
in the tract of the country in which the 
parties resided) was gone through by the par- 
ties. Hdd, the marriage was, apart from the 
custom, legal and valid under Act XV of 
1856, and the defendants, as the offspring 
of such marriage, were legally entitled to 
inherit their deceased father's estate. 49 
P. E. 1903 mowed.) NATHU v. RAM DAS. 

4 p. R 1905=20 p. L R- 1905- 

4. Karewa between a khatri and khatrani 
toidote, status of issjie — Cotictibine or dharel 
Jias no legal status. 

Held, that a karewa marriage between a 
Khatri and a Khatrani widow is valid under 
S. 1 of Act XV of 185G and the issue of such 
marriage is legitimate and capable of in- 
heriting property. Held, also, that a woman, 
who accepts the position of a mere concu- 
bine or dharel, acquires thereby no legal 
status as a \\'ile.—(Ui P. li. 19G3 and i P. E. 
1903 followed 22 P. E, 1SS9 and 46 P. E. 1H91 
(F. B.) rcfd. to.) NARAIN DASS v. GUJAR 

JIAL-61P- E- 1905- 

5. Marriage — A Khatri KtiTia Silk married 
a Tartchani Jut woman — Act XV of 1S56, 
Hindu Law. 

Held, that, according to custom, the 
marriage of a Khatri KuJia Sikh with a 
2'arJ.hcni or Jat woman in Karciea form is 
not invalid, and the offspring of such union 
are not illegitimate:— (r. /?. 73 of 1897 ref. to) 
KANJIT £IKGH V. ISA 15 p. L- R- ISO?- 

6- Wido^o r»-viarriage — Forfeiture of in- 



AotS (Continued) 

terest in the estate of first husband — Widow 
remarriage Act (XV of W56), Section 2 — Trans- 
ferees from a xierson not entitled to transfer. 
Eight of — Hindu Law. 

A Hindu widow, belonging to Kasodhan 
caste, in which there is no obstacle by law 
or custom against thj re-marriage of widows, 
does not by marrying again forfeit her 
interest in the property left by her first hus- 
band— 11 All.-iiO; A. W.N., 1S89 p. 78; 20 
All., 476 followed. 

G. died leaving a mother K and a widow 
T who remarried. T transferred his rights 
to the plaiutilis and K to some of the 
defendants who, in order to pay up the debt 
of G, mortgaged the property to other defen- 
dants. 

Held, that T did not forfeit her right 
on account of ro-marriage. 

Held, further, that the plaintiff was not 
bound by the arrangement entered into by 
defendants, although the money was borrow- 
ed to pay up tr's debt. The defendants were 
not interested in paying G's debts when they 
purchased from K and could not burden ths 
estate by a mortgage. KHUDDU v. D"JRGA 

PRASAD,-W- K ALL 1803P 299=S A- L- 
J- 729=29 A 122. 

7 Hindu Widowi,' Ee-marriage Act (XV of 
1856), Section 2, 5 — Hindu widow — Ee-marri- 
age — Eight to succeed to son by first Uusbani 
dying siibseguenl to re marriage. 

A Hindu widow who re-marries during 
the life-time of his son by first husband is 
entitled to succeed on his son's death to the 
estate left by him. 2 B. L. E. 199 followed. 
LAKSHMANA SASAMALLO i'. SIVA SASA- 
MALLAYANl, 15 M- L J-, 1905, P- 245 = 
28 M- 425- 

8 Hindu Z-ait'^Widow marriage Act XV 
of 1856. 

The Hindu Widow Marriage Act XV 
of 1836 applies to all widows, including 
those widows who, apart from the Act, 
would be able to re-marry, — 2 B. L. E. A. C. 
J. 199, 5 C. P. L. E. So and 26 B. 388 cited 
and followed, 22 B. 321, 9 C. P. L. E. 47, 11. 
A. 330, 22 a. 589, 11 B. 119, 130, 19 C. 289, 
1 M. 223, 11 A. 2j2 and It C. 176 referred to 
SADHU GOUR v. Ml. PATANGO.— 16 C- P- 

L R 1903 P- 99- 

15 Act XXV of 1858 (CouH of Wardi 
Act) — See Bengal Court of IVards Act IX of 
1S79 5 lO—See Act XXXV of 1S58 §§ 9, 10 and 
11—29 C- 638- 

16 Act XXXI of 1853.— (Act for settle- 
ment o'. LinJ giiined by Alluvion in Ben- 
gal Presidcucy) 

See Alluvion and diluvion — 7- C- W N- 

193 = 5 B L- R- 1-SO C 291 (?- C ) 

17 Act XXXV of 1858-(^'"«"'ics Es- 
tates Act.) 



( C5 ) 



CIVIL DIGEST OP CASES 



( 66 ) 



Acts {Continued) 

1. §§ H and 23 Sea infra No. (13) 
Cla. ) Ss 3, 22—meanitii) of "relative" in 
S- a I iqniry into the lunacy, who could 
apply — Order by DisUict Judge appeal, 

Tlic applicant iu this case admitted in 
his application that be was no relative o£ 
Rahman whom he alleged to be a lunatic, 
and there was no allegation that the appli- 
cant possossed any other status such as was 
described in S. 3 o£ the Act. The applicant 
was, therefore, held not competent to apply 
to the District Judge to make an enquiry in- 
to the alleged lunacy of Hahman. The con- 
tention that the aiiplioaut and the alleged 
lunatic were members of the same tribe, and 
that the term "relative" in S. 3 was wide 
enough to include such cases was over ruled. 
It was held that a member of the same tribe 
is not a 'relative' within the meaning of S. 3. 
Held also, that an appoj,! from the order 
of the District Judge, iu this case, lay to 
the Chief Court as the value of the proper- 
ty involved exceeded Rs. 5000, (32 P. E. lSd7 
refd. (J.— MUHAM.MAD YAR v. ILAHI 

BUKSH-94 p. K 1906- 

2 Ss. 3, 9 and 10, application — Duty of 
Court to eng^uiretohcther lunatic has property. 
Previous to the Court's taking action 
on an application under the Act, it is neces- 
sary that the Court should be satisfied that 
the alleged lunatic has property. But on 
the mere denial, by coantor-petitioner of 
the possession of any property by the lu- 
natic, the Court is not jusntied in summi- 
rily dismissing the petition. In such a case, 
it must proceed to enquire whether or not 
the lunatic has property and whether fur- 
ther action is necessary and then take or 
atop further action as it may think fit. — 
LAKSHMI AMMAL v. SEKRANGA THA- 

MALL. 29 M- 810- 

3. § 5 Medical expert's report inadmissible 
in evidence. 

In proceedings under the Lunatics Es- 
tates Act XXXV of 1858 a report or cartifi- 
cate of a Medical practitioner, who is not 
called as a witness, embodying th» opinion 
of such Medical practitioner as to an alleged 
lunatic's mental capacity, and given in the 
course of or for the purposes of such pro- 
ceedings, is not admissible in evidence eitner 
under § 5 of the above Act or under § 32 (;') 
of the Indian Evidence Act. MOHAMMAD 
YAD ALI V. Mt. AMIRUN NISA.— 7 0- C- 

S54- 

4 Lunacy Act (XXXV of 1858;, Section 9. 
It is incumbent upon a District Judge 
to appoint a manager to take charge of the 
state oi a lunatic. The mother of the luna- 
tic ma}' be appointed as manager if she be a 
fit and proper persou. A lunatic should not 
be forced to go to a lunatic asylum when he 
is well taken care of by his own people at 
home. JOG A KOER, In «.— 3 0- C- 973- 



Acts {Continued) 

5 §§9 and 10 See 29 M. 310 Supra. No. (3) 

6 Court of Wards Act {Bengal Act IX of 
1879;, Section 10— Act XXXV of 1858, Sections 
9, 10, and 11. 

The Judicial Commissioner of.'Chota Nag- 
pur considering it would be for thej interests 
of the state of a certain jacjirdar, who was 
adjadicated a luniHc under .\ct XXXV of 
1868, authorised the Court of Wards to take 
charge of the management of the estate and 
of the person of the jaijirdar. On appeal it 
was contended that the properties of the lu- 
natic not being properties paying revenue to 
Government, the Judicial Commissioner had 
no jurisdiction to appoint the Court of Wards 
the gardian of the person and the property of 
the lunatic. 

Held, that the authority of the Court of 
Wards to take ujion itself the management 
of the property of a lunatic was not depen- 
dent on the nature of the property, and not 
restricted to property which is subject to the 
payment of Government rsvenue. MUKL'ND 
KOERI r. DEPUTI COMMISSIONER OP 
CHOTANAGPUR.— 29 C- 638- 

7. hunacy (District Courts) Act(XXXV of 
1858), §. 14 — Agreement for sale of properly of 
hinatic not sanctioned by Civil Court— Earnest 
■money jyaid prematurely. 

The guardian of a lunatic entered into 
negotiations for the sale of some immovable 
property belonging to the lunatic. The 
would-be vendee paid to the guardian Rs. 500 
as earnest mon«y and Rs. 05 for the pur- 
chase of a stamp for the conveyance, and 
further drew from his banking account Rs- 
9,000 to complete the purchass. The sale, 
however, was not sanctioned by the Civil 
Court, as required by section 14 of the Lu- 
naoy (District Courts Act 1858). Held, that 
the would-bo vendee was entitled to a refund 
of Ss- 595 with interest from the date when 
he had demanded the return of that sum 
from the guardian of the lunatic, but to 
nothing further. RAMDIN v. IKRAM-UD- 

DIN.-A W N- 1906 p. 298=8 All L J , 



8 Lunacy {District Courts) Act XXXV of 
ItiUS, Scciiuns 21, 22 and 23 — Lunatic — U71- 
iouiidness of mind. Degrees of — Management of 
affairs Incapability of — N. W. P. Court of 
Wards Act {111 of ISyj, Local ), Section 8 (d) 
{i) — Medical evidence. 

The Additional District Judge found on 
inquiry that one S. was of unsound mind and 
incapable of managing his afiairs and passed 
orders under the jirovisious of Act No. XXXV 
of 1858 for the proper care of the lunatic and 
his estate. Brother of S., representing that 
the unsoundness of mind of S. had coased- 
presented an aiiplication to set aside the or, 
dor. The apiilication was rejected. The evi- 
di-uce of the Civil Surgeon v.as as follows: — 
"I did not find any evidence of insanity. I 



( 67 ) 



CIVIL DIGEST OP CASES 



( 6S ) 



Acts {Continued) 

believe him to be of sound mind. 

On appeal to the High Court. 

I-Ield, that the case was possibly one 
■which might be dealt with by the Local 
Government under section 8 clause (d) (i) 
o£ the Court of Wards Act, but the S. 
being of sound mind, the appeal must be 
accepted. A person may be incapable of 
managing his affairs in a prudent manner, 
but unless this incapacity is due to unsound- 
ness of mind, it does not justify a Civil 
Court in taking action under Act No. XXXV 
of IS.'iS. DOST MUHAMMAD KHAN v. 
ASHRAP ALL A. W. N. 1905 P. 8- 

9 Lunacy Act (XXXV of ISSSj Section 
S3 — Lunacy — Evidence. 

The brother of B. applied that B. be- 
ing a lunatic a guardian of his person and 
effects ought to be appointed. The only ex- 
pert evidence of a Civil Surgeon with regard 
to the alleged lunacy was to the effect 
that " B's mental condition is, in my 
opiuion not up to the average of his class 
iu life. His mind is not deranged. He is 
in a condition of imbecility resembling the 
mental condition of a child. In my opi- 
nion he has not sufficient mental capacity 
to enable him to manage a large property." 

Keld, that upon the above evidence it 
was wrong to declare that R. was a luna- 
tic and to appoint a guardian of his per- 
son and property. BAMESHWAB TIWARI 
V. NAGESHAB TIWABI. A- W- N- 1905 

P 43=2 A L J 154 

10 Lunacy Act (XXX7 of ISJS). Sec- 
tion 23--Lunatic. 

It is necessary for the Court to adjudge 
a person to be a lunatic within the meaning 
of section 23 of Act XXXV of 1858 before an 
order can be passed as to the management 
of his property and for the guardianship of 
his person. The Court cannot proceed upon 
an admission made by a person who is sup- 
posed to be a lunatic, though it would be 
i istified in examining him personally. It 
must come to a decision upon evidence. 
NAGESHWAR PROSAD SINGH v. RUDRA 
I'ROKASH SINGH. 31 C- 210- 

11. Svit by an alleged lunatic not so ad- 
judged through his neat friend — Act XXXV 
of 1658. 

A person of unsound mind sued through 
his next friend. The defence was that the 
suit through the next friend was not compe- 
tent, since plaintiff had not been adi idged 
a lunatic, under Act XXXV of 1858. Held, 
that a Civil Court can allow a person after 
pscertaiuiug him to be of unsound mind, 
to sue through a next friend even though 
he has not been adjudged to bo a lunatic 
under the Act. Civil Courts have power, iu 
Fuits brought by, or against, unadjuged lu- 
natics, to enquiiG into the fact of the un- 
ppvndnpss of mind of the party and order 



Supreme Govt. A,Ct8 (Continued) 
the appointment of a next friend or guardian 
as the case may be. 20 A. 2, 23, B. 653, 2i. M. 
504, 7. C. 2i2 and 10. Ch. D. 183 follomed. [91 
P- 111837 lit^fd- to: 13 P. R. 1S96 Dissented 
/row.— JANBAiJ. JOGA.— 54P. L- E- 1905 = 

31 p. K 1905- 

12 § 23 <* 2— Lunatic defined — Weakness 
of intellect and unsoundness of mind — Court of 
Wards Act (IX of 1879), § 6 els. {c) and (d). 

A lunatic, within the meaning of § 23 
of the Act, must be incapable of managing 
his own affairs, and must aho be of unsound 
mind. 24 W. R. 124 refd. to and approved. 
Mere weakness of intellect is not unsound- 
ness of mind within the meaning of that 
section. 

Where, a person is found to be only of 
a weak intellect, the Civil Court cannot pro- 
ceed under this Act, although the person 
may, from such weakness of intellect, be in- 
capable of managing his own affairs. 

It is open to the petitioners in such a 
ease to move the Court of Wards under Act 
IX of 1879 (B.C.). MAZAHABUDDIN- 
KHAN V. SEB.iJUDDIN KHAN,— 4 C- L. J- 
115. 

13 Lunatic's right to sue through next 
friend Sec—C. P. C. § Jfl3— SHEVE THE v. 
THA KADO 3 L- B- K- 169- 

18 Act XXI of ISGO— (Literary Scien- 
tific and Charitable Societies Registration Act). 

Act XXI of 18G0 Section 20— Charitable 
Society — Religious society. 

A religious purpose may be a oharitahle 
purpose within the meaning of Act XXI of 
1860, and a society for religious purposes 
would therefere be a society for charitable 
purposes. Charitable purposes are not restrict- 
ed to the giving of alms or other charitable 
reliefs. A society established for the purpose 
of obtaining possession of the jiroperty of a pub- 
lic mosque and to Jl/anage it for the mosque 
may be registered under Act XXI of 1860. — 
ANJUMAN ISLAMIA OP MUTTBA v. NA- 

SIB-UD-DIN.-W- N.. ALL-, 1906 P- 59; 3 
ALL. L- J. 124=28 A 384- 

19 Act XX of 1863 Religious Endow- 

1. Act XX of 1S63, § 3, 7, 14, 18, Endow- 
ments under Regulation XIX of 1810 — Removal 
of trustees for misconduct 

Act XX of 1863 relieves the Boards of 
Revenue and Local Agents from the duties 
imposed on them by Reg. XIX of ISIO, and 
S. 3 of the Act require.s that the provisions 
of the regulations specified in the preamble 
to that Act should b» applicable to the en- 
dowment which is the subj 'ct of the suit, 
and that the nomination ^.f trustees, etc., 
should either be vested in or bo exercisable 
by the Government at the time of the pass- 
ing of the Act. 

Where it was admittsd that, iu 1864, the 



( G9 ) 



CIVIL DIGEST OF CASES 



( 70 ) 



Supreme Govt. Acts {Continued) 

L'lcal Govorum»nt appoiutod a Committee of 
three momliera under § 7 o! the Act, for a 
religious endowment at Cuttuck: Held that 
Buch appointment clearly indicated that 
that endowment was under the management 
of the Board ol Hevenue before the passing 
of the Act o( IRCrJ, and that this fact was 
EufTioient to characteriso it as a pulilic endow- 
ment and ua one falling within the opera- 
tions of this Act— fA- W. li. 313 followed.) 

Hold also that all endowments effected 
by Beg. XIX of 1810, whether they came 
under the Board of Uevonue or not, fell within 
the purview of Act XX of 18G3,— iS A. 227, 
' 6, B. L. R. 55, 7 C. 767 rcfd. to, 26 M, 166 
folloiced). 

For this Act, it it immaterial whether 
the office of the trustee or manager is here- 
ditary or not, and, in either OBse, a trustee 
or manager, who misconducts himself and 
acts contrary to the object of the endow- 
ment, can bo dealt with under the provisions 
of this Act (3 JVf. ia7 followed.) Where the 
Court finds that a trustee was guilty of mis- 
conduct in the management of the endow- 
ment, it can order hira to execute a bond with 
sureties, to ensure better management for 
the future, (14. M. 103 followed) MAHOM- 
MED ATIIAR v. BAJMAN KHAN— 34 C-— 
687- 

2. Religious Endowments Act (XX of 1863), 
Section 3, 4, — Durga — Trustee. Mesconduct of 
— Disviissal by Committee — Resumption of iuam 
j ighir by Government — Money allowance stibsti- 
luted for inam jaghir. Effect of — 

The managing committee of a religious 
institution to whom the institution was han- 
ded over dismissed the plaintiff, the trustee 
of the iiistitutiou, for misconduct and appoint- 
ed anothar per,sou as his successor. The 
plaintiff brought a suit to sot aside the ord«r, 
contending, i>t,tcr alia that as the institution 
fell under section 4 of Act XX of 18G3, the 
Committee had no jurisdiction to dismiss 
him. 

The lower Court dismissed the suit on 
the ground that the plaintiff bad been al- 
ready punished for his misconduct by Go- 
vernmsnt having resumed possession of th« 
inam laud and substituted a money pay- 
ment. 

Held, that the fact of Government resum- 
ing possession of the inam laud and sub- 
Btitutiug a money allowance, was in no ssnse 
a punishment of the plaintiff. It was a pre- 
cautionary measure to render malversation 
more difHcult. The Government was in fact 
not competent to remove him from office or 
punish him for misconduct. 

Held, also, that as the institution fell 
under section 3 of the Act, and the plaintiff 
was guilty of gross misconduct, the Com- 
mittee were justified in removing him from 
office and the suit was properly dismissed. — 
MAHOMMAD ABDULLA SAHIB v. GU- 
tAM HUSAIN SAHIB,— GULAM HUSAIN 



Supreme Govt. Act (Continued) 

SAHIB I.. MVHOMMAD KADIR SAHIB,— 

15 M. L. J. 26- 

3 Religious Endowments Act (XX of 18G3;, 
Section 5 — Appointment of Manager by Civil 
Court — Revision— Civil Procedure Code (Act 
XIV of 1882;, Section 622. 

Under Section 622 of the Civil Procedure 
Code the High Court has power to revise an 
order appointing a manager under Section 5 
of the Religious Endowments Act. 

Before the jurisdiction under Section 5 
can be exercised it is necessary that there 
should ho vacancy in the office. If there is no 
vacancy there is no occasion to appoint a 
temparary manager. It is also necessary that 
there should have been a transfer to the 
former trustee and a dispute respecting the 
right of succession to the office. The words 
'any dispute shall arise respecting the right 
of succession' apply to a casein which a 
question has arisen with reference to the 
person who has to succeed to the office. A. L. 
V.GOPaLv AYYAR V A. ARUNACHaL- 
LAM CHETTY,— 26 M- 85- 

4 Religious Endowments Act (XX of 1863), 
Sections 5 and li — Receiver. Power of Citil 
Court to appoint — Civil Procedure Code (Act 
XIV of 1882), Sections 32. 375, 539 and 582— 
Parties— Power of Appellate Court\lo add parties 

Certain worshippers of a temple applied to 
the High Court to be added as respoudents'. 
on an appeal to that Court in a case under 
the Religious Endowments Act, on the 
ground that the parties to the appeal had 
colluded together and entered into a compro- 
mise and that the public interests would not 
be duly protected unless such parties were 
added. 

Held, that the case fell within the wide 
language of section 32 coupled with section 
5S2 of the Civil Procedure Code. Even i{ 
that were not so, section 32 was not exhaus- 
tive. In cases like the present, the Court has, 
for the ends of justice inherent powers to add 
such parties as may be necessary to enable 
it to adjudicate fairly and properly on the 
matters before it. 

Held, also, that a Civil Court has no 
power to appoint a Receiver in a suit framed 
under the Religious Endowments Act of 1863, 
though a manager can be appointed under 
the circumstances mentioned in section 5 of 
the Act. If the plaintiff wishes to have the 
Receiver appointed and to have the trust pro- 
perty administered under the directions of 
the Court he should proceed under section 539 
of the Civil Procedure Code. GYANAN.\ND.\ 
ASBAM V. KRISTO CHANDR i MaKHEBJI, 

8 C W- N 404. 

5 Religious Endowmctits Act (XX of 1863), 
Section 1. Rules under — Rule 19 — Election of 
member — Disqualification of candidate — Bribery. 

To warrant a candidate being declared 
disijualifled within the moaning of Rule 19 



( 71 ) 



CIVIL DIGEST OF CASES 



( 72 ) 



Supreme Govt. Acts {Continued) 

of the Rules framed by ".Governmcut under 
section 7 of Act XX of 18G3 it must clearly 
appear that moiipy or other valuable consi- 
deration was gi\"T9u in return for votes, in 
other words that such consideration passed as 
the result of a bargain. G H. L. 0., 746. 

Where the caudilate admitted that he 
had spent fts- 2,000 or more in connection 
with the election and that he kept no accounts 
of such expenditure and he staled that "the 
sum spent by mef or the expenses of myself 
and my friends and canvassers in touring 
about the circle was about Rs- 600 and the 

cost of bringing my voters to (the place 

of voting,) train fare, cart hire, &c., was about 
its- 1.500." 

Held, that the payment to the voters un- 
der the circumstances could hardly be treated 
as otherwise than in return for the votes. — 
N. KRISHNASWAMl IYENGAR v. SIVA- 

swaMI udaY.^R,— 15 M- LJ- 449=29 M- 
166. 

6. Ueligioxts Endotoments Act (XX of 1S63), 
Section 16— Reference to arbitration by District 
Court — Drawing up scheme for management 
of temple. 

Held, that under section 16 of the Be- 
ligious Endowments act of 1863, it was open 
to the Judge to refer to an arbitrator any 
matter in diflercuco in the suit for decision, 
but it was not open to him to refer the 
whole suit for decision to an arbitrator, 
as he had done in this case. 

The High Court set aside the scheme which 
the arbitrator had drawn up for the manage- 
ment of the temple as being beyond the 
l)c wers even of the District Judge. KAREDLA 
VIJAYARAGHAVA PEBUMALAVVA v. 

(sitaeamayya; vemavarapu. 12. M- 
L. J., 1902, P 401=^26 M- 861 

7. Bcligious Endowments Act\(XX of 1863), 
Sections 16 — Reference to arbitration by District 
Court — Civil Procedure Code (Act XI7 of 
18S2), Section 522 — Award Finality of— 

When the question, whether the trustee 
of the temple should be removed, as prayed 
for in the plaint, was referred to an ar- 
bitrator by District Court under section 16 
of the Religious Endowments Act, and a 
decree was passed in the terms of the award 
given by the arbitrator — 

Held, that no appeal lay against the decree, 
and that the District Court was competent 
to refer the question to arbitration. — 19 Mad., 
498 ,foUoioed. NAMBI AIYANGAR v. YAJ- 
^fARAYAN SOMAYAJIAL. 12. M- L- J- 

8- Act XX of 1863, Sections iij and IS 
— Regulation XIX of 1810— Religious endoiv- 
vients — Suit to remove manager. 

Held, .tliat Regulation XIX of 1810 was 
extended to the Punjab by general rules and 
orders of government and that Act XX of 
1863 is iu force in the Punjab, 



Supreme Govt. Acts (Continued) 

Held, also, that the Court had power to 
decree removal of the manager of the temple 
on the plaintiff's suit field after sanction 
was given under Section 18, Act XX of 
18G3, although the sanction was not applied 
for by all the plainiifia. 2 C. L. B., 121 and 
128, P. R., 35 of 1871 ayid 75 of 1884, re- 
ferred to. GOKAL RAM v. KAHANI RAM. 

6 P.iL R.1901 

9. Religious Endowments Act 1863, Sec- 
tio>i 14. 

The plaintiffs sued for a declaration that 
a particular inam garden was the endowed 
property of a public mosque and that a 
mortgage-deed executed by the defendant 
was not binding in so far as it related to 
the inam property and for the removal oJ 
the manager. 

Held, that, the prayer for the declaration 
prayed for was introductory or ancillary to 
the plaintiffs' claim, and section 14 of the 
Religious Endowments Act 1863 did not 
preclude the Court from granting it. The 
Court ordered the defandant to pay off the 
mortgage within six months and saddled 
him with the costs of the suit. Ag it ap- 
peared from the evidence that the defendant 
iu setting up a right of private property 
in the mosque was acting under the bona 
fide belief that the mosque was the pri- 
vate property of his family and there was 
no evidence of his misconduct the removal 
of the defendant from the office of the 
manager was not ordered. MUHAMMAD 
JAPAR V. MUHAMMAD IBRAHIM 24- 

M. 243. 

10 § 14 and 18 A declaratory suit that 
plaintiff can be appointed as a manager in 
preference to defendants to manage the shrine 
in which no misfeasance or breach of trust 
or neglect of duty is alleged against the 
trustees appointed und-'r the Act is not 
maintainable under § 14 of that Act. Held 
also that a pnliminary application to the D. 
J. for leave to institute the suit was neces- 
sary under § 18 of the 4ct— TAJAMUL HU- 
SAIN V. FAZ L RAS00L,~4 A- L. J. 774 

=A W.N1907. p. 287. 

11 Civil Procedure Code, 1882, Oiapter 
XXYI — Sui' in form a, pauperis. 

A plaintiff may sue in forma piapiiperis 
when his suit is one that is brought under 
the Devasthanam Act, (Religious Endow- 
ments Act). GURUSAMI OHETTI v. 
KRISHN ASAMI N AIK. A R. 24 Mad., 419- 

12 Civil Porcedure Code, 1882, Sections 
622 tfi 647 — Revision—Material irregularity — 
Religious Endowments Act, 1863, Section 18 — 
Leaue to siie — Notice to defendant. 

Section 647 of the Civil Procedure Code 
contemplates that certain formalities of Pro- 
cedure be observed even in miscellaneous 
applications which are not suits. 



( 73 ) 



CIVIL DIGEST OP CASES 



( 1i ) 



Sup: Govt Acts (Act XX of 1863) (Con) 

All iippliodtion undtM' Section lo of the 
Act XX of 1RR3 should be duly verified and 
pvosontod, oither iu person or by iiloadcr, as 
in tlio case of plainta. 

Tho District Judge acts with material ir- 
regularity in granting leave upon an unveri- 
fied letter, not prcdcuted in Court, enclosing 
a mahzarnamah purporting to be from certain 
persons nf r. particular community. 

If Iho order granting permission is in ac- 
cordance witii law in other respects, it is not 
invalid merely because no notice of tho peti- 
tion for leave was given to the defendant. 
.MMOliO MIYAN «. MAHOSIKO DAVOOD 
KHAN HAHADUB. 11 M. L. J., 1901, P. 
326 = 24 M. 685 

13 §• \%— Order grantinij leave to bring 
suit for ticmiints if a decree — Civ. Fro. Code 
(Act XI y of IHS-J), S. ^—Ap2>cal. 

Act XX of 1863 makes no provision for 
appeal, and an order granting leave to bring 
a suit, for tho puriioso of having tho accounts 
of a certain religious endowment, not being 
a "decree" within the meaning of S. 2 of the 
Code of Civil Procedure, no appeal lies 
against such tho order (18 C. 382 referred to) 
M07.AFFAB ALI v. MIRZA HEDAYET 

HuSSAIN. 5 C- L. J. 641=84 C- 584- 

14 S 18 — J<'ovnder of a temple — Acquisition 
of riijhl of trusteeship by prescription — Transfer 
of sucli right. 

A temple was erected by funds received 
from Government as compensation for an old 
temple acquired by Government and liy subs- 
criptions raised by the manager. Held, tliivt 
tho circumstance tliat tho manager liad taken 
tho trouble to raise subscriptions to supple- 
ment the trust funds in his hands and that 
such subscriptions amounted to much more 
than tho original trust funds would not make 
either him or the subscribers founders of tho 
temple. If a tomplo gets into ruin and h 
person as a matter of mere benefaction erects 
fresh buildings and dedicates th«m to the 
same sort of worship as had been carried on 
iu the old temple, such person may be treated 
as the founder of the new temple even though 
in constructing it he used materials of tho 
former temple or other property belonging 
tlicroto. 

Held, that where a person who had no 
right to the oflico of a trustee according to 
tho rule of devolution established by the 
founder acquires a title to the office by pres- 
cription, but restores it to one who, exceptjfor 
the transferror's prescriptive title, could iiavo 
taken the office according to the rules Laid 
down ty the founder, such transfer should 
be treated as au exception to the geueral 
doctrine that a trusteeship is not an as- 
signable subject, of course, to the condition 
that no corrupt inducement has entered into 
the transaction and tho interests of the trusts 
are not likely to bo prt j adicially affected. 
A trustee may be appoiatod by one who 
liad acquired by proscription a valid title 
to tho trusteeship with power to appoint 
a successor. 



Sup: Govt. Acts (Act XX Of 1883) (Con.) 

Hi'lil, that a suit agaiust a rightful trustee 
of a temple, so far as it relates to the 
charge of neglect of duty alleged against 
bim is not unsustainable because no le.ive 
was obtained under Section 18 of the Re- 
ligious Eudowincnta Act, XX of 18r,;i. AN- 
NASAMI PIM.M V. RAMA KRIKUfKV 

mudaltak. 11. Mad.,- L. J., 1901, p. 
l. = 24 M. 219 

15- § 14 and 18 — Power of District Court 
to grant leave to sue. 

The District Court i» competent to grant 
leave to sue under section 18 of Act XX 
of 1803, whether tho Board of Revenue haa 
or has not exercised control over the temple 
concerned.— i? Mad., So; :1 Mad.. I:i7 : ^'3 
Mad., HI'S, referred to. S ATUKLU UI SIOETA- 
RAMXNUJA V. NANDUIU SEETAFATI- 
26. M 166- 

16. S 18 — Trustees — Sanction for removal of 
tru.'itees. Application for, contents of— Civil 
Procedure Code (.id XIV of ItiSi!), Section 
G'^J -Revision — Civil cases — Material irregu- 
larity. 

Under setion 18 of tho Religions Endow- 
ments Act the Judge is to determine, on 
the perusal of the application itielf, whetiier 
there are sutlioient Primir. /nctc grounds for 
giriug (sanction to institute a 6uit unclor 
section 14 for tho removal of a trustee and 
for recovery of damages. 

Where one application is made against 
several trustees, the application should clear- 
ly set forth the charges and the nature 
of the charges made against each, and tho 
Judge would bo acting with material ir- 
regularity in the exercise of his jurisdiction 
in according sanction based on a geueral 
petition against several trustees not contain- 
inc specific charges against e.ich of them. 
CHINNATIIAMIU SAlilB v. MUHAMMAD 
GHOUSE SAHIB. 15. M- L- J- 221- 

17 Devasthan Committee — Poicers of ap- 
pointment and dismissal of Moktcsars — Fou-crs 
e.rercisable in the interest uf the Devasthan — 
Dismissal of Moktesar—Oood^and sufTicient causa 
— Burden of proof, 

Tho powers of appointment and dismissal 
o^MoktcMrs with which a Devasthan Com- 
miteo are vested are exercisable not in their 
own interests but in the interests and on be- 
half of tho Devasthan of wh;eh they arc trus- 
tees. They are not at liberty to appoint or dis- 
miss arb'itrarilv, capriciously or for private 
reasons of their own, but only on grounds 
i istified by the interests of the institution. 

When a Moktesar is dismissed by a De- 
vasthati Committee, tho burden of proof i3 
on him to show that the Committee did 
not act ou a buna fide belief that the dis- 
missal was necessary in the interests of the 
Devasthan, but had been actuated bv fono 
other improper motive. BHAVANISP VN- 
KA.B BAMRAO v. TIMANNA RAM Bti.-iT- 

TA. 8 Bom , L- R-, P 401 =80 B. 503- 



CIVIL DIGEST OP CASES 



( 76 ) 



Sup: Govt. Acts (Act XX of 1863) {Cont.) 
ISCommitlcc, Powers and duties of— Transac- 
tion of business by Committee or by circulation 
— Control over Manager. 

The Commitee as a body constituted 
under statutory authority should, in the 
absence of sp3cific provisions in the statute, 
follow as far as practicable in the transac- 
tion of its business, the usual procedure 
adopted by public bodies entrusted with 
duties of a more or less public character. 
The Committee should ordinarily transact 
its more important business at a meeting 
held after due notice to the members, and 
it would specially be incumbent upon it 
to do so, if any member so required. In 
the event of such a member's request not 
being complied with it would be open to 
him to challenge the propriety of any action 
taken by the Committee in disregard of his 
requisition and, if necessary, by legal pro- 
ceeding to restrain the other members of 
the Committee from giving effect to their 
decisions. 

But the transaction otherwise than at 
a meeting even of such important business 
as the appointment of a manager is not 
necessarily void and incapable of being adopt- 
ed and approved of by the other members 
who may not at first have agreed to it. 

The Court should not look upon the 
Committee strictly as a corporation so as 
to import into consideration of cases the 
technical rules applicable to such bodies 
in England. 

It is not proper for the Committee to 
exercise minute control over the details of 
the manager's action in administering the 
trusts. Such control is inconsistent with 
the respective responsibilities imposed on the 
trustee and on the Committee by the pro- 
visions of Act XX of 1803. The Committee 
should lay down general instructions for 
tlie guidance of the trustees and see that 
they are followed but without minute inter- 
ference with the discretion of the trustees 
in the actual administration of the trust. 
SUBBA NAIDU v. GOPALASWAMI NAIDU. 
15 M- L. J. 185- 

19. BeHgious endowments — Temple Commit- 
tee, powers of — Trustees additional, appointment 
of — Hereditary trustees — Temporary trustees. 
Appointment of — Trustees, appointment of in 
consideration of spending money for endow- 
ment Begulaion VII of 1817— Board of Revenue, 
pmcers of — 

The Temple Committee cannot arbitrari- 
ly put an end to a scheme of management 
made by the Board of Revenue under Regu- 
lation Vll of 1817. Interference with a 
scheme so made can onlj' be for good and 
sufficient reasons connected with the inter- 
ests, of the institution, and any interfer- 
ence would be unwarranted so long as the 
scheme permanently introduced is at work 
without any default on the part of the 
manager and so long as there is no change 
of circumstances rendering an alteration of 
the scheme necessary. An authority to alter 



Sup; Govt. Acts (Act XX of 1863) iCmt) 

a scheme at the more will and pleasure of 
a supervising Board cannot be taken to exist 
unless it is specifically given by stature. 

A Committee cannot appoint additional 
trustees, where there is a hereditary trustee, 
whether as a sole trustee or in conjunction 
with other not hereditary ; nor has the com- 
mittee unqualitied power of adding to the 
number of trustees sanctioned under an 
existing scheme even if the trustees are not 
hereditary. The power of the Temple Com- 
mittee in the matter of the appointment of 
additional trustees can be exercised only 
for good and sufficient cause. 

Obiter:— li the existing trustee is guilty 
of negligence or mismanagement, the proper 
course is to remove him if necessary after 
due enquiry and to appoint a new man in 
his place. 

The policy of appointing temporary 
trustees is deprecated. 

The policy of giving benefactors a place 
in the Board of management as an induce- 
ment to their spending money on behalf of 
the endowments is deprecated. 

The power of superintendence provided 
for by S. 13 of Regulation VII of 1817 was 
not confined to institutions where the trus- 
tees- were not hereditary. The Board of 
Revenue was quite competent under the Regu- 
lation to introduce an hereditary element 
into the manigement of a temple, if they 
thought fit to do so. GANAP.aTHY AGYaB 
V SRI VEDWY.^SA aLaGASIGA SHUT- 
TER.— 16- M- li- J- 435- 

(20) Act X of 1865 {Indian succession 
Act) 

1- ActXof n65 (Succession)— Daugh- 
ter's succession —Hindu converts to Christianity 
of Act 21 of ISJO Act IV of 1S72 (Punjab Law). 
F, a Hindu convert to Christianity, died 
leaving G, H. and E, his three sous, JI daugh- 
ter, audP, a son of bis predeceased daught.r. 
E also died after him. The estate of F con- 
sisted of two houses and a business called 
George Alfred and ^o. M was maintained 
and educated by her brothers with whom she 
lived until her marriage. In 1899, 11 years after 
F's death JI attained majority, and in 1902 she 
claimed J share of F's estate, under Indian 
Succession Act X of 1865. Her claim was 
resisted solely by G whose principal pleaa 
were; — 

(1) He was the sole owner of the busi- 
ness. 

(2) The Indian Succession Act did not 
apply. 

(3) j\I was not entitled to any share, by 
family custom. 

Held, that all Christians are bound by 
Act X of 1865 in matters of succession, but 
also, as pointed iu I. L. R. 31 B 25 this Act 
does not affect the rights of Co-proprietorship 
batween persons to whom it applies. 9 M.I.A, 
195 followed, 63 P. R. 1895, 1U2 P. R. 1904, 11 
A 100 19 B. 783 referred to. 

(2) A native convert to Christianity, living 
in this Province, can prove that he has 



( 77 ) 



CIVIL DIGEST OF CASES 



( 78 ) 



Sup : Govt- Acts (Act. X of 1865) (Cont) 

adhered to his old personal Law as regard.s 
inheritance, Ac, aud establish any family 
custom, n.pplicable to the parties, such as, that 
daughters are excluded from succession by 
sons, &o., aa provided by S. 5 (a) of Act IV of 
1872. 

(3) The oljjct of Act XXI of 1850 is, not 
to confer on any party the benefit of the pro- 
vision of Hindu or JIahomedan Ijaws, but, 
to prevent them from depriving any party of 
any property, which, but for the operation of 
such laws, he would bo entitled to receive. 

Hdd also, that, although the business is 
the family property, yet, its division is inexpe- 
dient and inequitable, as it had been carried 
on by the solo exertions of G who had special- 
ly qualified himself for the same, and M is to 
get Jth price of the whole existing stock and 
not share in the business. 

(2) There is no law in force independ- 
ently of Act IV of ld'J3 to justify a money 
decree in a suit for partition of immoveable 
property, and M is entitled to got J of that 
Ijroperty by partition (10 C 67.5 distinguished). 

(3) Where in a partition case, a mere 
money decree is given only in favour of plain- 
tiff in lieu of his share, it is uot a docret3 for 
partition in favour of all the parties concern- 
ed as laid down in 23 P. R. l'J05. 

Held, further that a p;irty not appealing, 
or filing cross-objections, as provided in S. 
561, G. P. 0., against a decree is incompetent 
to take cross-objection against it in further 
appeal. It was not proved that P ciutiuued 
to attach himself to Hindu society, or to 
observe Hindu usages, after his conversion. 
Mrs. EDITH SUSAN jStUKERJKB v. Mks. 
GEORGE ALFRED AND OTHERS, 52 P. 
W. R 1907- 

(2) ss. B, 179, 187, 2G0— See will-Delanery 
V. Jiohawai All 32 C. 710. 

(2a) §§ 3, 1S7 See 4 C. L. J. 593 infra No. 36. 

(3) Indian Succession Act, ss. 5, 331 — Bitr- 
ma Laws Act, 1S9S, s. 13 Budhist Law. 

A claimed a right of pre-emption over 
certain property that had belonged to her 
father B, who was a Chinaman. She based 
her claim on Chinese customary law. 

Hdd, — that (1) if B was not a Buddhist, 
the provisions of the Indian Succession Act, 
and not Chinese customary law, would apply 
to the property; and (2) if B was a Buddhist, 
the property would he exempt from tha opera- 
tion of the Indian Succession Act. In the 
latter case in order to succeed, it would be 
uecessary for A to show that there isaChineiie 
Buddhist Law in China applicable to Chinese 
Buddhist only, as apart from the customary 
law of the country by which a right of pre- 
emption was given in respect of the bud in 
dispute. FoHc Lan v. Maihiee 2L. B. R., 95: 
referred to. APANA CHARAN CHOWDRY 

V. .•^HWE NU. 4 L. B. R. 1907 p. 124- 

4. Suctions HO, 22, 105 — Relationships con- 
templated by the Act — Illegitimate children 
outside the scope of tlie .ict — Gift of the 
residue to stick charities as the trustees inary 
think deserving. 



Sup: Govt. Acts (Act X of 1865) (Cont) 

The relationships contemplated by the 
Indian Succession Act, 1865, are only those 
flowing from lawful wedlock. 

The gift, by a Will, of the residue to 
such charities as the. trustees may "think 
do.sorving " is a good gift, the objects being- 
wholly charitable. EJIMA AGNES SMITH 
V. THOM.-VS JIASSEY. 8. B. L. R. 322 = 30. 

B. 500. 

5. Sections 25, 46 — Converts—Co-parcener- 
ship between persons converted from the Hindu 
Religion — Difference between co-parcenership 
and inheritance 

Parcenership can be a part of the law 
governing the rights of a Christian family 
converted from the Hindu religion. 

The Indian Succession Act, 1865, deals 
with the devolutiem of rights on intestacy ; 
it doos not purport to enlarge the category 
of heritable property. The Act does not affect 
rights of co-parceuership as between those 
to whom it applies. 10 Mad., 67, dissented 
from. 

The difference between 00-parcenership 
and inheritance is radical. In the case of 
inheritance property devolves on death, it 
survives in the case of co-parcenorship : 
on inheritance ne-vr rights are acquired, on 
survivorship the enjoyment of existing rights 
is increased hy the removal of one from 
the body of co-sharers. FRANCIS GHOSAL 
V. GABRI GHOSAL. 8- B. L. R- 770 = 
81. E 25- 

6. §. 46— See §§. 25^ 46 Suj^ra. 8. B. L, 
R. 770 = 31. B. 25. 

7. §. 4S-Will— Execution by a Muhamma- 
dan parda-nashin lady — Undue influence. 

When dealing with the case of a wili- 
or a deed, executed by a jjaida-nasfcf'ji lady, 
a particular and peculiar onus rests upou 
those who come for-ivard to support the 
document to show that the executant tho- 
roughly understood what she was doing, and 
■was thoroughly and fully acquainted with 
the terms of the document she was. ex- 
ecuting, and the presumptions as to the 
knowledge of the executant of the contents 
of the document she is executing do uot 
equaily apply, ii> the case- of a parda-nashin 
lady as in the case of othser perso-ns. 

The real question in all cases of this 
description is,, was the testatrix of sufficient 
mental capacity to understan-d what she was 
doing, and did she understaud what she was 
doing, and does the will give effect to heu 
true intentions and wishes ? 

As to what constitutes undue infiuenco 
in this country, a useful guide is &il&rd«;di 
hy Sec-tioa ^ of the Indian Succession 
.^ct. Though the section- doe» not apply tc 
the wills of Muhammsidans, yet it is a 
useful guide as to. what does or does uot 
constitute undue influence. KHAS. MEHAL 
V. THE ADMINISTRATOR-GENERAL OP 

BENGAL. 5. W' N-. Gal.a9Ql» IK505. 

3. S. its, illtts.. (3) and (li).. Pressures, iit 
eoxciciiofi^ 



1 70 ) 



Civil; DIGEST OF CASES 



( 80 ) 



Sup; Govt. Acts (Act X of 1865) (Cant.) 

A will is uot invalidated on tlic ground 
of its having been executed under pressure 
unless the pressure was such as the testator 
cuuld not resist. Illus. (g) and {h) of S. 48 
of the Succession Act practically lay down 
the rule, which should guide all Courts 
ou the question of importunity. Thoy in- 
dicate the law as stated in " Williams on 
Executors and Aduainistrators. " JAJNE- 
SHWAM SAHA v XJGRESHWAEI DAS- 

SYA. 11 c. W. N. 824. 

9 § 50 Codicil proof of oxecutiou of Oudh 
Estates— .4ci I of 1S69 § 19— Evidence Act §§ 
on, G9 and 115. 

Held that the will having been executed 
before Act I of 18G9 came into force the 
provisions of § 19 of that Act did not apply 
to it. The Mahommadnn Law does not re- 
quire that I a will, if reduced to writing, shall 
be attested. The ijrovisious of §§ 68 and 09 
Indian Evidence Act were not therefore ap- 
plicable to the will and the plaintiffs admis- 
sion in the suit filed by C. B. her mother, 
wlio had executed the will in 18G2, was suffi- 
eieut proof of the will. 

Held further that the Codicil which was 
executed by C. B. in 1876 was executed after 
Act I of 1869 came into force and § 19 of 
t.'iat Act applies to it. That Section made 
SL'Otion 50 of the Succession Act and § G8 of 
tlw Evidence Act applicable to the Codicil. 
Hi'ld therefore that there was no evidence to 
tbo effect that C. B. executed the Codicil. 
IS AJBAN BIBI V. KAZA HUSAIN.— 4 Q. Q. 

403. 

10 S. 50 CI. 3 — General Rules and Circular 
Or.ler and § 83 Act V. of 1861,— Security— She- 
bait. 

No grant of probate can be made unless 
tlie will has been proved iu accordance with 
law, and iuasrauch as a grant of probate 
operates as a judgement in mn, the Court 
mast be satisSod that the will has been duly 
oxecuted and attested. (31 C. 3o7 refd to) 

An acknowledgement of execution from 
the testator and attestation of the will in his 
pr.>sonce, is a sufficient attestation under S. 50, 
01. 3 of the Indian ducoession Act which is 
made applicable to Hindus by the Hindu 
Wills Act. 

Rule 36, CI. (a) of the General Rules and 
Circular Orders (Civil) (1903, Vol. 1, p. 142) is 
applicable to contested applications for pro- 
bate or letters of administration, the proceed- 
ing's in which must, according to the provi- 
sions of S. 83 of the Probate and Adminis- 
tration Act, take as nearly as may be the form 
of a suit, according to the provisions of the 
Code of Civil Procedure, and a Judge has dis- 
CL'Otion as to costs, on account of pleaders' 
i-ioi; he may allow a fee according to tha 
valuation of the estate, or according tj such 
a sum, not exceeding the valuation as may be 
reasonable, or according to the importance 
of the dispute. (C. IK. N. 000 Exp). 

The mere fact tliat a person is appoint- 
ed a shcbait or trustee of tha whole or a 
large porliou of the estate of the testator, 



Sup : Govt. Acts (Act X of 186.5) [Cont.) 
is not sufficient by itself to constitute him 
au executor by implication. But where the 
testator uses the word 'trustee or shcbait, 
and at the same time imposes upon the 
person duties involving the functions of an 
executor, there is a good appointment as 
executor by necessary implication. In order 
to constitute one an executor according 
to tenor of the w'ill, it must appear ou a rea- 
sonable construction thereof, that the tes- 
tator intended that he should collect his 
assets, pay his debts and funeral expenses 
and legacies which are the essenti.al duties 
of an executor. I Vos and B. 422 (Itiej; Ij. 
R 2 P and D. 379 ; 3 Sw. and Tr. 5G2; 3 Cur- 
tis 748; 2 S\v. and Tr. 155; 2 Lee 401; 1 Hagg, 
80; 4 P. D. 85; (1901) P. 34.5, (1902) P. Ill; 
(1902) P. 188; L. B. 3 P. and D. 253; 5 G, 
756; 26 B. 571; 22 SI. 345. B. 6 C. W. N. 
310 and 10 C. W. N. 232, D. 

The appointment of executors by neces- 
sary implication is not to he favoured, and 
the language of the will is not to be strained 
for this purpose; but iu doubtful cisos, let- 
ters of administration with the will an- 
nexed ought to be granted. 

S. 78 of the Probate and Administra- 
tion Act provides that the administration 
bond is to be given for the due collectioa 
getting in, and administering the estate of 
the deceased. Such security is only requir- 
ed to guard against malijractices, and the 
security is enough if it affords a reasonable 
protection against malpractices which require 
time to be carried out. What the Court 
is to satisfy itself is, whether the amount 
of the security affords a sufficient safeguard 
against serious or continuous mismanage^ 
mout.— fi C. L. J. ISO refd /oj— AMEBR- 
CHAND V. MOHANUND ' BIBI 6 C- L. J- 

453- 

11 § 5i Will. Execution of — Harden of 
l^roof — Construction of Will— Blanks in Will— 
Alterations in Will — Deed poll confinmd by 
Will. Probate of, if ncces-^afy — Menial condi- 
tion of testator — Person talking benefit under 
Will prepared by himself — Fiduciari/ relcn.on- 
siiip. 

If a party writes or prepares a Will 
under which he takes a beuufit, that is a 
circumstance that ought generally to excite 
the suspicion of the Court, and calls upon it 
to be Vigilant and j ;alous in examining the 
evidence in supper i of the instrument, in 
favor of which it ought not to pronounce 
unless the suspicion is removed, and it is 
judicially satisfied that the paper propoun- 
ded does express the true Will of the deceas- 
ed. But there is no rule of law as to the 
particular kind or description of evidence by 
which the Court must bo satisfied. The 
degree of suspicion excited and the weight 
of the burden imposed on the person taking 
the boueflt must depend largely ou the 
nature and amount of the benefit taken by 
him and all the oiroumstancos of the case, 
ii Moore P. C. 480, (1838) L. B. 7 E. and I. 
App. 418 apiiroved. 

Where a member of a firm of solicitors 
is appointed au executor, it is BO usual to 



( 81 ) 



CIVIL DIGEST OP CASES 



( 92 ) 



Sup : Govt. Acts (Act X of 1865) {Cont.) 

allow hira to cliarge for professional work 
dono bj- him or his firm that tho insertion 
of such a clause would hardly raise a suspi- 
cion. 

Held, that in this case the suspicion 
excited by the fact that under the Will 
written by the solicitor of the testator who 
was also appointed ouo of tho executors, a 
benefit, that is, remuneration for his pro- 
fessional services was allowed to tho solicitor 
was removed by tho evidence and the circum- 
stances of the case. 

Ueld, also, that it was proved that the 
blank spaces in the Will wore filled in accor- 
dance with tho wishes and intentions of the 
testator before the execution of the Will. 

A deed i^oll was referred to in the Will 
and coniivraed by it. It did not appear to 
have been referred to in the Will for the 
purpose of making its contents parts of the 
Will. 

Held, that tho deed poll was not within 
section 51 of the Succession Act and did not 
require probate. BAI GUNGAUAI v. 
BHUGWAN DASS VALJI.— 9 C- W- TH- 769 

(P. C.) = 15 M. I. J. 271=29 B 530 (P C) 

12. § 57 — Revocation of a will by 'hehirth 
of posthumous son — S. «>'. Hindu Will Act — 
Scope. 

A will of self-acquired property made by 
a Hindu is not revoked by the birth of 
a posthumous son of the testator. 

The Hindu Wills Act not only does not 
provide for revocation on the ground of 
Hny alteration in circumstance, but by in- 
corporating S. 57 of tho Succession Act, 
it makes express provision for the way 
in vrhich a will shall be revoked. The 
language of the section is, not that a will 
may Le revoked in certain ways, but that no 
will shall be revoked except in certain ways. 
The section is exhaustive. 

Reading Ss. 56 and 57 of the Succession 
Act tflgether, there is no doubt that, under 
that Act, the law as to the revocation of 
will; is tho same as the law under the 
English Wills Act:— Per Chi,-/ Justice, (d 
C. 637, 12 M. IGl. R. refd to). SUBBA RED- 
DI V. DOKAISAMI BATHAN AND PAP- 
AMMAL, 17 M- L. J. 269 

13. Section 5S- Probate — Will with alter- 
ations in pencil — Practice. 

The practice of the High Court regarding 
Wills containing alterations made by the de- 
ceased is to attach, to the document of 
which probate is sought, a copy in writ- 
ing with the alteratious incorporated on 
tho text. Where the alterations appe-red in 
pencil, the Court directed a photographic 
fac simile to be taken in the presence of 
the Registrar and of the e.Kecutors to be 
attached to the probate as the pencil 
alterations are likely to fade in course of time. 
Where the subsequent Codicil confirms the 
copy of the will as altered §. 58 does not 
applv. IN THE GOODS OP L. P. D. BRO- 

UGHTON, 6. C. W- N- 477==29. C- SH. 



Sup: Govt. Acts (Act X of 1865) {Cont.) 
14. S. 78— Will— Power of appointment- 
Appointment by general bequest — Power created 

after will. 

A general power of appointment may be 
exercised by a will executed previously to 
the creation of the power, and that too 
by more residuary gift. DIN3HA SORABJI 
MODY V. DINSHA SORABJI MODV, 9 

Bom. L. R. 488 =31- B. 472. 

15 §§ so, 98, 10G~ Will. Construction of— 
Vesting of legacy — Bequest— Stock- Parses Suc- 
cession Act {XXI of 1865) — Parsis — Succession 

One if. died in 1885, having made a Will 
by which he left a sum of R3. 25,000 to D. 
upon certain trusts. D. was the widow of D. 
F., a, predeceased brother of H. The Will 
provided :— " To D., widow of my deceased 
brother D. F., the sum of Rs. 25,000 uuon 
trust to invest the same in Promissory Notes 
of Government of India in tho names of 
my said executors and trustees or the sur- 
vivors or survivor of them or other trustees 
or trustee for the time being of this my 
Will and from time to time to pay the 
annual or lialf yearly interest and dividends 
th'^t shall from time to time become due 
and accrue thereon to the said D. during 
her life and after her death upon trust to 
sell and disi^ose of the said Government Pro- 
missory notes for Rs. 25,000 and to pay 
aud divide the sale proceeds thereof to 
and between her issue by the said D. F, ac- 
cording to tho law or statute for tho time 
being in force in India relating to intestate 
succession among Parsees. " 

D. F. died in 1871. At the testator's death 
there were alive D. and two sons and two 
daughters of D. by D. F. In I'JOl D. died 
leaving one son aud one daughter behind her. 
Upon a«proceeding between the sou and the 
daughter as to the meaning of th» bequest, 
two questions arose for decision — (1) Wlien 
the legacy vested iu the issue, i.e., whether 
it vested at the time of the death of the 
testator or at . the time of the death of 
D?, (2) Who waste be considered the slock 
— the intestate — in order to ascertain hfiw 
tho fund was to be distributed among the 
issue ■? 

Held, that the legacy became vcsladinthe 
issue of D. and D. F. at the time of the testa- 
tor's death. 

That D. must he taken as the stock. 

That the words "without any iqualiijing 
terms" iu section 80 of the Succession Act 
refer to the bequest and not to relations, 
PESTONJl DHUNJIBHOYu. KHURSHED- 

BAI. 7. B. L- R. 207. 

16. § 82 — Will—Construction of-Lei/acy 
in favor of a Hindu zcife. 

The rule of law applicable to a ca^e of 
gift of immoveable property by a Hindu 
husband to his wife is, that, thougti a, 
mere gift of immoveable property doe^ not 
carry with it tho power of alienation, vet, 
where any such property is given by the 
husbaud to the wife with express power of 
aliouatiou, or where this power !« implied 



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CIVIL DIGEST OP CASES 



( ei ) 



Sup: Govt. Acts (Act X of 18C5) (Cont.) 

by the gi'ant, she would auquiro au absolute 
power of disposal over the property ; and 
where the gift is by Will, see ion 82, of 
the Indian Succeaaiou Act, which applies 
to the Will of a Hindu, will entitle the 
legatne to the whole interest of the testator, 
unless it appears from the will that only a 
restricted interest was intended to be given. 
Upon costruction of the will in dispute 
held that the wife was given au unlimited 
power of alienation over the property in dis- 
pute 1 G. W. N.. 387 S. C, Hi Cal., S34,24 Cal. 
40r,, 4 G. W. N., 337 referred to. SARODA 
SUNDARI DASS v. KRISTO JIBAN PAL. 

5 W N., CaL. p. 300. 

17. §§ 82 (f- in Hindu Law — Adoption- 
Adoption by mother after the death of son 
and son's widow, if valid — Adoption. Power 
of, when comes to an end and becomes incapable 
of execution — Life estate — Estate of inheritance 
— Executory gift over. — 

An adoption by a Hindu widow, who has 
succeeded by heirship in her character as 
mother to her son, after his death 'and the 
death of his widow, is invalid according to 
Hindu law. 

A left a widow and an adopted son, and 
gave authority to the widow to take three 
sons successively in adoption, one after the 
death of another. The adopted son mar- 
ried and died leaving a childless widow, 
who succeeded to the state. Upon the 
death of the widow of the adopted son, 
the widow of the original owner succeeded 
to the estate and took a second son in 
adoption. 

Held, that the second adoption was invalid 
inasmuch as the power of adoption came 
to an end, and became incapable of ex- 
ecution when the estate vested in the 
widow of the first adopted son, and that 
such vesting was a proper limit to the ex- 
ercise of the power. 

The power was not revived upon the death 
of the widow of the first adopted son. 19 
M. I. A., 279; L. R., 8 I. A.. 529; L. B. 
14 LA., 67; L. R., IG I. A., i66 applied. 
17 Bom., 164; 26 Bom, 526 approvi d. 7 W. 
R., 392 dissented from. 17 Cal., 51S dis- 
tinguished. 21 W. R., i22 ; 4 Cal. L. J., 
171 ; S. C 10 G. W. N., 921 explained and 
distinguished. 

A testator left an adopted son and gave 
authority to his widow to take three sons 
in adoption one after the death of another. 
Tlie Will contained a provision that the 
adopted son shall succeed to the estate on 
the death of the testator, and that on the 
dfath of one adopted son and until the 
adoption of anoth.;r son, the ostito shall 
remain in the ownership and possession of 
th;3 widow as ordinary heir, the estate to 
vest in the adopted son immediately on 
adoption. 

Held, that the adopted son would take 
not a life interest but an estate of inherit- 
ance, subject to a condition of defeas- 
ance. 

Held, also, that the executory gift ever 



Sup:GO\t Acts (Act X of 1865) (Cont.) ] 

did not take effect, L. B., I. A., Sup, Vol.- 
41; L.R., 23 L A. 18 applied. MANIKYA 
MALA BOSE v. NAND.\ KUMAR BOSE. 
4. C. L. J. 357. 

18. S 84 — Will, Constructioti of — Devise to 
"eldest son and to his laioful male children 
according to the law of inhcrUanct" — Justice, 
equity and good conscience — Marriage — Nikah 
between a Christian man and Muhammadan 
looman, if valid. 

Thomas Skinner, who was domiciled in 
the North-Westem Provinces and was the 
owner of a large estate, made his last Will 
on the 22nd October 1864 by which he 
provided for the payment of his debts and 
an annuity for his wife and also allowance 
for his children, and then as to his zamin- 
dari ho gave the following directions, 
namely — :" that my private zamindari, pre- 
sented to me by Government as a reward for 
services rendered during the rebellion of 
1857, as well as all villages, houses and other 
property added by me from time to time 
to the original grant, may at my demise 
descend to my eldest son, Thomas Brown 
Skinner, and to his lawful male children 
according to the law of inheritance. In the 
event of my eldest son, Thomas Brown Skin- 
ner, dying without lawful male children, 
the above mentioned private zamindari, etc., 
shall descend to my next male heir, and 
should all my sons die without lawful male 
children, the zamindari, etc., shall descend 
to my female children, or, in the event of 
their death, to the female children born 
in wedlock of my sons in succession." The 
Indian Succession Act was not in force at 
the time of the testator's death. 

Held, that having regard to the cir- 
cumstances of the family it was impossible 
to affirm that any particular law i. e., Eng- 
lish Law or Indian Succession Act, 1865, 
was applicable to the construction of the 
Will or the regulation of the testator's suc- 
cession. The case must be decided by the 
principles of justice, ecjuity and good cons- 
cience. 

That upon the construction of the Will 
the intention of the testator was not to give 
an absolute estate in his zamindari to his 
eldest son, but that his sons who should 
acquire the property should have a life es- 
tate only and that the absolute estate 
should devolve upon the eldest sou of the 
son of the testator who should be entit- 
led to the property for life and should leave 
a son surviving him. 13 M. I. A., 277 
followed; I. B. L. II., S7, 9 il:^oo. I. A., 1U9 and 
12 B. L. B., 74. 6 Cal., 17, referred to. 

Semble, that a marriage ceremony per- 
formed as nikaJi. according to Muhammdaa 
rites between a Christian man and a IMubam- 
madan woman was not a valid marriage. 
—RICHARD ROSS SKINXER v. DURGA 
PRASAD. THOMAS WILLIAM SKINNER 
V. RICHARD ROSS SKINNER. THOMAS- 
WILLIAM SKINNER v. DURGA PRA- 

SAD.-A W. N. 1904. p. 213. 

19- Sections 90 and lOo—Oift—Bequisiki 



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CIVIL DIGEST OP CASES 



( 86 ) 



Snp: Govt. Acts (Act X of 1865) {Cont) 

of — Oift to Hospitals — Corporate body not ne- 
cessary — Revocation of gifts — Codicil — Gifts to 
Mission — Vnenforcible gifts falling into resi- 
due — Intestacy. 

Both, uuder the English Law and the 
Indian Succession Act gifts to Hospitals which 
are recognised as existing public institu- 
tions aro good charitable gifts, provided 
alwaj's that the provisions of Section 105 
of the Succession Act as to registration and 
deposit are complied with. 

It is not necessary that the institution, 
to ^be benefited by a charitable gift, should 
be a corporate body. All that is required 
is, that there should be some responsible 
authority charged with the general adminis- 
tration of the funds of the Institution. 

Where a legacy was revoked by a codi- 
cil, the testatrix directing her executor to 
make over the property, subject of the legacy, 
to a Mission for the residence of one of its 
missionaries, but the codicil was not deposit- 
ed for safe custody, in accordance with 
Section 105 of the Successions Act, held, 
that the legacy being in the nature of a 
charitable disposition, tould not be given 
eSect to. 

It is settled law that prima facie pro- 
perty, wich is the subj;ct-matter of a trust, 
which is incapable of taking effect, falls in- 
to the residue, and it can only be prevented 
from so doing by the express directions of 
the testator. 

Held, upon construction of the Will, 
that the legacy for the 'inmates of the Hos- 
pital' was meant to provide for the gene- 
ral maintenance and support of the Hos- 
pital. 

In administration suits the practice in 
cases in which legacies are contested is to 
deal witli the dispute when the case comes 
up for further directions on the report after 
usual enquiries have been made, which arc 
directed by the administration decree 
FANINDRA KUMAR MITTER v. THE 
ADMINISTRATOR GENERAL OP BEN- 
GAL. 6C. W. N.321. 

20 Sections 90, 94 and 54. Will^Attes- 
tation by legatee. Effect of — Construction — Ac- 
celeration. 

The will provided that interest on cer- 
tain deposits in banks and shares in compa- 
nies be enjoyed by the testator's wife for life, 
and that after the death of his wife the de- 
posits and the shares be divided into equal 
scares, between his three children; "James 
Joseph Barefoot, Cornelius Barefoot, and 
Florence Dinah Barefoot, or the survivors or 
the survivor of them." James Joseph Barefoot 
was appointed a trustee under the Will. The 
wife was appointed residuary legatee of all the 
property excepting the aforesaid deposits and 
shares. It was admitted that James Joseph 
Barefoot attested the Will as a witness, and 
consequently the bequest to him was void 
under section 54 of the Succession Act. 

A question arose whether the share of 
the legacy bequeathed to James Joseph pass 
ed to Cornelius Barefoot and Florence Dinih 



Sup: Govt. Acts (Act X of 1865) (Co,!/.) 

Barefoot, or full into the residue, 

Hild, that if the Will had not contained 
the words "or the survivors or survivor of 
them," it would have to be construed ^n the 
same way as if James Joseph had died during 
the life-time of the testator, but the effect of 
these words was that Cornelius and Florence 
not surviving Joseph, the bequest fell into 
the residue and the doctrine of acceleration 
did not affect the case. CAMANI v. BARE- 
FOOT 26 M. 433. 

21 Section 96 — Hindu Law — Will — con- 
slruction — Sons and grandsons — Heirs — Laps- 
ing of bequest — Heir dying before testator. 

Held, that the words 'sons and grandsons' 
used in a Will executed by a Hindu have the 
same efiect as the term 'heirs' in an English 
will. 

According to the English Statute and the 
Indian Succession Act, a gift to the testator's 
child does not lapse on the legatee dying be- 
fore the testator, leaving lineal descendants, 
but the rule cannot be applied to the case of 
a Will executed by a Hindu. The provision 
in the Indian Succession Act is an excejition- 
al one made for a certain class of eases only 
and courts have no power to extend it 
RAMAJITRTHAM v. RANGANATHAN. 24 

Mad. 299- 

22 Sections 96 and 1?S. 

Section 96 of the Indian Succession Act 
can only apply to a case where the legatee 
predeceases the testator, whether he has been 
named as an executor or not. The nppLca- 
tion of Section 128 is limited to the case 
whore the executor survives the testator. 
So where a child legatee being appointed by 
the will ou3of the executors also predeceased 
the testator leaving a leneal descendant latter 
can claim the legacy under S. 96, and S 123 has 
no application. RAMASWAJIY lYAH v 
KUPPUSAWMI. 13 M. L.tJ. 351. 

23 S. 96, 321^Hindu Wills. 

The lower appelate Court interpreted a 
will executed by a Hindu according to S. 96 
of the Act. 

Held that under § 331 of the Act the 
provisions of the Act were not applicable to 
wilLs executed by a Hindn in Oudh. R\M- 
KISHAN SINGH v. SRIPAL— 9 Q C 159 

23 (a) § 9S—See 7 B. L.R. 207 Supra No. 15. 

23(ft)§ 101-See Hindu law Manas»er. KASHI 
NATH SHAMJI v CHIMANJI S.Xda SHIV 

-B.L.R. 268=30-2.477. 

24. Section 105 — Bequest to charitable uses 
in the presence of wife. 

The term "relative" in section 105 of 
the Succession Act, 1.965 refers to kindred 
only as set forth in the table of consangui- 
nity annexed to section 24 of the Act and 
has no application to any relationship by 
marriage. 

A Will executed in favour of a chari- 
table institution is not void under section 
105 on the ground that the testator left a 
widow surviving him. .ADMINISTRATOR 
GENERAL OF MADRAS v. SIMPSON— 26 
M. 523. 



( 87 ) 



CIVIL DIGEST OF CASES 



) 



Snp Govt. Acts (Act X of 1365; {CojU.) 

21(a) S 105— Gifts to pablic hospitals are 
"gilts for charitable uses under § 105 —PA- 
NINDBA KUWAU v THE ADMINISTRA- 
TOR GENERAL OF BENGAL.— 6 C- W- N. 

S21. 

24 (b) § iOt;— 7 B. L. B. 207 See No. IS 

Supra. 

25. § 107 Act X of 1865 and § 6 (a), 19 and 
21 T. P. A. and §§ 17, 16 Registration Act. 

A Jlohammadan female executed a docu- 
ment in favour of her father and the plain- 
tiffs her brothers whereby she relinquished 
her right of inheritance to his property in 
consideration of receiving from him Rs. 
9000. Held the document merely related to 
heirship and could not be treated as relating 
to property. It did not fall under § 17 or 18 
of the Registration Act. 

That the right of a heir of a person to 
inherit that person's property on his death 
is not an estate in remainder or in rever- 
sion in immoveable property or an estate 
otherwise deferred in enjoyment. It is nei- 
ther a vested nor a contingent right. It 
does not fall within the definition of a vested 
interest in Section 19 or of contingent inter- 
est in § 21 T. P. A. and § 107 of the Succes- 
sion Act. It is only under § G{a) T. P. A. the 
chance of an heir app.-.rcut, succeeding to an 
estate or a mere possibility of succession 
which can not be transferred. ABDUL 
HUSAIN MULLA v GHULAM HUSAIN 

ALI.-7 B. L. R. 1905-P. 742 

26 S. Ill— Construction of will — Bequest to 
daughter — Absolute estate. 

Where in a Will a legacy was given in 
the following words: — "On my death, my 
daughter, Surjamoni, who has got sons, and 

who is a resident of .^hall possess as owner 

and possessor of all the rights of gift, sale, etc., 
in respect of all my property moveable and 
immoveable, and on the death of my afore- 
said daughter, the sons born of her womb 
will equally own all my property." 

Held, upon a construction of the Will, 
that it was the intention of the testator to 
give to Surjamoni an absolute estate. GO- 
BINDA CHUNDER GUPTA v. BENODE 
CHUNDER DUTT.— 12 C. W. N- 44- 

27 Sectioyis 111, 116, IIT,— Married daugh- 
ter, Estate taken by, under a Will and by in- 
heritance — Will. Construction of ''to my 
daughters and their respective sons." Meaning 
of— Adopted son. Status of — 

An adopted son holds precisely the same 
position as a son horn as regards inheritance 
from the adoptive mother's relations. 5 Cat., 
615; L.R, 10 1. A., 138; S.C, 10 Cai., 232 
followed. 

A childless daughter of a testator attains 
the status of a daughter with a son by 
adopting a son. 

Where the failure of the bequest to the 
adopted son is duo to the fact that the tes- 
tator did not live to adopt a son himself and 
to the fact that the power of adoption given 
by the Will is void under the Hindu Law, 



Sup: Govt. Acts (ActX ofl865)rc<w^/ 
and not to the legal invalidity of the be 
quest: 

Held that such failure of the bequeat to 
an adopted son does not render the subse- 
quent bequest to the daughter of the te.sta tor 
void. 

The principle well established by 1 Eg. 
Ca. Ab., 215; Cowp. 40; 1 V. and B, 124; 2 
r. and B. 313 ; 5 Sim. 78 ; 1 Ves. Sr., 420 has 
been codified in In'^ia in section 116 of the 
Indian Succession Act (X of 1865) which 
section applies to Hindus. 15 Cal. 232 fol- 
lowed. 

Section 111 of the Succession Act applies 
only when the prior bequest is capable of 
taking effect and is not ab initio void. If 
the bequest has failed ab initio the principle 
laid down in section 116 applies. 

The rule which has been applied to a 
bequest in a Will executed before the 1st 
September 1870 of immovable property by a 
husband to his wife, viz. that she takes only 
a limited estate when there are no express 
words creating an absolute estate, cannot 
apply to married daughter. Though under 
Hindu Law, a married daughter takes by 
inheritance a limited estate, she takes an 
absolute estate under a devise by Will, un- 
less her interest is curtailed by express 
words or necessary implication. 16 Mad.- 
466 ; 24 Cal, 406 ; 24 W. R., 305 ; 24 Gal, 646 ; 
2 C. L. J., W. N., Cal, folloiccd. 

The words in the Will "to ray daughters 
and" their respective sons I give, devise, and 
bequeathe "the same" give an absolute estate 
to the daughters and not a limited or joint 
estate. 'Sons,' in this case was intendv^d to 
have the same effect as "sons, grand-sons 
etc." 

Where it would be premature to decide 
whether an absolute gift is defeasible in the 
event of cither d ughter dying without male 
issue, the question was left undecided until 
it is ascertained what the events are. L. H. 
2iI,A.,76:2i Cal. 83i foUowed. RADHA- 
PR\S\D MULLICK v Sil. RANI MONI- 
DASSI. PEARY LAL MULLICK v SM. 
RANI JIONI DASSI.— 10 C W. N- 695^ 

(F B ) 3 Cal . L. J , 502 (F E.) 

27 {a) §§ 116 d- 117-3 Cal in J. 503 (F. B.) See 
supra No. 27. 

28 § 12S See ss. 96 and-12S—13 M. L. J. 
5.5i Supra No. 22. 

28 {") 5 1.59 of the Indian Succession Act does 
not apply where there is a clear indication 
of the testator in the will. See Hindu Law 
Wills— NANDAKINA DEBI «. ARUMBALA. 

8 C. Ii. J. 515- 

29 Sections 179 and 221— Limited grant. 
— Power of administrator -Equity-Burden of 
proof — Benami transaction. 

"in the case of a limited grant under sec- 
tion 221 of the Succession Act, 1R65 the ad- 
ministrator has not the power to dispose of 
any interest outside the limits of the grant. 

The law of benami is founded on prin- 
ciples which are not limited to India; it is no- 
thing more or less than an application of tho 



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CIVIL DIGEST OF CASES. 



( 90 ) 



Sup- Govt. Acts (Aot X of 1835) (Cont). 

eqiiimblL vale that whero there is a purchase 
by .-1 , in tUo naiu'i of /?., there is a re.^iiltiug 
trust of tho whole to A. It is an accopted 
rule of guidance in reference to bcnami tran- 
sactions to see from what source the purchase 
money has proceeded, but ordinarily some- 
thing further is roiiuirod. It should be shown 
that the person whose money has gone to ef- 
fect the parohaso iucnishad it as purchmer. 

Decree passed in case reported in IV 
Bom. L. R. S4'i reversed. JOHN JOSEPH 
PESlLVAu. JOHN JOSEPH DE SILVA. 
5. B. li R 784. 

30 Sections 179, 187, 360— £ S. 3— Excel- 
tor, title: of— Probate Adminislration, grant 
of — Jurisdiction of Court to modify — Bengal 
Tenancy Act (VIII of 1S85), Section 167— Sale 
for arrears of rent— Incumbrances, annulment 
of — iVo( ice — Discla imer. 

Under secti -ns 179, 187 and 260 of the 
Indian Succession Act, where probate of a 
Will has been granted, tho executoi, in order 
to bring a suit as such, is bound to prove 
bis title. In case of dispute, having ro^jard 
to the provisions of soction 3 of tho Indian 
Succession Act and the definition therein 
given of the terra probate, it is incumbent on 
him to file, not merely a cO|jy of the grant but 
also a copy of the Will attached to tho grant, 
which with tho grant formed the probate. 

But a Court, other thi'.,n ine Conrt of Pro- 
bate, cannot go behind the grant and inter- 
pi'ot and modify its terms by the provisions 
of the Will. 

In a suit for possession after annulment 
of an uudertanure under section 1G7 of tho 
Bengal Tenancy Act, absence of due service 
of notice on a person, who in the suit dis- 
claims all interests therein, cannot prej idice 
tho plaintiff. 

Where the application for the issue of 
the notices against somo of the persons j liut- 
ly interested in tho incumbrauc; is 'iot laade 
within time, the whole suit must fail. DE- 
LANEY !). ROHAJIAT ALL 32 C. 710. 
81 Sections 179 and 2S1. 

In the case of a limited grant under 
Bection 221 f the Indian Success n Act, the 
administrator becomes by virtue thereof tlie 
legal representative of the deceased for the 
purposes of the interest of the deceased in the 
property; and such interest as the deceased 
had in the property becomes vested in him 
as such legal representative under section 179 
of the Act. 

Under section 191 the letters of admini- 
stration entitle the administrator to all the 
rights belonging to ih; intestate and linder 
section 269 he has power to dispo.sc of the 
proper .y of the deceased in such manner as 
he may think fit. 

When an adminis'.rator conveys tho pro- 
perty absolutely, his stating in the couvoy- 
auco that he acted as administrator of the 
property as trustee, cannot cut down the 
legal effect of the conveyance or limit tho 
right of the purchaser to the title wrongly 
alleged to have existed in the deceased, if, as 
a matter of fact, tho'dcceasoJ had ahi'her 
right. JOHN JOSEPH DE SILVA v. JOHN 



Supr: Govt. Acts (Act X of 186-5) (Cont.) 
JOSEPH DESILV.V. 4 B. Ii- R. 849 • 

32 Sclions 170 and 221. 

In the case of a limited grant under 
section 221 of the Indian Succession Act, 
the administrator becomes by virtue thereof 
the legal representative of the deceased for 
tho purposes of the interest of the deceased 
in the property, and :mch interest as the 
deceased had in tho property becomes vestod 
in him as such legal representative und^t 
section 179 of the Act. 

Under section 191 the letters of adminis- 
tration entitle the administrator to all tho 
right.i bcl-juging to the intestate and under 
soction 26'J ho has power to dispose of the 
property of the deceased in such manner as 
he may think (it. 

Whan an administrator conveys tha 
property absolutely, his stating in the con- 
veyance tliat he acted as administrator of 
the property as trustee cannot cut down 
the legal ufrect of the conveyan''e or liuiit 
the riglit of tho purchasjs to tho title wrong- 
ly alleged to have existed in the deceased, 
if as a matter of fact tho deoj.isod had a high- 
er right. JOHN JOSEPH DE SILVA v. 
JOHN JOSEPH DE SILVA.— 4 Som., L. 
a- 849.=27B- 103- 

33 Sections 180, 212— Letters of a.iminis- 
iration — I'robatc of Will ob'ained in England 
— Sabseqitent ajijplicalioa for limited grant by 
attorney. 

The probate of a Will was obtained in 
Rngladd. The attorney of the executors of 
th'i Will made art application under Suction 
212 of tha Indian Succession Act, for letters 
of administration with a < opy of the Will 
anne::cd limited until they come in and 
take probate of the said Will themselves iu 
India. 

HcW, tlia: the application could not ba 
sustained. 

Hiid, furiher, that though an application 
could iiava been ruade under Section 180 of 
the Act, the attorney not being empowered 
to oi.tain auy thing beyond a limited grant 
the application couid not be granted. In 
THE Goods of WILLIAISI ASHTON.— A- W- 

N- 1905 p. 251- 

34 Section:} 181, 1.S6, 187 tf 197. 

W^heu 'in an administration suit the 
Court directi d that the decree should not ba 
drawn up until the plamtiii obtains letters 
of administration \vit:i the will annexed, and 
it was contended for the pl-iintiff that tha 
executor named in the will having died it 
was not necessary to obtain letters of admi- 
nistration : 

Edd, that the plaintiff, as residuary 
legatee, could obtain a grant of letters of 
administration, and that until he did so, he 
w.as not entitled to establish hi.i ciaiiu iu 
Court.— 22 r/. 7?,, m, followed. GORDHAN- 
DASS SUNDEPi DASS, v. BAI BAi\[COO- 

VER. 3 Eoni. L- E , 874 =26 B- 867- 

35 § 182— Will— Executor— Death of Exe- 
cutor — Anoil: . . Etccutor. 



( 91 ) 



CIVIL DIGEST OF CASES. 



( 92 ) 



Sup. Govt. Acts (Act X of 1865) (Cont.) 

Unless it can be gathered from the will 
that the testator intended the person named 
to pay the debts and legacies under the will 
ho cannot be held to the executor thereof. 

Whore a testator appoints an executor 
and provide* that in case of his dealth an- 
other should be substituted on the death of 
the original executor, though he has proved 
the will, the executor so substituted may be 
admitted to the office, if it appear to have 
been the testator's intention that the sub- 
stitution should take place on the death of 
the original executor, whether happening in 
the testator's lifetime or afterward.s. — fL. R. 
2 P. & M, 369, 3 P. £■ M. 159 5 C. 756 Refd to) 
MITHIBAI V. CANJI KHERAJ 4 Bom. L- 

R. 9 = 26B. 571. 

36 Secti07is 3, 187 — Will, proved—Right 
of Ugntce to sue. 

The main object which section 187 of 
the Succession Act has in view is that any 
Will upon which a claim is founded must 
be formally proved in a Court of jidicature, 
and that unless probate or letters of ad- 
ministration in respect of such Will have 
been obtained, the claim should not be al- 
lowed to be enforced. 

A Will was proved and letters of admi- 
nistration in respect of the entire estate left 
by the testator were granted to one of the 
legatees. On appeal it was ordered that a 
limited grant should have been ordered. 
The letters of administration remained for- 
mally uncancelled by reason of the death of 
the legatee. 

Held, that another legatee was not bar- 
red by reason of section 187 of the Suo- 
ce.ssion Act from instituting a suit for re- 
covery of the legacy left to him by the 
Will. 

If a Will is once proved and probate 
or letters of administration are granted th;it 
would be an authority in favor of any one 
of the legatees or any one claiming under 
the Will, entitling him to obtain relief from 
the Court.— KUMAR CHANDRA KISHORE 
ROY V. PROSANNA KUMAR DAS.— IQ. 

C W. N 864=4- C- L. J- 523. 

87. «§. i67 and 197— Sea §. ISl d) 26. B. 
267 fi'pra No. 31. 

38- ^■'190 — See Execution of decree. Chun- 
nilal Bone v. Osmand Bibi. 30 C. lOH. 

38(fl). § 190— L. B. R. 1900-02, P. 193- 
See infra No. 50. 

■ 89. §. 197— See §. 181 £ca:—26. B. 267 su- 
2^ra No. 34. 

40. §. 212— See § 180 £ 212. A. W. N. 
1903. P. 231, Supra No. 33 

41. §. 221— See §. 179 £ 221—5. B. L. R. 
781 Supra No. 29. 

42 §. 221— See §. 179 ct 321— 4. B. L. B. 
S19 S7tpra No. 32. 

48 §. 340— The High Court of Madras has 
no jurisdiction to grant probate of the will 



Sup: Govt. Acts (Act X of 1865) {Cont.) 

of a testator or letters of administration o! 
the estate of an intestate who did not 
dwell and who did not leave assets with- 
in the limits of the presidency — In the mat- 
ter of Rose Learmouth. — 2'!. M- 120. 

44. Section 2i6— Letters of administration 
granted by District Judge — property outside 
jurisdiction of District Judge — Grant of fresh 
letters of adininistration by High Court. 

When letters of administration to the 
estate of a deceased person are granted by 
a District Judge, and it is subsequently 
discovered that some of the property of the 
deceased is outside the j irisdiction of the 
District Judge, letters of administration 
granted by the District Judge, must be revok- 
ed before the High Court can be moved 
to grant fresh letters of administration, which 
would have its effect throughout British In- 
dia.— Iji the Goods of ROSEANNE D'SILVA, 
-W. ST. All 1903, p. 62-25 A- 855. 

45 Section 250 — Citations. Publication of — 
This was an application for letters of ad- 
ministration with a copy of the will annexed, 
made by the. attorney of the executors of the 
will of the deceased, who died at Toronto In 
Canada, leaving, amongst other property, 
certain property within the jurisdiction of 
the High Court. Probate of the will had 
bcon duly taken out by the executors in 
Canada. 

On the question as to the mode of issu- 
ing citations to the parsons Interested, the 
High Court ordered that citations wou!d is- 
sue, under the special circumstances, by re- 
gistered letter, with acknowledgment due, 
from the High Court. In the goods op 
FREDERIC NICHOLSON— A. W- N- 1903- 
P- 31. 

45(a) S 2.59 See Practice-mode of issuing 
citations Frederic Nicholson in re A. W. N. 1903 
P. 31. 

46. S. 263 and S. 86 Act V of 1881. 

The D. J. ordered the applicant to pay 
Court fees on his application for letters of ad- 
ministration. The applicant appealed against 
this order contending it was appealable under 
S. 86 Act V of 1881. Held no appeal lay un- 
der C. P. Code and the Rules thereunder. 
KADIRJAHAN BEGAM v. UDIT NARAIN 
3 B R 44- 

47. S. 283 — See Execution sale. BAI ME- 
HER BAI V. MAGANCHAND— 29. B- 96- 

48. Sections 297, 326 — Will. Construction 
of — Tntst — Payment of debts and legacies — 
Residuary legatee — Exccutoi's year. 

The combined effect of sections 297 and 
326 of the Indian Succession Act, 1865, is 
that a residuary legatee becomes entitled to 
the residue after the executors have paid the 
testator's debts and legacies, a.nd that no 
lagatce can insist upon being paid within a 
year from the testator's death which is here 
fore, called "the executor's year." For 
one year from death no legacy, residuary or 



p 



( 93 ) 



CIVIL DIGEST OP CASES. 



( 91 ) 



I Sup: Govt. Acts (Act X of 1865) (Cont.) 

) otherwise, can be claimed. One year is given 
by the law to the executors to liquidate the 
estate. On the expiration of that year the 
moment the estate is liquidated, the leyatees 
can insist upon being paid; the moment 
the debts and legacies have been paid, the 
residuary becomes entitled to the residue, 
and if there are more than one residuary, 
the residue then becomes divisible. 

Where the Will is silent, the law says 
that as soon as on the expiration of "the 
executor's year" the executors have liquidat- 
ed the testator's estate, that is, reduced 
it into possession, and paid his debts and 
legacies, the residue becomes "free for 
enjoyment by the heirs" or, iu other words, 
"divisitle," whether it is actually divided 
or not is immaterial, if it is in a condition 
to be divided. 

It was provided in a Will that the share 
of the testafor's son A. should be made 
over to him absolutely "if at the time 
the saJd residue is divisible my son .1. shall 
have no debts due by him or any liabi- 
lities likely to result in a debt or debts 
of more than fis- 5,000," but "if otherwise 
the said share shall be held or settled" 
by the executors "upon trust until the said 
A shall be free from such debts and liabilities 
or until he shall die. 

Held, on construction of the Will, that 
the words "such debts" could not be treated 
to mean all debts whenever contracted but 
they meant only "those debts," which existed 
at the time the residue became divisible. N. 
C. M.'^CLEOD V. SORABJI EDULJI WAR- 
DEN. 7 B. L- R- 755. 

48 («)■ S. 331— See 9 O. C. 169 Supra 
No. 23. 

48 (6). S. 326— See 7 B. L. H. 753 Supra 
No. 48. 

49 S. 331— as -Profcrt/e and Administra- 
tion Act ( V of 1S81). AppUcabilitij of- Sikhs- 
Brahmos — Effect of lapse from orthodox 2>rac- 
ticcs — "Hindu." 

A Sikh is included in the term Hindu 
as used iu the Probate and Administration 
Act, 1881. L. R., 5 I. A., 87, L. R., 6 I. A., 
15, 2 Jlorley's Digest 22, 9 M. I. A., 195 
referred to. 

A Sikh or Hindu by becoming a Brahmo 
does not necessarily cease to belong to the 
community iu which he was born. 

Where it was objected that the deceased 
testator in matters of diet and ceremonial 
observance had dep,\rted so far from the 
standard of orthodoxy binding upon him 
as a Hindu or Sikh as to exclude him 
from the term Hindu as used in the 
Letters of Administration Act — 

Held, that such lapses from orthodox 
practices assuming them to be established, 
could not have the effect of excluding from 
the category of Hindu in the .Act one who 
was born within it, and who never became 
otherwise separated from the religious com- 
munion in which ha was born (R.\NA) 
BHAGWAN KOEB i'. J. C. BOSK AND 

OTHERS. = 135 P. L. R., 1903 = 84 PR, 



Sup: Govt. Acts (Act X of 1865) (Cunt./ 
1903=5Boin.Ii 11,845 = ML J, 1903 
P 391=7 W N. Cal , 395 (P C ) = 31 C. 11 

(P. C.) 

150 Sections 332 £ 190-(& Probate i£ Ad- 
ministration A.cl V of 1381. 

There arc no rules under Section 332 
Succession Act, exempting people of the Chin 
race from the provisions of that Act. 

If Chins are Budhists they will be gov- 
erned by the provisions of the probate and 
Letters of Administration Act V of 1881. 
Under S. 85 of tliis Act it is open to a Judge, 
to refuse letters of administration. 

There is no counter part of Section 190 
of the Indian Succession Act in the Probate 
and .\dministration Act. A suit in respect 
of the property of an intestate Budhist Chin 
can be maintained without letters of adminis- 
tration having first been granted. 

The necessity of stating clearly under 
what Act and sections lettei's of adminis- 
tration are is.sued pointed out. 

An application for letters of administra- 
tion can not be converted into an application 
under the Guardians and Wards Act VIII of 
IR'JU. MAHLA y. MAUXG PYIN. L. B. R. 

1900-1902 P. 193 

21 Act XXI Of 1865— (Parsi Intes- 
tate Succession Act) 

1 I'arsi Succession Act (XXI of ISiiJ) 
Section 2. 

Under section 2 of the Parsi Succession 
Act, 1865, the property of a female dying in- 
testate devolves upon her husband and child- 
ren so that his share shall be double the eliaro 
of each of the children. The words of the sec- 
tion are very vide. There is no distinction 
as to estates whether in possession or remain- 
der, nor does the Act say from what date it 
shall come into force. SHAPURJI D. SAK- 
LATVALLA v. RUSTOM.II SHAHPURJI. 
5 B. L R. 252. 

2 Farsee Intestate Succession Act {XXI vj 

1SG5\— Succession — Parsees—UsaQC of the com- 
munity. 

Before becoming into operation of tho 
Parsee Succession Act, 1865, the law governing 
Parsees in the mofussil was the ascertained 
usage of the community modified by the rules 
of equity and good conscience. In such cases 
the practice of the English Equity Coui-ts 
would, it is true, be followod with necessary 
moditioatious; but the reference to these 
Courts would be not for the purposes of intro- 
ducing special or peculiar doctrines of Eng- 
lish law, but rather with the purpose of elu- 
cidating the principles of equity an-d good 
conscience and of giving systematic and uni- 
form effect to them. SHAPURJI BEZON.II 
MOTIVALL V. DUS.5ABHUY BEZONJi 
MOTIVALL, 7 B. Ii. R. 988 = 39 B.359. 

(3) See Succsssion Act Na. IS. 7 B. L. R. 
207. 

22 Act XXV Of 1866 (Unclaimod 
deposits Act J 



( 95 ) 



CIVIL DIGEST OP C ^ SES. 



( 96 ) 



Sup: Govt. Acts (Act -IKy of 1869) CCwi/; 

Uuder this Act all monies paid into or 
deposited in the High Court in the Coursa 
of sviits and remaining unclaimed for 20 
years are to be trynsferrod and paid to 
Uovevnmeut; but they are liable to repay- 
moiit en subsequcut (jstablisbmOL.' of claim 
to High Courts satisfaotioii. An application 
(or ita withdrawal is not governed by any 
iirticle of the Limitation Act. APURBA 
KRISHNA ROY v. CHUNDERMONEY DE- 

Bl 10. C- W- 2-.' 354- 

23 Act XXVII of 1866— fTrustees 

Act). 

Trustees Act {XXVII of 13GC^ Section 3 
— Trustees and cestui que trustent all Hin- 
dus — Applicability of Enylish Law — Trust vio- 
iatimj some. 2»'ovisi0H of Hindu Law. 

N. applied for leave to sell a certain 
portion of certain trust premises for the 
purpose of raising money to jay for pome 
necessary repairs. It was contended that 
the Indian Trustees Act was by section S 
limited in its operation to those cases in 
which the English Law was applicablo ; 
r«nd that the law was not applicable to a 
trust in which the trustees and cestui que 
trustent were all Hindus. 

Held, overruling the contention, tlia,t to 
exclude the applicability of English Law it 
must be shown that the trust was one which 
violated some provision of Hindu Law. — Jn 
ie NIEMONEY DEY SARKAR. 9 W. N- 

Col , T9.=82- C- 143- 

24- Act XXV of 1867 (Printing 
Press and Registration of booKs). 

§. IS— See Act XX uf Itii?. Nus 1 and 
2. 

1. C. L. J. 278 = 9. C. W. N. 591 and S. C. 
L.J. 511 = 10. C. W.N. rii=3il. C. 571. 

25- Act XXX of 1867 (Printing Tresses 
Act). 

See Act XX of ISr, No 2. 2. C. L. J. 511. 

28 Act IV of 1869 (Divorce Act). 

1 S- 2 — 'I'he I : j ct 01 ludian Divorce 
Act IS to afford rciei to persons, who, whilo 
not techuiciiUy domiciled in India, are resi- 
dent ihcve, for a considerp.blo time even 
though without intention of permanent set- 
tlcineiiLt, 

la §2 the word "reside" implies a 
dwelling either of a permanent nature or for 
seme considcable time. 

It does not apply to a person who has a 
permanent abode elsewhere and whc merely 
comes to India for the purpose of filing a 
suit under the Act with the intention of 
returning to his permanent ?.boue oa the 
conclusion of the litigation. — H B.227, hi, B. 
541, 21. C. 6U, 8. U. 205, 3 C. W. N. 2.i0, L. R. 
2 P. [}. 2:13 referred to. WILFRED CO0JIBE3 
t;. MAUY L.,;UISA COOMBES.— L- B. E- 

1900-03- p. 222- 
2 Divorce Act (IV of 186S), S. S (S)- 

JudicuU sepurr.i.on — J;(/j.si,'!i(jo)i. o; Court — 
" liasi rcudcd'—KiiUencc-^VncorroiMratcd — 



ont.) 1 

tina :! 



Sup: Govt. Acts (Act IV of 1869) (Cont 
testimony of wife. 

On appeal against a decree granting 
j'ldicial separation passed by tho Divisional 
Judge of Lahore on the application of the 
wife, it was contended that the Court lia('. no 
jurisdiction to entertain the applioatien. It 
appeared that the homo of the appellant, 
the husband, was at Lahore, where he lived 
till 1898, when be went to Africa !ci em- 
ployment, lie returned to Lahore after two 
years on a few months' leave for the purpose- 
of getting married. Having rented a house, 
he took his wife to this house immediate- 
ly after marriage, spent one or two days 
there and returned to .\frica with his wife. He 
again loft Africa for India after about a 
year's residence, spent two or three weeka 
with his wife at her parents' house at Saha- 
ranpur, left her there and never lived with 
her again. 

Held, that the objection bad no £oroe and 
the Lahore Court had jurisdiction. 

The Court would not accept the uncorro- 
borated testimoney of the wife, that her 
husband bad committed or attempted to 
commit an unnatural offence on her p2rson. 
ALL.\RD V ALLARD— 161 p. L- E-, 1905 = 

77 P R 1905- 
3 Divorce- Act (IV of 1869) S-7SiiU 

for judicial separaUon by wife — Divorce — 
' Wife's costs. 

In this case on the proceedings o£ divorce 
and judicial separation the wife sought to 
make hei- husband liable for her costs. The 
husband and wife ware Greeks, domiciled in 
Greece and married at Alexandria. 

It was contended that the High Court 
had no i irisdiction to act in the matter, 
since the English law applicable in such 
cases did not apply. 

Hd'l, tbi.t the coatentioa was wrong. 
The Court was competent to act and give 
relief on principles and rales existing in 
England, and was authorised to make such 
an order as was sought for. 

Held, also, that ia cocidering tho sub- 
stantial question requiring dclermiuation, it 
has to be borne in mind, that the question of 
whether the wife is or is not to have her 
costs depends upon the proi>irty w'aich the 
v.-ifo may be supposed to have. If either 
under the Marriei Womi.n's P.oporty .\ct 
in England, or under the Succession Act in 
India, it appeai'.-i that the woman retains hor 
property m .'^pite of her luarriago, she will 
not be eutitlad to her costs. 

Held, further that tho wife was entitled 
to her costs, ad her position in relation to 
her husband as regards her property was 
govcx-aed by the law of Greece and there 
was no evidence as to what that law might 
be. 

The general principle governing such 
cases is — It is not considered just either that 
a wife should be loft without the means of 
putting her case fairly before the Court, or 
that a practitioner should run the risk of 
los:n_! the proper remuneration lor his 
labours, if he takes up a case which ha 
houestlj' believes to be genuine, but which 



< 97 ) 



CIVIL DIGEST OF OASES 



( 98 ) 



Sup:'Govt. Acts (Act IV of 1869) rCon^) 

may after all turn out to lie unfounded — 19 
Bom., 295, followed. GEORGUCOPULAS v 
GEURGUCOPULAS— 29 C- 619- 

4. Ss. 7, 11 and 45 S- 7, ll-and 45- 

Civi', rrocidtnc Code (Act XIV of 1882;, 
Section 32 — Petition for divorce — Bight of 
alleged adidtcress to intervene. 

In ft petition lor divorce by a wife against 
her husband on the ground of adultery, the 
person with whom the husband is alleged 
to have committed adultery, has no right to 
intervene as a respondent. (EDITH JANE) 
EAMSAY V. (ELLEN THOMAS) BOYLE, - 

7 W- N-, Cal., 504=80 C 489- 

6. Divorce Act (IV of 1869 ) S 17— 

Divorce — Adultery of wife — Collusion of parties. 
The petitioner applied to the Higli Court for 
confirmation of tlie decree nisi for dis- 
solution of her marriage with the respon- 
dent passed by the District Judge on account- 
of adultery and cruelty on the part of her 
husband. The High Court directed the 
District Judge to hold a further inquiry in 
regard to certain allegations of misconduct 
made by the respondent against the peti- 
tioner, his wife; and on inquiry it was found 
that the petitioner had committed adultery 
previous to her filing the petition for di- 
vorce, and, notwithstanding the prohibition 
contained in Act No. IV of 1869 against 
the remarriage of a divorced person at any 
time within six months after the decree nisi 
was made absolute by the High Court, the 
petitioner went through the form of mar- 
riage with a man exactly one fortnight after 
the decree nisi w.'.s passed, and that the 
parties had colluded in making the applic..- 
tion. The High Court on the above grounds 
refused to make absolute the decree nisi 
passed by the 'District Judge.— A. CRAW- 
SON V. W. GRAWSON.— 2- A- L- J- 420 = 

A- W- N- 1905. p. 141. 

6- S- 2Z— Statute 20 and 21 Vic. Cap. 
LXXXV— Divorce Act {IV of 1869), Sections 
2:i, et seqq — Judicial separation — Desertion bij 
petitioner tt'ifhout reasonable e.ccuse. 

Desertion without reasonable excuse con- 
stiiutes no bar to a suit for j idioial separa- 
tion. 60 La'O Timis 261 foil Moed.-M\Ra.\- 
KRT ARTHUR v. HARRY ROBERT AR 

THtui. \V. N ALL-, 190i. P- 133 =1- A- 
L- 321=28 A 553 

7. Cioil Procedure Code, Section 230— 
Costs. 

In this case the husband petitioned for 
dissolution of marriage by reason of his 
wife's adultery with the co-ri:r,pondent. Costs 
but uo damages were askod for against the 
co-respondent. The Court granted a decree 
nisi with costs against the co-respoudont; 
costs as betwjen ottornoy and cUsnt were 
allowed. OUTlIvVAlTE u. OUTHWAITE 
AND DIAZ. 28 Car, 84 

8. Divorce Act (ly of 1869), S- 55— 

S%ut for Judicial scpa/ation oil, tha ground 



Sup: Govt. Acts (Act IV of 1869) (Cont^ 
of adulteri) a7id cruelty — Charge of adultery 
held not proved and petition granted on the 
ground of auelty — Appeal against findings by 
party in tohose favor the decree is passed — 
Civil Procedure Code (Act XIV of 1H82), Sec- 
tion ,'JiO. 

The wife instituted proceedings against 
her husband for a judicial separation on the 
ground of his adultery with a certain per- 
son. During the course of the trial the 
petition was amended by adding a charge 
of cruelty. A decree for j idicial separation 
on the ground of adultery was granted, the 
Court finding against the wife on the issue 
as to adultery. On appeal by her to set 
aside the finding as to adultery — 

Held, that the appeal did not lie. 6 Cat., 
306 and 319; (F. BJ: 6 W. R., IS (Mis); 7 AIL, 
600; 31 All, 111; 18 Cal.. Oil; 11 CaL, 30i 
(P. C); 3.5 L. J. P., and M., lOi; 43 L. J. 
P., and D., 6, 1 S. and T., 16S; 38 L. J. 
P., .55; 37 h. J. P., 77, referred ^o.— CGRAOK 
HANNAH) WINGROVE v. (ARTHUR CLE- 
MKNT) WINGROVE. 84 P- L- K> 1904- = 
56 P- R 1904. 

27 Act VII of 1870 (Court Fees Act) 

1. Ss. 4, 5> & \Q— Stamp duty on objections 
filed tinder Section 361, Civil Procedure Code, 
not payable before hearing. 

Under section 16 of the Court Foes Act 
the stamp duty on objections made under 
Section 561 of the Code of Civil Procedure 
need not be paid till the time of hearing. 
REFERENCE UNDER COURT FEES ACT, 
SECTION 5. 25 M. 24. 

2. Ss. 5 & \2— Civil Procedure Code (Act 
XIV of 1883) Sections 3 and 5ii- Appeal against 
order rejecting application under Section 53a. 

.An appeal against an order rejecting a 
petition under section 525 of the Civil Pro- 
cedure Code is cUartjeable with a Court-fee 
of Kupe-js ten only. 

The order of the Taxing Judge of a High 
Court upjn the question of proper Court-fee 
payable on a manutandum oc appjal is final. 
LlJRivHUR CHvUBR v. RVM BHaJ \N 
GH.\UBE. A. W. N 1903 P> 214- 

3. Ss. 6, 38—* C. P. C. Section 58'} (a) 
unstamped memorandum of apveal filed in time 
—Stamped afl'-r expiry of limitation. 

On the last day allowed by limitation, the 
plaintiff presented an appeal on plain paper 
in the Court of the Civil Judge, who refused 
to acovspt it. On the following day the m.i- 
morandum of appeal was asjain pv.'Sontcd pro- 
p.n-ly stamped. Held that the Civil Ju.lge 
rightly dismissed the appeal as time barred 
I'i A. 12'J, 26 C. 92-3, 22 B. 849 follov/ed and 
ir,-".!. 7i disapproved. M -BOTI GU-HtATl 
c. GO VINO H ,0 BOOTI. IG C P. L- R. 
;903 P 89 

4- Ss. 6> 2%—IiiS'ifficie>'.lly stamped p' n 
— Makinj up of stamp duty, after the per..oU •jf 
liinitaiion for the suit — Validity of the plaint— 
Civ. Pro. Code, Ss. 48 and oi. 



( 90 ) 



CIVIL DIGEST OP CASES 



( 100 ) 



Sup; Govt. Acts (Act VII of 1870) (Co»<j 

Held, (1) tliat the Court Fee.s Act and 
the Civ. Pro. Code should be road together in 
regard to the presentation of plaints and the 
making up of stamp duty, but not with the 
provisions of the Limitation Act, which is 
not an Act in pari materia; (2) that, under 
S. 54 of the Civ. Pro. Code and S. 28 of the 
Court Fees Act, deficiency in stamps can bo 
made good by order of Court, even after 
the limitation for the suit has expired ; (3) 
that, under S. 23 on the making up of the 
deficiency of stamp duty the plaint and all 
proceedings arc validated from the date of 
original presentation, and (4) that, once the 
stamps arc taken by the Court, the order 
cannot be subsequently set aside, nor the 
original presentation invalidated. — 130 P. B. 
18U0, 74 P. B. 1903, 3 P. R. 1893, 156 P. R. 
1888, Appr; 27 A, 411, 23 A. 423, Diss; 12 A. 
129 (F. B.), 15 A. 65 (P.B.) 24 A. 218, 19 C. 780, 
27 C. 814, 31 C. 75, 15 M. 29, 15 M. 78, 22 M. 
494, 27 B. 830, 11 A. 241 (P.C), R. refsrrd to.— 
SAIP ALI KHAN v FAZIL MEHDI KHAN. 

123 p. R- 1907 

5 Ss 6 and 28— ^'c/iciewcj/ of Stamp made 
•up. 

In the absence of proof that there was 
fraud in filing a plaint insufficiently stamped, 
the payment of stamp duty, relates back to 
the date of the presentation of the plaint as 
a proper plaint. ALAYAKAMMAH v SUB- 
BABAYA GOUNDAR.— 15 M- L- J- 219- 

6- Ss. 6, 9, 10, 28— P'""'* registered—de- 
ficiency of Cvart'fce saliscqucntlii discovered — 
Limitation Act, S. i—Civ. Pro. Code S. 392. 

When a plaint has been registered, and 
the Court subsequently finds that a sufficient 
Court-fee has not been paid, it is bound to 
stay the proceedings and to fix a time within 
which the additional foe can be paid, without 
any regard to the period of limitation pre- 
scribed for the suit. If the fee is paid within 
the time so fixed, the plaint is as valid as if 
it had beeu properly stamped in the first 
instance when it was presented. 

The Court is not bound to appoint a com- 
missiouer to hold'an investigation under S. 
9 of the Act, and S. 10 applies even where the 
Court itself holds the enquiry as to market 
value &c. 

Slistake is a slip made, not by design, but 
by mischance, and !S. 28 is subject to no such 
limitations as were suggested in Balkaran 
Rai v. Gobind Nath Tewari. 12 A. 129 ref ea- 
red to. It is a universal section and em- 
braces a wider area than Ss. 9 & 10. 

History of Sections 9 and 10 of the Court 
Fv.'s Act was fully discussed by Knox, A.C.J, 
/"e/- Knox, .K''.J. — The v/ords "insufiiciently 
stamped" cannot be added to the word 'plaint' 
in the expl.matiou to S. 4, Limitation Act. 
N. W. P. 1874, 139, referred to. 

The plaintiff valued his suit at 15 times 
the net profiia which he alleged to be Rs- 
45. The plaint was registered. On defen- 
dant's objection, the Court of first instance 
found that thj property was undervalued, 
and dismissed the sait, without giving the 



Sup : Govt. Acts (Act VII of 1870) (Cont.) 

plaintiff time to make good the deficiency in 
Court-foe. 

Held, that the Munsarim's duty not 
being a piece of perfunctory routine, and the 
plaint having been registered on his report, 
the Court was bound to give the plaintiS 
time to make good the difioieucy in Court- 
fee, if any was sul)sequontly discovered. S. 
23 of the Court Fees Act applies to such a 
case. HARI RAM v AKBAB HUSAIN.— 4 

A L J. 636 (F.B ) = A. W- N- (1907) P 
253 = 2, M L- T- 375- 

7. Ss. 6, 9. 10. and 2%— Civil Procedure 
Code (Aol XIV of 1882), Sections 48, 54— I/imi- 
tation Act (XV of 1877 j, Section i— Plaint filed 
Oil the last day of limitation insufficiently stamp 
cd owing to requisite stamp not being procurable 
In time — Sta-mj} procured later on during the 
day but not filed owing to Court rising early. 

A plaint was filed in the Court of the 
District Judge on the 14th April 1903, the 
last day of limitation for the suit. The plain- 
tiff affixed an 8-anna court-fee stamp to hig 
plaint and stated that the treasurer had no 
court-fee stamps of th3 proper denomination 
and the plaintiff was told by the treasurer ta 
wait until the Treasury Officer should com& 
down to the Treasury and open double locks. 
The District Judge recorded an order making 
over the case to the Subordinate Judge, 1st 
class, and adding a direction that the defi- 
ciency should bo made up. The plaintifl on 
the same day procured the requisite stamp 
but on taking it to the District Judge's 
Court found that that officer had gone home. 
Nothing was done on the 15th April 1903. 
On the 16th the plaintiff filed the full stamp 
in the Court of the Subordinate Judge. It 
was contended that the suit was barred by 
limitation. 

Held, by the Pull Bonch, that the con- 
tention was not valid, for the plaint must be 
treated as properly stamped on the 14th 
April 1903, when the plaintiff had procured 
the requisite stamps. 130 P. R., 1890, 3 P. R., 
1893, 38 P. R., 1900, s. c. P. L. R., 1900 p. 189 
referred fo.— MEHTAB RAI v GOPAL RAI. 

152 p. L. R. 1905=104 p. R. 1905 (F- B > 

8- S-7 (l'V)—Suits Valuation Acts (VII of 
1SS7), Sections 7, 8 and 9. Rules under — 
Punjab Courts Act (XVIII of ISSi), as amend- 
ed by Act XXV of 1899, Section 70. 

In cases in which a fee is leviable ad- 
valorem and w'uioh are not govarned by rules 
framed under the Suits Valuation Act, the 
value for the purposes of section 70 (1) {b) of 
the Punjab Courts .\ct is the value assessed by 
the plaintiff for the purposes of Court-fees, 
and in ad valorem Court-fee cases governed 
by Rules framed under the Suits Valuation 
Act, the value for the purposes of that clause 
of the Punv.b Courts Act is the value asses- 
sed by the plaintifl in accordance with the 
Rule applicable. 

The only ad valorem cases in which sepa- 
rate values for purposes of jurisdiction and 
Court-fees can be assessed are cases governed 
by rules framed uuder the Suits Valuation 



( 101 ) 



CIVIL DIGEST OF CASES 



( 102 ) 



Sup: Govt. Acts (Act VII of 1870) iCont) 
Act, and tho effect of riilo IV (a) framod 
under section 9 read witii liectiou 7 (Iv) of 
the Court Fees Act, is tliat the amount of 
Court-fee payable is to bo computed on the 
value assessed under clause (b) of the Rule. 
P. «., 63 of l'JO'2 ; 17 Cai., 680 ; 24 Mad., 34 ; 18 
nom., 207; 50 P. R., 1806 referred to. NAJM- 
UD-DIN V. MUNICirAL COMMITTEE, 
DELHI.— 6 P- R. 1904 

S- 7> Clause (iv) — Vabtalionof claim 
— Plaintiff iiM entitled to fix arbitrary value of 
his claim. 

Section 7, clause (iv) of the Court-Fees 
Act does not contemplate that a plaintiff 
should assign an arbitrary value to the sub- 
ject-matter of tho suit for purposes of Court- 
fee inconsistent with his own valuation in the 
plaint of the property claimed by him. 

The plaintiff prayed for settlement of 
accounts and recovery of ono-ninth share of 
the joint property of the parties, such share 
being valued at Rs. 50,CX)0. The plaint 
alleged that plaintiff and defendants were 
joint, plaintiff's share being one-ninth, and 
that their business was conducted jointly 
until August 1900, when defendants repudiat- 
ed plaintiff's rights and turned him out of 
the firm. The plaintiff valued the whole pro- 
perty of the firm between four and five lacs 
of rupees. The plaint fixed the value of 
the relief sought for at Rs. 5,250 for the 
purposes of the Court Pees Act. 

The District Judge returned tho plaint 
for amendment for re-valuation of the pro- 
perty and for the plaint to be stamped accor- 
ding to tho valuation. 

Held, that the order of the District .Judge 
was correct. HAKI CUANU o. JIWAN- 

MAL.— 65 P- L R , 1903-28 P- E 1903- 

10 S- 7 fIV) and IX—Hednin^lion suit- 
See -J? A. 44/' No. 6(1 intra. 

11 §7(iv)(b)andSch. II Artl7(6) 

ValuatioH — Gompaialion — Court Fitu 

Suil for partition — Relief sought — Change in 
the mode of enjoyment — Enforcement of a 
disputed right. 

The valuation for the computation of 
Court-Fees of a suit for a suit for partition 
depends upon whether the relief sought is 
merely a change in tho mode of en j jyment 
of the property or tho enforcement o£ a dis- 
puted right, i G. L. R. 417, 8 0. 757, 20. C. 
762, 20 M. 289, 22 B. 315, 21 M. 234, 18 B. 209 
referred to. 

Where the plaintiffs aro admittedly out 
of possession and the extout of the j >int 
family property as definitely stated the piaint 
should be stamped on the value of the share 
claimed ad valorem. SRIPATI v. SHRI- 

DHAR,-15 C- p. L. R. 1902 p. 120- 

12 § 7 (IV) (G)— Specific Relief Act {I of 
1877), Section 39 — Cayiceltation of document.^ 
suit for — Declaratory decree — Consequential 
relief. 

A suit for cancellation of a sale doed 
under section 39 of the Spooific Relief Act 
is a suit for a declaratiou and a oonse- 



Sup: Govt. Acts fAct VII of 1870) iConl.) 

quential relief, and seeliun 7, clause IV (c) 
of tho Court Fees Act applies to it. PAR- 
VATIBAI A(j»j MAHADEV u. VISHVANATU 

GANESH. 6 Bom, L. R. 1125 =29 B. 
207 

13. § 7 (IV) iC)— Suits Valuation Act, 
Sections 8 and 9 — Cancellation and delioenj 
of mortgage bond — Valuation of relief by 
plaintiff — Jurisdiction of Court to accept or 
revise plnintiff'i valuation. 

In cases falling under section 7, paragraph 
IV of the Court Pees .Act, the law expressly 
provide.^ (and only in that clas.s of s: its) 
that tho plaintiff should state in the plaint 
itself under sanction of verification tho 
amount at which he values the relief sought, 
and the Court has no jurisdiction to decline 
to accept tho same or to revise it, a power 
which is limited to cases provided for by 
section 9 which relates to an estimate gi .en 
by t'le pli i ititl of the annual not prj, ts 
of the land or tho market value of the 
l.iiid, house or garden as me itioued in 
section 7, paragraphs V and VI. 

Plaintiff sued for cancellation and delivery 
up of a mortgage bond for Rs. 4,000 executed 
in defendant's favour, on the allegation that 
no consideration had boon paid by defedant. 
For purposes of court fees and jurisdiction 
the plaintiff valued in the plaint tho relief 
sought at Rs. 50 and verified the same as 
part of the plaint. 

Jleld that no rules having boon framod 
under section Oof the Suits Valuation Act 
applicable to the cancellation and djlivery 
up of an instrument in writing, the plaint 
was properly sLampoi and the Court could 
not revise the valuation or di;cline to ac- 
cept the plaint. GHINNAMMAL v. MA- 

nARs.\ RoWTHiR. 14 M- li. of 1904 p. 
343-27- M. 480- 

14. §■ 7 (IV) (C)'-5pedfic Relief Act 
(I of 1877). Section 42 — Declaratory suit — 
Adoptioi — Declaration of invalidity of adop- 
tion—Will — Jurisdiction of Court — ihjection 
of plaint— Dismissal of vexatious suit with- 
out investigation of claim — Abuse of process- 

D. T. was common ancestor of the parties. 
His eldest sou succeeded him and died hav- 
ing adopted his daughter's son One of his 
grandsons sned«his father, defendant No. 1, 
tho adopted son, defendant No, 2 and his 
deceased uncle's sons, defendants Nos. 3 and 
4, for a deobration that the adoption of 
the second defendant was invalid and that 
Will executed by the adoptive father and 
proceedings and decrees and j.idgments in 
certain civil cases wore not b.ndingon the 
plaintiff. The Court of first instance was 
of opinion that tho suit was chargeable 
with ad-vnlorem fee with reference to the 
value of the estate iu dispute in regard 
to which the declarations were sought, ft 
was contended for the defendants that tho 
suit was vexatious and the plaint should 
be rejected, and that the declarations asked 
for should not be made. 



( 103 ) 



CIVIL DIGEST OF CASES 



( 104 ) 



Sup: Govt. Acts (Act VII of 1870) {Cont). 
Hdrl, that the suit was for mere declara- 
tions and ad-valorem Court-feo was not re- 
quired. VIJIA SAMY TEVAR v. 3.ASI 
VERMATEVVAB, 15. M- L- J- 469 = 28. 

JH 560 

15 S- 7. •Clause iv (C)— S«i< to en- 
force rcgistratioti. 

Held, that for a suit to enforce regis- 
tration the institution fee must bo calcu- 
lated under Section 7, Clause iv (c) of the 
Court-fees Act, according to the amount at 
which the relief sought is valued in the 
plaint. PYDAL NAMBIAR v. KANNAN 
NAMBIAB. 12. M- L- J. 87- 

16 S. 7 IV*C — Suit by a member of Mala- 
bar Tarwad to set aside contract made during 
his minority by adult members of the Tarwai 
— Nature of suit — Bule No. 2 of High Court 
Rules {Madras). 

Where a member of the tarwad brought 
a declaratory suit that his right as a mem- 
ber is unafiected by a Icarar, eutorod into du- 
ring his minority by the adult members 
of the family including the kranavan, held 
that the transaction would bind members 
who are not actually consenting parties, 
only if the considerations, which pass, and 
the other attendant circumstauces, con- 
stituted it a valid exercise of the power 
of the karnavan and the others, but, other- 
wise, it is altogether void. Though a 
transaction, which is void, may, under 
certain circumstances, be cancelled by a 
Court, at the iustance of a por.son not 
party to it, on the groiinJ that it would 
throw a cloud on his title, it is not true 
that such a person must get rid of the 
transaction by having it actually cancelled, 
in order to rely on its invalidity as against 
him. The above suit is a suit for a mere 
declaratiou, and not one for declaratory 
decree with consequential relief falling with 
in S. 7, IV C. Nor does Rule No. 2 of the 
High Court rules (dated 2Gth February, 
1903) apply to such a case. That rule must 
be confined to cases of the precise description 
provided for by S. 7, IV C. viz., suits to obtain 
a declaratory decree or order where con- 
sequential relief is prayed. GrllNGACHAM 
YITTIL SANKARAN NAIR v. CHINGA- 
CHAJI YITTIL GOPALA MENON, 1. M- 

L T- 412=30 M. 18- 

17 S. 7 (IV) iG) -Civil Procedure Code 
(Act XIV of 18^2), Section 2S3 —Execution of 
decree — Attachment — Objection against — Decla- 
ratory suit — Valus of suit for p"'''P°^^^ °f 
jurisdiction. 

Where the sole quostiou between the 
pirties to the suit is whether the property 
attached in exocutioa of a decree is or is not 
liable to be attached and sold, the value of 
the suit is the value of the property sought 
to be sold in exoaufciou of the decree, when 
the amount of the decree exceeds the value 
of the property sought to be sold, and the 
value of so much of the property sought to 
be sold as will, on sale, satisfy the amou"^ 



Sup: Govt. Acts (Act VII of 1870) {Cont.) 
sought to bo realized by sale of the property 
sought to be sold, when the value of the pro- 
perty attached exceeds the amount sought 
to be realized. In the latter case the amount, 
vphich is sought to be realized by a sale 
under the decree, may be taken as the value 
of that portion of tlie property, the sale of 
which will be sufficient to satisfy that amount 
by the sale. 

Where the j idgment-debtor is also a 
party to the suit, and the suit is by .the un- 
successful claimant obi 3ctor for the estab- 
lishment of his right both against the execu- 
tion creditor and the judgment-debtor, the 
value of the suit must be deemed to be the 
value of the attached property, although the 
amount of the decree be smaller than the 
value of the property, but where the olijjct 
of the suit is only to establish either the 
right of the decree-holder, as against the 
ohj 3ctor or the right of the objector as against 
the decree-holder, the value of the .suLj^ct- 
matter, where the amount of the decree is 
loss than the value of the attached property, 
is the amount of decree. DHAN DEVI w. 
ZAMURRAD BEGAM. A. W. N. 1905 P. 
37 = 27 A 440. 

18. S- 7 IV (C)— Court Fees Act (VII of 
1870) Section 17 — Suit to obtain a declaratory 
decree or order tvhcre consequential relief is 
prayed.^S. 7 IV C. 

When the plaint prayed to set aside 
an alleged illegal auction sale and a declara- 
tion of right and possession in respect of the 
property in dispute, lield, that thi salt fell 
within clause C. section 7 of the Court Pees 
Act, as a suit to obtain a declaratory decree 
or order, where consequential relief was prov- 
ed for.— 9 Cal, 230 approved. MAHOMED 
TAKIBUDDIN v. The COLLECTOR OP 
THE 21 PARGANAS, 6 C "W. N. 157. 

19 S. 7 (IV; (C) (d)— Suits Valuation 
Act ( VII of 18S7 ;, Section H - Valuation of suit 
— Jurisdiction— Gourt-fee — Suit for declare 
tion of title, compensation and injimction. 

The plaintiff claimed to be in possession 
of a jungle and brought a suit for decla- 
ration of his title thereto, for damages 
for trees cut therefrom by the defendant 
and for an injunction restraining the 
defendant from cutting any more trees. 

Held, that in such cases the valuations 
both for the purposes of jurisdiction as 
well as the court-fees, is to be determined 
by the value of the relief stated by the 
plaintiff in his plaint, and it is no part 
of the duty, nor is it within the power of 
the Court, to a=icertain the value for the 
purposes of determining the jurisdiction or 
the amount of court-fee. Such cases fall 
within section 7 (IV), els. (t) and (d) of the 
Gourt-Pee= Act 17 Bom., 56, 13 Bom., 207, 4 
All., 320, 15 All., 378, and 20 Mad., 289 fol- 
loiued. 8 Cal, 7.57, 17 Cal, 680 distinguished. 
HARI SANKAR DUTT v. KALI KU.MAR 

PATRA. 9 c- W- N 690 = 83 C- 734- 



( 105 ) 



CIVIL DIGEST OP CASES 



( lOG ) 



Sup; Govt Acts (Act VII of 1870) {Cent) 
20 S 7 sub-sec (IV). els (c) and (d) 

I — rC Cl^.C-i- 5J (b) Suit for declaration, and 
conseilitcntial relief — Valuation — Court's power 
to revise valuation of plaintiff. 

Although in uascs under S. 7, (IV), els. 
(c) and (d) of the Act, it is for the plaintiff to 
state the amount, at which he values the 
relief sought, yet it is onen to the Court, to 
determine the true valuation and take action 
under S. 54 of the Civil Procedure Code, 
if it is ostablishod that the valuation was in- 
correct. 

Where the suit was for a declaration 
that a mortgage-decree for Us- 10,000 obtain- 
ed by the defendant was fraudulent, and for 
an injunction to restrain the defendant from 
executing it by a sale of the mortgaged pro- 
perties. 

Held— that the prayer for injunction was 
a prayer for consequential relief within S. 7 
(IV), cl. (c) of the Act. 

That the proper value of the relief by way 
of ini uiction was the amount sought to be 
realised under the decree, and the plaintiff's 
valuation of the same at 4?s- 100 was so 
manifestly unjast that the Court was justifi- 
ed in rejecting the plaint under S. 54, G.P.C. 
32 C. 734, il., 17 C. 680 approved. MUSST. 
BIBI Uir.\TUL r. JIUSST. NAN.JI KOEU, 

UC-W-N 705 = 6C-L J 427. 

21- S 7 Cl IV (c) Art 15 of Soh. II- 

Snit for 2J0ssetsijn of wife — Appeal aijalnd 
order of costs. 

Held, that the class of suits contemplat- 
ed by Article 15 of Schedule II of the Court 
Foes Act are suits in which the questions of 
the marital relation is admitted, and in which 
there is a coutcut between the parlies, as to 
whether the defendant is justified in leaving 
the protection of her husband or in re- 
sisting his attempts to obtain possession of 
her; that article cannot apply to oisjs in 
which the parties are disputing as to whether 
the defendant was ever married to the plain- 
tiff or not, and in which the plaintiff seeks 
for a declaration that the defendaut is mar- 
ried to him, and only in the event of his 
obtaining this declaration prays for the 
consequential relief that the defendant should 
be ordered to live with him. In the latter 
class of cases Court-fees must be paid under 
Section 7, Clause IV (c) of the Court-Foes 
Act, according to the amount at which the 
relief sought is valued in the plaint. 

A party cannot place his suit under 12 
different articles of the Act saying that he 
pays Ks. 10 for declaration and Rs. 5 for pos- 
session of his wife. AMIR-UL-HUSSAINu. 
KHAIK-UN-NISA. 28 Cal., 567. 

22 S. 7 CI. (4) Sch. II Art. 17 CI 1- 

Sutts Valuation Act ( VII of 1SS7), Sections 
3, 7, 8, 11 — Suit for declaration of title to 
land — Valuati07i fixed for purposes of juris- 
diction --Court' a power to fix valuation when 
it is disputed. 

Per Russell, Ag. C. J. — A suit for a de- 
claration with consequential relief falls un- 
der paragraph 4 (i) of section 79 of the Court- 



Sup: Govt. Acts (Act VII of 1870) (Cont) 
foes Act and so it is a suii "other than" 
those referred to in paragraphs 5, G, 9, and 
10 (d) of that Section. 

The words "as determinable" in Section 
8 of the Suits Valuation Act mean determin- 
able by the Court which has to try the case. 

Per Aston, J. — There is no express pro- 
vision iu the Suits Valuation Act making 
the valuation for the purposes of jurisdic- 
tion prima facie determinable by the plain- 
tiff in any suit which can bo valued lower 
for the computation of Court-foes. Section 
4 of the Suits Valuation Act indicates that 
the principle adopted by the legislature for 
valuing a suit mentioned in Schedule II, 
Article 17, which relates to land or an in- 
terest in land, is that the value of such a 
suit for purposes of jurisdiction shall be go- 
verned by the value of the land or interest 
in land. Where such value is not detormiu- 
ed by Rules made under Section 3 of the 
Suits Valuation Act, the value must be 
(where disputed) determined by judicial de- 
cision in the suit, such determination being 
subject to the provisions of Section 11 of the 
Act. DAYA RAMJAGJIVAN r. GORDHAN 
DAS DAYA RAM. 8. B. L. E. 885 = 31 
B. 73 

23 S 7 Cl (IV) (c) and Sch. II Art. 17 

fiii) — Suit to set aside decree. 

A plaint iu a suit to set aside a decree 
falls within article 17 of the second schedule 
to the Court I'ocs Act sub-section (Hi) and 
not under Section 7 sub-section (iv) clause 
[c). ZINNATUNNESSA Kl-IATUN v. GIN- 
INDRA N.VTH MUICERJEli, 30- C- 788. 

24 S 7 (IV) C and Sch. II Art. 17 

Clause {6)—Suit to enfjree reijUtration. 

The Court-fee payable on a plaint or me- 
morandum of appeal iu a suit to enforce re- 
gistration, is a lixed fee of Rs. 10 under 
Article 17, Clause 12, Sch'idule IV of the 
Court-fees Act — r. L. R. VIII Cal., 51i, fol- 
lowed: 11 Mad. L, J. 87 not fyloioed. SAVA- 
RIMUTHU Pir.LAI i-. ALAGIAil PILLAI. 

12- M. L. J. 88- 

25.— S- 7 (IV) (c) and Sch. II Art. 

17(6). „ . 

A brought a suit under §. 77 Registraton 
Act to direct registration of a will which 
disposed of property more than Rs. 2,-OJO in 
value, hold Ssh : II Art: 17 (0) of theCourt 
FiOi Act applied to the case and not §. 7. 
IV (c) as it is a suit iu which it is not 
possible to estimate at money value the 
suljoi mxtter in dispute and is not other- 
wise provided for iu thj Act 8. C. 515, 12. 
M. L. J. S3 followed, and 12. M. L. J. ,S7 
d stcl. from. RAMA AIYAR v. SANKARA 

AIYAR. 17. M L- J. 573- (F B-) 

26 S. 7 (IV) C, and Sch II Art- 
17 tc). 

The cancellation of a document involves 
consequential relief, and the pin i -it in a 
suit for cancellation must bo stampel, uni-jv 



( 107 ) 



CIVIL DIGEST OP CASES 



( 108 ) 



Sup: Govt. Acts (Act VII of 1870) (Cont.) 

section 7 subsection (iv), clause (c), of the 
Court-fees Act, lfi70, according to the amount 
at which the relief sought is valv>ed. 

Tacnrden Tewarry v. Nau<ai> Sijcd All Hos- 
sein Khan and others, (2.i7if) 21 W. B., 340 ; 
Fog Narain Oirce v. 67-ish Chundcr Myteeand 
others, (187i) 2i W. R., 438 ; Samiya Maralu 
\. Minammal, (1900) I. L. R., 23 Mad. 490 ; 
followed. 

Shrimant Sagajirao Khanderao Naik Nim- 
balkar v. Smith, (1806) I. R. R., 20 Bom. ?3G ; 
Karam Kham v. Daryai Singh, {1SS3) I. L. 
R., 5 All. 3.W.- dissented from. MAUNG 
KYIN V. PO THIN AND ONE. 2. L. B 
R 1904 p. 266.- 

27 -S. 7, CIa.USe IV {d)—Suit for in- 
junction. 

Section 7 Clause IV (d) of the Court 
Fees Act 1870 refxuires that in a suit 
for an injanction the plaintiff shall state 
the amount at which he values the relief 
sought and the Court has no power to 
increase the value stated by the plaintiff 
GUEUVAJAMJIA V. VKNKATAKBISHN- 

AMA CHETTI. 24 Mad., 34. 

28- -S. 7 (iv) (d)— Suits Valuation Act 
(VII of 1887), Sections 8 and 9. Rules 
framed under — Suit for injunction — Valuation 
fm- purjjoses of court-fees and jurisdiction. 

Section 8 of the Suits Valuation Act so 
far governs section 7 (iv) of the Suits 
Valuation Act as to indicate that it was 
not the intention of the Legislature that a 
purely arbitrary value should be fixed by 
the plaintiff. 

It follows from section 8 and the rules 
under section 9 of the Suits Valuation 
Act, framed by the Chief Court, that the 
court-fee is payable in an injanction suit 
(when no damages are claimed) on the j iris- 
dictional value fixed by the plaintiff with- 
in the limits (Rs. 100 to 500) laid down 
by Rule IV. —X VII Cat, GHO : 50 P. R., 
1896; XVIII Bom., 207, referred to. NANAK 
v. GURANDITTA. 63. P. R. 1802- 

29- §• 7 (IV) (f)— Jurisdiction— Accounts.— 
Suit for— Amendment of plaint — Valuation. 

In a suit for an account the valuation 
for purposes of Gourt-fee.s anci jurisdiction 
does not disentitle the plaintiff to recover 
in the suit such higher amount as the evidence 
may show he is entitled to. The only re- 
striction is that he Cii.anot execute the de- 
cree without paying such ariditional Court- 
fee as may be due on the amount decreed. 
The valuation of a suit for accounts 
fixed bona fide by the plaintiff determines the 
Court-fees and jurisdiction of the Court, and 
cannot be altered so as to alter the juris- 
diction of the Court in which the suit is 
instituted. Where a suit was instituted in 
a Munsiff's court, for accounts, the Mun- 
siff appointed a Commissioner t'l take the 
accounts, and it was found that the Plaintiff 
would be entitled to a larger sum. Plantiff 
amended the plaint with court's permission 
and tne value ul the suit was increased. The 



Sup; Govt. Acts (Act VII of 1870) {Cont.) 

]\Iunsiff retui-uvd the plaint to be pre.sentud 
to proper court : Held ho acted illegally in 
allowing the value to be revised and he ought 
to have tried the case. AROGYA UDDAYN 

V. APPACH. 12. M. L. J. 35=25 M. 543 

30- S. 7 (IV) (t) Accounts— Suit for— 
Valuation — Court-fees — Jurisdiction. 

In a suit for an account the valuation 
first fixed in the pliint is final for purposes 
of jurisdiction and stamp duty on the plaint 
but does not preclude the' plaintiff from 
getting a decree for such higher amount aa 
the account may show he is entitled to. Ha 
must, however, pay extra stamp duty ia 
execution on such higher amount. 

Where in a suit for acoourts the Court 
required the plaintiff to pay ..^Idiiional Court- 
fees on the higher amount which might ba 
due to him over and above the amount 
claimed on the plaint and the plaintiff offered 
to relinquish his claim for the excess amount 
but did not pay the extra Court-fees, and tha 
Court dismissed the suit: 

Held, that the order of the Court waa 
erroneous, and the relinquishment made by 
the plaintiff would not bind him. SELLA- 
MflTHU BARVAGAR v. RAMASWAMI 

PILLAI. 12 M. L. J. 66. 

31. S. 7 (IV) (f ). Civil Procedure Code, 
Section 215 {a)— Suit for Accounts— Ajjpeal— 
Small Cause Court suit— Punjab Courts Act 
Section 40 (1) (i)—Furtlie> Apjnal—DeV c ency 
for Appeal to the Lower Appellute Coiirt—Ap- 
phcauon for heirs to be brought en record — 
Liviifution. 

In this suit the plaintiffs prayed (1) that 
accounts might be taken and e. planed to 
them; ('J) to be allowed to inspect the strong- 
room m which the offerings were stored; 
(8) for partition of such of the offerings as 
were partible, and for their shore on par- 
tition. The suit was valued at Rs. 13u, aa 
the approximate share of the plaintiffs, and 
at Rs. 500, on account of the inspection of 
the strong-room. The suit entailed the con- 
sideration of rules for the management of 
the Bajreshuri temple at Bhaun, Ksngra. 

The defendants were the Chowdhn.s and 
the plaintiffs were the rest of ihep ja,is and 
shareholders of the temple. It was declared 
by the First Court that the plaintiffs wera 
entitled to have accounts taken every six 
months. 

Bcld, that the suit was a suit for an ac- 
count though a share in the collections waa 
claimed ; and the suit was excluded by article 
31, schedule II, Act IX of 1887, from tha 
j.irisdictiou of the Court of Small Causes. 
21 Bom., 248; 37 Bom., 42, rt fined to. 

A further appeal lay under section 40 (1) 
proviso (i) under certificate granted by tha 
Divisional Judge. 

Held, also that the preliminary ordel 
directing accounts to be taken, being a decree 
was appealable — SAIL, 520; 3 Bom., ISi and 
18 Cal., 4G4, distinguished. 

Held, further, that further appeal wa» 
chargeable with atJ-taion-m Court Jbee under 



( lO'J ) 



CIVIL DIGEST OP CASES 



( no ) 



Sup: Govt. Acts (Act VII of 1870) iCorU.) 

Bcctiou 7 (IV) (/ ) of tho O^iurt i'cos Act. No 
question as to tliu aniOUUt> ur tb' Ice p.iyabie 
haviiiuT bean raised iu, or decided by tho i)ivi- 
Bion'.l Oouri, ;ho appellauts were not called 
upon L'l make up the delicioucy in that Court. 
P. B., llo of laSi, f Mowed. 

Having regard to the number o£ parties, 
applications for representatives to be brought 
on tho record for the parties who died pond- 
ing the appeals filed after the expiry of the 
period of limitation were allowed. KAKA 
KAM V. l\ K'.l ;5ARAN. P. R. 13 of 1901. 

32. S 7, CliVaseS 1 YS^-Mortgngp— 
Suits for sale of mortgage property onlij - Valu- 
ation of suit — Principal and ijitercst — Suit for 
vioney not for foreclosure — Mortgage vioneij. 
Meaning of— 

A suit instituted by tho mortgagee again.st 
tho mortgagor to recover the mortgage debt 
(principal and interest) by sale of exclusively 
the mortgaged property and not from the 
mortgagor personally or from his other pro- 
perty, is virtually a suit for money and not 
a suit for foreclosure. The suit does not fall 
within tho provisions of Section 7 Clause IX 
of the Court Pees Act. The court fee is 
chargeable on the whole am.ount of the claim 
inclusive of interest. 18 Horn., (596 followed. 
KAMA V. HABI. 7 B. L. R. 1905 P. 194- 

33. S. 7 (V) (b) id)— CoiiH-fee—Claivi 
for definite share of estate paying rcccnue to 
Qover)iment — Civil Procedure Code (.4ct XI i' 
of 1S82), Section 57 — Jurisdiction of Court — 
Return of plaint. 

The plaintiffs claimed, 3J shares out of 
5 shares forming a Khewat measuring 46 
bighas, 5 bisivas and bearing a jama of Rs. 92 
together with all the appurtenances. Tho 
village was a Bliayachara one and what tho 
plaintiffs claimed was a half share of the 
khata paying annual revenue to Go\-ernment, 
the area of the khata being 56 bigJuTS 5 
biswas. 

Held, that the claim being one tor a defi- 
nite share of an estate paying revenue to 
Government, court-fee on tho plaint was pay- 
able under clause {b) of sub-section V of 
section 7 of tbo Court- Fees Act. 

VVhon the Court holds that the plaint 
was filed in a wror»g Court intentionallv with 
R view to give jurisdiction to a Court which 
had no jurisdiction to entertain tho suit, the 
projier course would be not to dismiss the 
tuit, but to return tho plaint to be presented 
to the proper Court. 16 .4«.„ 2S(s referred to 
ZAHVKIAr. GOPAL. SAIL. L- J, 611 '- 

A W- N , 1906 p. 195. 

31. S. 7 (V). Grazing riglUs — injunction 
— Po6;ics6ion. 

The plaintiffs claimed their right to use 
the land iu suit for grazing pu-poses and sued 
for possossion and injunction restraining the 
defendants fx-om preventing the pjaintiffs 
from using the land for suoh purposes. Held 
that for purposes of Court-fee the suit must 
be ooniidered as one for possos.sion of land 
aud that uo extra Court-fee was reiiuired on 



Sup: Govt. Acts (Act VII of 1870) (Oont.y 

tho value of the wells and liuildings erected ou 
tlw laud subsecjueut to tlicir dispossession — 
i A. 320 \F. B.) referred to. RAMZAN v. 
ALLAH YAR. 78 P. L. R. 1903- 

35, S. 7 (V) — Suit for possession of land 
and not for redemption of mortgage — Court fee — 
Refund. 

Where the suit was cleai-ly one for pos- 
session cf laud, and not one for redemption of 
mortgage on payment of a certain sum duo 
as mortgage money, the nature of tlue suit as 
originally hrouglit is in no way affected by 
tho fact that the Court decreed possesion of 
the land on payment of a certain sum and 
that so far as ihit amount is concerned, the 
decree was accepted as correct by the 
plaintiff. 

There is no provision in the Court Fees 
.\ct under which a Court Ls empowered to. 
direct the refund of tho additional Court fee 
paid on demand by the taxing ofhoer of the 
Court. rURAN SINGH v. KESAR SINGH. 

89 P R 1907. 

35 (a). S. 7 V. (b) and (d) and S. 28— 

Court fee — Document received by mistake or 
inadvertence. 

Theplaintina pre-enrption suit stated". 
"Tho suit is valued at Rs. 197-8, five times of 
Rs. 30-8, the amount of revenue of the pro- 
perty." Tho property claimed was described 
BS 41 bighas, 10 biswas, & biswansis, paying 
a revenue of Rs. 39-8, entered aa holding 
No. 2 in the khowat, out of 3 biswa, 10 bis- 
wan.si, 18 kachwansi, 9 nanwansi, 15 tarkwansi 
share, comprising an area of 101 bighas, pay- 
ing a revenue of Rs. 95, situate in villago 
Ukarna. The plaint was presented on the 
last diiiy of iin^itation, and the Court Mnnsa- 
rim accepted this valuation and reported that 
the plaint was properly stamped. 

Held that, as the plaintiff had not stated 
whether tho revenue payable in respect al 
the share claimed Ivad been separately assea~ 
sod and recorded in the collector's register ail 
such, it became tlio duty of the itunsarim 
to enquire whether it was sep.arately assea- 
.sed. The plaint having been admitted 
through the rai.stako or iaadvertenoe of the 
ofilcer of the Courts the plaiutil"5 was entitbd 
to tl>o beneftt of S. 23 of tlio Act. HASlli- 
UL-N1SS\. f. GHVia'R-ULL.\H KHAN 

A W N 907>P 110=4 A L J 36a=2a 
A 382- 

36- S- 7 (V) (b)— .1 ««•'■( for pre--ny}rtgage 
{by tuny of pre-emption) is to-bear C'Mirt Fees on 
5 times the Revenue of ihe land. UMR-i y> 

HARu. 106 p-L 11.1903=46 p. aa9oa 

SS(''> 8-7 CI. V (c) and IZ-Co^irt-fec 

— Pre-emption suit — Valuation of land foi' pur- 
poses of Court-fee — Ai^peal. 

The «ords " the year next before the dat* 

of presenting the plaint" in CI. V (c), of sec- 
tion 7 of tbo Court-fees Act irkoan a perij-l of 
365 days next baiore the date oi pi-eaauiiag 



( Jll ) 



CIVIL DIGEST OF CASES. 



( 112 ) 



Sup: Govt. Acts (Act VII of 1870) (Conf.) i 

the pUimt, llie last day of which period will 
be the date on which the plaint was pre- 
sented. 

Where the valuation of laud, the subject- 
matter of a suit, was made in respect of a 
year other than the year mentioned in CI. V 
(c) of section 7 of the" Court Fees Act— 

Held, that the valuation was not final 
nndtr section 12 of the Court Fees .\ct, and 
an appeal would lie from an order making 
such a valuation. GHASI RA5I v. HAB 

GOBIND. W. N, All , 1908, p. 66=3 A- 
L. J. 244=28 A 411- 

87- S. 7 (V) (d> Proviso (2,)— The annual 
survey assessmin'. 

This Proviso has apparentl v reference only 
to " the annual survey asssessment which is 
remitted," that is to say, to the rate of re- 
mission at the date of suit and has no refer- 
ence to remissions previously made but no 
long-^r existing. BALWANT RAMCHAND- 
JtA ^'ATU V. THE SECRETARY OF STATE. 

7B.L.E,. 497 = 29 8-480 

88- S- 7 (V) (e) — Suit for landatid Indigo 
Factonj situate thereon. 

When the plaintiff claimed by right of 
pre-emption land assessed with revenue and 
a share of indigo factory situate thereon. 

Held, that upon the facts disclosed in the 
case it could not be held that the factory pur- 
chased bv the vendee formed any part of the 
zamindari property, or that it passed to her 
as such, or as appurtenant thereto.— 4 All: 
381 ; W. N., All., 1900, p. 31 ; IN. IF. P. H. 
C. E. 38, referred to. 

Substantial and permanent buildings, 
such as constitute a factory cleai-ly, come 
With u the meaning of the expression 'house' 
and not " land, " as used in the Court Fees 
Act. DURGA SINGH v. BISHESHAB- 

DAYAL. w. N-, All., 1902, P- 27=24 A- 

«1 )• 

^39. S- 7 V (e) and Sch. II, Art. 17 (6) - 

Ejectment Suit— Court-fee on plaint. 

Where a plaintiff prays for the ejectment 
of a tenant from premises for the breach of 
his covenant contained in his lease or for 
holding over after his tenancy has expired : 
Held, that the suit is for possession of im- 
moveable property and the plaint should be 
stamped according to the value of the subject 
matter under Section 7 V (f) and not on a 
Rs. 10 s amp under Sch. II, Art. 17 (G), 11 
C. L. R., Ul and 15, A. 63 disstd. from. 
M.AHOMED EBRAHIM SAHIB v. BHY- 
MEAH A. ISMAIL.JI. 1, L. B- R, 1900- 

02, P 303 

40 S. 7 (V) (e) & Sch II Art. 17 (VI)- 

Ejedment of tenant suit for — 

A suit by a land-lord to ey.ct a tenant 
from his house is governed as legard.s Court 
Fees by Sch. II, Art. 17 ( VIj. Held al-o when 
a particular construction of the Court Fees 
Act which is a fiscal enactment in f,avour of 
the suitor has prevailed for many a years, 
strong presumption in favour of that con- 



Sup: Govt. Acts (Act VII of 1870) (Cont.) a ! 

struotion arises and no other construction ' 
unfavourable to the suitor should afterwards 
be put upon the enactment, except for som.; 
very cogent reason. 

Therefore Rs. 10 stamp is sufficient and 
the suit need not be stamped under Section 
7 (V) (c).- 

1.5 A. 03, 1.5 A. .363, 8 0. 593, 8 C. 280, 8 B. 
31, 11 C. L. R. 91, 1 P. R. 1,S87 referred to, and 
1 L. B. R. 1902, p. 303 disstd. from. P. .J. 
NARAYAN v JIADAN. U. B. R. 1903, 
p 1. 

41. SS. 7 (V) (f), and H.—Suit for settle- 
ment of accounts — Arbitrary value _ji.i:ed by 
plaintiff — Finding of Court as to amount 
actually due exceeding its jurisdiction, effect 
of— Suits Valuation Act, luSl, S. 8. 

In a suit for settlement of accounts, 
where the actual amount due to the plaintill 
is, in the beginning, unknown to him and 
can be ascertained definitely only after en- 
quiry, the plaintiff can place an arbitrary value 
on the relief sought by him and pray for a 
decree for such sum as may on the settle- 
ment of accounts be found due to him from 
the defendant. This valuation is, however, 
merely tentative, and the actual value o£ 
the suit is the amount, which the Court 
subsequently finds to be due to plaintiff, and if, 
in any such case, such actual value is found 
to exceed the pecuniary limit of the Court's 
jurisdiction, tlis Court can not pass a decree 
in the case but should return the plaint for 
presentation to a Court having j irisdictiou 
in the case.— 1G9 P. R. 1888, 5b P. R. 19. .2, 
and 31 C. 365, Appr., 21 C. 550, Diss. :MANNA 
LAL V. SAM.ANDU. 46 P- R- 1906 = 94 

p. L R. 1906. 

42. Ss. 7(V)(C)andVI.and28-C.P.C. 

{ltiS2) S. 854 (a) and (6) Time for iiaying defi- 
ciency of Court fees. 

A pre-emptor stated in his plaint the 
profits of zamidari land to be Rs. 8/i/- and 
instead of paying stamp on Rs. 123/12/: paid 
it on Rs. 108/12/- which was wrongly valued 
in plaint. Defendant oVj;cted that the re- 
lief was undervalued. Tue plaintiff applied 
to be allowed to reduce the amount of pro- 
fits stated in the plaint to Rs. 6/14/-. The 
Court rejected the plaint under § 54 C. P. C. 

Held this was not a case under § 28 Court 
Fees Act but one to which § 54 C. P. G. 
applied. 

Tha mistake or inadvertanco referred to 
in Section 28 of the Court Fees Act is the 
mistake or inadvertance of the Court or its 
officer. 

Held, that when a case falls within Sec- 
tion 54 of the Code of Civil Procedure, the 
Court cannot fix a time either under 
Clause (a) or Clause (b) of that section, so 
as to extend the time for making up tb8 
deficiency in the Court Pees beyond the 
expiry of the period of limitation and the 
plaint was rightly rejected. :\IUHAiIMAD 
AHMAD V. MUHAMMAD SIRAJ-UD-DIN, 

W. N., All., 1901, p. U 8=23 A- 423- 



( 113 ) 



CIVIL DIGEST OF CASES. 



( 114 ) 



Sup: Govt Acts (Act VII of 1870) (Cont.) 

43- S-7, els. 5 andlKe}— Suit bii tenant to 
rccoi'cr 2iossessio)i of land against landlord and 
persons claiming under him — " Occtipancij of 
land " and " ejected ' — claim of melwaram in 
land. 

A suit for possession by a tenant ag.iinst 
the landlord and persons claiming melwa- 
ram rights under him is governed by cl. 5 
and not by ol. 11 (e) of Sec. 7, 32 Cl. 628 fol- 
lowed. 

The terms of cl. 11 (<?) and especially the 
words " occupancy of land " and " ejected " 
apply to the case of ryots in actual and 
physical occuiJation, rather than to persons 
who are only entitled to the melwaram rights. 
PALANIAPPA CHETTI v. SITHRAVELU. 

17 M. L. J. 478 = 3 M- L- T- 8=31 M- 14- 

44- S- 7 Clause Yl— Suit for pre-emiy- 
tion on transfer of cc^uitij of redemption of 
house. 

Upon a plaint in a suit for pre-emption 
on a transfer of equity of redemption of a 
house the Court-fee must be paid in accord- 
ance with section 7 clause VI of the Court 
Pees Act on the market value of the house 
which forms the subjoct of the mortgage. — 
—P.R., 1 of 1890 (i. U.) referred to.—Gllk- 
SITA MAL V. KANSHI BAM. 123 p. L- R- 

1903- 

45' S- 7 Cl. 8 — Suit to set aside sale 
and attachment — Practice — Proper Court-fee not 
paid on plaint — Appeal — Duttj of Appellate 
Court. 

A suit to set aside a sale on the ground 
that the attachment was not binding on the 
plaintiff being virtually a suit to set aside 
attachment is chargeable with court-feu 
under clause 8 of section 7 of the Court Pees 
Act on the amount for which the property 
in suit was attached when such amount is 
lower than the value of the property. 

Where a decree is passed in a suit in 
which proper court-fee has not been paid by 
the plaintiff and the defendant appeals and 
the appeal is writteu on insufficiently stamp- 
ed piper the defendant should be directed to 
pay the deficient stamp duty on the appeal 
within a time to be fixed by the Court bjfore 
calling upon the plaintiff to pay deficiency 
in respect of his plaint. GANGATHARA 
AIYAR V. VETA CHETl'Y. U M. L- J- 

144. 
46. S 7 Clause IX Sch. I Art. 1— 

Appealsin mortgrnie suits for redemption. 

In appeals arising in mortgage suits for 
redemption the court-fee is to be calculated 
with reference to the value of the sul-jjct- 
matter in dispute in pppeal, whether the 
appeal is by the mortgagor or by the mort- 
gagee. 

The word " suits " in sub-section IX of 
B. 7 of the Court Pees Act does not include 
appeals; and appeals unless otherwise pi-o- 
vided for are goverued bv Article 1 of the 
first Schedule. The article applies to appeals 
in suit for redemption and th^j words "sub- 
ject-matter iu dispute'' therein mean "sub- I 



Sup: Govt. Acts (Act VII of 1870) fCont) 
i ^ct■matter in dispute " in app-'al. RKPER- 
ENCE UNDER THE COURT FEES ACT, S. 

5. 29 Mad., 867 = 16 M- L- J. 287: 

47- S 7 (9) and IQ—Suit for redemption 
— Court Fees — Cross objections on appeal C. P. 
C. § 5IJ1. 

The appellant paid on his memorandum 
of appeal a court-fee on the principal mort- 
gage money though he chaUanged the redemp- 
tion decree allowing a certain sum to the 
respondaut who preferred cross obj ;otions 
under § GGITC. P. (J. claiming a sum m addi- 
tion to that allowed to him, but paid«a court 
fees of Rs. 2/- payable on a petition. 

Hiid, that where a mortgagor or mort- 
gagee appeals, not raising the question as to 
the right to redeem but the question only as 
to the amount which is payable to effect 
redemption, the Court-fees should be com- 
puted advalorem on the difference between 
the amounts alleged to be due on the one 
side and the other. 

When no question is raised in appeal as 
to the right to redeem, the nature of the suit 
is changed from a suit to redeem a mortgage 
and the subject matter of the dispute is 
money only. MOHAIIJIAD HUSAIN v 
SAVED JAHAN BEG M\I. 2 Q. Q. 87. 

48- S- 7 Cl. {9)—Iiedemption, suit for— 
Court fee on ap2'eal. 

In a suit for redemption when the mort- 
gagor or the mortgagee appeals, not raising 
the question of the right to redeem, but 
challenging tlie amount held by the Court 
below to be payable by the mortgagor, the 
Court-foe should be computed ad-valorem on 
the difference between the amount fouud to 
be payable by the Court below and the 
amount which the appellant alleges should 
ne paid. 2 O. C. 87, F., 6 A. 488, S. C A. 
No. ISy of 190.5, A. W. N. 87, (1905), 40, 1:3 A 
94, R. RAIW ADHIN v. HANUJIAN. Q Q 

C- 153- ^ " 

49. § 7 Cl (9) and 17.— A brought a suit 

for redemption of laud in respect of 4 mort- 
gage deeds of different dates for different 
amounts, and paid the Court-fee upon the 
sum total of the principal amounts of those 
deeds and the defendant-appellant who ap- 
pealed against the whole decree paid the same 
fee on his memorandum of appeal. It was 
suggested that the suit embraced 4 " distinct 
sulj.-cts" within the meaning of Section 17 
ana the plaint and the appeal were each 
chargeable with the aggregate amount of the 
fees which would have been payable if there 
had been 4 separate suits one in respect of 
each of such suljject. 

Held Section 7 (IX) applied to the ease 
and that the fee paid was sufficient. 

Held, further that Section 17 applies only 
where there are two or more distinct causes 
of action and a suit for rfdemption means 
only one cause of action, no matter how 
many deeds may have to be considered to 
determine the amount payable to the plain- 
tiff. THAKAR JAWAHER SINGH v TH\- 
KAR BALWANT SINGH. 7 Q. Q. 152 



( 115 ) 



CIVIL DIGEST OF CASES 



( 116 ) 



Sup: Govt. Acts (Act VII of 1870) fCont) 
60- S- 7 (IX> & Sell. 1, Art. l—Mort- 

gayc ^Kit — ttudiiyn-jtiori decree — ^jipo tl — Valiict' 
tioin-'j memorandum of a;ppeal — Hides of High 
Court — Bule 19 A. 

In a suit (or redempticn o! a mortgage, 
the plaintlGs obtained a decree on the ooudi- 
tioa that they should pay a specified sum. 
The plaintiSs, considering that this amount 
exceeded the amount properly payable under 
the security, proJerrod ati appeal and valued 
their appeal at the sum which they disputed. 

Held, that the appeal was properly 
valued. That in the ca.se of an appeal when 
the value of the subject matter of the appeal 
can be deterniinca, the appellant is only 
bound to pay a court-fee on tlie amount 
ascertained to be the value of sul j;ct matter 
of the appeal. 13 AH., 9i dissented from. 
NEPAL ItAl V. DEBT PRASAD. 2 A- L- J-, 

105=A- W- N- 1905, P- 40=27 A. 447- I 

61' S. 7i CI- IX — Redemption suit — Addi- 
tional stH» demanded in taking accounts — 
Whether Court Fee necessanj. 

In a suit for redemption the mere fact 
that the plaintiffs claimed in the suit pay- 
ment of any sum which might be found to 
be due to them on the taking of account, 
does not alter the nature of the suit so as to 
necessitate the payment of an additional fee 
on the plaint, because to such a relief they 
would be entitled under the ordinary decree 
for redemption. HUSENI KHANAM v. ALI 
HUSENI IvK.AN. A- WU- 1907, P- 133- 

4 A. L. J. 875 

52. S- 7 (IX) ('a,)—'!^ortgarje—Eecjulation 
XVII of 18U6, Sections 7 and 8 — Suit for posses- 
sion — -Suit for a declaration that the condition 
of sale lias become absolute — Amendment of 
plaint. 

A suit tor a declaration that the condi- 
tional sale has become absolute is chargeable 
with Court-fee under Section 7, paragraph 
IX, clause 3 of the Court Pees Act. 

The term ' demand' in Regulation XVII 
of 1800 means a demand made immediately 
before the api>licatiou for notice of fore- 
closure is filed m Court. 

In a suit for a declaration that the con- 
ditional sale has become absolute the plaintiff 
must prove that the foreclosure proceedings 
were perfectly legular. 

\Vhere the plaint stated that proceedings 
under Rogulatjon XVll of 1.800 had been 
taken by the plaintiff and prayed that posses- 
sion of the laud mortgaged be decreed in 
■ favor of the plaintilf and apparently at the 
suggestion ot the Court prised for possession 
was" withdrawn and a aeeree for a declaration 
that the conditional sale had become abso- 
lute was granted to x,\ia plaiatiit, the Chief 
Court deci.uod to allow withdrawal of the 
prayer for the declaration but permitted to 
add a prajer fur pos.^es.iion as mortgagee. 
CHAUDlrLlU HAZAUA SlXGii t>. MUHAM- 
MAD KH ,N. p. L- K- 134 oi 1901- 

53- S- 7, Clause IX, Sch. I, Art. 1.— 

Apjix^aiii in inort'jaju juusj.^r red>.,iL^ii,on. 



Sup: Govt. Acts (Act VII of 1870) (Gont) 

In appeals arising in mortgage suits for 
redemption the court-fee is to lie calculated 
with reference to the value of the subject 
matter in dispute in appeal, whether the 
appeal is by the mortgagor or by the mort- 
gagee. 

The word "suits" in sub-section IX of 
Section 7 of the Court Pees Act does not 
include appeal.s : and appeals unless otherwise 
provided for are governed by Article 1 of the 
first Schedule. The article applies to appeals 
in suits for redemption and the words "sub- 
i ict-matter indi.spute" therein mean "subject- 
matter in dispute " in appeal. REPERENGEl 
UNDER THE COURT PEES ACT, SEC- 
TION 5. 16 M- li. J., 287 = 29 Mad,, 
367. 



53 (a). 

30 il. 96. 



7 (IX) & -Sch. I Art. 1.- 



54- S- 7 (X) — Jurisdiction — Suit for a 
fractional share, of land assessed to land reue- 
nue — Claim for specific performance of agree- 
ment — Illegal agreement. 

The plaintiffs claimed ^i share of two 
plots of land on the allegation that the parties 
to the suit agreed to buy them in partnership 
at an auction and they were so purchased ia 
the names of the defendants. 

Held, that the suit did not fall within 
Section 7 (X) of the Court Pees Act, and that 
it was unmaintainable because the plaintiffs 
had not paid their share of the price for 
the Und purchased. 

Held, that for purposes of j'lrisdiotioa 
the suit was properly valued calculating the 
value of the share claimed at thirty times the 
laud revenue assessed. 

Held, further, that an agreement between 
two persons not to bid against each other at 
an action is legal and forms a valuable con- 
sideration for an agreement giving to the 
party withdrawing his opposition at the 
auction. I. L. B. 18 Dim., 3i2, 16 Cal., 191, 
13 Cal., L. R. 1, referred to. NAND\ SINGH 
V. SUNDAR SINGH. P. R- 37 Of 1901- 

55- S- 7- (XI) (e) — Suit for posse.ssio>i 
of property by tenants against his lindlord 
and persons placed in possession of property bif 
liim. 

Section 7, cl. xi (e) of the Court Pees Act 
does no5 apply to a suit for possession of an 
occupanc)' holding brought by the tenant 
against the landlord and as well as the persoa 
wliom the landlord ha? ind-UCto'l into the 
land; the Court-fee p,i,yable on the plaint iii 
such a case must be computed on the miriiet 
value of thi property which tha pliintill 
seeks to rouovor. PQRZANfD ALI v. MO- 
HANTH L.\L PURI. 82 C 233. 

56. S. 7, cl XI, aub-sectioa cc, (a* 

amended by Act VI of 100o\ — Court fee— 
Ejectment. 

The Court fee payable, on a suit for ej3ct- 
meut from a house against, a, tenant is ohnrga- 
able on one ye:\r', rent under S. 7. cl. XI, sub- 
section cc oitho Court Pees Act, as amended b.j 



( 117 ) 



CIVIL DIGEST OF CiSES. 



( 118 ) 



Bnp: Govt. Acts (Act VII of 1870) (Cont.) 
Act VI of lyOo aud not on the markut value of 
thi) house. DIWAN DILBAGH RAI v. FA- 
TEH DIN, 24 p. L. R. 1907. 

67. S- 7, CI- XI (e) and V—Smt to reco- 
ver possession of land — Landlord and ten-ant — 
"Occupancy of land" — "Ejected" — Suits against 
landlord and persons claiming melwaram under 
the landlord. 

A suit by a tenant for possession as 
against liis landlord and other persons in 
possession claiming under the landlord does 
not fall under Gl. XI (c) of S. 7 of the Court 
Fees Act, especially where the persons claim- 
ing under the landlord are not persons in 
actual posse.-sion; but merely lay claim to 
the melwaram rights in the land. The suit 
falls under CI. V of S. 7 and is a "suit for 
possession of lands, houses, etc." — Scvihle; — 
The words "occupancy of land" and "ejec- 
ted" in 01. XI (c) are applicable to cases 
where the defendants are ryots or persons 
in actual physical occupation an.d not to 
cases where the defendants lay claim only 
to the melwaram in the land. PAL.\N.\IP- 
PA CHETTI V. SETHRAVELU CHETTI. 

17 M- L- J. 478. = 3. ffll- L- T- 8-31 M- 14- 

58- Ss. 7, 9 & 10— Co«r« fee— Net profits 
or market va'iie wrongly estimated — Limita- 
tion — Proccd a re. 

On a question as to whether the plaint 
in a suit for pre-emption had been properly 
stamped, with reference to the net profits of the 
property in suit, for "the year next before the 
date of presenting the plaint ', an issue was re- 
mitted to the lower appolKto Court. The 
finding 0/ that Court was that the amount 
of profits had been slightly under-estimated. 
Th'- plaintiff apptUant, while contesting the 
principle upon which the Court below had 
arrived at its finding, was ready to pay the 
small deficiency in the Court fee. 

Held, that the suit should be remanded 
to the Court of first instance to be heard 
on the merits, subject to the payment by 
the plaintiff of the defioiencv in the Court 
fee. {27 A 197 foUowei; till SI KAM 1;.— 
HARAGOBIND A- W- N- 1907 P- 18- 

59. Ss. 8 & 11— Land Acqtmilion Act (I of 
J904) - Appeal against award of coiu pen^ation 
— Decree limUed, to amount claimed on which 
Court-fee is paid. 

On an ap] ,i,l against an award as to 
compensation payable to the owner of pro - 
perty acquired, tb.- dc-cree must bo limited 
to the amount ut which the memorandum 
of appeal has been valued for purposes of 
Court-fee. MAHOMED -LI A^.IJAD KHAN 
V. SECRETARY OF STATE FOR INDIA. 

30- C 501- 

60. Ss. 9 & 10— See §§. 6, 9, 10 i« 28 supra 
No. 7, 1J2 P. L. B. WOS^lUi, P. R. 1905. (F. 
D.) 

61. Ss. 9, 10 & \2— Appeal. 

Held, that Section 12, Clause \ of the 
Court Fees Act, is uo bar lo an appeal when 



Sup. Govt. Acts (Act VII of 1870) (Cont) 
the question boforo the Lower Court to de- 
cide was merely tiie class of the suit in or- 
der to ascertain under what Schedule of the 
Act it must be takeu to fall for the pur- 
pose of fixing the Court-fee payable on the 
plaint or meaiorandum oi appaal — 12 C. L. 
B., US; 1 All., 3(>'.l 4 Mad., 204; U Mad., 1(19, 
aud 2'^ Bom-, 4H6, coiiciirnd. H. G. STUDD 
V. MATI MAHTO. 28 Cal., 334. 

62. S- 10 Clause {2)— Abandonment of 
portion of claim — Deficiency of court-fee res- 
pecting that portion. 

Held, that when a plaintiff, in the ini- 
tial stage of the litigation, abandons a por- 
tion of his claim, ho is not compellable to 
pay court fees upon th.t claim under penal- 
ty of having the whole oi his suit dismissed. 
RAM PRAS.iD y. BHIMA. A- W- N- 1904- 

P- 198=1. A- L J. 577=27- A 151- 

63- S- 10 (%)— Civil Procedure Code (Act 
XIV of 1882), Section 5i— Property claimed 
not properly valued and plaint insufficiently 
stamped — Deficiency inade up after expiry of 
period of limitation. 

The plaintiff sued for a declaratory 
decree and in the alternative for a decree 
for posses,sion. It was objected by the 
defendant that property was under 
valuo'l and the plaiut in con.sequence in- 
sufficiently stampc-.l. After an enquii-y it 
was found that the court-fee was in- 
adequate. The additional fee was paid in 
within the time fixed by the Court. 

Then the period of limitation for the 
declaratory decree had expired. The suit 
was dismissed on the ground that the period 
of limitation had expired before the addition- 
al fee vras paid in. 

On second appeal it was contended that 
the Court-fee paid being adequate, having 
regard to the value stated in the plaint, and 
that the question of the Court-fee not being 
raised until after the plaint had been admit- 
ted and registered section 10 of the Court-fee 
Act applied to the case and the suit was im- 
properly dismissed. 

Held, that the contention was valid, that 
section 51 of the Civil Procedure Code and 
section 10 of the Court-fees Act have reference 
to different stages of a suit, and that, ther.i 
being no suggestion here that the plaintiS' 
had fraudulently undervalued the property 
which he was claiming, section 10 oJ the 
Court Fees Act applied in this case. 2 Mad., 
'MS followed, 15 All., 6.5 and 12 All., distin- 
guished, 24 AIL, 218 r-f erred lo. 

Per Aikman J. — That it was open for the 
plaintiff to ask in the same suit for the two 
reliefs cliimed by the plaintiff. 

That the suit should not have been dis- 
missed also on the ground that the deficient 
Court-fee on the claim for possession wa3 
made good witliiu tlie period of limitation 
fix; '1 for a suit for posse.-sion. BABU L.\L 
V. ASI KUNWAR. 1 A. I.. .T., 641=A. W. 

N, 1904, p. 224 = 27 A. 197. 



( 119 ) 



CIVIL DIGEST OF CASES 



( 120 ) 



Sup:'Govt. Acts (Act VII of 1870) {Cont.) 

64- §S 10 & 12 Courl-fee— Appeal— Me- 
morandumof appeal insufficiently stamped filed 
in lower appellate Court — Second appeal — 
Deficiency nut madr up within fixed time. 

Held, that where an iusuffioieatly stamp- 
ed memoraudum of appeal is admitted 
tbrougli inadvertauce and the appeal is dec- 
reed, and the attention of the High Court 
is called to the insufficiency on second 
appeal and the respondent fails to make good 
the deficiency within the time allowed to 
him, the proper order to pass is to discharge 
the decree of the lower ajjpellato Court and 
to restore that of the Court of first in- 
stance. MADAN LAL v. JAI KISHAN DAS, 

A- W- N 1905. P. 277=1 A- L J. 392 

N. B. — This case was over ruled by A. 
W. N. 1905 P. 280 See next below. 

65- Ss. 10 & 12' — Appeal insufficiently 
stamped filed in Lower Appellate Court — Se- 
cond Appeal — deficiency not made up within 
fixed time. 

Where it was discovered in second ap- 
peal in the High Court that the respon- 
dents when appellants in the lower appel- 
late court, had not paid a sufficient Court- 
fee on their memoraudum of appeal iu that 
Court, and up to the date of the hearing 
of the plaintiff's appeal in the High Court, 
though called upon to do so, bad not made 
good the deficiency — • 

Heldy that the proper procedure was 
not to dismiss the respondents' appeal to 
the lower aji^'iellate Court, but to stay the 
issuing of the decree, if any, of the High 
Court in favour of the respondents until 
such time as the additional Court-fee due 
by them might be paid. 20 AIL, 362 jol- 
lowed, W. N. All., 1905 p. 277 overruled. 
MOHAN LAL i'. NAND KISHOKE. A. 

W- N 1905- P 280 = 2 A- L- J- 839- 
(F- B)=28. A. 270 (F B) 

66 S- 11 — Decree — Construction — Execution 
on payment of extra court fee. 

The decree in the suit, which was one 
for possession and rent, ran as follows : 
— " This Court doth further order and 

decree that plaintiffs do pay court fee Ks 

on the subsequent rent awarded to him 
after plaint within 9th September 1904." 

Held — That the clause did not form 
part of the decree and that no am:-nd- 
ment of the decree was necessary before 
the time for payment could lo extended. 
The latter part of the decree was a 
mere surplusage and did not make the 
execution of the decree conditional upon 
the payment of the extra court fee within 
the time named. 

Held, also — The intention of the first 
part of S. 11 of the Court Fees Act is not 
that a time should be fixed for the payment 
of the extra court fee, but merely that ex- 
ecution sliould be stayed until the extra 
court fee payable is paid. PERI.\NAN 
CHETTY V. NAGAPPA JtUDALIAR. 16. 

M. L. J. 543-2 M- L T 23=30 M 32 



Sup: Govt. Acts (Act VII of 1870) (Cont.) 
67 S- 11 — i'a-^l' 'I'Ki future mrsne-prolits — 
Civil Procedure Code {Act XIV of 1882), 
Sections 209, 211 and 212. 

Where a plaint asked for past as well as 
future mesne profits, and an amount was 
claimed and Court-fee payable paid for past 
mesne profits only — 

Held, that Section 11 of the Court-fee.s 
Act applied.— 15 Bom., il6; 2 AIL, 682; 24 Cal., 
17-3 referred to. 

Tliere is no analogy between interest 
awarded under Section 209 of tlio Code and 
mesue-profits claimed and awarded under 
Sees. 211 and 212. Interest may be awarded 
under Sec. 209 as an inducement to prompt 
satisfaction of the decree and as a penalty 
for non-compliance with it. Such interest 
is no part of the claim or relief granted as in 
the case of mesne-profits. DWARKA NATH 
BISWAS V. DEBENDRA NATH TAGORE 
33 C 12 32- 

68 S. 11. Mesne profits determined in ex- 
ecutioyi. 

Where the amount mesne-profits is as- 
certained in execution, further execution 
until payment of the additional Court fees 
should be stayed under §. 11. If the Court 
omits to fix a time for such paj'ment the 
execution is in abeyance and whenever the 
fee is i^aid the decree would be executed. 
SUBHAGGA SINGH v. SHIVA NATH 

SINGH. 1 A- L- J- 350- 

69- S- 11- — Mesne profits accruing after 
the institution of suit were also decreed to 
the plaintiff aloug with his decree for posses- 
sion and their amount was to be det.jrmined 
in execution. On his application for execution 
for those mesne-profits the court ordered that 
if the decree holder failed to pay court-fee 
within one month on the amount of mesne 
profits, accruing after the institution of the 
suit, his claim for that amount shall stand 
dismissed. 

Held, (per curium) that no court-fee 
is payable on account of mesne profits for 
the period after the institution of the suit 
for immoveable property whether such pro- 
fits are claimed iu the plaint or not. 

Held, (per Scott J.) that in cases of 
ambiguity, an order of a court must be in- 
terpretedso as to make it in accordance with 
law, and that the order passed by the Court 
must be read as one directing the decree 
holder to pay additional Court fees or the 
mesne profits found to bo due to him after 
the date of the institution of the suit. 
JAFRI BEGAM V. ALIRAZA. 6- 0- C- 351- 

70- S- 11 — Accounts — Suit for — Portion of 

suit which claims relief. 

iffW, that the words "suit for account" 
in the first para of section 11 of the Court 
Fees Act, are applicable to such portion of 
any suit as claims thi;>t relief, ri-'., relief by 
way of account. BHOGILAL ASHARAil v. 
JAGJIVAN ASHABAM. 6- B- L R- 1102- 

70 (a). S- 11, Sch. II Art. 17 (IV- 

Court-fcc— Appeal ui rc^'ped of Jniure interest. 



( 121 ) 



CIVIL DIGEST OP CASES 



( 122 ) 



Sup: Govt, acts (VII of 1870) (Oout.lj 

In a suit upon a mortgagc-doed for re 
covery of principal and interest from the 
date of the institution of tLie suit up to 
the date of the realization, the Court awarded 
interest up to the date fixed by the doeroe 
for payment. The plaintiffs filed an appeal 
in respect of interest from the date hxod 
by the decree for payment up to the date of 
realization. The appeal was allowed and 
■11b- d7,-100 wore awarded in respect of future 
interest. 

Held, that the memorandum of appeal 
was liable to a Court-fee of ite- 10 as provi- 
ded by sub-section VI of Art. 17 of the 
necond Schedule of the Court Fees Act, for 
the interest claimed on appeal could nut be 
calculated at the time when the appeal was 
filed. 12 Bom. H. C. Rep. '117 fallowed. BIIA- 
WANI PRASAD v KUTUB-UN-NISSA BIBI 

A- W- N- 1905 p. 84-2 A L. J. 263=27- 
A559- 

71 § 11 and AH: 17 (6) U. B. R. 1903. P. 1. 

— See § / r (f) No 40 siipras. 

72- S- 11 — jf<*s' a)id future mesne profit : — 
Where a plaintiff asked for past a-i well as 
future mesne profits and paid Court fees on 
the amount claimed for past mesne profits 
only, the provisions of S. 11 of the Court Pees 
Act are applicable in respect of the whole 
suit.— AJJATCLLA BHOIYAN v. CHAN- 
DKAMOHAN BANERIEE.— 6 C- LJ-255 = 

lie- WN- 1133=34 954- 

73- S- 11 — Suit on Tort— for fraud Assess- 
tnciU of damages in plaint — Large amount 
found due — More due. 

Even in a suit for damages based on 
fraud, it is open to the plaintiff to enter in 
his plaint an approximate estimate of dama- 
ges paying Court-fee thereon and offer to 
pay additional Court fee in case a lai'ger 
amount is found to be due before the decree 
is passed. S. 11 of the Court Pees Act will 
not apply to the case, and consequently the 
plaintiff cannot be allowed to pay Court fee 
after the decree is passed and before exe- 
cution. EACiAV.A,JI SAIT v. ANNAMALAl 
MUDALI.— 17M- LJ.625- 

74- §§11. 12 — Jurisdiction — Valuation-Suit 
for dissolution of ^lartnershijp — Course of 
appeal. 

This was a suit for dissolution and win- 
ding up of a partnership, rendition of 
accounts by the defond'Auts, and a decree for 
such sums as the plaintiffs may be found 
entitled to .-.gainst the 'proper parties. The 
plaintiffs valued their suit, for purposes of 
Court-fees, at lis- 2.000; but added the usual 
. cliuse that they would pay the additional 
fee if more was found due. The District 
Judge pas.sod a decree for an amount over 
-Bs- 5,000. The defendants appealed to the 
Divisional Judge, who modified the decree 
on certain points. The de'endaot.s filed a 
further appeal in the Chief Court, and ob- 
jection was taken that the Divisional Judge 
had no jurisdiction to hear the appeal which 
lay to the Chief Court. 



Sup; Govt, acts (VII of 1870) (Contd). 

Held, that the contention was sound, and 
the Divisional Court had no jurisdictiou 
to hoar the appeal. — XX lioni., ■Ju.j ; 1 I'. R., 
18ti7 (F. li.): 63 P. H., iS91: mi P. R.. IHSi; :!U 
P. R., li7'J: 40 and tili P. R., IH'Jl, r.-ferred to. 
MAMAN HAL v. ABDUL AZIZ.— 58 P. R. 

1902- 

75 ? 12— Sm § 5 and 12 supra No. 3 A. IC. 
N. m03. p. 214. 

76- § 12— Set' 9 and 10—28 C. 334, supra 
No. 111. 

77- S- \2—Sec 10 and IZ supra Nos. iH 
and 03. 

78- S- 13- -Civil Procedure Code {Act XIV 
0/18S2), Scction.'i 112, 113, 588 (10)— Written 
statcmcHt — Compliatice with order requiring 
-written state nent to be filed — Dismissal of 
suit— Appeal — Decree — Costs —Court-feus — Re- 
fund of Court-fee. 

In a suit for i j :ctmeut of the defendants, 
the Court called up jn the plaintiffs to furnish 
particulars on the following question: 

" Whether the defendants j jintly took pou- 
session of the entire plot no>v claimed at the 
same time, or, whether each took possession 
of a separate portion and at a different time." 
The plaintiffs put in a written statement, in 
which they expressed their inability to give 
the exact date of the trespass by each of the 
dofendanis. The Court than dismissed the 
suit under section 113 of the Civil Procedure 
Code. 

Held, on appeal, that the order of dismis- 
sal was wrong, for the order was compl.ed 
with so far as the information of the plain- 
tiffs permitted. 

With reference to the question of costs, 
it was ui'ged, on behilf of tho rispoident', 
that they should be allowed on the fooiiig 
that the apjieal was one against an ord^r 
under section 5'38 [10) and not an appeal 
against decree. 

Held, that though in acting under section 
113 of the Civil Procedure Code the C.mrt 
may pass a decree if the circumstances admit 
of any decree being passed, yet to operate as 
a decree the decision should be such as to 
come within the definition of that term in 
section 2 of the Civil Procedure Code and tlie 
present order was not within that definitioi', 
as no right or defence sot 'up was adjudicated 
upon. Notwithstanding that the order w.is 
one dismissing the suit, it must have been 
described as an order only. Vakil's fee 
allowed as if it were an appeal against an 
order. 

The High Court allowed refund of court- 
fee under section 13 of the Court Fees -Act, 
as the court-fee was piyahle on the footing 
of the appeal being against an order and not 
against a decree. R. G. OBR v. N.AGAPPA 
CHETTY. 16, M- L- J- 30- 

79- S- 16- — Stamp duty on objectims fil;d 
un ler Section 561, Civil Procedure Code, not 
payable before hearing. 



{ 123 ) CIVIL DIGEST OP OASES. ( 124 ) 



Sup: Govt, acts (VII of 1870) rro^'ti). 

Under Section IG of the Court Fees Act 
the stamp duty on objectious made under 
Section 561 of the Code of Civil rrocedure 
need not be paid till the time of hearing. 
REFERENCE UNDER COURT FEES ACT, 
SECTION 5. 25, M- 24- 

80' S' 17» " Two or more siiijecfs —meaning 
of — Mortgage — S. 17 oj the CohH Fees Act not 
confined to cases where the reliefs claivied a>-e 
cmmdative. 

The phrase •' two or more sul j icts " may 
not admit of a precise defiuitiou applicable 
to all cases ; and it may be that ivoen reliefs 
are claimed in the alternative with reference 
to the same -cause of action, Sec. 17 will not 
govern the case. They may be so also when 
the relief claimed is one and the same though 
the claim is sought to be made out on dis- 
tinct alternative grounds. But where the 
plaintiffs claim two reliefs in the alternative, 
and both are based on different causes of ac- 
tion, and are such as can be made the grounds 
of separate suits, the reliefs claimed are 
"distinct subjects" within the meaning of 
Sec. 17 of the Court Fees Act. Where a 
plaintiff prayed for redemption of a mortgage, 
the principal amount secured whereby was 
Re. 3,000 and, in the alternative, for recovery 
from the defendants of various sums aggre- 
gating more than Rs. 2,000 on the footing of 
a mortgage to be executed by the plaintiff to 
the defendants, in accordance with certain 
provisions contained in an earlier mortgage. 

Held, that the suit embraced two distinct 
subjects and was chargeable with the aggre- 
gate amount of the Court-fees to which the 
plaints embracing separately each of the 
reliefs prayed for v/ould he liable ; and that, 
consequently, the appeal from the Subordinate 
Judge lay to' the High Court and not to the Dis- 
trict Court. NELLA KHANDAN t.. ANAN- 
TAKRISHNA PATTAU. 1, M- L- T- 426 = 

16M L J 462 = 80M61. 

81- S- 17- — Pre-emption — Suit for pre-emp- 
tion of two villages out of a large number convey- 
ed by the same sale deed — Court-fee — Distinct 
subjects. 

The plaintiffs brought a pre-emption suit 
for certain shares in two villages out of seve- 
i-al villages sold by one and the same convey- 
ance. The court-fee which they paid on 
their plaint was calculated on five times the 
total Government revenue of the lands in 
suit of the two villages. The plaintiffs were 
required to pay court-fee calculated separate- 
Iv.on five times of the revenue of lands of 
each village. 

Held, that the plaint was sufficiently 
stamped originally. The words " distinct 
snbj-cts" in Section 17 of the Court Foes 
Act' must be taken to moau " distinct causes 
of action." 

The two villages were not distinct sub- 
jects and therefore the court-fees were not 
{''viable in respect of each villa:;e separately. 
1 AIL, 553, 2 All., G7G and IG All ,^401 followed. 
DI'RGA PRASAD v. PURANAR SINGH. 
A W N- 104 p 210=27 A 186. 



Snp: Govt acts (VII of 1870) {Cor^td). 

82- S- 17. Art. 1. — Practice — Consolidation 
of cases. 

The appellants filed 44 appeals against 
orders of the Subordinate Judge in references 
made to the Court under the Land Acquisi- 
tion Act. Upon their application it was 
ordered that one of the appeals should be 
treated as a test case, and the proceedings 
arising out of the other references should be 
stayed until tlie decision of the said test case. 
After the decision of that case the appellants 
applied that their other appeals should be 
taken up and heard, and that they should be 
allowed to make up any deficiency that there 
might be in the Court-fee stamps upon which 
the appeals were preferred. The parties to 
these appeals were the same. 

Held, that the appeals should be consoli- 
dated and the appellants be required to pay 
Court-fees upon the va,lue of the consolidated 
appeals under Section 17 of the Court Fees 
.\ct as involving di<;tinct subjects, sul j !ct to 
the limitation under Article 1, Schedule I 
of that Act, namely, Rs. 3,000. The plots of 
land, subject of the references, being different 
and in the occupation of different tenants 
who were not parties to the appeal, did not 
affect the order. KASHI PROSAD SINGH 
V. SECRETARY OP STATE FOR INDIA. 
29 C- 140- 

83- S- 17 — Suit embracing two or more 
distinct s^ibj eels— Claim on an agreement to 
sell ■with an alternative claim for pre-emption. 

The plaintiff claimed firstly specifio 
performance of an alleged agreement to sell 
to him certain immovable property, and 
secondly, in the alternative, the enforce- 
ment of a pre-emptive right in respect of a 
mortgage of the same property executed by 
one of the defendants in favour of the other. 
Held, that the suit was within tho meaning 
of S. 17 of the Court Fees Act, 1870, a suit 
embracing two distinct subject matters and 
therefore chargeable with tho Court fee as- 
sessable upon each alteruativo relief sepa- 
ratelv. HASHIIAT-UN-NISSA BEGAM !•. 
MUHAMMliD ABDUL KARIM.— 4. A- L- J. 

127 = 1907 A W N 4; 29 A- 155- 

84- S- 17— licdemption Suit— 7 O. C. 152 
See §§ 7 £ 17 Supra No. 40. 

85- S. 19 iO— Schedule I, Article 11 — 
Properly — hike grant— Will conferring general 
power of appointment — Exercise of the power. 

The testatrix by her will exercised a 
general power of appointment created by 
tho will of her deceased husband. The 
will of the testatrix recited that by the will 
of her deceased husband it was stated that 
Ufr 7,000 out of his property should be lent 
out ou interest: that the interest derived, 
from time to time, should be added to the 
principal amount ; and that the amount so 
accruing should be paid to those whom the 
testatrix might appoint by will. The 
fund was paid into Court under an order 
made in a suit to administer the husband's 
estate, and was invested in Government pro- 
minsory notes. The will of the te.^tatris 
appointed an executor and directed that he 



( 125 ) 



CIVIL DIGEST OF CASES. 



( 12G ) 



Sun: Govt, acts (VII of 1870) {ConU). 
should take tho aforesaid amount after pay- 
ment of debts and funeral expenses, should 
pay certain specified amounts to certain 
siJecified person, and the residue to A.B. 

On the death of the husband of the testa- 
trix his will was proved, and probate duty 
was p*id on the [irinciplo amount of -Rs 
7.000. The executor appointed by the will 
of tho testatrix applied for probata of her 
will, and i question arose, whether the exe- 
cutor was liable to pay probate duty on the 
fund or any part thereof. 

Held, that power of appointment to the 
fund held by the testatrix ws 'property' 
within the moaning of Article 11 of the 
Schedule to the Court Fees Act and of tho 
statutory form of affidavit as to valuation, 
and that tho estate of tho testatrix was liable 
to probate duty in respect thereof. Section 
19 (c) had no application since the grant; 
which was applied for in the present case, 
was not a ' like grant ' to that which was 
obtained in respect of the husband's estate, 
ai the two estates were different. In re — 
LAKSHMINARAYANA AMMAL— 25. M- 

515- 

86- S- 19 CQi).— Trust estates— Exemption 
from probate duty- Joint family property — 
Survivorship. 

H. D., the head of a joint Hindu family, 
died, having in his name as their registered 
holder certain shares valued at Rs. ll.'JSO in 
Joint Stock Companies. After his death, his 
sons applied for letters of administration 
limited only to one share valued at Rs. 275 
and the letters of administration were or int- 
ed. Subsequently they applied for letfers of 
administration in respect of the entire pro- 
perty loft by tho deceased except tho one 
sliare for which letters were already gi-anted 
to them, claiming exemption of duty in i-e- 
Epcot of the letters of administration asked 
{or. 

Held, that as the property, in respect of 
which the letters of administration were 
asked for, was the property held in trust by 
tho deceased as surviving trustee, for the 
j)int family, the letters of administration 
tnould be exempted from court fee. 

Tho exemption of trust estates from the 
payment of ad mlurcm court fee is not con- 
ditional on the circumstance th-it there has 
been a previous grant of probate or letters of 
administration on which a Court foe has been 
paid. 27 Bom., 1-10 s. c, i Bom., h. R.,d7i, rfis- 
seiUcd from 27 Cat, 2S0, fo''o:i.<M. THE 
COLLliCTOR OF KAIRA v. CHUNILVL 

H \RILAL.. 6 B L E , 652=29 B , 161. 

87- S- 19 CB).— Letters of alministration 
gran'ed to .ton of a H.tidu gocenied by ilitak- 
shara-Exf'mption from payment of Court- 
fee - Appeal— CoUeetor's riglit of. 

Where a Hindu goverued by Mitakshara 
obtained letters of administration in respect 
of crtain moueys due to his deceased father, 
statiii)^ that the moneys belonged to the 
deceased, and on his application court-fee 
deposited by him was refunded by the Dio- 



Sup: Govt. act.s (VII of 1870) rCont,?). 

triet -Judge, on the gi-outid that the deceased 
%va3 joint with his soos and held the estate 
as a trustee, aud tho Coll ctor ajipealed to 
the High Court against the order of the 
District .Judge— 

Held, that as Collector vra,3 not a party 
to the proceedings thee appeal did not lie. 
23 Bom., 386 r.:ferred to. 

The High Court treated the appeal as an 
application for revision, and held, that the 
District Judge had exercised a jtrisdiction 
not vested in him. by law in allowing the 
refund. 

For the operation of section 10 D of the 
Court Pees Act it is an essential condition 
that there must I e a previous probate or 
letters of administration in which Court-fee 
has been paid. That is the basin of the ex- 
emption from tho payment of Court-fte 
allowed by the section ; where no such duty 
has been paid there is no case for the section 
to apply. 23 Cat.. 9S0 not foUoiced. 

In an undivided Hindu family whin a co- 
parcener dies there are no effects or property 
of his to which the surviving co-parceners 
can succeed as heirs but tbey take the whole 
of the family property by right of survivor- 
ship. THE COLLECTOR OF AH.MED- 
ABAD V. SAVCHAND L.\DUKCHAND. 

4B LR, 974 = 27 B 140- 
83. S. 19 (H) as amended by Act XI 

of 1399- — Appiication by Collector for enquiry, 
— Wlicn enquiry may be made— Costs of en- 
quiry. 

A Collector making au application under 
section 19 H of the Court Fee-; Act must 
make out a case for enquiry upon definite 
facts, and is bouiid to place before the Co u it 
proper materials to show that an enquiry is 
needed- It is not enough for theC)llector 
simply to make an applxatian for enquiry. 

The .\ct does not specify in what v/ay or 
by whom costs to be inoun-ed in making en- 
quiry should be met. It is the duty of the Court 
if possible, and if the circunistaooes permit 
to hold tho enquiry itsalf aud so save further 
expenses of the pirties. I.i, the goods of 
JAMES R^LKY AUGU.STU.-i aTRVENSON. 

6 C W- N- 898- 

89 .5- IQ (1)— Letters of administration— }i!- 
liiij of valuation of property — payment of 
court-fee. 

%. ID. (T) of the Court Pees Act proh'.bits 
an order entitling a petitioner ta tire grant 
of probate or letters of aduiiuistration un- 
til the petitioner lias filed ia the co.urt a 
valuation of the property in the form set 
forth in the third schedule to the Act, and 
the court is satisfied that the fee n^entio:ned 
in No 11 of the first Scliedule his b-:e'i piid 
on such valuation. MAUNG YE GYAM r. 
MA HME AND OTHERS. 1 L- B- R- 1303 

1902 P 229 

90- S- 18 (I)- Letters of Admini^tratio.'!.- 
Ohjtxtor askiiij for letters lumwtf — proc-jdure — 
Prdbaieand Lettersaf Administration Act S^'i4. 
Whon a caveator files a petition object- 
ing to the grant of Letters of admiuistratiou 



( 127 ) 



CIVIL DIGEST OF CARES 



( 128 ) 



Slip: Govt, acts fVII of 1870) (Cont.dj 

and concliuliiig with a piavcr tliat letters may 
be giMntecl to him, tb>» does not constitute 
a suHii..3nt applieation for letters within 
the neaning c^t S. (ji (Probate and Letters 
of Adininistration Act). 

No order entitling n, petitioner to letters 
ought ii> be made until (he petitioner has 
filed i]' CDiirt a valuation of the property 
in the 1 ^ r n set fonli in the third schedule 
of Thj i:>-uit Fees Act and the Court is sa- 
t'sfi. d that ihe fees mentioned in the first 
Schelal' has '. ee i pa d un such valualion. 

Whin an obj.oior asks for letters for 
himself he should be required to put in a 
petiticn 'elting out the f.iots required in S. 
64 of thj Probate and Letters of Adminis- 
tration Act togilher with a proper valua- 
tion nf the B,taii'. MAUNG PO AND AN- 
OTHER I . MAUNG KYA ZANG. 1 L- B 

E 1900-1902 p. 178. 
91. S. 23 and Speciflc Relief Act 

(1 of 1877),— 'S:c;io». 4-2—Dcclaraiunj suit- 
Hindu Laiv — reversioner's ritjhts — Heceiver — 
Suit for appointvient of — Injunction to restrain 
waste by life-tenant, Court Fees — Money value 
of relief. 

As a general rule of law, a presumptive 
reversionary heir, that is the person who 
would succeed if the perFon having the life- 
interest in property were to die at the mo- 
ment of the siiit, is entitled to bring a suit 
for a declaration that as against the life-ten- 
ant he is entitled as next reversioner, for an 
injunction to restrain the defendant from 
wasting the property in dispute and for t:ie 
appointment of a Receiver. LB, 8 1. A., 14 
followed, 10 M::l, 'M referred to, 8 Cal ; 12 dis- 
sented from. 

In a suit for an injunction and for the 
appointment of a Receiver, no money-value 
need be put upon a claim for the appoint- 
ment of Receiver, as tliere is no standard 
for fixing the same. Assuming that such a 
claim could be valued, the Court should call 
upoQ the plaintiff to make good the defici- 
ency in Court-fee, if it i.s of opinion that 
what w»s paid is iuadeqviate ; it will not be 
justified in dismissing the suit, without giv- 
ing an opportunity to the plaintiff lo supply 
the deficienev. MANMATHA N.\TH BIS 
WAS t>. ROHILLI MONI DASI 2 A- L- J- 

84 -A W N. (1905), 6-27 A 406- 

92 §. 28— i'ee § 6 a7id !.'8—I:i3 P. R. 1907 
Hiipra No. S. 

(93) §. ?,S— Civil Procedure Code (Act XIV 
of 1882), Section .5i — Plaint inaufficiently stamp- 
ed — Deficiency paid after expiration of liini- 
lation period prcacribed for suit — Limitation. 
The date of the institution of a suit 
should be reckoned from the date of the pre- 
sentation of th» plaint, and not from that 
on v.hich the requisite Coiirt-fees are subse- 
quently i)ut in, so as to make it admissible 
as a plaint. 

A Court has discretion to enlarge the 
time originally fixed for making good the re- 
quisite stamp. 19 Cal., 7.S0, 27 Cat., 814 I'ol- 
Imced. BA.]K:ISHUR[ KOER o. MADAN 
MOHAN SINGH. 31. C. 75- 



Sup: Govt, acts (VII of 1870) (C»wd). 

94 S- 23— /''<'"'' insufficiently stamp- 
ed when, fileil — Deficiency made tip after expi- 
ration of limitation. 

When an insufficiently Btamped plaint 
is filed within the period of limitation pres- 
cribed for the suit hut the deficiency iu 
court-fee is made up after the expiry of 
such period, the suit must be dismissed. Tha 
deficiency in court-fee cannot be in ide good 
after the limitation has expired 23 Ml. 43.i 
followed. 

Limitation is not saved on the ground 
that the doficioncy was dae ow.ng to a 
mistake of the plaintiff wh'oh the niiinsnrim 
hai failed to detect. CHATAKP.M. v .TAG- 
RAM. -2 A- L. J- 55 =W- N-> Ail , 1905, P- 
12=27 A 411. 

95- S- 28— C'»'i2 Procedure Code (Act XIV nf 
ISS^), .Section 54— Court fee— Plaint fie in- 
snjjicicnlly stamped — Deficiency made up -jxftcr 
explrij of limitation period— Limitation. 

The plaintiil instituted a suit on the last 
day allowed by limitation for the filing of 
the suit. The plaint was insuiifioiently stamp- 
ed. The mistake iu regard to the stamp 
was not a mistake of the Court or any oiucer 
of the Court. It was a mistake on the part 
of the plaintiff, attributable to him, and it 
was not discovered in the Court of first in- 
stance, %y\A when it was discovered the period 
allowed by limitation for the presentation of 
a valid plaint had expired. 

Hiid, that the suit wag time barred — 
12 AIL, 57, 1^9, 23 .ill., 423, W. N. .All, PMIJ, p. 
133, followed : 24 Mad., 331, dissc7i!ed from — 
RAM TAHAL SINGH y. DUBRI RAP 3 A- 

L- J. 838=A W- N 1906 P- 21=28 A 810. 

96. § 28— Civil Procedure Code (Act XIV .-/ 
lSti2), Section 54— Plaint insufficiently stamped 
filed on the last day of limilatioi — Time ijran- 
ted to file additional court-fee — Limitation — 
Pre-emption suit. 

When an insufficiently stamped plaint 
is filed within the period of limitation pre- 
scribed for the suit but the deficiency ia 
court-fee is made up after the expiry of 
such period the suit must be dismissed. 23 
All., i33 followed. 

When a Court fixes a time under clause 
(a) or clause (6) of section 54 of the Civil 
Procedure Code it must be a time within 
limitation prescribed for the suit. 15 All., 
65 followed. 

The mistake or inadvertence referred to 
in section 28 of the Court Fees Act is a 
mistake or inadvertence on the part of the 
Court or its officers. 12 All., 143 followed. — 
J GRAM V. CHATARPAL.— A. W- If . 1904- 

p. 133 

97. il2S— Civil Procedure Code (Act XIV 
of 1882), Sections 54, 117, 562— Partition— 
hejection of plaint without framing issues — 
Remand. 

In a suit for partition of jjint family 
property it was alleged by the plaintills 
that they and all the members of the family 
were still in j'int possession of the entire 
family property. 



( 129 ) 



CIVIL PIGKST OF CASES 



( 130 ) 



Bup: Govt, acts (VII of 1870) rContd) 

The plaintiff paid a Cuuft Fees of «ft- 10 
andpraved for a declaration that he was 
e'llitled' to partition as woU as possession of 
i .iut family property. , 

'' The Court, under the provisions of 
BBotion 117 of the Civil Procedure Code, 
examined some of the parties, and without 
framins auy issues rejected the plaiut under 
section 54 of the Code on the ground that 
the plaintiffs were not in j lint possession of 
the whole property in dispute and suftioiout 
court-fee had not heen paid on the plaint 
though time was granted to them to do so. 

Udd that the Court was wrong in dis- 
missing the suit without framing any issues. 
The case was remanded under section 562 
of the Civil Procedure Code. NAKCHBD 
SINGH V JHAGBUSINGH.-A- W- N- 1905- 
p. 170- 

98 S 28 '»'"* Civil Procedure Code 
{Act ' XIV of 13S2),—Sccticm 582 A- Appeal 
iniiifficicntly' stamped— Order to make up Ike 
deficiency— Payment within the time fixed biU 
after limitation period. 

A memorandum of appeal was not pro- 
perly stamped, but the Court officials passed 
it as bearing a sufficient stamp. The Court, 
however, refused to determine the question 
raised in the appeal about which the Court 
fee wasnot'paid, but fixed a time for or the- 
pavment of the deficient stamp and adjourn- 
ed" the hearing of the case. The payment 
was made within the time specified by the 
Court, but be vend the statutory period of 
limitation, within which the appeal ought 
to have been filed. On the adj mrned hear- 
in" of the case, the Court dechiied to euter- 
tafn the question mentioned above, on the 
ground that the Court-fee had not been paid 
within the time prescribed for filing the 

appeal. ^ . i.c T • 

Held, that the Court was not justified in 
practically allowing an app lal ;i,gaiust its 
own d.cisiou. The Court was competent to 
cure the defect of a deficient stamp by exer- 
cise of the power conferred by section 58:4 A 
of the Code of Civil Procedure, and it was 
also within the power of the Court, under 
section 28 of the Court-fees Act to allow an 
extra stamp to be affixed to make up the 
deficiency. It ought not to have decUned 
to entertain tlie questiont referred to— ir. -V. 
All irOl.p. 21, referred to. ANUPA v. MA- 

DHO SINGH. A- W- N- 1902. P- 153- 

(98a) S- 28— !^eo § 7 (V) (c) and 2S, 23, 
A. i'M, No. 42 supra. 



99 S- 2^.— Civil Procedure Code ISSi' 
Sec! ion 382 A. . 

A plaint was filed stamped insufficiently 
through mistake of law as to the court-tee 
payable.— The suit was dismissed. An appjal 
was filed and the Court fee paid on the 
memorandum of appeal was also insufficient. 
The plaintiff then filed a second appeal and 
paid the propjr Court-fee. 

^Au order under section 28 of the Court 
Fee "^ Ac twas passed directing the plaintiff to 



Sup: Govt, acts (VII of 1870) /^or.t± 

makeup the deficiency in regard to stamp 
dutv p'vablc on the plaint and the memo- 
randuin of appeal disallowing the objection 
of to defendant that the suit was liable to 
be lmiss.d. VALAMHAL AMMALt_V^- 
THTt.UNtlA MUDALIAB. 11 M- L- J- 119 

= 24 M 331- 

^nn 9^ "as and SO— Stamp bearing names 
o/^^/.rf-if j..^"^s «^ different date^Be- 

■^'""The^plaiut was written on an impressed 
stamp of Bs. 15, and an adhesive stamp of 
Bs 2 was affixed to it. The stamp of 
R^ 15 w,i,s in the name of an attorney for the 
plaintitl, and the adhesive stamp was in t he 
fiame of another person. The cUttes of the 
two purchases were different. The punching 
officer seeing the difficulty refused to punch 
the stamps. The matter was brought to the 
Registrar's notice, who asked the attorney 
for°a letter stating the circumstances so that 
tbev might be on record. The attorney, in- 
sload of complying with that intimation and 
thinking it implied an indulgence, chose to 

refuse it. „ 

Held that the punching officer was jus- 
tified under the circumstances m refusing 
to punch the stamp. GE0K<1E Cl^^K^ON v. 
RADHA KISSEN. 6 C- W- N- 785- 

101 S 28 — Documents in advertently 
received-Appeal challenging the whole decree 
—Court fee. 

A decree tor sale on several mortgages 
wa« obtained by the plaintiffs against a 
nunrbor of defendants. Some of the defen- 
dants appealed. So far as their interest in 
the mortgaged property was concerned, the 
appellants valued their appeal at Rs- H. 643, 
the total amount of the decree being R»28, 
313 and thevpsiid a Court fee in accordance 
witii this vaiuatiou. Two of the grounds of 
ppp-al however, challenged the decree in its 
entirety H^'ld, that the memorandum of 
appeal should have been stamped to the full 
value of the decree, also that the insufBci- 
oucv of the Court fee could not be said to be 
due" to a mistake within the meaning of S. 
2.S of the Court Fees Act, 1870. DALAWAB 
HITSMN V. P.HAGWAT DAS.— 4 A- L- J- 

130 = A- WN. 907P-63. 

102- S. 28— See §§ 7 CI. (V) & (VI) C. & 
'^8 -23 \ 423 — See .sKuru No. 42. 

103. S. 2S-See J§ 6, 9, 10 & 28-152 P. L. 
' Pv l',)0.^ = 104 P. R. l'.)U5— .SVf supra No. 7. 

104 S. 30 and 28— See S 28 & 30-6 0. 
W* N. lV,f,—S:ipra No. {'JO.) 

105 S.-Sl— 7^)««-w /«s to *"• paid by the 
cucu.wd—Ciiiiiinal Procedure Code, la9-% Seclion 
.iti— Compensation to be awarded to the com- 
plainant. 

The accused was convicted of an oftenoe 
under section 323 I. P. C. and was ordered to 
pay a fine of Rs 15 and also to p.vy ' the com- 
plainant's costs of the prosecution.' A war- 
rant was i.ssued for the collection of Bs- 1-2-4 
from the accused. This sum was made up as 
follows. Bs. 2-4 Court and process fees paid 



( 1^1 ) 



CIVIL DIGEST OP CASES 



< 132 ) 



Sup: Govt, acts (Vri of 1870) (Oontl). 

bv tlio compUiinaut ; Ks- 10, two fees of 
Bs- 5 each, paid by complaiuant to the 
midicvl oSiior for a certificate aad for giving 
evidence iu the case. 

H'-ld, that the order as regards Rs- 2-4 
was valid. Unde? section 31 Court Fees Act 
it is the imperative duty of the magistrate to 
order payment of Court and procoss fees. 
But tlie order as to Rs 10 was illegal ; for 
although the medical officer's foes were ex- 
penses properly incurred in the prosecution, 
they could only be awarded to the complain- 
ant out of the fine levied from the accused 
and coull not be levied from the accused in 
addition to the fine. 

Section 54.5 of the Criminal Procedure 
Code must be takiU to exclude those expen- 
ses in regard to which the court has no 
discretion. QUBEN-HJIPRESS v YAMANA 
BAD.— 24 Wad. 305 

106- S. 81- — B-fund of Complaint and 
process fees— Cattle Trcsjmss Act 1S71 S. 20. 

§ 31 as to Refunds of complaint and 
process fees on conviction applies to com- 
plaints of illegal seizure of cattle under S. 20 
Cattle Trespass Act 1S71. EMPEROR V THA 

KIZAU,-4 L. B E- 1907 P. 11- 

107- S- 81 — Complaint — Report by Super- 
intendent of Vaccination — Vaccinations Act, 
18S0, S. 18— order for costs. — 

A report made by a Superintendent of 
Vaccination under section 18 of the Vacci- 
nation Act, that a notice issued by him has 
not been complied >vith, is not a complaint 
of an offence, and a Magistrate who maizes 
an order for compliance with such notice 
cannot direct the refund of Court-fees under 
section 31, Court-fees Act, or the payment of 
costs. KING-EJIPBROR V PO K.\'N.— 4 L- 

B K- 1907 P 12- 

108. S. SI -Costs payahlein aiditlon to fine 
imposed. 

The amount of the Court Pees paid on 
the complaint and of the process fees incur- 
red by the complainant should he paid in 
addition to the fine imposed "and not out of 
the fine imposed on the i.ccused. QUEEIN 
EJIPRBSS V. NGA TUN— 6'. J. L. B. 595 
foUoiccd CROWN uPOHLAW.--lL.B-R. 
1930 1903 P, 209. 

109. S- 3i—S^amp Act 1S90, Section 69— 
Sale of stamps hij one who lias stolen them. 

A percon wlio exchauge.5 for money a 
stamp whioli he has stolen is guilty of the 
offence under section 69 of the Stamp Act or 
section 34 of the Court Feos Act according to 
the kind of the stamp sold. QUEEN EM- 
PRESS '0. VIRASAMI. 24 Mad. 320- 

110 S- 34 CI. (3).-3fiiWito/- exchanging 
a Court-fee Uamp. 

A mukhlar transferred a Court-fee stamp 
purchased on behalf of one client to another 
on the promise that the latter v/ill transfer 
another stamp o. equal value. Ko was oou- 
victed of an offence under section 34 oi the 
Court Fees Act. 



Sup: Govt, acts (VII of 1870) (Contrl). 

Held, that the conviction was illegal as 
the transaction was not a sale. EMPEBOK 
V. KEDAR NATH SAHA. 7 0- W- N- 704 = 

30 C- 921- 



HI. Sch. I, Act. \— Civil Procedure Code, 

(Act XIV of 18S2) Section 526—Arbitraliotir— 
Award. Decree made in accordance with — 
Appeal —Court-fee. 

An appeal was filed in the High Court 
against a jidgment and decree directing that 
an award made on a reference to arbitratioa 
by the parties themselves should be filed 
under the provisions of section 526, Civil 
Procedure Code. The amount of Court-fee 
paid on the memorandum of appeal was Rs 2 
The decree was in terms to the effect, that 
the plaintiff was in recover the sum of 
Rs. 3,248 and odd, as awarded by the arbitra- 
tors. A preliminary objiotion was taken to 
the hearing of the appeal on the ground that 
the appellant had not paid the proper court- 
fee and that the memo of appeal ought to 
bear an ad valorem fee in accordance with 
Schedule I of the Court Pees Act. 

Held, (Gosh and Geidt J. /.)— That an 
order directing that such an award be filed 
is an order having the force of a decree and 
is in effect a decree. The memorandum of 
appeal ought to bear a court-fee in accord- 
ance -with Art. I Schedule I of the Court 
Pees Act. 20 Cal., 167 and 5 All., 333 referred 
to, 23 Cal, 723 distinguished. H RI MOHAN 
V. KALI PROSAD CHALIHA. 33 Q. l\. 

112. Sch. I, Art 1— See S. 17 Art. 1. 
29 C. HO. Supra No. 72. 

113- Sch. I Art 1 -See 27 A. 417 No. SO 

Supra. 

114 Sch. I, Art I.— Decree payable by 
instalment — .ippeal — Court-fees. 

The first Court granted a decree payable 
by instalments conditionally upon the defen- 
dants furuishiug security. 

Hr-ld, that the proper fee on a memoran- 
dum of appeal by the defendants against the 
condition imposed was Rs. 10, as the defend- 
ants do not claim to be relievfd from any 
juart of the decretal amount, but only ask to 
bo allowed to .satisfy the debt in a particular 
way. lU .1/. 187 awl 19 C. 272 distinguish.-d. 
RAI SAHAB BtHARILAL v. SETH NANHE 

LAL. 14 C- P- L a 1301 p. 172 

115- Sch. £ Art- 1 — Jluhammcdan Lmw — 
Mother's power to m'irtgage property of 'minor 
children — Minor — Order to make ixstilution — 
Appeal by minora: — Court-fee. 

Where a Muhammedan mother mortga- 
ged the prop;rty of her minor children, undi 
did lot profess to do so as their guardian 
de jure ox de facto, Udd, that the mortg.- g: 
was void. The mother of the minors n.. t 
baiug their natural guardian Recording to 
Muhammadan Law, being only their mother 
and not cne of their paternal relations, and 
not being a certificated guardian appointed 



( 133 ) 



CIVIL DIGEST OP C.\SE3 



( 134 ) 



Sap: Govt, acts (Yll of 1870) rContd). 

under any Guardian and Wards Act in forco 
at tire timo of the mortgayo, the mortgage 
eould not, in any way, bind the minora or 
their property. 

Plaintiffs obtained a decree on a mort- 
gage executed by a Jluhammadan mother 
for herself and on behalf of hev minor child- 
ren, directing her minor children, who wore 
defendants in the case, to make restitution 
to the plaintiffs in proportion to their shares. 
On the appeal of the minors, held, that 
the appeal was liable to be charged ad valorem 
Court-fee, and a Court-feo of Rs. 10 was 
insufficient, and that the docreo ordering 
restitution was contrary to law. 

Held, also, that it the minors had boon 
suing to recover possession of their shares 
of the property, they could be ordered on 
the principle that he who socks equity must 
do equity, to refund the consideration-money 
of the mortgage to the extent to which thoy 
had benefitted by it. MOYN.\ BIBI v. B.^N- 
KU BEHABI BISWAS. 6- C- W- N- 667 
=29 C 473. 

116- S- 7. Schedule I, Article 1— 

Appeal from decree exonerating property from 
liability to debt — Mortgage suit — Value of the 
subject-matler in dispute in appeal— Debt 
exceeding vahie of property exonerated. 

§. 7 of the Court Pees Act has no ap- 
plication to an appeal where the dispute is 
as to the liability of certain lands to be pro- 
ceeded against in respect of the mortgage 
debt, i.e., whore the relief sought in appeal 
is the right to proceed upoii certain of the 
mortgaged properties exonerated by the dec- 
ree of the Lower Court. 

The value of the subject-matter in dispute 
in an appeal against a decree exonerating 
certain lands from their liability to the debt 
is the value of the property, where the debt 
exceeds the value of thi property exonerated; 
and court fees need be paid only on snch 
value. 4 Mad. 33G: 10 Mad. IS7; approved, 
16 Mad. 3!(>: distinguished. KKSAVARAPU 
RA^tAKRISHNA REDDI v. KOTTA KOTA 

BEDDI. 16. M L. J. 458-- 1 M li- T- 811- 
(F- B).=30 M se- 
ll?. Sell. 1, Art. 1.— Civil Procedure 
Code, S. 523 — Appeal from a decree in accor- 
dance with an award. 

Held, that the proper Court foe payable 
upon a memorandum of appeal from a dec- 
ree passed in accor.iauca with an award based 
on an ori'er of reference under S. 523 of the 
Code of Civil Procedure is an ad rnlirevi fee 
and not a fixed fee of Rs. 10.— REFKRENCE 
UNDER S. 5 OF ACT No. VII OP 1870. 

1907 A. W- N- 177- 

118- Sch. I Art. 1— Consolidation of the 
values of appeals, 2y C. 140 See No. 85 Supra. 

Sch. I Art. 1 — Meviorandum of appeal — 
Court fee. 

G, A and K were co-defendants in a suit. 
K valued his appeal at a certain amount and 
paid full court fee thereon, G and A filed a 



Sup: Govt acta (711 of 1870) (Contd). 

sopvratj appeal valuing it at the same 
amount, but paid Bs. 2/- court fee on their 
appjal. 

Held, that their appeal was not suffici- 
ently stamped. GHAZANFAR ALI KHAN 
V. RAM DIAL. 3 0. C- 164- 

119- Sch. I. Art \— Mortgage—Payment of 
mortgage — Debt by a third parly —Extinction of 
Mortgage —Charge —Subrogation — Presumption 
Intention of parlies — Protection of interests. 

The gen.3ral rule of equity is that a man 
having a right to act in either of two ways 
shall lie assumed to have acted according to 
his interest. 

The question whether a mortgage is ex- 
tinguished when the mortgage-debt is paid 
off by a stranger, or whether it is kept alive 
in favour of the person making the payment, 
is a question of intention of parties. 

In the absence of any express declaration 
of tlie intention of the parties, the general 
rule is to be applied and it shall be presumed 
that the mortgage is kept alive in favor of 
the person paying off the debt. 

This presumption becomes even .stronger 
when at the time of making some of the pay- 
ments the mortgagor is already indebted to 
the lender, and by the application of the 
doctrine of subrogation the lender is entitled 
to the benefit of the first mortgage, when it 
is his debt that is paid off .JAGATHAR 
NARAIN PRASAD v. A. M. BROWN, GOPI 
LAL V. A. >r. BROWN. 4 CaL L. J., 121 

10 WN, 1010 = 33 1133 

120' Sch. Art. I.— Civil procedure Code 
(Act XIV of 1S<2), Section 3 iij —Execution of 
decr.'e — 0')t ruction by tlUrd par'y — Decree — 
.■l2>peal Court-fee on appeal — Court Fees Act. 

When a claim is registered as a suit under 
Section 3.iO of the Civil Procedure Code, 
and a decree for possession is passed in fa- 
vour of the decree-holder, and appeal is pre- 
ferred against tiie decree, the memorandum 
of appeal is charged with ad-va'orem Court- 
foe ou the value of the property. BAL.\- 
SUNDRV MUDELLY v. BAJALINGAM 
CHETTIAR. 29- M- 172- 

121. Sch. 1 Art 1 & Sch. H Art- 11— 

Land Acquisition Act (I of IriiiJ:), Scc'ions 8 
and 3U — Compensation for land acgiured by 
Government — .ipplicalion for apporii :»iment 
dismissed and parties referre.l to Civil 
Court — Appeal — Court -fee— Decree — Civil Pro- 
cedure Code (.id XIV of l^Hi), Section 2— 

When in a reference under section 18 
of the Land Acquisition Act the District 
Judge diiimisscd the application made to 
him for apportionment of compensation al- 
lowed for land acquired by Government and 
referred the parties to Civil Court — 

Held, that the order was made without 
jurisdiction. The case was remanded to the 
District Judge to apportion the amount of 
compensation as ho thought fit. 

Held also, that the order of the District 
Judge was not a decree, and an appeal against 
the order was chargeable with C-Urt-iea 



( 135 ) 



CIVIL DIGEST OF CASES 



( 136 ) 



Sup: Govt, acts (VII of 1870) iContd). 

uudor iirtii-le 11 of tlu; second Schedule oJ 
the Court Fees Act. HABRISH CHANDRA 
CHXTTERJI ('. BHOBA TARINI DEBI.— 

8. C. W. N. 321. 
122. Sch. I, Arts. 4 and 5~AppUcation 

for reciew of jiulijancnt. 

Application for review of judgemeni; 
was filed after more thau 90 days on half 
the Stamp. 

Held it was insufficiently stamped under 
art 5 and that a full fee was required under 
Art 4 JACOT PAL SINGH r. .TAGESH- 
WAR BAKHSH SINGH. 2- 0- G- 302- 

123- Sch. I CI. \.\. — Valuation of chose in 
action. 

Where there was no material upon which 
the Court could assess the value of a chose 
in action, the Court accepted the valuation 
of the executor and directed him to file in 
Court on the termination of the suits filed 
by the deceased testator a statement showing 
the result of these suits and to furnish the 
Government Pleader with a copy of the 
statement. SALDANHA v. THE SECRE- 
TARY OF STATE FOR INDIA. 24 Mad., 
841- 

124. Sch. II Art. I.— 25 n. 515 Supra 
No. 86. 

125- Sch- I Art. 13— Civil Procedure 
Code (Act XIV of 1882) Section 336— Surety— 
Execution of decree against — Appeal — Revinion. 

No appeal lies against an order rejecting 
an application by a decree-holder for execu- 
tion of his decree against one who became 
surety for the j id^meut-debtor, under sec- 
tion 336 of the Civil Procedure Code. 

An application for revision against such 
order is chargeable witlj a court-fee of Rs. 2 
under Article 13, Schedule I of the Court 
Foes Act. LILLO MAL v. HAR.JI MAL. 

72 P- R 1902. 

126- Sch. II Art- \.— Partition— Appli- 
cati m for appeal — Court fees. 

Where a woman co-sharer p ilied for a per- 
fect-partition of her share a; d i cosharer ob- 
j !cted to it alleging that she was not an owner 
but only in possession by way of maiuteuauoe, 
and her objection being disallowed, she ap- 
pealed to the Judicial Commissioner on Rs. 2 
Court-fees only. 

Held, that the proceedings, as the enquiry 
of the ol ji;tions, could not be regarded to be 
a suit, a id the appeal only as an application 
was suffioientlv stampad under Schedule II 
Art. 1 Court Fees Act. CHEDI v. JAIKOBA. 

4:0 C 289- 

127- Sch. II Art. \— Partition— Court- 
fee on appeal. 

Certain co-sharers applied for partition 
under section 107, N.-W. P. and Oudh Act 
III of 11)91, some of co-shwers o'' j jcted to 
the partition. Their o' j action boing dis- 
allowed without any enquiry they appealed to 
the Judicial Commissioner on Rs. 2 Court- 
fees only. 



Sup: Govt, acts (VII of 1870) Contd.) 

Held, following 4, O. C. 289 that the \\ 
memorandum of appeal was surticienlly I 
stamped. THAKAR B LDEO BUKHSH v. ' 
THAKAR BALBHADAR SINGH. 6- 0. C- 

372- 

128 Sch, II, Art- 11 {tiY—Mcsne-pronts— 
Appcal—C. P. a. Sec. 2ii (c). 

B. obtained a decree for possession and 
mesne profits from the date of the suit till 
the delivery of possession. He applied for 
execution for botli the mesne profits which 
amounted to Rs. 9,870. R. appealed against 
this order on Rs. 2 court-fee only. 

Held, the Court-fee was sufficient. Under 
notification of the Government of ludia 
No. 4344, dated tith October 1893, the fee 
payable on a memorandum of appeal against 
an order under CI. (c), Sec. 244, C. P. C. was 
chargeable under Art. 11 (b) Sch. II Court 
Pees Act. RANI ITRAJ KUAR v. BACHA 
MADHO KUAR. 60- C- 86- 

129. Sch. II Art. U-See 8 C. W. N. 321, 
(p. 42). 

130 Sch. II Art. 15 and 17, 28 C- 

567.— See Sec. 7 (IV) (c). No. 21 Supra. 

131. Sch. II Art. 17 (1).—31 B. 73 See 

No. 22 Supra. 

132- Sch. II Art. 17 {S).-30 C. 78S See 

No. 23 Supra. 

133- Sch. II Art. 17 (3).-^ L. B. n. 

1904 p. 2(j(j See Ao. 2G Supra. 

134. Sch. II Art. 17 (i)— Appeal re- 
garding future Interest. — 27 A. 559 See No. 70 
Supra. 

135. Sch. II. Art. 17 (vi).— CourN/ce— 

Suit to recover puise^sioH of a share in immov- 
able propeity after partition. 

The plaintiff filed a suit to establish his 
title to a one-third share in certain property, 
and to recover possession of the same and a 
claim for partition was added to make the 
relief sought effectual. 

Held, that an ad valorem fee was payable 
on the plaint and not a fee of Rs. 10 as pro- 
vided Ijy Art. 17, cl. {vi) of the second Sche- 
dule to the Court Fees Act.— 18 Bom., 209 
fodored 8 Cal, 757. referred to. WALI ULLAH 
V. DCRGA PRASAD. W. V , AU , 1906. 

p 88 3 A L J 181=28 A 340. 

136. Sch. II Art. 17 (6)-^^ ^i^. L- J- SS 

See No. 24 Supra. 

137- Sch. II Art. 17 (6).-^? ^I- L. J. 

573 Sf'- No. 2j Supra. 

138. Sch. II Art. 17 (6)-i L. B. ft. 

19VU to 19V2 p. 3U3, See No. 39 Supra. 

139. Sch II Art. 17 (G)— Tenant's eject- 
mcni—U. B. R. 1903, p. 1 See No. 40 Supra. 



( 137 ) 



CIVIL DIGEST OF CASES 



( m ) 



Sup: Govt, acts (VII of 1870) cGontd), 

140. Sch.IIArtl? a).— Suit Ic contest 
an Older under ISeclion 2ii:l of the Civil Proce- 
dure Code. 

Held, that tbo Courfc-feo ou the plaint in 
a suit to contest an order passed under section 

282 of the Codo of Civil Procedure is rupees 
ten as prescribed by Article 17 (1) Schedule II 
of the Court Fees Act — Punjab Record 51 of 
1897, followed. J LAM DIN v. BHAGAT 

SINGH. 12 P- L- R. 1902. 

141. Sch. II Art. 17 (6)-Ss. .v.io, 52i 
and 52.5, C. P. C.—Ai>plication to file a pri- 
vate award — Bcjeclion of such ap plication^ 
Memorandum of appeal — Defective private 
award — Award effecting partition of immove- 
able property used for purposes of S. 533 of 
C. P. C. - Registration Act, S. 17 (b). 

Art. 17 Gl. 6 of the second schedule of the 
Court Foes Act applies to a memorandum of 
appeal from an order rt jjcting an application 
to file an award under S. 525 of the Code. 
The memorandum of appeal, is sufticiently 
stamped, if it boars a Court Fee of Rs. 10 
and not an ad valorem fee. 

33 C. 11 and 70 P. R. 1881, D. 109 P. L. R. 
1902, Diss. A. W. N. (1903), 214, P. 

In proceedings started by an application 
under S. 525 of tbo Code, the Court has no 
power to amend the award or to remit it for 
re-consideration, but must ei'iher affirm it in 
its entirety or wholly rcjict it. 27 A. 526, 18 
P. R. 1892 referred to. 

Where the arbitrators appointed under an 
agreement between the parties made an award 
which was defective, and in which the arbi- 
trators exceeded the power given to them 
under the agreement, held that the Court had 
no power to file the award. 

Semble. — .An award of arbitrators private- 
ly appointed does not require registration, 
even if it effects a partition of j jiut immove- 
able property and is signed by ihe parties to 
signity the acceptance of the award, in case 
the award is merely sought to be filed and to 
be made a rule of Court under S. 525 of the 
Code. BHAGAT RAM v. PARAS RAM. 84 

p. R. 1907 
142- Sch. II, Art 17 (6).—U. B. R. 1903 

p. 1 See Sec. / (T) (c) No. iO Supra. 

143. Sch. IT Art 17 (6).-i=? C P. L. R. 

172 See Seh. 1 Art. 1 No. 114 Supra. 

144. Sch. II Art. n.— Civil Procdure 
Code (Act XIV of 18S2). Section 383 Court-fee 
— Declaratory suit — injunction — Consequential 
relief. 

A suit of the nature referred to in section 

283 of the Civil Procedure Code to establish 
plaintiff's right to property attached, and for 
a perpetual inj motion to restrain its sale in 
execution of a decree, is one in which conse- 
quential relief is prayed for, and, therefore, 
subject to an ad valorem Court-fee duty. 13 
Crti., 162 ; 15 Cat., lOi; 15 B. L. P., Ap. 1 ; s. c, 
22 W. R., 422, followed. FULKUMABI v. 
GHANSHYAM MISRA. 31 C 511- 



Sup: Govt, acts (VII of 1870) (Oon.(d). 

144 («). Sch. II Art. 17 (6) and c. f. c- 

§. •I'iJ—D-diiraUini tille wilhonl ccnsfiucn- 
tial relief — Suits Valuation Act, Section tl. 

The valuation of a suit under .section li-i.^ 
C. P. C, for the declaration of a riglil, to 
attach certain property, the attachineut on 
which had been remove I, i.i for purpos.js of 
j irislictiou; the value of the decree wb;oii it 
IS desired to execute, if that bo less thiii the 
value of the property, or the value of the 
property if that be le ;s than tlia anijiut 
of the decree (I. L. R. 15 C. lOt follow- 
el) Article 17 of Schedule I[ Court I'Ve-s 
Act applies to a suit brought under so'jUoii 
283, C. P. C, and the stamp required for the 
plaint is Rs. 10 only (9 P. 20, 10 B. 010 fol- 
lowed) 2 A. 63, 11 A 335 cited, 13 C. 162 dis- 
sented from. It is not necessary for a pi Lin- 
tiff bringing a suit under section 233 C. P. C. 
to ask for any further relief than a declira- 
tion of his right to attach the propjrtv in 
dispute. Ou such declaration being m ido 
the order removing attacliraent would fall 
and the attachment should bo restored (10 B 
010 followed). SEVA RAMAN CIIKTI r 

MAUNG PO YEN. 1 L- B- R- 19001902 

p 1 

145 Sch II Art 17 (61 IG. C P. L. R. 

1903 P. 130 See §. 7 (IV) 6. No. 11 Supra. 

146 Sch. II Art 17— 2S C. 334 at 33a. 

See §. 13. No 6. supra. 

147 Sch. II, Art 17— Specific Relief .id 
(lof 1S77J §. 39. Dic'aratorii suit. 

Held, that plaint; in suits (which aie in 
their nature simple declaratorv) under §. 39 
of the Specific Relief Act are chargeable with 
Court Foes under Sch: II Art 17 (iii) of the 
Court Fees Act and not adra'ore:n under 
§. 7 (IV) of the same Act. DURGA BU.X u. 
JIIRZA MOHAM.MAD ALI BEG. 1. Q. Q. 
123. 

148 Sch II, Art 17 CI. (3)— 5. C. W. N. 

Ij7. See §. :j H'l I No. 1 supia. 

119. Schedule II, Art 17 {yi)~Court- 

fee — Suit to rcctjver jJOsse.-ision of a sitare in 
immovable property after partition. 

The plaintiff filed a suit to establish his 
title to a one-third share in certain propoccy 
and to recover possession of the same and 
a claim for partition was added to mike the 
relief sought effectual. 

Held, that an ad valorem fee Wiis pay- 
able ou the plaint and not a fee of Rs. 10 
as provided by Art. 17, ol. (vi) of the second 
Schedule to the Court Fees Act.— i.S Pom, 
309 followed. 8 Col, 7.57, referred to. WALI 
ULLAH r. DURGA PRASAD. W- N , A. 

1906, p 38 =3 A L. J 181- =23. A 340 
150 Sch: 11 Art 17 (e)-A. W. N. I9u-i, 

P. 310. See t 17 No 81 supra. 

27 Act XXI of 1870 (Hindu Wills Act). 

1. Will — Probate — Letters of administration 
— Institution of suit. 

The jilaintifts sued for possession of cer- 
tain property on the basis of a will executed 
in thoir favour by one B., a Hindu. 



( 139 



CIVIL DIGEST OF CASES 



( 110 ) 



Sup: Govt, acts (XXI of 1870) rr„„td). 

Held, that it was not neeossary for tho 

plaintiffs to take out probata or letters of 

administration before institution of their suit. 

JIATA DIN V. G.\YA DIN. 2 0- G 33- 

2- S 3 — WiU — RevociiUon— Posthumous so>i. 

A Hindu will is not revoked by tho sub- 
sequent birth of a posohumoas son to the 
testator. S. .57 of the Succession Act which 
is general and exhaustive and S. 3 of the 
Hiudu Wills .^ct, read together, mean that 
Hindu wills should not be rsviikod except in 
the manner mentioned in S. 57 of the Succes- 
sion Act su' i 'ct to the proviso contained in 
S. 3 of the Hindu V?il)s Act. 

Per Chief Justice : — Under the Succession 
Act, tho law as to the revocation of wills is tho 
same as tho law of England under tho Knglish 
Wills Act. SUBBA Rl'lDDI v. DORAISAMI 
BaTHEN; SUBBA BKDDI v. PAPAMMAL. 

17 M- L J 269=80 H- 369; F B- 

28 Act XXIII of 1870 (Indian Coin- 
age act ) 

i. Tender of arrears of rent due — Valid 
Tender — Tender by cheque — Waioer — Gurrenl 
Cain — Interest, if chargeable after tender and 
before deposition Court — Denqal Tenancy Act 
{Vlllof 18(i5),Ss. 56, 61— Effect of Deposit- 
Indian Paper Currency Act {XX of ISH'J) — 
Indian Coinage and Paper Currency Act (XXII 
of l(i99}. 

A tender to be valid must be made in the 
current coin of the realm 5 Co. Rep. 114a, 
2 Cr. and Jer. 15 = 37 R. R. 623 and 12 
Wallace (U.S.) 457 iJ. 

A legal tender, under the Indian Coinage 
Act (XXIII of 1870), tho Indian Paper Cur- 
rency Act (XX of 1882) and the Indian 
Coinage and Paper Currency Act (XXII of 
1899), includes coins and currency notes, and 
not a tender by a cheque, which is not a legal 
tender. 

When a tender is made, in a currancy 
different from that required by tho law, for 
Instance by a cheque on a banker, the obi 'O- 
tion to tho form of the tender may bo ex- 
pressly or impliedly waived by the creditor, 
and he will be deemed to have waived the 
objection, if he njiots the tender not on tha 
ground of its quality but on the ground of 
its insufficiency in amount, or on some other 
ground. 2 Gr. and Jer. 15; 37 R. R. 623 = 8 
Dowl. 442;59 R. R. 833 = 5 Yerger 199; 28 
Am. Dec. 2(i3-l H. and C. 704 = 7 Wallace 
(U. S.) 447, and 4 C. 572, R. 

A tender is not vitiated, because a receipt 
is asked 8 Dowl. 412 ; 59 R. R. 8.33=8 JI. and 
W. 29S. JACtAT TARINI DASI v. NABA- 

GOPAL CHAKI. 5 C- L- J 270=34 C- 305- 
30 Act XXIII of 1371 (Pensions act). 

1— Pensions Act {XXflt), I 3 and 11— Civil 
Procedure Cole (Act XIV of'lStm), Section 266 
(g) — AUachnien' — Political pension— Land gift- 
ed by Government. 

The word "pension" in section 11 of the 
Pensions Act, 1871, and clause (g) of section 
266 of the Civil Procedure Code, implies 
periodical payments of money by Govern- 
meut to the pousiouor iu tho manner prescrib- 



Sup: Govt, acts (XXIII of 1871) (ContdJ. 

ed by section 8 of the Pensions Act. It 
does not include land given by Government 
by way of gift. 4 Bom., 432; W. N. All., 
1902 p. 161: L. B., 17 I. A., 181, referred 
to. LACHMI NARAIN ii. M AKUND SINGH. 

A. W N 1904 P 144=1 M- L- J. 338 
=26 A- 617- 

2- S- 3, 11 12 —Grant of land revenue. 

Where on tho abolition of a hereditary 
office a grant of land revenue was made by 
way of compensation: 

Held, that such grant fell under § 3 and 
not within Ss. 11 and 12 of the Act. S. 12 
applies to assignments made on account of 
any such pension, pay or allowance as is 
mentioned in S. 11 and pensions referred 
to in S. 11 are granted by Government on 
political considerations or on account o£ 
past services or present infirmities or as a 
compassionate allowance, as distinguished 
from payment by Government in respect for 
any right, privilege, perquisite or office. SUB- 
RAYA MUDALI v. VELAYUDA CHETTY. 

2 M L J 33=80 M. 153 

3. S- 4 — Grants for charitable purposes — 
Suit to set aside order imposing full assess- 
ment — Jurisdiction. 

S. 4 of the Pensions Act applies only to 
personal grants; and not to endowments for 
religious or pious purposes. Consequently, g, 
suit for setting asidj a Government Order 
imposing full assessment on lands granted 
to plaintiff's ancestcrs for the charitable pur- 
pose cf feeding Brahmins is cognizable bv 
Civil Giuvts. VEXKATESWARV AIYAR i-. 
THE SECRETARY i,>F STATE. 3. M- L- 

T- 104 = 17 M L. J. 549. 

4. S- 4 — Suit f r 2^ossession. 

Sectio\i 4 of the Pensions .Act is enti'elv 
silent as to suits to recover possession of 
land the revenue of which h:i.s been remit- 
ted. It enacts merely that "no Civil Court 
shall entertain any suit reljiting to any pen- 
sion or grant of money or land revenue." 
These words could not, without a manifest 
strain of words, cover a suit to recover tha 
possession of land or to obtain a declaration 
of right to hold land. Tha phrase "relating 
to" as occuring in an enactment resti-ic'.ive 
of the right to sue, must be construed strictly, 
i. e., in favour of the light to proceed. 

The right to b'^ld laud is a right dis- 
tinct from the right to money or revenue, 
and a suit relating to the former is distinct 
from a suit relating to the latter. 

The right of an rl euee of the revenue 
to possession of tho land may s;irv>o ihe 
resumption of the grant of exemptijns from 
liability to land revenue. 

Tho right which an alienee of tho re- 
venue only raav enjoy as to the possession 
of tho land comprised iu his grant was recog- 
nized not only by Government in the Gov- 
ernment Resolution of Lith May 1SJ4 but 
by th3 Court of Directors too iu a Despatch 
of 27 th March 1844. 



r 



( 141 ) 



CIVIL DIGKRT OP CASES. 



( 142 ) 



Sup; Govt, acts (XXIII of 1871) (Contd) 

The aullioiilios make no distinction ba- 
twoon holdings which an inamdar has acquir- 
ed by purchase Iroma kadim occupant or by 
lapse of prior occupancies, and the right? 
which lie may have obtained directly from 
the grant itself to hold at his disposal lands 
comprised therein which at date thereof no 
other person had a right to occupy. If the 
grant places laud at the disposal of the alienee 
of the revenue, where there are no pro-ex- 
isting claims to hold it, the alienee, though 
not an owner of the soil, is entitled to dispose 
of it as be chooses. He is not bound to 
give it out to tenants but may retain it in 
his own possession; and becomes the holder 
thereof within the meaning of the Bombay 
Land Revenue Code, 1879, and his rlglils 
are as indefeasible so far as the right to 
possession is concerned as the rights of an 
occupant of unalienated land. 

The right to hold land, even though it 
be not as proprietor of the soil, is incontost- 
ably one of which the Civil Courts can take 
coguizanoe, if no't barred by statutory pro- 
vision. 

The fact that the holding is claimed to 
be exempt from payment of land revenue 
does not change the suit into one relatiUij 
to the grant of money or land revenue 
BALWANT RAM CH\NDER NATK v. THE 
SECRETARY OF STATE FOR INDIA IN 

COUNCIL. 7. B.L.R- 497 = 29 3480. 

6. S- 4. — Agreement rclinqnishin.j claims to 
pension and family property in consideration 
of maintenance — Suit for recovery of mainten- 
ance not barred. 

Wliere by^an agreement the plaintiff, a 
Hindu woman, gave up to the defendant 
various claims which she had in regard to 
the family property and also her claim to 
portion of the pension granted to her by 
Government and in consideration therefor 
the l.itter, as the person hablo to maintain 
the pi lintiff, agreed to pay her Rs. 100 per 
men.-em until her death. 

Ildd, thit a suit by her for the recovery 
01 such maintenance is one not "relating to 
any pension " and is not barred by S. 4 of the 
Tensions Act. RAHACHAN i')R.\ ROW r. 
LiK-.HMI NAUASAMM\ ROW. 2 M. I.. 

J. 138=17 M. Ij. J.:i39; sa m. 267. 

6. Pensions Act (XXtll of 1S71), Section i 
— Huit — Execution proceedings — Dekkhan Agri- 
culiurists R^lirf Act {XVII of 1S79), Sction 4i- 
PaitUiun — J, linl family prjp:rty — Conciliation 
a-jre.,'mc.nt — (Jt-ns. ii' decree — Execution of Decree 
executing Court cannot question Jurisdiction of 
Court passi7ig decree. 

The word " suit " in section 4 of the Pen- 
sions .\ot does not include execution pro- 
ceedings. 

A conciliation aj.rjement was filed undjr 
section 41 ol the Djkkhan Agriculturists' 
Relief Act. It effected partition of family 
property between two brothers, N. and A., 
who were joint. One of the itema to be 
partitioned was the income of a Saranjain 



Sap •- Govt, arts (XXIII of 1871) {Co7itdj 

village. Out of that A. was to pay every year 
Rs. 456-0-6 to iV. They both died. The pay- 
ment was duly made during their lives and 
even afterwards by T., son of A., to N. The 
payment was stopped and thereupon B., sou 
of 'N., fiWd a darkliast to enforce payment. It 
was contended th-at A.'s interest having 
terminated with his death, the Saranjim 
must be considered as a fresh grant to his 
sou, and that the latter was not bound by the 
djcree and liable to- continue the yearly 
pijment. 

Held, overruling the contention, that A. 
was a trustee in respect oftheKs. 455-0-0 for 
N., the obligation to pay which was attached to 
tho succeeding holders of Saranjam, and that 
therefore, N., and his descendants, had the 
right to call upju A. and his descendants 
to acOjunt for their management of the 
caraiijim and pay to them the sum oi 
Rs. 4-..O-0-6 p-^r annum. 

Where a decree is passed by censen', it 
can only be set aside upon the same grounds 
as an agreement can be set aside, e.g., fraud 
or mistake or misrepraseutation. 

Per Batty, J. -i Court executing a decree 
cannot question the j irisdictiou of the Court 
which passed it. THIMBAKRAO ANAND- 
RAO V. BALWANTRAO NAR.\Y.ANRAO. 

7 B L. E, 659. 

7. g, i.— Collector's certificate— Agreement 
to receive miintenance out of ca'^h allowance — 
Suit relating to a pension or grant of money. 

The plaiutirf under a inalual agreement 
being entitled to an annual payment of 
Ri. 52 for her miintenau-io ai.vt of a e-ash 
allowance which, was received by defend ints 
from Government, brought this suit to en- 
force h-jr right under the agreement, but did 
not produce the certificate from the Collector 
required by S. 4 of the Persions .\.ct, 18/1. 

yiiJ, thu the certificate was necess-iry 
for the miintenance of the suit. The words 
of the secLion are wide- enough to include any 
suit or to enforce such a claim provided it 
relates to a pension or griut of money or of 
l.md revonuj. It is imiiiUeri.Xil whether tiie 
claim is bised oai an ogreenMut between the 
parties or arises out of any other legal rights 
or liability and whether it is a claim for a 
share by way of pirtition or miiateaance or 
othef,viso. DA;.1JDAR VAMANBOW.i v. 
^VTi'AB iAM.\BAl. a33ai li- il.8S3 = 

31B. 51:^. 

8. Sd. 4 aai Q.—SnU relating to ri^ild ta 
real: ic reoeiiue—l'tnui granted to procure certi- 
jlcate. 

In the absence of a certificate from a 
Collen;.or, the Civil Court has no jirisdiotion 
.0 deal with a cas* relating raireiy no a n.^hc 
to reuUze the revenue granted by the Gov- 
eruniint as reward for services rendered. 

Where the plaiatiS had applied for a 
certificate under section u of the Pensions 
\ct, bat was informed thit no certificate was 
necos^'.ry, the High G:> irt, considering that 
the ccrtincite was necessary before the dis- 



( H3 ) 



CIVIL DIGEST OP CAiSES 



( 144 ) 



Sup; Govt, acts (XXIII of 1871) (hntd.) 

puccuJiilcl bj doiilt with by a Civil Court, 
grani^ed timo to tlie plaintiff to take steps for 
the parposu of obtaining the certificate. — 17 
Bum , 160, followed. IHTASHAM ALI v. 
SH UI SUNDAR. A. W- N- 1902, p. 187 
=2J A 73- 

9. S. 4, 5 & 6. — Suit for declaration of 
legitimacy — Specific Belief Act (I of 1S77), 
S. 4^. 

The .ippellant sued the respondants' for a 
declaration that she was the legitimata 
daught '.r of the respondant No. 1 on the 
gi'oaud that they had denied that she was 
daughter of respondent No. 1. The o j !ot 
of .seeking this decliration was that wheu the 
re~p'ioJent No. 1 dies the appellant may, if 
she obtains it, be in a position to claim the 
right to inherit a Government pension on 
the dja'ih of respondent No. 1, and any other 
propai-ty which he may leave. 

Ilel I, that a pjrsou may obtain a declara- 
tion under Sec. <t2, Specific Relief .\ot, that he 
is the legitimite son of another person, not- 
withstanding tiiat no present existing right 
in him as to property is involved by the 
qujj'Jon whether he is legitimate or not. 

Hd'l further that the appellants' suit was 
not one relating to loasika, but one for the 
declaration of hor legitimacy and that tlie 
suit was not barred by Sections 4 to G, Act 
XXUI of 1871. QAMAR ARA BEGAM v. 
PJ'IAUE SAHABA. 2 0. C- 57- 

10. S3. 4 & 9-— Suit for arrears of land 
revenue— Liinilation Act '(XV of 1877), Schn- 
du'.e II, Arlicl", J:iO—Boin'jaij Land Hcvenua 
Code i.\:t r of J6V~U), Section ti.i. 

The plaint ff claimed as a proprietor of a 
share of arrears of revenue. It was not dis- 
puted tha: the plaintiff was a grantor of the 
land revenue and that his claim as such was 
adtnitted by Government and the amount 
cl ij.rajd w.is recoverable from the de'o-idants 
un.lor tlie ordinary law relating to the re- 
covery of i-ent. It was contended for the 
defendants on second appeal that a ccrtifi- 
cale under the Pensions Act was necessary 
be'ore the suit could be decreed, that the 
claim was time-barred and that under sec- 
tion 8.5 of the Bombay Iiand Revenue Code, 
Act V of 1879, the plaintiff could recover only 
through the village officers. 

}I'i I, that certificate under the Pensions 
Act was not necessary tor section 9 of the 
Act was applicable to tlie case, that article 
120 o tlie second schedule of the Limitation 
Actgovermd the suit and the claim was not 
barred and that section 85 of the Bombay 
Land Revenue Code did not apply for the 
existence of a h.^reditary patcl and a village 
accountant w.is not established. 10 All., 
3y.j ; 31 B.j}n , ,'j-,6; .5 Bo,n., L. R., 700 followed. 
ANPA.H VASUUEV f. KASHINATH'DHON- 

UJ. 6 B L. R 423. 

11. S. 4 ani 11. — Pennon — Resumption 
of rent-free la.i,i by mistake — Grant made to 
compensate loss— Attachment. 

Where the Government, by mistake, at 
the time of permanent settlement resumed 



Sup: Govt, acta (XXIII of 1871) rContrl). 

certain rent-free lands and, when the mis- 
take was discovered, mude an annual grant 
of a certain amount to the grantee to com- 
pensate the loss caused by the mistake. 

Held, that the grant was ^not pension 
within the meaning of section 11 of the Pen- 
sions Act and was liable to attachment i 
Bom., 4.32, followed. -JIBAN KRISHNA 
GHOSH V. SRIPATI CHARAN DEY. 8 n W 
N. 665- "■ 

12. S- 5—See Sectioyis 4—6. 3. 0. C. 57 

No. 9 Supra. 

13- S. Q.— Pension— Grant— Construction of 
—Grant bij Government of vilkiqe upon pay- 
ment of quit rent— Grant of land' revenue. 

In a sanad under which a village was 
granted by British Government in confirma- 
tion of a p evious grant by the Maban j , o£ 
Scindhia there was a declaratioii that the 
village in question shall be continued by the 
British Government to Jagdeo Rao and his 
heirs, inclusive of all lands, allowances and 
rights belonging to others so long as he and 
his heirs shall continue loyal to the British 
Government and shall pay Rs. 800 to Gov- 
ernment as quit rent. lA a later portion of 
the sanad there was a guarantee against any 
further payment by the holder on account of 
Imperial Land Revenue beyond the amount 
specified and a declaration that the village 
and its holder should be liable for any local 
taxation which might be imposed in the dis- 
trict generally. 

Held, that this did not amount to a gr ut 
of land revenue and consequently did not 
come within the purview of the provis ons 
of the Pensions Act. 1 Bom., 523 referred to. 
GANPAT RAO V. ANAND R VO W W 

All., 1905, p. 206 = 28 A- 104. 

14. S. Q— Certificate by Collector, Effect of— 
If the Collector once gives the certificate 

which entitles a party to claim a certain 
right in a Civil Court, then the effect of that 
certificate is to give to the party the right to 
claim in a Civil Court whatever he is entitled 
to in virtue of that right. The certificate 
may refer only to the plaintiff's share in the 
pension or allowance for particular years. 

Where the Collector permitted the plain- 
tiff to establish his right to a share in a Civil 
Court — 

Held, that the plaintiff was not bound 
under the Pensions ,\ct to get a certificate 
for each year's allowance before suing for it. 
If the general right is allowed and establish- 
ed, the right to each year's share follows as 
consequent upon it. KRISHNA.II SAKHA- 
RAM SINGLE 1,. ANANT. 5 BoiU L. R 

95 = 28 B. 241. 

15. S 6— See §§. 4 and 6— A. W. N. 1902 
P. 1N7 = 28 A. 73. No. S supra. 

16. S 6-See§§. 4, Sand 6—2 0.C. 57. 
No. '.) supra. 

17. S. 9—See §§. 4 and J9—6 B. L. B. 423. 
No. (10) Supra. 



( 1« ) 



CIVIL DIGEST OF CASES 



( H6 ) 



Sup: Govt, acts (XXlII of 1871) (Contd). 

18. Exiculiun uf decree — Interpretation of 
dccnc — llcjerence to jtidgvient and award — 
Civil Procedure Code (Act XIV of 1882), Sec- 
tions 13, 206 — Amendment of decree — Ke^jadi- 
oatft — Jagiv, Attachment of — Objection — Pen- 
sions Act [XXIIl of 1H71), Section 11— Jagir 
income is exempt from attachment under Sec- 
tion 11 of the I'cnsions Act, 1871. 

When the terms of a decree are clear 
and unambiguous the Court cannot refer to 
the iadgmcul or the award in case the judg- 
ment is passed on nn award. 

The fact lliat property not liable to at- 
tachment e. (/., Jagir income, has been im- 
properly attached on one or more occasions 
does not debar the judgment-debtor from 
pleading exemption when it is subsequently 
attached. 35 P. U. 1900; P. L. B., I'JOO, p. 
357 ; 31 Cat., m% referred to. MUHAMMAD 
QAMAR-UDDIN KUAN v. LACHMI NATH 

95 f . K 1906-83kP. L E. 1907 

19. Pensions Act (XXIII of 187i;, Sectimi 
11 — Pension — Jagir — Khush-hais-i-yati income. 
Attachment of — Execution of decree — Pmoer of 
execution Court — Interpretation of decree — 
Charge. 

Held, that the Vhush-hais-i-yati income 
or water-advantage rate must be regarded as 
part of a, jagir within the meaning of section 
11 of the Pensions Act and is therefore 
exempt from attachment in execution of a 
decree for money. The fact of its attachment 
on any previous occasion would not legalise 
its subsequent attachment. When a decree 
specifically charges the income with the pay- 
ment of the decretal money a Court execut- 
ing the decree cannot raise the question of 
illegality. 

Where the decree directed the defend- 
ant to pay the decretal debt by instalments 
out of the hJiush-hais-i-ijati income, and the 
decree further provided that the defendant 
shall not be competent to alienate such in- 
come until payment of the decree money — 

Held, that the decree could not be con- 
strued as ijpecifically charging the income 
with the payment of the decree money. 
QAMAR-UD-DIN KHAN v. MANI RAM. 

96 P R. 1906 = 138 P L. R , 1906 

20- Civil Proccdu re Code (Act XIV of 1882), 
Section 266 (g)— Pensions Act (XXIII of 1871; 
attachment — Pensions, political — Code. Essence 
of— 

The decree-holders attached pensions due 
to the judgment-debtors, descendants of two 
families, who at one time occupied the 
throne of Ceylon. The judgment-dolitors 
resided in British India, and the pensions 
were paid to them by the Collector of the 
district under the orders of the Government 
of India. 

Held, that the pensions being political 
pensions, were exempt from attachment 
under the provisions of section 206 (g) of 
the Civil Procedure Code, though they did 
not come under the provisions of section 11 
of Act XXIIl of 1871. 



Sup: Govt, acts (XXIII of 1871) rContdj. 

If the Governniont of India were to be 
regarded as merely the Agent of the Ceylon 
government, for the purpose of paying the 
pensions, the Courts iu British India would 
have no jurisdiction to proceed by way of 
attachment, since the rights of the pension- 
ers {assuming them to be enforceable at law) 
would only be enforceable in Ceylon — 5 Bom., 
249 ; 18 CaL, 216, at p. 223, referred to. 

The essence of a Code is to bo exhaustive 
on matters in respect of which it declares the 
law, and it is not the province of a judge to 
disregard or go outside the letter of the 
enactment according to its true construction 
29 CaL, 707 referred to. IMUTHUSAMI NAIDU 
V. PRINCE AL.4GIA MANAVALA SIMMA- 
LA R.AJA. 26 M 423. 

21 S. 11. See §. 3 <£• 11— A. W. N. 1904 P. 
lU-^1. U. L. J. 3.38=26 A. 617. No. 1 supra. 

22 S. 11. See §. 3, 11 and 12—2. M. L. T. 

33=30. M. 153 No 2 supra. 

23 §. 11. See §. 4 and 11. 8. C. W. N. 665 

No. 11 supra. 

24. Civil Proced2ire Code {Act XIV of 
1SH2), Sectioji 266 (g)— Pensions Act 
(XXIII of 1871) Section 11— Pension— Assign- 
ed Government revenue — Profits. 

The word 'pension,' iu section 11 of the 
Pensions Act, is used in its ordinary and 
well-known sense, namely, that of a periodi- 
cal allowance or stipend granted, not in re- 
spect of any right, privilege, perquisite or 
otTice, but on account of past services or par- 
ticular merits, or as compensation to dethron- 
ed princes, their families, and dependents. 

The revenue assessed upon a certain 
estate was at a favourable rate. Disputes 
having arisen between the different members 
of the family, who owned the estate, the Lo- 
cal Government directed that the estate 
should be resumed, and that out of the in- 
ci-eased revenue 'as an act of grace,' the 
memmbers cf the family other than the 
judgment-debtor should have certain shares 
assigned to them. 

Held, that a share of revenue so assigned 
cannot be held to be a political pension 
within the meaning of clause (<;) of the pro- 
viso to section 206. 

The estate was taken by the Government 
under its own management, and out of the 
assets of the estate certain portions of the 
profits wore set apart for the maintenance 
of the different members of the family, 
the remainder going to the discharge of 
arrears of revenue due to Government. 

Held, that the allowance which the judg- 
ment-debtor was to get out of the assets was 
substantially his share of the profits and was 
not exempted from attachment— 4 Bom., 432 
referred to. BaLKRISHNA BHAN v. GO- 
VIND RAO A. W. N. 1902. p. 161. 

25 S. 12. See §§. 3, 11 and lil—2. M. L. T. 
33 = 30 M. 153. No 2 supra. 



147 ) 



CIVIL DIGEST OF CASES 



( 148 ) 



80— Act I of 1872 (Evidence Act) | 
1 Evidsac3 Act S- 2, 11, llS-Clahn > 

to o'.nt o)'l,ij':d )>: I bij aUerjal ion thai the land I 
is deffndtin ' — f.sMf.-i — 

Wberj a plaintiff, ftUeging a salo of oer- 
taia land to Inm by dofendaiit followed by 
a lease from Uim to the defeudaut, claims 
reut of the land icjxa dofoadaat, and the 
defence is a denial of the sale and lease, 
the lease is the fact in issue. The sale is 
not a fact in issue, but it is a rolovant fact. 
KAUNG HLA FKU v. SAN PAW. 3. L 

B- E- 90. 

1 (a). S 3. See §§. Ill arid 3. 1. 0. C. 63. 

No. 239 infra. 

2. S- 4 and Oaths Act (X of 1873), 

Section 11 — Oatk—Siiiiemcnt by witness — Con- 
cbisive proof. 

When a party agrees to bind himself by 
a statement on oath of a certain witness, 
a statement by the latter is in point of law, 
admissible evidence of the fact in dispute 
and under section 11 of the Oaths Act, 1873, 
it is conclusive proof of the matter stated, 
i Ben. L. H. 97 fF. B.) followed. 

There is nothing in the Oaths Act that 
requires any .written agreement by the party 
offering to be bound by the statement on 
oath of a witness. 

The expression 'conclusive proof in sec- 
tion 11 of the Oaths Act, 1873, is to be un- 
derstood in the sense in which it is defined 
by section 4 of the Evidence Act 1872. 4 
Benynl L. R. 97 (F. B.^ followed. VITHU 
GOVINDA V. RAMJI YELLUJI. 8- B- L- 
E. 19- 

3. S. 4— -4c« (Local) No. II of 1901 
{Agra Tenancy Act), s. 201 — Eaidetice — Record 
of plaintlfj's name as a co-sharer — Presuinp- 
tion. 

The prer.umption enjoined by clause (3) 
of section 2'.)1 of the Agra Tenancy Act is 
not conclusive, even in a Revenue Court, but 
may be rebutted, as, for iiistance, by evidence 
showing that the plaintiff has not been in 
possession of the property in respect of 
which profits are claimed for more than 
twelve years before suit, and the defendants 
have openly denied the plaintiff's title for 
more than that period. P. A. f. 0. No. 70 
of 1904: May 22 ltlO.5 distinguished. DIL 
KUNWAR I.. UDAI K \M. A- W. N- 1906- 

P 316 = 4. A- L- J 3 

3 a. 3. 4 >iee §§. 114 (g) and i^l A. L. 

J. l-ll infra No. 

4. SS. 4, 32 «SC ^Q^P roof -Title of plaln^ 
tiff Prtvii Council— Findi-ign of fact— Can- 
current decisions — Document thirty years old 
— Pres7anption -Discretion. 

A plaintiff can only succeed on the 
strength of his own title. 

Their Lordships of the Privy Council 
did not consider it necessary to review all 
the evidence at length on a point on which 
both the lower Courts had given a concur- 
rent decision. 



Sup: Govt, act (I of 1872) rCofit I) 

Their Lordships of the Privy Council 
would always be extremely slow to overrule 
the discretion exercised by a subordinate 
Court under section 90 of the Evidence .\et 
in not admitting in evidence without proof 
a documant more than thirty years old. 
SHAPIQ-UN-NISSA v. SHABAN ALI KHAN 

6 B L E 750 (P 0-31- I A- 217 = 26- 
A- 681=7 C 290. 

5- S- 4 & 90- — Custom — Alienation — Gift 
to wife ami daughter in the presence of son — 
Sials of Jhang — Presumption as to the genuine- 
ness of documents thirty years old. 

In this casj the parties belonged to the 
Sial caste, residing in the Jhang District. 
The plaintiffs, who were sons and grandsons 
of one Ahmad, son of Haji, by his wife Mus- 
sammat Alam Khatun, alleged that about 4.5 
years before suit Haji gave half of his ancestral 
immovable property to his wife, Mussavimat 
AUajawai, and his daughter by the said wife, 
Mussummat Daulat (defendant No. 1), for 
maintenance, on a tenure which was to ex- 
tend to the life of the daughter as wall as to 
that of the wife; that he effected mutation ot 
names in their favour ; that Mussammat Alla- 
jiwai died about 2J years prior to suit ; that 
thereupon Mussammat Daulat obtained sola 
possession of the said property, and on the 
10th May i898 made a gift thereof in favour 
of her two sons (defendants Nos. 2 and 3) ; 
and that Mussammat Daulat had only a life 
interest in the property, Haji being incom- 
petent to give her and her mother an abso- 
lute estate therein in the presence, and to the 
prejudice, of his son, Ahmad. The plaintiffs 
prayed for a declaration to the effect that 
the gift by Mussammat Daulat, defendant 
No. 1, to her sons, defendants Nos. 2 and 3, 
would not affect the reversionary rights of 
plaintiffs after the death of defondaat No. 1. 

Among other pleas the defendants cuu- 
tended that Haji had gifted his property to 
his wives, and Mussammat Daulat absolutely, 
by two lamiiknamas, dated th ■ 29th .April 
1854 aud 25th May 1854, with the conseui, of 
Ahmad and Haji'b brothers, who had signed 
the two deeds in token of their assent. It 
was admitted by the parties that in this 
family at all events females succeed to life 
estate and are not given maintenance only. 

Held, that the two tanUiUnanias were not 
proved to have been executed by Haji, and 
their execution could not be presumed under 
section 30 of the Evidence .Act. 

The woi-ds ' may presume,' in section <I0 
of the Evidence A'^t, ought generally to bo 
construed in the more vigorous of the senses 
allowed by section 4, and, in v ew of the 
danger of a blind acceptance of a documaut 
as crenuine tor all purposes, merely because 
it purports to be more than 3'i vears old, aad 
is produced from the proper ou::i.ody, Lwiore 
any such document can bo held rightly 
entitled to receive ihe benefit of the presump- 
tion for which section 90 makes piovis.on, 
it. .should, as a rule, not be found wanting 
whtMi adjudged by the very reasonable test 
laid down in Raikunt Nath Kundu v. Lukhnn 



( H9 ) 



CIVIL DIGEST OF CASES 



( 150 ) 



Sud: Govt, act (I of 1872) (ro>,td) 

9 Cal. ti. R; 445 ; namely as to wbether it 
has been produced on those previous occa- 
sions when it would naturally havj been 
produced, if in existence, at the time, and as 
to whether it has over been acted on pre- 
viously to its production iu Court. 

Held, further, that the gift to the fe- 
males by Hn j must be regarded as one merely 
for their joint lives, and the life of the 
survivor and the plaintiffs were entitled to 
the declaration praved for. MEHAR .^MfR 
V. NUB MUHAMMAD. 110- P- L- R 1902 
=82 P- R- 1902 

6. Section 8 — Evidence — Departmental en- 
quiry. Statements inadc at — 

The answers to his superior officer, given 
by an accused person in explanation of an 
official irregularity, can be proved against 
him if subsequently ascertained to be false. 
The subordinate is under no legal obliga- 
tion to attend an official inquiry, but if he 
does attend and answers the questions put 
to him, the answers that he gives fall un- 
der the category of statements which accom- 
pany and explain acts other than statements. 
KING-EMPEROR v. GANESH. 4. B- L- R- 
284. 

7. S3. 8, 18 (2), 21. 66, 91, 157 and 

\QT — Distinction between secondary evidence 
of the contents of a document and oral evidence 
of the transaction. 

The plaintiff respondent sued for redemp- 
tion alleging that there was a document of 
mortgage. He produced oral evidence as to 
the factum of niortg-igo. The Lower Court 
decreed his claim. The document was not 
shown to he lost or de->troyod and the de- 
fendant oppellant got no notice to produce 
it. The Lower Court should have taken no- 
tice of §§. 65 and GO of the Evidence Act. 
The evidence of the witnesses that the mort- 
gagir told them that she had mortgaged the 
land in suit might have been admissible 
under §. 157 if it was proved that she made 
the statement at or near the time of the 
transaction and the evidence of other wit- 
nesses as to the mortgagee's conduct under 
§. 8 would have been admissible if the mort- 
gagee was present and hoard the mortgagor 
sayingthat he had mortgaged it to the mort- 
g.agee and the latter had preserved silence 
and the mortgagee's statement that the land 
had been mortgaged to hira would have been 
admissible as an admission under §j. 18 (2) 
and 21. But the provisions of §. Gl stand in 
the way. The terms of the mortgage could 
only be proved by the production of the 
mortgage deed or of secondary evidence of its 
contents, in case it was shown to be lost 
or destroyed, or the defendant appellant, af- 
ter notice, failed to prduco it. It wr.s not 
shown to be Icsfc or destroyed, aud the de- 
fendant appellant got no notice to produce 
it. If the oral evidence adduced had been 
in the nature of secondary evidence tlio case 
should have been remanded to be put on 
a proper footing. 



Sup: Govt act (I of 1872) {fonl4). 

But the evidence of the morlgagor nor 
of the witnesses was secondary evidence. It 
was oral evidence, either direct or as to ad- 
missions of the mortgage transaction which 
§. 91 does not admit. 

There being no admissible evidence what- 
ever of the mortgage, the plaintiff respon- 
dant's suit is dismissed. 

The Lower Court by deciding in plain- 
tiff's favour on inadmissible evidence con- 
travened the L-iw of evidence {%. 107) .If B 
R. lS9i^9o P. .586 and U. B. R ls97—oi\ 
3S2, k 5o6 referred to. 511 LE BYU v Ml 
SHWE MYA AND NGA BAO. TJ. B. H. 
1907. p. 13 

8 Ss. 9, 11 (3) and iZ— Judgments 
convicting wife's paramour of aduWrti — 
Practice — Decree arjainst several co-widows — 
Appeal by one cf them—Poiccr of AppUate 
Court to disturb the decree as against noti- 
appealini] widows. 

Held, that in the Ferozepur District, 
among agricultural tribes, if a widow up to 
the time of her liusband's death, is living 
unchastily in open revolt against him, she is 
no longer a member of his household, and 
cannot succeed to the usual widow's inter- 
est in his estate after bis death. In a suit 
claiming succession, judgments convicting 
her paramour of adultery with her are ad- 
missible in evidence under Section 43 read 
with Sections 9 and H (3) of the Evidence 
Act. 

Where one of five widows of the deceased 
got a decree for one-fifth of the immoveable 
property, aud Rs iJXrO cash loft by him. and 
one of the d.ifendants app-]:;led to the Chief 
Court with regard to Ra. 1,G0!J and ihe whole 
land decreed, and the plaintiff was f^iind 
not entitled to succeed to the prjpertv loft 
by the deceased on account of her uuchas- 
tity during his lifetime, the Chief Court al- 
lowed the appo;i.l as regnrds thj immoveable 
property without disturbing the decree for 
Rs. 3,000 against the widows who had not 
appealed. MUSS.-lMM.iT BtlOLI r. AfL'S- 
SAMMAT SUTTI, 24 P- L- R- 1903- 

9 S- 10— CoHspi'rari/. 

To show that the Will was a forged one 
statements of one of the attesting witnesses, 
which were said to have been made to an at- 
torney und attested by him, were tcnc'ered in 
evidenoeunder section 10 of the Evidence .\ct. 
It was contended that a conspiracy had been 
alleged by the impugnants between the alleg- 
ed attesting witness, certain beneficiaries un- 
der theWill and others, evidence had been 
given of such a conspiracy, the attesting wit- 
ness was one of the cou.<-;pirator3 and his state- 
ments showing how the thing had been dona 
could be proved under section 10. 

Held, that the statement could not be 
admilted in evidence. Tl;ero was no i-ssue 
before the Courl as to whether there was a 
conspiracy and oven if there were it could 
not be held on the evidence as it stood at the 
time that there was auy reasonable ground 
that the plaiutiH was a X'^^'^'Y ^° ^^° alleged 



( 151 ) 



CIVIL DIGEST OF CASES 



( 152 ) 



Su-): Govt, act (I of 1872) {ConU). 

conspiracy. (In the tjoods of GOPAL LAL 
SEAL) KADAMBINIDASSI v. KUMUDINI 

DASSI. 7 W- N-. C 806- 80- C- 983. 

10. S 11- 

In proceedings for probate of a will, one 
of the witnesses, a plague nurse, who saw the 
testatrix while she was a patient in the plague 
hospital and had a conversation with her 
about her ornaments was asked in reference 
to this conversation. — What did the testatrix 
say ? The question was disallowed by Court. 

Held, that the question was improperly 
disallowed. The statement of the testatrix 
was relevant, as a statement by her suggest- 
xn^ an inference as to the execution of a will 
would be an admission relevant against her 
representatives. NANA v. SHANKAR. 3 
B. L. R , 465. 

11- S- 11 — Collateral facts. Relevancy of — 
Collector's books. Purpose of — Muhammedan 
law — Gift — Rule relating to possession. Inter- 
pretation of. 

The requirements of the law to make a 
collateral fact admissible in evidence as re- 
levant fact under section 11 of the Evidence 
Act are — 

Istly, that the collateral fact must itself 
be established by reasonably conclusive evi- 
dence, and secondly, that it must, when es- 
tablished, afiord a reasonable presumption or 
inference as to the matter in dispute. 

The Collector's books are intended only 
for the purpose of revenue, and it has been 
repeatedly held that they are evidence neither 
of title nor of possession. 

The important question as to the validity 
of gifts is, not whether there was a transfer 
of the properties to the name of the donee in 
the Collector's or the Municipal books, but 
who paid the Governmsnt or Municipal 
taxes. 

Under the Muhammadan law when the 
subject matter of the gift, e. g., land, is occu- 
pied by tenants, a request to them to attorn 
to the donee is the only possession that the 
donor can give of the land in order to com- 
plete a proposed gift. 

Under the Muhammedan law when a 
person is present on the premises proposed 
to be delivered to him, a declaration of the 
person previously possessed puts him into 
possession. An appropriate intention where 
two are present on the same premises may 
put the one out as well as the other into 
possession without any actual physical de- 
parture or formal entry, and effect is to be 
given, as far as possible, to the purpose of an 
owner, whose intention to transfer has been 
ineqiiivocally manifested. 

In the case of gifts under the Muham- 
medan law, if possession were once taken, 
and the deed of gift took effect no subsequent 
change of possession would invalidate it. 

And in the eye of law, whether Muham- 
medan or other, one day's exclusive posses- 
sion should be as good as that for 20 years. 

The proposition in the Muhammedan 
law that the donor should leave nothing 



Sup: Govt, act (I of 1872) (Contd). 

belonging to him, not even a straw should be 
interpreted in the light of common sense and 
according to the exigencies and necessities 
of modern life. It can only mean that the 
donor should not reside and use the pro- 
perty as owner. BIBI KHAVEK SULTAN 
V. BIBI BUKHA SULTAN. 6- B- L- K- 
983- 

13. S. 11. See §§. a, 11 and 116—3. L. 
B. B. 90 No. 1 supra. 

14- S. 11 (3) See §§. 9. 11 {3} and i3-'Ji. 
P. L. B. 1903. No 8 supra. 

15. S. 11 (b) and 13— Hecitals in docu- 
ments, when admissible, against persons not 
parties to deeds. 

Per Bampini J: — Documents, such as 
deeds of sale and mortgage deeds, contain- 
ing recitals that a particular land belongs 
to a particular howla which is in question 
are admissible in evidence under either S. 
11 (6) or 13 of the Evidence Act, although 
they are not inter partes. They are not con- 
clusive or binding evidence and may be very 
weak evidence or even of no weight at all. 
16. M. 194, 23 W. R. 293 and 25 C. 522 rcf. 
to. 

Per Geidt J. — Documents containing re- 
citals that a particular plot of land is included 
within a particular howla though not inter 
partes are admissible in evidence under S. 
13 of the Evidence Act as transactions by 
which the right to hold the land as part 
of the howla is recognised and particularly 
when the existence of that right is a ques- 
tion raised in the case and is a relevmt 
fact. DWARKA NATH BAKSHI v. MU- 
KUNDU LAL CHOWDHURY. 5 C- L- J- 55. 

16. Sll {7,),9%,llb-Edoppel^Malter of 
law. Landlord and Tenant — "Mokurari Is- 
temrari — construction of. 

The words mokurari istemrari do not in 
their lexicographical sense primirily imply 
any heritable character in the g^aut, as the 
term mowrusi does; but they imply perma- 
nency from which in a secondary sense, such 
heritable character might be inferred, it be- 
ing always doubtful whether they mean per- 
manent during the lifetime of the persons 
to whom they were granted, or permanent 
as regards hereditary character. These 
words in a lease do not pec se convey an 
estate of inheritance, but such an estate can 
be created without the addition of any other 
words, the other terms of the instrument, — 
the circumstances under which it was made 
or the subsequent conduct of the parties 
might show the intention with sufficient cer- 
tainty to enable the Court to pronounce that 
the grant was perpetual. 

Section 92 of the Evidence Act precludes 
admissibilitv of oral evidence as to the al- 
leged assurances given by the grantors of 
the leases that they were intended to last 
for ever. 

The construction of a document is a 
matter of law and there can be no estoppel 
by reason of misrepresentation on a point of 
law w'nich was clear and Iree from doubt. 



( 153 ) 



CIVIL DIGEST OF CASES 



( 1-54 ) 



Sm: Govt, acts (VII of 1870) (Contd). 

Quaere whctUor there can be no estoppel 
by reason of misrepresentation on a doubt- 
ful question of law? 

Held, that nothing had been shown from 
the circumstances under which the leases 
were granted, or the subscqueut conduct of 
the parties to indicate that the leases wore 
intended to bo perpetual. NARSINGH DYAL 
SAHU V. BAM NARAIN SINGPI. 3 QC- 883- 

17 S' 11, 13 and 43 — Evidence— Jadgmenl 
inter alios — .■heard — Partner of lessee. Bight 
of lessor against — Judgments in personam. 
Effect of— 

The plaintift, lessor, brought a suit to re- 
cover rents from defendants Nos. 1 and 2, 
sons of the lessee, and defendant No. 3, a 
third party, alleging that the lessee and the 
defendant No. 3 had entered into a part- 
Dership business and that the lease was 
S/cquired for the same purpose. The defend- 
ant No. 3 denied his liability and alleged 
that he was not a partner of the lessee. In 
order to eitablish the fact that the lease 
of the property was taken by the lessee 
and the defendant No. 3 jjintly, the plaiu- 
tif? relied principally on an award made 
by an arbitrator in a suit for dissolution 
of pnrtuorship between the lessee and the 
defendant No. 3. It was contended by the 
plaintiff that both the parties were equally 
liable to the debts and equally entitled to 
the outstanding dues. 

It was found that in a previous suit 
by the lcs-ice to recover some outstanding 
dues, the defendant No. 3 had, on the 
authority of the award, claimed and re- 
covered a share of the amount sued for. 

J'cr Oliose, J. — That the judgment passed 
upon the arbitration award in the previous 
suit between the leasee and the defendant 
No. 3 was relevant evidenoe in this ease, 
upon the question whether the lease was 
acquired by the lessee for his own benefit 
or as partueship property, though the l»ssor 
(plaintiff^ was no party to that. suit. 1 C. 
W. N., 2S.5 ; s. c, 19 All, 277, 6 Cal, 171; 
13 Cal., 3.52, a C. W. N, 501 ; s. c, 25 Cat.; 
522, 22 Cal., 533 referred to. 

Per Geidi, J. — That neither the award 
nor the conduct of the defendant No. 3 
in the suit was admissible as evidence to 
pi-eve that the defendant No. 3 was liable 
to the plaintiii for the rent of the pro- 
perty leased. 

That the mere existence of a judgment, 
its date and legal consequences are con- 
clusively proved as agaiust all the world 
by the production of the record, but it 
furnishes no proof whatever of collateral 
facts, even though as between the parties 
to such judgment themselves, such facts 
muot have bes-n proved. 

That judgments in personam are con- 
clusive against third persons (but not in 
their favour) of the relationship between the 
parties and of the extent of the relation, j 

Held, that the lessor was entitled to I 
decree against both the lessee and the third | 
party, the liability of the third party being | 



1 Sup: aovt. acts (VII of 1870) fContl.) 

! restriotod solelv to his intiirost in the 
leawhild. ABIivTASH ClUNDRV CH\.i'- 

iTWrtlEiO I'. PA 11 li -ill NATH G!:lJ31i AND 
NOBIN KANT GH.ATrEliJEii. 9. Q- W- 

S- 402 

18 S- 11. 13. & i3—Saitfor damir.i for 
mn,licions pro^ecutio'i^Judgin'intof Magistrate 
in the proiecution — How far euidence.— 

A j idgo deciding a suit for damigos for 
mxlicious prosecution ought uot to take the 
jad^raontof the Migistrate in the prosecution 

10 bo in itself a record of tha facts 
found and to decree the suit, S. 11, I'i, & 
43, Evidence kat, do not apply to the case. 

11 A C. 247 rof. t.:..— GULVB CHAND v. 
CHaNILAL 9 B. L. R. 1134- 

19 g. 11, SZ-^Statements by persons who 
cannot be found or called as w itni-^sis. 

.\s a general rule S. 11 is coatroUel by S. 
32 of the Act when the evidence coaiisti 
of statements of persons who are d.3 id or 
who cannot be found, but this rulo is 
subject to certain exceptions. The whob 
scope and oliject of sectiou 32 centres up ja 
securing the highest degree of trui:b pas- 
sible in the circumstances for the stat'jm:)ut 
of the p3rson who icannot be produced 
in court to give his own evidence. It fol- 
lows that where the person tendering such 
a st5ituni3nt is jndifleren' as to the truth 
or falsehood there is nothing to bring that 
section into play. The test, whether the 
statement of a person who is d'jad or who 
cannot be found is relevant under S. 11 and 
admissible under tha'. sec, although it would 
not bj admissible under S. 32, is this. It 
is admissible under S. 11 when it is al- 
together immaterial whether whit th; dead 
m-in said was true or false, but highly 
miterial that ha did say it. In these cir- 
cumit.iuces, no amount of orosi-e^aminatioa 
could alter the fact, if it be a fa^t that 
ho did .say tha thing and if nothing m irj 
is needed to bring the thing said iu uudor 
S. 11 than the case is outside S. 32. — R. 
D.SETiiNA i-.MIUZA MAHOMED SHIRAZI 

9 B. li. K. 1047 

20 S- 13- R-parian owners — Right to con- 
struct :dams on a stream — Prescription — 
Custom — Injunction — Civil Procedure Code 
{Act XIV of lSS:i). Section 30 - Suit by plaintiffs 
on b-^half of a class. 

The Court is justified upon proof o£ 
custom aud prescription to p.iss a ilejree 
in favor of the plaiatiffs for a declaration 
that plaintiffs aud their co-villagers are 
entitled to erect and maintain a band ou 
a stream every year during the rainy 
season at a specified place letting out the 
surplus water for the use of the hol.-^e;S 
of servient tenements and for an injuuetioa 
restraining the defendants interfering with 
any baud the plaintiffs might construct at 
the .specified place. — 24 Cal., 865 ; S. C, L. 
R., 24 I. .4., CO, distinguished. 

The grant of permission under Section 
30 of the Civil Procedure Code miy be 
inferred from tbi circumstances of thj case. 
The mere fact, that the order granting per- 



( 156 ) 



CIVIL DIGEST OP CASES 



( 156 ) 



Sup: Govt, acts (VII of 1870) CGontd). 

mission was not recorded iu the order sheet, 
doea not vitiate the proceedings. KALU 
KHABIE U.JAN MEAHA. 29- C- 100. 

21 S- 13- Evidence — Objection as to ad- 
missibilitij on appeal. 

The High Court declined to entertain 
on appeal an objection as to the admis- 
sibility in evidence of a judgment and a 
decree of a previous case on the ground 
that objection had not been taken in the 
original Court and the appellant had re- 
ferred in that Court to these documents 
as affording a basis of two of his obi !C- 
sions 19 All., 76, S. C, L. R., 23, I. A., 
106, distinguished. HRIDOY KRISHNA v. 
PARAS *NNA KUMABI. 28- C- 142- 

22 S- 13- E.njiarty decree betioeen the par- 
ties is admissible. 

An exparty decree which was not ob- 
tained by fraud and which is between the 
same parties on a question in issue between 
them is admissible iu evidence in a sub- 
sequent suit between them. ASHUTOSH 
NATH ROY V. ABDUL. 2S C- 676- on 
p. 679 

23 S- 13 — Alluvion, diluvion — Evidence — 
Possessioii — Burden of i) roof — Order under Sec- 
tion 145, Criminal Procedure Code (Act V of 
189S)— Reports, maps, etc., referred to in such 
order. 

Orders under Section 145 of the Crimi- 
nal Procedure Code are merely police orders 
made to prevent breach of the peace. They 
decide no question of title, but under the 
section the Magistrate is, if possible, to decide 
which of the parties is in possession of the 
land in dispute, and, if he decides that one 
of the disputants is iu possession, the Magis- 
trate is to make an order declaring such 
party to be entitled to retain possession uutil 
evicted in due course of law, and forbidding 
all disturbances of such possession until such 
eviction. 

When such order is passed, the burden 
of proving title is thrown on the party 
against whom the order is made. The person 
in possession can only be evicted by a person 
who can prove a better right to the posses- 
sion himself. — AinbUr v. Pushong (I. L. B., 
XI Cal, 365, referred to). 

Such orders are admi-ssible in evidence 
on general principles, as well as under Sec- 
tion 13 of the ludiau Evidence Act, to show 
the fact that such orders were made. This 
necessarily makes them evidence of the fol- 
lowing facts, all cf which appear from the 
orders themselves, viz., who the parties to 
the dispute were, what the land in dispute 
was, and who was declared entitled to retain 
possession ? For this purpose, and to this 
extent, such orders are admissible in ovidenco 
for and against every one, when the fact of 
possession at the date of the order has to be 
ascertained. 

If the lands referred in such an order 
are described by metes and bounds, or by 
reference to objects or marks physically ex- 
isting, these must necessarily be ascertained 
by extrinsic evidence, i. e., the testimony 
of persons who know the locality. 



Sup: Govt, acts (VII of 1870) {Covtdj. ^ 

If the orders referred to a map, that 
map is admissible in evidence to render the 
order intelligible, and the actual situation 
of the objects drawn or otherwise indicated 
on the map must, as in all cases of the 
sort, be ascertained by extrinsic evidence. 

Reports accompanying the orders may 
be admissible as hearsay evidence of re- 
puted possession (2 Taylor's Evidence, Section 
517). But they are not otherwise admis- 
sible, unless they are made so by Section 
13 of the Indian Evidence Act. 

When the High Court has found, re- 
garding title, in favour of the plaintiff, the 
defendant-appellant must do something more 
than show that the plaintiff's title is not 
free from doubts. The appellant must at 
least give some acceptable explanation of 
the circumstances which led the Court below 
to its conclusion. — Raj Coomar Bey v. Go- 
bind Chander Roy (L. B., XIX, Ind. App., 
140, referred to). 

Kabultjats, Chittas, accounts and receipts 
do not prove themselves, and are valueless 
without proper oral evidence respecting them . 
DINOMONI CHOWDRANI v. BROJO- 
MOHINI CHOWDRANI. 6- C- W- N- 386 
=12. M- L- J- 8 29 I- A. 24- =28. C 187. 

P c. 

24 S- 13— J'U'dgment: — Where in a suit be- 
tween a Zemindar and the Mirasidars of a 
village the question of title to the poromboke 
lands came in for decision held, that a judg- 
ment in a prior suit between the Zemindar 
and some Mirasidars in which it was held 
that the waste lands iu the village were the 
property of the Mirasidars was relevant un- 
der S. 13 of the Evidence Act.— NATESA 
GRAMANI V. VENKATARAMA RBDDI. 17 

M L- J 518=2 M L- T- 455- 

25 S- 13 — Suit for possession— previous in- 
ter parties judgment whether admissible. 

A bare e:;pi'ossion of opinion in a j idg- 
ment as to the fact of possession which was 
not givtn effect to by the decree is not admis- 
sible in proof of possession either at the date 
of the judgment or at any other time. Such 
an op.uion is not a recognition of a right 
within the meaning of S. 13 of the Evidence 
Act. KARIMA BIBI v. SBIGOVIND 7. Q. 
C 122. 

26 S- 13 — Sec custom — Pre-emption — entry 
in Wajib-ul-Arz. 

124. P. L. R. 1903— As to entry in loajib- 
ul-arz 

65. P. R. 1903 = 139. P. L. R. 1903 {ibid.) 
172. P. L. R. 1903 = 64. P. R. 1903 (ibid.) 
106. P. L. R. 1903=46. P. R. 1903 (ibid.) 

27- S. 13 — See Custom Pre-emption — Houses 

in towns. 

70. P. L. R. 1903 = i 7. P. R. 1903 (Houses 

in Towns) 

92. P. L. R. 1903-43. P. R, 1903 (ibid.) 
169. P. L. R. 190:3—^52. P. R. 1903 (ibid.) 
2. P. R. 1903 = 5a. P. L. R. 1903 (ibid.) 
44. P. R. 1903 ==75. P. L, K. 1903 (ibid.) 



( 157 ) 



CIVIL DIGEST OF CASE3 



( 158 ) 



Suo: Govt, acts (VII of lB70)(Contd). 

28 S- 13— Siic Custom— Pre-emption on 
mortgages. — 

46. P. R. 1903 = 106. P. L. R. 190^ (Pre- 
emption on mortgages.) 

28(a) S. l3~l^ohalla Parachian, Rawal- 
pindi City ~ Pre-emption based on vicinage- 
Sale of house — Value of cases decided on admis- 
sion. 

The custom of pre-emption based on 
vicinage does exist, in respect of sales of 
bouse property in Mohalla Parachian or 
Matta or Waria Khan, Rawalpindi City. 
Where the right of pre-emption is shown to 
exist, there is ex-necessitate rei a presumption 
in favour of vicinage. — 83 P. R. 1888 Referred 
to. 

Confessions of judgment and admissions 
are, of course, of much less value than con- 
tested cases properly decided where the 
custom has been found to exist after due 
enquiry, but such admissions are not irrele- 
vant and by no means valueless,, as they may 
proceed from the conciousness of the exis- 
tence of the right and the hopelessness of 
contesting it 69. P. R. 1901, 44. P. R. 1903. 
42. P. R. 1905. R.— THAN SINGH v TARA 

SINGH. 26 P- R. 1907=69 P- L R 1908. 

29- S- 13 {^)t 32 (7) — AdmissibUUi/ against 
person not a party to the document — Statement 
of deceased person — Bight or custom — Nalidi or 
bhaoli rent. 

To prove or disprove a right or custom, 
it is not sufficient to produce evidence of a 
transaction in which the right or custom was 
asserted or denied. The transaction will be 
relevant under S. 13, 01. (a), if it be one by 
which the right or custom was asserted or 
denied. Where the question was wheth-er 
a tenant held lands under the nakdi or 
bhaoli system of rent and the Court based its 
decision on a statement contained in a keba- 
nama executed by the deceased grand father 
of the tenant. 

Held, that the hebanartia was not admis- 
sible in evidence under S. 32 (7) read with S. 
13, CI. (a) of the Evidence Act.— BANSI 
SINGH V. MIR AMIR ALL H Q- W. N-. 

703 

^80. S- 13 (b) & 32 (3) & (5>, 49 & 90- 

Hindu Law —Inheritance — Primijenitiire, rule 
of — Custom — Orissajand tenure in — Rciiulaiion 

XI uf 1793— Regulation X of ISOO— Regulation 

XII of IWS, section 3i —BJiunyan — Paliaraj — 
Kilta—^erh— Hereditary offijc estate a'tached 
to — Statements of persons who are dead — Usage, 
Opinion as to — Ancient document, custody of — 
Regulation VII of 18S2, Section 9. 

The rule of priinogoaiture may exist by 
family custom, ftUhau^h the estate may not 
be a raj or a poUiain. 1 Cat., 153 (P. C.) s. c, 
L. 11., 2 I A., 263 (P. C.) followed. 

Tiie law as prescribed in the Regulations 
expi-ossly allows the rule of primogeniture to 
prevail in the district of Cuttaok in oases in 
which by Oitiblished usage succession to the 
entire estate devolves to a single heir, provid- 
ed the rule is sliown to have been in exist- 
ence at the time of Regulation XII of iSOi, 
and has uot since been departed from. 1 
Cal. 186, ». c, 19 W. R. S. referred to. 



Sup: Govt, acts (VII of 187O0 (ronti). 

Words like Bhumjan and Paharaj used 
as titles of the owners of an estate in Orissa, 
and words like- Killa and Gerh used as de- 
scriptive of the estate, were held, when read 
in connection with passages from' standard 
works of reference on land tenure in Orissa, 
and taken in connection with the evidence 
adduced in the case, to furnish a proper basis 
for the inference that the estate being attach- 
ed to and devolving with some public office 
descended only to the eldest sou as the holder 
of the office. The statement in a genealogical 
table filed by a member of a family who is 
dead, regarding the descendants of another 
member of the family, before any question 
arose as to the latter, is relevant onder section 
32 (5) of the Evidence Act. SHYAMANAND 
DAS MOHAPATRA v. RAMA KaNTA DAS 
MOHAPATRA. 32 C- 6- 

31- S 13 & 35- — Maintenance grant — 
Resumption — Presumption — Alienability —Evi- 
dence — Judgments in previous cases — Recital of 
pleadings. 

A maintenance grant is prima facie re- 
sumable on the death of the grantee, where 
it is a grant for the maintenance of the 
younger members of a family, and whether 
it is in the hands of the more immediate or 
in those of the more remote members of the 
family. 

Whether a maintenance grant is heri- 
table and alienable is in all cases a, question 
of the intention of the parties. 

On a review of the entire evidence in 
this case, it was — 

Held, that the grants were hereditary but 
not aUen.ible without the consent of the 
grantor or his representatives. 

It wa^ the practice, in old times, for the 
Lower Courts in Bengal to set out the plead- 
ings in their judgments and this practice was 
recognised by Circulars issued by the Sudder 
Dewany .\dalut. Such judgments ace, there- 
fore, admissible in evidence under section 35 
of the Evidence Act as an admission by a 
jiarty. They are also admissible under sec- 
tion 13 of the .\.ct iis instances in which the 
right in question was claimed and disputed 
and disallowed. 9 Cal., 586, followed. BH \- 
YA DIRGUJ DEO v. P.iNDE FATEH 
B\H\D JOR RAM. 3 C- L- J- 521- 

32. S. 13 and 43 — Custom— Alienation — 
Power to- transfer auceitral property — Rawcils 
of ilaitza Ruiala, Nurp'ir Tahsil, Kangra 
District — Admissibility of preoious judgments — 
MMgage — Unequitable conditions — Onus, Un- 
due influence. 

Ilild, that the plaintitls' family of Rivals 
seated at .Ua/uii Badala in thj Nucpur Tiih- 
sil of Kangv.i. Di-itriet, desceudaati of a 
Hindu Rajput who had embraced Isl-im^ 
must be regarded aj subject to Punjab Cus- 
tom try Liw in matters of alienation as dis- 
cn-ised in P. R. 107 of iS87 and that the onux 
of proving a custom autlioiizing alienatiou 
of ancestral land by a p.-opr;6tor withjat 
proved neeesiity rests on the p^irson so alleg- 
ing. Punjab Law Reporter 117 uf 19^Jl, P. R. 
60 of lS9.'i, 81 of 1895, 9i of 189S, ^ of 1900, 
referred to. 



159 ) 



CIVIL DIGEST OP GASES 



( ICO ) 



Sno: Govt, acts (VII of 1870) (Omd). 

A j.'.dgmoQt finding that a particular 
person was not of sound mind Ijasjd on a 
letter of a Medical man is not admissible ei- 
tb.ir under Section 13 or Section 43 of the 
Kv.denoo Act in a subsequent suit to prove 
thai the person whose mental condition is 
iu quoiiion was not of sound mind, where 
the previous suit was not between the same 
parties and no formal deposition on oath of 
the medical man was recorded. 

Unequitable conditions aflfixed to a 
mortgage should not be enforce 1 by Courts 
against the mortgagor or his successor iu 
titU. 9.0 Bom., 677, 21 Madras 111, 112, P. R. I 
131 of IS'Jt, folloioed. 

Where the mortgagee who had obtained | 
an ascendency over the mind of the mort- ] 
gagor succeeded in gaining the mortgagor's i 
con-ient to conditions to which a man of 
ordiu'ry sense would not have readily con- 
sented the onus lies on the mortgagee to 
prove that ha had made the mortgagor 
thoroughly understood the nature of the 
transaction and that money could not have 
been readily procured except from him-self. 
SHKH MUHAMMAD v FATTEH DIN. - 

154 i'- L. a , 1301=6 p. a. 1902- 

33. S. 18» 43 — " Particular iHStani^s in 
which the ri-fut was claimed" — Admissibility of 
judijmml Hid inter partes in siwsequent pro- 
ceedings— G. P. C, S. 13. 

Per Rasseil, C.J. : — The rights and customs 
in S. 1-3 mast be understood as comprehending 
all rights and customs recognized by law and 
therefore including a right of ownership. 10 
B. -139 lull.; 2B. L. R. 386, 651 and 5 B. L. R. 
230 ref. to. 

Per Beaman, 3. : — S. 13 applies to cases 
in which the right or custom in question 
is regiided as capable of surviving re- 
peated instances of its assertion and denial, 
i. e, continuing rights which may be 
interrupted without being necessarily de- 
stroyed. The section does not : pply to the 
case of a right created by and inseparably 
bound up in a document and which does I 
not admit of proof or disproof by particular 
instaiiccs of assertion and denial. The ques- 
tion in a ca.se was whether a particular sale 
deed represented a genuine or a sham tran- 
saction. One of the parties produced a 
ja Jginaut not inter partes to show that the 
sale Lias been declared to represent a sham 
transaction. 

HHd:—Pev Rnsell, C. J.: -That the jadg- 
ment in the prior suit would come withia 
the purview of CI. 2 of S. 13. 

L'er Beamin, J.: — .A party who has been 
alijived to put in a previous judgment not 
inl^rpari.s, for the purposes of S. 13 of the 
Evidence Act, cannot be allowed to use its 
content?. 5!ta judgment virtually thereby con- 
vertin.i; it into a res judicata. That therefore 
couoo'-lin.j; that the judgment in iho prior suit 
vras admissible to prove that there was a dis- 
pur.j about the genuineness of the sale deed, it 
Could net be used for any ulterior purpose. - 
MUHA.\l.\IAD AMIR u HAS.AN MU HAM- 
MA D.-S B. £i. R. 63; 13 B. 143. 



Su":Govt. acts (VII of 1870) (Contd). ' 

34- S. 13, 43— .Sec S. 11. 13 and 43—9 0. 

ir. N' ■W.l—Sec Xo. 17— supra. 

84(a). S- 13, 65 and 66 (2)--Granis, 

construction of — Sectrndnrij evidence — Jiidg- 
OT(j»is n.ot inter partes, admimbiliiy of — Board's j 
letter — Eccoynilion — Notice to quit. ' 

Whore a grant of laud was made as a 
present for the purpose of planting a garden, 
and another was made "suijict to £aith:ul 
service," and the documenio of grants did 
not contain any words expressly limiting the 
grants to the life of the grantee, nor making 
them descendible to the heirs of the grantee ; 

Meld, they conveyed only life grants. 

In a suit for hhas po.ssession on the ground 
that the defendants were tresjjassers on 
the death of their ancestor, the grantee, liie 
plaintiff, relied on office copies of grants kept 
in the course of business of the granlor's 
sh&rista ; 

Held, that no notice to the defendants to 
produce the original was necessary to render 
secondary evidence admissible, as the defend- 
ants, from the nature of the case, must have 
known, that they would be required to pro- 
duce the originals. 

Where j idgments not inter partes were 
filed to show that similar grants were resum- 
ed by the grantor or his heirs on the death of 
the grantee ; 

Held, they are admissible in evidence un- 
der the provisions of S. 13 of the Evidence 
Act. 

Board's letter, dated the 26th November 
1792, showing that jagirs are resumable on 
the death of the grantee, is inadmissible in 
evidence. 

When the agent of the grantor, in ignor- 
ance oi the death of the grantee, granted rent 
receipts to the heirs in the name of the 
grantee. 

Held, the receipts did not recognise the 
heirs as tenants and succes.ors of the grantee, 
and it was not necessary to give tiiom notice 
to quit beioro bringing a suit against them. 
SYKD MAHAMMAD KHAN u. ilAHAUA-JA 
NAM NARAIN bINGH BAHADUR. 7 C- L- 

J. 90. 

35 S. 14. — Fraud intention — Acq^uiesccnce. 

The plaintiff having obtained a money 
decree against defendant No. 2 sought to 
attach certain monies in the hands of Ac- 
countaut-Goneral as his judgment debtor. 
The monies had been assigued by defendant 
No. 1 to defendant No. 2, his wife who object- 
ed to the attachment. 

Held, that f jr the purposes of determin- 
ing the question, whetlier the deed was a 
sham transaction, the Court must take into 
consideration all the circumstances which 
surrounded the transaction and the conduct 
contemporaneous and subsequent of the 
parties. 

It was found that, as there was no in- 
debtedness at the time of the execution of 
the deed, all existing debts having been paid 
oS before its execution and the consideration 
for the conveyance being natui'al love and 
affection, which the law regards as good, the 
deed was so far a tioitd fide transaction. 



( 161 ) 



CIVIL DIGEST OF CASES 



( 162 ) 



Sup: Govt, acts (VII of 1870) {Contd.) 

No mala jidei ca,a ba presumed merely 
from the possibility that the settlement 
might, pici'idioo the claims of subsequent 
creditors— i. L. B., XXIIl Bom., 146. at p. 
167; referred to. 

It was contended for the plaintiff that 
main fides must bo presumed from (1) no 
notice of assignment having been given to 
tho Aooouufcaut-Goneral ; (2) interest being 
realizod by tlie deleudaut No. 2 subsequently 
to the assignment ; (S) defendant No. 2's 
dealing with moneys in satisfaction of his 
own decrees. 

MeU, that mala fides could not be presum- 
ed from the above facts. Notice of assign- 
ment to the Accountaut-General was not 
necessary ; it must be presumed that, when 
the defoudanb No. 2 began to receive the 
moneys immediately after the execution of 
the deed, lie received them for defendant No. 
1, and made them over to her, and from her 
acquiescence in her husband's dealing with 
the moneys, bi'naiiii nature of the transaction 
could not bo pveoumed. 

It is not tho practice of the Courts in 
India to press a presumption by acquiescence 
against a parda-naslun female in a rival 
claim from tho mere non-coutestatlon for a 
limited time of an adverse title. 

Whore the circumstances attending tho 
transactions are by themselves suggestive of 
tomi /ides, the evideuco of intention afforded 
by subsequent conduct of tho parties must be 
clear and cogent. It must not bo of an 
equivocal character, but absolutely inconsist- 
ant with the bond fides of tho transaction and 
loading to one and but one presumption only 
of fraud. ElillAHIM RxVHIM BHOY v. 

FOuLBAl. 4 B- L- R- 130 = 26 B- 677- 

36- S- 18- — Decree against dead person — 
Beprescnlativc—licir — Law. Wrong proposi- 
tion, of — Aiiiiiissio7i of. — 

A suit cannot be brought by or against a 
dead man, and if the person entitled to sue 
or liable to be sued is dead, ohe suit must be 
brought by or against tlij person who is en- 
titled or liable at the date of the suit brought 
making it clear on tho face of ihe plaint how 
the right or liability arises. 

If a non-existant person is sued, as re- 
presented by an existing person, and a 
decree be obtained against him in that form 
the decree is regarded as obtained against 
no one owing to the non-existence of the 
defendant. A decree obtained against a per- 
son who was described as a representative 
of deceased, but did not hold that character 
can not bind the estate of the deceased.— 
I. L. E., y Bom., S6, referred to. 

When a party against his interest admits 
as true a wrong proposition of law, ho is 
entitled to maintain the right when he 
finds out his mistake. BALKKIbHNA v. 
ORIENTAL LIFE ASSOCIATION COM- 
PANY. 4 B. L il- 840. 

37- S- 18 (2).— Seo S. 8, 18 (2;, 21 &c. 
U. B. K. lyu7. F. 13 No 7. supra. 

38. S- 19, 20 & 80. Heading of deposi- 
tion is no part of evidence — atid no admission. — 



Sup: Govt, acts (VII of 1870) rContr!). 

The hoading of a statement giving 
the description of tho witness by whom the 
statement is made is no part of the deposi- 
tion made by him on solemn aSirmation. 

Where the heading in a former deposition 
of the Defendants' mother was put in to 
prove his illegitimacy and tho heading ran 
as follows; " 1 have lived with G. these 12 
years I lived with him before his wife died 
two years before ihat event." Held that even 
if the document is admissible, it has no 
weight ; and that it will be harsh to in- 
fer for the description any imputation of 
uuchastity or that the witness confessed her 
immorality. When statements of witnesses 
are not improbable and not shaken on cross 
examination in the court taking them has 
accepted them, the -Appellate Court should 
not reject them on more suspicion that the 
witnesses are nut independent. MOQBUL.\N 
u. AHM.VD HUSAIN. 6kB- L- E,- 233=8 
C- W N- 241=31- I A- 38=26. -A^'IOS- 
P-C 

39- S- 21- — Benami transaction — Burden 
of proof — Admission — Sale-deed containing ad- 
jnission of apparent title of vendee. 

Plaiutirts' father and the defendant were 
brothers. They separated and partitioned 
their ancestral estate. On the death of their 
father the defendant was natural protector 
of tho plaintiffs. One of the plaintiffs alone, 
but describing himself also as the guardian 
and protector of his younger brother, who 
was minor, executed a deed purporting to 
sell to the defendant a coffee garden, des- 
cribing it as having been enjoyed by their 
father and after his death belonging to his 
sons, the plaintiffs. The plaintiffs sued the 
defendant for tho recovery of the coffee 
garden. The High Court, ou the whole evi- 
dence decreed the plaintilis' claim and relied 
upon the above liocumeiit as containing au 
important .ailmissiun ox the title of tho plain- 
tiffs and their father. 

Held, that the High Court was right iu 
so using the document. 

That in order to displace the apparent 
title of the pl.i,iu:,ilis, it was incumbent upon 
the defendant to show by satisfactory evi- 
dence that the funds out of which the garden 
was i^urchased were his own funds and thac 
they had failed to do so. PCLIYAMPATTI 
NAUANIER V. KUPPIER. 9 C- W- N- 89- 

40- S. Z\ Si, \QZ- 'Admission hy a person in 
his sale certificate made by himself. 

S. 21 — -^"y statement, as to rent payable 
for a holding, made by a person in a sale 
ccrtiticate, wljich was obtained by him as 
purchaser of the holding, at a sale in execu- 
tion of a decree against the former tenant, 
being ill tho nature of au admission, cannot 
be used as evidence on his behalf, as such a 
statement does not come within the e.^ception 
to S. 21 of the Evidence Act and is not relev- 
ant under any other section. RAMANI 
PERSHAD NAIiAIN SINGH o. iIAH.\NTH 
ADAIYA GOSSAIN. J. L- R- 31 C-.380. 



( 163 ) 



CIVIL DIGEST OF CASES 



( Iffi ) 



Sup: Govt, acts (VII of 1870) (Gontd). 

40. (a) S. 21 cls. (1) and (3) S 32 (5) and S. 
157 - Admission hy ylaintiff — When admissible 
in his favour — Statement in previous deposi- 
tion. 

When the plaintiffs sought to establish 
their pedigree by proving inter alia that A 
and B were brothers. 

Seld, that a statement to that effect, 
made by one of the plaintiffs, in a deposition 
given long before the controversy m suit 
arose, was admissible in evidence. JADU 
NATH SARKAR v. MAHENDRA NATH 
EAI CHOWDHUBY. 12 C- W- N- 266- 

41. S- 32 Cl (2). — Report or certificate of 
a medical man not called as a witness as to 
mental state of an alleged lunatic is in- 
admissible in evidence. YAD ALI v. MST 
AMIRUNNESA 7. 0- C- (See Lunatics Estates 
Act XXXV of IboH) No. 3. 

42- S- 32— See S. 4, 32, & 90—6. B. L. 
R. 750 (P. C)=31 I. A. 217 = 26. A. 581 = 
7. 0. C. 290 No. 4 supra. 

43- S- 32- {2)-—'i<:count sales. 

In a suit to racover loss sustained on 
the sale by the plaintiffs of goods consigned 
to them by the defendant for sale by their 
London firm, account sales are good prljna- 
facie evidence to prove the loss, unless and 
until displaced by substantive evidence put 
forward by the defendants.— BARLOW v. 
CHUNI LALL NEOGI, J. L. K- 23 C- 
209- 

44- S- 32 (2) & 34- — Account — Corrobora- 
tion. 

The plaintiff relied on entries in the 
handwriting of her deceased husband kept 
in the ordinary course of his business. 

Held, that entries in accounts relevant 
only under section 34 of the Evidence Act 
(I of 1872) are not alone sufficient to chai'ge 
any person with liability ; corroboration is 
required ; but where accounts arc relevant 
also under section 32 (2) they are in law suffi- 
cient evidence in themielves, and the law 
does not, as in the case of accounts admissi- 
ble only under section 34, require corrobora- 
tion. Entries in accounts may in the same 
suit be relevant under both sections, and 
where that is so, it is clear that inasmuch as 
they are relevant under section 32 (2), the 
necessity of corroboration prescribed by sec- 
tion 34 does not arise. Though accounts 
which are relevant under section 32 (2), do 
not, as a matter of law, require corroboration, 
the Judge is not bound to believe them with- 
out corroboration ; tha'j is a mattjr on which 
he must exercise his own jadicial discretion 
as a Judge of fact. RAMP\.\RABAI v BALA- 
JI SHRiDHAR. I. L. R.. 28 B. 2»4 = 6 
B L R , 50 

45. S- 32 (3)- — Statement adoerse to deceas- 
eds' interest. 

A statement by a deceased landlord, that 
there was a tenant on the land is a statement 
against his proprietary interest and is admis- 
sible under Cl. 3 of section 32 of the Evidence 
Act. 22 \V. R., 231 referred to. ABDUL 
AZIZ MOLLA 1;. EBRAHIM MOLLA. 31 

C 965- 



Sup: Govt, acts (VII of 1870) {Contdj. 

46- S- 32 (3).— See Sections 13 (b), 82 C. 6 
No. 28 supra. 

47- S- 32 (4) & 21 — Muhammadan Law — 
Shia School — Wakf may be created by Will — 
Evidence — Legitimacy — Statements. 

According to Muhammadan Law of the 
Shia and Sunni, Schools a valid wakf may be 
created by Will. 14 All., 429, overruled ; 6 
S. D. A., 110 ; 8 I. A., 117 ; 5 M. 7. A. 1«9 ; 22 
I. A., 86 and 87, referred to. 

Where a question arose whether tha 
plaintiffs were legitimate descendants and 
heirs of the son of the testatrix and entitled 
to dispute the Will executed by her and to 
inherit the property left by her — 

Held, that statements made by the testa- 
trix in documents addressed to the WasUca 
office long before the present dispute arose, 
wherein she admitted them to be the heira 
along with other legitimate heirs, whose legi- 
timacy was not questioned, were admissible 
in evidence and entitled to great weight, and 
are conclusive on the issue of legitimacy. 

Held, also, that a petition to the Wasika 
office by a descendant of the son of the testa- 
trix, since deceased whose right as heir was 
not disputed to the effect that the plaintiffs 
were along with him heirs of the husband of 
the testatrix was admissible in evidence as 
containing a statement against the interest 
of the petitioner. BAKER ALI KHAN v. 
ANJUMAN ARA. 7 C W- N- 465 = 5 B- L. 

R 41=30 I A 94=25 A 280 (P. C ) 

48- S- 82 (4) and A2-— Trade viark - Im- 

porters' right. 

In a suit for injunction to restrain the 
defendants from importing or selling watches 
similar to those imported by the plaintiff on 
the ground that the plaintiff had under con- 
tract with the manufacturers sole right to 
sell them in India. 

Held, that the point of primary import- 
ance for the plaintiff's case is that he should 
show that the value of the trade, which he 
carries on, is due to the reputation acquired 
by, and attaching to the trade-mark, as a 
guarantee of importation by him, and not 
merely as a guarantee of manufacture by 
somebody else, and that therefore the imita- 
tion of that trade-mark is an infringement 
of an exclusive right of his own, entitling 
him to ask for protection in this country. 
The claim was rejected on the ground that 
the agreement with the manufacturers did 
not give the plaintiff any interest in tlie 
manufacturer's trade-mark and the mere 
exclusive right to sell, within a limited area, 
would give no right to restrain a person im- 
porting and selling the article within that 
area. When the importer has adopted a 
trade-mark, as a guarantee of importation 
by him from a specified spot, he is entitled to 
protection against a person using that mark 
and although unable to show importation 
from such spot. An importer can only pro- 
tect a trade-mark repicseuting his own repu- 
tation and the advantages accruing there- 
from, but not the trade-mark of another, a 
manufacturer or producer. 



( 165 ) 



CIVIL DIGEST Ot CASES. 



( 1B6 ) 



Sup: Govt, acts (VII of 1870) (Cont I) 

Held, that wbore ia a suit in India the 
existence of a trade-mark ia in question, 
a judgment in a foreign Court aa against a 
str^i-ugor declaring the existence of the trade 
mark is not admiHsible in evidence either 
under S. 32 (4) or S. 42 of the Evidence Act 
which deal with public rights and not rights 
of a private individual aa against the public. 

The plaintiff was not saddled with the 
costs of the defendant on the ground that the 
plaiutiS only committed a bona fide mistake 
as to a difficult point of law. CH.4RLES 
HEINIGER V. CONSTANT DROZ. 3 B- L- R- 
l=2d.B433. 

49- S. 32 (4) & (5) and 35 & 51 --Pl;"^ of 

cuMom of a family as well as of the tiibe to 
which the family belongs — Wajib-ul-arz, value 
of, as record of custoyn — Rawaj-i-aam, extracts 
from — Hearsay evidence, as-rcgards rclatio^iship 
— Presumption as to statement of a witness re- 
garding facts occurring in his life-time and 
before he was born — Dociimctits relating to 
gaddi-nashini estates in proof of custotn exclud- 
ing daughters frcrm inheritance in estate not 
governed by that rule — Custom of exclusion of 
dauglUers from inlicritance among Chohans — 
What constitutes valid czistom. 

The plaintiff sued for possession of an 
estate, as the daughter of its last undisputed 
owner. The defendants contended that the 
plaintifi was excluded from inheritance by 
a custom prevailing in the family and tribe 
to which the parties belonged. 

A party can plead that a custom obtains 
both in a family and in the tribe to which 
that family belongs ; but he must prove tliat 
the custom is binding on the family, whether 
he confines his evidence and plea to the 
family or not. 7 A. I. j: C. and 20 C. 6i9 P. 
C. referred to. 

A custom, to be valid, must be ancient, 
continuous, reasonable and definite, and all 
this must be established by clear and un- 
ambiguous evidence. 14 Jf. /. A. 570 refer- 
red to. 

A wajib-ul-arz is generally more valuable 
as a record of opinion of peisons presumably 
acquainted with the custom, than as an 
official record of the custom ; but, if duly 
attested by settlement officials and signed 
by zemindars of the village to which it 
relates, it must be admitted in evidence 
under S. 35 of the Evidence Act. 7. 0. C. 
134, 7. /. A. 63=5. C. 744 and 15. C; 20 P. 

C. referred to. 

Neither cl. (4) nor cl. (5) of S. 32 of the 
Evidence Act justifies the admission of hear- 
say evidence upon the question whether 
a particular person survived another or upon 
the question whether a man was, at the 
time of his death, joint with, or separate 
from, other members of his family ; nor 
can the grounds of the opinion of a deceased 
person, as to the existence of a custom, 
even if stated to a witness, be, as such, 
proved under that secti a. L. R. 13 Q. B. 

D. 818 : 20 G. 758 ; 24 C. 265 ; 25 M. 183 ; 
select case No. 265 ; P. C. A. No. 46 of 1899; 
lU A. 1. (P. C.) 23 A. 37 (P. C.) ; 23 A. 72 



Sup : Govt, acts (VII of 1870) (Contdj. 

(P.O.); 1 Woightwick, 112 p. )i;9 ; 25..A. 
143 (P. Cl ; and 31 I. A. 217, Ktfd. to. 

When a witness states facts which oc- 
curred in his own lifo-timo, in his own fa- 
mily, village or neighbourhood, after he had 
becomo of age it may bo presumed that be 
is testifying to his own knowledge ; but 
when ho states instances of the applicatioa 
of the custom or particular facts which oc- 
curred before he was born and he does not 
give the source of his information, it can- 
not bo presumed that he is repeating in- 
formation acquired from his father or grand- 
father or some other person, who would 
bo likely to have been aware of the facts. 

On the contention that certain docu- 
ments filed by the defendants were not 
admissible in evidence as they related to 
the succession to a rnj or gaddi, while it 
was- expressly admitted that the succession 
to the estate in suit was not governed by 
such a rule, it was held that those docu- 
ments wore admissible in proof of the cus- 
tom set up by the defendants, although 
they related to estates which devolved upon 
a single heir. 7. I. A. 63 = 5. 744, 15. C. 
20 P. C. and 20. C. 758. 24. G. 265. 25. M. 
189. 19. A. 1. P. C. 23. A. 37. P. C. 23. A. 
72, P. C. 25. A. 143. P. C. and 31. I. A. 
217. referred to. 

In view tof the evidence produced in 
the case, the Court held that, among Jangra 
Soyigarlia Chauhans, daughters were excluded 
by brothers and male collaterals however 
remote from inheritance. MUSAXIMAT 
PARBATI KUAR v. RANI CHANDRAPAL 
KUAR, 8. C 94- 

50 S 32 (a) cl (5), S- 21 (1) & (3)— 

statement of reldtives as to age. 

Where the question in issue was the age 
of the deceased assured, in a suit by his 
heir against a Life Assurance Company held 
that the statement of the deceased him- 
self, as to his age, contained in the pro- 
posal form in the declaration, is legally 
admissible in favour of the plaintiff under 
Section 32 (a), clause (5) and Section 21, 
clauses (1) and (3), but it can carry little 
weight when it is oppcsed to prior statements 
made by the deceased himself in respect of 
his age. 

The report of the medical expert of 
the Company cannot be admitted in evi- 
dence without examining tho expert himself 
as a witness. 

Even expert's opinion in the matter of 
age cannot be safely accepted and acted 
upon when the difference between the con- 
tending parties as to the age is only about 
3 years. 

A statement as to the age of his bro- 
ther, made by his sister, is admissible after 
her death under Section 32, ol.uise (5) of 
the Evidence Act, lUustrfttiou (c). The 
date of birth being the commencement of 
a relationship by blood and so relating to 
the existence of each relationship (20 C 758 
followed) , 



( 167 ) 



CIVIL DIGEST OF CASES 



( 168 ) 



Sup: GovK acts (VII of 1870) rContdj 

Prescviptious iu tUomselves do not prove 
that the jiurton for whom they were giveu 
suffered from disease for whioli such prescrip- 
tions are really givea. OKIENTAIj GOVT 
LIFE ASSURANCE COMPANY v. NAR- 

SINHA CHARG. U. M- L- J. 379=25. M, 
183 

51' S- 32 (5)- — Marriage Legititnao/ — 
wakf bi{ will. 

Held that among Shia sect of Maho- 
medans marriage includes mnta marriage 
and therefore wherever the word marriaoe 
is used iu Act I of 1872 S. 32, it must in- 
clude mtita marriage so far as it deals with 
case under the Shia Law. Held further that 
the law does not prevent creation of Wal'f 
by using other expressions than " Wakaflo " 
and the intention for creating the wakf hav- 
ing been established the forms and expressions 
are immaterial. Held further that the deed 
creating the )«afr/ was not a will but a wakf- 
hel-wasiat and therefore could not be valid aud 
operative. Held also that when the testator 
declared appellants' mothers as her graud 
daughters it must (following 10 W. R. 409) 
be presumed that she meant legitimate 
daughters nothing to the contrary being 
shown. ANJMAN ARA BEGAM v. SADIK 
ALT KHAN. 2- 0- C- 115- 

52. S- 32- (b)-— Pedigree tahU— Proof of 
relationship — 

A pedigree table was alleged to have 
been prepared by certain bards at the 
instance of a Raji. It was held to be 
inadmissible in proof of relationship 
as neither the bards nor the Rail had 
been produced as witnesses and it \ias not 
proved that they were dead or could not 
be found or had become incapable of giv- 
ing evidence or could not be produced wich- 
out unreasonable expense ot delay. SURJ\N 
SINGH V. SARDAR SINGH. 5. C- W- N- 

49=23 A. 72 (P C )• 

53- S- 32- (.5-)— Evidence — Pedigree, proof 
of — Evidence of witnesses who have heard 
names of ancestors recited — Evidence of relatives 
—Grounds for discrediting evidence — Mode 
of dealing with evidence — Witnesses, credibiUty 

"f- 

Evidence of competent witnesses as to 
their having heard the names of the an- 
cestors recited by members of the plaintifi's 
family on ceremonial and other occasions 
was held to be admissible evidence in sup- ; 
port of the pedigree on which the plain- j 
tifl based his claim. Such evidence is not ; 
open to criticism merely on the ground i 
that the witnesses are relatives. The rcla- ' 
tionship of a class of witnesses shoull be | 
con.-idered only with the ordinary caution ! 
with which te?timony is sifted, where sympa- 
thy with one side is to be taken for granted, 
and should not be treated as maicing them 
interested or unreliable witnesses. The fact 
that one of such persons besides being a 
relative was assisting the plaintiff in the 
case, and that the other witnesses were con- 
nected with this person by blood or ser- 



j Su«: Govt, acts (VII of 1870) fCo„td ) , 

I vice, is not necessarily sulEuiout ground for 

• discrediting their evidence. The rej motion 

I of certain speoiiio statements of a witness 

I is not necessarily a ground for disbelieving 

the whole of his evidence ; nor is the fact 

that a Judge has not acted on certain 

portions of his evidence which may tie 

due to caution on the part of the Judge 

or inaccuracy on the part of the witness. 

Public assertion of the relationship of 
plaintiff's family ;mado by plaintiffs grand- 
fathers and father on several occasions in 
courts of Law without such assertions 
meeting with any denial on behalf of the 
defendant were held to be evidence of 
pedigree. DEBI PERSHAD GHOWDHRY 
V. RADHA CHOWDHRAIN. 31. \. /^. 160= 

9 C- W- N, 161; p. C =32 C 84- (P. C) 
54. S- 32- (5) & C. See a J C. 6 No. 88 

Supra, 

55- . S. 32. (5) & QO'—Practic. of Privy 
Council with respect to decisions as to credibility 
of 'toitnesses by lower courts— Hearsay evidence 
— Ancient document — Discretion of Court in 
calling for formal proof of. 

The Judicial Committee will not criticize • 
with any strictness of opinions as to the ere- ' 
dibility of witnesses, which is eminently a 
question for the Courts in India. Where 
the Courts below had rejected the evidence 
of certain witnesses on the ground that it 
was hearsay only and had not conformed 
with S. 32 of the Evidence Act, and on 
the face of the evidence it was sometimes 
uncertain whether the witnesses were speak- 
ing from the.i- own pergonal knowledge or 
from information derived from others, 
but the Courts had considered it from both 
points of view and held it inadmissible, 
the Judici ■■ i Committee saw no reason to 
differ from the estimate which the Courra 
had formed as to the credibiUty of the 
witnesses in the former case, nor, in the 
latter case, to question the manner iu 
which the Courts had applied the pro- 
visions of 3. 32. Notwitstauding a document 
was more than 30 years old and haci been 
produced ; om proper custody, ihe Courts 
below, on tue ground that there were cir- 
cumstances in the case and evidence as to 
the document itself which threw great 
doubt on its genuineness, exercised their 
discretion under S. 90 of the Evidence Act 
by not admitting the document in evidence 
without formal proof, aud rejected it when 
no such proof was given. The Judicial 
Committee considered that the discretion ( 
the Court had been rightly oxex'cised an 
declined to interfere with it. — SH.\FIu- 
UNNISSA V. SH.\BAN ALI KHAN.— 9 Q. 

W IT 105; p. C=31 I- A. 217=26 A- 

581 (P. U ) 

56- S. 32 ib)— Evidence— Report of Panch 
in previous family disputes — Pleadings — New 
point raised for the first time on appeal before 
Privy Couuil - 

Matters in dispute between the heads of 
the two familv lines represented by the par- 
ties to the fLeseut suit were referred to 



( 169 ) 



CIVIL DIGEST OP CASES. 



( 170 ) 



Sup: Govt, acts (I of 1872) (contd). 

Pauch for enquiry. Their report contained 
a pedigree table of the family including rela- 
tiouship by adopiion of the members. Both 
the disputautn signed the report each saying 
that ho agreed to what was stated in it. It 
does not apjear whether any formal order 
was made on this report, and tho record of 
the case did not include any order of refer- 
ence or formal statement of the case to show 
what was tho precise subject of decision. 
But the report was filed and preserved in tho 
Collector's office. The question of adoption 
uow in dispute could hardly have been tho 
point in dispute before the Panch. 

Held, that tho report was admissible in 
evidence and the findings of the Panch em- 
bodied in tho report were strong evidence in 
matters of family pedigree. The report was 
not rendered inadmissible by its being tam- 
pered with. 

Where a point had not been raised in tho 
pleadings the Privy Council did not allow it 
to be raised for the first time on appeal to tho 
Council. AJ.\B SINGH v. NANABHAU. 25 
B. 1 (P.C)- 

57- S- 82 (5). 49> 60— Custoin—Bindu 
Law — Frimogeniturc — Inheritance — Burden of 
Proof — Admissibility of statements of deceased 
persons. 

The burden of proving that the custom 
In a particular family of primogeniture re- 
gulates the succession to their property, is 
upon him who claims to inherit in that right. 
The elder of two brothers having obtained 
possession of all the family estate, the young- 
er suing for his half share under the general 
Hindu law, was met by the defence that there 
■was in this family a custom of primogeni- 
ture. Upon tho evidence the decision was 
that the custom alleged had been proved to 
exist. There was no documoutary evidence 
prior to the conquest of the upper part of 
the Doab in 1803. The family was one of three 
families that descended in three branches 
from a common ancestor said to have died 
in 1695. In the two other families, as was 
admitted, primogeniture prevailed, a fact 
giving rise to much probability that it was 
the custom in this ono also. For nearly 
eighty years possession had been consistent 
with the alleged custom and in the earlier 
part of that period inconsi:.lx;nt with any 
other basis. In that part of the oral evidence 
which related to the ^rAciica oi gaddinashini 
in the family, there was an identification, 
understood to be meant by the witnesses, in 
speaking, of that practice, with primogeni- 
ture ; in the same way that is referred to in 
tho judgmout in Thakur Nitr Pal Singh v. 
Thakur Jai Pal Singh (L. R., 23 I. A., 147 ; 
I. L. R., 19 All. 1). In the evidence as to 
tradition regarding the family, learned by 
witnesses from deceased persons, their state- 
ments came within sub-s. (5) of e. 32 of the 
Evidence Act 1872. And by the aid of s. 49, 
rendering relevant tho opinions of persons 
having special means of knowledge as to 
family usages, oral statements of such opi- 
Bioug were admisiiible. But i. 60 requires 



Sup: Govt, acts (I of 1872) [contd.) 

that oral evidonce referring to an opinion, 
or its grounds, should be tho evidence of a 
parson holding that opinion on the grounds 
referred to. A witness may state, as the 
ground of his opinion as to tho existence of 
a family custom, information derived from 
deceased parsons. But this must bo tho state- 
ment of independent opinion; and though 
derived from hearsay, must not ba the msra 
ropDtition of hearsay. The weight of such 
evidence depends upon the ohararaotor of the 
witness and of tho doceasod. GARUU.V- 
DHAWA.JA PRASAD v. SUPERUNDHWA- 

JA PRASAD. I. L- R, 23 A- 87. 

53 Evidence Act lSi2 S. 32 {6j~Pcdigrce- 
table. 

Held, that the pedigree-table said to have 
been prepared thirteen years before suit from 
the history given by bards and copied from 
certain papers in their possession was not 
relevant when tho bards or the persons, who 
had the pedigree drawn up, wore not called 
as witnesses and no reason was given for 
their absence. SURIAN SINGH v. SARDAB 

SINGH. 5 C- W- N- 43=23 A- 72 (P. C ) 

59 S. 32 (7) — Admissibility of document — 

New trial — Preferable heir — 

It was contended by the appellant that 
certain documents which were resenter-alias- 
aota and did not fall under any of the clau- 
ses of S. 32 of tho Bvidjnoe Act, were impro- 
perly admitted in evidence. Th3y were h.jld 
to be admissible against him as being clearly 
evidence against persons, through whom ha 
claimed. With regard to the birth of a pjs- 
tliumous son, whose brith if proved, the ros- 
poudent would succeed in pcefereuco to the 
appelant, a documjut in Persian characters 
was produced consisting of two different 
kinds of paper fastened together of which tho 
lower portion (which the appallant alleged 
to be a forgery) was in diEfereut handwriting 
from that of the upper portion and was writ- 
ten with a difforeni pen. It was also object- 
ed that the word in the upper portion tran- 
slated "son" really meant only "child" or 
"offspring" without distinction of sex. Held 
that even if the appellant's contentious were 
correct, other expressions in the upper por- 
tion of the document pointed to the existence 
of a son, and the fact of its being expressly 
r.i-tcrred to in another document of slightly 
later date (the genuineness of which was no' 
impeached) furnished contemporaneous pcoo 
by reference, and therefore the grave suspi 
cion attaching to tho document did not, uu 
der the ciroamstanoes, form suSieient ground 
for overruling the concurrent decisions of 
the Courts below. A new trial, asked for on 
the grounds that a mass of evidence had 
been improperly received, and that tlie earlier 
document above referred to was so clearly a 
forgery that inj istice would be done, if tha 
decisions appealed from were allowed to 
stand, and consequently there had been a 
gross miscarriage of j istice, was refused on 
the above findings, the Judicial Committea 
being o£ opinion that there was no reason for 
departing from •tUeit usual practice sf da- 



< 171 ) 



CIVIL DIGEST OF CASES. 



( 172 ) 



Sup: Govt, acts (I of 1872) (Contd). 

dining to interfere with concurrent decisions 
on fact. Scinble, under tbo Jlithila law an 
agante in the seventh degree is a preferable 
heir to a sister's son.— RANI SRT:MATI v. 
KIIAGENDRA NARAYAN SINGH. 31. J. 

A- 127- PC- =31. C- 871- (PC)- 

60- S- 33. — Statenunit ill writing b;i pcrso:i 
who could have been called as a witness but 
vas not — Statement of deceased person — Report 
of Patwari — Limitation. 

Where a person, though alive at the 
time the plaintiff closed his case, was not 
called as a witness, statements in writing 
by such person, filed before his death in 
support of the plaintiff's case, were held 
by the Judicial Committee to be inadmis- 
sible in evidence, as statements of a de- 
ceased person. A genealogical table pur- 
porting to have been made by a person 
since dead, but which was shown to be 
merely an exhibit binding on him for the 
purposes of a former suit, was held to be 
inadmissible in evidence, having been made 
without the personal knowledge and belief 
which must be found or presumed in any 
admissible statement by a deceased person. 
In the report of a patwari as to the date 
of a death, the native date was given aud 
after it what purported to bo the correspond- 
ing English date. The dates being found 
not to correspond : Held, on a question of 
hmitation, that the substantive statement 
was that given in the vernacular and that 
the rest was a miscalculation. — JAGATPVL 
SINGH V. JAGESHAR BAKHSH SING 30 

i5^A.'l4l; ?.t- '• ^ ^- ''' ^ ^-^ 

61- S- 32-— Statement of persons who 
can not be found or called as witnesses — 
9. B. L. R. 1047— See S. 11 and 32— No 
(19) Supra. 

62- S. S3. Copy of living deponents' state- 
ment inadmissible except under special eir- 
cjivisfances. 

Under S. 33, unless the deponent is 
dead or can not be found or is incap- 
able of giving evidence or can not be pro- 
duced without an unreasonable amount of 
delay or expense and unless the pro- 
ceedings are between the same parties 
or their representatives and the ad- 
verse party had the opportunity to cross- 
examine the witness, no copy of a witnesse's 
^l?F,"^^'J''^^ IS admissible in evidence. GHA- 
KURI SINGH V. SURAJ KUAR. 2 A. L- 

63. S. 3i—Acco!ivts regularly Jtcnt. 
c, -.^fj accounts to be regularly kept under 
b. d4 they need not have been written from 
day to day as the transaction took place, 
ihoughit may affect their credibility it can 
°°TT^';?,H?'"J^^''°^ inadmissible. ATJIA R.\M 

"■ Ji %^ ^J"^'- A?; I" R- 2»3=25 B. 616 

„„r, ; ?• 34 and U4-£m<W<'s m books re- 
VWarUj ''n"—P'-emmptio>i—Instrume}U of debt 
in aetitor s possession. 

Where the instrument of a debt and 

th?i kV" """ '^°'^' ^'•<= '" t^" possession of 
the debtor, pnma facie there is a Btrong pre- 



Sup: Govt, acts (I of 1872)' (Coyild). , 
sumption that the debt has been discharged, ' 
and tbo burden of proof lies upon the credi- 
tor to rebut the presumption. 

Entries in books regularly kept are ad- 
missible in evidence not only for the purposa 
of refreshing the memory of !\ witness but 
also as corroborative cvidoncn of his state- 
ment. BHOY IIONG KONG v. R. M s P 

ra:\in.\than chetty. 4 B- L It 373, 6 
W- K., C 401=29 I. A. 43=29 C 334 

(P. C). 

65. S. 3^~ Accmmt l>io7e.i containing e.n- 
tries after transaction — Corroborated evidence. 

For account books to be regularly kept 
under S. 34 it is not necessary that in thuia 
entries may have been made from day to day 
or from hour to hour, as transactions have 
taken place. Entry in account books is ad- 
missible as corroborated evidence of oral tes- 
timony of payments. The opinion expressed 
in 4 B. 576 against the reception of an account 
book containing an entry not made at the 
time of the trans<aotion was not approved. 
The time of making the entries may affect 
their value but if they have been regularly 
made in the course of b^sines^ afterward.;, 
it does not make them irrelevant. THiu 
DEPUTY COM:\fISSIONER OP B\R\- 
BANKI V. RAM PARSHAD. 4. P. "W -N 

147. =2. 0. C 311. (P. C.)=27. Q. m. 

66. S. 34. Accounts books— Copies. 

A> person used to enter in a chhota khata 
all his receipts and money advances to his 
servants. After the expenses had been in- 
curred by the amlah to whom the money 
was thus advanced he had to submit a 
furd embodying the exepenses which were 
checked by him regularly. Jlonthly ac- 
counts were used to bo prepared from this 
khata. 

Bcld that the chhota khata books should 
be regarded as the original accounts, and 
in the absence thereof the furds and the 
monthly accounts ware admissible in evid- 
ence for the purpose of pi-oviug what were 
the actual receipts. 

These accounts having been regularly 
kept were admissible in evidence even though 
the chhota khata itself was not produced. 
27 A. 118 Referred to. RA.TA PEARY MOHAN 
MOOKERJEE v. NARENDR.\ NATH MOO- 

KERJEE. 9. c. W. N. 421=32 C. 582- 

67. S. 35. — Effect of entry of pre-emption 
in a previous wnjib-ul-azr and its omission, 
from the latter o-ne. 

Held, that the right of pre-emption, re- 
corded in the Wajib-ul-ar2 of 1866, must be 
taken to be a record of customary right. A 
Wajib-id-arz, prepared and admitted accord- 
ing to law, is prinid facie evidence of the 
existence of any custom oi pre-emption 
which it records. W. N., All., ia97, p. 3 • 2 
All., 87 ; 8 All, 434, referred to. 

Held, also, that as there was no evidence 
whatever that the custom ol 1866 had fallen 
into disuse, and the word 'nadarad' in the 
Wajib-ul-arz of 1886-87, could not be taken 
ae meaning that there was no custom, or that 



( IT.I ) 



CIVIL DIGEST OP CASES. 



( 1T4 ) 



Sup: Govt, acts II of 1872) (C'on/d). 

a custom, which had oxislod, had fallen into 
disiiso, the custom must he presumed to con- 
tinue to exist. Bules passed by Local Gov- 
ernment, for the recording of rights in the 
District of Gorakhpnr, directed that pre- 
emption should be noticed " when the pro- 
prietors expressly demand that it bo noted 
and prove conclusively that the custom 
exists." W. N., All., 1901, p. 29, overniUd ; IG 
All., 40 referred to. 

A rccord-of-righta is nob admissible in 
Dvidonco to show by an entry or by its silonoa 
that a particular custom dooa not exist in a 
village. 

: Section 35 of the Evidence Act only pro- 
vides that any entry in an official public book, 
which is duly made by a public servant 
in the execution of his duty, is of itself a 
relevant fact ; but it does not make the hook 
evidence to show that a particular entry has 
not been made in it. 7 C. L. R., 35C ; 10 Cal., 
102.1 ; 19 Ca;., 20; L. R.. 7 /. A., G3, refer- 
red to. ALI NASIR KH\N i'. MANIK 

CHAND. A- W. N. 1902 P 207=25 A 90 

(F- B ) 

68- S- 35.— .K/fc' °f '"■try in Collector's 
book on title. 

Held by Chandra Warkar and Jaedb, J. J. — 
Where lands are entered in the Government 
records in the name of a particular person 
the entry is not sulficient to prove that per- 
Bon'a ownership in those lands, sucli entries 
are only an evidence of that person's owner- 
ship of land taken with some other evidence. 
Per Aston J. (dissenting) — Such entries in 
the name of a particular person are material 
though not conclusive evidence of liis owner- 
Bhip of those lauds. PANDURANG VASTJ- 
DBO V. ANNANT LAKHMAN. 6 B L- R- 
956- 

68 a. Father giving land to sons—Sons dead 
— Son's wife and children suing father for 
possession- — Entry in revenue register by thugyi 
— Entry to the effect that father sent sons icith 
letter declaring his wishes — Report to thugyi 
cmdd not effect the gift- — Children wrongly 
joined as plaintiffs- — thtty of Subordinate 
Court — Pyatbaing, meaning of—S. 35, Evi- 
dence Act. 

The plaintifia alleged that P. G., their 
husbands' father, gave his paddy land to his 
sons and transferred it to their names in the 
revenue register. On the death of their hus- 
bands they and their children brought a 
declaratory suit against P. G. and prayed for 
possession of the land. The evidence in the 
case consisted of an entry made by a tiiugyi 
or revenue Surveyor in the revenue register, 
the entry being that P. G. sent his sons with 
a letter declaring his wishes. The pUintifis 
did not allege that the gift in question was 
effected by the report to the thugyi ; 

Held, that what the plaintiffs had to 
prove was gift made, and that the report to 
the thugyi could not effect the gift ; 

Held, also, that the entry could only bo 
proved with the letter that accompanied it, 
but not otherwise, 



Sup: Govt, acta (I of 1872) [Contd). 

Held, further, that their children wera 
wrongly joined as plaintiffs, as they had no 
rights to possession of inherited property 
during the lifetime of their mothers. 

The duty of a Divisional Judge is to 
follow, not criticise, the rulings of the 
Chief Couit, to which ho is subordinate. 

A pyatbaing, as its name implies, i3 
the foil out out of revenue register IX, 
and given to the person who reports any 
matter to the thugyi. 

When a thugyi or revenue surveyor is 
examined, ho may be asked to prove that 
he made entries in the ordinary course of 
his duty in revenue register IX, and those 
entries may be put in evidence under S. 
35 of the Evidence Act. MAUNG PO 
GAUNG V. MA SHWE BWIN 14 B- L- 
E. 80. 

69- S. 35-— 3 0. L. J. 521 See S. 13 Supra 
No 31. 

70- S- 35 and 48— TI'(yj6 ul-arz entry in 
custom. Evidence Act {I of 1872), Sections 35, 
48 — Evidence— toajib-ul-arz. Entries in — Cus- 
tom. Proof of — Ado2>tion of sister' s son— Hindu 
Law. 

Entries in a Waj'M-ul-arz properly made 
under ^Regulation VII of 1822 and authenti- 
cated by the si<;uatureof the officer who«mada 
them are admissible as evidence under 
section 35 of the evidence Act in order to 
prove a family custom of inheritance, or 
under section 48 as the record of opinions 
as to the existence of such custom by 
persons likely to know of its existence. 

It cannot bo laid down as a general 
proposition that a recital in a Wajib-ul-an 
cannot operate as a Will in the case of 
a Hindu. The weight to be given to 
testamentary statements in a Wajib-ul-an 
must depend in each case, on the circum- 
stances in which the entries were originally 
made and the corroboration they receive 
fi'ora extrinsic evidence. 

Dhanraj, a Jl.irwari Brahman, declared 
by his statements in a Wajib-ul-arz that 
ho had adopted Murli, his sister's son, as 
liis son seven years ago and that the boy 
would be his heir and owner of his pro- 
perty after his death. Ho also declared that 
if a son was subsequently born to him 
half the property would be received by him 
and half by the adopted son. The entry 
also stated that a sharer shall bo at liberty 
to adopt his sister's son or brother's sou, 
or daughter's son whom-so-ever he may 
like, and after his death his adopted son 
will inherit the property. 

Hid, that the adoption of Jfurli hav- 
ing been found to be invalid gave no right 
to inherit and the gift therefore had no 
effect, for it was not the intention of 
Dhanraj to make Murli his heir irrespective 
of adoption. L. R., 26 I. A., 153, i9 All., 
16, L. R., 19 I. A., 101; L. B., 3 Z. .4., 2.53 
referred to. MUSSAMMAT LALI i>. MURLI 

DHAR. 8C L- J.!594=S. C, 3 A. L J., 
415 = 8 B L R . 402=10 W N C . 730= 

28 A- 488 (P. C ) 



( 176 ) 



CIVIL DIGEST OP CASES. 



( 176 ) 



Sup: Govt, acts (I of 1872) (Contd) 

71- S- 35. 74. 80> and QQ.— Limitation 
Act. lS7i', Seciion 19 — Acknoioledgment by 
minor. 

The documents on wtiick reliance was 
placed by respondents to prove the minor- 
ity of one K. -D. were — 

(a) the statement K. D. before the 
TahsUdar, dated 29th July 1842, in which 
he gave his age at 19 ; 

(i) the statement of one N. R., dated 
the Ist September 1842, before Mr. Boss, 
in which he stated his client's age was 19 ; 

(c) the descriptive roll of K. D. in 
whioh his age was entered 18 years, and it 
■was stated that hair was j ist appearing on 
his face ; 

(d) K. D.'s own statement, dated 5th 
September, before the Assistant Commis- 
Bioner in which his age was put down as 
18.; 

(e) the statement of the Fatwari be- 
fore the Settlement Deputy Collector, dated 
9th September 18i2 in which he said that 
in the measurements of 1246, Faili (about 
1830) the land was entered in the name 
of Manohar Das, Waris of it. D. ; and 

{f) a certified copy of an entry in the 
Municipal Death Register, dated the 13th 
February 1884, in which the age of K. D. 
was given as 60 years ; 

Held, that the documents referred to by 
the respondents were public documents with- 
in the meaning of Section 74 (1) (iii) of the 
Kvidenoe Act, and documents (fc) (d) and (c) 
and thair eontcuts were sufficiently pioved 
by their production under Section 80 of the 
Act. Similarly, under section 90 the other 
documents were to be presumed genuine. 
Under Section 35 the descriptive roll, the 
entry in the Municipal Register of Deaths in 
1884, and the Patwari's statement about the 
entry in the Revenue papers in 1246 Fasli 
were clearly relevant evidoace. 

An acknowledgment of liability by a 
minor is not efficacious within the meaning 
of section 19 of the Limitation Act — 8 Bom., 
90, 16 Mad., 227 ; 9 P. B., 1897 ; 4 Af. ifi TT. 
653, referred to. ANIS-UL-REHMAN KHAN 
r. BENI RAM. p. R., 59 of 1901. 

73. S- S5.— Entry in Waj b-ul-arz— Chs- 
tom — Alluvion, diluvion — Eiyhts of adna 
jnaliks in lands submerged in riucr— Onus — 
Summary Settlement — Punjab Land Revenue 
Act (XVII of 1SS7) Section '44. 

Plaintiffs were Adna maliks in the vill.Tge 
whose lands after having been submerged in 
the river Ghenab had recently come out and 
been taken possession of by the defendants, 
the Ala maliks. Plaintiffs sued for their re- 
covery and were met by the plea that under 
the provisions of tlio ivajib-ul-arz of 1879 their 
lights had boon lost in cous-'fjuenoe of the 
eubmersion. The wajib-ul-arz of 1866-67 con- 
tiined no such provision and showed that 
there were then no Adna maliks created on 
the adhlapi tenure. Plaintiffs did not con- 
tend that the clause in tho wajib-ul-arz of 
1879 operated as an agreement. 

Held, that the rule that the owner o{ 
laud which is under water retains his right 



Sup: Govt, acts (I of 1872) (Contd.) 

to the site is a principle not peculiar to any 
system of municipal law but is one founded 
on univerxa! law and j istioe. Judged by this 
standard plaintiffs' right was clear and, de- 
fendants who relied on the custom under 
which diluviation worked forfeiture were 
bound to establish it by cogent evidence. 
The evidence in support of the entry in the 
wajib-ul-arz of 1879 was-quite insufficient to 
establish the custom sot up by the defendants. 
The entry alone was not suffioieut proof of 
the custom. The value of an entry which 
ha^ never been held to bo conclusive must 
depend upon the circumstances of each 
case. 

Though the wajib-ul-arz of 1866-67 was a 
document of a summary Settlement and had 
not tho evidential value of a record of a regu- 
lar Settlement under setcion 44 of the Punjab 
Land Revenue Act yet it was admissible in 
evidence under section 35 of the Evidence 
Act and was relevant to show that a custom 
such as was set up by defendants did not 
exist in the village when it was prepared. 
The time between the two Settlements was 
apparently too short to allow of the birth 
and growth into maturity of a binding cus- 
tom. Y. B. L. R.b2\; 59 P. R. 1897 {F B) 
96 P. R., 1879, 152 P. R., 1883, XXIX Cal., 
518, 98 P. R., 1894, 125 P. R., 1889, referred to. 
GHULAM MOHAY-UD-DIN v. FAIZ 

BAKHSH. 121 p. L- R. 1902 = 97 P. R. 
1902 

72 (a). S- ^^.— Death register— Entry in. 

Held, that tho entry in the death register 
kept in thana showing the date of death is 
relevant and must be considered to have been 
made in the discharge of official duty under 
soolion 35, Evidence Act. JASWANT SINGH 
V. RAJA BALBAHADUR SINGH. J. C.'s un- 
published case, I9th Nocember 1S97. 

73- S- 36> 91. lib- -Effect and value of 
entries of mortgages in settlement records — 
estoppel. 

IL'.ld, that entries of mortgages in settle- 
ment records are made in the course of offi- 
cial duty and are relevant under section 35 
Evideuce Act. 

Held, also, that if tho defendants allowed 
tho plaintiff to register himself as the owner 
in the settlement Records, this did not estop 
them from contesting plaintiff's claim to the 
land. 2 L. B. R. 56 and U. B. R., 1892-96 
P. 379 referred lo. MI SA U v. NGA PYAU. 

U B a 1905, P 3 

74. S. 33- — Maps, thakbust — Entries in — 
Evidence — PresJimjjtion. 

Trie Takbust mips are prepared to 
delineate different estates. 

An entry in a takbust map is relevant 
evidence unfler Section 36 of the Evidence 
Act on which a Court may act. 7 C. W. 
N. 193, S. C, 80 Cal., 291, 9 Cal., L. B., 
305 followed. 3 C. \V. N., 99, 18 Cal., 224, 
referred to. 

Prom such an entry a Court may pre- 
sume that the same state of things existed 
at the time of the permanent settlement. 
16 Cal, 108 followed. ABDUL HAMID 



( 177 ) 



CIVIL DIGEST OF CASBS 



( 178 ) 



Sup: Govt, acts (I of 1872) {Gontd). 

MIAN V. KIBAN CHANDBA ROY. BAI- 
KUNTHA NATH BISWAS v. KIRAN 
CHANDAB ROY. ^ C- W- N- 849 — 

75. S- 86- — Thakbuat maps — Evidence — 
Stiit for declaraiion of title and recovery of 
possession — Onus of proof . 

Where in a suit for declaration of title 
to, and recovery of -possession of, certain land 
brought by the plaintiffs on the ground that 
the lands had boon ro-formud on their origi- 
nal site within the village of the i^laintiSs, 
the dofoudants claimed a portion of the lauds 
as their lakhiraj in that mouzah and cjnteud- 
ed that the burden of proving that th.?y were 
mal lands lay upon the plaintiffs and also 
oVi 'oted that the Ihak map of the village, 
wuich showed no such la\hiraj lands, was no 
evidence in a matter of that kind — 

Held, that the Ihak majp was evidence 
in the case, in as much as at the time the 
ihak map was made in the present case, it 
was necessary to show in such maps such 
lakhiraj lands ae might bo claimed, and that 
there was no ground for interference as to 
the oli ction about the patting of onus. 
RAJ K Li MAR PAUL CHAUDHURI v. B\- 
SANTA KUM vE GUHA. 7 C- W- N- 612- 

76- S- Z3- — Thakbust,maps not conclusive 
evidence. 

The Thakbust maps prepared by Revenue 
officers, though relevant, are not a conclusive 
piece of evidence to prove that the lands 
shown therein as comprised in a certain 
estate, are as a fact part of that estate. GO- 
KUL CIIANDKA v. H.\RA SUNDIU DASI. 
9 C' W- N- SS3- {See also No. 23 supra). 

^^. S- 36— -^^(Jps evidence. Permanent 
Settlement of ITifH—Ael IX of 1847— Accre- 
tions to land permanently settled — Burden ef 
proof — Presumption — Bed of naviyuble river. 

Act IX of 18i7 has no application to 
lands included iu the Permanent Settle- 
ment of 1Y93, and the assessment of which 
lands was then fixed for ever. No new 
assessment of such lands can be lawfully 
made. 

In every case the question, what lands 
were inolnded iu the Permanent Settlement, 
is a question of fact and not of law. 

The onus of proving thcvt any particular 
lands were includad in the Permanent Settle- 
ment of 1793 is on those who affirm it. 

It cannot be assurajd that the land form- 
ing the hod of a public navig ible river was 
included in the assessmjnt theu permanently 
fixed. 

Maps and surveys made in India for 
Revenue purposes are official docam^nts pre- 
pare! by competent persons, and with such 
puliioity an i tiotiee to persons interested as 
to be admissible and valuable evidence of the 
state of things at the time tbej are made. 
They are not conclusive and may be sho>vn 
to be wrong but in the absence of evidence 
to the contrary they may be properly judi- 
cially received iu evidence as coii-eet when 
juade. 



Sap: Govt, acts (I of 1872) (Contd). 

Assuming lauds not to be within lh« 
Permanent Settlement of 1793, the last sur- 
vey, made under section 3 of the Act IX of 
1H47, is to bo taken as the starting point for 
deciding, when the next survey is made, 
whether lands are within sections S and 6 
of that Act. But when the question arises, 
whether lauds shown on a particular thai 
or Survey map made since 1793 were or were 
not included in the lands chargsd with the 
assessment permanently fixed in 1793. the 
enquiry is at once enlarged, and it would not 
be right in point of law to act on the last 
tliak or Survey map, and to treat it as deci- 
sive in the absence of evidence to the con- 
trary. MAHARAJA J.VGUDENDRA NATH 
v. THE SECRETARY OF STATE FOR 

INDIA. 5 B L- R-, 1=7 W IS; C 193 = 
30 C 291 (P. C )• 

78- S. SQ- —Topographical Survey map— 
Value as evidence — Presmnption of correctness 
—Duty of Court to settle boundary, when evi- 
detice insu^icient — Second appeal. 

In this case the question was in which 
of two adjacent villages the land in dispute 
was included, the boundary line of the two 
villages being admitted that of the two per- 
guunahs. 

Held, that a Topographical Survey map 
of 18(J9, in which the boundary lino of the 
two perguunahs was given, was admissible in 
evidence under S. 36 of the Evidence Act. 

When pergunnah boundaries are found 
entered in such map, the presumption is that 
the entries were made according to tha 
instructions received. 

S. 30 of the Evidence Act does not 
require that the authority, under which 
a map is prepared, must be authority given 
by statute. 

Granting that the survey maps were not 
prepared for revenue purposes, they are 
official documents prepared by competent 
persons, and with such publicity and notice 
to persons interested, as to be admissible 
and valuable evidence of the state of things, 
at the time they were made. They are not, 
however, conclusive and may be shjwn to 
be wrong, but till then they may be 
judicially received in evidence as correct 
when made (7 -C. W. N. J<J3=30 C. 291 
referred to. 

In cases of boundary disputes, although 
no satisfactory evidence as to possession is 
obtainable, the Court ought to settle tha 
boundary line on the evidence before it. 
(:il C -504 followed.) 

Held, on second appeal, that, iu tha 
absence of bettor evidence, the lower Ap- 
pailate Court ough^ to accept a Topogra- 
phical Survey m\p as evidence of possession, 
as the time tho map was made. GAJHOO 
DAMOB SINGH v. KOTVVOR JAGATPAL 

SINGH, 11 c- W- BT- 230- 

79- S- S3- — Foreign Laio — Judicial notice 
of Zamxiiar Laic, where Courts are established 
by Britain under a treaty. 

Tha p;j,ii,ti3's lands were taken by Rail- 
way authorities and buildings were built 



( 179 > 



CIVIL DIGEST OF CASES 



( 190 ) 



Sup: Govt acts (I of 1872) (Cont'i). 
thereon by them, without any authority trom 
Government or the lauds being, acquired 
under the Land Acquisition Act. The plain- 
tiff sued the defendant for his lands and the 
buildings as accruing to the lands on which 
they were erected without hia consent under 
the English Law. 

Held, that the Sultan of Zanzibar 'has 
retained sovereignty witb-in his territory and 
permitted the English Governirisut to estab- 
lish their courts within his territory to deal 
with particular cases and the Courts so estab- 
lished by Britain are ZaD?Jbai Courts bound 
to take Judicial notice of Zanzibar Law 
(which is Muhammadan Law and under 
which the plaintiff does not become the 
owner of the buildings built by a stranger 
on his land but is entitled to have thorn re- 
moved)!. The courts cannot insist on evidence 
in proof of the Zanzibar Law as if it were 
foreign Law. It is the Lex Loci rei sitae, i.e., 
the Local Law of the country in which the 
land is situate that governs this subject and 
not the law of the parson who happens to. 
buy or acquire land in a foreign country. 
By the mere purchase by an Englishman the 
laud was not transferred to England so as 
to be governed by the English Law. SEC- 
BETARY OF STATE FOR INDIA IN 
COUNCIL V. CHARLESWORTH PILLING. 
26 B. 1 (P- C )■ 

80- S- 42— Sea S. 13 Judgments Nos. (31) 
to (8J) supra. 

8L S- 43- Judgment convicting wife's 
paramour of adultery 24 P. L. ii. iy03. See 
No. S stqyra. 

82- S- 43- Judgment inter alias 9 C. \V. 
N. 402. Hee No. 17 supra. 

83- S- 43- In 1 suit for damages for 
malicious prosecution whether magistrate's 
judgment relevant . 9 B. L. R. 1134. Sec No. 
IS supra, 

84. S- 43- Admissibility of j idgment not 
jnter-partes as to custom. 9 B. L. R. 65 = 31 
B. 143. See No. 33 supra. 

85- S- 43- Previous judgment not inter- 
partea that a particular person was not of 
sound mind based on a medical man's letter 
is inadmissible in evidence 154 P. L. R. 1901 
= G P. R. 1902. See No. 32 supra. 

86- S- 44 — Administraior' s suit for rent 
— Tenant's plea — Letters of administration ob- 
tained by fraud untenable. 

Plaintiff, having obtained letters ol ad- 
ministration as the adopted son of the deceas- 
ed landlord sued the d<3foudaut tenant for 
rent. The defendant objected alleging tha,t 
the leUoi-3 were obtained by misrepresenta- 
tion of plaintiff's adoptioa by the deceased. 

Held, that assiiming the letters of ad- 
ministration were an order within the mean- 
ing of S. 44 Evidence Act the plea of tho 
defo-ndant that the letters of administration 
were obtained upon a misrepresentation of 
the fact that the plaintiff was the adopted 
EOn of the landlord was not sufficient to en- 
title the defendant to go into evidence lot 



Sup: Govt- acts (I of 1872) (Contd). 

the purpose of proving that the letters of 
administration were inval'id in law. 

That the executor or ad md nistratojr, as 
the case may be,, of a deceased person is hia 
legal represeutative for all purposes and all 
the property of tlie deceased person vests iu 
liim as such. 

Tliit the plea that tiia plaintiff was n-ot [| 
the adopted sou and letters of adniinistratioQ 
were obtained by misrepresocitatiftn could 
not be successfully made so long as the letters, 
were not revoked by a compatent Court. 27 
Cal, 11; 6C. W. N. Cat, l)il, distin-guiskcd. 

That the payment of rent by the defend- 
ant to the plaintiff would indemnify bira 
against all claims mide against him for the 
rent by any person whatever claiming aa 
rHpresontativo of the landlord. AMBIC;A 
CHURN DAS V. KALA CHANDRA DAS. 

10 C W N- 422 

87- S- 44 — Decree obtained by fraud — Jie- 

■>nedy. 

Altlioitgh a court can not set ttsidfl. a. 
d'ec-ree pissod by another court on the ground 
of fraud, yet it can consider whether the- 
decree was oltained by fraud or collusion, 
and if it .so finds it miy treat the decree as a 
nullity. KEDAR N\TH MUKERJI v. PRO- 
SONNA KUiI.\R CHArTEllJI. 6 C- W- 
N- 559. fSf^ alsoS. au and 11 C. P. C). 

88'--S- 44 &40, 41, & 42 Res Judi- 
cata — Competence of party against whom a 
former judgment is set up as constituting res 
judicata to show that such judgmmt was ob- 
tained by fraud or collusion — Custom — Saraogia 
— Alleged custom of exclusion of datighters 
from inheritance to tluiir fathers set jtp but 
not proved. 

When a subsisting judgment, order or 
decree, which is relevant under s. 40, 41 or 
42 of the Evidence Act 18V2„is set up by one 
party to a suit as a bar to the c-la,im.of the other 
party it is not necessary for the party against 
whom such judgment,, order or decree is set 
up to bring a separate suit to l>ave the 
same set aside, but it is open to such party 
iu the same suit in which such judgment, 
order or decree- is sougVit to be used against 
him, to show, if such be the case,, that the 
J idgment, order or decree relied upon by 
ihe other side was delivered by a Court 
not competent to deliver it, or was obtaia- 
ed hy fraud or collusion. Nistarini Bassi 
V. Nundo Lall Bose, {I. L. R., 26 Cal. S91) ; 
Rajib Panda v. Lakkam' Scndh Mahapatra, 
(I. L. R., 27 Cal. 11) and Bansi Lai v. 
Ramji Lai, (I. I/.. R.^ 20 AH. 370) referred 
to. No custo-m. exists in the North-Western 
Provinces of India amongst the members 
of the Saraogi community hy reason of 
which females are excluded from inherit- 
ing the property of their fathers. — -BANSI 
LAL V. DHAPO, A,- W- N-. 1902 P- 38= 
24 A 242 

89. S- i\.. — Decree obtainedby fraud — Court's 
poicer to treat it null. 

Where the owner of a considerable 
property, by defrauding a coort cauBed n 



( 181 ) 



CIVIL DIGEST OF CASES 



( 182 ) 



Sup: Govt, acta (I of 1872) {Oontd.} 

ducreo to be passed against himself as 
defcndnt in a .collusive suit, upjlding a 
ficticions Wakfnama wbicb meant to tie up 
the property in perpetuity for the benefit 
of the direct descendants of the Kakf to 
the exclusion of his collateral heirs, it was 
held in the heirs' snit for possession of the 
property (1) the fact that it was their 
predecessor in interest who perpetrated 
the fraud, did not delmr thorn from showing 
that the decree was a fraudulent and col- 
lusive one and (2) that the Court, on fraud 
leiug proved, was justified to treat the 
decree as a BuiUity, a)though the decree 
■was passed by a different Court. The rule, 
that no person who is a p^irty to a fraud, 
is allowed to plead the illegality of his act, 
has no application to persons claiming 
through them, wbea they are the losers 
by the fraud. Nlstarini Dassi v. Nundo Lall 
hose (I. L. B., 20 Gal. 89i;, Baiidon v. Becher 
(3 CI. and Fil., 479), liajib Panda v. Uak- 
han Sendb Mahapatra (I. Ii. R., 27 Cal. 
11), Ahvicdbhou V. Vullceblioy Cassumbhoi/, (I. 
L. R. G Bom., 703>, Prudham v. Phillips (2 
Ambler, 763) and Williams v. Lloyd (5 Bing. 
N. C, 741), referred to.— BARK.\T-UN-NIS- 

SA tJ. FAZL IIAQ, I. L- E-, 26 A- 272 
=A- W H , 1904, p- 2d 

90- S 44- — Consent decree binding. 

A consent decree, unless it was obtained 
by fraud or collusion, is as much binding on 
the parties thereto as a decree in a contested 
Buit. A party cannot escape from it simply 
by pleading that his consent thereto was given 
by his pleader in excess of his authority. A 
party setting up fraud or collusion will have 
to prove it. BAIKUNTHA NATH RAI v. 
MOHENDRA NATH ROY. 1 C- L- J- 65- 

91- S- 45- — Expert evidence, caution 
against 

In the expert witnesses there exists a 
tendency to support the view which is favox- 
Bblo to the party who employs them so that 
It is difficult to get from them an independ- 
ent opinion which may help the- Court. 
BOISOGOMOFP t). NAHAPIET JUTE CO. 
6 C- W- N- 495-^29 0- 32- (^eeto the same 
effect 1 C. L. J. 3SS, Panchu ilandal v. Em- 
peror, Cr. case.) 

92- S- 35- — Expert's evidence— Interpreta- 
tion of texts — Hindu Law — Adoption — Succes- 
sion — Diverting, of estate — Go-ercioii. Adoption 
by — Authority to adojit to two widows jointly — 
liatiJicatioH. 

The Nidadavole Zaniindari is not impar- 
tible and descendible to a single heir only, 
but is partible according to the ordinary 
Hindu Law applicable to co-parcenary pro- 
perty. Such questions must be decided in 
each case according to the- evidence given in 
it. (17 I. A. 134, followed). 

An adoption made under coercion is not 
void under Hindu Law. It is only voidable 
an.d ma.y be ratified. It is not void if it is 
in consideration of avoiding a threatened 
criminal prosecution, lor a felony which did 
not exist la fact. 



Sup: Govt, acta (I of 1872) CGomd). 

An adopted son is not by reason of the 
adoption divested of the estate which may 
have become vested in him prior to his adop- 
tion. 

An authority to adopt is not invalid on 
the ground that it was a power granted j )int- 
ly to two widows. 

An authority to adopt to two widows 
jointly may bo exorcised after the death of 
one by the surviving widow. 

The question of interpretation of Hindu 
Law not being a question of foreign law can- 
not be referred to experts i or opinion. VLN- 
KATA NARASIIIHA APPA ROW v. RAN- 
GAYYA APPA ROW. RANG.-VY'YA APPA 
ROW V. VENKATA NARASIMHA APPA 
ROW. SRI RAJAH RANGAYYA APPA 
ROW BAHADUR v. PARTH.\SARADHI 
APPA ROW. PARTHASARADHI APPA 
ROW V. RANGAYYA APPA ROW BAHA- 
DUR. 16 M- L- J- 178=29 M- 437- 

93- S- 47- — Handwriting — Evidence — Cross- 
examination. 

When a witness in his examlnation-in- 
chief makes a statemeut identifying the hand- 
writing of a pirticular person be need not 
stale in the first instance how he knows the 
haudwritingj since it is the duty of the oppo- 
site party to explore on cross-examination 
the source of his knowledge, if he be dissatis- 
fied with the testimony as it stands. 

It is within the power of the presiding 
Judge, and often may be desirable, to permit 
the opposing advocate to intervene and cross- 
examine so that the Court may at that stage 
be in a position to come to definite conclusion 
on adequate materials as to the proof of the 
handwriting. SHANKAR GANGADHAR v. 

RAMJi HURJIW.^N. 6 B- L- R- 663 = 28 
B^58- 

94 S- 48, 19 and 60— Family custom- 
Information (liven by deceased — Opinion. 

A witness's statement of his op-inion re- 
garding the existence of a family custom, and 
as the grounds there of information given 
by the deceased persons, is admissible, but 
this must be an indep-iudent opinion of the 
witness based on hearsay and not only re- 
petition of a hearsay- As to the weight of 
such evidence, regard must be bad of the 
position and character of the witness and of 
the persons on whose statements the opinion 
has been formed by the witness. — GARURU- 
DKWAJ\ PERSHAD v. SAPARANDHW- 

AJA. 5- C- W- N- 33- 

95 S- 48 — Custom — Opinion of witnesses 
v'ho give ci-idencc — Opinimi of Judge who 
does not take evidence. 

A general custom or general right must 
be proved by evidence. Under S. 48 of the 
Evidence Act, the optinion of persons wto 
woulii l'" likely to know of its existence, if it 
existedi are relevant, but such opinions must 
be eiv^n by witnesses who give evidence. 
Wherei therefore, there was no evidence given 
of auy custom, and Lower Appellate Court 
dismissed an appeal because the Judge 
though'' tli^t 'I'a Judge o{ the original Court 



CIVIL DIGEST OP CASES 



< 184 ) 



Bap: Govt, acts (I of 1872) (Contd). 
ought to know what the custom was and 
that his opinion might be accepted. 

Held that it was admissible to act as the 
Appellate Court did upon the opinion of the 
Judge of the Original Court as to the exis- 
tence of the custom. MAUNG ON v. MAUNG 
SHOWE BVVIN AND ANOTHER. 1 1. B- 
R 1900-02, P- 80 

96 S- 43— See Ss. 13 (b) 32 &c. No 32 C. 
6. No 28 supra. 

97 S- 49— See Ss. 48 and 49 = 1. L. B. R. 
1900-02— No 95 s«j))a. 

98 S- 49 and 60 — Usa^e — Evidence — 
Opinions of persons having special means 

of knowledge founded on information re- 
ceived from deceased members of the fami- 
ly are admissible in evidence under S. 49 
and 60 of the Act. 23. A. 37 followed. 
SABABJIT PARTAB BAHADUR SAHI v. 
INDEBJIT PABTAB BAHADUR SAHI.— 
2 A- L- J. 720 

99. S- 50 — 'Mahom''Aan Law — Marriage^ 
evidence of, where disputed — Omission to men- 
tion nika wife in will made after marriage — 
XJnchastity of rcidow as disentitling her to 
maintenance— Charge not specifically raised in 
jyleadings or issnies. 

The omission, in a will made after an 
alleged nika marriage, of all mention of the 
niha wife, is, so far as it goes, an item of 
evidence against the man-iage having taken 
place ; but its cogency must depend on 
whether the circfm.itances of the marriage 
made it natural thaf. the wife should be an 
obj 'Ct of the husband's testammtary boanty 
and improbable that he should have left her 
to depend on her legal right to maintenance. 
In this case, it was held that the circum- 
stances of the marriage made it not unlikely 
that the testator would have taken the latter 
course. A draft of the will, written by "a. 
person other thnn the testator, tendered, as 
iurnishing similar evidence to that afforded 
by the will, was held to be rightly rejected as 
evidence, not being a written statement by 
the testator. A charge of unchastity as dis- 
entitling a widow to maintenance must bo 
specifically raised in the pleadings or issses. 
Where there was no averment of, nor issue 
as to such unchastity, it was held that the 
defendants could not found any such allega- 
tion on their general denial in the plea lings 
that the plaintiffs (the widow and her daugh- 
ter) were entitled "to maintenance, and on an 
issue " whether the plaiutifis are entitled in 
any event -to maintenance or marriage es- 
P'uses." H.Ul SABOO SIDICB: v. AYE- 

SHaBai. 6B L. a. 475 = 7 0- W N- 635 
=30 L A 125 27 B 485. 

100- S- 57.-S00 Sections 32 (i) and (5), 
35 and 57 8 O. 0. 94 No. 50 snpra. 

101- S- 57 (8) & {lS)-~L,imitalion Act AT 
of IS?/', S. .5, 6 — Extension of period of Limita- 
tion— Beat Act (XXII of 1SS6) Ss. lOS. CI. (15), 
1S2 — Llinilation provided by special enactment. 
Evidence of corresponding dates of different 
eras — Oiidh Judicial Calendar. 

In a .suit under S. 103 (15) Oudh Ront Act 
1830, the District Judge in appeal held the 



Sup: Govt, acts (I of 1872) (Conm, 

claim in respect of 1330 Fasli barred inas- 
much as that year, according to the Oudh 
Judicial Calendar, ended on 23th June 1896, 
and the suit was instituted on 26th June 
1899. The 25th June 1899 was a Sunday. 

Held, that the provisions of S. of the 
Limitation Act did not apply to suits under 
the Oudh Rent Act, which is a Code oompleta 
in itself and contains rules of limitation 
complete in themselves. 

Held, also, that under S. 57 Evidence Act 
a Court, in order to decide what particular 
date in the English Calendar corresponds 
with a certain date in the Fasli year, may 
resort to appropriate books or documents of 
reference such as an almanac compiled ex- 
pressly to show corresponding dates in differ- 
ent eras. The Oudh Judicial Calendar is not 
compiled for such purpose. Maxim actus 
curioe neminem gravabit explained. R.\- 
GHUBAR DAYAL v. SHEO CHABAN. 

40 C 182=3B E 113 

102- S- 5S-—'^on-regislration. 

Where a documont is by reference in- 
cluded in the plaint or written statement 
and its terms and execution admitted oa 
the record by the pleadings, it is not neces- 
sary to prove it or put it in evidence and 
its non-registratio'i is immitevial — .See Bud- 
dhist Law— Inheritance.— MAUNG KYAW 
YAU & 7 OTilER^ V. MAUNG PO WIN 
& ONE. TJ- B- R 1904, p. 1 (.3-/idonc8). 

103- S- 58, dl—Eviden'lary admissions 
and aimissions by the pleaiin^p distinguished. 

Held, that an admiss^oa by defendant 
(in his preliminary examination) of an 
agreement alleged in the plaint was not 
excluded by sootion 91, Evidence Act, and 
rendered proof of the agreement unneces- 
sary. SADHU V. NG\ S£ GYI MI MI. XJ- 

B R. 1907 P 1- (Evldaac©). 

104- S- 60— See S. 49 & 60—2. A. L. 
J. 720 No 93 supra. & 23 .1 37 No 53 snpra. 

105- S- 63- — Forest Lands — Forest and 
waste lands — Bebuttable presumption of Govern- 
ment ownership — Conclu-;ive presumption un- 
(ier Hindu and Muh unniadin Lroiu — W,irg 
land— Bights nf wargdar over waste lands 
adjacent io his cid! ivated land — Kuma'ti and 
Nctticut rights — Act.i of user and occupation 
consistent with proprietary right of Oovern- 
ment. 

There is a general presumption that 
forest and immemorial waste laud in South 
Canara, not exclusively occupied by any 
person or body of persons, is the property 
of the Governurent. In the case of large 
tracts of immemorial forest on the ghats 
and elsewhere in .-'oath Canara, there is 
a presumption of fact that they are Govern- 
ment forests, though such a presumption 
is rebuttable, by proof of private owner- 
ship in regard to any particular part of 
the forest In the case of forests of seoond- 
ary growth, the presumption will usually 
be that th'^y belong to some private owner, 
but this may be rebutted by showing that 
any portion iorms part of » warj; that was 



( 185 ) 



CIVIL DIGEST OF CASES. 



( 18C ) 



Snp: Govt, acts (I of 1872) {cmitd.) 
") Rbandoned or forfeited or escheated to 
government, or by showing that it was not 
part of a warg but was cultivated as Kumri. 
In order to rebut the presumption of Govern- 
ment ownership in forest and immemorial 
waste land, it is necessary that there should 
be proof of the exercise both in the past 
and in the present, of acts of undoubted 
ownership, such for instance as, the grant- 
ing of leases to tenants for cultivation, and 
the cutting of valuable timber trees for 
sale, and not such acts as the Government 
permits in forest and waste laud for the 
benefit of the adjacent cultivation. "Kuraaki" 
and "Notticut" privileges, which are conceded 
to all wargdars for the better enjoyment of 
their warg lauds adjacent to Government 
{orest do not, by any means, prove exclusive 
proprietary right as against Government. 
"Nettieut" privileges are enjiyed by such 
wargdars as have their wargs situated in 
valleys lying between the slopes or ridges of 
hills. Each ridge or Nettieut forms a natural 
boundary within which the cultivator grazes 
hia cattle. Kumaki lands are lands which 
are allowed to be used in assisting cultivation 
and they are intended to afford to the ryots 
the means of procuring leaves for manure 
and to furnish fodder for their cattle. His- 
tory of the Revenue System obtaining in the 
District of South Canara reviewed. Sublaraya 
V. Krishnappa, (I. L. E., 12 Mad. 4'2'2), ap- 
proved. Bhaskarappa v. The ColUctor of 
North Canara, (I. L. R., 3 Bom., 452), approv- 
ed and followed. SECRETARY OP STATE 
FOR INDIA V. KRISHNAYYA. I. L. R., 
28 M 257 : 15 M. L. J. 147. 

106 S- 63— CtPii Procedure Code (Act XI7 
of 1882), Section 32 — Parties Misjoinder of — 
Appeal — Question of fact — Appellate Court, duty 
of — Evidence — Adtnission of secondary evidence 
by first Court — Objection on appeal — Limita- 
tion Act (X7 of 1877). Schedule II, Articles 118, 
119 — Adoption — Limitation. 

When the daughter and adopted son of 
the deceased owner of the property sued the 
defendant for recovery of a house on the al- 
legation that the defendant had taken pos- 
Bession of it under a Mamlatdar's decree 
fraudulently cbtained during the adopted 
eon's absence and it was contended for the 
defendant that the suit was bad for mitj lin- 
der of parties. 

Held, that as the plaint showed that the 
daughter did not set up her right to recover 
the property as heiress but claimed it with 
the adopted son on the ground that the lat- 
ter was the son of the deceased owner and 
that she lived with him aad was disposses- 
sed with him by the defendant, the oV j ;o- 
tion was not valid. 

Where a question mainly depends upon 
the credibility of conflicting witnesses the 
Appellate Court must accept the conclusion 
arrived at by the original Court unless there 
be cogent reasons against it. The question 
whether secondary evidence was in any given 
case rightly admitted is one which is proper 
to be decided bj ih» Judge oi &!•( ia^tance 



Sup: Govt, acts (I of 1872) (Conid). 
and is treated as depending very much on 
his discretion. His conclusion should not 
be overruled except in a very clear case of 
miscarriage. 

The interference mentioned in article 119 
of the second schedule of the Limitation Act 
as a condition of tlie application of that 
article so as to bar the plaintiff's right alto- 
gether is obviously an interference which 
must amount to an absolute denial of the 
status of adoption held by a plaintiff and an 
unconditional exclusion of him from the en- 
joyment o! his rights in virtue of that statils. 
The article can have no application to a case 
where the facts suggest that the interference, 
such as it was, was intended to have no 
greater effect than that of postponing the 
right of the adopted son to succeed as heir 
to the property of his adoptive father. 

Article 119 is to be applied only where 
the question is not as to the factum but the 
validity of an adoption, but article 118 is ap- 
plicable to a suit where the plaintiff claims a 
declaration that an alleged adoption wag 
invalid or nev>'r in fact took place. NINGA- 
WA V. RAMAPPA. 5 B L E , 708- 

106 (a) A2>plication for Letters of Ad- 
ministration with copy of will, proved abroad, 
annexed — Original will deposited and registered 
in Scotland — Copy produced being copy certi- 
fied tinder the hand and seal of Notary Public 
to be true copy of origiiiaX granted by Assistant 
Keeper of Register of Deeds — No certificate of 
having been compared with original — Not 
shown to be admissible in England — Copy not 
admissible under S. 63, Evidence Act. 

Where, in an application, under S. 180 
and 212 of the Succession Act, for Letters of 
Administration with copy of the will, proved 
abroad, annexed, the original will, described 
as a trust disposition and settlement having 
been deposited and registered in Scotland, a 
copy certified under the hand and seal of a 
Notary Public to be a true copy of the origi- 
nal granted by the Assistant Keeper of the 
Register of Deeds, neither purporting to be a 
copy made from the will itself nor bearing 
any certificate that it had been compared 
with the original, nor shown to be a copy 
admissible in England to prove the original 
was produced. 

Held that the copy produced was not a 
properly authenticated copy of the will and 
inadmissible as secondary evidence, under 
S. 63 of the Evidence Act, and that the appli- 
cant should produce a copy certified, by the 
Keeper or -Assistant Keeper of the Register, to 
be a true copy of the original will. IN THfi 
MATTER OP THE EST.\TE OP ADAM 
ROBERTSON WHYTE, li Bur. L. R. 33. 
107. S. 63, 65, 66-— Evidence Act {I of 
1873). S 61, 65, 86 — Secondary evidence, adinis- 
sil)lity of — Objection to, reception of evidence. 

No objection should ba allowed to be tak- 
en in the Appellate Court as to the admissi- 
bility of a copy of a document which was 
admitted in evidence in the Court below with- 
out any objection. Katneshivar Persliad v, 
AmaniiiiuUa, (I. L. B. 26 Cat. S3) dissented 



( 187 ) 



CrVIL DIGEST OF CASES. 



( 188 )> 



Sup: Govt, acts (I of 1872) (cxmtd). 
from.— KISHOEI LAL G03WAMI. v. 
BAKHAL DAS BANERJEE, L L- E-.- a 

G, 155' 

108. S. 63, 65, 90, lli-~Cdpy of docu- 
ment — No evidence that original could not be 
■produced— Secondary evidence — Presvmption. 

In a suit to recover possession of laud the 
defendant relied principally on a document 
•which was filed in the Munsif's Court in sup- 
port of his title. According to the evideuce,- 
this document had- been prepared vrith refer- 
ence to a document of an earlier date.- This- 
earlier document v?as not produced, though 
it was admittedly in existence, nor was it 
Bhown that it could not have been produced. 
The Munsif decreed in plftintifTs favour. On 
appeal, a copy of the earlier document was 
produced and filed. 

Held that al' hough the exhibit was ad- 
missible as secondary evidence,, it was only 
secondary evidence of the contents of a docu- 
ment. There was no evidence that the docu- 
ment, of the contents of which the exhibit 
was evidence, was in fact executed in 1S62 
between the parties mentioned, andinasmiaoh 
as the exhibit was a copy ar.d not the origi- 
nal, the presumption which, under S. 90 of 
the Evidence Act, may bo made where a docu- 
ment over thirty years old is produced, ought 
not to be made. KItctter Chiinder v. Khctter 
Paul S reel erulnc, (I. E. R., 5 Cal; 886), rofer- 
Bd to. APPATHURA PATTAR v. GOPALA 
PANIKKAR, I. li. R., 25 M. 674. 

109- S. 65' — Evidence— Copies of docu- 
ments. 

When a copy of a document has been 
produced and admitted in evidence without 
objection in a Cour:tof Pii-st Instance, the ob- 
joction that it is only a copy and not the ori- 
ginal cannot be raised in the Appellate Court. 
Akbur AH v. Bhyea Lai Jha, (1880) I. L. R.- 
6 Cal., 366; Chimnaji Govt nd Oodbole v.Din- 
l.ar Dhondcij fiof?6o2c, (1886) I. L, R.,.IIBam.. 
320; cited. THET SHE v. ]\iAUNG BA, 
3 L B. R. 49 

110- S. Q5.— Admissibility of opinion — Ex- 
eiusive vse of trade mark. 

Held that the evidence- of persons stating 
that in their opinion by the use of a particu- 
liir trade mark by persons other than the ori- 
ginal proprietors of that trade mark would 
doecivf, or not the under purchasers is in- 
admiSoible. KOOROO Di'^EN SAHAB u. 
CHARLES SNOWDKN 15. BC Ii. J. 45- (see 
trade mark). 

111. S- Q5.—P.egiHration Act (III of 1877) 
Section 17 (n)— Receipt for payment of mort- 
gagc-motiey . 

A receipt for part payment of mortgage- 
money which does not purport to extinguish; 
the mortgage is not compulsorily nsgister- 
able. 

Though a receipt which purports to ex» 
tinguidh the mortgage is inadmissible in evi- 
dence for want of registration, the fact of 
payment may be proved aliunde. W. N. All., 
1887, p. 188, followed. AMIR v. DIALA 

MAL. aa. P. B. 1304. 



S«p: Govt, acts (tof 1872) (ConW): 

112- S- Q5.— Certified copy from the liegii 
tration offi,ce if admissible —Secondary cvidenet 
— Piihlic document. 

A certified copy obtainedfrom the RegU- 
tration office is not a copy of the original 
document and is not therefore admissible 
under section C5 \c) or (f). Bottho copy con- 
tained in the books of the registration office 
is itself a public docum--.il, aud a certified' 
copy of that copy b3ing a copy of a public 
documsnt: is therefore admissible assecondary 
evidence, provided that the case can be- , 
brought under clause (a) or (cj of seetion-6.5i 
13 C. P. L. R,, 117 dissented from. 10 C P. l>. 
«., 50 dislinyni^:hed. RADHA KISHAN 
MARWARI V. MT. SONA BAI asd OTHERS. 
17 C P L- n , 1904, P 181- 

113 {ai. S- 65.— See Sections 13, 6s, 66 (2). 
7 C. L. J. 90..NC. 34 (»)-.^'«prai 

iia. S' 65, 91 & 22-— Cause of action - 
Suit on a promissory note^Note inadmissible 
ill evidence — Plaintiff not allowed' to set up a 
case outside the note. 

WhsQ money is lent on terms contained^ 
in' a promissory note given at ll>e time of the 
loan, the lender suing to recover the money 
so lent must prove those terms by the pro- 
missory not-3. If, for any reason,. such as the 
absence of a proper stamp, the promissory 
note is not adm.iBs:ble in evidence, the plain- 
till is not entitled-to set up.- a case indepeud- 
ent of the note. Shdhh. Akber v. Sheikh Khari, 
(I. L. R. 7 Cal., 256) and Badhakant Shaha v. 
Abhojchurn Milter (I. L. R., 8 Cah, 721) fol- 
lowed. Pramalha Nath Snndal v. Dioarka 
Nalh Den, (I.E. R., 23 Cal., 8.5y dissented, 
from, kira Lai v. Data Din. (I. Ij- E>, i All., 
135) referred to. PARSOTAil N.sRAIN v. 
TALEY SINGH. A- W- N-, 1903,. P. 217 = 
28 A- 178- 

113 (a). S- 65 (e), 74, 79 & m.-^dmis- 
siou of party — Certified copy of statement iii a 
previous siiit — .idmi^sible. 

Certified copy of a statement, made by a 
party to the suit in a previous proceeding, is 
admissible as evidence of au admission con- 
tained in it, under sections 65 (c), 74, 79 and 
80 of the Evidence Act. NATHA v. HUR' 
MAT. SI P P..- 1903- 

114 S. 65 (e> and (f) and Ti (2)— 

Public dosument— Certified copy of registered 
document if admissible — Registration Act S. 57. 

Plaintiff sued on certain mortgage deed. 
Defendant denied exeeufeion and alleged that 
it was all forgery. None of the above deeds 
were produced and it was contended that the 
plaintirf could succeed by producing oerti-, 
fied copies of the deeds without first proving 
their loss. 

Held ths.t by registration a private do. 
cument dees not become a public document 
under S. 74 cl:,(2). 

iii>J(? also that the last clause of S. 57 o£ 
the Rfegistration Act was not intended to- 
override the provisions of the Evidence Act_. 
(7. 0. C. 327 overruled. 22. W. R. 303 refer, 
ed to). RAJGOBORDHAN SINGH v. Ml 
NASIBAN. ^: 0- C 365- ; 

115 S 65 ie) -Statement a$ to contents of 
Public Records— 



( 189 ) 



CIVIL DIGEST OFCASES. 



( 190 ) 



Sup: Govt, acta (I of 1872) {Contd.) 

I u order to ascertain the history of cor- 
taiii propei'tios in suit, tlie Judgu took the 
evideuco of tbo record-keeper and clerks in 
charge of the records and regist'Ts, regard- 
ing tiic gfincnil result of their uxam^nation 
of these doojments,, and. it did noi appear 
that llio docnmeuts could; be conveniently 
examined in Court. 

IRlil.thatj under suohi circumstances S. 
G.5, cl. (o) of tbo Evidence Act, does not re- 
quire that certified copies of the records 
should be produced, under cl. (g).Si 65 the 
Judge acted. rightly in this case. IwXNI SUN- 
BER KOKR V. CKANDRESH-WAR PRO- 
SAD' NAR.\YAN SING. IIQ. W N. 501-34 
C- 293' 

115 (a) S. 63 (2)— See S: 1.3, 66 and'66{2) 
—7 G. L. J. ',)U— No 34 (a) Sui>ra. 

116 S. QS— Section (j3— Attesting tuitrxss— 
Mortcjage-dced. 

A writer of a deed is an. atte.^ting wit- 
ness within the meaning of Section G8 of the 
Evidouce Act, if lie was present and saw the 
execution of the deed. Though he was de- 
scribed in the deed a& its writer and not an 
attesting witness. 2U All., 582, referred to. — 
BAJNABAIN GHOSH v. ABDUR RAHIM. 
^W-N., C, p. 464-. 
117- S. e»--^tlc!.latwn. 

Where a mortgage-bond, wliicb was, on 
the face of it, attested by more than two wit- 
nesses, but WHS proved by only one of them 
and its execution was not denied. 

//t'W,.that having regard to Section- G6 of 
the Evidence Act, the document may be 
taken as properly proved. NAND KISHORE 
liAL V. RANEE R.iM TIWARY. Q W. W., 

C,395=a8C 355- 

118. S. 6S--—^Iortgagc deed— Attesting wit- 
ness not oalicd if admissible as a vioney bond. 

Where an attesting witness is necessary 
to the validity of au- instrument, a person 
who was such witness must be called if alive, 
capable of giving evidence and subject to the 
grocfss of the Court, whatever the purpose 
for which' the instrument is produced may 
be S. 68 applies only where an instrument 
cequirod by law to be attested is attested and 
not where the instrument itself does not bear 
the necessary attestation. It is impossible to 
WVer a particular covenant in the document 
from the document without considering its 
execution as a whole. Where a mortgage deed. 
Inquired by law to be attested by two witnesses 
was put in evidence but no attesting witness, 
though ft'llve and •capable of giving evidence, 
was callfed. 

mid, that the deed was inadmissible in 
evidence for the purpose of proving the per- 
Eonal covenant to pav the money. VEER- 
APPA KAVUNDAN i-' EAliWSAMT KAVUN- 

B-AN. aM L T, 175=17 mr. l. j. 213^ 

80 M 251 

119. S. 68, 69 & \l^.— Attestation. 
Held,, that where a will was executed' 

before Act I of 1S69 (Oudh Estates Act) came 
into force S. 19 of that Act was not appdicable 
to it. The Mohammadan Law does not re- 
g,uire that a will, if reduced to writing, sh&ll 



Sup:(}ovt. acts (I of 1872) (Contd) 

h'3 att-jstod. Sections 6S and 69 Evidence Act 
were thurofore not applicable to the will an4 
th-i pbvintiffs admission in tl^e suit filed by 
the testator before hor d^ath was sufficient 
proof of the will. 

JJ:/ /, further that to a codicil executed 
after the enforcement of Act I of 1.969, S. 19 
of that Act. applied. Th«.b S. mide S. 50 of 
the Succession Act and .-;. 6S of the Evidence 
Act applicable to the codicil. 

H^ld, therefore, that there was no evi- 
dence to the oSect that the testator also 
o-ceoui.jl the codicil. NAJB \N BIBI v. 
ItAZA liaSAEN. 4 O. C. 408. 

120- S. 70 & 114 —!''■«'«/'■'• 0/ Property 
Act (71' of llSi), Section 59—Ecidence Act (I 
of 1872), Secliana 70, 114 -Mortgage-deed. 
Execution of — 

The mortgage-docd in- question showed 
that it w.\s duly signed by two witnesses, able 
to read aud wr»te, cue of whom was the 
writer of the dead. The defendant admitted 
its execution aud registration. The writer 
of th'j deed faljaly denied Jts execution by the 
defend^int in his presence. The other witneaa 
deposed that the executant signed in his- 
preseuce, but he was not able to remember 
whether the executant signed also in the pra- 
sonoe of the writer. The writer's siguature, 
as attesting witness, preceded- that of the 
other witness. 

ll'Xd. that it might fairly be presumed 
that both, the witnojses signed after the exe- 
cution of the documjDt by the defendant, 
and thit presumption w-vs suftijient to sup- 
port the findiug of tlie lower court that tha 
deed was validly executed. 1 R. EccX. R., 
p. 5, r.firred to. JOaENl>RV NATIL MO- 
KHOPADHYA v. NITAI CHURN BUNDO- 
PADHYA. 7 C. W- N- 384. 

121. S. 74. — Certified copy of a previous 
statement 31 P. R., 1903. See No. 113 (a) 
siijtra. 

122. S- 74. — Certified copy of a registered, 
docum.snt. See Sections 60 (e) and 7i 7 0. C, 
36), No. 114 supra. 

123. S- 74. — Public documents — CfnsK5 re- 
gisters. 

Held, that Census registers are not public 
documents within the meaning of section 71 
of the Evidence Act. E.MPEROR v. BHX- 
VANRAO VITHALRA.O. 6 B L. R- 635- 

121. S- ^^■— Public doownmt -Certified 
copy of— 

The statement of a witness in a record 
is pirt of the record of the Acts of un-official 
tribunal under S. 74 and can be proved by a 
cortified copy. SAKINA KHANUil u. LAD- 
r>ANSAHtBA. 2 C L.J. 21s. 

125 S. 74 (Z) -Public document — Inventory 
deposited by Talukdar in D. €':<. office. 

H'Ll, that au inventory deposited in the 
office of the Deputy Commissioner by a Taluk- 
dar or grantee under S. 7 Act I of 1859 does 
not by beiug so depojited become a public 
docum-^nt. S. 74 (2) of the Evidence .\ct does 
not apply to such documents; it refers to pub- 
lic records kept in British India of private 
documents. AZMATUN NI3A BEaAM V, 
SHAHAKA BEGAIVL L Q. 3fi. 



( 191 ) 



CIVIL DIGEST OP CASES. 



( 192 ) 



Snp: Govt, acts (I of 1872) (Cmid). 

126 S- 74 and 77 — Public document — 
Ciriificd copies of kkasras — 

Held, that by S. 8 Act XIII of 18S2 and 
S. 17 Act IX of 1889 "ail official records and 
papers kept by such officer (i-e. the Patwari) 
shall be deemed to be public records and the 
property of Government" and therefore the 
hhasras for certain years produced in evi- 
dence were public documents, and under S. 
TT Evidence Act, they could be proved by 
■producing their certified copies. 

Held, also, that though before the en- 
forcement of Act XIIX of 1882 the Patwaries 
were the servants of the village proprietors 
yet as they used to do public duties the 
khasras prepared by them in discharge of 
such duties were either " public documents " 
or "public records kept in British India of 
private documents" under S. 74, Evidence 
Act, and therefore copies of the khasras were 
admissible in evidence under S. 77, Evidence 
Act. DALJIT SINGH v. THE HONORABLE 
MAHARAJA PARTAB NABAIN SINGH. 

8 a C 304 ^ . ^ „ ^ 

127- S- 77.— See Sections 74 and 77, 3 0. 
C. 204 No. 126 supra. 

128- S- 77- — Certified copy of a compro- 
mise. 

Held, that the copy of a compromise filed 
in Court with au order of Court thereon is 
under S. 77 admissible in evidence and need 
not be proved. MANGAL SEN o. HIRA 
SINGH. 1 A- p. J- 369- 

129. S- 80— See Sections 19, 20 and Sa 
26 A. 108 P. C_, No. 38 supra. 

130- S- 35 & in.— Presumption of iden- 
tity — Power-qf-attoniey executed before, and 
authenticated by a Notart/ PuAUc — Necessity Jor 
affidavit of identity. 

Where an application is made, for letters 
of administration with a copy of the Will of 
the deceased annexed, by an agent of the 
executor under the Will, under a power-of- 
attorney duly executed by the executor be- 
fore, and authenticated by the Notary Public 
and attested by witnesses, there is no neces- 
sity, for an affidavit of identity, S. 85 of the 
Act being mandatory and S. 114 raising a 
presumption in favour of the identity of the 
executant of the power-of-attorney. MYLNE, 
In Ike goods oj. 9 C- W- N- 986=33 CS625- 

131 S- 87 — Reference books — 

The following books were admitted in 
evidence as historical works and books of re- 
ference; .\tkiu's "Historical Account of the 
N. W. P.", 'Manual of. "Titles N. W. P." 
and " Basti District Settlement report," — 
PATESW.\RI PABT.AP NaRAIN SINGH v. 
RUDRA NARAIN SINGH. 1. A- L- /■ 543- 

132 S- 90 — Ancient doctwcent, p'resiuuptioK 
as to — OenuiKencss of signature in isstu — Pre- 
sumption not excluded, btU has to be rebutted. 

It is in the discretion of a Court whether it 
will raise the presumption in favour of a do- 
cument for which S. 90 of the Evidence Act 
provides, but the discretion is not to be ex- 
ercised arbitrarily: it must be governed by 
principles, which are consonant with law 
and justice. And while on the one hand 



Sup: Govt, acts (I of 872) (Contd). 
great care is requisite in applying the pre- 
sumption, on the other hand it is clear that 
very great injustice may be perpetrated, if an 
ancient document coming from proper cus- 
tody is refuted by a Court capriciously or 
for inadequate reasons. When the genuine- 
ness of a document purporting to be an an- 
cient document is put iu issue, it appears to 
have been sometimes thought that any pre- 
sumption iu its favour is thereby excluded, 
but this would deprive the party producing 
it of the benefit of the presumption precisely 
in the circumstances, in which ho most 
stands iu need of its aid. The presumption 
merely takes the place of the evidence which 
wouldt, where a modern document is conceit- 
ed, be necessary for the purpose of proving due 
execution, and it must be met and rebutted 
in the same way as direct evidence of execu- 
tion in the case of a modern document. Mtis- 
samat Phool Bibec v. Goor Suran Dois (18 W. 
R. 485^ Boikiint Nath Kundu v. Lukhun 
Majki, (9 C. L. B. 425) Hari ChiKdtaman 
Dlkshit V. Moro Lakshman, (I. L. R., 11 Bom, 
89) Tra,iUikia Nath Nu7idi v. Skurno Chung- 
oni, (I. L. R., 11 Cal. 5.30) referred to.— GO- 
VINDA HAZRA v. PBOTAP NAR.AIN MU' 
KHOPADHYA,— I. L- E^ 29 C- 740- 

133. S. 90 — Document more than 30 years 

old. 

A Court is not bouud to make a pre- 
sumption mentioned in S. 90 but it has an 
absolute 'adicial discretion, that being satis- 
fied as to the execution of a document to 
such an extent that it will allow the pre- 
sumption to take the place of specific evi- 
dence as to the signatures which the docu- 
ment purports to boar upon it. HANU- 
MAN SHUKUL V RAMCH \RITr.\R LAL,— 

A W. ir 1902 P 28 

134 S. 90— See S.ict 90=31.7. A. 217 = 
26 J. 581 = 7 O. C. 290 Xo. 4 Supra. 

185 S. 90— See S. 32 (5) d 90—9 C. W. N. 
105 = 31 /. A.. 217 = 26. A 5S1 No. 26 Sapra. 

136. S. 90.— Proper Custody. 
Although a manager appointed by the Court, 
of the property of an insane person, ought 
to restore a document in his possesion to the 
proprietor when he is removed from the 
management, his failure to do so does not 
make the custody of the document improper 
within the meaning of S. 90 Evidence Act. 
SHYAMA CHARAN NUNDY v ABHIBAM 

GOSWAMi, 3 C- L- J. 306 = 10 C W. TS- 788 
=33 C- 511- 

137. S. 90— Registration Act (HI of 1877). 
S. 17, iO -Evidence Act (I oj 1872), S. 90— 
Documents thirty years old — Proper custody — 
Presumption — Con'^ructive wotict^Passession. — 
A registered document contained a recital 
of unregistered incombrances, and a question 
having arisan as to whether the recital of 
the unregistered incumbrances amounted to 
notice: Held that registration is at most 
constructive notice and the doctrine of con- 
structive notice cannot be so extended as to 
cover unregistered documents under which 
the holders of registered documents derive 
title- The defendants furthei lelied on their 



{ 103 ) 



CIVIL DIGEST OF CASES 



( 191 ) 



Sup: Govt, acts (I of 1872) rGovtd). 

lioiiig in actual iiosscssion. Possession 
amounts to notice of sucli title as tlie person 
in pos.io^siju may have, aud any other 
person who takes a martgage or other charge 
upon, or purchase-, immoveable property 
without ascertainlug the nature of the 
claim of tlit person in possession, does so 
at his own risk. The general consensus of 
opinion of all the High Courts in India is 
that pj.ssession is at least a very cogent 
evidence of notice which a purcliascr can- 
not with safety disregard, and that section 
50 of the Hogislration Act (III of 1877) does 
not do away with the elfect of notice in 
favour of the registration to which cieteris 
paribus it gives preterouco. 

Per Battij /.— S. 90 of tlie Evidence \ot (I of 
1872) admits a presumption of the genuineness 
of documents purporting to be thirty years 
old, it produced from proper custody proved 
to have had a legitimate origin or an origin 
the legitimacy of which the circumstances 
of the case render prol)able. It is not 
necessary that the documents shall be 
found in the best and most proper place 
of deposit. The section insists only on a 
satisfactory account of the origin of the 
custody and not on the history of its con- 
tinuance. 

I'er Aston, J. — S. 90 of the Evidence Act 
requires that a documcut must be produced 
from the proper custody. SIIARFUDIN v. 

GOBIND.-I. L. R., 27 B. 452- 

138- 3. 80 — 'SVc Scctiunn 4 and 00—110 
r. h. 1!., i'Ji..:. - i;.' v. IL. 2yy~', No. 5 supra. 

1S9. S- 90. — Presumption as to documents 
over SO years eld— Procedure. 

When a document, which is over 30 years 
old, has been tendered, under 3. 90 of the Act, 
it is for the Court to determine, (which is a 
matter for jadicial discretion) whetliev it will 
make tlie prcMimplion mentioned in the sec- 
tion, or will call upon the party to offer proof 
of I ho document, stating its reasons in the 
latter event, aud, in the former, whether the 
presumption lias been rebutted or not. SRI- 
NATH PATllA v. KULODA PROSAD BA- 

NERJi. 2GLJ-592- 

139 (a). S- SO-— Presumption weakened — 
Lessor and lessee — Adverse possession — Lessee 
holding over — Limitation Act, Art 139. 

The Court may jiresumc the genuineness 
of a document more than 30 years old, pro- 
duced from proper custody, but the presump- 
tion may be weakened by circumstances 
tending to raise doubts as to its authenticity. 

A failure to pay rent to the lessor during 
the period of the lease does not alone operate 
to create in favour of the lessee a title by 
adverse possession. 4 C. 314, 7 B. 40 referred 
to. 

If a lessee holds over after the exiry of 
the lease and no arrangement is made for a 
new tenancy time begins to run under Art. 
139, Soh. II of the Jjimitatiou Act, (1877), 
against the lessor from the date of the expiry 
of the lease. 22 B. 893, 21 B. 601 followed. 8 JM. 
424 Diss. MADAN MOHAN GOSSAIN v. 



Sup: Govt, acts (I of 1872) (Gotddj. 

KUMAR RAMESHWAR MALIA. 7 Q. L • 

X, 615- 

139 (b). S- 90 & 102,— Presumption as 
to genuineness of document 70 years old — Bur- 
den of proof . 

A Taluqdar sued one M. for a declaration 
that M. had no proprietary or under proprie- 
tary rights in a certain village. M. produced 
a document 70 years old giving under pro- 
prietary rights in perpjtuity to the ancestor 
of M. executed by an ancestor of the Taluq- 
dar. 

Wld, that the document should be pre- 
sumed to he genuine un.ler S. 90, Evidanco 
Act, and that under 3. 103 of the Act, the 
burden of proof lay on the Taluqdar plr.iutift 
to prove that Jf. had no under proprietary 
riglits. THE DKPat'Y COMMISSIONER, 
RAI BARELf y. MAHESH BAKHSH. 6 0- 

C- 142. 

140- S. 91— Sec S. 6.5 and 'Jl-A. W. .V. 
lOOJ. P. :n7 = -2:;. A. ITS No. 113 supra. 

141- S. 91.— Bengal Tenancy Act (VIII of 
18H5), Section SS — Division of Itolding — Con- 
sent in writing — Dakhila or receipt, if amounts 
to consetit. 

The consent in writing by the landlord 
to the division of a tenure has the effect of 
substituting a new contract for the old. It 
should therefore bo complete iu itself and 
embody distiuctly the terms of th-e new con- 
tract. Should it fail to do so, the principle 
laid down in Section 91 of the Kvldence Aot 
would apply and extraneous evidenoo to 
prove the torms of the contract would be in- 
admissible. 2.5 Cat., 531 distinguished. 

Hiid, upon the construction that tUo 
Dakhila or receipt did not amount to a coil- 
sout in writing Ijy the landlords within the 
meaning of section 88 of the Bengal Touanoy 
Aot. 

Held, also that tlie fact of some of the 
joint occupiers of a j jint tenure paying por- 
tions of the rent due from all, corresponding 
with the shares for which the joint occupiers 
are liable, cannot prevent the landlord from 
suing them all or miking all answerable for 
thj jiiut debt. 21 \V. li. 230, 22 W. B. 20o 
and -Ai IK. B. 234 relied on. JNANENORA 
MOIIVN CHOWDHURY v. GOPAL DAS 
CiiowDHaRY. 8 C- W- N- 923=31 C- 
102S. 

142- S. 91- — Grant — Begistration Act (III 
of i677). Sections 17, 40— Authority to adopt in 
ivritinj and not contained in a will — Djctuiiint 
not a testamentary disposition of property and 
not registered — Invalidity — Admissibility of evi- 
dence of authority to adopt. 

In a suit for a declaration that first de- 
fendant was not the adopted son of plaintiff's 
deceased brother, the first defendant aud his 
mother relied on an authority to adopt which 
was contained in a document which they 
contended was a will of the deceased. This 
document, which had never been registered, 
aud which was the only evidence of the 
alleged adoption, authorised the wife to 
adopt, aud further authorised her to put into 



( 195 ) 



CIVIL DIGEST OP CASES. 



( lOG ) 



Sup: Govt, acts (I of 1872) (Contd) 

the possession of the adopted sou all tho 
properties which the deceased got uuder a 
certain decree, and all his immoveable pro- 
ties, etc. 

Hdd, that the document was not a testa- 
mentary disposition of propery, within tho 
meaning of S. 3 of Act V of 1881. It was an 
authority to adopt and nothing else, and the 
direction therein to put tho adopted son into 
possession of the property could not be con- 
strued as a devise of tho property. It was 
simply a statement of the consequences that 
should legally follow on the adoption. Mussii- 
mat Bhtibum Moyee Debia v Bam Kishore Acharj 
Chowdhry (10 M. I. A. 279 at p. 312), referred 
to. The authority to adopt being in writing, 
and not being contained in a will, its regis- 
tration was compulsory. SOMASUND.-VB.i 
MUDALI V. DUKAISAMI MUDALIAR. J. 

L. R- 27 M- 30 ; M. !• J., 1903 P- 283. 

143 S- 91- — NeciotiabU Instruments — Negoti- 
able Instruments Act (XXVI of liiSl) — Promis- 
sory note— Suit by payee — Defence by tnaker — 
Payee not true owner of note — Parol evidence 
to stipport plea — Admissibility. 

In a suit to recover the amount due on 
a promissory note by the payee named in the 
note, tho defendant pleaded that the consi- 
deration for the note was not advanced by the 
plaintiff, but by a third party on whose 
account the note was taken ; and that as the 
amount had already been repaid to the party 
entitled, the suit was fraudulent and unsus- 
tainable : 

Held, pier Suhramania Ayyar, J., that the 
plea was sustainable. Parol evidence is admis- 
sible in a suit on a promissory note to show 
that the plaintiff is not the true owner of the 
note, if such proof would enable the defend- 
ant to establish a defence valid, as against the 
true owner. 

Per Davies, J., (dissenting) that the 
defendant was precluded from plead- 
ing the "jus tertii ol a person who is not 
even a party to the record. SUBB.A NARA- 
YANA VATHIYARi;. RAMASWAMI AIYAB. 

I. L. R., 28 M- 244- 

144 S- 81 — Contract in writing — Admissi- 
bility of oral evidence as to terms. 

Where there is a proposal in writing for 
a contract to he entered into at a later date, 
it is doubtful if oral evidence of terms, not 
to ha found in the written proposal, is ad- 
missible. MAUNG SHWE OH v. MAUNG 

TUN GYAW, 9C.W.N- 147 (P.C) = 31. 1. 
A- 188 = 32 C- 96- 

145 S. 91 — Will— Evidence — Executor, proof 
of title of — I'robate — Administration, grant of 
— Jurisdiction of Court to modify — Sticcession 
Act (Xof lS65),ss.3, 179, 187 , 360— Sale for 
arrears of rent — Incumbrances, annulment of 
• — Notice — Disclaimer— Bengal Tenancy A cl 
(Ylllof 1885), s. 167. 

Uuder S. 179, 187 and 260 of the Succes- 
sion Act, where probate of a will has been 
granted, the executor, in order to bring a suit 
as such, is bound to prove his title, to do 
which, iu case of dispute, he must file, not 



Sup: Govt, acts (I of 1872) (Vontd). 

merely a copy of the grant of adniiaistra- 
tion, but also the copy of the will attached 
to it, the two together forming the probate 
as defined by S. 3. But a Court, not be ng 
the Court of Probate, cannot go behind 
the grant and interpret aud modify its 
terms by the provisions of the will. Iu 
a suit for possession after annulment of 
au under-tenure uuder 8. 167 of the Bengal 
Tenancy Act, absence of due service of 
notice on a person, who iu the suit dis- 
claimed all interest therein, cannot prejudice 
the plaintiff. But, if tho application for the 
issue of the notice against some of the per- 
sons jjintly interested in tho incumbrance 
was not made within time, the whole suit 
must fail.— DELANERY v. ROH.VMAT ALI, 
I. L. R., 32 C. 710 

146- S- 91- C. P. C. S. 375— Compromise 
need not be reduced to lorlting — Oral evidence 
of its terms under S. 91, Evidence Act- 
Specific Belief Act, S. 9. 

S. 375 of the Code does not require that 
the agreement or compromise itself shall be 
reduced to writing, but only that the terms 
of it shall be recorded in the suit. The 
agreement or compromise itself, that is made 
out of Court, may bo in writting or oral. 
If the Court did not record the terms of 
it, S. 91 is no bar to a suit being brought 
on the terms of the compromise. Moreover, 
S. 375 only allows the decree to be final, 
so far as relates to the sulj !ct-matter of 
the suit. So, when au agrQcmjut or compro- 
mise is made in a suit under S. 9, Specific 
Relief .\ct, the Court's decree uuder S. 
375 does not bar any person from suing 
to establish his title to property and recover 
possession thereof. BI YA v. ON GAINQ, 
3 L- B R- 243- 

147 S. 91.— C;. {b) and 2'roviso (3) of S. 
39 — Whether evidence as to improvements ad- 
missible — Bemoval of stringent conditions in for- 
mer lease -Improvement by landlord, if could 
justify efiliancemeii.t of rent. 

Suit for a declaration that the Kabuliat 
executed by the plaintiff was void, as the 
rent had been thereby enhanced by more 
than two annas in the Rupee and 
that it was executed under coercion aud 
undue influence. Defendants justified 
the enhancement by setting up the fact 
of improvement made by them by the 
excavation of the canal such as was contem- 
plated in proviso (2) of S. 29 of the Act. 
They, further, pleaded that there were string- 
ent conditions in the former lease and since 
the above enhancement of rent was agreed 
upon by the plaintiff in consideration of 
avoiding those stringent conditions from the 
Kabuliat in question, the enhancement was 
not improper. 

On appeal, the District Judge held that 
the question of improvement could not ba 
gone into, evidence regarding the same 
being inadmissible under S. 91 ol the 
evidence Act. 



f» 



( 107 ) 



CIVIL DIGEST OF CASES 



( 198 ) 



Sup: Govt, acts (I of 1872) CContd ) 

JLid, on second appjil, that tho lowur 
appuUato Court ought to liavo gone into 
the questions, wliore tliore was any ' im- 
provement ', within tho moaning of the Act, 
effected by tho landlords, and whether tho 
plaintiff luvd agrejd to the enhanced rent 
in consideration of such improvement, since 
the fact that the writing between tho parties 
contained no reference to any sucli improve- 
ment could njl render inadmissible, evid- 
ence sought to be let in on tho point. 
The consideration for a contract being 
different from the ' terms of such contract' 
in proof of which alone S. 91 of tlic Kvid 
once Act lays it down that ' no evidence 
shall bo given,' that section cannot pro- 
vent the defendants from giving extrane- 
ous evidence as to the consideration. 

Held, also, that the mere fact, that 
certain stringent conditions, which bad 
found a place in the previous lease were 
omitted from the present Kabulint, was not 
sucli a circumstance as could jistify any 
enhancement of rent, much less an enhance- 
ment, as in tho present case at the 
rate of more than two annas in the Kupee 
8. C. 3 33 and 28. C. 'JO distinguished, and 
that the Kabuliat in question was, there- 
fore, void for having contravened tho pro- 
visions of cl. (b) of S. 29 of the Bengal 
Tenancy Act. PROBAT CHANDRA GAN- 
GAPADHYA v. CHIBAG ALI, 33 C- 607 

=4 C. L J- 320. =10 C. W. N. 62- 

148- S- %l—Scc S. 56' it 01— U. B. B. 

19U7. P. 1 (Evidence) No. 1V3 Siqira. 

149- S. 91 — Admissions as to agreements 
rc(piiring rejistratian — Civil Procedure Code 
(Act XIV of 1882), Section 237 A— Execution of 
money-decree — Application embodying agree- 
ment hypothecating immovable property and 
granting time filed by parties in execution- 
proceedings — Objection in a subsequent suit as 
to non-registration of the application. 

In execution of a money-decree an 
agreement was arrived at between the par- 
ties, which was embodied in an application 
filed in Court, under which the equity of 
redemption of the two houses, which had 
been attached, were hypothecated for the 
sum due on account of the decree including 
costs, and four months' time was given for 
payment. The plaintifis applied for execu- 
tion after the expiry o£ the term, but it 
was held that the agreement was a complete 
satisfaction of the decree which was not 
therefore capable of execution. The plain- 
tiffs brought the present suit for recovery of 
the amount due, basing their claim on the 
agreement, and it was contended by the 
defendant that the agreement was void 
under section 257 A of the Civil Procedure 
Code, the application embodying the agree- 
ment was not admissible in evidence for 
want of registration, and the suit was barred 
by section 214 of tho Civil Procedure Code. 

Held, that the proper reading of the 
application was, that it contained merely a 
statement ol the fact that an oral agreement. 



Sup: Govt, acts (I of 1872) (Conid) 

such as was mentioned in tho application, 
had been made previously, the ai)plication 
was not inadmissible in evidence, and the 
suit was not in any way barred. 

The want of registration of an agree- 
ment requiring registration does not invalid- 
ate it, and section 91 of the Evidence Act 
does not prevent admissions made by the 
executant of such a deed to bo admitted 
into evidence iu proof of the agreement.— 
PR\BH DYAL t) GUBIIUKH,— 98 P- R- 
1902=18 P- 111.1903. „ ^ 

150- S- %\—Oral evidence— Secondary evi- 
dence. , 

Where in a pre-emption suit tho ques- 
tion was whether a local area consisting 
of nine villages constituted a Malial. Held, 
that such area did not constitute a Mahal 
under S. 9 Act. XVIII of 1876 (Oudh Laws 
Act) unless such villages were held under an 
engagement for the payment of land Reve- 
nue assessed on such local area. 

In order to prove that they were so held 
it is necessary to prove that there was an 
agreement to pay such land revenue and 
such an agreement was required to be in 
writing by rule 33 under S. 15 and 220 of the 
Oudh Land Revenue Act for tho assess- 
ment of the revenue demand. 

Held, therefore, under S. 91, Evidence 
Act, no oral evidence could be given of 
such an agreement, unless it had bean re- 
duced to writing and the case was one in 
which secondary evidence was not admis- 
sible. SAMSAM ALI v RAM PAR3HAD.— 
4 0- C. 365- 

151- S- 91—4 stranger's rough note for his 
own ?(Si; — Document. 

Where rough notes in writing of an 
agreement by the husband to provide for 
the wife in case of future separation were 
made by the priest merely for his own 
convenience and were not signed by the 
partie,: It was held that they did not 
con-ititute a document under S. 91 Evidence 
\ci in which the terms of contract can be 
said to have been continued. MEHEB 
.\hl V SANKER KHANOO BAI.-?. B L- 

E.-692 on p. 710 

152- S. 91.— Orai agreement to execute a 
leaae for 7 years, if admissiUe — T. P. A. S. 105 
and 107. 

A landlord sued his tenant for rent at a 
certain rate of rent per year at which he had 
paid before. The plaintiff had stated in the 
record that she agreed to give the defendant 
a lease for 7 years at that rate and the defend- 
ant had given her a kabuliat to that effect 
but no lease was written. 

Hdd, that a kcibuliat is not a lease, al- 
though, for the purposes of the Stamp Act, a- 
lease includes a kabuliat, and that under Sec- 
tions 105 and 107, T. P. A. an agreement to 
execute a lease of immoveable property, for 
any term exceeding one year was inadmissible 
in evidence and that its term could not be 
proved by oral evidence under S. 91 of the 
Evidence Act. 



( 199 ) 



CIVIL DIGEST OF CASES 



( 200 ) 



Sup: Govt, acts (I of 1872) (Cont'l). 

Ildd, furtbor, that she could prove that 
she {^ave the defendant a lease for one year at 
a certain rent, and the defendant took posses- 
sion according to the agreement. On this 
proof and the proof of holding over after the 
expiry of the first year the defendant was 
bound to pay rent, at the same rate, for the 
period he remained in possession. Even if 
this was not proved she was entitled to a 
decree as compensation for use and occupa- 
tion of her land by the defendant. 5 0. C 
2S-2, 7 O. C. ICG, 9 M. U2, and 9 C , 908 re- 
/. ricd to. JiT. BAJKUAB v. NABI BAKHSH. 
9 C- 296. 

153- S- 91- — Mortgage deed, containing 
no separate admission of debt or promise to 
repay it, not divisible and cannot be admitted 
in evidence. 

Plaintifi-appellant sued the defendant for 
Es. 170, as legal representative ol her deceas- 
ed husband Po Ni. She relied on a docu- 
ment unstamped and unregistered, D. 12(il 
B. E., which purported to be an instrument 
of mortgage of certain laud. Toe Court of 
first instance admitted the document in evi- 
dence on payment of stamp duty aud penalty 
and holding the execution of the same proved, 
gave plaintiff -appellant a decree. The Lower 
Appellate Court reversed this decision on the 
ground that the evidence was insulHcient to 
prove execution. The mortgage deed con- 
tained no separate admission of the debt or 
promise to repay it. 

Meld, that as the mortgage deed contain- 
ed no separate admission of the debt or pro- 
mise to repay it, it was not divisible and 
could not be admitted in evidence at all. 
S. /. L. B., p. 19o, referred to. JIAUNG PI v. 

MA KIN U. U. B. R. 1901, p. 79. 

154. S- 91 — Promissory note— resorting to 
origi iial consideration. 

Held, that where money is lent on terms 
contained in a promissory note given at the 
time of loan, the Plaintiff is debarred bv S. 
91 Evidence Act from resorting to "the 
original consideration. 1 East 55, II U B 
E. 1S97-01 P. 390 referred to. II U. B. R. 18l>7- 
01 P. 391, 3 A. 717. 4 A. 13.5, 9 A. 351 Super- 
seded. 26 A. 178 12 B 443 followed. 24 B. 307 
3 C. 314, 7 C. 256, 8 C. 721 dissented from. 23 
C. 851, 5 M. 166, 7 M. 112, 10 M. 94, 23 M. 527 
21 W. E. 1, 24 W. E. 88, dissented from — 
KGA WAIK V NGA CHET— U. B- R. 1907 

155- S- %\— (Evidence Act)—Stiit to enforce 
registration— Invalid registration — Time limit 
— Mortgage deed — Admissibility in evidence — . 
Bar to oral evidence — Personal undertaking — 
Agreement to repay loan — Indian Pegistration 
Act, (1S77) S. 17, as, 34, 49, 73, 77— Transfer 
of Property Act, (1SS3), s. tiS. 

In December 1901 A borrowed money of 
B and erecuted a mortgage deed of certain 
land in B's favour. 

In January 1902 B instituted a suit pray- 
ing inter alia for an order to the Sub- 
Eegistrar to register the deed. In June 1903 
be obtj,ined a decree directing that the 



Sup: Govt, acts (I of 1872) fContd). 

deed should, on application, be registered! 
whether A admitted execution and^reccipt 
of consideration or not. I 

The deed was registered in accordance ' 
with this decree in July 1903. 

The present suit was brought by B for 
sale of the mortgaged property and was based 
on the mortgage deed in question. 

Held,— th-\t the former suit not having 
been brought under the conditions required 
for the filing of a suit under section 77 of 
the Indian Eegistration Act, the decree there- 
in had no value as exempting the docu- 
ment registered under it from the necessity 
for compliance with all other provisions of 
the Act. The Court had power to decide 
as to the validity of the registration, and as 
the document was not registered in accord- 
ance with the provisions of sections 23 and 
24 of the Act, it could not, under section 49, 
be received in evidence as affecting the 
rnortgaged property. At the same time sec- 
tion 91 of the Evidence Act precluded B from 
proving the existence of the mortgage by 
any other evidence. 

Held fii rther, — that as the deed contain- 
ed a di-tinct agreement to re-pay ihe money 
borrowed, it was admissible as the basis of 
a personal money decree for the amount. 

Bhagwan Singh v Khnda Bakhsli 1881) I. 
L. E. 3An., 397;£d!(7iv Mohamcd Siddik, 
(1882) I. L. R. 9 Cal., 150: Pathcrpermal Chetty 
V Mooniandy Servai, 11 Bur. L. R., 166; 
Chatter Mai v Thakuri, (1898) I. L. E. 20 All., 
512; followed. 

Pam Ghnlam v Chctcy Lai, (1878) I. L 
E. 2 Alb, 46; Abdulla Klian v Jamki. {lf^[)i) 
I. L. R. 10 All., 303; Sahmiikhnn Ball Pan- 
day V Sah Kiindan Ball, (1875) L. R. 2 I. A., 
210; Sreemutty Matonginy Bossce v Pamnctrain 
Sadkhan, 2 C. L. E., 428; referred to. JfAUNG 
KYAW & MA SAlSr HMWE v. SIKnA:\[- 
BARAJI CHETTY-4 L- B- R. 1807 P- 88. 

155- (a) S. 91. — Promissory note, loss of— 
Proof of confeiils. 

Where a plaintiff bases his cause of 
action of a promissory note, which he al- 
leges had been lost, he cannot prove the con- 
tents, unless he suceeds in proving the 
loss of the document, apart from the note 
in which the contract was recorded. 28 A. 
298. D. SIRAJ HUSAIN v. BULAKI RAM, 

5 A. L. J. 162 = A. W. N. 1808. P. 91- 

155- (b). S. 91- - Promissory note lost — 
Proof of contents. 

A based his claim on a promissory note 
which he alleged had been lost. Held he 
could not prove the contents unless he 
proved the loss of the document. 28 A. 
298 dissented from. SIEAJ HUSSAN v. 
BULAKI EA5I. 5. A. L- J- 162 

155- (C) S. 91 and 82- Question as to 
who uere the parties to a contract— Oral 
evidence. 

The question as to who were the con- 
tracting parties is not a question as to the 
'terms of the contract', within the mean- 
ing of S. 91 and 92 and a plaintiff can give 
(oral) evidence of circumstances which went 



( 201 ) 



ClylL DIGEST OF C VSES. 



( 202 ) 



Sup: Govt, acts (I of 1872) {Vontd.) 

to t.l]ri\v that a ilufciidant signed a bond 
on liii, owa behalf and as; tUo ageut of 
ins pai-tnor, anotUei- dafoudaat 7 Taunt, 
i'.ir, and L. B. G C. P. C. Ex Ch. i80. 
F. Also, 2 H. L. C. .579, Rop. VENKA- 
TASIIHUIA «. GOVENDRAJULLU. 18 M- 

L T 1 

155- (d) S- 92- ■ Oral evidence that a mort- 
ijiKj'' H'rts 'Intcaded to he a sale. 

lf''ld, that oral evidence is not admis- 
sible between the parties to ft deed which 
purparts to bo a mortgage, or their re- 
pi'csiuitatives iu interest, to prove that it 
was intended to be a sal; :iJ A. 140 Be- 
fnird/o. ZAKI-rn-OTN KHAN y. AKRAM- 
VD DIN KH >N. 11. C. 95- 

155- (e) S- 91 & 92- -^1 C GU p. C. See 

Nil J-il in:ra. 

156- S- 91, 95, 97- D^ed having false 
di-scription — Evidence as to the plot really 
sold. 

The general rule of S. 91 of the Evid- 
ence Act is subject to the exceptions con- 
tained in Ss. U5 and 'J7. Where in a sale 
deo'.l the lands are described by wrong 
survey numbers, but can otherwise be 
identified clearly the maxim demonslration 
falsa non noeet applies. Evidence is also 
admissible to show the plot intended to 
bj s')ld bv that deed. KARUPPA GOUN- 
PAN r. PERIATHAMlil GOUNDAN. 2- M- 

L F 336=30 M 337 

158- (a) S 91 and 92- Question as 
(" ivlto u:ere the paiih'.^ lo a contract, lohether 
one of the terms of the contract -Oral evid- 
ence, admissibility of, thereon. 

A questiou as to who the contracting 
pirties are is not a question as to the ' terms 
of the contract', within the meaning of 
S. ni and 92 of the Kvdidcnee Act; and 
it is open to a plaintiff to give (oral) evid- 
enoi) of circumstances which went to show 
that a defendant signed a bond on his 
own behalf and p,s the agent of his part- 
ner, another defendant. 7. Taunt :193. and 
L. R. 6. C. P. C. E.r. Ch. 4^1 F. also :i. H. 
L. 0. 5/9. n. VENKATASUBBIAH CHET- 
TYf. GOVINDAUA.JULU NAIDK. 18 M- 

L J. 1=3 M. li. T. 259=31. M 45 

157- S. 92- "Contradictiny, varying, add- 
ing to or subtracting from" ~ Admissihility of 
oral evidence ii'licn cptcstion not as between 
parties to the iiisti anient or their privies. 

Plaintiffs sued defendant for a piece of 
land, alleging that it had been given to 
her by a relation. The defence was that 
the property bad been purchased by the 
defendant JI. A document was tiled, which 
purported to be a. sale of the land to plain- 
tiff, but defendant contended tint the 
document had been executed in plaintiff's 
name 6(;;KiJ»J for him: Hdd that oral evid- 
tueo was admissible in support of the 
contention that thero had been a gift of the 
land to plaintiff, the question not arising 
as between the pirtios to an instrument 
or their privies, so as to bring it within tho 
pjrviow of S. 92 of the Evidence Act. 



Sup: Govt, acts (I of 1872) rConfT). 

Though plaintilf and defendant claimed 
through one and tho same pjrson, yet 
they could not bo treated as parties contract- 
ing with oach other, nor would oral evid- 
ence be evidence to vary tho tormt of any 
written agreement botween them. Jinhinian 
V. Elahi liaJcsh (I. L. R., 28 Gal. 70), com- 
mented upon. PATH.A.MMAL v. SYED 
KALAI RAVIJTHAR, J. L R-, 27 M 329- 

158- S- 29- Oral evidence to vary or add 
to a docnnti-iit. 

In a suit based on a pronote, oral 
evidence is not admissible to prove that 
one of tho defendants signed the pro- note 
only as surety for tho other defounaut 
and that his liability as surety was to last 
only for a month. HAREK CHAND BABLT 
V. BISHIJN CHANDRA MUKERJEK, 8 

C. ■W. N. 101 

159- S- 92- Registration Act (III of ly/?), 
s. 7 — Rrgistrittion of mortgage — I.ilered inland 
— Rigid to redeem imniooeable pror>-rty morr- 
gaged— Transfer of Property Act {IV of l^ti2), 
s. S'J. 

Two documents were produced in evid- 
ence, one of which was in terms an absoluto 
sale. This document had been registered. 
Tho other document (which was not dated) 
had apparently been written contemporane- 
ously with the first, but it had not boon 
registered. This document purported to 
show that the transaction between tho 
parties was a mortgage: Held that the 
second document could not be received as 
evidence of a mortgage transaction not 
below Rs. 100, and that the registration of 
the first) document, which was on the face 
of it an absolute and unconditional sale, 
could not be regarded or operate as tho 
registration of a mortgage. Though there 
is nothing to prevent the whole of a mort- 
gage transaction being reduced in any form 
to writing on different pipars, whether 
attached together or detached, yet tho 
requirmeuts as to registration cannot bo 
said to have been complied with if aorao 
of such papers are registered whilo others 
are loft unregistered. A document which 
gives a person a right to redeem a mort- 
gage on immoveable property on payment 
of money creates an interest in immoveable 
property and its registration is compulsory 
under S. 7 of tho Registration Act. MtJ VHk 
VENKATACHELAP.ATI v. PYANDA VEX- 
KATACHELAPATI, I. L. R., 27 M. 

348 

160- S. 92- Hindu Law— Partition— Re- 
quisites for Partition — Deep defining ani, 
alloliug shares— Elfeot on deed of sn^iscqiient 
conduct of the jjartiej — Effect of de^d it; re- 
gards minor members of the jon* fami'y — 
Re-union of member after once separating 
himself. 

An ikrarnama executed by the m m- 
bers of a j )int family, some of wh m 
were minors, stated in unambiguous ternn 
that deliaod shares in the wholo joint 
property had been allotted to the several 



( 203 ) 



CIVIL DIGEST OP CASES. 



( 204 ) 



Sup: Govt, acts (I of 1872) {Coiud). 

co-parceners, and also gave libr-rty to any 
of the parties to it "cither to live together 
as a member of the joint family as before 
or to separate his own business": Held 
that the effect of the deed was to cause 
a. separation in estate and interest between 
all the co-parceners. The clause giving the 
parties the option of being joint or separate 
was not inconsistent with a separation in 
estate. It conferred on the parties no 
larger liberty of choice than they would 
have had without it. They might elect 
either to have a partition of their shares 
by metes and bounds, or to continue to 
live together and ei:j )y their property in 
common as before. \Vhether they did one 
or the other would afiect the mode of 
enjoyment, but not;, the • tenure of the 
property or their interest in it, which was, 
on the principle of the case of Axuiovier v. 
Bama Hubba Aiyan, (11 M. I. A. 76), deter- 
mined by the allotment to them of defined 
shares by the ikrarnama. The legal effect 
of the ikrarnama could not be controlled or 
altered by evidence of the subsequent conduct 
of the iJarties; but such conduct in this case 
was not inconsistent with an intention to 
subject the whole property to a division of 
interest, although it was not immediately to 
be perfected by an actual partition. 

Held, also that the ikrarnama was bind- 
ing on the minors. It followed from the 
admitted right of any co-paroeuer to claim 
partition that a valid agreement for partition 
could be made during the minority of one or 
more of the co-parceners. If it was unfair 
or prejudicial to their interests the minors 
could, by proper proceedings, on attaining 
majority set it aside so far as it concerned 
themselves. BALKISHEN DAS v. EAJM NA- 

RAIN SAHU. 7 C- W- N. 578-5 B- L- R-, 
461 = 80 1 A , 139 = 30 C 738 at 772 P- C 

161. S 92- -Evidence act (I of 1S72) S. 93 
Construction of document — Oral agreement. 

The plaintiff sued to recover money which 
ho had been compelled to pay in virtue of a 
mortgage executed by his two half-sisters and 
himself. His claim was .based on the ijlea 
that, though appearing in the bond as a 
co-obligor, ho was in reality merely a surety. 
Held, that evidence was admissible to show 
that the plaintiff executed the mortgage-bond 
as a surety only. The plaintilf failed to prove 
that ho was other than a principal, where- 
upon it<wa3 held that he wa.s not entitled to 
recover anything from the defendants by way 
of contribution, the case uj^on which he 
came into Court being totally different from 
a suit for contribution. Mid Chand v. Madlio 
Ram, (I. L. K., 10 All. 421) followed. SHAMSH- 
UL-JAHAN BEGAJI v. AHMAD WALI 

KHAN. I. L. E., 25 A. 337- 

162. S. 92- — Oral evidence — Evidence act 
(1 of 1S7'J) H. 92 — Evidence to show that a 
' deed of sale ' was meant to he a 'deed of gift' 
— Admissibility of oral evidence to vary a writ- 
ten contract. 

Under the provisions of P. 92 of the 
Evidence Act (1. of 1872) no oral evidence 



Sup: Govt, acts (I of 1872) {Contd) 
is admissible to show that a "deed of sale" 
was really meant to be a "deed of gift" and 
not a "deed of sale.".S7!C)()o6 Singh v. Asgur 
All, (6 W. R., 207); Wali Mahomed v. Kumiir 
All. 7 W. R., 428), and Lata Ilimmat Sohai 
V. LleivhcUen (I. L. 11., 11 Cal., 4BG) •distin- 
guished— RAHIMAN V. ELAHI BAKSH, I. 
L. R., 28 C- 70- 

S. 92 — Oral Evidence — Evidence Act (I. 
of lS7:i) S. 92— Conduct of parties — Oral 
evidence when admissible to prove that a con- 
veyance is a mortgage by way of conditional 
sate — Admissibility of parol evidence to vary a 
written contract. 

Under the provisions of s. 92 of the 
Evidence Act (I. of 1872) oral evidence of 
the acts and conduct of parties, such as 
evidence of the repayment of the money, 
the return of the deed and the exercise 
of the acts of possession by the vendor, is 
admissible to show that a certain convey- 
ance was really a mortgage by way of condi- 
tional sale. Frconath Hhaha v. Madhu Sudan 
Bhuiya (I. L. R., 25 Cal., 603) referred to. 
The case of Balklshcn Das v. Lcgge (L. R., 27 
I. A., 58; I. L. R., 22 All., 149) did not in any 
way affect the rule laid down in the case of 
Preonath Shaha v. Madku Sudan Bkuii/a (I. 
L. R., 25 Cal., 603).— KHANKAR ABDUR 
RAHMAN V. ALI HAFEZ, L L- R-. 28 C. 
256- 

163 S. 92— O''"'' Evidence— Evidence Act 
(I. of 1872), s. 92 — Acts and conduct of parties 
— Oral evidence when admissible to prove that 
a conveyance is really a inortgageby way of 
condilional sale — Admissibility of parol evi- 
dence to vary a written contract — The Indian, 
Law Reports Act (XVIII. of 187.5), s. 3. 

Oral evidence of the acts and conduct 
of parties, such as evidence of promi.se by 
the vendee, to restore the property on repay- 
ment in two or three years, is admissible to 
show that a certain couveyancy was really a 
mortgage by way of conditional sale. Bal- 
kishcn Das and others v. Lcgge (L. R., 27 I. A., 
58; I. L. R., 22 All., 140), explained. Preo 
Nath Shaha v. Madhu Sudan Bhuiya (I. L. 
R., 25 Cal., 603) referred to. 

Scmble, per Maclean, C. J. — S. 8 of the 
Indian Law Reports (Act XVIII. of 187.5) 
does not prevent a High Court from looking 
at an unreported i idgment of other Judges 
of the same Court— MAHOMED ALI r. NA- 

ZAR ALI, 5. c. W- K 326=28. C 289- 

164- S- 92- Evidence to vary written 
instrument — Execution of sale-deed — Subse<iiient 
redemption suit on footing that the sale was 
in fact a mortgage — Evidence of subsequent 
conduct to show collateral agreement— Inadmis- 
sibility. 

On 23rd September 1876, defendant 
wrote to plaintiff, inviting plaintiff to exe- 
cute a salo-dged of certain land in favour of 
defendant and promising that if plaintiff 
did so, defendant would discharge plaintiff's 
debts out of the income to be derived from 
the land, and would, after the debts had 
been discharged, or before, if so requested, 
restore the land to plaintiff, upon payment 



( 205 ) 



CIVIL DIOKST OF CASRS. 



( 200 ) 



Sup: Govt, acts (I of 1872) yConid.) 
by plaiiitilt of a sum o£ money that had 
been advaucod to him by defeudaut. Thi<i 
document was not registered. On 29th 
September 1870, plaintiff executed a deed 
of sale of the laud iu defendant's favour, 
which was unconditional in it.-s terms, 
and which was duly rogistei-od. Plaintiff 
subsequently brought a redemption suit 
against defendant on the deed of 2yth Sop- 
tombor, and ho contended that though that 
deed was, in iis terms, an absolut; convey- 
ance, he was entitled to adduce evidence of 
the subsequent conduct of himself and de- 
fendant, to show that the transaction was, 
in fact, not a sale but a mortgage: Udd 
that the ovid nee was not admissible. Ba'.- 
kishen Das v. Leggc, (fj. R., 27 I. A., 53 ; I. 
h. R., 22 All. 14'J), followed. Khankar Abdar 
Rahman v. All Uafcz, (I. L. B., 2S Cal. 
250), and Mahomed Ali Hos^sin v. Ndzar- 
AH, (I. L. R., 2S Gal. 289), dissented from. 

Plaintiff further contended that uhj con- 
tract was not contained in the deed of sale 
alone, but must be gathered from both of 
the documents referred to above : i[:ld that 
the documout of 2.3rd September being un- 
registered was inadmissiljle iu evidence as 
it puri^ortod to create or limit an interest 
in the immoveable property convoyed under 
the deed of sale. Pranal Aimce v. LakshnU 
Annce, (L. R„ 20 I. A., 101 ; I. L. R., 22 Mad. 
508), followed. ACHUTARA5IARA.JU v 
SUBARAJU, 11. M. L. J. 370 = 25. M. 7. 

165' S- 92- Construction of document — 
Evidence inadmissible to show lliat a docu- 
ment purporting to be a sale-deed is in reality a 
deed of gift. 

Held that extrinsic evidence is not aJ- 
missiblo for the purpose of showing that a 
document, which purports to bo, and on 
the face of it is, a deed of sale, is in reality 
a deed of gift, Sah Lall Chand v. In ler- 
Ji\ (I. L. R., 22 All. .371;, and Balkishen 
Das v. Legge (I. L. R„ -22 All. 149) re- 
ferred to. l'\ATZ-UN-XIS^A !'. H\NIF- 
U^r-NISS\, A. W. N. 1905. p. 129. = 2. A. 
L. J. 363 = 27 A. 612. 

166. S- 92 Rascm'^nt—'Rcisement Act (V of 
l-<>i:i\ S. 13, els. (e), (f) Easement of necessity— 
Nj cascnc it un the ground of convenience 
icken Ih-re is other means of access — Koidcnce 
Alt (I of hi72), s. 93— Oral contemporaneous 
agreement cannot beset up to add to a written 
coHtiact. 

Held that if .K has a means of access to his 
property without gomg over B's land, A can- 
not claim a right of way over B's. laud on the 
ground that it is tha moit oouvoniont means 
ofao;o«. The law under s. 1.3, cl. (e) of the 
Ease nents .\ct is the same as the law in Eng- 
land Wiitrhrx. f;harne{l. L. R., 1.5 All. 270 at 
p. 28 ), followed. E.^itbai v. Damidar Isltvar- 
da^, I. L. R.. 10 Bom. 5.52 at p. 559), not 
followed. The Municipality of the City of 
Pomn V. V'aman Rajaram Gholap, (I." L. 
R., 19 Bom. 797), not followed. To sustain 
a cla.im under s-iction 13, clause (/) of the 
Ei.somjuts .-Vet, the easement claimed must 
be apparout and continuous. A contract 



Sup: Govt, acts (I of 1872) (Contd). 

in writin,^ cannot bo added to by a contem- 
poraneous oral agreement. KRISHXV- 
AMARAZU V. MARA.JU, 15 M. L. J. 255- = 

23 M. 495 

167. S. 92- Written document— Absolute 
conveyance — Mortgage — Contemporaneous oral 
njreeiw.ni or st'i'cm'nt of intention — Infer- 
ence from circumstances. 

The plaintiff sued to rocovor possossion 
of land contending that the document 
under which the defendants held the land, 
tliough in form an absolute conveyance, 
was intended to operate merely aj a mort- 
gage. The plaintiff's contention was based 
on the grounds that th3 oousideratioa was 
a previously existing d-ebt and not money 
piid at the time ; that the plaintiff's father, 
notwithstanding the execution of the djed, 
remiined in possession until his death, 
and that after his djath his wido-.v remaia- 
ed in pjssassioii for throe years; that there 
was no transfer of tho land into the kkata o£ 
the trinsfere3 and that the consideration 
was grossly inadequate. The first Court held 
the transaction to bo an out-and-out sale 
and dismissed the sjit. On appeal by the 
plaintiff: Held confirming th.3 decree, that 
the meaning of the contention of the plain- 
tiff was that the document was aoeompauied 
by a contemporaneous oral agreement or 
statement of intention which must be in- 
ferred from the .said several cieumstances 
relied on, but that in questions of this 
kind. Courts in India must ba guid-d by 
s. 92 of tho Kvidenca Act (I. of 1872), and 
cannot have recourse to those equitable 
principles whic'u enabU the Court of Chin- 
ocry to give roHef in those oasei at which 
Allerson v. White (2 Dj G. & J. 9S) or Lin- 
coln v. Wright (t Do O. & J. 10) furnish 
examples. 22 .\ 149 followed. This, how- 
ever, would not have preoluJed th:; plain- 
tiff from relying on the p.-ovisos to th; 
section, had anv of them been .applicable. 
DATPOO V. RAMGlIANDftV, I. I,. R, 3D 

a. 110; 7 B. L. R. 669. 

16B. S- 93. U'-d':mptio:i suit—Sale out a-il 
out^'Jonstructian — -Evidcncj of intention — A.I- 
7nissibilitif 

Plaintiffs, who were agriculturists, 
brought a suit to rodoom and tho dofeadmc 
contiudel that the transaction in suit was 
a salo out and out and not a mortgiga. 
The lower Courts held that the transaction 
was a mortgage and allowed redemption. 
Hdd, ou second appoal by the defeadant, 
that evideuoo of intention cannot ba given 
for tho purpose merely of construing a 
document wliich purported to ba a sale, 
out aud out and not a mortgage ; s. 92 of 
the Indian Evidence Act (I. of 1872), sub- 
jeot to tho proviso therein contained, for- 
bids evidence to be given of any oral agree- 
ment or statement for the purpose of con- 
tradicting, vai-ying, adding to or subtraec- 
ing from the terms of any contract, grant 
or other disposition of property, the terms of 
which have been reduce! to wr.tinj as 
mentioned in that seetion. While there a.te 



( 207 ) 



CTVIL DIGEST OP CASKS. 



( 203 ) 



Sup: Govt, acts (I of 1872) {Coatd). 
nstvictions on the admissibility of oral 
evidence, s. 1)2 in its first proviso rccog- 
vnes that facts may be proved by oral 
tvidence which would invaiidato a docu- 
ment or entitle any person to any decree 
or order relating thereto. And where one 
party induces the other to contract on the 
Ittitii of iepre.-entatious niade to him, any 
one of which is untrne, the whole con- 
tract is in a Court of Kquity considered as 
Laving been obtained fraudulcntlv. ABA.JI 

V. LAXJIAN. I. I,. E., 30 B. 426 ; 8 B 
LB. 553. „ ^ 

169- S- Q2 — Constru(tioii—Morf(ja(ic or 
Siile—Eeril lujrecmsnt between, parlies whether 
embodied in doeument or not. 

The plaintiff sued to redeem bis laud 
alleging that they were mortgaged with the 
detendanis under a nominal sale-deed. The 
lower Court treating the contract as embo- 
died in the deed as one of sale rij;otod the 
suit r - 

Held, that the real question involved in 
the suit was noi whether the document was 
one of sale or mortgage, but whether the 
real agreement between the parties was 
embodi.xl in the document. ANSA TUKA v 
KENCHAPPA SATAPPA,— 8 B- L- R- 6S9- 

170- S- 92- — Evidence regarding oral assur- 
ance.^ by gr /inters if admissible. 

Oral evidence regarding ora' assurances 
given bv the granters at the time of making 
thugrmt to show the perpetual nr.turc of 
a grant is not admissible. 22. A, 149 Tj. R, 27 
I. A.. -JS. followed. NAR.ASINGH DVYAb 
SAHU I! R.«I NABAIN SINGH.— 30- C- 
884. 

171. S 92- — Evidence shoiving lUat the exe- 
cutant of a pro-note signed as surety. 

Held, that in the plaintiff's snit on a 
pro-note executed by the defendants filed 
against them oral evidence was not admis- 
sible to show that one of them signed the 
pro-note only as surety and that his liabi- 
lity was only to the extent of standing as a 
surety for one mouth. 3 Cal., 174 distinguish- 
ed S. 92, Evidence \ct, and not Knglish- 
law is r.pplicable to such cases 4 C. W. N. 
l>5=:--27 I. A. 58 followed, HAREK CHAND 
BABU !• BISHAN CHANDRA BANEIUEE 

-8. C- W If 101. 

173. S- 92— In a suit between mortga- 
gees and mortgagors it is not open to some 
of the cxocutants of the mortgage deed who 
signed as principal debtors and mortgagors, 
to adduce oral evidence to prove that they 
were only sureties (25 A 337, 10 A 421, 8C. W. 
N. 101 followed.) NGA SAING v NGA LU 

AUNG. IJ. B. P. 1906 P13 

173. S. 22— Oral evidence tu contradict the 
terms cf a kabuliyat — Oral evidence as to con 
duct of parties — Waiver of terms — Landlord 
afid tinia.nt — Rate of rent. 

When the kabuliyat states the amount 
of rent that is payable to the landlord, oral 
evidence is not admissible for the purpose 
of contradicting that statement, but evi- 
dence i.T admissible to show that as between 
the landlord and the tenant the document 



Sup: Govt, acts (I of 1872) icmtil). 

was never intended to be acted upon or 
enforced, or evidence to sho-.v that Ibnro 
has been, as between the pirties to the 
document, a waiver of some of its tcrnis._ 

To show that the intention o£ the parties 
was that the kabuliyat from the first ws.'j, 
not intended to be acted upon, or that 
there had been a waiver by the parties 
evidence is admissible to prove that »incc 
the time the kabuliyat wai entered into, 
the tenant hasalway paid rent at a lower 
rate than that stated in the l^ase. F.ENI 
MADIIUB GOR.^NI v LAL^MOTI DASJi.— 

6 C- W- N- 242- 

174. S ^2— Oral evidence to vary a written 
contract. 

A mortgage-decree was sold free from 
incumbrance and a portion of the purchase 
money was deposited with the purchaser, 
who gave a receipt embodying the real con- 
tract between the parties with regard to 
the deposit, held, evidence could not be 
given of a separate agreement empowering 
the pur.hvser to pay off an att-ohing cre- 
ditor of iho decree. Bat evidence might be 
given to prove the otjct for which the 
deposit was made, or to explain the 
meaning of a sentence in thr; receip',— 
KHETSIDAS AGARWALA v SHIB NAKA- 
YAN MURDA,— 8 C- W- N- 178- 

175. S- Q2—0ral evidence relating to docu- 
ments— S ale— Mortgage. 

Hi'A, thit, njtwithsti-idiug the p.-ofi- 
sions of S. 92 of ths Evideuc; Act, the d feii- 
dants werj eatitbd to shj.v that a doca- 
mcnt purporting to ba a deed of sale exe- 
cuted by tham was intended to be a mort- 
rra^^e and not a sale. 72P.K. ,901 = 114 P. 
Ij"r 1901 followed, RAJt SARUP f AL- 

dah' rakha,-107- P- li. I!.- 1905-^ , , , 

176. S- 92— 1'''^"'" instrument — Sale-deed 
or mortgage — Re-presentation that a sale-deed 
tvould not be enforced as a sale-deed — Construc- 
tion of document. 

Where at the time of executing a docu- 
ment, a representation is made that the 
document though in form a sale-deed will 
not be enforced as against the executant as 
a sale-deed, and where on the faith of that 
representation the executant executes the 
document, the sale-deed cannot bo upheld 
as a sale-deed as against him. NAVALBA.l 
PULCHANDt:SIVUBAI GENU KORPE.- 
8B-L.K.7G1- ^ . .■ rr 

177. S. 9a — Documcnt-Constrnction, iran- 
saetion evidevced by the deed— Nature of the 
transaction vhich the parties contemplated — 
Evidence. . 1, ^ 

Where the contention in a case is tiiat 
there was no agreement enforceable by law 
to sell the property hut that there was a 
mortgiigj agreem nt, it should be spec fi.ally 
delerniiutd wh.ther real tran action be- 
tweju the pivties, as shown by the evidence, 
is a mortgage or a sale. 

Per Heaton, J.— "The theory that au 
apparent sale is a mortgage is not based on 
th-j conception of a sale aecompuiied by 
modifying oral agreement or understanding. 



( 209 ) 



CIVIL DinnST OP CARES 



( 210 ) 



Sup: Govt acts (I of 1872) (Contd). 
Il^lruft.s cju tlio .-upposilious that the in- 
tention of the pa-.-Mo^i is simply and solely 
that the pvuporty shall be security int the 
d;jbt;and that no sale in any form is joint- 
ly contemplated. The fact that tbo doou- 
ment talc<'S the forni of a sale-deed, is ex- 
plained by the asiuraptiou (1) of a fraud by 
the creditor; or 1 2) of a convention which 
the creditor insists shall be observed, and 
which the debtor dare not repudiate; or (3) 
of cireumstances peculiar to an individual 
transaction. It may be that the debtor pro- 
pares for himself a case specially difficult of 
proof but that is not a reason for refusing 
to allow him to attempt to prove it. KRI- 
SHNA BAI V RAMA BALA.— 8 B- L- R. 
764- 

178- S- 92- Oral evidence varying the 
Uiiiia of a deed — Intention of parlies cannot 
be such evidence — Sale — Exchange — Limitation 
Act {XV of isn), Art. 97 — Money paid upon 
an existing consideration which afterwards 
fails. 

On the 17th April, 1892, the defendants 
passed a sale deed of certain lauds at Gadag 
to plaintiff for Ks. 500. On the same day, 
the plaintiff sold some lands at Toppinkatti 
to the defendant's sister for Rs. 500. No 
money passed under any of these trans- 
actions, the one being a consideration for 
the other. In 1898, the plaintiffs were dis- 
possessed by a person deriving title from a 
purchaser, at a court sale on the 6th Juno, 
1885, of Oadag lands in execution of a decree 
against the defendants, who had somehow 
remained in possession. The plaintiff, there- 
upon, filed a suit against the defendants to 
recover the possession of the lands at To- 
pinkatti, or inthe alternative for compen- 
sation for the loss sustained by him by 
reason of his dispossession: — 

Ilcid (1) that the two deeds professed to 
be deeds of conveyance; and the mere fact 
that they were mutual deeds of conveyance 
would not make the transaction an exchange 
Whatever might have been the intention of 
the parties, having regard to S. 92 of the 
Evidence Act, it was impossible to treat 
the transaction of 1892 as one for exchange. 

(2) That the plaintiff was entitled to 
recover money paid upon an existing con- 
sideration which afterwards failed : Art. 97 
of the Limitation Act, 1877 18. M. 173 fol- 
lowed. IIANMANT NARSINHA i.. GO- 
VIND PANDURANG KAMAT, 8- B- !•• E- 
283. 

179- S- 92- Registration — Document col- 
lateral to a permanent lease of immoveable 
property — Hcijistraiion Act (Til of 1877), s. 
17— Transfer of Property Act (IV of lUSll), 
s. 107 — Assignment of properly to trustee — 
Trust deed. 

An agreement to pay Rs. 500 a month 
to a lessor in consideration of receiving 
from him a permanent lease of portions of 
his zaraiudari, which agreement was come 
to before, but reduced to writing after, the 
execution of the lease, was Iwld to be not 
affected by s. 92 of the Evidence Aet, nor 



Sup: Govt, acts (I of 1 372) {Cotitd. ) 

to require registration either under the 
Registration ct, s. 17, or the Transfer o£ 
Property Act, s. 107, where it was not 
incontistcnl with the lease, its provisions 
formed no part of the holding under the 
lease, the payment bargained for was no 
charge oa the property, and it was not 
rent or recoverable as rent, but a mera 
personal obligation collateral to the lease : 
Held also, that the lessor's rights under 
the agreement did not pass under a settle- 
ment subsequently executed by him for the 
benefit of his son, by which he assigned to 
a trustee his zamindari with its incidents, 
and also "all the outstanding debts, arrears 
of rent, mesne profits, claims, demands and 
sums of money of whatsoever description, 
now due owing or payable to the'settlor on 
any account whatsoever, and all rights to 
prosecute any suit ir other proceeding exist- 
ing in favour of the settlor at the date of 
these presents • • • • except and al- 
ways reserving to the settlor or outstanding 
debts, arrears of rent and other claims and 
demands payable and to become payable to 
the settlor, and all rights to prosecute any 
suit or other procecding.s now existing, etc." 
The use in an Indian document of the 
words " now due owing or payable " in 
defining the claims traustei'red coupled with 
the words that follow restricting ,tho trans- 
fer of rights of suit in respect of such 
claims to those existing at the date of the 
deed, showed that rights of the nature of 
those in the agreement, accruing as they 
did after the date of the trust deed, were 
not intended to pass under it ; and this 
view was strengthended by the employ- 
ment of the phrase " demands payable 
and to beoom.3 payable " in the exception 
and resorv.\tion which followed. Whce, 
therefore, the les-ior hid, aftur ex-jcatiju 
of the trust d3C!d, asiign^d his rights under 
the agreement : 

lid I that the assignee could maintain 
a suit upon it to recov.^r th? amount due. 
SUBRVMvNIAN CHiiillAR v. AHUNA- 
CH\LAM CHETTAIR, 6 C. W- W- 865 = 

25- M. 603-23 I- A- 133 (P- C) 

180 S- 92—-^ registered mortgage takes 
effect against any oral agreement relating to 
the hypothecated property, and no oral agree- 
ment purporting to modify the terms of the 
mortgage by reducing the amount r^eover- 
able thereunder, by taking away the right of 
sale, and by providing for the payment of 
the reduced debt by a sale, of other propeny, 
can 1)3 proved, by virtue of the provisioin ot 
S. 92 of the Act ' MAIIARAJ SING v. R\JA 
BALWANT SINGH. 3 A- L- J- 274 = A W- 

N (1906), 117 = 28 A- 508- 

181 S- 92— ■fa'J'ttZ— Omi cftrft'fjce — 
Where the terras of a bond are clear and 

unambiguous oral evidence can not be taken 
that it was an assignment of future rout. — 
HRlf^JOY N.^TH PODDAR v. JOYR.\.M 
^lAHTi). 4 C- L- J- 402- 

182 S. 92 & 91— Cjntract— Bought and 
sold notes— 11 i''r,'prescntat ion— Fraud, effect of 



211 ) 



CIVTTj DIORST OP CASE!5 



( 212 ) 



Sup: Govt, acts (I of 1872) rOontd).) 

— liUjht of plaiiilijf hi fall back on original 

conlrdct — Dammjes for breads of coiilracf. 

TUo pliiintiff made a contract by telegram 
■with the detcindaiits tor the purchase o£ a-fuU 
oar"0 of kerosine oil, which the defGud^mts 
had" themselves contracted to buy from a 
firm of nierehant3 in Calcutta. That firm 
declined to have their contract with the de- 
fendants transferred into the plaintiff's name 
and it was tliarefere arranged between the 
plaintiff and the defendant! that 'bought and 
sell notes' should be excbiuged. In carry- 
ing out this arrangement, the defendants 
misrepresented the amount of the cirgo, and 
the words "100,000 cases" were inserted in 
the bought and sold notes when the cargo 
really consisted of 125,000 cases of oil. Both 
the Courts below found that this misrepre- 
sentation was fraudulently made. The H;gb 
Courts in its Original Jurisdiction held that 
the bought and sold notes, were invalidated 
by tbo fraud and gave the plaintifl a decree 
for damages on his contract as proved by 
the oral evidence. The High Court in appeal 
treated the case as founded on tbo bought 
and sold notes, and held that no other evi- 
dence o£ the contract could be given, and 
dismissed the suit. 

Held that the bought and sold notes hav- 
ing been falsified, the plaintiff was entitled 
to disregard them .'.nd fall back on his ori- 
ginal contract.— DURCtA PROSAD RURE- 
KA v.. BllA.TAN LALL LUHEA. g 0- W- 

N-, 489 =6 B. L. R, 498 =M. L- J-, 
1904; p. 196; P C.=31L A- 122 = 31 C- 
614. 

183 S. 92 Pro {l)-Co,itract Act (IX of 
1S7:1) s. m — Unlaicful consideration, — Adal- 
tcrij. 

No Court ought to enforce a contract 
which, though on the face of it, is valid in form 
and matter, is shown by evidence to be bas- 
ed, wholly or in part, on unlawful cousideia- 
tiou. Itmittersnot whether the djfcn lant 
pleaded illegality or not. If the eviJoucj ad- 
duced by tlie pUintiff proves the illegility, 
the Court will not as-^ist him. Adultery is 
an offmeo in India, therefore when adultery, 
past or future, is the consideration or au in- 
divisible part of the consideration for an ag- 
reement entered into in India, this would 
make the co\itract an immoral and illegal 
agreement and tlie ooitraot wouLl be void. 
Man Knar v. JamJa K'lar (I. L. II., l .A.U. 
47s) and Dhiroj Knar v. Bikrimijit Hinqh 
(I. li. It., .S All. 787) referred Ij.—ALICW 
MARY HILL r. WILLI.AM CLARKE. A- 

W- N , 1904, p. 233. 

184 Sxtion 9:1 

A plaintiff is entitled to show und^r sec- 
tion •Ji, Evidence Act, 1S72, that :: doj;l w-xs 
pa-sed without c ju^ideration, and whoa 
evidence is adduced on his behalf, the djfeu- 
dant is equally ontitlol tj show that tinro 
was valuable eouside a'.;on for tiie doad 
though not '.dmtic.il with that staled in th:; 
deed itself. 11 Cal., HG and 3 Bom., 159, 



Sup: Govt, acts (I of 1872) (Contd). 

n-fenrd to. KAIL ASH CHANDRA ..NEOGI 
V. I[-\RISH CHANDRA BISWAS. 5 W- N- 

C. 1.58. 
185 S. 92— .E<i3C"se»i Act. 

Where on partition different sites fell in 
to the lot of the parties and the plaintiff 
began to build upon his site and the defen- 
daat obstructed him alleging that he had au 
easemsnt of necessity over the site, and also 
set up an agreement at the time of partition 
in support of his alleged right of way : 

JI--ld, as the agreement of partition 
contained in the partition deed, made no 
provision for the right of way claimed, 
an oral evidence of tlio agreement was in- 
admissible under S. 92 Evidence Act. SABHA- 
PATY MUDALIu. KUPPQ .SAJIY IMUDALI. 
-15 L. J. 225- 

188. S- 92~Suit for accotuits Razinaryia 
filed — Fresh suit on oral promise that accounts 
would be settled on fiUny a compromise — Oral 
evidence to contradict compromise. 

T sued J. for accounts; the parties in the 
course of the suit executed a liazinama to 
the effect; the plaintiff had understood 
all the accounts and held settled them and 
that they had no further dispute. Tha 
compromise was filed in Court and the plain- 
tifl admitted the terms of compromise. The 
defendant attested the liazinama and the 
Court dismissed the suit. 

The plaintiff subsequently filed another 
suit alleging that the defendant had pro- 
mised in the previous suit to expUin the 
accounts to him and to pay whatever was 
found due provided the plaintiff first filed 
a Bazinama. This was done but the defen- 
diuthasnjt rendered the accounts. Hence 
the present suit. Held the plaintiff could 
adducjthe jj-'oaf of oi'il prom.ie alleged by 
him and it was not ec.:;lu.Iel by the provi- 
sions of S. 92. P. THvKUH DAS d. K. B. 
D.'.. JASWANT BAI.-4i P. L. R. 1904=-L 

P. R 1904. 

187- Secthm 92. 

Oral evidence as to the acts and 
conduct of the parties is admissible to 
show whether a certain deed is, as it 
purports to be, an out and out sale or a 
mortgage, but it is not admissible to show 
that a deed of sale was really meant to- 
be a deed of mortgage and not a deed of 
sale. :!:i .ill, 149, 5 \V. N. Cal., 3!6, .3 W. 
R. Oi, fo'loieed VI All, 3-:7, U AIL, 150, J, 
Bom., h'Jl, 10 Cal., 7(it, 9 Cat., 52S, W 
MiU., iJi, la Mad., 80, 19 AU., l-i I. SJ Ca!., 
003, 2 W. N., Cal, 60:!, 7 Bom., 13, 6 Cat., 
3.l!i, 17, Gal., ITS and 176, ■n'ferr.'d to. AB- 
DUL GHAPU'R KliAN V. ABDUL KADER. 
P R. 72 of 1901 

18S. S 92- Proiierlye.rchn>fted—Caihpiiij- 
menl re^tte.l in aalc-deed — \Vite'h-'r evidence 
of actual transaction ad:ni,'sib'o. 

Held that evidjnce ii admissible to show 
tiiat consideration, m:;ntioued in a deed 
as having been paid, uevc-r p.is.ssd, and also 
to show that the consideration specified 



( 213 ) 



CIVIL DIGEST OF CASKS 



( 2H ) 



Sup: Govt, acts (I of 1872) (Contd.) 

iu the deed was satisfied iu a different way 
from that mcutioucd in the documeot it- 
self 18 A 108. 22 A 370 V. C. referred to. 
Where, therefore, a deed recited that 
a pajmeut of lis. 1,000 was made in cash, 
held that it could be shown that the pay- 
ment was not made iu cash, but in some 
other way, i. e., by exchange of propv;rty. 
MUHAMMAD YU'SUP v. MUHAMJIAD 

MUSA, 4- AL- J 441 =A. W- N- 107- 
P 181 

189' S- 92- Evidence to vary or contra- 
dict terms of document — Evidence of acts and 
conduct of ^'"'■'ics — Indian Stattcte Law dJ 
princ'X>les. of equity. 

The Indian Law is generally a codified 
one. The Codes are exhaustive, not only 
as to the rule to bo followed, but also as 
to the extent of discretion vested in the 
Courts. There is no analogy between the 
status o£ this codified law and the com- 
mon law 01 Kuglaud ; and Courts in India 
are not j istified in relaxing the Statute 
Law in the same way, as Courts of Equity 
in England deal witli rules of common law. 

S. 92 excludes evideuco of every kind 
adduced to prove an oral agreement, includ- 
ing the circumstantial evidence derived from 
the acts and conduct of the parties to the 
instrument to prove what it has forbidden. 
When an oral n>ortgago is put forward, whe- 
ther it be to wholly sujiplant or merely to 
supplement the terms ot a written sale, clear- 
ly there is a contradiction of, or an addition 
to, the written evidence of the transaction 
and S. 92 forbids such proof. The word " con- 
tradict" in that seciiou must he given its 
ordinary meaning ; aud, therefore, the dis- 
tinction drawn by Messrs. Amir Ali and 
Woodroffe, viz.,- that we cannot vary, add to, 
or substract from, the written evidence of the 
terms of a trausactiou, hut v>c may wholly 
contradict it, by proof of an entirely different 
contemporaneous oral agreement, is not 
sound. 22 A. 149 aud ?.0 0. 738, referred to. 
4 B. 59i. 16 M. 80, 2.5 C. G03, 2S C. 256, 28 C, 
289, Diss; 25 JI. 7, F. GUJAR MAL RAM 
LAL I'. SITA RAM URJAN. 3 N- L- K- 19. 

190 b- 92 Benami Transaction — Undue 
influence — Gift — Pardanashin lady — Suit to 
ici aside deeds as having been executed by per- 
son of unsound mind — Alleged influence of 
daughter over her mother — Gift toith imagi- 
nary consideration ^inserted in deed. 

In a suit by a son to set aside certain 
transactions entered into by his mother, a 
Mahoraodau lady, in favour of her daugher, 
the defendant, by which the daughter ac- 
quired possession of most of her mother's 
property, the plaint alleged that his mother 
was, at the time the transactions took place, 
of unsound mind and "entirely under the 
dominion aud control" of her daughter. 
Both Courts in India found that the mother 
was not of unsound mind; but the firtt Court 
treated her as a pardanasliiii lady, a id as 
"entirely uudei luc control aud domiua'iou 



; Sup: Govt, acts CI of 1872) (fontd.) 

of tl;c defendant, wiiu had un ,crupul.5Usly 
used her power over licr moth :r to get her 
motlier's properiv iuti. her own hands," and 
made a decree that the tr.ansactions sb;iuld 
he avoided on the gr.jund of undue influ- 
cnuc. The Court of appeal rcver,-el the find- 
ing with respect to undue influence and 
dismissed the suit. 

Held that, assuming the question of un- 
due influeuoo could lie set up at all (for it 

I was not raised in tlio pleadings except with 
regard to unsoundness of mind, which 
had been negatived, nor was ..nv issue raised 
upon it), no case of undue influence had 

; been established by the evidence. The mere 
relation of daughter to mother in itself sug- 
gested nothing in the way of special influ- 
ence or control; and the evidence was in- 
suflicient to establish any general case o! 
domination on the part of the daughter, 
and subjection of the mother, such as to leffd 
to a presumption agaiust any transaction 
between the two ; and with regard to the 
actual transactions there was no evidence 
whatever of undue influence brought to bear 
upon them. 

Held also that in the evidence and cir- 
cumstances of the case, the transactions in 
dispute were absolute gifts, and not benami 
transactions, which might have been set 
a.side.— ISMAIL MUSSAJEE MOUKERD\M 

V HAFiz BOO, 10 C- W- N. 570 =3 A. L- 
J. 353 = 16 M L. J. 166 =3 C L J, 484 = 8 
B., L R. 379; p. C. = 33 C 773- 

191. S 92 ^Vhethcr an apparent sale deed 
is a mortgage— Evidence of oral. 

Ho/fZ thit when a pirty sets up a ccn- 
tompor.injous oral igi-eommt, shiwing that 
an appirout deed of sale was roally a mort- 
gvgo, uulo.ss it appjars from the conduc; of 
the parties and from coUatjral circum- 
stances that the transaction was intended 
to be and was treated by them as a mortgage 
mere verbal ovidmce of the contempora- 
neous oral agreement is insufiicient. 

Hdd also that under the same circum- 
stances such evidence is not admissible as 
against an innocent purchaser without 
notice of the existence of the mortgage, who 
merely bought from a parson who °was in 
possession of the title deeds and was the 
ostensible owner of the property. 5 W R 
68, 4 B. 594, 16 ^I. 80, 9 C. 898 referred to. 
MAUNG LU GYE & MA KYE HMON v 
MAUMG HLA PYLT & MA SHWE BWIN 

U B a. 1902 p. 1 (evidancs) 

192- S- 92 Mortgage or sale— Evidence of 
oral agreement varying terms of deed of sale- 
Evidence Act, s. 9-2. 

Plaiut;fT, who had executed a deed of 
sale of land to defendant, afterwards brou<'h« 
a suit for a declaration that tha transactfon 
was a mortgage aud not an outright sale, and 
for an ord..^r that the laud should bj re-con- 
veyed ou plaintiff's paying the mortgai^e 
money. Plainliif br.iught evidonco of an 
oral agreement between the parties at the 



( 215 ) 



CIVIL DIGKST OF CASES 



( 210 ) 



Sup: Govt, acts (I of 1872) (Contd) 

time of Lho execution of the deed of sale, 
that plaintiff should have the right to re- 
deem the land ; aud also ovidenco of the 
conduct of the parties as showing that such 
was the agreement between them. 

Hdd, that such evidence was not admis- 
sible, being excluded by the terms of section 
92 of the Indian Evidence Act, 1S72. Bal- 
Idshen Das v. Legge, (Privy Council) (IS'J'J) 
I. L. B., 22 All., 149 ; Banapa v. Sunderdas, 
Jogjivaudas, <1S76) I. L. R., 1 Bom. B3:i; 
Achutaramaraju v. Subbaraju, (I'JOl) I. Ij. R. 
2-5 Wad , 7; followed. Ramesh Chandra Pal 
V. Nga Soung, (1902) 2 L. B. R., 1, over-ruled. 
Paksu Lakshmau v. Govinda Kanji, (1880) 
1. L. B., i. Bom., 591; Preonath Shaha v. 
Maihu Sudan Bhuiya, (1898) I. L. R., 25 Cal., 
603; Khankar v. Ali Hafez, (1900^ I. L. R., 28 
Cal., 256; Mahomed Ali Hossein v. Nazar Ali, 
(1901) I. L. R., 21 Cal., 289; dissented from. 
Mucoln V. Wright, (1859) 4 Deg. & J., 16; Al- 
dersou v. White, (1858) 2 Dog. & J., 97; Gunga 
Narain Gupta v. Tiluckram Chowdbry. (1.888) 
I. L. R.. 15 Cal., 5.33 ; Beni Madhab Dass v. 
Sadasook Kotarv, (1905) I. L. R., 32 Cal., 437; 
referred to. Sl.VUNG BIN v. MA HLAING 

3- L. B. R. 1905 p. 100. 

192 (a) S- 92 — Oral evidence a mortgage 
or a sale — licprescntatives in interest of parties 
to the suit. 

Held, that oral evidence is not admis- 
sible between the parties to a deed which 
purports to be a mortgage, or their repre- 
sentatives in interest, to prove that it was 
intended to be a sale. 22 A 149 Referred to. 
Z.AKI-UD-DIN KHAN v AKUAM-UD-DIN 
KHAN. 11 0. C- 95- 

193 S- 92 — Execution of Decree -Agreement 
in sali^ftictioH of Decree — Civil Procedure Code 
(Act XiV of ISHij, s. S57 A — Khata — Decision 
on a point not raised by the defendant. 

It is not open to a Judge to decide a 
case in defendant's favour on a point not 
raised by him with the result that if the 
decision be upheld it will cast upon the 
defendant a far higher liability than if he 
bad made the order which the plain tiS had 
asked for. In an execution proceeding, the 
parties arrived at an agreement in satisfac- 
tion of the decree. The agreement was in 
the form of a khata. Subsequently the 
plaintiff brought a suit on the khata and 
claimed interest on the amount in suit. A 
question having arisen in the suit as to 
whether the /i7iato sued on was enforceable; 

Held, allowing the claim for the principal 
amount only, that if there was an agree- 
ment to pay interest, then either it was a 
part of the agreement embodied in the khata, 
or was a separable agreement. If it was a 
part of the agreement to be embodied in 
the khata, then under S. 92 of the Evidence 
Act (I of 1872), evidence of it was not admis- 
sible. If it was a separate agreement, then 
it wovild not vitiate the agreement embo- 
died in the khata, which, apart from the 
separate oral agreement, could not be open 
to oljjction under S. 257 A of the Civil Pro- 



Sup: Govt, acts (I of 1872) (Contd.) 

cuduro Code (Act XIV of 1882). RAICHAND 

V. NARAN,-I. L. E. 28 B 310 ; 6 B L- 
R , 62- 

194. S- 92- Prov. (1). Contract Act (IX of 
1S7'J) s. HI — Unlawful consideration — Adultery. 

No Court ought to enforce a contract 
which, though on the face of it, is valid 
in form and matter, is shown by evidence 
to bo based, wholly or in part, on unlaw- 
ful consideration. It matters not whether 
the defendant pleaded illegality or not. If 
the evidence adduced by the plaintiff proves 
the illegality, the Court will not assist him. 
Adultery is an offence in India, therefore 
when adultery, past or future, is tlia con- 
sideration or an indivisible part of the 
consideration for an agreement entered into 
in India, this would make the contract an 
immoral and illegal agreement and the con- 
tract would bo void. Man Kuar v. Jasada 
Kuav (I. L. R., 1 All. 478) and Dhiraj 
Kuar V. Bikramjit Singh fl. L. K., 3 All. 
787) referred to. ALICE MARY HILL v. 
WILLIAM CLARKE. J. L- R- 27 A. 286. 
S. 25. See Contract Act. 
.195 S 92 prov: (1) and illustra- 
tion (e) — Contract — Mistake in agreement — 
rectification of — Specific Belief Act, la??, .f. 31. 

Evidence to prove a mistake in the t r ns 
of an agreement may be brought in a suit 
upon that agreement as well as in a suit to 
rectify the mistake under section 31 of the 
Specific Relief Act, 1877. 

Balkishcn Das v. Legge, (1899) I. L. R. 22 
All., 149; Maung Bin v. Ma lllaing, (1905) 
11 Bur. L. R., 281 ; referred to. Mahendra 
NaUi Makherjee v. Jogendra Nath Hoy 
Chandhuni, (1897) 2 C. W. N., 200, followed. 
NAR.VY.VN.SAWMY" v. RUDRIGNE/. 3 L- 

B. R.. 1903 p. 227- 

196. S. B2— Proviso (i) — Oral evidence— 
Wagering contract — Written agreement — Agree- 
ment, validity of —Contract, real nature of. 

Upon the true construction of S. 92 of 
the Evidence Act (I of 1872), and specially 
having regard to proviso (i) of that section, 
the decision in the case of Juggcrnath Seu) 
Bu.t V Bam Dyal (I. L. R., 9 Cal. 791) cauuofc 
be regarded as law. In order to enable a 
Court to arrive at a decision whether or not 
an agreement is void on the ground that it 
is by way of wager, the p.irty, who sets up 
that it is, should be allowed to go into ovi- 
denco to prove that it is so. Kong Fee Lone 
<D Co. V Laiojee Nanjee (I. L. R., 29 Cal. 401 ; 
L. R. 281, LA. 239) referred to. Per Wooro- 
fee J. If the validity of a written agreement 
is impeached, it is no defence to point to 
the apparent rectitude of the document and 
to claim protection ;roni enquirv under the 
rule embodied in S. 92 of the Evidence ..\ct, 
which exists against the contradiction and 
variance of the term.? onlv of those instru- 
ments, the validity of which is not in ques- 
tion. The instances mentioned in proviso 
(i) of that section are illustrative and not 
exhaustive. BENI IMADItUD DASS v. SA- 
DASOOK KOTARY.— 9. C. W. N 805=1 

C- L- J. 155 = 32 437. 



i 



( 217 ) 



CIVIL DIGEST OF GASES. 



( 21? ) 



Sup: Govt, acta d of 1872) (.Oomdj. 
1D7 S- 9:i. prov. (1) and (6) -Eoldcncc 

Oral evidence as io eoiitcit!^ •>/ docum'nls— 

Frnud—Want or /allure of consideration— 
Mort(ja<je — Sale deed. 

Ordinarily oral ovidonoo is not admissi- 
ble for tho purpose of ascertaining the inten- 
tion of the parties in interpreting langU'ige 
used in a written document whicli is clear 
and unambiguous. Unless the Court is able 
to assume some oral agreement it would bo 
impossililo to rcg.xrd tlio contemporaneous or 
Buli^ei'iucnt conduct of the p.irty, as in itself 
evideuoa to establish the intention of tlia 
parties at the time of tho execution of ths 
document. Such extraneous intrinsic evi- 
dence would nocossirily bo of value only as 
a ground for inferring an oral agreement 
wlioroof evidence is excluded by section 92 of 
the Indian Evidence Act 1S72. 

Tho fraud, which under proviso 1 of sec- 
tion 'J2, may be proved must be fraud which 
■would invalidate the document and therefore 
subsequent fraud in respect of tho document 
nob such as to invalidate it, could not bo a 
ground for admitting extraneous oral ovi- 
deuoo under proviso 1 of section 'J\i. The real 
effect of admitting such evidence would 
not be to prove fraud in the execution of the 
document, but the existence of different in- 
tention than that w'hich appears on the do- 
cument itself. In other words, it would bo 
an attempt to prove a different contract from 
that expressed in the document witliout 
proving auy fraud in tho preparation of the 
dooument wliiob would invalidate it. 

The "waut or failui-a of consideration" 
contemplated by the proviso 1 to section 93 
is a complete want or failure o£ considera- 
tion. 

Proviso 6 to section 92 does not cover 
facts which are intended to show that the 
language of the dooument means the exact 
opposite of what it purports to moan. There 
is no necessity for the explanation of the 
language used in relation to existing facts. 
The only object or use of such e /idence, if ad- 
mitted, would bo to show that the language 
was intended to mean something which is 
utterly incapiiblo of being expressed by that 
lauouage. KKSHAVUAO BHAGVANT v. 
KAYA PANDU. 8- B. L- R- 287- 

198- S- 92, proviso 2- Negotiable In- 
struiiicnts Act, S. HO— Or.it euidenoe of con- 
temporaneous agreement to pay interest — Pro- 
note silent. 

Where a promissory note is silent 
as to tho payment of interest, oral evidence 
is not admissible in proof of a contem- 
poraneous oral agreement to pay a certain 
rate of interest ; but interest at 6 p. c. 
should be awarded under S. 30 of tho Nego- 
tiable Instruments Act. FATHUilA BIBI 
V. HANUil.iN THA ROW. 1?. M- L- J- 

29S- 

193 S. 92- prov: (2)- l- Contract— 
Damages suit for — Breacli of contract — Licmsc 
to work in forest — Construction of contract — 



Sup: Govt, acts (I of 1872) COoJit I) 

Verb.il aijreo'nint, cjn'.eniporaneou'i — Eoldenct 
Act (I of IHii), s. 01 and 91, prooiso (^). 

One of two defendants in considera- 
tion of advances miio to him by thi plain- 
tiff for tho purpose of paying thj ost of 
obtaining the lease of a forest in the namo 
of his son, th3 other defendant, mide an 
agreement with the plaintiff that " wbon ray 
son returns !• will make him to arrange 
for you in soma way or other (or by any 
means) to go on working tho forest within 
the years for which written permit hxi b39a 
obtained. " The son was not a party to 
the agreement. 

Held, in a suit for damages for breach 
of contract in not giving the working of 
the forest to the plaintifis, that on its 
true construction, tho agresm-mt coatem- 
plated tlie making of a contract for work- 
ing tho forest only on the return of the san 
and loft all term 5 to bo then arranged ; 
and the pl.iiutiff was entitled only to re- 
cover tho advances with interest. An alleg- 
ed contemporaneous verbal agreemout a-i 
to the rates the plaintiff was to pay for 
working the forest was held not to be proved; 
and qiucre whether if proved, eridenoe of 
it would have been admissible with re- 
ference to s. 91. of the Evidence Act. — 
MiUXO SHWE OH V. MAUNG TUN 
GYAW, I. L. E-, 32 C 98; 9 C- W N- 
147 ; P- C- 

200 S 92 Proviso {2) -Interest— Act X.tr/ 
of liSl (Negotiable Iiittram'.nts). .S'. 80 — 
Hundi, suit on — Collateral ajrecmint as to 
intered—Hite of interest— Tin Usury Latos 
RspealAcl (XXVILl of ISii). 

Hundis the basis of the suit, were silent 
as to interest. Bat it was proved tint in 
accordance with the custom of tha district 
the parties had entered into a collateral agrao- 
nient, embodied in written doeamsuts, that 
ths hundis should bear interest at 3J pjr 
cent, pjr annum. 

He'.d, that S. 80 of the Negotiable Instru- 
ments Act, being an enabling section, was no 
bar to the interest at the above rue. GO- 
SWVMt SRI GEAN-^HIAM liALII v. RAM 
NAiiUN. 11 CW N- 105 (PC) =4 A- 
L.J 23=9 B.LR. 1 = 1 M L T 427 = 17 
M. fj J. 35 = 5 C- L- J- 7=29 A Sj. 

201 S. 92 Proviso (3)— Oral evidence Bii 

— ■fc!h%uii —Custom. 

In a claim of Hiq Jethausl in a partition 
suit the matter was referred to the Tshsildar 
for report. B,it before the miking of a re- 
port th3 pirnes presented a oompromisa 
whereby the plaintiff was to receive certain 
land as Jetbausi. The compromise was 
thereafter reojgnized or acted upon on three 
oaoisions. 

H^U thT,t the petition of oompromisa 
could not be said to contend the terms of a 
contract between the pirties such as is re- 
ferred to in S. 92 Evidence Act, but it it wera 
such a contract oral evidence as to th3 al- 
leged conditions precedent would be admis- 
sible under proviso (3) of tha,t Saotioa, IHA- 



( 210 ) 



CIVIL DIGEST OP CASES 



( 220 ) 



Sup; Govt, acts (I of 1872) fContdj 

KAR JANG BAHADAR SINGH v. THA- 
KARJAGDEO BAKHSH. 1 0- C- 301- 

202- S.92 -P'^oiHso 4 — Oral cuidence to vary 
the terms of a registered dced^Contract Act 
\lX of 1872) Section 63 —Discharge of liabilittj. 

An oral agreement cannot be admitted 
into evidence to show tliat the lessor agreed 
to accept from the lossoo a reduced rate of 
rent than stated in the registered lease. 

But the lessee miy prove that the lessor 
gave a discharge for the rent payable under 
a rofistered lease. KARAMPALLI UNNI 
KURUP i>. THEKKU VITTIL MUTHORA- 
KUT 26 M- 195. 

203- S- 92- Prov. (ij — Partnership bij re- 
gistered deed — Oral dissolution. 

Held, that when a partnership has been 
constituted by a registered deed S. 92 proviso 
(4) Evidence Act does not bar it from being 
dissolved by an oral agreement. 14 B. 472 
referred to. ABDUL RAHMAN v. ASGHAR 
ALI AND OTHERS. U- B- R 1902 P- 5- 

204 S. 92 Prov. (4)— Subsequent oral 
agreement vanjinej rent in a kabidiat. 

S. 92 (4) Evidence Act excludes the pro- 
duction of evidence of a subsequent oral 
agreement varying the rate of rent payable 
under the terms of a kabidiat, 22 M. 261 
followed. RADHARAWAN CHOWDHRY v. 
BHAWANI PR.\SAD BHOWIK. 6- C- W- 
N'62' 

205- S- 92- Prov (4) Oral transfer of 
liability to pay money under written contract. 
Held, that liability to pay money under a 
written contract may be transferred to an- 
other person by word of mouth with the con- 
sent of the creditor and the person taking 
upon himself the liability for the original deb- 
tor, the old contract being entirely rescind- 
ed or put an end to. Section 92 of the Evid- 
ence Act has no application to such a case. 
H. H. THE MAHARA,JA OP PARIDKOT v. 
MESSRS. BALL HUBSUN & CO. 69. P. L. 
R, 1903. =40. P. R 1903. 

206. S. 92, proviso 4. Agreement in 
writing registered— Oral evidence of discharge 
— idmissibility. 

An usufructuary mortgage deed was 
e:teouted in favour of S. who took possession 
of the mortgaged land. The deed was regis- 
tered. S died, and his adopted sou brought 
the present suit to recover a portion of the 
land so mortgaged, alleging that, during 
his minority, the first defendant had taken 
wrongful possession of the property. The 
first defendant was the heir of the mortgagor. 
His defence was that the equity of redemp- 
tion had become vested in himself and 
another as the heirs of the deceased mort- 
gagor; that he, as a person thus entitled to 
a moiety of the estate, had entered into an 
oral agreement with plaintiff's adoptive 
mother and guardian for the redemption of 
his share only, and that, iu pursuance of 
that agreement, he had paid her a moiety 
of the mortgage amount, and redeemed the 
lands iu que>;tion as falling to his share; 
Held that ho was not precluded by s. 92 



Sup: Govt, acts (I of 1872) fCoiHd.j 

(proviso 4) of the Evidence .4et from proving 
this oral agreement.— GOSETI SUBBAROW 
V. VABIGONDA NARASIMH.\M, I. L- R-. 
27 W. 368 =14. M. L J. 218. 

207' S- 92, proviso 4 Agreetnent for 
maintenance — Subseguent modification — Oral 
evidence — Enjoyment of lands for past main- 
tenance. 

A woman sued for arrears of maintenance 
due to her under a registered deed executed 
by the defendant in her favour. The de- 
fendant pleaded a subsequent oral agreement 
(settlement) between the parties by which 
he had placed her in enjoyment of certain 
lands in lieu of her claim under the deed. 

Held that the settlement pleaded was an 
agreement to rescind or modify the original 
agreement within the meaning o£ .S. 92 
proviso 4 & was thus inadmissible in evidence, 
and that plaiutifl was entitled to future main- 
tenance at the originally stipulated rate. 

Held also, that it was open to the defen- 
dant to plead discharge of the obligation to 
pay past maintenance by reason of plain- 
tiff's enjoyment of the lands in pursuance 
of the agreement to so discharge his liability 
even though the agreement itself could not be 
proved otherwise. KUTTIKA BAPANAMMA 
V. KATTIKA KISTNAilMA. 17 M- I». J. 30 ; 

SO M 231- 

208- S- 92 Pro. (5) Evidence of oral 
agreement varying t.rms of d icument. 

A advanced certain money to B and C 
on a bond. On the face of the bond, B and 
C were jointly and severally liable for 
the amount. Subsequently A sued C for the 
amount, foregoing in his plaint his claim on 
B on the ground that the latter could not 
be found. The Judge of the Court of First 
Instance admitted oral evidence to prove that, 
by the custom of the trade, B was the priucip.il 
debtor and C merely the surety, and, holding 
that the abandonm ut of the claim against 
B had the effect of releasing C, dismissed 
the suit. 

Held, that the learned Judge had erred in 
admitling oral evidence of a condition which 
was repugnant to and inconsistent with the 
express terms of the bond. Ha.e'i Chand B. b i 
and other.-! v. Bisliiin Chandra Bancrjce and 
another, (1903) R C W. N. 101 referred to LU 
GALE AND ONE t). MAUNG MO. 2- L- B. 

R. 1904 p. 268- 
209 S. 92 pro : (6) & 98—^^^0^3036 of 

a Taluka as hastobudi — Subsequent mortgage 
of sarbarakari rights — The nature • f security 
for plaintiff's loan — Evidence — Transfer of 
Properly Act, S. 8 — 

A sued B., C. and D. on a mortgage-bond 
executed by B. in favour of A. The loan had 
been secured by the mortgage of a taliika be- 
longing to B. Subsequent to A's mortgage, 
the sarbarakari rights of Bin two garhs at 
the taluka were mortgaged to C. & D. The 
question[for decision was whether the sarbara- 
kari rights iot .\. in the two garhs were also 
mortgaged to A Held: — 



( 221 ) 



OIVIIi DIGEST OF CASES 



( 222 ) 



Sup: Govt- acts (I of 1872) (Gontd). 

Per Paroiter j. — Evidence was admis- 
sible under Ss. 92 (6) and 98 o£ the Evidence 
Act, because it showed tiow the plaint docu- 
ment was related to existing facts and bo- 
cause the nature of the landed tenures was 
a special matter which could no-t bo stated 
off-hand but required to be elucidated by a 
reference to the particular facts. The villa- 
ges composing the garhs were definitely as- 
certained and recorded as sarharakari, only 
after the date of the mortgage to the plain- 
tiff. In the negotiations, that prccodoJ the 
plaintiff's mortgage, a list of all the villages 
comprised in the Taluk was given by the ma- 
nager of defendant No, 1 and in tliat, it was 
definitely stated that all the villages wore 
haHtobudi. As defendant No. 1 could not dis- 
pute that he mortgaged the villages in the 
two garhs as hastobudi, defendants Nos. 2 & 
3, who derived their title from him, could 
not bo in a better position. The result was 
that defendants Nos. 2 & 3 became pusin,- 
mortgagees of the sarbarakari rights in the 
two garhs. 

Per WoODROFPE^ J. — No. books or papers 
were produced to show that the Zemindari 
and sarbarakari rights in the villages were 
kept existing separately by defendant No. 1, 
From the terms of the mortgage to the plain- 
tiS, it was clear that detendaut No. 1> inten- 
ded to mortgage all the rights which bo tlien 
possessed. In the list, it was expressly stated 
that the villages comprising the garhs were 
hustobudl and not sarbarakari viUagas. Un- 
der S. 8 of the Transfer of Property Act, a 
transfer of property passes to the transferee, 
all the interest which the tronsferor is then- 
capable of passing in the propjrty and in 
the legal incidents thereof unlass a different 
intention is expressed or necessarily implied. 
In this case, both the superior aud tlie 
subordinate rights were vested in ane and 
the same person as Zemindar and the words 
in the plaint-bond being general, in the 
a'lsence of reservation of either, all the rights 
in llie mortgagor stood as security for the 
lo.vn. After the appeal was argued, the ap- 
pellant died and hence the High Court 
entered itsjidgnient nunc pro tunc and 
dated the judgment as on the date an 
which it was reserved and not on that it was 
pro lounced. \\\3k aOUR CHANDRA GA- 
JAl'ATHl NABAYAN DliB v. RAJA MA- 
KUNDA DEB. 9 Q. W- N- 710- 

210- S. 92, 93- Suit for ncoverij of haq- 
i-ckakar urn— Sale alleged to be disguised as 
a u-iufrucluary morlgagc^Admissiiiilitij of 
evl lence. 

The plaintiff sued to recover one-fourth 
of the price of a house alleged to have been 
sold by tho first defendant to the second 
defend-iuts, the claim being based upon a 
local custjm. The transaction between the 
defend lut was ostensibly not a sale but a 
usufructuary mortgage. 

He'd that the plaintiff, not being a 
party tj tlie trinsaetion, was entitled to give 
evidence to show that what purported to 



Sup: Govt aots (I of 1872) {Contd). 
bo a usufructuary mortgage was not in 
reality such, but was in facta sale. Rahiitian 
v. E'.ahi Bakhsh (I. L. R., 2S Gal. 70), .dis- 
sented from; Jigat Mohini Dasi v. Hakhal 
rhis Disazi (2 C. L. J. 333), and Palhatmnil 
V. Si/ed^JCalai Ilavuthar (I. L. R., 27 Mad. 
320), folMwed. BAGEiHRI D.VYAL v. PAN- 
GHO, I. L. R , 28 A 473 3 A- L J- 
314-A W N 1903 P 89 . ,, _ 

211- S-92&-39. Prr-cnption -Mortgage 

or Side I'] oidciicc to contradict the terms of a 

document, 

A pre-emptor is not precluded by S. 92 
of tho Evidence Act from showing that an 
ostoasil>lo mortgigo was in reality a sale. 

Ife'd, that transactions wharo tho form 
of a mortgage appears to have been adopted 
witli the ouj:ct of evading a pre-emption 
claim, must ue lookid with great suspicion. 
KirjfDAD KHAN v. NASAR KHAN. 

127 P-LR19Q2- 

212- S- 92- 99 ~ Oral evidence, admis- 
sibiUlgoj— Deed of gift, true nature of — Parlies 
— Strangers. 

S. 92, excluding oral evidenoe, applies 
only to parties to the instrument which 
is sought to bo contradicted or varied, and 
to their representatives in interest, S. 99 
enables strangers to an. instraineut to prove 
the real nature of the transaction by p.vrol 
evidence. 

When, therefore, A purported to make 
a gift of land to his daughter, B, it was 
ojica to a creditor of X, tho husb.ind ot 
B, to prove by oral evidence that the 
transaction was, in reality, a sale to X 
and that the propirty was, co-nsequently, 
liable t) he atti.;aed and sold in execu- 
tion of a decree obtained against him. 27 
I. A. 93=22 A. 370,^ followed. 6 C. W. N. 
(i). Distd. from 2S C. 70, not followed. 
J\G\.T M JH1>JI D.VSI V. RAKHAL, D.-IS. 

2- C L T 333. 

213- S- 92 and 93- Oi-al evidence con- 

traiicting termt of dMnm(;nt 

The plaintiff sued the defondaut, her 
father, for pjs-ieision of certain property uu 
the allegation that the property had b;ja 
gifted to her by her motlier's paturual aunt, 
though a deed of sale, inste.i.d of a deed 
of g,ft, was execatid in her favor. The 
defence was thit the property was pur- 
chased by the defendant and the deed of sale 
was execute! bniaini in favor of the plain- 
tiff. The suit was decreed but on appc-il 
the decree w.as sot aside on l\i<: ground 
that oral evidence was not admissible to 
prove that the deed was intended to opirate 
as a gift. 

Jl:ld that the decision of the lower 
appellate Cjurt was wrong, oral evideuca 
was not barred under section 92 of the 
Evidence Act, for the question did not arise 
a.s between the parties to the suit. 2b Cat, 
10 referred t<x P.\TH.\MVIAL «. SYED K..A- 
LAI RAVUrH\R. 21 M- 329- 

213 (a.1 S- 93 Contract ambiguous on Hi 
face -Eoid'nce to show intention of parties 
Civ. Pro. Code, S. 62i. 



( 223 ) 



CIVIL DIGEST OP CASES 



( 224 ) 



Sup: Govt, acts (I of 1872) {Conidj. 

A brought a suit for damages tor breach 
of a coulraot. D. J, held that the contract 
was ambiguous on. the £aca of it. But. he 
held, sthat evidence was admissible to show 
, the intention o! the parties, and ha acted 
upou such uv idence. HchK ibis was in con- 
travention o£ S. 93 o£ the Evidence Act, and 
illegal within the meaning of S. 622 of the 
Civ. Pro. Code. JOMaN v. AH YU, 14, B. 
L- R. 58- 

214- S- 94 — AdmisnhlHty of oral evidence 
to explain documents. 

The mere fact that words of inheritance 
do not oceur in a lease does not make it 
the less a permanent lease, if from the lan- 
guage of the document, taken as a whole, 
the objjot of the lease and other surround- 
ing oiicamstances such as the conduct of 
the parties it appears that their intention 
was that it should operate as a lease in 
perpetuity, L. B. 1900, A. C. 260, followed. 

Where the question is whether a lease 
to a person named in it is perpetual i. e., 
whether it is to him and his heirs, evidence 
as to the surrounding circumstances is 
admisiiblc because it explains what standing 
alone is capaljle of explanation whether a 
grant to A is a grant to him alone or 
to him and bis heirs. BABU SAMBHUSHET 
TELI 1.. SITARAM HABI PRABHU. 3 
B. L. R., 768. 

215 S- 94- Plaint — Atnendment of — 
Mistake — Limitation — Power of Receiver to sue 
—Limitation Act (XV of lti77), s. 19— 
Acknowledgmrnt of liability. 

By an order of the Court, the plaintiff 
was appointed Beoeiver in a certain suit 
with authority to sue for and recover 
an attached debt. Through some mistake 
in the office of the attorneys of the 
plaintiff in that suit, the money sought to 
■be attached was wrongly described iu the 
tabular statement as money due under the 
agreement of the 25th October 1895, where 
as it should have been the agreement of the 
2Gth August 1895, and the Court, acting on 
this representation, made the order, which 
applied to the alleged agreement of the 
2Glh October 1895. On application to 
amend the order and the plaint, or in the 
alternative to read the existing order as if 
it were in reality applicable to the right 
agreement: 

Held that no order for amending the 
plaint or the order could be made ; the 
amendment of the order would operate 
only as a new order, taking effect from 
the date on which it is made, and could 
not therefore operate as the basis or 
authority for the present suit. The 
plaintiff's authority to maintain this suit 
depends solely upon the order appointing 
him Receiver ; if it has been made under 
any mistake, it cannot, by any course of 
construction, be regaided as applying to 
anything other than the sul ject-matter 
spcciiicd by the order itself, the intention 
of the parties being immaterial. Iu order 



Sup: Govt, acts (I of 1872) (Contd). 

to satisfy the requirements of s. 19 of th" 
Limitation Act though a promise to pay 
need not be made out, it is necessary wheu 
the right claimed is a debt that an unequi- 
vocal and unqualified admission of the debt 
or a part of it or of the subsisting relation- 
ship of debtor and creditor should bu 
established. There is a distinction in this 
respect between the law of limitation ap- 
plicable in England and that iu force in 
this country. Fink v. Bnldeo Dcss, (I. L. 
R., 26 Cal. 715), distinguished ; Ve^ialat v. 
Parthasaradhi, (I. L. R. 16 Mad. 220), ap- 
proved of. BENODE BEHARY MOOKER- 
.TE15 V. RAJ NABAIN MITTER. J. L- E.-, 

30 C- 699, 7 C W- H- 651- 

216. S- 95. See S. 91, 95 & 97—30 M 
397-2. M. L. T. 336-No 156 supra. 

217- S. 97. See S. 91; 95 & 97—30 M 
397=2. M. L. J. 336-No supra. 

218- S- 98- See S. 92 & US— 9 C. W. N.- 
TIO— No 209 supra. 

219- S- 99- See S. 92 & 99 Seo Nos 210 
to 213 supra. 

220- S- 101. Onus of proof. 

The plaintiff sued the defendant alleging 
that he had lent the defendant a necklace on 
9th July, 1897, and that the defendant 
refused to return the uocl loo. The defendant 
denied the loan. He stated that on 31st July 
1897, the plaintiff pledged the necklace with 
him for Rs 50. On issue fixed, the onus 
of proving the loan was laid on the plain- 
tiff and the onus of proving the pledge on 
the defendant. Plaintiff gave no evidence. 
Defendant swore to the truth of his case. 
The court decreed the plaiutif.'s claim. 

Held, that the onus was rightly laid, 
there being a total denial of the material fact 
alleged by the plaintiff, he was bound 
under S. 101 of the Evidence Act to prove 
the existence of the fact. He failed to do so. 

Held, also possession is presumptive 
proof of ownership. MAHADIN v. RAGHU- 
BAB SINGH. 2 0- C- 59. 

S. 102 See S. 90 6 0. C. 142 No. sttpra. 

221 S- 102 — Burden of proof — Receipt of 
consideratio7i admitted in bond but denied bij 
executant. 

When the execution of a bond is admit- 
ted and the bond contains an admission that 
consideration has passed, it is for the execut- 
ant to get rid of the admission which he has 
admitted in the bond. It is not enough for 
him to prove that prior to the institution of 
the suit, he denied receipt of consideration 
even though th< denial was made before the 
registering officer. MAHABIB PEBSHAD 
BAI 1!. BISHAN DAYAL. A- W- N-, 1904- 

P- 163=1 A- L. T 423-27 A- 71- 

222 S. 102— -U«»*fi-!,'a«ia'. Burden of 
proof. 

Where in a pre-emption suit there was a 
dispute between the parties whether the 
price stated in the sale deed was fixed in good 
faith, and the parties produced no evidence 
of the market- value. 



n 



( 225 ) 



CIVIL DIGEST OF CASES. 



( 226 ) 



Sup:Govt actsdof 1872) (Conid.) 

Ui'lil, iIk! bar li:n of proving the market 
■ ' I lav upoi; the plaiutifi. 

I'lio plrtir.lUl could only obtain a pre- 
ion dccrco upon payment o£ the 
if (iny, admitted by tUo defendants to 
.■ market-viiluo or failing that the sum 

iioncd in the deed, but he could not, in 

• ase, be co'.iipjlled to pay more than the 
inoutioned m the sale-deed. HUBD.\R 
;Hi;. NANKOO, 6 0- C- 327. 

223 S. 102 & llO—Siut bij a Talnqdar 
fur ^ifdaratioii of proprietary title and 
tenant's ejectment — fh fence setting up adverse 
title — PrCiiunption of ownership. 

In this suit the plaintiff Taluqdar admit- 
ted tiiat the defendants were in possession 
since the year 18-57. In the year 1886, the 
Taluqdar served tUcra with a notice of eject- 
ment under Oudh Kent Act of 1868. On 
defendant's suit contesting the notice, the 
notice was cancelled. The plaintiff in Janu- 
ary 1S88 brought this suit against the defend- 
ants for his declaration of his proprietary 
right to the village and to eject the defendant 
whose tenancy was alleged to have com- 
menced in 18GC with a lease, for 1 year. The 
defendants denied tenancy and asserted their 
right as under-propriotors of the entire vil- 
lage, or at lease of the sir-lands, groves, 
houses, trees, and wells, and that the suit 
was barred by limitation. 

Held, that under section 102 Evidenoe 
Act the plaintiff would fail if no evidence was 
adduced by either sides, notwithstanding that 
the village is a part of the Taluqa and that 
rent has been paid. .\s defendants have Ijeen 
in possession for more than 12 years and 
under S. 110, Evidence Act, possession is 
prima facie proof of ownership and the de- 
fendants have set up adverse possession the 
plaintiff must give some evidence that defend- 
ants' possession was not adverse and that his 
title as a Taluqdar was subsisting when the 
suit was lodged by him. 

Held, further, as the plaintiff stated in 
his plaint that the relationship of landlord 
and tenant between the parties commenced 
in 1866, the plaintiff could not bo allowed to 
depart from that statement. 11 M. I. A., 24 
and 6 M. I. A., 410 followed. BHAGWAN 
BAKSH V. KAMTA PERSHAD. 6 0- C. 

119 

224. S. 103- — Suit for jjossession of an- 
cestral property sold during^ plaintiff's 
minority. 

Plaintiff brought a suit to recover one- 
half of certain ancestral joint property sold 
during his minority by his elder brother 15 
years before suit and that he came to know 
full facts one year before the suit. The first 
Court relying on his statement made in a 
previous case by which his age at the institu- 
tion of this suit appear to be 23 years dismis- 
sed his suit as time barred, as having not 
been brought within three years of his attain- 
ing majority under S. 7 Limitation Act. 

Held, that the suit fell under Art. 127, 
Limitation Act and the o^ius was on the 
defendant to prove that the plaiiftifi knew of 



Sup: Govt, acts (I of 1872) {CotilcT). 
his exclusion from jumt family property 
more than 12 vcars before suit. L\L GAUKI 
K.\NTu. SH.\NKAR 3AKSH SUSGH. 2 0- 
C 348- 

225. S. 105- — Attachment of properly in 
wife's name — Ontts of proof . 

A docree-holdor attached properties 
standing in the name of the j idgment-deb- 
tor's wife and certain other persona for many 
years. "The latter put in on objection, and, 
on its rejection, instituted a suit. The ques- 
tion to be decided was whether the property, 
which stood in her name and also iu an- 
other's name, was held benami,for her husband. 

Held, that, under S. lOO the omis lay oq 
the plaintiffs to show that the purchase 
money was supplied by the wife, and that the 
properties had been in enjoyment of the plain- 
tiffs, as those things were peculiarly withia 
the knowledge of the plaintiffs ; who had 
failed to discharge the onus. It should bo 
held that the purchase-money was supplied 
by the husband and that the properties had 
all along been in his enjoyment. W. li , 
312 and 8 C. 515 referred to. SANJIYAROYA 
PILLAI V. BALAMBIKA AXIMAL. 17 M. L- 
J. 339. 

226. S. 107 & 108— Burden of proof— 
Presumption as to death—Presumption as to 
date of dealli. 

A, a Mahomedan, died in 1881, and hia 
estate was divided amongst his heirs by an 
arbitrator. B, the eldest son of A, had disap- 
peared in 1870 and had not since been heard 
of ; and in accordance with a rule of Moha- 
medan Law, a share of the estate was set 
aside for him as a missing heir. 

C, the son of B, claimed this share, to 
which he would have been entitled, under 
Mahomedan Law, it B had been alivo at the 
time of A's death, but not otlierwise. 

Held, that the spe:;ial rules regirdiug 
burden of proof in sections 107 and 103 of the 
Indian Evidence Act could only be applied 
with i-.^feroiice to the date of the suit, and not 
to the question whether B was alive or dead 
on a specified prior date ; aud that the burden 
of proving that B was alive in 1881 lay i;pjn 
C, who affirmed it. Mazhar AH v. Budh liingh, 
(1834) I. L. R., 7 All., 2'J7 ; Rango BaUtji v. 
Mudiyeppa, (I.S08) I. L. R., 23 Bom., 296; 
followed. :M00LL\ CASSIM BIN MOOLLA 
AHIIKD V. MOOLLA ABDUL RAHIM. 4 

L B. R . 1907. P 77- 
227- S. IQS— Presumption of death — 

Onus. 

Section 108 does not require that the Court 
should hold the person dead at the expiration 
of the seven years therein indicated, bat 
merely provides that the burden of proving 
that he is alive at the time of tlie suit is 
shifted uu to the person who affirms it. N.\- 
RAYANBHAGWANT c. SRINIWAS TKIM- 

B.VK. 8BL.R, 228 

223. (a) S. lOS.-ir/w/t death presumed— 
Person not liiard f for seccn yean. 

SectionlOS eont'miplates whether a man 
is alive or dead when the question is raised, 
and not wheher he was alive or deid at soma 
previous date. 



( 227 ) 



CIVIL DIGEST OP CASES 



( 223 ) 



Sup: Govt, acts (I of 1872) {Conid.) 

It is on the person, who alleges that the 
person was dead at antecedent time, to prove 
that fact by evidence. FANI EHUS.'iN BA- 
KEHJEE V. SURJA KANTA llOY GHOW- 

DHURY. 5 C- L- J. 649=11 C. W- N-, 883 
=85 C- 25- 

228- (b) S- 108" Persumption as to death 
— Onus. 

S. 108 provides for the question whe- 
ther a man is alive or dead, when the 
question is raised, and not whether he 
was alivo or dead at soma antecedent date; 
the law raises no presumption as to the 
time of his death, and the presumption 
that may, in certain circumstances, be 
raised, is a presumption that the man is 
dead when the question is raised, and not 
a persumption that he was dead at some 
antecedent date that fact must be proved 
by special evidence. FANI BHUTAN 
BANEBJEB c. SURJA KANTA ROY CHOW- 

DHURY. 5 C- L- J- 649 = 11 C- W- N- 
683=35 C- 25- 

229- S- 108. — Succession — Grand-children 
by predeceased son — Presumption of death of 
missiv'j person — Oniis. 

Under the Mohomedan Law, grand- 
children are entirely excluded from tlie 
inheritance by their uncles and aunts. 

A, the son of H, was missing for 14 years 
before the death of H. Now G, the sou of A, 
sued to share in the estate of H ; it was 
held that under S. 108 C had to prove 
that his father, A, had survived his 
grandfather, H. 

Held that this onus was not discharged 
by proof that, in an arbitration-award 
made 1 years after H's death a share had 
been set apart for A., because this was 
consistent with the principle of IMahomed- 
an Law that a share ougtic to be reserved 
for a missing heir. MOULLA CASSIM v. 
MOOLLA ABOUL UAHIM, 2 C- L.J- 236 

rP. C.) = 15 M L J. 317 = 7 B. L- K 892 
= 2 A. L.J 798 = 10 U. W- N 33 33 C 
173 

230- S, 108- See S. 107 & 108 4 L. 13. 

R I'JUT P 77 supra No. 

231- ' S. HO- Possession— Declaration of 
title — Unit by person in possession for declara- 
tion of title — Bi'.rden of proof — Effect of 
•plaintiff's possession - Presumption of title. 

The plaintilfs brought this suit in 1893 
for a deelaratiou that cerlaiu laud in the 
village of S belonged to them, and that 
they might be confirmed in p.Jssessioii. 
They alleged that they purchased the h;ni 
iu July IbSS, from the paid of the vil- 
lage, and had been iu possession, ever since, 
and that their vendor had previously been 
in possession. They now sued because 
their po';so'jbi>u had been threatooed by 
the oriiers of Government officials. It was 
admitted that the plaintiffs hid been in actual 
possession since i8S8. The District Judge 
Jield that the Lurdeu of proof of title 
to the land lay upon the plamtifls. He was 



Sup: Govt acts (I of 1872) {Conld.) 

of opinion that they had failed to prove 

it, and he dismissed the suit. 

Held, per Jenkins, C. J., and Banade, 
J, {Whitworth, J., dissenting), — that the 
plaintiff's being in possession (not shown 
to have wrongfully originated) sucn pos- 
session was good against the whole world 
except a person who could show better 
title : that the burden of proving such title 
lay therefore upon the defendant ; that ha 
had failed to prove it ; and that there- 
fore the plaintiffs were entitled to the de- 
claration sued for. Per Whitworth, J. : — 
That the evidence did not show such pos- 
session in the plaintiffs as under s. 110 o£ 
the Evidence Act (1. of 1872) shifted the 
burden of proof upon the defendant ; that 
prior to the alleged sale to the plaiutifia 
iu 1888, the defendant had been in the 
pos'tion of an absentee owner of the land 
in question represented partly by the vil- 
lage ofiioers and partly also by the vil- 
lage community, and that he might be 
said to be iu possession : that the sale to 
the plaintiffs iu 1888 by the patel of the 
village, who should have protected the 
defendant's interests, was a wrongful act ; 
that the plaintiffs were therefore not re- 
lieved from the burden of proving their 
title, and that they have not proved it. 
Per Ranade, J. : — When a person in pos- 
session of land has been dispossessed and 
sues to recover it, the fact of his previous 
possession will not entitle him to a dec- 
ree unless he sues under s. 9 of the Specifio 
Relief Act (I. of 1877) within six months 
of the date of dispossession. If he sues 
after the six mouths have expired, he 
must prove a Prima facie title. In such 
a case ho is entitled to a decree unless 
a superior title is proved on the other 
side. It is iu reference to such cases 
that it has been held that possession is 
evidence of title, and that the plaintiff, 
who proves such possesiiou and subsequent 
disturbance, shifts the h irjeu of proof ou 
tlie defendant when the prima facie title 
is made out. When no such prima facie 
title is made out by the plaintiff wha 
asks for a declaratory deci\e, he cannot 
obtain that decree on the m -re ground that 
he was iu possession and thj defendant 
had no title. More wrongful possession ij 
insufficient to shift the burden of proof. 
HAXMANTBAV c. SE'JllErARY OF ST.-iTEl, 

I. L R. 23, B 237 

232- S- 110- — Denami Transaction — Bur- 
den ofprujf -Admisiion — Pre-mmption of title 
from, possession —Sale deed admitting title of 
sendee. 

Plaintiffs' father and the defendant, who 
were brothers, had sepirated and partitioned 
thair ancest al'ostate. After tli; death of the 
father o( liie plaintiffs, they naturally came 
under the protectiou of tlieu- uncle, the de- 
fendant. (Joe of the plaint. fl-i, describing 
himself as the guardian of his minor brother, 
executed a sale deed iu favour of the defend- 
ant, by which he purported to sell to the 



( 229 ) 



CIVIL DIGEST OF CASES 



( 230 ) 



Sup: Govt, acts (I of 1872) {Contd) 

latlor a cofloe garden which was described in 
the deed as having boon eujiyod by his fatlior 
during the life Umo and as belonging to him 
and his brother after his death. The plaintifirt 
brought this suit to recover the coffee garden 
from the defendant. The High Court relying 
on the sale deed as containing an admission 
of the plaftltiffs' title to the property, decreed 
the i^laintiffs' claim. It was no body's case 
that it was a real sale. Held, by tlie Judicial 
committoo, that the High Court was right in 
80 using the document. HcUl, also that in 
order to displace the apparent title of the 

Elaintiffs and to establish a beneficial title in 
imself, it was incumbent on the defendant 
to show by satisfactory evidence that the 
funds out of which the garden was purchased 
and developed, were his own funds. PULLT- 
AMPATTI NARNIER v. KUPPIER. 9 C- 

W.N-89;P. C 

233- S. 110. See S. 102 and 110-6 0. C. 

119 No. 223 supra. 

234- S. 110— Defendant in possession sets 
up (jift oiitiiijlit — Plaintiff alleges permissive 
use, burden of proof. 

Held that where the Defendant is in pos- 
session of land, and there has been no 
wrongful dispossession of the Plaintiff, and 
the Plaintiff assorts that he gave the do- 
fondant permissive occupation, and the De- 
fendant asserts that ho obtained the land 
by gift outright, the burden of proof lies 
on the plaintiff to show that he gave per- 
missive acoupation and that he has a sub- 
sisting title. 2 U. B. B. 1802—96 P. 371 and 
2 U. B. R. 1897—01. P. 421 referred to. 

Held that as Defendant is in possession 
under S. 110 Evidence Act he could retain 
thit possession unless the Plaiutiff proved 
h a subsisting title to have the land. 'MAUNO 
TUN r. ^rvUNG PA u.— U- B R 1903 p. ". 

235- S. 110 rossesdun^]VroLful di.-^posacs- 
sion — Spccijic Belief Act S. 9 — Unit based on 
title. 

Held that in S. 110 Evidence Act pos- 
session means actual and present posses- 
sion, and that in suits (otiier than suits 
under yoctiou 9, Specific Keliet Act in which 
wrongful dispossession is alleged) the burden 
of proof lies upon the plaintiff to prove 
title as well as the wrongful dispossession. 

Held further that in such suits evidence 
of previous long possession is evidence of 
title. 8 W. R. 380, 12 W. R. 472, 20 W. R. 
4.58, 7. I. A. 73, 5, 0. L R. 278, 8. B. 371, 25, B. 
287, 25. M. 179. 20 G. !^34, 12. A. 16. 2 U. B. 
R. 1897— 1901, P. 421. MI BIN KIN «. NGA 

LI-U B. Pv 1905 P- 7 

236- a. HI— Good faith— Trust .iet, S 96.— 
Section 11 of the Evidence Act applies 

to the question of good faith arising under 
S. 96 of the Trusts Act. HASANALI v.— 

ESMAIL JI 9B L. R 606- 

237 S. Ill — Position of active confidence — 
Mortgagor and mortgajee — Burden of proof — 
Proof of consideration for mortgage boiiil. 

On the facts of this case which was a 
Buit on two mortgage bonds. I 



Sup: Govt, acts (I Of 1872) {Cotiid) 

Held (affirming the decision of tlic Ifluh 
Court) thit the plaintiff was not in a posi- 
tion of "active confidence" towards the de- 
fendants within tho meaning of section 111 
of the Evidence Act (1 of 1872), and that 
the consideration for the bonds was fully- 
proved. THAKAR DAS v. JAIRAJ SINGH 

9 C- W- 569=81 I A 46 = 26 A 130 

238 S- 111— Pardanashin lady — Execu- 
tion, of bond bij^ Undue injliicnce — Considera- 
tion— liurden of Proof — Issue — Omission to 
frame — Irregularity. 

The plaintiff sued the defendant, his 
maternal uncle's daughter, a parda-nashia 
lady, residing at Delhi, on a registered bond 
for Rs. 10,000, executed by her. The defen- 
dant had been brought up at the house of 
the plaintiff and married from there. The 
bond was registered at the plaintiff's houso 
at Hathras in tno absence of the defendant's 
husband and recited that the money borrjw- 
ed had been spent in constructing a house. 
The defendant admitted execution of the 
bond and pleaded that the bond was without 
consideration and fictitious having been exe- 
cuted for fear of her husband who was addic- 
ted to extravagance and waste and that some 
money had been advanced by the plaintiil to 
her in lieu of wich a garden had been sold to 
him. The plaintifl's replication was that he 
had paid cash both for the garden and the 
bond. The original Court dismissed the suit 
and held that payment of consideration for 
the bond w.is not proved. On appcil, it wa3 
contended that the execution and registra- 
tion of th3 bond having been admitted the 
burden of proving want of consideration lay 
on the defendant and that th j originil Court 
should have framed a specific issue as to t'la 
pxsiing of consideration for the sale of the 



Hl.-l, that though tho onus of proving 
want of free consent and of consideration for 
the bond lay on the defendant, yet under tho 
circumstances of tho pirticular case it was 
shifted on tho plaintiff, who was in a posi- 
tion to completely dominate her will and she 
wiK powerless to rcs'st him. In such a case 
strictest proof of good faith and fair dealing 
was necessary and the plaintiff had failed to 
adduce it. 

Hel !, also, that the issue as to tho pay- 
ment of the purchase-money for tho garden 
was subsidiary and t'le plaintiff was not prc- 
jaiiced in any way by the omission. — 13 M 
I. A., 573 (P. C), 12 B. L. R., 3 )4 (P. C). 21 
All, 71 (P. C.) referred to. HOTI L\L v. 
MU.SSAM1IAT RAM PIARI, 77 p. R., 

1903=9 PR 1904 

239. S. Ill & Z^Fi'aud — Undue infl'ien:e 
— CocrsioH. 

S, the plaintiff, obtained from A, a T 1 iq- 
dar Raja, a perpetual lease of some villages for 
a certain rent. Tho Raja died 14 years after 
the lease and was succeeded by his son P, the 
defendant. S. sued for caucellatioQ of a new 
lease obtained by P. on tho obligation that 
P, who was an Honorary Magistrate, got one 



( 231 ) 



CIVIL DIGEST OF CASES. 



( 232 ) 



Sup; Govt, acts (I of 1872) (Conld.) 

K. to briug a Criminal case against S. in the 
Court of P., the detendaut, and tliat S. was 
kept in a lockup and forced to accept a new 
lease. Held the facts stated in the plaint 
shew real authority on the part of P. over 'i, 
aud that P. used his authority to obtain an 
advantage over S., which P. but for that 
authority could not have obtained. 

HeW, that it was proved that undue in- 
fluence was exercised by P. over S. 

Held, also that it was for the defendant 
to prove that under the circumstances of the 
case the transaction was true one. RAJA 
PABTAB BAHADAR v. SHEOBAJ AHIK. 

1 C 63 

240' S- 112- — Child — Presumption as to 
paternity of child born after death of husband 
— Non-access, x^roof of — Burden of proof — Ill- 
ness of husband rendering act of begetting a 
child improbable. 

To rebut the legal presumption under S. 
112 of the evidence Act (I of 1872), it is for 
those, who dispute the paternity of the child 
to prove non-access of the husband to his 
wife during the period when, with respect to 
the date of its birth, it must, in the ordinary 
course of nature, have been begotten. Where 
a wife came to her husband's house a few 
days before he died and remained there up to 
the time of his death, aud it was shown that 
a child, alleged to be that of her husband 
was the child of the wife, and that it was 
born within the time necessary to give rise to 
the presumption und«r S. 112, the Judicial 
Committee, in the absence of any evidence 
to show that the husband could not have had 
connection with his wife during the time she 
was rosidiug with him, held (reversing the 
decision of the High Court) that the pre- 
sumption as to the paternity of the child 
giveu by S. 112 must prevail. The fact that 
tlie husband was, during the period within 
which the child must have been begotten, 
suffering from a serious illness which termi- 
nated fatally shortly afterwards was held, 
under the circumstances, not sufficient to re- 
but the presumption. NARENDKA NATH 
PAHARI r. RAM GOBIND PAHAIU. 6- C- 

W- N- 146=4 B-L. R. 423=29 I A- 17- 
P- C=29 C- 111 (P. C) 

241- S. 112- — Marriage, Continuance of — 
Presumption— Legitimacy — Divorce — Burden 
of proof. 

It is a well recognized rule of law that 
when a particular relationship is shown to 
exist, such as marriage, then its continuance 
must prima fade be presumed. 

In the present suit the legitimacy of the 
plaintiff was in question. 

Held, that according to the provisions of 
Section 112 of the Evidence Act, the burden 
of shovriug that the divorce of the mother 
of the phiiutiff took place at a time which 
disentitled the plaintilf from relying on sec- 
tion 112 lay on the defondants, aud it was 
not the plaintiff's duty to show when the 
divorce took place. If the defendants were 
unable to show that the divorce took place 



Sup: Govt, acts (I of 1872) (Cnnt<!). 
at a time which excluded the plainlitf trom 
the operation of section 112 of the i'jvideiicu 
Act, thou the conclusive proof in favour of 
the plaintiff arose and could only be dis- 
placed by its being shown that th; parties to 
the marriage had no access to each otlier at 
any time when the plaintiff could have been 
begotten by his mother's husbaud|fcBHIM.\ 
V. DHULAPPA. 7 B. L- R- 95- 

242- S- 112- Presumption as to paternity 
of cliild born after death of husband — Onus. 

Where a child was born aftnr the death of 
the husband, under such circumstances as 
to give rise to the presumption undor s. 112 
of the Evidence Act (I of 1S72). Held, in 
a suit by the appellants to dispute the 
paternity of the child, that the burden of 
proof lay on them, and that on tlio evid- 
ence the presumjition was nor. r.'buttcd 
TIRLOK NATH SHUKUL v. LAOHMIN 

KUNWARI. 7 C- W- N- 617; p. C, =5. 
B. L- R- 474=30 I A- 152 (P Cj 25 A- 
403. 

243. S- 112- IlindiL Law—Juint Family 
— Presumption as to paternity applicable only 
to offspring of married couple. 

In a suit by an illegitimate son of a de- 
ceased Ghetti against the adopted son and 
brother of his late father for ,i share in iiis 
father's estate, or, in the alternative, for 
maintenance: Held that the claim for a J 
share must fail as it was not shown that I 
the deceased had left any separate or self- I 
acqired property. The family of the deceased 
(consisting of his father and two sous, of 
whom ono was the deceased) was not [shown 
to have had any ancestral, but it had ac- 
quired property by trade in which the father 
and the two sons were jointly engaged. 
There being no indication of an intention 
to the contrary, it must be presumed that 
the property thus acquired was held by 
the members of the family as j jint property 
with the incident of the right of survivor- 
ship. Inasmuch as the Plaintiff's father 
had predeceased his father and brother, plain- 
tiff could claim no share as against his 
grandfather and uncle; aud, as he was 
illegitimate, he could not represent his father 
in the undivided family. Ramallnga Mup- 
panx. Pavadai Ooundan, (I. L. R., 25 Mad. 
519), referred to. The fact that in the present 
case there was a son in existence besides 
the illegitimate son, made no difference, in 
principle, between this case and the oases 
already decided. Held also that plaintiif was 
entitled to maintenance. An illegitimate 
member of a family, who is not entitled to 
inherit, can be allowed only a compassionato 
rate of maintenance and cauuot claim in.iiu- 
tenance on the same princiijles and on the 
same scale as disqualified heirs and females 
who have become members of the family 
by marriage. But regard should be had to 
the interest which the deceased father of 
the illegitimate son had in the j liut family 
property aud the po'^ition of ms mother's 
family. Arrears of maiuleuance awarded for 



( 233 ) 



CIVIL DIGEST OF OASES 



( 234 ) 



8np: Govt, acts (I of 1872) rContd). 

a period of nino years prior to the suit- 
The presumption as to paternity in section 
112 of the ludiau Kvidonce Act only arises 
in connection with the offspring of a married 
couple. A person cl.iiaiiug as an illegitimate 
son must establish his alleged paternity in 
the same manner as any other disputed 
question of relationship is established. — 
OOVALASAMI CHETTI v. ARUNACHKL- 
LAM CHETTI, 27 M. 32- 

244- S- 112- Lcgilliitacii— Presumption — 
Maintenance — lllcgilimate children. 

Held, that the presumption, that children 
born of a married woman during the life- 
time of her husband are the legitimate 
offspring of that woman and har husband, 
is rebuttable and tha' it was rebutted by 
the plaintiffs in this case. 

Illegitimate children are entitled to be 
maintained till they come of age from the 
estate of their natural father. BaH.\DUR 
SINGH V. VIRU. 28- P- B- 1906- 

245- S- 112- Ijegitimacy—Childborn during 
mariiaije — l'rcsn>ni>lv>n. 

Held that under s. 112 of the Act there 
is a conclusive presumption that a child born 
during the continuance of a valid marriage 
between the parents of the child is a 
legitimate issue of thoio parents, it matters 
not how soon the birih may acour after 
the marriage. In this case the plaintiff sug- 
gested that the marriage took place about 
7J months before the birth. The Chief Court 
referred to Amir All's Law of Evidence P. 
617, where it is stated "that under S. 112 
of the Evidence Act which is baaed on Eng- 
lish law a child born during wedlock is 
presumed to be the legitimate issue of such 
parents. Ko matter how soon the birth be 
after marriage. When a man marries a wo- 
man whom ho knows to be with child, ho 
may be considered as akuowledging by a 
most solemn act that the child is his. 
The present Section considers a child legi- 
timate who is born of parents married before 
the time of his birth, though they were un- 
married when he was begotten (or his con- 
ception took place)" UMRA v. MOHAMAD 
HAYAT. 79- P R. 1907. 

246— S. 114.— Sfc 6'. 70 and Hi— 7 C. W. 
N. 38i No. 120 Supra. 

247— S- Hi.— Presumption from the word 
"refused" on a letter containing notice to guit 
whether it was duly presented to the addressee 
— Whether judgment was pronounced on the 
date H bears. 

The date borne by a decision is not con- 
clusive evidence of the date on which it was 
pronounced according to law. 

The effect to be given to the word 're- 
fused' on a registered cover as proof of tsn- 
dei- of the packet to the addressee, is one 
of fact on which it is impossible to lay down 
any general rule. Each case must he deci- 
ded under Section 114 of the Evidence Act 
according to its peculiar circumstances. f\w 
L. G's. held that notice was not duly ser- 
ved in the present case and the H. G. re- 



Sup: Govt, acts (I of 1872) (Oontd) 

fused to interfere in their decision. GOP.\L 
RAOHUN.ATH KULKARNI v. KRISHMA. 
3 B. L. R , 420 

248. S- 114 — Presumption can not shift the 
burden of proof. 

Where the fact giving rise to a presump- 
tion under S. 114 is undisputed and no ex- 
planation negativing the presumption is given 
the Court may lay the burden of proof on 
the p.irty against whom the presumption 
is made. But where explanation nogativin''' 
the presumption is given the Court should 
not make the presumption without hoariu" 
evidence in support of the explanation. Such 
a presumption can not shift the burden of 
proof, at (he most it can shift the burden 
of evidence, and S. i gives tha Court dis- 
cretiou to decide whcoher such a presumption 
is strong enough to proiuoe even that limited 
eSeot. 29 C. 331 dissented from. PAKKOO 
MUSALMAN v. DAYALL 1. S. L- R. 139. 

249' S' 114 (e)— Presumption — Irregulari- 
ty of sale. 

The onus is on the person who seeks 
to have a sale sot aside, to establish thit 
the requirements of the statutes had not been 
complied with by the Collector under tha 
Revenue Sale Law Act XI of 1359 (Bsngal) 
SHEIKH JiIOHAMMED AGHA a JaDU- 
NANDAN JHA.— 10. C- W. N- 137- 

250- S- 114 (O) — Onus -Resumption and 
transfer— Act VI of 1S70 (Bengal. ) 

Held, per Mitra and Woodroffc, J. J. — 
When the pLvintiS sues for the recovery of 
possession of land on the allegation that 
the laud is Ckaakilari Chakran land and 
lies within his Zemindari and the Collector 
has transferred the same to him, ho is 
bound, in the first instance, to prove so 
much of his case as has been denied or haa 
not beeu admitted by the defendant. 

It being found that the laud was not 
ChauTiidari chakran land and did not lie 
within the Zamindari of the plaintiff, any 
transfer made by the Collector, in hia 
favour under S. 50 of the Act, is not author- 
ised by the Statute and does not confer 
any title on him. The mere fact that tha 
Collector has made the transfer does not 
raise any presumption that the land was 
Chaukidari ckakran land and that the 
Collector acted within the Statute. Section 
114 of the Evidence .\ct has no application 
to such a case. — 21 C. 626 and 24 B. 435 
followed. 

Per Pargiter, J. Contra.^-V nior S. 114 
of the Evidence Act there is a presumption 
that the resumption was made legally, and 
by S. 61 of the Chaukidari Act, the resump- 
tion is final. EA.TA NARENDRA LAL 
KH.\N V. JOGI HARI.— 2. C- L- J- 107- 

251 S- 114 {e)—Bcvenue-saJe—Act XI of 
ISJO. s.?. 5, 6, ?, 93 -Ben. Act VII of ISGS, s. 8 
—Certificate of sale — Gnus of proi'f — yolicc — 
Irrcgulaiity and illegality in form aid sercice 
In a suit to set aside a sale for arioars of 
revenue, the onus of proving that there has 
been irregularity or illegality iu the prepara- 



( 235 ) 



CIVIL DIGEST OF OASES 



( 236 ) 



Sup: Govt, acts (I of 1872) (Ooiud.) 

tion, service or j^ostiug of notice rests on the 
person who socks to have the sale set aside. 
The Presumption under s. 114, cl. (c) of the 
Evidence Act would arise in respect to the 
service of such notice until the contrary is 
proved. Aslianullah Khan Hakadiir v. Tiilu- 
chan Bagchi, (I. L. R., 13 Cal. 197) and Horro 
Doyal Hoy Chowdliri/ v. Mahomed Gael Chou>- 
dhnj, (I. L. R. 19'Cal. 699), distinguished. 
The fact that the inadequacy of price fetch- 
ed at the sale was the result of the irregu- 
larity complained of may bo cither ostablisli- 
ed by direct evidence or inferred, when 
such inference is reasonable, from the na- 
ture of the irregularity and the extent of 
the inadequacy of price. In a sale for ar- 
rears of revenue, after the certificate of title 
has been issued to the purchaser, s. 8 of Bon. 
Act VII of 1868 will operate as a bar to a 
suit to set aside the sale on the ground of 
irregularity in serving and posting notioe.i 
under s. 6 of Act XI of 1859. Lcda Moba- 
ruk Lai v. The Secretary of the State for 
India in Council, (I. L. R., 11. Cal. 200) and 
Bal Mokoond Lai v. Jirjii Dhun Roy, (I. L. R., 
9 Gal. 271), distinguished. Omission to serve 
notice under s. 7 of Act XI of 1859 can hard- 
ly render a sale for arrears of revenue liable 
to be annulled under s. 33 of that Act, 
especially after issue of the certifioate of title 
to the purchaser. Gdbind Chandra Gango- 
padhya v. Sheraj imnissa Bibl, (13 C. L. R., 1) 
and Mahomed Ashar v. Raj Chunder Roy, (I. 
L. B., 21 Cal. 354), referred to.-SlIEOUUT- 
TON SINGH V. NETT LOLL SAHU, I. L. 

R . 80 C 1- 

252 S- 114 (,e)—Presum2}tion -Whether 
Sarisktedar was authorised to sign a warrant 
under S. ^51. C. P. C. 

It could not be presumed under S. 114 
(e) that the Sarishtedar had been appointed 
by the Court to sign a warrant under S. 251 
C. P. C. Under S. 114 (e) the Court is author- 
ized to presume that an appointment, if 
made, has been made regularly, but it is not 
authorized to presume without evidence 
that any particular appointment has been 
made. THE DEPUTY LEGAL REMEM- 
BRANCER V. MIR SARWARJAN 6 C- W- 

N- 1902 P 845- 

253- S- 114 III- ig) 'and S. 4— Presump- 
tion — Wliere a person does not produce a docri- 
mcnl. 

Where a party having a document in his 
possession does not produce it the Court may 
presume that its production is damaging to 
his case. S. 4 gives the Court a judicial dis- 
cretion to decide in each case whether the 
presumption rising from non-production of 
the document has been duly made. The 
Court, may, however bo induced by circum- 
stances to call for confirmatory evidence 
that the document was against the interest 
of the non-producer. RAGHUNATH u. HOTI 
LAL. lAL. J. 121- 

254- S- 114 (g)-iioad cess Belurns-Returns 
made under S. 90, Bengal Cess Act (Bengal 
Act IX of IStiO) — Enhancement of rent. 



Sup: Govt, acts (1 Of 1872) rContrrt. 

In a suit for enhancement of the rent of 
a taluqdar tenure, road-cess returns rendered 
under S. 95 of the Bengal Cess Act (Bengal 
Act IX of 1880), though not conclusive, wera 
hold to be admissible in evidence as a basis 
on which to ascertain the assets of the taluq, 
and so fix a fair and equitable limit of en- 
hancement. When such returns, produced 
by the plaintiff, showed that the taluqdars 
wore receiving from their sub-tenants a con- 
siderably higher rent relatively than that 
which they were paying to their superior 
landlords, and that the claim for enhance- 
ment could prima facie be supported on the 
ground that the existing rate was conse- 
quently not "fair and equitable" within tho 
meaning of the Bengal Tenancy Act, they 
wore held sufficient to shift the onus to the 
defendants to rebut the presumption so 
raised against them. To rebut such presump- 
tion the defendants might have produced 
their collection papers, but did not do so. 

Held, that tho Court was justified in 
acting on the presumption under S. 114 (g) 
of the Evidence Act (I of 1872.) HEM CHAN- 
DRA CHOWDHARY v. KALI PBOSANNA 
BHADURi. 30 1 A- 177=8 CW- N. 1 
=30 C- 1033' 

255- S- 114 (i) See S. 34 and 114. 29 C, 
334 P. C. No. 6i supra. 

256 S- 115— See ss. 68, 69, S 115—4,. Q. C. 

40S No 119 Siq>ra. 

257 S- 115— Minor— Estoppel — Statement 
known to be false by persoti to whom it is made. 

S. 115 of the Evidence Act (1 of 1872) 
does not apply to a case where the statement 
relied upon is mide to a person who knows 
the real facts and is not miiled by the un- 
true statement. There can be no estoppel 
whore the truth of tho matter is known to 
both parties. A false representation made to 
a person who knows it to be false is not 
such a fraud as to take away the privilege 
of infancy.— MO HORI BIBEE u. DHAR- 

MOD.AS g'ho.se. I. L- R-. 30 C- 533; 7 C- 
W N- 441 ; p. C- 

258 S- 115. — Estoppel — Judgment not in' 
ter partes. 

A person is not bound by the judgment ia 
a case in which he was no partj , although 
he may have derived his title to the proper- 
ty in suit by purchasing it at an execu- 
tion-sale, subsequent to the judgment, from 
some person who was a party to it. Such 
j idgmont may be admissible only to show 
that there was a litigation as to the pro- 
perty and that the plaintiff, as betsveen the 
theri parties to the litigation, asserted his 
claim to it successfully.— BRO.JENDRA KU- 
MAR BOY V. GOPI MOHAN ROY. 7. C- 

W- N- 574. 

259 S- US.— Estop)pel— Civil Procedure 
Code (Act XIV of 18S:iJ, ss. 401 et seqq.—Suit 
in forma pauperis — Death of plaintiff. 

' The plaintiff in a suit brought in forma 
pauperis died, but in ignorance of her death, 
tho Court passed a decree in her favour. 
The defendant appealed, making respondent 



( 237 ) 



CIVIL DIGEST OP CASES. 



( 238 ) 



Snp: Govt, acts (I of 1872) [Contd.) 

to his appeal a lady whom ho alleged to be 
the legal roprescutative of the deceased plain- 
tiff. Ou this appeal, an order was passed 
by consent of parties sendiug back the suit 
to bo re-tried on the merits as between the 
defendant and the person nominated by 
bim as plaintiff, and it was so re-tried, and a 
decree was again passed in favour of the 
plaintiff. 

Held toat it was not thereafter open to 
the defendant to object that there had been 
no inquiry into the right of the represent- 
ative of the original plaintiff to sue as a 
pauper.— AKBAB HUSAIN v. ALIA BIBI. 

I. li R , 25 A 137 

260 S- 115— Pm^ertij held by head of a 
Mutt — rresiiniption. 

Where the head of a Mutt applied for 
and was allotted shares in a Company and 
payments were made by him by way of call.s 
on the shares, and his successor in office ap- 
plied to the Company for the mutation of 
came in favour of the Mutt, as the shares 
were not private property of the aljoty but 
belong to the Mutt but he adduced no evi- 
dence that the funds applied were of the 
Mutt. 

Held, that no presumption arose that 
the money belong to the Mutt, Nor was 
the Company estopped by S. 115 from deny- 
ing that the shares were the property of the 
Mutt. MAHANT KISHOBADASSJI v. THE 
COIMBATORE SPINNING AND WEAV- 
ING COMPANY. 26. M. 79. 

261 S- 115— J^stoppel by judgment— Civil 
rroccdure Code (Act XIV of 1SH:1), s. 13 — 
iniTchaser ])revious to suit — Defence in pre- 
vious suit — Vendor, possession of — Pleader, 
tion-disclosurc of facts by — Fraud — Silence 
when fraudulent. 

A purchaser ofland cannot be estopped 
by a judgment in a suit against his vendors 
commciicel after the purchase, although the 
former had, as pleader for the vendors, active- 
ly dofemUd the suit. Mohunt Das'v. Nilko- 
■mul Ucwa:i, (I C. W. N. 283) followed. If, 
however, the purchaser had allowed the ven- 
dors to remain in possession intending to 
mislead thj plaintiff who having been so 
misled, bad sued them, the decree in the 
suit would bind him on the ground of fraud. 
Silence am .unts to fraud for which a Court 
will grant relief only when it is the non- 
discloure of those facts and circumstances 
wliich one party is legally bound to com- 
municate to the other. McKenne v. British 
Liuci Company, (6 App. Gas. 82) distinguish- 
ed. The silmce must also be a true cause 
of the changij of position of the other party. 
A person co;iducting, as pleader, the defence 
on behalf ol .i defendant is under no legal 
obligation to disclose to the plaintiff the 
fact that the defendant had, prior to the suit, 
transferred tiie subject-matter of the suit to 
him. S. 115 )f the Evidence Act (I of 187-2) 
does not appiy to a ease in which a belief 
oth'jrwisB cau id has been only allowed to 
continue by ''-^ason of any omission on the 



Sup: Govt, acts (I of 1872) (Contd) 

part of the person against whom the estop- 
pel is sought to be raised. — JOY CHAN- 
DRA BANEKJEE v. SREENATH CHAT- 
TERJEE. I. L. E , 32 C- 357. 

262— S. 115 Pre-emption— Punjab Laws 
Act (IV of 1312), Section 13— Estoppel— Waiver. 

Section 13 of the Punjab Laws Act does 
not roDual, as regards pre-emption suits, sec- 
tion lis of the Evidence Act, and estoppel or 
waiver can bo alleged against a plaintiff even 
whore no notice under section 13 has been 
Lssued. 

Section 13 of the Punjab Laws Act has 
no application in the case of a sale by auc- 
tion by order of Court. And there is no 
duty imposed upon a pre-emptor by law or 
equity to annouuce his intention of mvkiug 
a claim of pre-emotion to the bidder, at the 
auction sale. CHAUDHRI RAM KISUEN 
V SAYAD FAKIR ALI SHAH. 185- P- I" 

R. 1905 

233 S. 115— Government. Suit against— 
Adcerse possession — Edoppel^Parlakimidi Za- 
mindari — Maliahs — Forfeiture. 

The Raja of Parlakimidi in his suit 
against Government claimed proprietary 
rights in Parlakimidi Maliahs and alleged 
that in case he was unable to prove his owner- 
ship by express or implied -grant ha was en- 
titled to full proprietary right in the said 
Maliahs by adverse possession and urged that 
the Government was estopped from djnying 
his title to them. It was stated on behalf of 
Government that in IScW the entire zamin- 
dari iiioludiug the Maliahs was forfeited to 
Govorument as an act of State osving to the 
roljellious conduct of an ancestor of the 
plaintiff an I that a re-gvant made in 1803 
exoludod tud Maliahs, that there was no ad- 
verse possession and no estoppel. 

H:ld, by the Privy Council, that the 
plaintiff had failed to substantiate his case- 
that there was no express or implied grant of 
the Maliahs after the forfeiture of the zemin, 
dari aud the adverse possession and estoppel 
set up by the plaintiff were not established. 

That the re-grant of the zeniindari ex- 
cluded the possession or holding of the chiefs 
of the Maliahs which must for that purpose 
be taken as inclu ling the waste lauds and 
forests of the MaUahs. 

That the mistaken view of the officers of 
Government acting under the Cjuvt of 
Wards that the Maliah forests belonged to 
to the zemiudari and working these forests 
for the benefit of the zamindiri and encour- 
aging expenditure of ziiuindiri funds upon 
the Muliah'i did not create any estoppel. 
GOURV CH\NDRA GA.JAPATI NARAYA- 
NA UEO MAHVHAJULUN v. THE SEC- 
RETARY OP SCATE FOR INDIA IN 

C0UNCIL.-9. c. W- m 553. p. C- 
264— S- 115— Estoppel-Rule of equity - 
If a man under a verbal agreement 
with a landlord for a certain interest in land, 
or, what amounts to the same thing, under 
an expectation creitel aud encouraged by 
the landlord that he shall have a certain in- 



( 239 ) 



CIVIL DIGEST OF CASES 



( 240 ) 



Sup: Govt, acts (I of 1872) rContdj 

terest, takes iMssessiou of auoh land with the 
consent of the landlord, and upon the faith 
of suuh promise or expectation with the 
knowledge of the landlord, and without 
ol j ction Ijy him, lays out money upon the 
lf.jiii, a Court of Equity will compel the laud- 
lord to give effect to such promise or expec- 
tation. The Crown comes within the range 
of this equit)'. 

Tliis rule of equity differs essentially 
from the doctrine embodied in section 115 of 
the Evideane Act, which is not a rule of 
equity, but is a rule of evidence that was for- 
mulated and applied in Courts of law, while 
the former takes its origin from the jirisdio- 
tioQ assumed by the Courts of Equity to 
intervcae iu the case of, or to prevent, fraud. 
It is no objection to that equity that the 
interest in the land was not originally 
moulded in a form recognized bylaw: that 
does not prevent the Court to impose subse- 
quently such terms as will prevent that 
which a Court of Equity would regard as a 
fraud. THE MUNICIPAL CORPOB.VTION 
OP 1»MB\Y V. THE SECRETARY OP 
STATE FOB INDIA IN COUNCIL. 7. B- 
I. R 27 

265 S- 115 — Estoppel - Purchaser at a Court 
sale —Khoti Act (Act 1 of 1880, Bom.), Section 
10 — Kkot — Khoti Khasgi lands — Lapsed lands 
— Kiwi's pawcr over lapsed lands — Danlop's 
procta»iation of 1824. 

Pi.'/' Chandavarkar, J. — To create an es- 
topple against a party, his declaration, act or 
omission must be of an unequivocal and un- 
ambiguous character. 

A Court sale cannot by itself be taken 
to create an estoppel either in favour of or 
against a Court purchaser as against or in 
favour of the person whose right, title and 
interest the Court purchaser buys from the 
Court. 

Mr. Dunlop's proclamition of 1824 could 
not apply to villages which had been alienat- 
ed by Covernmeut in favour of the Inam- 
dars before its date. 

Per Batty J. — -A Khot has a right to dis- 
pose of lands which have lapsed, either by 
taking them into his own permanent occu- 
pancy or by lotting them out for short terms 
or by assigning them to privileged occu- 
pauts. 

As long as a Kbot's power of permanent 
disposal rests with him and has not been 
alienated to a tenant with privileged occu- 
pmoy rights, the land must be regarded for 
all purposes as andistinguishable fr^m ordi- 
nary Khoti Khasgi, the right remaining with 
the Khot at pleasure to recover the land on 
the determination of any yearly or short 
term tenancy. G A.IAN AN VaSUDEV v. 
NILO SAKHARAM. 6- B. L. R. 864- 

263. S- \lS—EHoppel— Vendor and pur- 
chaser— Sale of land by Government to a pur- 
chaser at a certain rale— subsequent enhance- 
ment of revenue. 

Held reversing the decree and setting 
aside the order of enhancement, that the 



Sup: Govt, acts (I of 1872) (Co,.td ) 

plaintiff had a right to hold the land f^r over 
on payment of assessment at the rate of nine 
pies per square yard per annum, and t'rjat 
the Government had no right to enhance the 
said rate. Jan;LrdhRn Gopal had purchased 
the property out-and-out for its full value. 
To such a purchaser the right to enhance 
the assessment should in all fairness have 
been clearly disclosed. The meaning that 
a rea.sonable man would under the circum- 
stances ascribe to the Colleetjr's letter of the 
25th July 1887, was that a specific limit of 
nine pies per square yard per annum was 
established under f. 8 of Bom., Act II. of 
1876. That being so, the Government and 
the Collector were bound. The conduct of ] 
Government coupled with the statement of i 
Government made on their behalf for the 
purposes of the purchase was, under the 
circumstances, such as to create and encour- 
age in the purohigar as a rcasouable 
miin the belief that ho was purchasing 
prooerty substantially worth Bs. 3.3,U00, 
and that Govemmmt were not silently 
reserving to themselves an unfettered right 
to destroy the value of thit pi-operty and 
practically to confiscate that which had been 
sold. DADABA .JANARDHAN v. COLLEC- 
TOR OP BOMBAY. I. L- R-, 25 B-, 714, 

267- S- 115— r'-ares/er of Property Act 
(IV of 1SS2), S. 41— Con'ient— Estoppel. 

The consent uuder S. 41 of the Transfer 
of Prop,;rty Act must be free and not one 
brought about by misrepresentation on the 
part of the perse n making it as to his legal 
rights. An admission on a point of lav/ is 
not an admission of a thing v/itbin the mean- 
ing of S. 115 of theEvidence .^ct. DUN- 
GARIA V. NAND LAL. A- W- N- 1908> 

p. 182=3 A- L J 584 

233- S- U5. — Partnership — Participation 

in profits — Test of —Intention — Estoppel^— Con- 
tract Act, s. 245. 

The right to participate in the profits 
of trade is in itself a strong test ol part- ' 
nersbip. But participation in profits »1- '■ 
though strong evidence is not conclusive evi- 
dence of a partnership and that question 
of partnership must be decided by the in- 
tention of the parties to be ascertained from 
the contents of the written instruments, if 
any, and the conduct of the parties. The 
mere facts of a lender's participating in the 
profits or taking active interest in the busi- 
ness in which he advanced money, does not 
necessarily make him a partner. Mollow^ 
March v. The Court of Wards (10 B. L. R., 
312); Baddcy v. Consolidated Bank (L. R., 
38 Ch. D. 238) and Cox v. Hickman (9 C. B. 
N. S. 47) followed. Where a person who is 
not himself a partner to a business, but shows 
himself as such to strangers by his conduct, 
he is liable as a partner to persons who acted 
upon such belief. Even the want of know- 
ledge, on his part, of the effects of his acts 
or conduct would not absolve him from li- 
ability, if his acts and conduct were such 
as would induce a reasonable man to believ 



( 241 ) 



CIVIL DIGEST OF CAPES. 



( 242 ) 



Sup. Govt acts (I of 1872) (Conul). 

that ho was a pai-tnor and to act upon BUch 
belief. Carr v. London and North Western 
Railway Company (L. R. 10 C. P. 316); Cornish 
V Aleington {i H. & N. 549) Dickenson v. 
Valpi/ (10 B. & G. 128) referred to. COLO- 
NEL A. R. PORTER V. W. INCEL, 10 C- 
W N 313 
269- ■">>"' Jf'-5 Mortgage — Occupancy holder. 
Where an occupancy tenant mortgaged 
his right in the laud to the appellant and 
put hira in possession but afterwards dis- 
possessed him and mortgaged the land to 
another man and gave him possession and 
the appellant sued them both for possession 
whereupon, the tenant respodent contested 
that the transfer of an occupancy holding 
was Illegal under section 5, Oudh Rent Act 
XXII of 1886. 

Held, that the mortgage was invalid being 
opposed to the Rent .\ct and that the tenant 
respondent was not estopped from denying 
its validity. BENI MADHO v. KALI PER- 
SHAD SINGH. 6 0. C- 831. 

270- S- 115- — Wakf property — Suit for 
canetilalion of sale of — Parties in pari delicto. 

The plaintiil who had sold wa/i;/ property 
to the defendants, shortly after sued them 
for cancellation of the sale deed, alleging 
toakf and fraud and misrepresentation on the 
part of the defendants. Fraud was not 
proved. It was proved that the defendant 
did not act upon any mistalcen belief as to 
the title induced by any representation of 
the plaintiff. 

Held, that the plaintiff was not estopped 
from proving that he held the property as a 
trustee and that the transfer of it was invalid. 
The rule of estoppel by deed or by writing is 
that if a distinct statement of a particular 
fact is made in a deed and a contract is made 
on that statenient the party who made that 
fltatemjut could not deny the truth of it. 

Held, further, that as both parties were in 
paridelicto, the position of the defendant 
could not be a.ssailed by the plaintiff. As the 
Specific Relief Act gave a discretion to the 
Court to grant a relief the suit was rightly 
dismissed. ABDUL GHAPUR KHAN v. 
WAHID ALI SHAH. 6 0- C- 355- 

271- S. lis.— Estoppel^Pre-emption— With- 
drawal of money — Waiver of right. 

The vendors left some money with ven- 
dees for payment to a creditor. The plaintiff 
withdrew the money and brought a suit of 
pre-emption regarding the property. 

Held, that the withdrawal of money 
could not operate as a waiver of tlio right of 
pre-emption. The plaintiff by taking the 
money did not acquiesce in the sale. 2 A. 
L. J. 145 a7id 9 .4. 234 referred to. 

In the presence of the rules of estoppel 
given in Section 115 of the Evidence Act 
there is no need for a Court to rely on analo- 
gies of the Mohammadan Law in a case of 
pre-emption between the Hindus. 5 A. 197 
referred to. AJUDHIA CHAUDHARI v. 
CHHATARPAL LAL. A- W- N- 1907. P- 

88 =4. A L. J . 210. 



Sup: Govt, acts (I of 1872) (Contd). 

272. S- 115- — Continued arrangement when 
binding. 

Estoppel is created whore the representa- 
tion as caused the person, to whom it has 
been made, to act on the faith of it. Estop- 
pel does not depend on the motive or know- 
ledge of the ropresenter. It is not essential 
that representors intention should have been 
fraudulent, or that he should not have been 
under a mistake or misapprehension. 19 I. 
.4. 203=20 0. 296 «/crreti ii>. HELANDASI V. 
DURGA DAS MANDAL. 4 C- L- J. 823. 

273. S. 115- 116, \YI— Ejectment, suit for 
— Dispute between rival vendees — Estoppel. 

A, who had purchased from X, brought 
a suit against B for tjxtment, alleging that 
B was in wrongful possession of his land. A 
admitted that X had sold the same proper- 
ty previously to B, but contended that B, 
as the muktcar of X, had obtained posses- 
sion fraudulently and by undue influence. 
B alleged that he purchased the property 
from X previously, ignorant of the fact that 
she had no title, and that in reality P was 
the true owner. Subsequently B purchased 
from P. A contended that, even if X had 
no title, B, by reason of having obtained pos- 
session from X, was estopped from alleging 
that A had no title. Held that X having 
no title, the conveyance to A was invalid, 
and the rule of estoppel only existed as long 
as the grantee claimed under the title of the 
grantor. Woodboffr, J. — X had no title, and 
therefore B was not estopped from raising 
that defence. It was not sufficient for B to 
establish that the sale to .\ was voidable at 
the option of the vendor: He must show that 
it was absolutely void. Lala Achal v. Raja 
(Kazim L. R., 32 I A. 113), referred to.— RUP 
CHAND GHOSH i'. SARVKSWAR CHAND- 
RA CHANDRA, I. L. R., 33 C 915 = 10 C. 
W- N 747- 

274- S. 115. llQ.—Estoppel^Limitation 
Act (XV of 1S77), S. :ii — Amendment of plaint. 

A mortgaged certain property to B. Five 
years after, A granted to G lease in respect of 
a portion of such property. B brought a suit 
on the mortgage in which A and D (as son 
and heir of C then deceased) were defendants. 
It having been found afterw.irds that C had 
left a will in which D was appointed execu- 
tor, the plaint was amended and D was made 
a defendant as an executor, instead of aa 
an heir. 

Held, that though D was the representa- 
tive of C, the lessee, ho was not estopped from 
contending that, when the property was 
mortgaged 5 years before the lease. A, the 
lessor, was not entitled to the whole of the 
property mortgaged. 

Held, also that the amendment of the 
plaint, making D a defendant as an executor 
instead of as an heir, did not involve any 
addition of a new defendant, so as to bring 
it within the provisions of S. 22 of the Limi- 
tation Act. PROSUNNO KUMAR ;SEN u. 
MAHABARAT SAHA. 7 C- "W- N- 575- 



( 243 ) 



CIVIL DIGEST OP CASKS. 



( 2« ) 



Snp: Govt, acts (I of 1872) {Contd.) 

gT6- S. 115, 116, m.-Edoppel—Hcir of 
wiikf property. 

Whore some o£ the heirs of a deceased 
pcisjn look possession of a certain property as 
a valid tcakf. 

Held, that they could not be barred by 
the rule ol estoppel from disputing the vali- 
dity of the viakf as against the remaining 
heirs. 9 Q. B. 48 dissented from. ALAJIGIR 
KHAN V. KAMAR-UN-NESA KHANAM. 4 

Q j^. J. 424. 

276. S. 116-— Sin'i for rent — Defendant 
tenant's plea that the landlord was only a 
beuamid'ir — estoppel. 

In a suit for rent, instituted by the per 
son, in whose favor a tenant has executed a 
lease, the tenant is estopped by S. IIG from 
raising a plea that the ostensible landlord 
was only a benamidar for somebody else. The 
question of a lessor's title is wholly foreign 
to a suit of this nature. 7 B. L. B., 7^.3, fol- 
lowed, 7 B. L. R., 720 and 2i W. B., -H, dis- 
sented from. BOGAR v. KARAM SINGH. 

18 p. W- R- 1907=141 p. R. 1906 

277. S. 116.— i>''e ^^5, ll'iandin. i. C. 
L. J; i24. Nos. 274 and 275 supra. 

278- S. 116 & 117. Estoppel— Vendor 
andpurchaser — Possession from vendor with- 
out title — Denial of vendor's title. 

The plaintiff sued the defendant for 
possession of land claiming title under a 
sale from one P. alleging that a previous 
sale by P. to the defendant was fraudu- 
lent and void. The defendant pleaded that 
P bad no title to the land and that he had 
obtained a conveyance from the real owner 
after he learnt that P. had no title. The 
plaintiff contended that the defendant was 
estopped from disputing the title of P. and 
was bound to restore possession to the plain- 
tiff as assignee from P. It was found that 
P. had no title to the land. 

Held, that since P. had no title which 
could be conveyed, the plaintiff's suit must 
be dismissed, and that the defendant was not 
estopped from denying the title of P. KUP 
CHAND GHOSH v. SARVESWAR CHAN- 
DRA CHANDRA. 3 C. L. J., 629 = 10 
W- N , C 747 = 83. C- 915. 

279. S. 117- See S. 115, 116 and 117-4. C. 
L. J. 424 No. 275 supra. 

S. 117. Seed. 116 d 117. 33 C. 915. No. 
278 sxipra, ' 

280- S- 118 The Sessions Judge ref- 
rained fium examining a witness on the 
ground that ' he wag a very small boy.' 
Held that the witness should haVo been 
examined unless under the words of Sec- 
tion 118 of the Indian Evidence Act, the 
Sessions Judge considered that the boy was 
prevented from understanding the questions 
put to him, or from giving rational answers 
to those questions by reason of tender years. 
QUEEN EMPRESS v. RAM SEWAK. 23. 

A 90 

281- S. 120 o£ \Z2--~Civil Procedure Code 
(Act XIV of 1S82) Sections 59 and 129— Di- 
vorce Act (IV of 1869), Seclioyis 7,51 and 52 
—Evidence Act (lof 1872), Sections 120 and 



Snp: Govt, acts (1 of 1872) {Contd.) 

132 — Suit for dissolution of marriage on the 
ground of adull:ty — Bights of parties as to 
discocery of documents — Parties not cotnpellaiile 
witnesses. 

In a suit for dissolution of marriage un- 
der the Divorce Act on the ground of adul- 
tery by the wife, the respondent and co-res- 
pondent are competent witnesses only in the 
sense that if they offer themselves as pro- 
vided by Section 51 of the Divorce Act, they 
may be examined like any other witnesses, 
but cannot be compelled to give evidence 
unless they offer themselves as witnesses. 

The rule applicable to compulsory oral 
evidence is applicable to compulsory disclo- 
sure of documents. The petitioner is not 
entitled to any information from .the co- 
respondent as to the acts of adultery charge 
uutil such time as the co-raspondent offers 
himself as a witness. The co-respondent 
cannot be compelled to file an affidavit declar- 
ing what letters from the respondent are 
in his possession, but affidavit may be requir- 
ed in respect of letters written by the peti- 
tioner to the co-respondent. 

A list of documents proving adultery 
should be filed with the plaint, and when 
it is not done the petitioner may be ordered 
to file an affidavit disclosing all letters in 
his possession or power relating to the adul- 
tery charged on which he relies. C. v. C. 
AND B. 11. p. R. 1902' 

282- S- 12S-—.iffairs of state— Evidence. 

It is open to Government by Resolution 
or otherwise to sensure or reprimand an 
officer. The resolution complained of by the 
plaintiff, being an official communication, 
was absolutely privileged. It could not be 
put in evidence or jiroduced in Court and no 
secondary evidence it could be given in res- 
pect of such official communications no alle- 
gation of malice is allowed and no proof of 
malice takes away the privilege. J.\H.\NGIR 
M. KERSETJI V. SECRETARY OF STATE 

FOR INDIA. 5 B L R. 30=27 B. 189- 

See Act of Stale cjlumn 43. 

283- S. 123 & 124.-6 B. L. B. Ii3—See 

Act of State columns 43—47. 

284. S. 124-— 5 B. L. B. 133-See S. 123 
and 124, No. 2V3 supra. 

285i S- 126- — Privileged cotntnunications — 

Client — Legal adviser. 

Section 1'2G of the Evidence Act can have 
no application where the statement nude by 
a client to his solicitor was made not as cou- 
fidential but for th-' purpose of commuuiea- 
tiou. EMi'KllOR i'. MARIANE G. KODKI- 

GUES. 5. B L R 122. 

286- S- 123 — Document. Privileged docu- 
ments — Legal adviser— Court — Discreti'in. 

Under the Evidence Ac*-, in rtgiird to 
certain documjms absolutely privileged, the 
Court has no power whatever to order pro- 
duction. But under S. 130 of the C P. Code, 
the Court does possess the discretion, and 
the discretiou is to be exercised according 
to the practice of the Court. And aubougki 
a dooumeut may not be suck as passed di- 



( 245 ) 



CIVIL DIGEST OF CASES 



( 246 ) 



Sup: Govt, acts (I. of 1872) {Contd}. 
rectly between the legal adviser aud the 
client, yet if it is of such a nature as to 
make it quite clear that it was obtained 
oonfideutially for the purpose of being used 
in litigation and with a view to being sub- 
mitted to legal advisers, then the Court will 
not compel the production of such a docu- 
ment. VISHNU YESHAWANT WAOlt v. 
THE NEW YORK LIFE INSURANCE CO., 
7 B. L. R. 709 I 

287- S' 196- Privilege — Communication 
to pleader. , , , ■ 

Where a pleader acted as a professional 
adviser to both the parties to a dispute and 
a certain communication by the complain- 
ant was made to him not in the course and [ 
for the purpose of his employment as a plea- 
der:— HeW, that the comiuuuicatiou was not 
privileged under section 126 of the Evidence 
Act. EMPEROR v. BALA DHARMA. 4 
B, I", a 460- 

288- S- !S2- S.l20dU2U. P.R. 

19U-^ No. 281 Supra. 

289. S- 132. Defamatory statement in 
deposition when privileged. 

The accused, while deposing before a Ma- 
gistrate, was asked by the cross-examining 
pleader "whether Kanu-hud asked pardon of 
HaidarAli in a punchayet'' and in i the course 
of his answer he made the following statement 
which was false, viz., " Haidar All admitted 
in the punehayet that Kanu beat him with a 
wooden shoe." 

Held, that the statement of the accused 
was defamatory under S. 500 of the Penal 
Code and was not privileged under S. 1:^2 of 
the Evidence Act, as it was a voluntary state- 
ment not relevant to the ism- in the case in 
which he deposed aud was not elicited by the 
pLader putting questions, and as, further, the 
accused was actuated by malicious motives 
against Haidar. 21 C. 302, F ; li B. 57.3 ; 
11 M 477- 17 B 127, Refd. to. HAIDER ALI 
V. ABRU MIA. 9 C- W. N- 91i-=2 C- L- J- 

105-2 Cr. Ij. J 459- .... 

290- S- 136 & 157- E.mmination of wit- 
nesses—Order — Direct evidence and corrobora- 
tive eviderice. 

Corroborative evidence under section 
157 of the Evidence Act should .not be ad- 
mitted until afer the witness sought to bo 
corroborated has himself been examined. 
Nistarini Dassce y. liai Nundo hall Bo^e (1900) 
5 0. W.N., xvi, referred to. SHWE KIN v. 
KING EMPEROR 3 L. B- R- 1906 P- 240- 

291- S- 137- See SS 136 & 137 3. L. B. 

Ji. L'jue. r. .no No 291 Supra. 

292- S- 154 Witness— Hostile witness— 
Rujkt of party calling a loitness to cross- 
examine lam. 

Common fjiruesa requires that a party 
calling a witness should be allowed to cross- 
examine him if the witness unexpectedly 
makes a stateraett adverse to the ^caso of 
the party calling him. When it is notdone, 
the evidence is of no value. KALVGURLA 
SURYAN \ RAY AN A i,-. YARLAGADDA NAI- 

DOO. 6. C. W. N 513- P- C. 



Sup: Govt, acts (I of 1874) (Contd). 

293 S- 154.— -iccuscrf's yV/W to croii-ax-am- 
ine loitness not produced by him. 

The accused called Inspector of Polios 
as a witnes.s for the defence. When tho wit- 
ness attended tho Court; the accused declined 
to examine him, but his statement was re- 
corded by the Court. The Court refused to 
allow the accused to cross-examine the In- 
spector on the ground that he had been call- 
ed by the deftnca aud although not produc- 
ed by the defence, he must be regarded as a 
defence witness. 

Held, that he could not be regarded as 
a defence witness and the accused was en- 
titled to cros.s-examiue him. MOHBNDRA 
N\TII D\S GUPTA v. THE KING E.\I- 

PEROR. 6- C- W N- 550. , . , 

294 S- 155 & l^T- Advocate— professional 
misconduct, Charge of -value of evidence— 
p roof. 

The appellant, an advocate of the Chief 
Court, was convicted of gross professional 
misconduct in having advised a client G to 
bribe a witness in a case under trial at tho 
Criminal Sessions of the Chief Court. 

Tho charge against him was b.ased ou 
two conversations between appellant and E, 
his senior in the case. E's statement re- 
garding these conversations was corrobor- 
ated by certain persons to whom he had 
repeated their purport on the day they took 
place. Both these conversations were hur- 
ried ; the actual words used in one were not 
completely remembered by E and the words 
that were accurately remembered might, in 
certain contexts, have au innocent mean- 
ing ; the other was a whispered conversa- 
tion in Court during the examination of a 
witness by E. The charge was also sup- 
ported by admissions mide by the client G 
to E and to the Government Advocate, but 
G, when examined as a witness, denied hav- 
ing mido these admissions. 

Held, that the admissions made by G, 
oven if admissible to discredit his sworn 
statement as a witness, were not admssible 
as against appellant ; that although the 
statements of the persons to whom E re- 
ported his conversations with appellant were 
admissible as supporting the credibility 
of E's evidence, the charge against appellant 
dep-mded entirely on the correctness of E's 
impression of the effect of these codversa- 
tions ; and that, considering the circum- 
stances of the conversations and the pro- 
babilities of the case, the evidence was in- 
sufficient to support the grave charge against 
appellant. BOM.\N.JEE G0\V.\S.;EE r. THE 
CHIEF JUDGE AND .JUDGES OF THE 
CHIEF COURT OF LOWER BURMA. 4 

L B- R 1907- P 27- ^ ._ ^, „ „ 

295- S 155 (3) & 1^1.-" Charge --Pro- 
fessionalmiieondnct— Advocate— Probabihties— 
Evidence, appreciation of. 

The appellant, an advocate, was charged 
with professional misconduct in that he sug- 
gested or hinted to his client that ho should 
influence or attempt to influence au expert 
witness in handwriting by iinpi-oper means 
in order that the wituo;.s might be induced 



( 247 } 



CIVIL DIGEST OF CASES 



( 248 ) 



Sup: Govt, acts (I of 1872) (Contd). 

to express opinions favonrable to tlie prose- 
cution case in oonneotion with certain letters 
produced during the course of tlio said case. 
To prove the charge, one Mr. E, the senior 
advocate who appeared with the appellant 
in the particular case was called and he 
deposed to certain hurried conversation last- 
ing for half a minute which took place 
between the appollaut himself, when the 
witness was engaged in Court in examining 
a witness in the case. To corroborate him, 
three other witnesses were called who deposed 
that the senior advocate repeated to them 
his impression of the effect of his conversa- 
tion with the appellant. 

Held, that the evidence of the said three 
witnesses was admissible under S. 157 of the 
Evidence Act, but apart from its tending to 
support the credibility of E's evidence, it did 
not carry the matter any further on the re*l 
issue in the case, i. e., whether the appellant 
did in fact advise his client to bribe the ex- 
pert witness. Mr. E. also deposed to a certain 
conversation that took place in the absence 
of the appellant between himself and the 
client who was alleged to have been instruct- 
ed by the appellant. Another witness, the 
Government Advocate, also deposed to parti- 
culars of a long conversation between him 
and the client. 

Held (1) that the evidence was inadmis- 
sible to prove the charge against the appel- 
lant.. (2) That in the circumstances of the 
case, E's evidence was quite insufficient to 
support the grave charge made against the 
appellant. 

Held also, that in a case of this kind it 
is permissible for judges of fact to consider 
the probabilities and that in the light of those 
probabilities, it is impossible that the appel- 
lant would have conducted himself in the 
way which he is alleged to have acted. BO- 
MANJI V. CHIEF JUDGE OF THE BURMA. 
CHIEF COURT. (LORD DAVEY). U C- W- 
N- 370; 34 I. A 55; 5 C L- J 123; 9 B 
L. E- 3 ; 17 M. L. J. 67=2 M- L- T- 96 = 5 
C- L. J. 50=4 L- B. E. 27=34 C 129 P- C- 

296- S- 157.— See S. 155 and 157— i L. B. 
E., 1907, p. 27 and 34 C. 129 Nos. 29i and 293 
stipra. 

297- S- 167 to lQO.—"P!/atpaing"— Admis- 
sibility in evidence. 

The "Pyatpaing" cr outer foil of the Re- 
venue Register of Mutations when not signed 
by the owner of the laud is not admissible in 
evidence to prove the terms of a report of a 
transaction in land made to the headmau or 
surveyor who keeps up the Register {Mating 
Chcik V. Tha Hmat, 1 L. B. R. 260). But if the 
headmau or surveyor who wrote the pijat- 
paing is called as a witness and gives evidence, 
from his own memory, of the terms of the 
report, then it is admissible to corroborate his 
statements under section 157 of the Evidence 
Act. It may also be usefully used under sec- 
tions 159 and 160 of the sarne Act. Ma Dan 
Da V. Kijaw Zan, 3 L. B. R., 5, referred to. 
SHWE PAN V. MAUNG PC. S. L- B. R., 
1806, p. 250. 



Sup: Govt, acts (I of 1873) {Contdj. 
298. S. 159— See S. 157 to 160—3 L. B. R., 

1906, p. 250, No. 297 supra. 

299- S- Xb^.-Bef reshing memonj^Account 
books. 

Account hooka regularly kept in the 
course of business can be used to refresh the 
memory of witness and ako as corroborative 
evidence of the story he tells. BHAG HONG 
KONG V. RAM.A.NATHEN CHATTY. 6 C^ 

W N 401=29 I. A- 43=4 B L- E 878 = 
29 C- 334. 

300- S- 160— Sm S. 157 to 160—3 L. B. K, 

1906, p. 250, No. 297 supra, 

801- S- 163— Sec S, 21 and 163—31 G. 
3S0 No. iO supra. 

Evidence Act {I of 1S72) Section 163. 
A party to a suit by calling for and in- 
specting a document takes the risk of making 
it evidence for both parties. MAHOMED 
KH vN V. ABDUL.REHMAN. 6 B- L- E-38p' 

302- S. 167- — Evidence improperly admit- 
ted or rejected. 

Held, that S. 167 applies to Civil as well 
as Criminal proceedings. Where more than 
three charges were tried together and the 
trial was conducted in a manner prohibited 
by Law, the trial was held to be altogether 
illegal and the conviction was set aside. 
SUBRAHMANIA AYAR v. KING-EMPER- 

^^n«?8 ?• A- 257=8 E L. E. 640=5 C W. 
N- 866=11 M- L. J. 233=25 M 61, P C 

32.-ACT IX OF 1872 (CONTEACT 
ACT) 

!• S. l.--The parties to a contract ca-i not 
agree to any terms the incidents of which are 
inconsistent with the provisions of the Con- 
tract Act. BRIJ KOOM.\RE v, S.^LA 
MANEDA FIRE INSURENOE GO. 82 C. 
816. (See S, 78, No, 315 infra.) 

2- Scope of the Act— 30 C, 539 see No. 28 
infra. 

3- S. 2 (d). — Failure of consideration — 
Specific Performance, suit for — -Ekrar — Attempt 
by party to rescind agreement of which hit 
heirs afterwards seek specific performance. 

Where parties had made a promise com- 
prising an agreement, the chief considera- 
tion for which was the execution of an ekrar 
hy one party acknowledging the title (aa 
adopted son) of the other party to the agree- 
ment, and the former had subsequently by 
his conduct (in bringing a suit to set aside 
the adoption and alleging that the ekrar had 
been obtained from him by fraud) attempted 
and in a great measure succeeded in deriv- 
ing the latter of the benefit of the agree- 
men t. 

Held, in a suit by the heirs of the party, 
who had so tried to rescind the agreement 
that there had been a failure of consideration 
and the conduct referred to was at variance 
with and amounted to a subversion of the 
relation intended to be established by the 
compromise ; and that specific performance 
of the agreement could not be enfcrced, 
SRISH CHANDRA v. BANOMALI. 8 C- W- 

N 594 = 6 B.L E-. 601=M. L J. 1904, 
P 185 ; P- C.-=81 1- A- 105-31 C 584- 



( 2i9 ) 



CIVIL DIGEST OF CASES 



( 250 ) 



Snp; Govt, acts (IX of 1872) (Contdj.) 

4- S- 2 (d)- — Contract — Privity — Bights of 
third pally to sue — Trustee and cestui que 
trust. 

To entitle a third person, not named as 
a party to a contract, to sue either of the 
contracting p.irtio-, Lhat third person must 
possess an iietual beneficial right which places 
him in the position of cestui que trust under 
the contract. Whether a trust exists so as 
to give the third party a right to sue must 
depend upon the construction of the deed 
embodying the contract — very little will 
sulliee in law to create privity of contract 
wliere it is so convenient for all parties tliat 
the matter should be carried out between the 
two parties really interested. '60 Ch. D. 57, S 
Q. B. IM, 7 B. H. C, lU referred to. 

A trustee cannot be allowed to buy pro- 
perty burdened with the trust either for his 
own benefit or the benefit of others in whom 
he is interested and then say tliat the trust 
is gone. RAKHMABAI v. GOVIND MORE- 

SHWAR. 6 B L- R- 421- 

6' S- 2 (d)- — Marriage settlement — To pay 
annuity to bride — Bride's right to srie. 

At the marriage of A, then a minor, with 
the son of B, B agreed with the father of 
A to pay to A unconditionally the sum of 
Bs. 5U0amonth from the date of the mar- 
riage, and the payment of this allowance 
was made a charge upon certain immoveable 
property specified in the agreement. A after 
a time refused, for reasons stated by her in 
her plaint, to live with her husband. Subse- 
quent to this, the stipulated allowance having 
been slopped, A sued on the agreement above 
nf irred to, to recover arrears amounting to 
Rs. 15,U00. 

Heul, that A, though not a party to the 
agreement in question, was entitled to sue 
B on it ; also, ou a construction of the agree- 
ment, that no conditions as to the conduct 
of A being laid down therein, the fact that A 
refused to live with ber husbaud was no bar 
to the suit. HUSSAINI BEGAM i\ KHWA- 
JA MAHAMJIAD KHAN. 1907 A- W- N- 

8=4 AL J 13-29 A 151. 

6- S- 2{d)--~TI,ird jmiiy-s right to sue— 
Specijic lidief Ad, S. 2:: (c). 

When the agreement in question was a 
family settlement of doubtful right. 

Held, that the general rule that a person 
wlio was not a party to a contract could 
neither be bound nor take advantage of it was 
not applicable as that rule is subject to 
exceptions. L. li. 2 Cli. 293 referred to. 
AVADH SAR.iU PRASAD v. SITARAM. 1 

A- li- J- S29 

7. S. 2 (d) Sc 10.— Contract— Right of 
plaintijf to sue on agreement entered into be- 
tivem otiters — English Lew — American Law to 
be followed by Indian Couns — Consideration — 
Inadequacy of consideration — Family compro- 
mise — Civil Procedure Code (Act XIV of lli82), 
Sections 27,32 and 53 — Amendment of plaint — 
Addition or substitution of plaintiffs — Suit for 
specific performance of contract — Decree for 
damages — Discretion — Specijic Belief Act (I of 
1877), Sections 19 and 21 (g). 



Sup: Govt, acts (IX of 1872) rConti) 

According to the English Law of Con- 
tract whoro the plaintiff is not himself a 
party to a contract which is made between 
others, he is not competent to sue to enforce 
any provision in it which is intended for his 
benefit even if the contracting parties have 
agreed to that efleot. Tlie only exceptions 
to this rule arc oases falling properly under 
the head of trusts. 

On the other hand the rule prevailing iu 
the United States of America generally is, 
that a third i)erson, for who.se benefit a pro- 
mise is made by A upon a consideration 
moving from B, may maintain an action 
upon the promise, provided he was the person 
directly intended to be benefited. 

The Indian Contract Law is modelled 
largely upon the Contract Law of England 
hut tlie two laws are not absolutely identical. 
The doctrine of the American Courts is more 
suited to the Contract Law of India. Iu 
view of the diiTereuces that undoubtedly exist 
between the Indian and English Contract 
Law, it is more consonant with reason that 
Indian Courts should follow the American 
opinion. 

The plaintiff sued her father-in-law on 
the basis of an agreement entered into be- 
tween her father and the defendant. By tli3 
agreement the defendant agreed with the 
plaintirt's father that he would bring about 
cohabitation between plaintiff and her hus- 
band and would also treat her well, and 
promised in case he failed to do so, to allow 
her a maintenance of Rs. 10 per mensem and 
to give her one of his three houses to live iu. 
The claim was made for Rs. 380 on account 
of maintenance for thirty-eight months at 
the rate of Rs. 10 per mensem and for a 
decree for possession of one of the threo 
bouses. It wa* copteuded for the defendant, 
in^fr a?!rt, th;i,t the plaintiff was not entitled 
to sue, for she was no party to the contract 
and there wa« no consideration for it and 
that the plaintiff was not entitled to the 
relief claimed. 

Held, that the plaintiff was entitled to 
sue. 

That the plaintiff must ho held to have 
given consideration in part at least, for she 
went to live with her husband in pursunnee 
of the agreement. The adequacy of the con- 
sideration is not of much consequence in au 
agreement of this sort, which, moreover, 
being in the nature of a family compromise, 
stood on a special footing and was governed 
by special equities. 

That the true view of the contract was 
that it was one between the plaintiff and the 
defendant and that in entering into it the 
plaintiff's father acted for her. According 
to the custom of the country she would not 
appear in public and ou an occasion like 
this would very properly be represented by 
her father. 

That since there was no doubt that the 
plaintiff's father was competent to sue, his 
name could be added or substituted iu the 
plaint, i^laintiff were held not entitled to sue. 



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CIVIL DIGEST OP CASES 



( 252 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

That the claim as made was for speci- 
fic performance of the second promise. That 
this was not a ca«u iu which specific per- 
formance should be decreed as it would be 
opposed to the terms of section 21 (y) of 
the Spool flo Relief Act. That under section 
I'J of the Specific Keliof Act claim for da- 
inagcs should be made in the alteruative in 
a suit for specific performance. That the 
plaint might be treated as amended by the 
addition of an alternative claim for dama- 
ges. 

Decree was given for Rs. 120 for damages 
for one year's mainteuauco and for Rs. 130 
for damages for breach of the covenant to 
furnish a residence for the plaintiff. MUS- 
SAMMAT DAROPTI v JASPAT RAI. 28. 

PL. R. 1905 = 49. P- R- 1905- 

8- S. 2 (d) & 25 — Promissory note executed 
by minor. 

The words "at the desire of the pro- 
misor' in S. 2 {d), do not contemplate a pro- 
misor, possessing contractual capacity at the 
time. Whore a promissory note was executed 
by a minor for consideration and on attain- 
ing majority he executed another promis- 
sory note, iu settlement of the earlier one: 

Held that the second promissory note 
was void for want of consideration. 

Held also that S. 25 of the Contract Act 
is exhaustive. INDRAN RAMASAMl PAN- 
DIA TIIALAVAR v. ANTHAPPA CHET- 
TIAR, 16 M. L. J. 422- 

9. S. 2i 10. 11- A female minor cannot sue 
for compensation under the Contract Act for 
the breach of a promise of marriage made to 
her — But where the circumstances entitle 
her locompcu.'.ation under the Buddhist Law, 
she can succeed independently of contract' 
L. H. 30. I. A. Hi, 5. C. 669, J. S. J. L. B 
Hi, 1 S. J. h. B. i>35: 1 S. J. L. B. 533, 2. U. 
B. R. 1811-96. P. 200, 2. U. B. B. ISO?— 1901 
P. 499. Befd to. KAN GAUNG v. MI HLA 

CHOK. u. B. R. 1907. P 6 (Contract). 
10- S. 2, 23, 65 & QZ.-MunicipaHt7j— 
District Municipal Act (Bom. Act Ilof lfiti4J, 
S. ^'i<2),(l7) and 30 — Special general meet- 
ing — Preside)it — Dispensation or remissicyn — 
Promise— Contract by Coporation-Executcd con- 
sideration. 

In order that a meeting of the Special 
General Committee of a District Municipal- 
ity should be properly constituted, it must 
be called by the President under S. 27 (2) 
of the District Municipal Act CBom. Act II 
of 188i). If the meeting be not so called, 
the defect is not cured by section 27 (17) 
Under S. 63 of the Contract Act (IX of 1872) 
there can be dispensation or remission only 
by means of a promise. There must ha a 
proposal of the dispensation or remission 
which is accepted. Under S. 10 of the Con- 
tract Act, consideration is not an essential 
of an agreement. In the Act the word "agree- 
ment" refers to "a promise" and a "set of 
promises forming the consideration for each 
other." Though a contract by a Corporation 
Biu»t ordinarily be made under *al, still. 



Sup: Govt, acts (Ix of 1872) (Contd.) 

where there is that which is known as an 
executed consideration, au action will lie 
though this formality has not been observ- 
ed.— ABA.7I SITARAM V. TRIMBAii MU- 
NICIPALITY, 5 B. L. :R., 689 =28 B.168. 

11 S. ^—B'ormation of contract— Railway 
— Carriage of goods — liulcs of Company for 
consignment of goods — lie-boohing of goods after 
arrioal at original destination. 

The rules of a Railway Company •pre- 
scribed certain procedure for the ijookinc o 
goods. In accordance with those rules cer- 
tain goods were booked from Tricbinopoly 
to Bagalkot. The plaintiff requested A, the 
goods clerk and station master at Hotgi (ou 
defandauts' Railway), to have the goods re- 
booked from Bagalkot to Hotgi, and for this 
purpose handed him the railway receipt 
with a written application, which, however, 
was not iu the form of consignment used by 
the Company. A, accordiuglv, sent a service 
telegram to the station master at Bagalkot 
asking him to re-book the goods. The sta- 
tion master there did not re-book the goods 
and they were delivered at Bagalkit. The 
plaintiff sued the Railway Company for 
damages for non-delivery at Hotgi. 

Held that the defendant Company had 
not contracted with the plaintiff to carry 
the goods from Bagalkot to Hotgi. The mere 
fact that the plaintiff got A, the station 
master at Hotgi, to send a service telegram 
to Begalkot did not constitute a contract 
to bind the Company.— MALKARJUN SHI- 
DAPA V. SOUTHERN MAHRATHA RAIL- 
WAY COMPANY. 4 B- L. R., 890=27 
B 126 

12 S. 4 — Proposal through Agent — Accept- 
ance to Agent. 

Where a principal made a proposal 
through his agent to B and B Communicated 
the acceptance to the Agent who made tha 
proposal. 

Held the contract is complete and binding 
as if the acceptance had been communicat- 
ed to the Principal himself. TRICDMDAS 
MILLS Co. V. HAJI SABBOO SADICK. 4 
B. L- R., 215- 

13 S- 4 — Evide7ice—Co7Uract — Terms to be 
spelt out of correspondence. 

Where there is no memorandum or do- 
cument showing distinctly the terms of the 
contract the Court must look to the letters 
and whole correspondence which passed be- 
tween the parties to see if it can spell out a 
contract containing definite terms. THE 
ARYODAYA S & W Co. v. JAVALPRASAD 
DALBTRAI. 5 fl. L- R-, 909- 

14 S 4. 5, Q—Sce S.17 Ex: 3 cl: 1 C. P. G. 
-7 C. W. N. 912, 2S, M. 19, 27. M. 355, 32. C. 

884 and 32. C. 146. 

15 S- 6 cl (2)— See 8. 4—4. B. L. R., 215 

No 13 Supra. 

16. S. 8, 10, 25 Cl- 2- Contract liy 

correspondence, where completed — Jurisdiction 

Suit for damages for breach of contract — Forum 

Where a contract is entered into between 

parties residing in two different places by 



( 253 ) 



CIVIL DIGEST OP CASES. 



( 254 ) 



Sup: Govt. actS'(lX of-1872) (Co,ud) 

means of correspondenco or otherwise, the 
coniriiiit is cuuclucled, where the offer is 
Rcccptod ; and the Court of such place has 
j irisaiction to take cognizance of a suit for 
ii.i.m 'gos for braacli of the contract under S. 
17, C.PO. a Wilson and Shaiv HIS. 

T, a resident of Miduapnr, owed a debt 
to K, to satisfy which T drew two cheques 
at Miduapnr in favour of N. at I'urulia 
with whom he had transactions, one upon 
his banlcer X, and the other upon his banker 
y, both at Calcutta; T made them over to 
K who took thorn to Purulia and proseutod 
them to N ; N took the cheques, paid K, 
and subsequently presented the cheques at 
Calcutta whe'e they were dishonoured. N. 
sued T at Purulia to recover the amount 
paid. 

Held, that there was an implied proposal 
by T to N, which was aeeopted at Purulia 
and, as the contract sva^ completed at Pur- 
ulia the suit was maintainable there. SITA- 
BAM MARWARl v. THuMPSCiN, 2 C- LJ- 

66=32 C 84 

17. S. 10. Oitdh Land Revenue Act 
(XVII cif ItiTC), Chapter VIII— Capacity of 
ding^ualified proprietor to C07itruct. 

Under the provisions of the Uudh Land 
Bovonuo Act, Chapter VIII, the whole of 
the property of a ward vests in the Court 
of Wards when it takes up the manage- 
ment of the ward's estate, particularly when 
it is not shown that any property was speci- 
ally reserved, either by the ward or the 
Court of Wards, from the control of the 
latter. The ward is incompetent to make 
any contract respecting any part of his 
property, and the incapacity would affect 
the contracts entered into by him outside 
the local limits of the Act. The fact that 
any property was not stated in the list 
prepared by the Court of WaVds of the 
property of the ward does not allow the 
wards to deal with that property as the 
disqualification is personal. L.\CHMI NA- 
RAIN V. FATEH BAHADUFv SINGH. W. 

N-. A., 1903, P 8-25 A. 195 

18. S. 10- Hindu Lau—c: i/l— Possession 
Transfer of Property Act (IV of IS8H), Section 
123— Gift to aijcnt. 

Where the Transfer of Property Act 
Is in force a gift of immovable property is 
not invalid by reason of its possession not 
having been delivered to the donee, if the 
requirements of the Act have been complied 
with.— iJ Cal., 446, followed. 

There is nothing to prevent an agent 
from being the oljjct of the bounty of his 
principal. If an agent can clearly show 
that gift was made in his favour by a donor 
who was in a position to exercise a free and 
unfettered judgment with full knowledge 
of what he was doing, the gift will be 
upheld. PHUL CHAND v. LAKKHU. A- 

W- N- 1903 P- 70 =25 A- 858 at 365 

19. S. 10- See S. :i. (d) & 10—^8. P. L. 
B. 1905. No 7 Supra. 

20- S. 10- See S. 2, 10, 11— U. B. R. 

1907. P. 5 No 9 Supra. 



Sup: Govt, acts (IX of 1872) (Contd) 

21. S. 10. 11, 64, 65- Minor, contract by 
S. 64, G5 of the Contract Act deal 
only with contracts entered into by parties 
competent to contract and do not apply to 
cases where there is not and could not 
have been any contract at all. Mohori Bibee 
V. Dharmodas Ghosh, (I. L. R., 30 Cal. 539) 
followed. A mortgage entered into by a 
minor is void ai uh,' io.— KAMT.A PRASAD 
V. SHEU GUPAL LALL, A- W- N-. 1904, 

p 41. = 26 A 342. 

22- S. 10- See S. 8, 10, 25—32. C, 84 
No 16 Supra. 

23 S- 10. li, <5S. ^^7 and 248-Bondfor debts 
contracted during minority executed and 
majority accrues. 

S, a minor had a business iu the course 
of which he had dealings with and became 
indebted to her for the price of goods 
supplied to him. S, after attaining majority, 
executed a bond for the above debt and for 
some money advanced to him at the time 
of the execution of the bond. 

Held, that S. was liable for the whole 
amount secured by the bond. It is not il- 
legal in a minor's paying for the property 
he has received and promised to pay its 
price but he can not be compelled by Law 
to pay it if he does not perform his pro- 
mise. MT. KUNDAN BIBI. v. SBEE NA- 
RAYAN 11. c- W N. 135. 

24. S- 11. Advocate, Capacity of, to sue or 
be sued in connection with professional services 
— Barrister-at-law — General practilioner — In- 
dian Contract Act, s. 11. 

A Barrister-at-law who has been admit- 
ted as an advocate of the Chief Court and 
who combines the various functions perform- 
ed by legal practitioners of every class in 
England must be considered to act iu this 
country not in virtue of his membership of 
the English bar, but in virtue of his office 
as an advocate. He is therefore capable of 
suing for fees for professional services and 
of being sued for negligence. The Land 
Mortgage Bank of India Ltd. v. Elmes (1876) 
25 W. R., o32, followed. Queen v. Doutre 
(1884) L. R. 9. A. C, 745: C. Ross Alston v. Pi- 
tambar Das, (1903J I. L. R. 25 All., 509; Ken- 
nedy V. Broun, (1868) 13 C. P., N. S., C77: re- 
ferred to. Orey v. Diwan Lachvian Das, 
(1895) P. R. 219, dissented from. A. P. PEN- 
NELL AND ANOTHER v. F. A. HARRI- 
SON AND OTHERS. 4. L- B- R- 1907 P. 
55- ■ 

25- S- 11- Lease by minor void. 

A minor having given a lease of hia land 
sued the defendant for the cancellation of 
the lease and possession of the laud after 
attaining his majority. 

Held that a minor is incompetent to 
contract and the lease is absolutely void, 
and the Lower Court was wrong in dismis- 
sing the plaintiff's suit 30. C. 539. P. C. fol- 
lowed. MOHAMMAD SALIM KHAN v. 
NAGOMARAR, 1 N ■ L- R- 185- 

26- 8. 11 [See s. 10, 11, 64, Co— 26. A. 342. 
No. 21 supra. 



( 255 ) 



CIVIL DIGEST OP OASES 



( 250 ) 



Sup; Govt, acts (IX of 1872) (Contdj 

27. 8. 11. See s. 10, 11, 6S, dc.—ll C. W. 
N. 135 No. 23 supra. 

28- Sll, 19, 64, Qf,.— Transfer of Pro- 
XH'rtij Act (IV of 1882), Section 7— Minor— Void 
uyrecment— Evidence Act (I of 1872), Section 
115 — Esto^ipel — Beprcseniation by infant as to 
his age— Specific Belief Act (I of 1877), Section 
H— Equity — Discretion of Co2irt— Notice — 
Knoiclcdge of attorney. 

The knowledge of tbe attorney in charge 
of a transaction is to be taken the knowledge 
of his principal. 

Section 115 of the Evidence Act does not 
apply to a case where a false statement as to 
his age by an infant is made to a person who 
knjws the real facts and is not misled by the 
untrue statement. 

There can be no estoppel where the truth 
of the matter is known to both parties. 

An agreement entered into by a minor 
is void and not enforceable. 

t'ection 65 of the Contract Act, like sec- 
tion 64, starts from the basis of there being an 
agreement or contract between competent 
parties, and has no application to a case in 
which there never was, and never could have 
been, any contract. 

When a mcney-londer lent money to a 
minor on a mortgage of his property, know- 
ing that the borrower had not attained the 
age of mujirity, the mortgage-deed was set 
asideasa^oid contract, and the Courts in 
the exercise of their discretion refused to 
order refund of the money actually ad- 
vanced. 

A Court of Equity cannot say that it is 
equitable to compel a person to pay any 
moneys in respect of a transaction which, as 
against that person, the Legislature has dec- 
lared to be void. MOHORI BIBEE v. 
DHABMODAS GHOSE. A- W- N- 1903, 

p. 441 = 5 B- L. E- 421 = 30 I A- 114 = P C 
= 30C 539(P C) , , , , r 

29- S- ll—Dociiment executed hy lunatic 
effect. , . 

A document executed by a lunatic is void 
under S. 11. 30 C. .^39 P. C'. Appl. referred to. 
MACHAIMA V. USMAN BEARI. 17 M- L 
J- 78. 

80- S- 11, 65-— Gtiardian and minor- 
Hindu Law— Sale of minor's share by his 
brother— Contract Act {IX of 1872), Sectio7is 11 
and 65— Specific Belief Act (I of 1877), Sec- 
tion 38. 

Where a minor sued to avoid a compro- 
mise effected on his behalf by bis elder bro- 
ther, by which his right to possession as 
inortgu{_','e of a piece of building site was 
given lip 111 lieu of a sum of money. 

Held, that in the absence of proof of 
necessity or any benefit to the minor the 
transfer was void. The elder brother not 
being natural or legally constituted guardian 
of the minor his act was unauthorized. 

Held, also, that tho plaintiff was not 
bound to make any refund as the transferee 
had knowingly dealt with the property of 
the minor and spent money iu spite of warn- 



Sup: Govt, acts (IX of 1872) CContd.j 

ing given to him. 7 C. W. N,, 441, s. c, 30 
Cal., 539 (P. C.) : L. R., 1, Ch. (1902), 1, refer- 
red to. INDAK SINGH v. NARINDAR 

SINGH. 33 p. R. 1907- 

81- S- II— See S. 2, 10, 11— U. B. R.,'\1907, 

pi. 5, No. 9 supra. 

32- 8. 12- Unsoundness of mind — Suit 
to set aside mortgages on the ground of insanity 
of mortgagor at the time of executicm — Vecision 
on case not made by the evidence — Different 
types of i?isanity — coiiciii i e it decisions on facts. 
In a suit to set aside mortgages on the 
ground that the mortgagor was of unsound 
mind at the time of tbeir execution, tho 
plaintiff's witnesses gave evidence which 
showed insanity of a violent type, but their 
evidence was not believed by either of the 
Court's below. Held that it was not allowable 
for the Court of first instance to substitute 
for tho case of insanity advanced by the 
plaintiff a case of weakness of mind and 
consequent helplessness, when the type of 
insanity connoted in the evidence was 
something quite different, and on that ground 
to give the plaintiff partial relief. There 
being concurrent decisions that there was 
no insanity of the type set up 'by the 
plaintiff, and it not being shown that there 
was any want of consideration for tho 
mortgages, the decision of tho Court of 
the Judicial Commissioner of Oudli dis- 
missing tlio suits was upheld. — OURG.A 
BAKHSH SINGH v. MUHAMMAD ALI- 

BEG,-I. L. E , 27 A. 1 ; p. C- 

33. 8- 12 and Qo—Gmtract by Lunatic 
vend. 

Money lent by a lunatic to another can 
bo recovered in a suit on his behalf by his 
next friend under S. 05 of the Contract 
Act, even tliough the contract under which 
it was lent was void in law. JUG.\L Kl- 
SHORE V. CHEDA. 1. A. L. J- 43- See 
30. C. 53 9 No. 28 Supra. 

34- S. 15 — Coercion — Fear of prosecution. 

A, while a prosecution was pending 
against hira for assault, executed an agree- 
ment. 

Held that it is wrong to say that Iho 
transaction was brought about by coercion 
or undue influence, as tho only pressure if 
at all that was operating on A's will is the 
pressure of the consequences of his own 
lawless attack on another. JIEIIERALI v. 
SAKBR KHANOOBAI. ?. B. L- E- 603- 

(But see .s. 23 in the case of uncompound- 
able offence 6 B. L. R. 73=28. B. 326 No. 
Infra) 

35. 8. IS— Undue influence— Attornery 
and Client — Remuneration of Attorney. 

It is a well recognized rule of law that 
an attorney is not entitled to any dona- 
tion irrespective of his just and legitimate 
costs during the subsistence of the rela- 
tionship. 

Persons standing in a confidential rela- 
tion towards others cannot entitle them- 
selves to hold benefits which those others 
may have conferred upon them, unless they 



( 25T } 



OlVlh DIGEST OF CASES. 



( 258 ) 



Sup: OoTt. aets {IX of 1872) (Contd). 

cau sliovv, to the ssutisf*ction of tUe Court, 
that the persons liy wlioiu the benefits have 
beea coufujrjrfid had competent aad inde- 
pesdcut idvice in conferring tUom. 

On a claim by an attorney, based oil 
A pcomissory note for services rendered, 
lesKCUted by a client in liis favour, when 
(bbere is a prayer for general relief, a decree 
way be passed tor wbat would be a fair 
and reasouabie renjuiioratjon. BROJEND- 
liA NATH MULLICK v. LUCliUmONI 

PASSKB 6,C- W- BT- 816-39C- 593. 

3S- ». IQ-^Lnulue inJlueKcc Snip — Inade- 
^uacy of oju.'iideradoK— Voidable contr(^ct. 

Inadequacy of consideration Jo con-- 
junction witU tlie sjrcunjitanccs of tbo in- 
decjlsdijess atid jgnoranco of the vendor, are 
facta from which a Court mav infer the 
jBXerciso of undue iiifiueiice. — BHniBHAT 

K. yESHWANirvAO, I. L- E. 25 B-,126> 

87. %■ tG^-^Will—Exceidion iy a Miihatn- 

tacida/i parda-nashlii lady — Undue itiflueucc. 

W'ljeij dealing wjtU tte case of a will, 
or a deed, executed by a liarda-nashin lady, 
a particular an4 peculiar Onus rests upon 
those who come forward to support tbe do- 
(Guracut to sVow that tbe executaut thorough- 
Jy uudej-stood wbat she v-'a« doing, and was 
(thoriju.g^iy «.«d tuKy acquainted with tlje 
tefiiis of the doeu^ijeiit she was executing, 
and the pvEsnmptions as to tbe knowledge 
ol tlje.execyfciit of lUe coutents of the docu- 
jiicnt siae i> exseating do not equally apply 
in thee -so oi & parda^iw^kin inAy as in the 
case of other persons. 

The real question in all eases of itbis 
,de-c;'iptioa is, was tlie testatrix of sufficient 
mental capacity to understand v.'liiat she was 
.doing, and did she understand what she was 
doing, and docs the wiji give .affect to her 
true iijtentions sad wishes? 

As to what constitutes undue iniiuonoo 
in this country, a useful guide is afforded 
by Section 48 of the ludiaa Succession Act. 
X'hough the section does not apply to the 
■wills of Ifuhamnaadans, yet it is a useful 
guide as to what does or does not consti- 
tute undue inguenoe. KHAS MEItAL r. 
THE ADillNISTRATOR-GENKRAIj OP 
BENGAL, y. W. N-. C. i90L P- 505- 
38. S- 16- — Undii-e influence. 

To reap the Ijenefit of section 16 of the 
■Contract Act it is necessary for the defence 
to establish that the executants of a deed 
were induced to sign it because the plain- 
tiff was in a position to dominate his will 
and used that position to obts.in an unfair 
advantage. 

When choice was given to .the defendant 
of furnishing the security or being at onee 
put into Coiirtj held, that this did not arnount 
to undue influence v.'i,thin he meaning gf 
section 16 of the Contr»iot Act. JO All., 535, 
distinijui^hed. BANK OF BENGAL v. DIN 

DIAL. 9 P- L a 1901=36 ?■ K, 1901. 

89- S- 16 <S? l^t.-^Umkie iujlxience— Penal 
rate of interest.. 



Sup: aovt. acts (IX of 1872; fCmti). 

la the absence of any plea or evl(}<!ioi 
that the defodaut was ia th.) chitchei of 
an extortionate nijuey lender il)o m re f let 
that the rate of interest agree! to by hiia 
was hig'i is in-;uffioiout to r.iise a pros impti ">'i 
of undue inflacuce such as is oouteiijplat* I 
iu Section 16 of the Indian Contract .Vet. 

-A stipulation that ths deb or siiii.ll, on 
default of paving principil at a certain tinu 
pay for tljo future interest agreed to by thi 
debtor is not i>oaal in its character anl does 
not come within Section 74 of the Itjdiau 
Contract Act. 

The mere fact that the torr^-, ara exor- 
bitant is by itself no ground for not enforc- 
ing an agroooiont. SJ P. li., 1890, foUowd, 
5} P. n. 1001, r 'erred, to. BULVlif JIVL 

V. T. G. ACHES. 151. p. li. R. 1931 --93 
p. R. 1901- 

40- 8. IS-^U idw, infl.iienCf.— Uncoiivini- 
ab'.ebtrjniii — Inlcred-Dealings betieeeii bani%i 
and agriciUt trials. 

Although transactions between baniai 
and zamind'irs require to be strictly soru'i- 
uisod yet unless the Court is able to lijlJ 
that the za;ni>id'ir has been over reach'^d, or 
thit bo has agreed to ternji merely beeius^ 
the b%nia has been able to exercis-3 uuduij 
intlijenco over hinj, or unless it finijs Ihn 
the teriijs of the contract *r« iuequitabls 
and oppres^Jive, it is ijot jiistified in setti'iij 
at naught the contract betxyeoij tlje p.irties. 
Where the Divisional Judge disallowed 
the interest claimed by the plaintiff on tha 
sojo gr.iuud that the case was one baween a 
bauia and a zamindnr and there was no 
proof of undue influence and the ternjs re- 
garding the interest were not unfair, the 
Chief Court, on appeal, allowecj the fuU 
interest that had been as^reed to bitweeu 
tlie pjjrties. HEMRA.J y KHUDA BAKHSIJ, 

80 p. I. R 1901=13 p. B ■ 1905- 

41 S, 16- — Undue inflnenee^Deed by a, 
married woman under husband's pressure. 

A married woman signed a dasd under 
pressure of her husband in ignorance of 
its contents njiking her property a security 
for her husband's debts. Held the deed could 
not be upheld against her 3 Ves S. (ji7 
followed. TURNBJLL AND Co. u DUVAL- 
6. C W- N- Sl.'i 

42- S- X^— ^Fiduciary relation — Father and 
adopted so')i-^Oift by son tofath:',r — Undue ii^r 
fluence — Onus-^Dilay and acquiescence —I^imU 
tation .ict. Art. 01. 

The equitable doctrine of undue influr 
ence applies where the position o£ tha 
donor to the donee was such that it wa$ 
the duty of the donee (e.g., father) to arjvisa 
the donor (sou), or even to nj mage his pro- 
perty for hira. In such oase^, tbe donee 
must prove that ha has not abused hi? 
position, and that the gift male to hiiiji 
had not been brought about by anv undue 
influence ou Ifis part. Ha nju .t show thsit 
the donor had independent advice, and v.-a? 
removo(J f^'oi^ the influence of the dona^, 

whes the ^ft to ii» \y»s m^^a. Is. soj!.^ 



( 259 ) 



CIVIL DIGEST OP CASES. 



Sup: Govt, acts (IX of 1872) (Conid.) 

cases, the question ia not whelbor the donor 
knew what he was doing, but how the in- 
tention was produced, and whether all care 
and pi'ovidence was exerted l)y his relatives 
as against those wlio advised hiin, 36 Gh. D. 
r. lis, 14 vescy 299 Referred to. 

Delay and acquiescence would not bar 
the donor's right to equitable relief, unless 
he knew that he had the ri:,'ht, or being a 
free agent at the time, delil^erately deter- 
mined not to enquire what his rights were, 
or to act upon them. Acquiescence, such 
as would bar a claim to relief, which would 
otherwise be good, is a question of fact 8 De. 
G. M. and Q 133 Referred to. 

It makes no difference that the claim 
under the deed of gift is made, not by the 
donee, but by a third party ; for, whoever re- 
ceives the gift must take it tainted and infect- 
ed with the undue influence and impo.sition 
of the person procuring it. 

If a party's remedy, as plaintiff, to have 
an instrument avoided on the ground of 
undue infiuonoe, is time-barred, his right to 
Bay, by way of equitable defence, if sued, that 
the instrument ought not to bo enforced, is 
not equally time barred. Delay is au equit- 
able reply to the equitable defence, but it 
cannot amount to a statutory bar. Art. 91, 
liimitatioxi Act, does not apply to such cases 
12 B. 501 & 28 B. 639 Refd to: LAKSHMI 
DASS V. ROOP LAUL, 17 M- L- J. 19 = 2 

M L-T 4=30 M 169 (F B ) 

43 8.16- C\:l—Fraiul-Gu-ercion—Uiulue 
influence — Borrower in urgent need of money 
— Prmnise to pay time-barred debt with in- 
terest — Unconscionable bargain. 

For S. 16, cl. 1 of the Indian Contract, 
1872, first there must be subsisting between 
the parties some relation described in the 
clause; and, secondly, the dominating posi- 
tion arising out of that relation must have 
been used by one party to secure an unfair 
advantage over the other. 

When a man, in ui'gent need of money, 
on account of his poverty and pjcuniacy 
difTiealties, asks for a loan from another, 
that other is in one sense in a position to 
dominate the will of the former by propos- 
ing his own terms and getting the borrower 
to agree to them. The borrower's necessity 
is in such cases the measure of the terms 
agreed to. But that is not the vague kind of 
relation and domination contemplated by 
the plain terms of cl. 1 of S. 16 of the Act. 

.There are well-known relations such as 
those of guardian and ward, father and son, 
patient and medical adviser, solicitor and 
client, trustee and cestui que trust and the 
like, which plainly fall within cl. 1 of S. 16 
of the Act. Wl'ere no such specific relations 
exist and the parties are at arm's length, 
undue influence must be proved by tvideuoe; 
and iii such cases, the nature of the benefit, 
or the ago, capacity, or health, of the party 
on v/hom the undue influence is alleged to 
have be-ju exerted are of great importance. In 
short, t.b'" test is confidence reposed by one 
party and betrayed by the other, which 



Sup: Govt, acts (IX of 1872): (Contd.) 

means there must be an element of fraud ot 
coercion, under cither of which the acts con- 
stituting undue influence must range them- 
selves. 

The term "unfair advantage" in that 
clause means an advantage obtained by Mn- 
righteous means. 

A promise to pay a time-barred] debt is 
valid and so is a promise to pay such a 
debt with interest. 

A Court of Equity will not set aside a 
contract merely because it flows from moral, 
not legal, obligations, unless it is proved that 
the defendant was forced, tricked or misled 
into it by the plaintiff by means of fraud, 
using that word not merely in the restricted 
sense of actual deceit but in the larger sense 
of an uucousoieutious use of power arising 
out of certain circumstances aud conditions 
and showing that the defendant being vic- 
timised by the plaintiff's unfair and impro- 
per conduct was unable to understand what 
he was about. GANESH NARAYAN v. 
VISHNU RAMCHANDBA. fl B. L- R. 1164 . 
= 32B 37. "^ ^ a no« 

44- S- 16-— Pardanashin lady. Execution 

of bond by— Undue influence— Consideration- 
Burden of proof— Issue. Omission to frame- 
Irregularity. 

The plaintiff sued the defendant, hig 
maternal uncle's daughter, a pardanashin 
lady, residing at Delhi, on a registered bond 
for Rs. 10,000, executed by her. The defend- 
ant had been brought up at the house of the 
plaintiff and married from there. The bond 
was registered at the plaintiff's house at 
Hathras in the absence of the defendant's 
husband and recited that the money borrow- 
ed had been spent in constructing a house. 
The. defeudtnt admitted execution of the 
bond and pleaded that the bond was without 
consideration and fictitious having been exe- 
cuted for fear of her husband who was ad- 
dicted to extravagance and waste and that 
some money had been advanced by the plain- 
tiff to her in lieu of which a garden had 
been sold to him. The plaintiff's replication 
was that he had paid cash both for the garden 
and the bond. The original Court dismissed 
the suit and held that payment of considera- 
tion for the bond was not proved. On appen.l, 
it was contended that the execution and 
registration of the bond having been admitted 
the burden ot proving want of consideration 
lay on the defendant and that the original 
Court should have framed a specific issue as 
to the passing ot consideration for the sale 
of the garden. 

Held, that though the omis of proving 
want of free consent and ot consideration for 
the bond lay on the defendant yet under the 
circumstances of the particular case it was 
shifted on the plaintiff, who was in a position 
to completely dominate her Will and she was 
powerless to resist him. In such a case 
strictest proof ot good faith and fair dealing 
was necessary aud the plaintiff had failed to 
adduce it. 



( 261 ) 



CIVIL DIGEST OF CASK^. 



( 2Ga ) 



Sup: Govt, acts (IX of 1872) [Contd.) Sup: Govt, acts (IX of 1872) {Contd) 



Held, also, that tho issue as to the pay- 
ment of the purchase-money for the girden 
was subsidiary and the plaintiff was not pre- 
iidiced in any way by the omission. 13 M. I. 
A., 573. (P. C), 12 D. L. R., 304 (P. C), 21 All, 
71 (P. C), referred to. HOTI LAL v. Mus.sam- 

UAT BAM PIARI. 77 p. R. 1903=9 p. L- 
B. 1904 

45- 8.16. — TJrtdue influence — Ijoan to dis- 
qualified 2'rojirietor — Compound interest, un- 
conscionable stipulation. 

A disqualified proprietor under the provi- 
sions of tlie Oudh Land Revenue Act, through 
his improvidence, was largely indebted and in 
urgent need and was in a helpless position as 
his estate was under the control of tho Court 
of Wards and it appeared that his lender oi 
the loan in question was aware of this. His 
allowance from the Court of Wards was not 
sufficient to pay the compound interest stipu 
lated for. 

Held, that there was. no fraud in the 
matter and no pressure was put upon tho 
borrower, but tho position of the parties was 
such that the lender was "in a position to 
dominate tho will " of the borrower within 
the meaning of S. 16 of the Act ; and it having 
been concurrently found by the lower Courts 
that the stipulation to pay compound inter- 
est at tho rate of 18 per cent, per annum was 
in the circumstances unconscionable, the 
Judicial Committee agreeing with them held 
that the lender used his position to demand 
more onerous terms than were reasonable. 

Held, further, that tho Subordinate Judge 
was wrong in deciding the case in accord- 
ance with what ho supposed to be the English 
equitable doctrine. He ought to have consi- 
dered only the terms of S. 16 of the Indian 
Contract Act. 

Apart from the recent statute, an Eng- 
lish CJonrt of Equity could not give relief 
from a transaction or contract merely on the 
ground that it was a hard bargain, except 
perhaps where the extortion is so great as to 
be of Itself evidence of fraud. 11 M. I. A. 
4ti>i and 9 I. A. lH-i referred to. DHANIPAL 
DAS V. RAJA MANESIIAR BAKHSH SINGH. 

4 C L J. lip. C) IML T 205-3 A L. 
J. 495=8 B. La. 491-10 C W 11849 = 
16 M- L. J. 292 = 9 C. 188 IP. C ). 

46 — S. 16- Vneoiiscloiiable bargain. 

When a person aged 3S years, the sou of a 
wealthy father, but of profligate habits and 
greatly in need of money, bis father having re- 
fused to supply hin'i, executed a bond to secure 
a sum of Rs. 500 with interest, which amount- 
ed to Rs. 37-8-0 per centuni ixir annum 
v,rith six monthly rests. The bond also stipu- 
lated that the borrower could not repay the 
money within three yeai-s, and if he did pay 
within three years, he should be obliged 
to piy three year's interest at the i-ate 
mentioned. Held that though it could not 
be said that tho execution of this bond was 
procured by means of undue iuHuence or 
that the rate of interest was penal, nevur- 
theleea the bargain was an uucjascionable 



I 

one against which the Court might properly 
give rohef. Tho High Court affirmed tho 
decree of the lower appellate Court which 
gave the plaintid the princip.il sum with 
simple inter&st at the rate of 21 per centum 
per annum. 9 A. 22S, 25 A. 284, 12 C. 215, L. 
K., 20 I. A. 112. L. R. 10 I.A. 127 20 I. ref 
to.— BALKISHAN DAS v. MADAN LAL, 

A W ti. 1907 p. 55=4 A A I- J. 222 = - 
29 A- 303. 

47- S. 16, 19 A- Undue influence — Un 

canscionable transaction. 

A filed a suit on two promissory notes, one 
carrying interest at 75 per cent, por annum 
and tho otlier at 60 p. c. per annum. It ap- 
peared that when B pissed the promissory 
notes in question, A was ia a poiitiou tu 
dominate his will. 

Held, (1) that reading S. 16 and 19 A. to- 
gether, the Court had the power to interfere 
and relieve a defendant against what might 
appear to the Court unconscionable transac- 
tions; (2) that A should under the circum- 
stances of the case be allowed to claim lu- 
torest at 24 p^T cent, p^r annum.— PUM.\ 
DANGRA v. WILLtAlU GILLESPIE. 9 

B, L R. 143 = 31 B 3*8. 

48. S. 16 & 74. Transfer of Properly Act 

(li'of I'iS'ij, S. ai, as <& lOi—Morijage-decree^ 
Direction cLi to^ interest — G. P. C. S. HtXi — Pen- 
alty, — Interest at incrcoised rate from date of 
bond — From date of default — Undue influence ~ 
Borrower in urgent need — Mortgagee retaining 
sums out of the consideration money as commis 
sion. 

Urgent need of money of the borrower 
does not, of itself, place the lender in a 
position to exercise undue influence on the 
borrower 33 I A 118 explained. 

Where, out of the consideration money 
of a murtg.ige-bond, the mortgagor agreed 
to the mortgagee's retaining certain sums 
as commission. 

Held, that the mortgagor could not, 
years after the execution of the mortgage, uo 
allowed to turn round and say that he 
had not received full consid.TatioQ. 

When a stipulation for increased interest 
is retrospective, t. e., the increased interest 
runs from the date of the bond and not 
merely from the date of default, it is always 
to be considered a penalty, because an 
additional money payment in that case be- 
comes immediately payable by the mortgagor. 
S. 74 of the Contract Act does not pre- 
scribe that increased interest running from 
tlie date of default must be disallowed 
altogether, if Sound to be a penalty. It 
directs that the party complaining of the 
breach shall receive from the pirty, .vlio 
has bd-okeu the co.utract, reasonable com- 
pensation, nat exceeding the amount of the 
penalty stipulated for. 

Compoui'd interest is in itself perfectly 
legal, but comprmnd interest at a rate ex- 
ceeding the rate of interest on the principal 
moneys, being iu.. excess of and outside the 



( 26S ) 



CIVIL mOfiSf O^ CASfig 



( 2W ) 



Sfip; Govt, aets (IXof 1872) CContd). 

ordinai-y and nsual sMpuIation, liiay well 
fce regarded as in the nature ot a penalty. 

The Judicial ComiliHtec did not intetrd 
to lay down in BnwKpyitur Koer v. Stjed Na- 
wcib Mchdi iiosscin Khan 36 C. 39 that, in 
maliiog a inorLgage decree, the Court should 
allow interest at the mortgSge rate up to 
the fJate of the actual realisatioli of the 
decretal money. 

The scheme and intention of the Transfer 
el Property Act shows that a g^enera! ac- 
count of the mortgagee's does shoUid be taken 
once for all, and the aggregate amoufit stated 
in the tdtcree for principal, iliterest and 
coBts duo oh a fiied day, and that, after the 
expiration of that day, if the property should 
not be redeMQcd, the matter should pass from 
the domain of contract to that of jrdgmeut 
and the rig.hts of the mortgagee should there- 
upon dependi not on the contents of his bond, 
but on the directions in the decree. 

UeUtf that the High Court was right in 
6llowijg interest at the Court rate from the 
day fixed for redemption, 28 I A 3.'> F :i-i C ^ 
766 21 >I 3G4 ref. to. RANI SUNDEK KOKR 
1.. Kil SH.\M KlUSHEN, H C- "W N- 2i9 
(P. Ci = 5 C- 1-. J- 106 = 4 A- L. J 109 = 17 
M L- J 43-2 M L- T- 75 = 9 B L- E. 804 
= 84- C150^ 

4S- B. 16 Uiidiie influence^enforcement 
c/ gifts by a client to a solicitor's clerk. 

A gift by It client to a solicitor's cletk 
cannot l.c enforced unless it is proved^ that 
the client had independent advice. HAB1= 
VAii \B CAS V. BHAI JIVAJEE. 4- B- L- R- 

469 = 26 B 689. . ^ ^ , 

50^ S- IQ— ^ Undue mfluene&-^PTessure and 

coenloti 

As coercion is defined in the Con^ 
tract Act its idea is clear, but pressure is not 
defined and the iiidga upon suoh plea is 
invited to wander and knoWs not where. It 
must be horny in mind that pressure iuoludes 
coercion. VLLLEY MAHOMMED u. D.\T- 
TU BHOl 25 B 19. 

61. 8. IS— (-■'. (3)— Undue mflucnce-^Un- 
conscioncMe transaction — Pro-note — s. 118 Act 
XX VI of 1S91 N. I. A — 

A sUod B. on a yro-Hote for Bs. 10,000. 
B. plaided that he was a minor and a youth 
of uissipated habits when he executed the 
pi-om..ssory note and that he received only 
Hr. 25,- in" dash and a pair of karas worth 
11 i 150/-. A was a professional money lender. 

Held that under s. 118 Negotiable In- 
struiueuts Acts B. had to prove uou payment 
of oonsideration, but as the statement of A 
Bliowod that lis. 100,000 was not a true con- 
H deration, s. IG coutraat Act was applicable, 
the translation not being in the uidiuary 
c jurse of basiucs.s, aud A being a profession- 
al money lender usurious and extortionate, 
aud a a foohsb yoaiig man of reckless dissi- 
pated and extriiVagaUt habits was domi- 
iiatud by A's will and the onus lay upou 
A to prove that the consideration was piid. 
UAM BAQHUBIB v. 3\V.\B, MIKZlA. 5 

o. e. 807 



Stip; GoTt, acts (IX of 1872) (CWW/ 

62- 8' 1§— Undue influence ^^Hanl and 
unconscionahie bargain — Contrilct voidable — 

To render a contract voidable on the 
"-'round of undue infiueuce there must bo 
evidence of uuduo iufluonciS (ts retjuifed- l)y 
S. 16. jA bigh rate of iflterest which would in- 
duce a Court of Equity to give relief Ekgaiint 
bargain as being era that acctyunt liard 
and unconscionable is not by itself suflVoi' 
em evidence of undue influence.- Addi- 
tional circuuSstanoes must be proved and 
they should bo considered in the light of 
jrstice aud equity. Whore the parties are 
not on equal footing, when it appears that 
tbe borrower was not sware of the rra,! na- 
ture of the bargain so that he put his sigua- 
tuSe to a docuuaent which iu fact imputed 
terms very different from those appjaring 
ou the face of it where the actual ?H.te of in- 
terest is many times higher than what ap- 
pears on the dooament, where tbe borirt>wer 
when pressed for payment Jor what appears 
due on such document has to renew on still 
more eiorbitant terms — all these additional 
SircunlstanGes are suffioieat to inalco oat a 
prima facie case of undue influence so as 
to throw the onus on the Under to disprove 
it— CHALlSING JIOOLCHAXD v. LIEUT. 
K. H. WHITCHURCK. 9 B- I*- E.- 1296- 

83. S. 16 — UilcunseioiiuMit aovcnant for 
pfe-c'mptioti for a fixed su7ii irre.-pceti^c of 
market price— Mortgage suit fur red:inpnon. 
This was a suit for redemption of a 
mortgage executed in 1S72 filed iu 1897. i'iio 
Etortgagors bad agreed by one of the terms 
iu the mortgage-deed to assign tlic laud 
mortgaged to the mortgagee for a price fixed 
tberem, if they over wished to aasign the 
land The mortgagors sold their interest to 
a third party in 1873, The plaintiS was 
representative iu interest of the vendee. The 
mortgagee contended that the suit for re- 
demption Was barred by the coVcnsnt for 
pre-emption con;aiued iu the mortgagenleed. 
Hdd, over-ruhng the Goutentiou, that the 
BUit was not Irarred/ 

Per Shepherd /.— Undet the covenant the 
defendant had no iuterest in the property, 
for a contract of sale creates no intere^t in 
the property to which it relates. His right 
conld be no other than a right to spccinc 
performance under Section 37 of the Specific 
Relief Act. The plaintiS was not a transferee 
who took with notice of the contract sought 
to be enforced. Assuming that there was 
notice o( the contract and that it was other- 
wise a valid contract, the defendant could 
not set up the defence urged by him, as no 
suit could now be brought to enforce the right 
of pre-emption. 

Per liashtiam Aiyangar, J.— A mortgagee 
ntav stipulate'for the collateral advantage of 
a ri'iht of pre-emption in eousideratiou of. his 
advSnciug tbe mortgage Inan, if such advan- 
t-i»e does not directly or indirectly • clog the 
e.iuity of redemption,' The principle under- 
lying this rule is that tbe option of sale is 
atill°loft with the mortgagor, and he may 
redeem or sell as ho likos ; the only acipulatiou 



( 205 ) 



CIVIL DIGEST OP CASRS 



( 20C ) 



Sup: Sovt, acts (IX of 1872) (Contd). Sup: Govt, acts (IX of 13T2) i,Ca>u<i.) 



boiug tliat, in the event of his choosing to sell, 
ho shall give the uioitgageo the refusal. 

Uu the ground that the right of redemption 
was suhsisfciiig and had not boon extinguished 
ot the date of the suit, and also on thegiound 
that the dofendivnt had failed to show that 
he WM either at tlio date of the suit, or was 
now, ill a po!-;itiou to euforee his right of pre- 
•uiiition, tire jjlaintiff was entitled to the 
deiroo for redemption claimed by bim. BA- 
MASWAMI I'AXrAR V. CHINNAN ASABI. 

M- L J., 19ai, P- 132. 

54- B- 16. — UiiGunicionable bargain or not — 
Interest — Co>nvoiind interest — Vncmiscionable 
bargain — Unfair dealing — Delay in sitit — Ur- 
gout neocs.si''(/--Pardaiia8hii> lady. 

A bargain as to compound interest in a 
mortgage bond, which is not itself open to 
objection as hard and unconscionable, cannot 
be hold to have assumed that character by 
re.iisou of the delay on the part of the creditor 
in suing on. the bond, Madho Singli, v. KaalU 
Ram, (I. L. R. 'J All 228), dissented from. 
When the interest charged in a mortgage 
bond is very high and the debtor is full of 
capacity, the general rule is that the Court 
will not grant relief without proof of unfair 
dealing or undue pressure or influence on 
the part of the creditor, or that the creditor 
ha-i taken unfair advantage of the debtor's 
weakness and necessities, or that the debtor 
has been over-reached, tricked or deceived, 
or that he was ignorant of the unfair nature 
of the tran.«olion. The case of a female 
dobt.jL- in fiduciary relation to the creditor 
and of au expectant hoir are exceptions to 
the general rule. Zcbomiinsa v. Brojendro 
Coomar Roy Chowdhry, (21 W. B. 252); Mac- 
kintosh V. Wingrooe, (1. L. R. 4 Cal. 137) ; 
Marjniram Manuari v. Eajpati Kocri, (I. L. 
B. 20 Cal. 3G6); 3urya Narain Singh v. 
Jogendra Narain Roi/ Chowdhrij, (I. L. B. 20 
Cal. 800) follo\^ed. 'Siidisht I,al v. Sheobar- 
at Koer (I L. R. 7 Cal. 215; L. B. 8 I A. 39); 
Nintarini Darsi v. Nindo Lall Bose (I. L. R. 
20 Cal. 8>J1); Kkas Mahal v. The Adminis- 
trator-General of Bengal, (5 C W. N. 505); 
Kamini Sundari Chawdli,rani v. Kali Pro- 
sunno Ohose (I. L. R. 12 Cal. 225; L. R. 12 
1. A. ai5), and Beynun v Cook, (L. B. 10 Ch. 
889) distinguished. The mLTc fact that the 
debtor was in urgent need of money is not 
Bufficieut in itself to raise the presumption 
that the creditor took unfair advantage of 
his ntoessity.— UMESH CHANDRA KHAS- 
NAVIS L-. GOIiAP LAL MUSTAPI, J. L- R., 

81 C. 28S. 

65- S- \G-^Unconscionable agreement — In- 
terest. Eicorbitant rate of. 

The bond in suit stipulated payment of 
compound interest at Rs. 2 pjr cent, per 
mensem with monthly rests. It appeared that 
the osecutant of the bond was, at the time 
the bond was executed, a youth of about 
eighteen years of age and also a spendthrift 
and a drunkard. 

Held, that the bond itself bore Upon its 
face the impress of uuoousciouable dealing, 



the rate of interest chir^eable being so e*' 
lorbitant — 10 Ch. App., 391; 12 Cal., iP.^i: 9 
'AIL, pp. 74 and i-iW, referred to. KIRP.\ 
iR\?.l V. SAinUD-DIN AHMAU KHaN, 

lA- W N 1903. P. 44. 

I 56 9. 16 -U'loo'isoiouablo bargain ojipc^ed 
;to public puhev — (iarabhng in litigalvoo. See 
^Champerty, DEBI DIAL SAHU u. BHAN 

lP.\BrAB. 8. C. W- N. 403 =3i. C- 433- 
P. C 

67- S. 16 & n.—Frazid. Plea of-Estoppel 
Voidable contract — Undue influence. 

Fraud does not make a transaction void 
but only voidable at the instance of the per- 
son deiraudfcd. 

A defendant is entitled to resist a, claim 
made against him by pleading fraud and he 
is entitled to urge that plea, though he may 
not have hirasuif brought a suit to set aside 
the tran.'taotion, and is not under certain 
circumstances precluded from urging that 
plea bv the lapio of time. 

Where a person is in a position to domi- 
nate, then the contract is to be regarded as 
induced bv endue influence BANCrNATH 
SAKHAR.UI i-.dOVlND KABSINV. 6- B- 

I- R. 592 = 21 B. 639. 
68. S. 16, 19 (a) and 23 —l^attji cation 

of contract caused by undue influence— dis- 
qualified piopTictor— borrowing tnoney without 
sanction of Court of Wardf, 

D, a big talukdar, was declared a disquali- 
fied proprietor and his properpty was taken 
charge of by the Court of Wards. While 
thus inchargc of the Court D. borrowed Ba. 
i 500 from P. and executed a bond for the 
same agreeing to pay within two years the 
money with interest 24/- per cent a year. 
Interest was to boar compound interest if 
not paid up every six mouth. Interest was 
to be paid out of his monthly allowance of 
Bs 1260/- Three years after, D execut^'d an- 
other bond for Bs lOOOU/- consisting of the 
principal and interest and compound inter- 
est of the previous bond and Rs. 1250/- 
taken iu cash. luter-est was fixed at Bs 18 
per cent per year, and the time of payment 
was V years. Six years after the executioa 
of this bond D'b property was released by 
Court of Wards. Nothing being paid, P. 
brought a suit for Rs 42,000/- on this bond. 
B. contended the ti-ansaction was forbidden 
by Oudh Land Revenue Act XVII of 1876, 
S. 173 and 174 relating to disqualified pro- 
prietors and the Cv urt of Wards, or waa 
against public pohcy and void under S. 23, 
Contract Act, 

Held that the bonds were not forbidden 
by the Land Revenue Act. The bonds be- 
ing legal and not infringing any established 
principle of law, were not oppos-ed to pub- 
lic policy. The traDsa.jtions weie not there- 
fore void under S. 23 ConU-nct Act. 

Held that an Act mu t b^- c n^tiued ac- 
cording to the intention oi t!.e i er oi s who 
passed it and such intention must be gathered 
from what they have said iu the Act. As 



( 267 ) 



CIVIL DIGEST OP CASE9 



( 268 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

to the couteutiou that the bond sued on 
amsunted to au uncouscionable bargain. 

Hekl that, uudoc the civcumsfcaucoa of 
the case it was clear that D's coiisont was 
caused by undue influence under S. 16 Con- 
tract Act and the contract was voidable at 
the option of D. 

Held also that ratification of a contract 
caused by undue influence must be proved 
by the clearest evidence. 

Held further, that D had received beni- 
fit under the transaction and under S. 19. 
(a) Contract Act a transaction could be set 
aside upon terms. MUNEriHUB BAKSH 
SINGH V. AUSERILAL. 5. 0- C- 256. 

59 S- 16 — Dif^ixnalified proi>rietor, coinpe- 
tencij-Oudh Land Ucvenue Act of 1676, s.s. 
173 and 174 — Undue influence — Unconscionable 
bargain— Fraud— Dclaii in suit upon a valid 
contract no ground for impeacliimj its validity 
— Onus of influence. 

A sued B'for the recovery of Bs. 32, 837, 
principal and interest due on a registered 
bond executed by B on the 27th January, 
18'J6, at which time he was disqualified from 
the man.agement of his estate under S. 162, 
cl. (g) of the Oudh Land Bovenue Act of 
1870, in favour of A for Rs. 9,950. The bond 
was payable in two years at Bs. 1-8-0 per 
cent., per mensem interest, in default, com- 
pound interest at the same rate was charge- 
able with yearly rests till the date of pay- 
ment. B pleaded that he was not bound by 
the deed as its execution had been procur- 
ed by the exorcise of undue influence and 
that it was an unconscionable transaction. 
In appeal, it was further contended by B 
that the contract was invalid as, at the time 
of entering into it, he was a disqualified pro- 
prietor. 

Held that there was no provision, in the 
Oudh Land Revenue Act of 1876, which 
prevented B from entering into the contract 
suit 5 0. C. 255 followed. 

Held, further, thi,t the fact that B was 
disqualified from managing his estate was 
not in itself sufficient to bring B within the 
category of those classes of persons whoses up- 
posed weakness of intellect or imp.Lirod capa- 
city for contractual purposes prima /ncte sug- 
gest the inference that they have beeu impos- 
ed upon, so that a Court of Equity presumes 
that when they have made a very hard bar- 
gain, to put it at the lowest, they have 
been overreached and consequently places 
tliat onu-i probandi that the bargain was fair 
on the other party. 

It is incumbent on a party, be he plain- 
tiff or defendant, who seeks to set aside a con- 
tract on the grjund of uuduo influence or 
fraud, to give in his pleadings full p.irticulars 
of the circumstances on which he relies as 
the basis of his plea. It is not enough to 
boldly assert that fraud vitiated the tran- 
saction. 

On the evidence, the Court held that 
the contract was not induced by undue in- 
fluence such as is contemplated by S. 16 of 
the Contract Act, and was not unconscionable. 



Sup: Govt, acts (IX cf 1872) (Co7itd), 

If a contract at its inception and com- 
jjletion cannot be impeached as unfair in a 
Court of Equity, a Court cannot impeach 
it subsequently lieoauso merely owiug to delay, 
wilful or otiierwise, in instituting the suit 
to recover ujjon it, a small pecuniary liabi- 
lity has grosvu into a big one, RAJA MUN- 
E.SHAB BAKSH SIHGH;^;. SHADI LAL. 

8 C 210 

60 S- IG— Interest — Unconscionable bar- 
gain — Bond — Compound interest. 

One Sami-ud-din Ahmad Khan, on the 
lOih of November, 18J2, borrowed from 
Kripa Kara and Ghasi Bam Rs. 900, for 
which he gave a bond beariug compound in- 
terest at Bs. 2 par cent, per mensem, with 
monthly rests, and mortgaging a 10-biswa 
share in a village and half pakka house in 
Moradabad. The obligor wa.s, at the time o£ 
the execution of this bond, a young man of 
18 years of age, a spendthrift and a drun- 
kard. On the 13th of June, 1900, the mort- 
gagees sued on the bond to recover Bs. 5, 
3S0-9-0 from the surplus proceeds of the sale 
of the mortgaged share which had taken 
place in execution of a decree on a prior 
mortgage. The Court of first instance gavo 
the plaintiff a decree but allowed only sim- 
ple interest a>t the r.ate stipulated for in the 
bond. On appeal, the High Court sustained 
the lower Court's order as to the interest, 
holding that the bargain was au uncon- 
scionable bargain, against which that Oourt 
had properly relieved the defendant mort- 
gagor. Bei/non v. Cook (10 Ch. App. 391) ; 
Kainini Sundari Ghaodhrani v. Kali Prosun- 
no Ghose, I. L. B , 12 Gal. 225); Lali v. Rain 
Prasad (I. L. B., 9 All. 74) and i\[adho Sing 
V. Kali R'lm (I. L. B., 9 AU. 22o), referred to. 
— KBIPA BAM 0. SAMI-UD-DIN AH.UVD 

KHAN. J. L R-, 25 A- 284- 

60 (a) S. 16 — indue influence — mortgage 
crrcuted whde under arrest in cvecuiion of 
decree 

B. executed a mortgage deed, the con.si- 
deration for which was a previous money 
dc -'rou, it was found that B. was arrested and 
kept in custody and was leleised on or j ut be- 
fore executing the deed, held, llial the deed was 
not void on the ground of undue influence, 
merely because the deed was executed, while 
the defendant was under arrest in execution 
of the previous money decree (i A ud:! Dis) 
MUL CHAND o IMAM BAKHSH, 51 p. R. 

1908 

61- S 17— ■y"' ■^■- 1'^ '<' t'—-l- ^- (139 No. 37 

62- S- 19— •'5''^'^ S.ii, i'.',i:-i,(i-i—30.C. o3» 

No. •« .Supra. 

63- S- 19 ■■>■•■'■ ■■''• '*'■— ^- 0. C. 2.j6— No. S3 
Svjira. 

64- S 19— -Sic ■">'■ I'i. iy—3l. Ti. Sin No. J,7 
Sup I a. 

65- S- 19— ""<' '>■'■ Frocinda'. Small Cause 
Courts Ad (/.V oflsa?), Sihedale II, Articl< Ij— 
Suit for dama.je.^ after acoiduiy .sale of j. ropcrly 
on the ground if fraud — Jurisdic'ion. 

The plnintirl sued the defendant, a hoise 
dealer, in the Small Cause Court for refund 



( 2R9 ) 



CIVIL DIGEST OF CASES 



( 270 ) 



Sup: Govt, acts (IX of 1872) (Co,ud) 

of the price of a marc sold by the latter to 
the plaintiff, on the allegaliou that the mare 
had a cracked hoof and the dafeudant had 
filled up the crack with some substance to 
defy detection. The Court found that the 
defendant was guilty of active fraud wliich 
none but an expert was capable of detecting 
and decreed the claim. On revision it was 
contended that the Small Cause Court had 
no jurisdiction to try the suit as it was one 
for rescission of contract and was excluded 
from the jurisdiction of the Small Cause 
Court by article 15 of the second schedule of 
the Limitation Act. 

Held, rejecting the application for revi- 
sion, that the contention was not valid, the 
suit was not for rescission of the contract 
but for damages after avoiding the sale on 
the ground of fraud. ABDULLA KHAN u. 
GIBDHARl LAL.— 49. p. R. 1904. 

66 S- 20-J^^i^<^^^ — ContrcLct-l'roposal with 
unqualified assent — Mistake in expression — 
Common mistake — Unilateral mistake-Contract- 
ing party not able to read — Contract differing 
from that jurtoided to be read. 

It is of the essence of a contract that 
there should be (expressly or by implication) 
a proposal to which an unqualified assent 
has been given; without such assent there 
is no contract, the minds of the contract- 
ing parties are not at one. Mistake in ex- 
pression may bo either common or unila- 
teral. Mistake in expression implies that 
the minds of the parties are not at one on 
that which is oxpres-sed; but it does not 
follow that in every case, where there in 
fact has been such mistake, there is no 
contract. Practical convenience dictates that 
niou should be held to the external expres- 
sion of their intentions, unless this be out- 
weighed by other considerations; and to this 
legal effect is given by the law of evidence, 
which permits oral proof at variance with 
documents only iu certain cases; in the rest, 
the proof, if it bo of mistake, is not received, 
so that the mistake does not come to light, 
and iu a Court of law does not exist. The 
Court, administering equitable principles, 
permits mistake to be proved when it is 
common; that is, where f.he expression of 
the contract iscoutniry to the concurrent 
intention of all the parties. If such mistake 
be established, then Uie Court can give the 
relief of reci,ification but what is rectified 
is not the agreement, but the mistaken ex- 
pression of it. The general rule is that the 
intention of contracung parties is to bo ga- 
thered from the words they have used. 
Where the mistake is unilateral, it does not 
ordinarily affect the rights which are the 
legitinnte cousequeuce of the words, though 
it may affect the remedy that will be award- 
ed against the party in error. Sut niistako 
known at the time to the other l)arty may 
be proved and performance iu accordance 
Witli the terms of the error will not bo 
compelled. A mistake even not known has 
legal consequences, provided there can bo 
restoration of all parties concerned to their 



Sup: Govt, acts (I.X of 1872) {Conld). 

original position. Where a contracting party, 
who cannot read, has a written contract 
falsely road over to him and the contract 
written diflers from that pretended to be 
read, the signature on the document is of 
no force because be never intended to sign 
and therefore in contemphition of law did 
not sign the document on whicli the sig- 
nature is. If a person executes a document 
knowing its contents but misappreciatos its 
legal effect, he cannot deny its execution. 
-D.AGDU V. BHANA, L L. R., 28 B- 420; 

6 B L R 126 

67 S. 20, 22—Lrllcrs Patent, Clause 12- 
Contracl — Sale uf land situated outside Ori- 
ginal jurisdiction of Higli Court— Mistake, 
common or unilateral — Hectification of Con- 
tract — Fraud — Misrepresentation — Specific Re- 
lief Act (I of 1877), Section 12— Specific per- 
formance — Decree in personam. 

The plaintiff, a Bombay merchant, 
brought a suit on the Original Side of the 
High Court against the defendant who re- 
sided and carried on business in Bombay to 
get specific performance of an agreement to 
11 land situated outside the Original juris- 
diction of the High Court, and prayed "that 
the defendant may be ordered specifically to 
perform the said agreement, and upon his 
making out a marketable title to the said 
land to execute a conveyance thereof in fa- 
vour of the plaintiff." The defendant pleaded 
that at the tiine of agreement the iJlaintiS 
had acted fraudulently and raisreproscntcd 
the real facts; that the agroemeuL contain- 
ed a common mistake of the parties and 
should be rectified so as to convey the real 
understanding ; oi j 'otion was also taken on 
the score of jurisdiction, and it was alleged 
that the agreement was signed outside of 
Bambay. 

Hi'/d, that without regard to the ulti- 
mate end or purpose of the suit, it was immo- 
d'ately a suit to enforce the specific perfor- 
imancQ of a contract and fell under section 12 
of the Specific Relief Act, and as such was 
within the jurisdiction of the High Court. 
The High courts in India have all the po- 
wers of a Court of Equity in England for 
enforcing their decree in personam. 

In order to obtain rectification of a 
contract on the ground of mistake there 
must bo a mistake common to both parties, 
and the evidence of it must be strongest 
possible. If the mistake is unilateral, toere 
must bo fraud or misrepresentation amount- 
ing to fraud. 

Where two adult meu have contracted 
at arm's length and with their eyes open, 
it is eminently desirable on principle that 
they bo held to the terms of their bargain, 
and this principle must be not less jealously 
guarded in India than in England. 

The Courts are 1 reluctant to refuse speci- 
fic performance on the ground of mistake 
unless the defendant prove something fur- 
ther. What this further evidence should 
amount to, has been thus expressed " that a 
hardship amounting to justice would bo iu- 



( 2"1 ) 



CIVIL DIGEST OF CASES 



( 272 ) 



Sap Govt, aots (IX of 1872) (Oontil). 

flioted up")u tbe defon.lant by holding him to 
his bargain. H-JNSri\J XIOilAlijEK v. 
RUNCHOttDAS DHAllfiKY. 7 fi L- R- 319- 
68- S. 20, 30 Si 65— Aduatice ore risk 
(yoijija ■,)!,) of sk'p — Marina Iiisurauce — Coii- 
tiact by 10(11/ of waijer. 

In a. dooumiut, ditod :ird August 1890, 
signBd by defeadants and addressed to plain- 
tiff, it was recited that plaintiff had lent a 
sum of raoney to defendants on tbe risk or 
security (" yogyam ") of a ship belonging to 
defendants " now under sail to the Nieobara" 
from Nogapatam : and t)ie defendants stipu- 
lated that " as soon as the said ship starts for 
and jreachos the Nieobar Isies and tlionoe sets 
sail and goes to Rangoon, Moulmein and 
from there starts again and reaches Negapa- 
tani .... that is, as soon as the said 
chip shall come hack to the Negapatam 
harbour again, we sliall repay to you on the 
expiry of eight months from 'iSrd Julv 1396 " 
the sum advanoed with interest. TUe ship 
iiad left Nogaptam on 23rd July 1896 aud 
was lost at sea three days later. Plaintiff 
BUed defendants for the sum adfaueed, oa the 
ground, among others, that as the vessel had 
been lost before the date of agreement, tbe 
latter was void, aud the defendants were 
ijable to refund the amount advanced. 

iif'M, that he was not entitled to recover. 
■The risk which formed tbe basis of the agree- 
ment, according to its true construction, 
commenced from '23rd July 1896, as set out in 
ibe djcumjut, because it was on that day 
that the vessel sailed from port and com- 
menced to incur the perils of the deep. The 
agreement was conseciuontly not void under 
S. 20 of the Contract .\ct, nor were the de- 
ieudants bound, under S. G5 of that Act, to 
restore to plaintiff the sum they had received 
.under its terms. Such an agreement could 
pot he held to be in any sense a policy of 
jaaarine insurance. 

Per Davies J. — The suit should he dis- 
missed under S. 30 of the Contract Act, on 
the further ground that the agreement was 
one by way of wager. VAIPAKANDU MA- 
BAKAYAE V. ANNAMALAI CHBTTI, J. L- 
R- 25 M- 56J- 

68- S- 20' 65- — Unregistered sale deed^ 
evidentiary admission and admissions by the 
pleadings — Transfer of Property Act, S, 55 (3) 
— Caveat emptor — Uesloration of purchase 
money on sale beijig void. 

There is a distinction between evidentiai'y 
admissions and admissions by the pleadings. 
S.,»53 governs admissions by tbe pleadings. 
Although a sale deed is adraissaWe in evidence 
as being unregistered, an admission by tbe 
defendant, in bis preliminary exainination of 
an agreement alleged in the plaint, to the 
effect that he would make good any loss tbe 
plaintiff might incur in respect of the pro- 
perty»sold, is not excluded by S. 91, Evidence 
Act, and renders proof of the agreement un- 
necessary. 

A sued to recover a certain sum, alleging 
that ho bought for that sum a piece of land 
aa a house site from B aud C, they agreeing to 



Sup: Govt, acts (IX of 1872) 'Contdi. 

make good any loss he might incur in 
respect of the transaction, and that the 
Collector thereafter declared the lind to be 
state property and refused permission to 
him to kuild on it. Jleld that, in the face 
of such an agreement, the rule of careat 
emptor cannot be applied. Apart from tUs 
agreement, it is doubtful wisethcr the 
maxim itself is current in India and retains 
validity in respect of the vendor's title. More- 
over, the principle of S. 5-5 (2) of the Trans- 
fer of Property Act, under which the seller 
passes a covenant for title, ought to be 
followed as a matter of justice, equity and 
good conscience, although the Transfer of 
Property Act itself is not iu force in Upper 
Burma. Again, both the parties believed »t 
the time of the sale that the laud was 
bobabalng a,ndL they had no knowiedge or warn- 
ing that it would be subsequently declared 
to be State. This is, therefore, such a mis- 
take as is referred to iu S. 20 of the Contract 
Act, and S. 65 of that .\ct requires the sellers 
to restore or make compensation for the ad- 
vantage they receive, apart from any agree- 
ment which they admitted to have made. 
U. B. E. (1897 -01), II, 379, F. SADHU u 

KiGtA SI aYl,-U- B- R (1907). E 1- 

70. S. 20, 143 & Hi— Administra- 
tion bond, liabilltij of sure' i a — Miitnul mistake 
— Indian Stiecessioii Act (X of 1^)05), S- 3i^, 
256, 257, 262, and 2G9. 

h. made false representations to the Court 
and tliereby obtained an order granting him 
Litters of .administration to th^i estate of a 
deceased person, andinduced two uthorpersons 
to stand surety for him by sim'l'-r misr !p e- 
senlations and showing them a lOp- of :.i e 
said order, whereupon they, in ignorance ot 
tbe true state of affairs, executed an aduiiuis- 
tration-bond, and Letters were issued in his 
favour. 

Held per Maclean, C.J., Mitba and Gkidt, 
J.J. (Harington and Stephen, J.|J. Dissj— Tlitj 
ease is not governed by S. 20 of the Indian 
Contract Act, which says that, whore both 
the parties to an agreement are under a 
mistake as to a matter of fact essential to 
the agreement, the agreement i.s void. The 
fact that- A was not entitled to the Letters 
is a fact net essential to the agreement 
between tbe Court and the sureties. The 
Court simply said that it would not issue 
the Letters of .Administration unless A and 
the sureties gave the bond. 

Held per Habisoton and Stephen, J. J.^ 
A mistake as to the authority of the person 
guaranteed is a mistake on a m '.tter of fact 
essential to the agreement, because it directly 
affects tbe risk undertaken by tbo sureties. 
They guaranteed the due perform.'.nce of the 
duties of an administrator by a person au- 
thorised, for that purpose, by tlje beneficia- 
ries and not by a person not so authorised. 
They do not undertake the heavier risk iu 
tbe letter case: The ease, theveforCj falls 
withia the scope of S. 20 oi the Contract 
Act. 17 W. R. (Eug.), 139 and 2 Q.B, 494, E.tp, 
and D, A contract may be void so far as the 



( 273 ) 



CIVIL DIGEST OF CASES. 



( 274 ) 



Snp; Govt, acts (IX of 1872) rContd). l Sup: Govt, acts (IX of 1872) (Vo„td). 



pviiicipal ^oblor is conoerued hut the surety 
ii not nocossarilv disohargecl (1757) 1 Bur. 37:i 
and 19 B. 697, li. Per Geidt, J.— The mialakes 
which invalidata oouti-aots of guarautoo aro 
spocified in Ss. 142 and 113 of tho Indian 
Cootract Act. A niistake induced by the 
prino'.pal debtor does not come within th.i 
Bocfioiis. DliBK-N'miV NATH D'Jl'T AXD 
lUNMCU BElIAItl BANliKJEE) v. THK 
AD'MINISTRATOa GENERAL OF BEN- 
GAL, 30 L J. 422 (S B)-10 OWN 
673 =33 C 713 

71 S 20 -Allstakc Not prarcnhng party 
f;,i;n claiming pro'cctioii of a special cove- 
nant. 17M.L.J.167;30M.1!S4, 

72 S- 21- — Bona fide mistake of law .— 
Ilekl, that an innocent mistake of law 

comnion to all the p irtie? to a contract could 
afford no ground for an aotioo for rescission. 
17 r 2'Jl dist.— SABIHAls BlBl v. MADHO 

LAL. 1907 A W N 1907 ; 4 A L J- 475 

73 S- 21- .ff"'<i'< f/(iw — Hi//, conslriuiioii 
of—Iiitcnti<in of testator^Voidvhility of irstric- 
liuns and qualificiUions imposed— Trnst — 
Riijht of suit— Limitation— Doubtful right — 
Compromise. 

When from tho terms of n will taken as 
a whole, the intention of the testator to be- 
queath an estate of inharitauce is manifest, 
the mere fact of some of the restrictions and 
qualifications imposed by the will hnng void 
does not altoct th ; validity of the estate cou- 
vovod by it. li ii Ki^hori Dasi v. Debandra 
Nath Sircar. (L L. B. 1.5 Cal. 409; L. R. 15 I. 
A 37) fja'it Mohan Singh Roy v. Chukkan 
Lai Iloj, (I. h. R. 24 Cal. 834 ; L. R. 24 I. A. 
70) anil llai Bishcnchand v. A^maida Koer, 
(I. L. R. D All. 560; L. B. i 1 I. K. 185) follow- 
ed • Shookmny Chandra Das v. Monoharri 
Dassi, (I. L. R. II Cal. 684; L. B. 12 I. A. 
103), distinguished. A Hindu governed by 
the Mitakshara law is competent to maintain 
a suit for partition of an ancestral property 
even when his father and graudfathor are both 
alive, if they allow the property to ba wasted 
and the plaintiff's interest imperilled, SnraJ 
BiinsiKoerw. Sheo Persad Sitigh, (I. L. B. 5 Cal. 
14'3- L R. 6 I. A. SS), Jogid Kishore v. Shib 
Sahai il. L. B. 5 All. 430) and Subba Ayiiar 
V. Ganasa Ayijar, (I. L. R. 18 Mad. 179), fol- 
lowed Apaji Narhar KtUkarni v. Ram Chan- 
dra Ravji Kulkarni, (I. L. R. 16 Bom. 29) 
dissented from. When a deed of rolinquish- 
rnont operating to extinguish tho pliintiS's 
right to a property is not void ob initio, if 
it is not sot aside by a suit brought within 
the period of three years prescribed by law, 
tbfc plaintifS's right to the property, if any, 
is barred. Raghubar Dyal Sahu v. Bhilcya 
Lai Miaser, (I. L. R. 12 Cal. 96), and M.dlMr- 
jun V. Narhari, (I. L. R- 25 Bom. 337 ; L. R. 
27 I. A. 216) followed ; (I. L. R. 23 Cal. 460), 
distinguished. The compi- -aise of a doubt- 
ful right is a sufficient foundation for an ag- 
reement amongst the members of a family, 
and shall be binding on thera. Bibec Salmon 
V. Abdool Azcez, (I. L. B., 6 Cal. 037), distin- 
guished. RAMEaWAB PBOSAD SINGH v. 



LACHMI PBOSAD SINGH. 7 C W N- 

fiaft— *n c 111. 

73(a) S. 2'2-Sc.? S. 45 and 22-76 P. 
L. R. 190.5— No. 177 hifra. 

74 S. 33— .I'f J if 1836 Madras, Sections 
22 and 21 (e)— License to seli arrack— S lib-let- 
ting without permi^:sion of Collector. 

Th-T plaintiff, a license-holder for sale of 
arrack sued the defendant for value of arrack 
supplied and profits according to an agree- 
ment executed by the defendant. It wis 
contended for the defendant that tho agree- 
ment was illegal, as one made without the 
sanction of tho Collector required by section 
22 of Act 1 of 1886, and the clause of tha 
license granted to tho plaintiff. 

Held, that section 22 imposed a duty on 
the lesso'o or assignee, that is, on the defen- 
dant, but clause 21 of the plaintiffs liconsa 
which was issued under section 24 (e) impos- 
ed the duty on the plaintiff also as grantee 
of Goverumeut to obtain tha Collector's 
license foL' his lessee, and tliat the contract 
was therefore illegal. PAKUBU D.\SU v. 

BUEEMUDU. M- L. J- 1903- P- 133=23 

^7^^^S. 23— Excise Act (VII of 187 S Ben- 
gal). Object of —Public policy -License— Traiis- 
fer of liquor shop without renewal of license 
in favour of transferee, whether illegal— Con- 
tract of iyidemnity. , „ . ... 

Tho prohibition by the Excise Act 01 
sale of liquor without a license is based upon 
public poUov and on moral grounds and tha 
purpose of 'the Act is not confined to tha 
protection of tha revenue. 

Tho purpose of tha E-ccisa Li,w is to 
miko the liojuse a personal privilege not 
transferable by one private individual to an- 
other. , . , 1,. 1 ■ • 

The plaintiff who carried on tha busi- 
ness ofalioeased veudor of liquor sold tha 
stook-in-trad-3 of his shop to thj defe^idiut, 
to carry oi thj business of vendor of Lquor 
without ojtaining a fresh licjnse and -the 
defendant in consideration of this agreement 
promised to p.iy monthly a sum fixed by 
tha pirtici and to indemnify the plaintiff 
against all claims and d.-minds agiin;t the 
shop. The plaintiff brought a suit to recovar 
a sum as iude.naitv for alleged brjaeh ot 
dofeudant's. promise and for monthly instal- 
ments that had fallen in arrears. 

Held, that tha indemnity was insepar- 
able from the rest ot the contract which was 
iUo-'il anl void, and tho sui» did not he. 
BH13VBI liVL SH\HA v. JOGODXSH 
CHANDRA SH\HA. 8- W- N- C- 635 = 31- 

78 S- 23— Contract — Illegal contract — Ex- 
cise Act (XII of liOS), Rules under— Excise- 
License. Transfer of— ^ ,. , , 

When a pn'sou to whom license for sale 
of liquor is crinted agrees to adm't aaothn- 
to a share in the profits of the business in 
consideration of his assisting thi hceuse- 
holder in th3 sales, the agreement, m the 
absence of anv condition in th^ license to 
the coulrarv, is not unenfoixible, for tha 



( 275 ) 



CIVIL DIGEST OP CASES 



( 276 ) 



Sup: Govt, acts (IX of 1872) fcont/). 

agreement does not operate as a transfer of 
the license, and is not invalid. BASHE- 
SHARDAS V. GOBINDRAM. 159 P L B. 

=114 p. R., 1906. ^ -^ 

77. S- 23 Ille<J<^l contract— Champerty— 
Agreement against jmblic policy. 

A fair agreement to supply funds to 
carry on a suit in consideration of having a 
share of the property, if recovered, ought not 
to be regarded as being, per sc, opposed to 
public policy. Indeed, cases may be easily 
supposed in which it would be in furtheronce 
of right and justice and necessary to resist 
oppression, that a suitor, who had a just 
title to property, and no means except the 
property itself, should be assisted in this 
manner. But agreements of this kind ought 
to be oarefully watched, and when found 
to be extortionate and uncousciouabe, so as 
to be inequitable against the party, or to be 
made, not with the bona fide object of as- 
sisting a claim believed to be j ist, and of 
phtaining a reasonable reoompeuse therefor 
but for improper objects, as for the purpose 
of gambling in litigation, or of injuring 
or oppressing others by abetting and en- 
couraging unrighteous suits, so as to be con- 
trary to public policy, — effect ought not to 
be given to them. 

The defendant made a claim for Rs. 
3,000 against the National Bank of India, 
Limited, which was dismissed on a prelimin- 
ary point. The plaintiff paid Rs. 200 to 
the defendant before his filing appeal in 
his own name against the order dismissing 
the suit and agreed to pay Rs. 400, on the 
said appeal being successful and bis rocover- 
iug the decretal amount from the Bank and 
to incur all costs of litigation, and the 
defendant agreed not to compromise tlie 
case. The appeal was allowed and the de- 
fendant accepted Rs. 500, from the Bank in 
full satisfaction of his claim. On the suit 
of the plaintiff against the defendant for 
Ks. 1,500 including expenses and damages 
it was pleaded inter alia, that the agreement 
was opposed to public policy aud not en- 
forceable at law. 

Held, that the contention was valid: the 
plaintiff was allowed to recover his expenses 
with interest at Rs. 6 per cent. JI. R, ?;TE- 
WART V. RAM CHAND. 20 P- L- K- 1906- 

78- S. 2S— Illegal contract— Contract op- 
posed to public policy. 

The plaintiil entered in contract with 
the Commissariate authorities agreeing to 
supply a certain quantity and quality of 
bhusa during a specified period. The plain- 
tiff then entered into a contract with the 
defendant, under the terms of which it was 
agreed that the defendant should supply 
the bhusa to the Commissariat Department, 
paying the plaintiS one anna for eaoli 
rupee's worth supplied. 

Held, that the making of sub-contract 
as above was not opposed to public policy. 
SOBHA SINGH V. IjORINDA MAL. 99 P. 
R1901. 



Sup: Govt, acts (IX of 1872) (Contd.) 

79- S. 2S- — Illegal contract— Loan by a 
regimental bania to a sowar is not opposed 
to public policy- Army Regulations, India, 
Revised Edition, Volume II, Part 2, Section, 
S5, has not the force of law. 

Section 85, Volume II, Part 2, of the 
Army Regulations, India, Revised Edition 
has not the force of law. 

Where the suit of the plaintiff, a re- 
gimental bania, against the defendant, a, 
sowar in the 1.3th Bengal Lancers, on a 
book-account, was dismissed by the Small 
Cause Court, Rawalpindi, on the ground that 
the dealings between the parties were cont- 
rary to public policy and created 'no con- 
tractual liability — 

Held, that the dismissal was wrong 

P. R., 16 of 1873; 99 of 1901; 63 of 18S4-' 12 
Bom., 4H2: 19 Bom., 626; 10 All, 577; 22 All 
320; 2i Bom., 632; 36 Ch. D., 359. at p 364 
(1887); 3 Bing., 229 {1831), L. R., 19 eq., 462, 
at p. 465 (1S75), referred to. JAI NARAIN 
V. SULTAN MUHAMMAD KHAN, 96 P 

R. 1902 = 17 P L R, 1903- 

80- S. 23-— Injunction— Civil Procedure 
Code, S. 376, 395, 492 — Temporary injunction 
— Application for rateable share in proceeds 
of sale not equivalent to an attachment. 

Held, that an alienation made pending 
a temporary injinction under S. 492 of the 
Code of Civil Procedure, was not void under 
S. 23 of the Contract Act, 1872, or any other 
law. Delhi and London Bank, Ld., v. Ram 
Narain, (I. L. R., 9 All. 497), lollowed. Held, 
also, that an application under S. 295 of the 
Code of Civil Procedure for a rateable share 
in tho proceeds of the sale of property at- 
tached by a creditor other than the applicant, 
is not equiv-tlent to an attachment, and will 
be no bar to the judgment-debtor privately 
selling the property attached for the bene- 
fit of the attaching creditor. Ganga Din v. 
Khushali (I. L. R., 7 All. 702) and Durga 
Churn Rai Chowdhry v. Monmohini Daxi, (I. 
L. R., 15 Cal. 771), followed; Sorabji Mditlji 
Warden v. Gobind Ramji (I. L. R., 16 Bom. 
91) dissented from.— MANAIIOR DAS v. R.-UI 
AUTAR PANDE, J. L. R , 25 A- 431. 

81 S. 23 & 2/3^— Illegal— tiuit to recover 
capital advanced. 

A suit to recover the money advanced 
as capital for the purposes of a partnership 
which was party illegal is not maintainable. 
GOPALRM" HANMANT v. KALLAPPA.— 

8 B L K 164. 

82 8. 23 — Illegal transaction. 

To hold a transaction as illegal it must 
be found as a fact that the transaction in its 
inception am_'unted to, or involved an, illegal- 
ity or was of such a nature that if permitt- 
ed it would defeat tho provisions of the law. 
GOVIND SUBRAO i'. P. S. PACHECO. 4. 

B L. R. 948. 

83 S. 23 — Illegal contract — Alienor alien- 
ating more than his share. 

A mortgage is not illegal under S. 23 
simply because the mortgagors were entitl- 
ed only to a half share and not the whole 
of .the mortgaged property 82 C 746 follow- 



277 ) CIVIL DIGEST OF CASKS ( 27S ) 



Sup: Govt acts (IX of 1872) 



{Gontd) 



Sup: Govt, acts (IX of 1872) [Conti) 



ed. JOGOMOHAN ^EB LASKAR ^ DAU- 
DOONG BURMAN. 12 C. W- N; 94- 

84 S- 23- .f'^S'^J contmct-Counsel and 

'"'"'^f'^^ot to make any portion of 
a oouusel's fee or remuneration depend 
on Tfs cUenfs partial or whole Buccess .s 
illegal, and makes the .'=o^i"^«l §" '^ °' 
gro°9ly improper Pf°f«^«'°7Vo P R ISol' 

I t-rB^o:9?-rc;t':N'- 10^5.1'. 

P. B. 1897 11. C. 257, 29. C. 595 20 B. 
rN^w'p'%% B.^^^Gl'^-ef^'ed lo! 
G..VNGr BAM u.- DEVIDAS 45- F W- R_ 

1907=33. P- I-- R 1907 = 61 P » «07 

^^' R',',. Lcaal Practitioners Act XVIll of 
1879 S 6 it if^?, 28, 29. 30,-WUrc tUs 
ru^^Oi^^i'^-^ %{;;:rcltract-Claun for 
compc'-atlon for abduction of ^ooman^ 

Ih'ld that a promise to pay a sum 
of « ney as compensation for the ahduc^ 
tinn of a woman is enforceable, provided 
r abdu'ctron does -t constitute a no.v 
Compoundable oflence^ 10b P. B, 1S7J. -oO 
P B, 1880; 128 P. B., 1889 (P. «0. l« 
Mad, 1S9, 2<i All., 214 referred to. bH.AH 
RAHMAN V. ISMAIL KHAN. 82. P- «■• 

*^Rfi' S 9,^-ImmoraXcontraot-Ej^eciaedor 
E^ecuto%trLact.on-Considcrat^o.-Fature 
mat cohabitalio>i-Particeps cn^un,^-^ 

When the consideration fo\^° ^^^S'V^^g 
ment is illicit cohabitation, whethor e 
transaction be executory °^, «f,^^Jti ' oli 
agreement is vo.d on grounds of P^"''" ?"'' 
cy. It is liable to be set ^^'^^f ^^^ f t,'^^„! 
instance of a iMrticeps cnmuiis. But tran 
sac' onTintcnde^d to be gifts if amounting to 
coin A-ted transfers of property cannot be so 

'""'^•mSustiou, whether J^^W^xl^ 
red has in truth been transferred by ^ > °' 
g;ft or not, must depend on the -^^tnal mte - 
tion of the parties and the fads of the parti- 

""^^n'Tthat the assignment of a mortgage 
by the plaintiff to the defendant for the puL- 
pose of future illicit cohabitation those m.de 
ostensibly for money oonsKlarat.on wa. vok 
and musb be set aside at the suit of th^- pU'^ 
tiff even if partial elfect h.ul b^^^, §7^^° /° 
the illegal consider.Uion THASI MaTHU^ 
K\NNU V. SUUNMOGWJ-ILU PILL.M. 
28 M 413 M I« J-. 1905 P 2S8- 
^8?! S 2f &. 25,\2). I""-oral cons^dra 
tion. Pica .if-^Failnre to prove— Uims oj 
lyrMf— Cohabitation as consideration. 
^ In answer to a claim based on a promis- 
sory note the defendant admitted execution ot 
the promissory note, but pleaded that the 
consideration for the promissory note was im_ 
moral, viz., an undertaking by the plaintiB I 



(payee) to bring her daughter to the residence 
of the defendant (maker), and put her under 
his protection as his concubine during the rest 
of her life, and that she failed fo carry out the 
undertaking. The issue framed in the suit 
was "Was the consideration for the promis- 
sory note immoral, and is it void for failure 
of consideration. ?" , ,, .. 

At the close of the defendants case it 
was submitted on behalf of the plaintiff that 
the defendant had proved no oa^e. ilio 
Court declined to stop the case at that stage, 
and her witnesses were examined. ine 
Court then held that the defendsLUt had 
failed to discharge the burden which lay on 
him of proving affirmatively that tae note 
had been given for an immoral consideration, 
and dismiss,.d the suit. It was also found 
that the plaintiff had failed to prove hor 
allegation that she had given cash and jewels 
for the nut.e. 

HM that the decision was correct. 
If the defendant proves that considera- 
tion for an agreement is immoral it ts imma- 
terial wh.jther the consideration has failed or 
not Where the buvdou of proving an 
issue lies on the defendant and the .Tudge 
hears the evidence of the plaintiff after the 
close of the case for the defendant, this does 
not show that the Judge thereby rnles that 
the burden has been shifted to the plaintiff. 

The question to be determined was not— 
Was the consideration of future cohabitation 
with the plaintiffs daughter, as a leged by 
the defendant, or hard cash as ^■ll«f; ^ ^y 
the plaintiil, but had thJ defendant proved 
affirmatively that the consideration for the 
uote was future cohabitation with the plain- 
tiff's daus^ter. , , , 

There is no presumption that when a 
note is given during the continuance of coha- 
bitation the consideration in part, if no 

^7.?^^.t^T^k:^i^iBA^N^'R^| 

DyIb «. SUBHADRI AMMAL. 13. M- L 

QO >{ '><l & 9,^.— Immoral consideration ~ 
Vr\icnfeW. {I of 1372), Section 9-7. proviso 
m%,atraet-megat contra l-Gonsidcratw,i 
JidulterouscohabiMion-Plcadings. 

' Plaintiff, a .narried woman living sepa- 
rate from hji- husband, brought a suit against 
the defendant, a marned man, separated from 
lis wife to recover a certam sum of ".oney 
as arrears of a monthly allosvance alleged to 
be due to the plaintiff under an agreement 
p^rpfuted bv the defendant. 

The a-reemcnt to pay allowance purport- 
j f Uo in lipn of services but it was found 
11° co\LhiUt"on :4s part of the considera- 

''°°i^.U'tl.:f^Tof'he consideration being 
illegal the Goi^t was bound to dismiss the 
suurnotwithstanding that the ^g'«°":-f j^ °° 
the face of it appeared to be - I^jf^^^yj^"* 
and valid contract and the '"ff ^''^ °J ""^ 
consideration was never urged in defence by 



( 273 ) 



CIVIL DIGEST OP CASES 



( 280 ) 



Sup; Govt, acts (IX of 1872) (Oontdj. 

the defondant. I Cowpcr, 343, L. R., 18S2, 
2 Q. B., 724 and 3 Mac. N. and G., 94 
referred to. 

If adultery past or fu+nro is the consider- 
ation for aa agreement entered into in India 
it would make it not merely au immoral Ijut 
an ilkigal Kioalr.not. 1 All., ilS and 3 All, li^l 
referred to. ALICE MARY HILL v. WIL- 
LIAil CLARKE. 1 A- I^- J- 632 = A- W- IS, 

1904, p. 238=27 A- 233. 

89 S- 23- — Unlawful cons id.' rat ion. 

A man to whom a civil d'.;bfc is due may 
take securities for that debt from his debtor 
even though the debt arises out of a criminal 
offence and he threatens to prosecute for that 
offence provided he does not, in consideration 
of such securities, agree not to prosecute, 
and such an agoemeut will not be inferred 
from the creditor's using strong language. 
J. L. B., XI Bom., 572, followed. LALA 
DHOLAN DAS V. NATHUMAL. 41 P. L. 
R , of 1901. 

90- S- 23- — Unlawful considci-ation or 
object. 

A borrowed a cart and bullocks from 
B and C, went to D's house there gam- 
bled and lost, and to raise money pledged the 
cai-t and bullocks to respjiident, B and C 
appellants demanded the carts and bullocks 
which respondent refused to return, and only 
on executing a bond for repayment of the 
amount for which they had been pledged, 
were they permitted to take them back. 

In a suit by respondent on the bond it 
was held that whether the consideratiou was 
the return of the cart and bullocks wliich the 
respondent was bound by law to return or 
whether it was tho screoming of A from the 
consequences of his Criminal Act, the consi- 
deration was unlawful and the bond was void 
against B and C, tho appellants. Poilack's 
I'rincijMles of Contract, P. 174 and Chftty's 
Contracts, P. 57J referred to. MASHWE 
KHAN AND MAUNG PYAN v. WAUNG 
KHAN. U. B. R. 1903, p. 8. 

91- S- 2Z-— Unlawful consideration and 
object. 

An agreement by which a village headman 
transfers his official duties to another person 
who in consideration of performing them is 
to obtain a proportion of the commission, is 
one of which the consideration and ol;j ;ct are 
unlawful and opposed to public policy, and 
which should not be enforced by a Court of 
Justice. MAUNG AUNG GYI v. MAUNG 
THA GYAN. U. B. R., 1903, P. 6. 

82- S. 2Z---F'0,udulent tramsfer—Unlaxu- 
fid object. 

An assignment by an insolvent in fraud 
of the Bankruptcy Law falls within section 
C clause (/i) of tho Transfer of Property Act 
and section 23 of the Contract Act and is 
therefore void. 

The word 'object' in section 23 of the 
Contract Act is not used in the same sense as 
'consideration,' but is used as distinguished 
from ' consideration ' and means purpose or 
design. JAFPBR MEHEB ALI v. THE 



Snp: Govt, acts (IX of 1872) {Contd.) 

BUi'GE-BUDGE JUTE MILLS CO LD- 

10 "W. N, C, 755 = 33 C. 702. 

93. S. 23-~Unlauful con.lJeraltOn. 

Tho obijctiou of illegality of a contract 
urged by a party thereto for which he has 
received oousideratiou must be lookod ou wit'r 
great disfavcur. A. and B's agreement not to 
bid against each other at, an auction sale is aot 
necessarily illegalor against public policy. The 
end to bo accomplished determines whether it 
is lawful or not. When it was proved that A 
and B had agreed that A was not to bid and 
aftor purchase B was to convoy two-thirds 
of tho property to A, and that A advanced a 
portion of purehase-money. 

Held, that .\ was entitled to that share 
at any rato, on tha ground that B was a 
trustee ou his behalf in making the purchase 
GOBINDA CHANDRv JHA u. SHYAMLAL 
JHA. 1 C I.. J. 85. 

94- S- 23 iiee sections 16, 19 and 23— 

5 O. C. 256, No. oS supra. 

95- S 2S,— Unlawful object— Contract -~ 

Money lent for the purpose of enabling 
the borrower to gamble is not. recoverable by 
Civil Suit if the gambling contemplated by 
the parties when tbe money was leuc is such 
as is prohibited by law but if the gamijliag 
is not illegal a suit for tho recovery of the 
loan will lie. U. B. R. 1&97-1001, P. 3:>2 re- 
f erred to. MAUNG THA DUN v. MAUXG 
SU YA. U. B R 1905, P. 7 (contract). 

96- S- 23 — Cunsideraiion opposed to public 
policij -parents mahing profit for thnnselvcs 
out of tJic marriage of their daughter — AU IX 
of 1SS7, Sch. a, cl 36 — Small Catisc Court suit. 

The parents of a girl caused her to ..-nter 
into an utterly unsuitable marriage, the hus- 
band agreeing to pay a certain sum raontlily 
for the maintenance of the parents. On a 
suit by the mother to recover certain instal- 
n\euts of the maintenance so promised, it was 
held (1) that the suit was one not cognizable 
by a Court of Small Causes ; and (2) that tha 
agreement was one which was opxjosed to 
public policy and ought not to be enforced. 
Bhaywantrao v. Ganpairao, (I. L. R., lU Bom., 
267) ; Dholidas Ishwar v. Fidchand Chhagan, 
(I. L. R., 22 Bom., 658) and Visvanathan v. 
Saminathan, (I. L. R., 13 Mad., 83). BAL- 
DEO SAHAI V. JUMNA RUN WAR. A. W- 

N. 1901. P 155=23 A 495 

97- S- 23. Unlawful consideration. Drain- 
age Act (Ben. Act VI of 1880, — Bengal Act 

11 of 1902, ss. 42, UB (b)— Drainage, re- 
covery of, cost of— Contract Illegality. 

'There is nothing iu the Drainage Act 
to render invalid a contract between land- 
lord and tenant by which the latter agrees 
to pay the former drainage cost in respect 
oC land on which rent has for tlie lirst 
time been imposed, in consequence of any 
scheme of works carried out under the 
Act benefiting it. Section 44B of the .iet 
(as amended by Ben. Aot II of 1902) does 
not apply where the plaintiff .seeks to re- 
cover under a contract.— JYOTI KUMAR 



( 281 ) 



CIVIL DIGEST OF CA<?RS 



( 2Ra ) 



Sup: Govt. act8 (IX Of 1872) (Contd). i Sup: Govt- acts (IX of 1872; fContd). 



Ill-KF.\IH')K I'. HARI DAS MAITI, T L 

R . 32 C 1019. 

98- S. 23- Beward to procure wife for 
a Hindu Public policy. 

A sued B on a rvka whereby B agreed 
to p"iy a certain sum to A on B's eon's 
niarriiige Willi C's daughter. Held the agree- 
ment to give reward to A if he succeeded in 
effecting the marriage was opposed to 
public policy and void. SURJUN PARSHAD 
V. NAR.VIN PARSHAD. 2 C- 865. 

99- S. 23 Hindu Laiv— Custom— Ex- 
ckamjc-marriages. Validity of —Damages— in 
cane of. 

Where the only consideration for the 
marriage of a girl is a sum of money to 
be paid for her, the contract would be one 
void as opposed to pubho policy. 

A family arrangement amongst per- 
sons of the same class, by which the 
family A gives a girl to be taken as a 
wife, on equal terms, into a family B, and 
a girl of a family B is, at the same time, 
given as a wife into family A, stands on 
a totally different footing from what is 
really the sale of a giil, the suitability of 
the marriage and the prospective happi- 
ness of the girl being entirely lost sight 
of in the latter case in view of the 
pecuniary gain. 

A number of Kliatris, all of the same 
caste and community, arranged a number 
of a marriages amongst themselves, none 
of which wati shown to be prima facie 
unsuitable or undesirable. There was no- 
thing to show that the performance of 
any one of the betrothal contracts was 
to be made dependant on the previous per- 
formance of any of the others. The ar- 
rangements were made independently of 
each other, though at one and the same 
time. 

Held, that the betrothal contracts were 
not opposed to public policy and damages 
could be recovered on breach of them 

= 50 f"r.^1903^^^^' ®*" ^ ^' ^ ^^°^ 

100- S. 23—riMic Policy— Marriage vro- 
rmse for money R<fund— Onus. 

An agreement to pay money to the pa- 
rents or guardian of a bride or bride-groom 
m consideration of betrothal is not neces- 
earily immoral or against public policy 
Where A not oaring the welfare of his 
daughter, gave her to a hu.sband who was 
ineligible, for money, the agreement is op- 
posed to public policy and void. Where 
such agreement is under the circumstances 
of the case neither immoral, nor opposed 
to public policy, it will be enforced and 
damage also will be awardcl for its breach 
in any case a suit is maintanable for the re- 
covery of any sum actually paid under the 
agreemon,, if the contract is broken and 
marriage does not take place. The Onus of 
Its being against public policy lies on the 
man who asserts it. A suit for the value 
^i.^°l"T''"'' °' P'^e^ents given to an inten- 
aed bridge or bridegroom on the breach of 



i.,.r??,'^°' °^ marriage is maintainable. 
BAKHSIDAS v. NADU DAS.— Ip T -T — 

261 

101 8. 23 — Hindu Law — Marriage Wife 

—Conjugal rights, .fuit for enforcement of— 
Mesidence of loife at her parental house- Agree- 
ment contrary to Hindu Law and opposed to 
public policy— Conditions imposed bii decree on 
liusband. 

The duty imposed ui^on a Hindu wife to 
reside with her husband, whcre-everh- m iv 
choose to reside, is a rule of Hindu Law 
and not merely a moral duty. An ante- 
nuptial agreement on the part of the husband 
that he will never be at liberty to remove 
his wife from her parental abode would de- 
feat that rule of Hindu Law, and is invalid 
on that ground, as well as on the ground that 

IgU-^f YgjSlNGH. R.. 5. C. W. N 6?3= 

102 s. 23— Marriage contract for money— 
Prmuncial Small Cause Courts Act, 1887 
Schedule II. Clause (38). 

When the parents of the girl are not 
seeking her welfare but give her to a hus- 
band otherwise ineligiblo, in consideration 
of a benefit .secured to themselves, an a.'ree- 
ment by which such benefit is seoure°d is 
opposed to public policy and is not enforce- • 
able. 

A suit for maintenance based on such 
an agreoment is exempted from the coouiz- 
anoe of Court of Small Causes, uude? CI 
38, Schedule II of the Provincial Small 
Lause Courts Act.— 16 Bom. 267 22 Bom 
?i'aV^^4Y'^£^^ r./e,-r.<Z to. BALDEO SA-' 
HAI , . JAMNA KUNWAR. A. W W iqoi 

P- 155=23- A- 495. w.JN.iaoi 

103. S. 2S-— Agreement opposed to public 
policy— Promissory note given for rcpaument 
of money in respect of which a criminal pro- 
secution might possibly have lain. 

Where a bona fide debt exists and where 
the transactions between the parties involve 
a civil liability as well as possibly a criminal 
act, a promissory note given by the debtor 
by a third party as security for the debt 
constitutes, a valid agreement. Kcir v Lee- 
man (L. R 9Q B. .371, 392: 72 R R '.^gsi- 
Flower v. Sadller (L. R., 10 Q. B d' t,Tn 
I ^'"^T ^ff °"V'i Tulsidas V. Hurjivan Muni 
[-r.h ^■' ^^ ^°'"- 5C6), referred to.— J.ll 
KUMAR V. GAURI NATH, T. L R. 9ft A 

716.; 8 A. L J. 506. ' ^ ^' 

104. S- 23- Agreement to stifle a prosecution, 
— Compounding a noii-compoundablc orf'cnce 
--.igrecv.ient at defence in a civil action- 
Suit for wionnful confinement. 

The plaintiff sued the defendant for 
damages for wrongful arrest and oonjine- 
mont. The defence pleaded an agreement 
uhoreby the parties had agreed to settle 
tbeir differences in consideration of com- 
pounding some criminal charges, one of which 
was not by law compoundablo and which 
were then pending between the parties in 
a Criminal Court, The Lower Appellate Court 



( 2S3 ) 



CIVIL DIGF.ST ijp CASES. 



( 284 ) 



Sup: Govt, acts (IX of 1872) (Comd). Snp: Govt- acts (IX of 1872) (Oontd). 



held that the plaintitl was prevented from 
bringing the action by reason of the agree- 
ment. On appeal; Held that the object of 
the agreement being to stifle a prosecution 
was bad in law, and that tbe agreement, 
therefore, could not be set up as a defence 
in a Court of law. D.^LSUKBAM v. CHAR- | 
LES DE BKETTON, 6 B- L- R- 73 = 28- 

B- 326- 

See S. 15 supra No 34. 7. B. L. R. 603. 

105- S- 23— ■'^"''9«'*co»'''<i':* — Trusts Act (11 
of 1882), Section 8a — Contract opposed to pub- 
lic policy — Public Officer's incapacity to main- 
tain suit extends to persons deriving title from 
him. 

Held, that if a public officer himsef can- 
not maintain a suit for property based upon 
an illegal agreement persons deriving title 
from him are in no better position. 

Section 82 of the Indian Trusts Act can- 
not be so interpreted as authorizing Courts 
to give effect to an agreement the obj :et 
of which is unlawful. SHEO NARAIls v. 
MATA PRASAD. 1. A- L- J- 412 = W. N-. 

A-, 1904, P 167 = 27 A- 73 

106- S. 23 — fftrt consideration opposed to 
public policy — Wliole agreement void. 

A sued to recover an iron box contain- 
ing jewelry alleged to have been entrusted 
with B. A had, prior to the suit, institu- 
ted proceedings against B. for criminal 
breach of trust in respect of the same box. 
The parties to the criminal proceedings 
came to an understanding. B agreed to fore- 
go his claim against the A in respect of a 
debt due to him, a part consideration for 
such relinquishment being the dropping of 
the prosecution by A against him. In the 
present suit, B pleaded that under the settle- 
ment above referred to, A waived her right 
to the suit-box. 

Held, that the part of the consideration 
for the agreement being the abandonment 
of the criminal prosecution, the whole of 
the agreement was void under S. 23. There- 
fore, the evidence could not prevail. A. K. 
E. JI. N. NAGAPPA CHETTY v MA U,— 8 L- 

B R. 42 

107- S. H-Master taking pro-note from 
servant for amount embezzled — Against public 
policy. 

It is not unlawful for a master to take 
a prouote "frDui a servant or agent for 
amounts enibezzled by the latter. A mere 
threat of a prosecution for embezzlement if 
a promissory note for the amount embezz- 
led is not executed would not invalidate it. 
It becomes unlawful and invalid only when 
the consideration therefor, wholly or parti 
allv, is an agreement not to prosecute. Jl 
B.'566. F. 20 B. OGT. 2 P. B. VJOi Rrf.-rred to.— 
KAXAK CHAN D I'. DTJRANT,— 9 p. R. 1906 
= 19P. liRlSOe 

108- S. 23— -^.''V"^ contract — Agreement a- 
gainst public policy — Champerty. 

A fair agreement to supply funds to carry 
on a suit in consideration of having a 
share of the property, if recovered, is not 
per se, opposed to public policy. There may 



be cases in which it would be in fur- 
therance of right and jiitice, and necessary 
to resist opprcision, tnat a suitor, who had 
a just title to propsrty, and no means except 
the property itself, should be assisted in 
this manner. But agreements of this kind 
ought to be carefully watched, and when 
found extortionate and unconscionable, and 
inequitable against the party, or made, not 
with the bona tide oi.jiot of assisting a claim 
believed to bd j ist, and of obtaining a 
reasonable re.^:)lU^);n^e therefor, but for im- 
proper objeet.5, as for the purpose of gam- 
bling in litigi.t,ion, or of injuring or oppres- 
sing others hy abetting and encouraging 
unrighteous suits, so as to be contrary to 
public policy, — eflect ought not to be given 
to them. 

B sued for 8s- 3,000 the National Bank 
of India, Limited and the claim was dis- 
missed on a preliminary point. A paid Rs- 
200 to B before his filiog appeal in his own 
name against the order dismissing the suit 
and agreed to pay -Rs- 100, on the said 
appeal being successful and his recovering 
the decretal amount from the bank and to 
incur all cojts of litigation, and B agreed 
not to compromise the case. The appeal 
was allowed and B accepted fts- 500 from 
the Bank la full satisfaction of his claim. 
On the suit of \ against B for Rs- 1,.!)00 
including expenses and damages, it was plead- 
ed, inter alia, that the agreement was op- 
posed to public policy and not enforceable 
at law. 

Hdd, that the contention was valid : A 
was allowe 1 to recover his expenses with in- 
terest at «s- a per cent. M. R- STEWART u. 

RAJI CHAXD,- 20 p. L. R 1906=20 P R- 
1906 

109 S. 23 -Transfer of property Act (IV 
of 1882), ss. 3, 6 (h) — "Actior>able claim" — 
'■'Beneficial interest in moveable property" — 
" Object or consideration. 

The right to claim the benefit of a 
contract for the purchase of goods is a 
" beneficial interest in a moveable property " 
within the detinilion of "actionable claim" 
in s. 3 of the Transfer of Property .Act 
(IV of 1882), and as such, assignable. In 
s. 6 (h) of the Transfer of Property Act, 
(IV. of 1882) and s. 23 of the Contrict 
Act (IX of 1872), the words " o'-jnn ' 
and '■ consideraliJii " are not synonymous, 
but distinct in niMuing, the words 'object'* 
meaning "purpo.-.\ " S^nih'c — The be"efit of 
contract, that is, the beneficial rij^h^ or 
interest of a p.U'ty under tho •contract an.l 
the right to .sue to recover the bcnolits 
crexted thereby, are assignalilo, proviled 
that (a) the bent-it is not conpl-id with 
any liability or obligation that the as- 
signor is bound to discharge, and (b) the 
contract has not boon induced by P'.T^onal 
qualifications or considerations as rog.irds 
the parties to it. .JAfFER MEHER ALI 
V, BUDGE BaDGK .JUTK MILLS Co., 10 

OWN- 755 =33- C 702. 



( 285 ) 



CIVIL DIGEST OF CASES. 



( 236 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

110- 8. 23- Pronote. 

Where a pro-note was executed at the 
instance of the debtor and without the 
knowledge of the creditors in favour of 
one of the latter, to induce him to sign 
a composition deed amoogst the creditors 
and for the purpose of carrying out an r- 
raugemeut to secure to him an advantage 
over the other creditors : 

Held that the pro-note is void. The 
fact that the pro-note was executed, not 
by the debtor himself, made no difference 
JAMAL MAHAMAD PALAVAR !•. PARA- 
MESWARA PATTAR, 16. M- L. J- 418- 

111. S. 23— Contract— Public policii— Land- 
lord and Tenant — House let to prostitute — Rent. 
Stiilfor — 

A landlord cannot recover the rent of a 
house knowingly let to a prostitute to be 
used by her for purposes of prostitution. 
Mks. BRINKJIAN t> ABDUL GHAFUR,— 

102 P- L- R , 1904=65 P R 1904- 

112 S. 23- Depositing negotiable instru- 
ment. Contract. 

A lion over money lent may be created 
by deposit of a non-negotiable document 
which is evidence of the loan — Such a 
transaction is not- necessarilv contrary to 
public policy. R. E. LUDDY v. C. P. R. 
AKUNACHELLUM CHETTY. W. B- R. 

1904 P 1. 

113- 8. 2Z-— Decree C. P. C. S. 257 A.— 

Agreement to pay decretal debt in excess is void 
if made without court sanction — deed including 
decretal debt, with oher debts void only to 
tlic extent of the decretal debt. 

A owed Ba jddgmeut-debt of Rs. 442-9 
not bearing interest., which with other debts 
was incorporated in a mortgage, the total 
mortgage debt being Rs. 2,50l), the whole 
of which bore interest. Sanction of the 
Court, prescribed by S. 2.57 A of the Code, 
was not obtained to this arrangement. 

Held, by Russell, C. J., that the bond 
contained several and distinct promises made 
for one and the same Iwvful consideration, 
and if the law will not enforce the pro- 
mise as to the decretal amount and interest 
thereon, still it can and will enforce the 
promises for payment of the other sums 
therein meutionsd. 

Held, by Heaton, J., that the whole 
mortgage was not void ; but the deeretal 
amount should be entitled from the princi- 
pal of the mortgage debt. The agreement 
in question was not "unlawful" within 
the meaning of S. 23 of the Contract 4ot 
1872. BHAGABAI v. NARAYAN GOPAL. 

9B.L. R. 950=31 B 552 

114- S- 23 Contract— Aijreement opposed to 
public policy— Indian Contract Act, s. 23. 

Where part of the consideration for an 
agreement was the alian loament of a pro- 
secution for criminal breach of trust. 

Held, that the whole of the agreement 
was void under section 23 of thu Indian 
Contract Act, 1872. Srirangachariar v. Bama- 
sami Ayyangar, ('18U4) I. L. R., 18 Mad., 189, 



Sup; Govt acts (IX of 1872) {Contd). 
followed. NAGAPPA CHETTY f. MA. U — 

3 B li R 42 

115- S 23 — L'siifriictuary mortgage of occu- 
pancy holding s. 20, 21 and 31 T. .4. 1901. 

An occupancy tenant executed a usu- 
fructuary mortgage of his occupancy hold- 
ing, and then executed a /.oiie/iai' under- 
taking to pay rent for the mortgage land. 

Held, on suit by the mortgage for rent, 
under the terms of the kabuliat, that the 
agreement between the parties was of a 
nature which, if permitted, would defeat the 
provisions of the Tenancy Act, 1901; that 
it was unlawful within the meaning of 
section 23 of the Contract Act, and void A 
U. N. (1906) 302, 300, 28. A. 696 followed' 
RAM SARUP V. KISHAN LAL. A W W 

(1907), 76. "^' "■ 

116 S. 23-~IHn. (f)— Office brocage- Agree- 
ment — pro-note. 

A promise to pay money with a view to 
procure resignation in order that the pro- 
miser may secure the appointment, is an 
office brocage agreement and unlawful aa 
shown in illustration (f) s. 23. Such a con- 
tract is invalid and against public policy. A 
pro-note contained such a promise and evi- 
denced notice to the endorsee of the cha- 
racter of the transaction. 

Held that endorsee could not succeed 
in a suit brought on the pro-note. 1 H. B. 
1322, 2. R. R. 773 referred to. S\MI NATH 
AIYAR V. MUTHU SWAMY PILLAI. 17 M 

L J- 252 

116 (a). S 23 & 2i~Conlract to idemnify 

xmrl,, for hi.i i'.nl-boif! il-gal—Crimitial Pro- 
cedure Code, {Aa V 0/ loyn), Hection 513— One 
single consideration. 

In a criminal case against A hij jileader 
B stood bail for him ; and as an idemnity for 
the bail took from A a sale deed and a rent 
note regarding his house. The sale deed was 
for sum of Rs. 8,000 of which Rs. 5,000 were 
the indemnity for the bail-bond and the 
remaining Rs. 3,000 represented the advances 
to be made thereafter by B. B sued on the 
rent note to recover from A the sum of 
Rs. 2,000 as rent. 

Held, that the contract for idemnifying 
B for his bail-bond was illegal : and this ille- 
gality rendered the sale-deed void. (15 O B 
D. 561 followed) : y v . 

That the rent note was tainted with the 
same illegality which affected the sale-deed 
and could not stand on any sejiarato footing ; 

That the agreement v.as an indivisible 
agreement : part of a single consideration for 
one unlawful object, and, therefore the whole 
agreement was void under S. 24 of the Cou- 
tr.ict Act. 

Held, further, that the deposit under S. 
51.3, Cr. P. C, is allowed in substitution only 
of the bond which th ■ principal himself 
would otherwi.sd execut..-, not in substitution 
of any bond which his sur^sty executes L\X- 
^.lANLAL K. PANDIT c. MTLSHANKAR 
PITAMBARDAS. 10 B L- R- 553- 

116 (b). S. 23, 24 & 26-- Agreement by a 



( i87 



CIVIL DIGEST OF CASES 



( 288 ) 



Sup: Govt, acts (IX of 187^) (Contd) Sup: Govt, acts (IX of 1872) {Contd.) 

122 S. 23 and 65— See 6". 2, S3. 65— 

28. B. 66, No 10 Supra. 

123 ss. 23 a,nd.Q5'-Moiiop'jhj. 
Agreements having for thoir o'J!::l tlie 

creation of monopoliea are void as ..ppoiod 
to public policy under tho English Common 
Law and also under contract Act, SS. 23 
and 6.5. 

Where a Municipality received a certain 
sum as fee for license granted to the plain- 
tiff under an agreement M^hich was void, 
and the plaintiff brought a suit again.st the 
Municipality for its refund, and it was 
contended that the amount should bj view- 
ed as collected under the provisions of the 
Madras District Muuicipalitios Act, l.SSi, 
and therefore under sectiou 262 (2) of tbo 
Act was not recoverable by suit. — 

Meld, that the contention had no force 
and the plaintiff was entitled to the refund 
claimed by him. SOMA PILL^I v. THE 
MUNICIPAL COUNCIL MAYAVARAM, 28 

M 520 



Hindu bi iderjioom not lo marry again ivhile 
his marriage with first wife continues. 

An agreement by a Hindu with the 
fathei of his first wife and to marry again 
during the continuance of his marriage with 
that wife is not, prima facie, void either under 
S. 26, as an agreement in restraint o£ marriage, 
or under S. 23 or 24, as importing a consider- 
ation which is immoral or opposed to public 
policy. {L. R. Oh. D. 399 (18?S) referred to.] 
KUAB LAXMAN RAO v. KESHAO. 4 JJ. 

L R 90 
117. S- 23 & 2i —Etihancement. 

An agrocmout by a tenant to pay rent 
excluding by more than one anna in the 
rupee of his previous rent in contravention 
of section.s 49 and 50 Oudh Rent Act (22 of 
188G) is void. KAMANAND v. NADIR ALL 

10 C.78. 

118. S. 23 & 24- — Agreement to supply 
goats, straw, d'c. in a lease. 

A darpalnidar stipulated in his kabtiliat 
to supply goats, straw, etc., which the patni- 
dar was bound to supply to the zamindar or 
in default to pay their value is not void under 
Sections 2.3 and 24. BISHUN PRIYA CHOW- 
DHURANI V. BHABA SUNDAI DEBYA. 

28 C 318. 

119. S. 23 & 27. — Agreement in restraint 
of trade 29 B. 107 see S. 27 infra No. 141. 

' 120- S. 23 & 21-— Illegal contract— Res- 
traint of trade — Public policy. 

An agreement entered into between several 
jiint stock companies to pool their profits 
IB not opposed to public policy. 

A part ol an agreement may be void 
while other parts of it may be enforceable 
at law. 

There is a marked distinction between 
the prohibition or prevention of a trade and 
the regulation or governance of it. 

The word "restraint" in section 27 of 
the Contract Act implies a total restraint. 
A contract wherounder several persons agree 
not to sell a particular commodity at a place 
under a fixed price is not necessarily void. 

Several manufacturers of an article may 
agree that the manufacture and sale of the 
article shall be distributed among them ac- 
cording to certain proportions and the manu- 
facturing capacities of their factories shall 
remain in the status quo. THE BOMBAY' 
ICE CO., L D. V. S. B. ERASER & CO. 6 B. 
L R 23. 

121 S. 23 and 43— S. 8, a. c (l)— Mort- 
gage by a disqualified proprietor — Suit after 
disqualification is over-Not maintainable— Con- 
sideration— Voiil, 

A disqualified proprietor, under the 
Jhansi Encumbered Estates Act, mortgaged 
his property during disqualification period. 

After the disqualification had ceased the 
mortgagee brought a suit for foreclosure. 

Held, such a mortgage being forbidden, 
by the provisions of the law, the considera- 
tion was also forbidden and it was void 
under S. 23 Contract Act, and S. 43 cannot 
he applied to suoh a ca.se. R.\DHA B.\I v. 

KAMOD SINGH. 4- A.L.J- 636=80 A- 38- 



124 See S. 65 infra. 

125. S. 23 and 65. — Money jiaij under 
illegal contract not recoverable for non per- 
formance of the contract. 

A sued B to recover Bs 400/- consisting 
of Rs 300/- which he alleged he h.xd paid 
to B as rent for a fishery sublet by B. t^ 
him and Rs 100/- damages for loss sustained 
by him as B failed to allow him to work 
the fishery B. denied the claim in toh>. The 
Original Court decreed A's claim for Rs 30^- 
on basis of the sub loaso. On app.'al (he 
D. T. dismissed A's claim holding lue con- 
tract void under S. 23. On second appeal 
A urged that the proceedings did not show 
when the contract was made or that there 
was any thing fraudulent in it or that the 
Government was a loser, and as there was 
nothing fraudulent in B subletting (under 
rule 116 under the Upper Burmi Laud and 
Revenue Regulation^ there was nothing frau- 
dulent in A agreeing (before the auction) 
to take such a sub lease unle.ss it could 
be proved th^t B would ha.ve otherwise hid 
to pay more for the fishery at tho auction 
than he did pay for it. Finally, A con- 
tended that even if the contract was ille- 
gal, B not having allowed A to use the 
fishery in ]pursuanc6 of the Contract, the 
money was rcooverablo under S. 65 contract 
Act, as money paid for a future illegal ob- 
J!ct. It appears from the circumstances o£ 
ihe case that the Government was a b S!r 
by the conduct of the parties and that 
the contract was illegal. Held that when 
bath parties are "in paridoliots" the Law 
will not assist persons to recover money 
paid under an illegal contract. There was 
no foundation for the contention that be- 
cause the illegal contract was not carried 
out the money was recoverable, 2 U. B. R. 
1897—98 P. 17 contract, L. J. R. Q. B. Div, 
(1892) P. 733 referred to. MAUNG SHAIN 
GAH V. MAUNG KANTAKE. TJ. B- R- 

1901 p. 89 (Contract.> 



269 ) 



CIVIL DIGEST OP OASES 



( 290 ) 



Sup: Govt, acts (I3t of 1872) (Contd) 

26 S- 23 and 25-— Secret agreement 
injurious to a third partner. 

Held that a secret agreement between 
two partners which implies a civil injury to a 
third partner is an agreement with an un- 
lawful object, and is void. Pollock's Prin- 
ciples of contract pages 264 & 362 referred 
to. LEON GRIN V. AGH.\ ALT AKBER 

SHIRAZI. TI. B R 1903 p. 4 (contract). 

127 S- 24 — Agrccvienl between master and 
house-keeper — Allowance for future adultery — 
Question of illegal consideration not raised in 
pleadings — Evidence disclositig illegal consider- 
ation — Duty of Court — Evidence Act S. 93 (1). 

A brought a suit to recover arrears of 
monthly allowance based on an agreement 
executed by B. 

Though, on the face of it, the agreement 
appeared to be a valid one, yet the evidence 
disclosed thTit part of the consideration was 
for future immoral purposes. 

Held, that, under S. 92, Proviso (1) of the 
Evidence Act, it was open to a person to seek 
to invalidate an agreement, which, on the 
face of it, appeared to be a perfectly good 
agreement, by showing that the whole or 
part of the consideration waa in reality 
illegal. 

Held, also, that, where it was brought 
to the notice of the Court that the whole 
or part of the consideration for a contract 
Bought to be enforced was for an illegal 
purpose, the Court is bound to take notice 
of such fact and to give effect to it, not- 
withstanding the fact that the contract 
might appear on the face of it to be a per- 
fectly legal contract and that no question 
of illegal consideration was raised in the 
pleadings by the defendant. 1 Cowper 341, L. 
R. 2 Q. B. D. 724 (1892) L. R. 2 Q. B. D. 214 
(1900), 3 Mae N. & G. 94 (1850) Ref. In India, 
unlike in England, adultery is an offence 
under the Criminal law. If adultery, past 
or future, is the consideration or an in- 
divisible part of the consideration or an 
agreement, such an agreement is not merely 
an immoral but au illegal one, and there- 
fore void 1 A 478,3 A 787 Refd to. ALICE 
MARY HILL v. WILLIAM CLARKE. 1 

A. L J 632 -A. W. N 1904. P. 238=27- 
A- 266 

128 S. 24—51-6 S. 23 d Si—l O. C. 78 
No U7 Supra. 

129 B. 2i—See S. 23 (^ 24—28. G. 318 

No lis Snpra. 

130 8 2b—I'imitation Act (XV of 1877;, 
Section 19. 

When before the expiry of period of 
limitation proscribed for the recovery of a 
debt the creditor has orally agreed to extend 
the time for payment, time does not begin to 
run until the expiration of the ext;.3nsion. 
SHRINIVAS SUBBAYA v. RAGHUNATH 
NARSINVHA. 4. B. L- E. 50- 

131 S. 25 — E.eeciUion of Decree — Limita- 
tion—Civil Procedure Code, s. 258 — Limitation 
Act (AT of lii77), s. 20 —"DebJ\ 

Held that for the purpose of deciding 
whether or notj an application for execution 



I Sup: Govt, acts (IX of 1872) iCo/itd). 

is barred by Limitation, it is competent to 
I the executing Court to take into considora- 
I tion a payment made out of Court by the 
I Judgmout-delitor in part satisfaction of the 
decree, although such payment may not hava 
been certified in the manner provided for by 
s. 258 of the Code of Civil Procedure. Kishan 
I Singh v. Aman Singh, (I. L. R., 17 All. 42), 
I and Tukaram v. Babaji, (I. L. R., 21 Bom. 
122;, followed. Mitthu Lai v. Khairati Lai. 
(I. L. R., 12 All. 569), overruled. Held al..io 
that the word "debt" as used in s. 20 of the 
Limitation Act, 1877, includes a j idgmont- 
debt. Ramhit liai v. Satgur Rai, (i. L. R., 2 
All. 247) ; Janki Pravid v. Ghulam Ali, (I. L. 
R., 5 All. 201) ; Muhammad Said Khan v- 
Payag Shahi; (I. L. R., 16 All. 228) ; Billing. 
V. The i'ncovcnanted Service Bank, (I. L. R., 
8 All. 781): Heera Lai Mookhopadhyav. Dhaii- 
put Singh, (1. L. K., 4 Cal. .500) ; and Shri- 
patrav v. Govind Narayaii, (I. L. R , 14 Bom. 
390), referred to. Rally Prosonno Hazra v. 
Heera Lai Mandate (I. L. R , 2 Cal. 498). 
Mungal Prashad Dichit v. Shama Kanto 
Lahory Chowdhry; (I. L. R , 2 Cal. 708), and 
Cader Buksh Sarker v. Gour Kishore Rnj 
Chowdhrii, (6 C. W. N. 766), not foUowed.-- 
RO.SHAN SINGH v. MATA DIN, I. L- E. 

26 A 26 

132- S- 25 Delivery of possession under 
Mahomedan Law — Subject-matter of gift re- 
maining in donor's hands, effect of — Buddhist 
Law ( Gifts). 

S. 4 (1) of the Upper Burma Civil Courts 
Regulation (or S. 13 of the Burrai Laws Act 
1898) only refers to cases of succession, in- 
heritance, marriage or caste, or any rel.gioua 
usage or institution. And questions relating 
to gifts, which do not fall under any of those 
heads: must bo governed by S. 25, Contract 
Act. This has been so held in regard to gift 
by and to Buddhists C. A. No 2&S of 1905 re- 
ferred to, the effect of Expln. 1 to S. •25, 
Contract Act, is that a gift actually made is 
valid, though it may not have been expressed 
in writing or registered. 

The iloharaedan Law does not render it 
impossible for a husband to make a gift to 
his wife of the house in which thay both live 
28 A. 147 referred to. Actual delivery of pos 
session is not necessary. If the character of 
the possession changes, the mere retention of 
the s jbjact-m itter of the gift in the hu.n is of 
the donor would not affect the validity of the 
gift. 

Under the Mohamedan Law, the hus- 
band takes a fourth of his wife's estate: where 
thei-e are ch.ldren. 

It dcp.-nds upon the circumstances of 
each case whether the Mohomedan or the 
Buddhist LiW applies to gifts. ABDLFL GA- 
FUR r. D ;YAN SINGH, IJ. B. R (1^0/), 
Bndihisl J, iw—Gift, 1. _ 

133- S. 25. Gonsideration- Affection for 

brother. 

The defendant undertook to dist-harge a 
certain dobr. due by the plaintiff, his brother, 
to one .V. The defendant having iail^-d to 
discharge it the plaintiff himself pail .1 and 
brouj^ht the present suit to recover it from 



( 291 ) 



CIVIL DIGEST OP CASES 



( 209 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

the defendant. The defendant was a party 
to the document executed and registerd in 
favour of N. in which he undertook to dis- 
charge the debt, but it was not signed by 
him. 

Held, that the breach of the obligation 
which was for love and affection for his 
brother was actionable under Section 25 of 
the Contract Act, and tlio suit was mxintain- 
ablo. VENKATASAMY NAIDU v. BANGA- 
SAMY NAIDU. 13. M. L- J. 428- 

133 a. S. 25- — Ante-nuptial Contracts. 

For the euforcaraent of an anto-nup- 
tial contract it must be proved by clear 
evidence that marriage was the consideration 
of the promise. On the grounds of public 
policy ante-nuptial contracts, which are 
not the usual incidents of a Budhist mar- 
riage, must be admitted with caution and 
only on strict proof. 

A promise made on account of love and 
aSeotiou would nob boa contract unless tliera 
was a consideration, and it would not be 
enforceable except on the conditions specified 
in S. 25 Contract Act. Marriage is a good con- 
sideration if it is proved that it was the 
consideration of the promise. M.-VUNO B.\ 

V. Uk OK. TJ. B. R. 1902. p. 1 (Budhist 
Law marriaere). 

134. S. 23— i.'ci! S. 2 (d), 25-16. M. L. J. 

i22. No 8 supra. 

135- S. 25 cl. 2— See S. 8, 10, 23—32. 
C. 8i. No 18 supra. 

136. S. 25- (3). — Acknowledgment — Nova- 
tion — Limitation Act (XV of 1877), Section 
19.— 

A transaction between two parties which 
results in the striking of a balance may, ac- 
cording to the particular facts and the nature 
of the entry, amount to one or other of 
two things. 

In the first place it may amount mere- 
ly to an acknowledgment of the existence 
of a debt due from one of the parties to 
the other and of the 'correctness of the ac- 
count as thus stated. In such a case the 
acknowledgment is merely evidence of the 
original cause of action and, if the pro- 
visions of Section 19 of the Limitation 
Act are duly complied with and tlio ack- 
nowledgment is made before the debt has 
become barred by time, serves to keep alive 
that debt for an extended p.eriod so as to 
enable the creditor to sue in respect of it 
at any time within such later period. But 
the acknowledgment, if it be merely such, 
does not of itself cousititute a fresh cause 
of action nor can it be made the basis of 
a suit by the other party. The latter must 
base his suit on the original cause of action 
and plead the acknowledgment merely as evi- 
dence in support of his claim and as en- 
titling him to sue at a period later than 
he would otherwise have been entitled to sue. 
If in any such case, the creditor bases his 
suit upon the acknowledgment and not upon 
the original cause of action, he must fail 



Sup: Govt, acts (IX of 1872) CCoiddj 

as bis suit, so framed, would be uon-noain- 
tainable. 

In the second place the striking of a 
balance may mean something more than a 
mere admission of liability in respect of an 
existing debt. It may amount to a com- 
plete novation, a fresh contract being substitut- 
ed for the old contract — in other words, 
the original cause of action may by agree- 
ment between the jiarties be raplaced by a 
fresh cause of action. In a case of this kind 
the creditor obviously acts rightly if he sub- 
sequently bases his suit not on the original 
cause of action but on the new cause of 
action derived from the statement of ac- 
counts, and it is to suits of this nature that 
article 64 of the Limitation Act is applic- 
able. 

Whether the striking of a balance falls 
under the first or the second head depends 
entirely on the circumstances of the par- 
ticular case. 

Where the balance struck off by the 
debtor was in the following words — 

"Lekha Ganpat Nanda Virwala da sam- 
bat 1937 7nitti Katak 23 Rs. 51-U baqi ahde 
Rs. 51-14 hathi Oanpat di Nanda di mawarkhi 
23 Katak 1937 mubligh Rs. 51-14 rubaru Ib- 
rahim." 

Held, that assuming the entry was sign- 
ed by the debtor it amounted to an ack- 
nowledgment of liability of the debt then 
alleged to exist and was not a new contract, 
in substitution of the original cause of ac- 
tion between the jparties, nor could any pro- 
mise to pay be reasonably held to be im- 
plied in it. GANPAT v. DAULAT RAM. 123 

p. L R. 1904 = 68 P R 1904. 

137. S. 25 (3)— Lmii(f((i6TC Act (XV of 
1877), S. 19 — Acknuivledijment — Novation — Con- 
struction of document. 

Where, as in this case, a document em- 
bodies a promise to pay within the mean- 
ing of S. 25, ci. 3 of the Contract Act, and 
is not a mere acknowledgment of a balance, 
it will operate as a novation of contract and 
will operate to give a fresh start for hmita- 
tion on the already existing cause of action. 
MUSSAMMAT MAHBUB JAN v. NUR-UD- 

MN, 22 p. I. R. 1906. =102. F R 1905 

138 S. 25,— c'. ni—A.jre,nnent—Khata 
signed by the soji of the obligee — Promissory Note 
— Negotiable Instruments Act (XXVI of 1881). 

The defendant signed on the 30th 'Mafch, 
1902, a khata made up after taking : coounts 
in the khata of defendax\t's father. The 
khata in question ran as follows :- 

" Rs- 291-2 namely (rupees) two hundred 
and ninety-one aiid annas two were found 
due on the account of the previous khata 
having been made up. For the same this 
kJiata is passed. The same (i. e.) the moneys 
are payable by mo. I am to pay (the same) 
whenever 3-ou may make a demand 
(therefor)." 

Held, (1) that the khata was not a pro- 
missory note within the meaning of the 
Negotiable Instruments Act, 1881, 



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CIVIL DIGEST OF CASES 



( '20i ) 



Sup: Govt, acts (IX of 1872) rContdj 

(2) that it would bo a promise within S. 
25, cl. (iii) o£ the Contract Act, if it be proved 
that nt the time when the defendant signed 
the khata he was one against whom the 
debt might have been onlorccd but for the 
hiw of limitation. CHANDRAPBASAD HA- 
RIPRASAD V VABAJLAL UMEDBAM,— 8 

B L R 644 

139- S- 25 — ('^} Promise to pay barred debt 
— Novation. 

The mere srtiking of a balance of barred 
debts by the plaintiff in the defendants' 
account book which is not signed by the 
defendant and does not acknowledge liabi- 
lity by defendant is neither an acknowledg- 
ment under S. 19 Limitation Act, nor an 
account stated under Art. G4, nor a promise 
under S. 2o (3) of Contract Act. 8 B. 19i, 
S. U. 403, S3. A. 502 referred to.— 122. P. R. 1889, 
ion P. B. 1906 diativguishcd. 

A promise to pay is an essentia! part of 
contract falling under S. 25 (3) of the Con- 
tract Act. The contract must be an express 
one according to the authorities, i.e. not to 
be deduced by implication from a mere ac- 
knowledgment. GULZARI MALr.K.ISHAN 

CHAND.— 182 P R 1907- 

140- S. 25- (3)- S. 19— Contract Act (IX 
of 1873), S. 25— Agreement to pay a barred 
debt — Express Contract — Consideration valid. 

B executed a Sarkhat in favour of A's 
firm, in respect of a barred debt due by 
him to the firm, stating that no interest 
was to be paid. 

Held, that in order to maintain the 
suit, it was necessary to show express pro- 
mise to pay and not only that the intention 
to pay was deducible from the language 
of the acknowledgment. 

Ilcld, further that to hold that when- 
ever there was a clear acknowledgment of 
a debt whether time barred or not, that 
was equivalent to a promise to pay upon 
which a suit might be maintained, would 
be to nullify tlie effect of S. 19 of the 
Limitation Act. 33 C. 1047 [lOjH) discussed. 

Held, further that under S, 25 (3) of 
the Indian Contract Act, a promise, made 
in writing, and signed by the person to 
be charged therewith to pay a barred debt 
was a good consideration, but there must 
be a distinct promise and not a mere 
aeknowledgmout. GOBIND DAS v. SAR.JU 

DAS, 5 A- L- J. 274. 

141- S. 27- liestraiyit of trade — Continuous 
cause of action — Damages previous d after 
the institution of suit — Decree directing accounts 
— Company — Liability to account — Transferof 
business to a limited Company. 

The mere fact that an agreed scheme would 
limit compitition and keep up prices, does 
not necessarily biing the agreement with- 
in the terms "of S. 27 of the Contract Act. 
To bring a case under this section one 
muat establish that the suit is one to en- 
force an agreement, whereby some one is 
restrained from exercising a lawful pro- 
fession, trade or business of any kind. 



Sup: Govt, acts (IX of 1872) (Contdj. 

Where a decree directs a Company to 
furnish accounts, and the Company, in 
the meanwhile, transfers its business to a 
limited company, the latter Company is 
not bound by the decree, as it is a dis- 
tinct legal person ; and the decree does 
not operate beyond the date of such trans- 
fer. 

Apart from the question whether the 
High Court can award damages in respect 
of a continuing cause of action up to tho date 
of the decree, it is impossible to treat sub- 
sequent successive accruals of an obligation 
to contribute, as falling within that de- 
scription. In other words, when they are 
all as di.stiuct from each other as suoces- 
Eive instalments lOf rent, they cannot be 
awarded in a suit where they have accrued 
due subsequently to its institution 8. B. 
ll>i (167) and 9. C. 143 referred to. 

Semble. — If two persons execute a deed 
on the faith that a third person will do 
so, and that is known to the other 
parties to tho deed, the deed does not bind 
in enquitv if tho third refuses to re-execute. 
11 Ch. D. 121 1125) r ferred to. S. B. 
FRASER & CO. V. THE BOMBAY ICE 
MANUFAO TURING CO. LTD., 7 R L- 

R- 107 =29 B 107. 

142- S. 27. See S. 23 and 27-6. B. L. 
R. 23 No 120 Supra. 

U3- S. 28- Aiiitraiion — Arbitration Act 
{IX. of 1899). ss. 4, 20— Arbitration clause in a 
contract — Reference to an assoclcUion — 

An arbitration clause in a contract 
amounts to a " submission " within tho 
meaning of s. 4. of the Arbitration Act, 
and is valid, being covered by exception 
(1) to s. 28 of the Contract Act. When 
reference is made to an association con- 
sisting of a large and fluctuating body oi 
persons who cannot sit as a tribnnil ; tho 
association has power to appoint individuals 
to act as arbitrators, and the rules of the 
association will be binding on the parties. 
—GANGES MANUFACTURING COMPANY 
V. INURA CHAND, J. L- R- 33- C- 1169. 

144- S- 29 & 87- — ^^oi-<l /"'■ uncertainty 
and inde/initciiess. 

A mortgaged indigo cakes to B describing 
them as those to he manufactured from the 
crops to be giTown otl lands of factory C, from 
the date of the execution of the mortgage up 
to the date of its being paid off. 

Held, that this mortgage contract was 
neither vague nor uncertain to become void 
on that account. BALDEO PARSHAD «. 
A. JIILLER. 31 C- 677- 

145. S. 30-— -llf«"»«9 "/ Badru Contracts — 
Right V agent to recover payment actually 
made bij him— Proof of agency. 

Held', that money paid on wagering or 
Badni Contracts are not recoverable, and that 
an agent, before he can recover from his 
principal the amount claimed for losses in 
wagering contracts, entered into under tha 
principal's instructions, must prove either 
actual payment on his pricipal's behalf, or 
that a liability lias been occurred which is 



( 295 ) 



CIVIL DIGEST OF CASES. 



( 296 ) 



Sup: Govt, acts (IX of 1872) CCont/) 

enforceable by law, and that a surrander of 
claim to profits made under a Badni Contract 
does not constitute an actual payment. 

Held also, that an agent is entitled to 
recover actual expenses, which he has incur- 
red out of his own pocket, under the direct 
instructions of his principal, and on his be- 
half, but the on^^s of proving this lies heavily 
on him. 

Held further, that, in the present case, 
the plaintiff failed to prove that he was acting 
as an agent, and that the allegation of agency 
was made for obvious reasons as is generally 
done in the Badni Contracts to evade the 
consequences of S. 30 of the Contract Act. 
60 P. H. 1S93 referred to. K.\SHMIIII MALL 
V. GIBDHARI LALL. 57 P- W- R- 1907- 

143. S- SO- — Brokertu/e on wiujering (xmlract 
whether void. 

A contract by way of wager is not illegal, 
although it cannot be enforced in a Court of 
Law. Although a contract to pay dii^erenoes 
only on contracts for the purchase and sale 
is void as being of the nature of a wager, 
collateral agreements which are themselves 
devoid of the element of wagering, though 
they may be entered into with know- 
ledge of the nature of the principal con- 
tract, are not avoided by S. 30 or by any 
other provision of law. English law cases 
referred to. 21 B. 227 not followed. M. A. 
OOTH^MAN V. KONG YEE LONE & Co. 
1. L. B. R. 1900-02 P 128. 

147- S- 30- Wagering Contracts — Broker 
— Pagment by brcJcer to third parties — Suit by 
' agent fur r:-imlmrscinent. 

Tlie p'aintiff, as broker for the defendant, 
entered into various contracts with third p.ir- 
ties for the sale and purchase of large quanti- 
ties of rice. The transactions were merely 
speculations on the rise and fall of prices. 
The plaintiff sued the defendant for Hi. 120 
on tlje allegation that the transactions had 
resulted in a loss and that in accounts the 
defendant owed him the amount claimed. 
It was contended for the defendant that the 
transactions being of a wagering nature such 
as would, between th« parties, fall within tlie 
puiview of section 30 of the Indian Contract 
Act, the plaintiff could not maintain the 
suit. 

Held, that section 30 of the Indian Cou- 
■tr'.ct Act does not bar such a claim, for the 
sum was due to the plaintiff out of wiiat he 
had p.iid as the defendant's agent to third 
p.irties on account of diiTereuces under 
w.igering contracts entered into with them by 
the defendant through the plaintiff. CHEK- 
K\ VK.\K\T.\S\V.\MY v. G.U-7ILA NA- 
G \BHUSHANAM. 14. M- L J- 326- 

US 8. 30 — Wagering Contracts Gambl- 
ing iransacti<Mis — Contracts for sale and pur- 
cha.tc of goods itiithout intention to complete 
than bg ddivory and payment — jigrecment 
for " diffetvnc^s " — Suit on promisxorg note 
giuen for differences — English Gaming Act (3 
<(• 9 Vic. c. 109). 

Where the circumstances as to conti-aots 
fur sale, purchase and delivery of goods at 



Sup: Govt, acts IX of (1872) (Contd.) 

a given time and place are such as to war- 
rant the legal inference that the contract- 
ing parties nerver intended any actual trans- 
fer of goods at all, but only to pay or re- 
ceive money between one another according 
as the market price of the goods should 
vary from the contract price at the given 
time, the contract is not a commercial tran- 
saction, but a wager on the rise or fall of 
the market. There is no distinction be- 
tween the expression "gaming and wager- 
ing" in the English Gaming Act, 1815, and 
the earlier Indian Act XXI of 1848, and 
tho expression " by way of wager " used in s. 
30 of the Indian Contract Act (IX of 1872). 
Transactions for the purchase and sale of 
goods comprised two clases of contracts — 
the one class suitable to traders, such as 
the defendants vrei-e and all duly fulfilled 
by delivery and payment, and the other 
class extravagantly large and left without 
any attempt at fulfilment. 

Held, that the inference was that in the 
latter class the parties never intended com- 
pletion, but that tho contracts were for 
differences only; and where such differences 
formed the consideration for which a pro- 
missory note was given, the plaintiffs could 
not recover in a suit on the note. Tlie Uni- 
versal Stock EjKhange v. Strachan, (1895, A. 
C, 166), referred to.— KONG YEE LONE & 
Co. V. LOWJEE NANJEE. J. L- R , 5- C. 

W. K. 714 3 B L R 476=29 C 461 P C. 

149 S. 30 — Wagering contracts — Their 
criterion. 

To decide questions whether the tran- 
sactions in a suit are genuine mercantile 
transactions or mere agreements by way of 
wagers, the Court should not simply look at 
the transactions as they appear on the face 
of them, but should go behind and beyond 
them, and ascertain the true nature of 
dealings between the parties, by probing in- 
to surrounding circumstances and minute- 
ly examining the position of the parties 
and the general character of the business 
carried on by them. The Court must be 
careful not to be misled by the mere recti- 
tude of the documents evidencing the tran- 
saction or the mere protestation of one of 
the parties as to his real intention. The 
Court must for itself find out what were 
the primary intentions of the parties, when 
they entered into the transactions in ques- 
tion. The attitude generally adopted by 
the party to the transactions, who, on the 
due date, stands to make a profit, and his 
protestation that he is or was always ready 
to give or take delivery, or that he always 
intended to do so, ought not to weigh with 
the Court, but the Court must, with the 
materials placed before it, endeavour to find 
out what both parties originally intended to 
do, when they first entered into the contract 
If the Court is satisfied that, when the parties 
entered into tho agreements they intended 
neither to take or give delivery, but merely 
to adj. lot the transactions, on the due date or 
dates, by the payment or receipt of diflereu- 



( 297 ) 



CIVIL DIGEST OF CASAS 



( 208 



Sup: Govt, acts (IX of 1872) (Contd.) i Sup: Govt, acts (IX of 1872) (Coi^td.) 



ces of prices of the commodities ruling at the 
niarkat, at such duo dates, then, the Court 
should have no hesitation in holding that the 
transactions were mere agreements by way of 
wayurs, anu as such, void in law. 16 B 441 
diacu3=ed: 7 B. L. R. 611 = 30 B. 2U5, 14 B. 
3JJ, 2 Bom, li. R 450, 24 B. 227 = 1 Bom., L. 
R., 780, 28 B. 61C = 6 Bom., L. R. 321, SOB. 
83 = 7 Bum., L. R, 381 rnferred to. HURMUK- 
HRAI V. NAROTAMDASS. 9 B- L- K- 125- 

150. S. 30 — Wagering contracts — Agreements 
to jjiuj differences — Act III of 1865. 

The law upon the subject of wagering 
contracts, which is contained in S. 30, Con- 
tract Act and in Act III of 1865, is that the 
Court must not only consider the terms 
in which the parties have chosen to embody 
their agreement, but it must look to the 
whole nature of the transaction or institu- 
tion, whether it may be: audit must probe 
into all the surrounding circumstances, in- 
cluding the conduct of the parties, with a 
view to ascertain what was the real intention 
or understanding between the parties to the 
bargain. The actual form of the contract 
is of little moment, for gamblers cannot be 
allowed to force in jurisdiction of the Courts 
by the expedient of. inserting provisions, 
which might, in certain events, become opera- 
tive to compel the passing of property, though 
neither party anticipated such a contingency. 

In case of wagering contracts, the Courts 
should be astute to discover what, in fact, 
was the common intention of both parties, and 
do all that is possible, to see through the 
ostensible and apparent transaction into the 
underlying reality of the bargain. MOTl- 
LAL PERTABCHAND v. GOVINDRAM JAI- 

CHAND. 7 B. L- R. 385=30 B- 83. 

151- S- 80- — Contract bj/ way of wager void 
— AdiitiisiljitUy vf oral evidence. 

Oral evidence may be let in to prove that 
a contract is void on the ground that it is by 
way of wager. 28. I. A. 239-5 0. W. N. 714 
referred to. 9 C. 791 overruled. BENI MA- 
DHAB DASS I'. rfADASOOK KOTARY. 9 0- 

W- N- 305 (F. B )=1 C L. J- 155=9 C W 
N-305=32C 437(F B) 

152' S- 30- — " Badni " transaction — Wager- 
ing contract. 

Contracts are not wagering contracts un- 
less it b) tliu intention of both contracting 
parties at the time of entering into the con- 
tracts, under no circumstances to call for or 
give delivery from, or to, each other. Tod v. 
Lakhmidas Purshotamdas. (I. L. R., 10 Bom. 
441) followed. AJUDHIA PRASAD y. L ^L- 

MAN. I.L.R A. W. X- 1902, p. 178=25 
A 38 

153. S. 30- — Wagering contract — Princi- 
pal <uid agent. 

Held, that an agent who has received 
money to the use of his principal on an ille- 
gal contract between him as such agent and 
a third party cannot be allowed to set up the 
illegality of the contract as a defence in an 
action brought by the principal to recover 
from the agent the money so received. BHO- 



LANATH V. MUL CHAND. A- W- N 1903, 

P 161 = 15 A 689- 

154- S. 80 — Wagering contract — Contract 

collateral to a Kagering contract not void. 

Although by reason of S. 30 of Contract 
Act 1, a wagering contract is void, a contract, 
collateral to such a contract, is not neces- 
sarily unenforceable, and the fact that a 
person has constituted another person his 
agent to enter into and conduct wagering 
transactions in the name of the latter, but 
on behalf of the forinur, the principal, 
amounts to a request by the principal to 
the egent to pay the amount oi the losses, 
if any, on those wagering transactions. I'a- 
rakh Govardhanbhai Baiibhai v. liansordas 
Dukdjhdas (V.i Bom., H. C. R., 51) and Thacker 
V. Hardy (L, R., 4 Q. B. D. 685), referred 
to.— SHIBUO MAL v. LACHMANDAS. A- 

W N 1901 P. 33 = 23 A 165- 

155- S. 30.— Act III of 1865. Bombay- 
Wagering contract. 

Section 30 of the Contract Act provides 
that agreements by way of wager are void, 
but that a transaction may fall within this 
provision of tlie law there must be at least 
two parties, the agreement between them 
must be by way of wager, and both sides 
must ba parties to that wager. 

It is of the essence of a wager that each 
side should stand to win or lose according 
to the uncertain or unascertained event in 
reference to which the chance or risk is 
taken. SIR E. SASSOON i;. TOKERSEY 

JADHAW.JEE. 6 B li R- 521- = 28 B. 616. 
156. S. 30. — Wagering transaction. — Bad- 
ni — Evidence. 

In order to constitute a wagering con- 
tract and to make it void under the Con- 
tract Act or under the provisions of Act 
III of 1805, Bombay, what is necessary to 
estiililish is, that it was not the intention 
of the parties actually to deliver or to take 
delivery of the commodity, in other words, 
if it is proved to the satisfaction of the 
Court that the parties were merely con- 
templating a nominal contract, dealing only 
in differences and agreeing either to receive 
or pay differences according to the rise and 
fall in the market, and if as a matter ol 
fact neither of the parties intended to de- 
liver or receive the commodity the contract 
is null and void. 

In order to ascertain whether or not it 
was the intention of the parties to deal in 
actual commodities or only to receive and 
pay differences the Court is bound to look 
at all the surrounding circumstances of the 
case. It h.is to look into the contract it- 
self — if there is a contract in writing to 
consider its provisions to Ijokat the deal- 
ings of the parties immediately before and 
after the transaction — to look into the cir- 
cumstances of the persons dealing or pro- 
fessing to deal in the various commodities 
under dispute. In fact the Court has to 
look at all the surrounding circumstances 
that may in any way throw light on the 
question in order to ascertain the intentiuu 



( 209 ) 



CIVIL DIGEST OP GASES 



{ 300 ) 



Sup: Govt acts (IX of 1872) (Contd) 

of the parties — whether they were deahng 
iu real commodities or only in differences. 
SIK i; E. A. D. SASSOON v. TOKERSEY 

JAUoWjKE. 5 B- I.- R 503- 

107- S- 80- Waaering tra>isaciioiis. 

'i'ho provisions o£ section 30 of the Con- 
tract Act are substantially a transfusion of 
English Eaw into the Indian Statute Book. 

Two parties may enter into a formal con- 
tract for sale and purchase of goods at a 
given price, and for liieir delivery at a given 
time. lint if the circumstances are such as 
to warrant the le'gal inference that they never 
intended any actual transfer of goods at all, 
but only to pay or receire money between 
one another according as the market-price of 
the goodsshuuld vary from the contract price 
j^t the given lime, that is not a commercial 
transaction but a wager on the rise or fall 
„f the market.— L. li., 1896. Jpp. Cas.. 166 
°, proved. KONG YEE LONE & Co, v. 
?-'nWJEE NANJEE SB- L. R. 46 = 5 W. 

wC 714=29 0- 461 iP- C ). 

X58- S- 80- See S. 2U, 30 and 65. 25 M. 
561 No. 68 sujjra- 

Wagiiring contract — Condition as to anti- 
cipation of date of performance and measure of 
damages—Suspending pagmcnt— Insolvent. 

The mere fact that a provision is inserted 
in the contract, by which under certain un- 
usual circumstances the date for the ptr- 
formance of the contract may be anticipated 
and the measure of damages may be ascer- 
tained in a particular way, does not render 
it void as coming within the provision of the 
law relating to gambling transaction. 

Therefore a condition in a contract that 
one of the parties becoming unable from 
pecuniary circumstances to perform the con- 
tract shall not put an end to it but if the 
contract is beneficial to that party the da- 
mages shall be then and there ascertained 
and shall be paid over to that party, does not 
bring it in the catagory of a gambling trans- 
action. 

The expression •' suspending payment 
is a well-known commercial expression, and 
a merchant suspends payment, when he ceases 
to discharge his mercantile obligations in 
due course— when he does not pay his debts 
as they become due from time to time as they 
are usually paid by merchants. 

In ordinary parlance '■ insolvent " and 
"suspending payment " have practically the 
same meaning. CHAMPSEY PURBUT v. 
GILL AND Co. 7 B- L- R- 154- 

159- S- 30- Suit against slakc-liolder. 

In a suit to recover money which the 
plaiutifi has deposited with a stake-holder 
the " paying over " which would bar the 
suit means paying over upon the event of 
the wager— where in such a suit the plaintiS 
does not repudiate the wager but claims not 
only his original stakes but the whole win- 
nings, he can get nothing 2 U.B.H 1807-01 
P. 320, 1 Q. B. D. 744, S. J. L. B. 130, Shir- 
ley's Leading cases referred to. NGA HLA- 
ING V. NGA KYAN THA. TJ- B. R- 1904 

pa 



Sup: Govt, acts (IX of 1872) (Contd.) 

160 8. 30 — Suit for loinning on a ivager- 
A suit for the amount deposited by 

the plaintiffs with a stake-holder, on a 
wager, will lie; but a suit for the amount 
deposited by both parties to the wager is 
barred by S. 80 S.J. L. B. 1:30 (1881), L.J. 
36. 1S67, N. S. C. L. 178: 2 L. B. R. 216 
(I'JOl) referred to. TUNHLA v. MAUNG TO. 

2 L- B. R. 1904 p. 271 

161 S- 30— If^'JlK'"'!/ Contract— Differen- 
ces in accounts — Teji Mandi — Nazrana — Nick- 
rawal. 

j^n agroemont is a wagering agreement 
when the intention on both sides is that 
only differences are to be accounted for. 

The nature of nasrana transactions 
which are also known as Nichrawal and Teji 
Mandi is as follows:^ 

A agrees with B. for a certain quantity 
of grain at a fixed price for a certain future 
date and pays to B. a sum known as naz- 
rana. On the said date A. has the option 
of declaring bought or sold. If the rate 
has risen A. naturally declares "bought" 
and is credited with difference in prices, if 
the rate has fallen A declares " sold " and 
receives a corresponding credit. The agree- 
ment is in fact neither of sale nor of pur- 
chase, B. accepts a certain sum on the 
chance that on a certain date prices will 
range within a certain limit. If he suc- 
ceeds in foretelling the exact price then he 
pockets the nazrana, but if prices rise or 
fall beyoud his margin of risk he is bound 
to lose. L. R. 28. I. A. 239. (P. C.) followed. 
24. B 227 refd to. RAMRATAN v. SETH 
KANAK MAL. 15- C- P- L- R. 1902. p. 
58. 

162- S- 30 & 2^'i— Untrue representation 
of agency — OanibUng contracts — Bight of betting 
agents to recover losses paid on behalf of 
principals. 

An uutrue representation of agency fall- 
ing under S. 235, Contract Act, need not 
necessarily be made iu express and literal 
words. It may b; conveyed by auy words, 
siDoken or written, combined with acts or 
omissions which, under the circumstaneos 
of the particular case, do iu fact lead the 
person induced to contract, into a reasonable 
bu'lief that the professed agent has the author- 
ity represented. The fact that the pretend- 
ed agent has acted under the belief that he 
had the authority he represented himself to 
have does not aucct his liability under this 
section except in the cases where ho would 
be protected under S. 203 of the Act. 

An untrue representation under S. 2:35 
must be one of fact and not merely one of 
law. 

Under S. 30 a contract for a wager si 
void and cannot itself be made the basis of 
a suit. But such a contract is not illegal 
merely because it is for a wager. Thcrcforo 
contracts which are not by way of wager, 
but are collateral and subsidiary to wagering 
contracts are not void, and may bo enforced 
by suit. 



( 301 ) 



CIVIL DIGEST OP CASES 



( 302 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

Where, thoroforo, the plaiatilT, a oommis- 
Bioa agent, made debts in his owu uaina for 
the defendant at his request, and, on the 
bets being lost paid the losses in the ordinary 
course of business. 

Field, that the plaintiff could legally 
recover from the defendant the sums so jiaid, 
and that S. 30 afforded no answer to the 
claim. J. C.'s select cases No. 19 second 
appeal No. 234 of 1.984, 12 Bom. H. C. R. .51, 
23 A. 16.5, 25 A. G39, referred to. BH WANI 
PARSHAD V. SRI NARAIN RVMBILAS 

MARWARI. 17 c. p. li R , 1904, p. 67. 

163- S. 30 & 2l^-~'^ya.<jerinfi Contracts— 
Badni transaction — Liability of agent to render 
accounts — Prcsimiption from non-production of 
account-books. 

Defendants purchased gram for plaintiff 
at his request and subsequently sold it with- 
out disclosing the names of the purchasers, 
and the plaintiff accepted the sale and en- 
tered it up in bis account. 

Held, that the defendants were responsi- 
ble to the plaintiff for payment of the differ- 
ences, ). c, for any profits that they received, 
although the transactions entered into by the 
defendants were badtii transactions and void 
under Section 30 of the Contract Act. 

Held, also, that under Section 213 of the 
Contract Act the defendants wore bound to 
render proper accounts to the plaintiff. As 
CO objection was taken by the defendants as 
to the amount of profits claimed by the 
plaintiff and accounts were not produced by 
them, the plaintiff's claim was decreed in 
full. No. 80 P. R., 1895, and No. 93 P. li., 
leSO, followed. 2i Bom., 227, referred to. 
DEBI SAHAI V. GANESHI LAL. P. L- R., 
85 of 1001 -p. R 46 of 1901 

164- S. 37.— Contract — Executory contract 
— Parties to suit — Assignee. 

When the assignor and the assignee both 
sue there is no question as to which of them 
is to recover. 

Executory contracts are not assignable 
to third parties so as to affect the rights 
of the original contractee. His rights and 
liabilities remain j i5t the same whether 
there is assignment or not. The third par- 
ty, the assignee, cannot in his own name 
file a suit for the performance of those con- 
tracts against the original contractee, but 
if the contracts are not of such a personal 
character that their performance cannot be 
claimed except by the original parties them- 
selve,=, then even if they are contracts of 
an executory character, there is no reason 
why snob contracts should not bo treated 
aa perfectly aisignable between the parties, 
that is to say, the benefit of the contract 
would pass to the assignee, and the assignee 
can have the benefit of those contracts so 
far as they are consistent with the rules 
of procedure. They may make use of tbo 
name of the assignor, sulij lot to that, the 
benefit passes on to the assignees. JIWAM 
VURJUNG V. HAJI OOSMAN HAJI 00- 
MER. 5. B. L R. 373. 



Sup: Govt, acts (IX of 1872) (Cojitd). 

166. S. 37. — Specific performance claimed 
by an heir. 

J and G. made a contract by which J 
was to supply funds to conduct a litigation, 
to recover certain property and to enjoy 
it on payment of rent. .Subs quently J ca- 
tered into another contract with G to giva 
him a two-third share in the tenure if ho 
supplied the funds. Held 3' a representatives 
could not enforce the contract with G even 
though such contract was expressly to bind 
and benefit representative as the consideration 
to such contract had failed. 

Held, also, that as per.soual quality of 
the party with whom the contract was 
made, was a mate rial ingredient in the con- 
tract, bis ropresen tative after his death wag 
not entitled to enforce specific porfoimanca 
of the contract. 

Held, further, that the right to specific 
performance was lost by reason of the delay 
and laches on the part of the party and 
his successors. 

A party cannot call upon a Court for 
specific performance unless he shows him- 
self ready, desirous, prompt and eager. — 
MOHENDRA NATH MOKEJEE (.MUKH- 
OPADHYA) V. (SAMU BIBI) KALI PRA- 
SAD JOHURL 7- C- W- N- 229=30- C- 
265. 
167 S. 39— Refusal, what is. 

There was a contract to deliver goods 
in two instalments and the plaintiff failed 
to tender for, or take delivery of, the first 
instalment although the market was in his 
favour. Regarding the second instalment, 
ho made a tender which the defendant re- 
fused to recognise on account of his pre- 
vious failure. 

Held, that, under the circumstances, the 
conduct of the plaintiff had not amounted 
to a renunciation, to an absolute refusal 
to perform the contract, such as would 
amount to a rescision, and therefore tha 
defendants could not accept it as a reason 
for not performing his part (4 C. 252 relied 
on). 

As to what amounts to a ' refusal ' in 
cases of the i^rcseut class, S. 39 of tha 
Indian Contract Act discussed and the test 
laid down by Lord Coleridge in Frecth v. 
Burr, L. R. 9 C. P. 208, and adopted by tha 
House of Lords in The Mersey Steel Co. v. 
N'lylor, L. R. 9 App. case 434, applied. — 
RASH BEHARI SHAW v. NRITYA GO- 
PAL NUNDY. 3 C- L J. 249=33- C. 477. 
168. S- 39 <Sc 6i.—.y:origagc—Iiicoin2)lete 
transaction — Mortgagee failing to redeem pre- 
vious mortgages — Bescission of contract — Com- 
pensation for breach of contract. 

When a mortgagee by tha terms of his 
mortgage agreed to redeem previous mort- 
gages immediately or within a reasonably 
short period and failed to perform his pro- 
mise. 

Held, that owing to his default tha 
mortgagee was not entitled to recover from 
the mortgagor possession of the mjvtgnged 
property or the amount advanced to him. 



( 30n ) 



CIVIL DIGEST OP CASES. 



( 304 ) 



Sup: Govt, acts (IX of 1872) (Coritd.) 

SAUDAGAR SmCxTI v. S\NT BVM. 87 P- 

LR 1908 = 103 PR 1903 

169. 8. 42 & 43—8. 31—Jo-n ter of de- 

feii'Jnvt aft''r expiry o/ limUatiuii period. 

Wheu a plaintift is ontitlod to proceed 
ai^ainst such of the original promiaorji or their 
representatives as he pleases, •under S. 42 and 
i'4 of the Contract Act, his suit is not barred 
under S. 22 of the Limitation Act agaiust the 
promisors or the representatives of the pro- 
misors, against whom the suit is filed within 
the period of limitation prescribed for the 
suit, by reason of another promisor or re- 
presentative of a promisor being impleaded 
after the expiry of the period of limitation. 
5.S P. R. 1896 referred to. JAWAHIR v. S. 
HARI SINGH. 116 p. li- R. 1905- 

170- S 43. Parties to siiit — Contract made 
bt/ a firm. 

Under S. 43 the plaintiff in a suit brought 
upon a contract made by a firm may select 
as defendants those partners agaiust whom 
he wishes to proceed allowing his right of 
suit against those whom he does not make 
defendants to be barred, 6 B. 700 followed. 
JAGLAL I'. SHIBLAL. 25 P. L- R- 1902 

=37 P R 1902 

171- 8. 43 See S. 42 and 43—136 P. L. 
B. 1905 No 169 supra. 

172- 8- 44- Contribution between co-mort- 
gagors C. P. C. S. 295 Prov. (c) -Sale proceeds 
— Surphis of. 

If a mortgagee receives any money 
out of the surplus sales-proceeds of a share 
in the property mortgaged to him, sold in 
execution of a decree on a prior mortgage 
from some of the mortgagors to whom the 
share belonged and agaiast whom the 
decree was obtained, he is bound to apply 
the money to the satisfaction of his mortgage 
debt only in case he receives it by virtue of 
his security and not otherwise, although the 
payment might be made to him by the said 
mortgagors in satisfaction of other debts due 
to hira from them. GANG A RAM MAB- 
WARI V. JAIBALL.AV NARAIN SINGH, 

I- L R 30 C 951- 

174- 8. 42 and 45. — Suit to recover debt 
due to a partnership — Qontract with one part- 
ner only, whether such partner could sue by 
himself. 

This was a suit under a contract entered 
into with the iilaiutiff, who was one of the 
partners of a firm- A preliminary o' j fCtion 
was urged that the plaintiff, who adui.ctedly 
bad a partner with him. could not sue alone, 
without j lining such partner as co-plaintili. 
Hrld. that as, in the present case, the 
bond .sued on was executed by the defendants 
in favour of the present plaintiff alone, it 
was competent for him to maiutain tbe suit 
by himself, without making bis partner a co- 
plaintiff. MBHR SINGH v. CHELA BAM. 
7 B. 217, 20 B. 43.5, 17 B. 413, and 29, 7 C. 
■ 739, IS M. 33, 62 P. R. 1.S73, 1.5G P. R. 1889 and 
86 P, R. 18'Jl. referred to. 127 P. R. 1906 

=10 p. W. R. 1307 = 58 P L. R 1907 

175 S. 45 — llifjht of succession by legal 
representative — Aliyasantana law — Fund set- 



Sup: Govt, acts (IX of 1872) rron(<i). 

tied on marriage of huib%nd and ivifi: — In- 
terest payable to both join'ly — Diath of hits- 
band— Claim by loidoio by right of survivor' 
shi2> — Bight of hiidiand's legal represoUativi 
to his share. 

Upon the marriage of first defendant 
with K, a sum of money was sealed by 
first defendant's mother, on first defendant 
or on K. This money was lent on mortgage, 
and by the terms of the mortgage, interest 
was payable by the mortgagors to first de- 
fendant and to her liusband K, joi itly, with 
the exception of that which w.^ald accrue 
in raspect of the last year of the term, 
which, together with the principal sum 
secured by the mortgage, was to h ; paid 
to first defendant herself. K. died, where- 
upon plaintiff, as K's legal reprjse itative, 
brought the present suit to recjvcr the 
interest due under the mortgage : 

Held, that plaintiff was enlitled, under 
s. 4.5 of the Contract Act, as the Ijgal re- 
presentative of K, to a moiety of th-j interest 
which had accrued since the death of K, 
first defendant being entitled to thj other 
moiety, and that the right to the whole of 
the interest did not pass by survivorship to 
first defendant. The circumitauce that K 
and first defendant intended to live and did 
in fact live together as husband and wife 
under the Aliyasantana law was insuffici- 
ent to raise the presumption of a contract 
that there was to be a right of succession 
by survivorship between K and fir.i defen- 
dant in respect of the settled fuaJ. — KAN- 
THU PUNJA V. VITTAMilA. L L- R., 

25 M- 385. 

176 S. 45 — Suit by Pa tnership— Parties 
representatives of a deaaxd partner — Debt 
due to partnership when deceased partner 
tvas alive. 

The representative of a deceased part- 
ner are not necessary parties to a suit for 
the recovery of a debt, which accrued due 
to the partnership during the hfe-time of 
the deceased 9 A 4.36, 17 B G, 17 M 1' 8, 20 A 
36.5 followed 18 C 86 dissented fiom.— 
MULK BAJ V. GEOKGE KNIGHT. IQ P. 

R. 1906 

177 S- 45 — S. 22 — One of several co-pro- 
misees sued alone — Others jointly interested 
to sue made parties after expiry of limita- 
tion — Effect on the original plLin'iff's claim. 

One "of the members of a trading j lint 
Hindu family, sued in his ONvn name f jr re- 
covery of a debt due to thj fam.lv. The 
defendants objected that the undivided sons 
of the plaintiff ought also to bo joined as 
' parties to the suit. The plaintilT's suns were 
brought in, but they stated that they had 
authorised plaintiff to sue alone and that 
they did not wish to be added as co-plain- 
tiffs. Hence they were added as defendants. 
But this was at a time wheu the period of 
limitation fix<>d for the suit hid expired. 
The original defendants contendod that, as 
when the sons of the plaintiff we o brought 
on the record, the period of liroi aiion for 
the buit had expired, the suit ought to be 



( SOS ) 



CIVIL DIGEST OP OASES 



( 306 ) 



Sup: Govt, acts (IX of 1872) (Contd) i Sup: Govt, acts (IX of 1872) {Contd) 

If a debtor is bound to perform a ooa- 
traot out of tbe jurisdiction of a Court if 
required, the oontraot cannot be said to ba 
one, which, according to its terms, ought 
to be performed within the jarisdiction. 

The liability of a ^ja/;i'oa adatia cannot 
bo ciassod with that of an ordinary buyer 
and seller, bound to find out his creditor 
at his place of business. He undertakes to 
find out a customer, himself or another at 
current prices for his constituent, and gua- 
rantees piyment to the coustituant of the 
profits if any. He undertakes to send such 
profits, not as debt due from himself, but 
as proceeds realized by him on the con- 
stitueut's behalf, at the constituent's cliargea, 
and he is entitled to such charges as aa 
agent for expenses properly incurred by him 
in conducting such business. He is to do 
certain set of service which can be perfomed 
consistently with the terms of his under- 
taking at his own place of business. lu 
the absence of express or implied promise 
for performance elsewhere, the undertaking 
only gives rise to a cause of action in tha 
Court within whose jurisdiction he resides 
1 Q B 103 followed. 

The nature of relation between a pakka 
adatia and his constituent discuss.'.d 6 B. L. 
R. 10.38 not followed and commented on. . 
KED.VRilAL BHURAMAL v. SURAJJIAL 
GOVINDRAM, 9 B- L. R- 903. 

180- S- 46, 49. Qi.—Letlers Patent, cl. 12. 
— Cummissioii A(jciit — Place of payment of 
debt — Cause of action — Jurisdiction. 

The plaintiff, a commission agent and 
merchant carrying on business in Bombay, 
gOiVo instructions to the defendants also com- 
mission agents and merchants cariying on 
business at Phulgaon in the Birda Zilla, to 
enter into certain transactions on behalf of 
the plaintiff and the defendants entered in- 
to those transactions as commission agents 
on behalf of the plaintiff. Accounts were 
sent and advices wer.3 transmitted from 
Phulgaon to the plaintiff in Bombay and 
from Bombay by the plaintiff to the defen- 
dants at Phulgaon. Subsequently the plain- 
tiff, having applied for leave under cl. 12 
of the Letters Patent, brought a suit in 
the High Court at Bombay to recover the 
amount due froni the defendants at the 
food of the accounts between himielf as 
principal and tbe detendau s as commission 
agents at Phulgaon: the dofmdants p'.oaded 
want of jurisdiction. Held, that as (1) in- 
structions were sent to the d.fen.lants from 
Bombay, (2) accounts were rondercl to the 
plaintiff (at Bombay) and (3) demand was 
made from Bombay to the defonl.-.uts at 
Phulgaon, the payment of money therefore 
was clearly to be in Bombay. 12 B. D. 103 
il07) 36 ch. D. 4-53 (6-U) 11 B. 2.57 Referred 
to. Pi-y C::rlain:—'T\ia expression "cause of 
action" means tbe bundle of facts, wh ch 
it is necessary for the plaintiff to prove 
before be can succeed in his suit, not ir- 
relevant, immaterial facts, but material facts 
without which the plaintiff must faM. If 



dismissed as barred, under S. 22 of the Act. 
Ilrld, the suit was not barred. It is not 
sound law to hold that a plaintiff, who has 
sued for relief within the period of limita- 
tion, must loss his suit because all the 
possible plaintiffs have not been joined and 
those not originally suing have been joined 
as defendants after the period of limuation 
has expired. S. 22 of the Act ought to be 
interpreted strictly, and the bar of limita- 
tion created by it ought not to be extended 
to oases not clearly covered by its provisions. 
Here, there .was no community of interest 
between the first set of defendants and 
the second set of defendants. There is 
no authority for holding ihat one of the 
several co-promisees cannot sue for en- 
forcing his rights under the contract, if the 
others entitled to sue jointly with him do 
not j in him in suing or refuse to j/iu as 00- 
plauiiiffs. If it should beheld that he can- 
not sue inde]5endenlly, his rights under the 
contract would be destroyed by the refu- 
sal of others to j lin him. The debtors, 
the first set of deiendants, had a right to 
protect themselves against harassment by 
insisting that all persons interested to sue 
them are brought on the record. This pro- 
tection they have secured by the joinder of 
the second set of defendants. When this has 
been done, they cannot bo allowed to plead 
that, because the other set of defendants nave 
been brought on the record subsequent to 
the period of limitation, their own rights 
liave been pr. j idiced or that the suit by the 
Oi'i,^ nal plan. (ids, as against thomselvjs, i" 
barreu by Umitiitiou. The rule of English 
L iw in this respect does not apply to India. 
Further, S. 45 of the Contract Act permits a 
suit being brought by one of several co-pro- 
misees: He cannot, therefore, lose his rights 
bec.iuse others refused to join. 27 B. 11. '2? 
C. 510, 156 P. R., 18S9, referred to. 

Held, further, that the plaintiff was en- 
titled not merely to his proportionate share 
of the amount but to the whole amount of 
the claim. 3. C. 26 referred to. LABHU 
RAM V. KANSHI RAM. 76 P. L. S, , 1305, 

(F. B ) 

178. S. 45. — Representatives of a deceased 
partner not necessary jjaj-ties to a suit for debt 
due to partnership — Hindu Law. 

The representative of a deceased partner 
are not necessary parties to a suit for the 
recovery of debt which accrues due to the 
partnership iu the life time of the deceased. 
It has been so held by the High Courts of 
Allahabad, Bombav and JMadras. 17 M. 108, 
20 51. 23:2, 19 B, 338 and Pollock on Contract 
Act, referred to. 18 C. Si dissented from. 
K. V. P. L. PRIANEN CHETTY v. ARMU- 
GA PATHKR, 4 L. B. R. 1907, p. 99. 

179 S. 46— 49— ^''( ''■■;/ aJnt ageucii— Place 
of performance of a cir.dract — Cause of action 
— Jurisdiction. 

The Contract Act makes no provision 
for the place of performance when no time 
or place is fixed and where there is no pro- 
vision to perform without application. 



( 307 ) 



CIVIL DIGEST OF CASES. 



( 308 ) 



Sup: Govt acts (IX of 1872) {Contd). 

any of these material facts have taken place 
within the j irisdiotion of the Court, then 
leave can bu given under clause 12 of the 
Letters Patent. But if no such material 
facts have taken place within the jurisdic- 
tion of the Court aud leave is given, then 
it is open to the defendant to contend at 
the hearing that the Court has no juris- 
diction. ..Where no specific contract exists 
as to the place where the payment of the debt 
is to be made, it is clear, it is tho duty of 
the debtor to make the payment where the 
creditor is. 20. Q. B. D. 158 followed.- MO- 
TILAL V. SUBAJMAL, 30 B. 167; 6 B- L- 
E 1038- 

181- S- 49 See S. 46 and 49—9 B. L. 903 
and bO B. 1G7 Nos. 179 & 160 Svpra. 

182- S- 49- — Civil Procedure Code (Act 
XIV of 1882), Sections 17, 57— Jurisdiction of 
Court- Suit based on contract — Place where 
jiaymcnt to be made — Bettirn of plaint to be 
presented to proper Court— Contract Act (IX 
of 1872), Section 19. 

In ludia, the rule as to the place of per- 
formance of a contract whether it be payment 
or any other mode of performance, is to be 
determined by section 49 of the Contract Act, 
although the" common law rule is that the 
debtor must seek out the creditor. 

The plaintiff basing his claim on a con- 
tract, and alleging that tho payment was to 
be made to him at Sirsi brought a suit in the 
Sirsi Court. The defendant ol j;oted that the 
Court had no j irisdiction inasmuch as the 
defendant did not reside within the j irisdic- 
tion of the Court. The oljjction failed in the 
first Court. On appeal ihe District Judge 
dismissed the suit '• subject to the condition 
that if tho plaintiffs so aosiro, the plaint may 
be returned to them for presentation in the 
proper Court." 

On second appeal — 

Held, that the District Judge in proceed- ' 
ing to dismiss the suit was wrong: inasmuch 
as there was no jurisdiction to institute the 
suit in the Sirsi Court, the proper order was, 
as indicated by Section 57 of the Civil Pro- 
cedure Code, to direct that the plaint should 
be returned to be presented to the proper 
Courts. PUTTAPPA MANJAYA v. VIEA- 
BHADRAPPA N. 7 B. L. E., 933. 

183- S- 51- — Suit for damages for breach of 
contract — Readiness and willingness to piij 
without making actual tender of vtoneij. 

In a suit for damages for breach of a con- 
tract to deliver cottou, there was evideuce 
that the plaintiffs had called on the defend- 
ant to perform his part of tho contract by 
giving delivery, but that he had refused to 
do so and had repudiated the contract. The 
plaintiffs prove that they were ready and 
willing to carry out their part of the bargain 
and had made preparations with the object 
of having the money ready to pay for the 
cotton on dellvi-ry. 

Held, that under S. 51 of the Contract 
Act (IX of 1872), they had done sufficient to 
entitlo them to recover damages, and were 
not obliged to show that they made au actual 



Sup: Govt, acts (IX of 1872) <Contd). 

tender of tho money. SHRIRAM EUPRAM 
V. MAD-ANGOPAL GOWADHAN, 8 C- W- 
N 25-30 C 865. EC- 

184- S- 51 & 52— Detnand of the fulfil- 
ment of contract — Duty— Demandant's fault. 

A man is bound to be ready and willing 
to carry out his contract from the very ear- 
liest momeut at which fulfilment of it can ba 
demanded, and if a man calls upon another 
to do an act, tho doing of which puts the 
demandant under an obligation to do another 
act, then the demandant must be ready and 
willing to do that act at any time the other 
party does the act which lays the demandant 
under that obligation. PANDURANG v 

DADABFIOY 4 B- L- E 453 = 26 B- 648- 
181. (a) S- ,52-— Sec S. 5i and 52— 26 B. 

eH'So. 184 Supra. 

185- S- 55- Time essence of the contract 
—Forfeiture C. P. C. S. 214, 311— Agreement 
to patj off decree on a certain date. 

Whether tho time of performance fixed 
by an agreement is of the essence of the con- 
tract or not depends upon the intention of 
the parties. It must be ascertained, whether, 
in fact, the performance of the contract by 
one party was meant to depend upon the 
other party's promise being fulfilled by tha 
day named therefor, or whether a day was 
named merely in order to secure perfor- 
mance within a reasonable time. If the 
foyper is found to have been the intention, 
no relief can be claimed against foroitur.j; 
if the latter is found to 1 ave heon the inten- 
tion, equity will not refus3 relief if the pro- 
mise i-equired to be poifiTaied was p?r!orm- 
ed within a reasonable time. Wlie^-c the 
parties agreed that if the j idgm2nt-debt(.'r3 
pay a certain sum to tho d.oree-holder with- 
in one month, the execution sale shall be set 
aside : 

Held, that the intention of the parties 
was that performance within the prescribed 
time was essential. Even if perforininca 
within the time hid been merely material 
and not essential, no relief could be granted 
unless tho delay which occasioned the de- 
fault was satisfactorily explained and ao- 
ocuntcd for. Such an agreement is a valid 
and enforceable agreement, 29 C. 577 ref. to. 
HARAKH SINGH v. SAHhlB SINGH. 6 
C- L. J. 176- 

186- S. 55 & 75. Contract— Damages- 
Building contract not performed ivithin time 
fixed — Extension of time —A2)proval of work. 

The plaintiff sued thj defend xnt, a Rail- 
way Company, as a signsa from one 6'., a 
Railway contractor, of all the mon>ys and 
outstandings due to him by the defendant 
under a contract between him and tho de- 
fendant. The claim was in respect of a cer- 
tain sum deposited by S. as security for tha 
performance of tho contract aud an^t'ier 
su:n representing the 10 per cent, deductions 
withheld by the Company, under the pro- 
visions of tho contract, as further security, 
from payments made, from time to time, to 
S. and subsequent to the assignment to tha 
plainiiff for works done by S. up to the data 



( 309 ) 



CTVrti DIGEST OP CASKS 



( 310 ) 



Sup: Govt, acts (IX Of 1872) {Oontd). 

on which the defendant took over the re- 
maining works from his hands, after giving 
him due notice and entrusted the same to 
the plaintilf under a fresh contract. It was 
pleaded for the defendant that S. having 
failed to complete the works within the 
stipulated time to the satisfaction of the 
Engineer mentioned in the contract had 
forfeited the sums claimed hy him, and that 
S. was liable for loss and damage sustained 
by the defendant and also for the loss of 
profits and liabilities incurred by a tliird 
party for whose benefit the contract was 
entered into by the defendants. The plain- 
tiff contended that there was no breach of 
contract for S. was unable to complete the 
works within the stipulated time partly be- 
cause of the laches and negligence of the 
defendant in furnishing him with the 
plan of one of the works to be built and 
partly in couse<iu6uce of the fact that the 
quantity of work which had to be actually 
done turned out to be much in excess of the 
estimated quantity, and that the defendant 
acted unlawfully in taking over the unfiaish- 
ed works from S. The loss claimed by the 
defendant represented the cost of tho special 
establishment continued to be maintained 
by the defendant in connection with the 
unfinished contract work. 

Held, that S. had committed a breach 
of the contract, for it was proved that he 
sought an extension of time to complete the 
work and the defendant allowed him one 
month's extra time, and tho latter acquies- 
ced in it and raised no obj >otion as to the 
insufficiency of the extensKin. The contract 
was not an indivisible one, each of tlia works 
therein referred to being in itself an entire 
contract upon the complotion of which S. 
was entitled to receive tho price thereof and 
tho plan of one of the works not having been 
furnished in time did not preclude the defen- 
dant from taking over other works from the 
hands of S. 

That the original deposit by way of secur- 
ity and tho 10 per cent, deductions only 
formed an indivisible consolidated security 
for the due performance of each and all o.f 
the several works, and could not bo treated 
as a penalty or as liquidated damages, for it 
was held by the defendant under the express 
terms of the contract as security 'to heap- 
plied on or towards satisfaction of any loss 
or dainage wliioh the compmy may sustain 
or incur' by reason of tho contractor's broach 
of contract. The oiiits was on the defendant 
to prove tho actual damage sustained. 

That the loss representing the cost of 
special establishment was recoverable from 
the defendant, but tho defendant had no 
right to claim loss of profits and liabilities 
incurred by any third party, being too re- 
mote and not under the contemplation of i!. 
If the building owiier has ordered extra 
work beyond that specified by the original 
oontract, which has necessarily increased 
the time requisite for finishing the work, ho 
is thereby prevented from claiming the pe- 



Sup: Govt, acts {IX of 1872) {Contd.) 

naltios for noncompletion provided for by 
the contract. If the extra work be one 
which the contractor was not bound to un- 
dertake, but which he nevertheless under- 
takes, and if such extra work cannot bo re- 
garded as a separate and independent 
works, but is one connected with tho work 
originally stipulated for, the offer and tha 
acceptance of such additional work will, by 
necessary implication; operate as a variation 
of the original contract, as to the timu 
therein fixed for the completion of the work. 
The same rule would apply even if, under 
the term of the original contract, the buil- 
der had agreed ' to do any extra work which 
the building owner or his architect mi^iht 
order.' The term fixed in a contract for its 
completion must be taken to be with refer- 
ence to the w.orks specified in tho contract 
and not with reference also to unspecified 
extra works which might be ordoredunder 
tha contract. N.-\.B.\INASVVAJII RELDI- 
YAR V THE MADRAS RY. Co., Ld.— 13 M- 

L- J-488. 
187. S. 55, & 107 -Where a party to a 

Contract is at liberty to rescind it under sec- 
tion 55, and does so, section 107 has uo appli- 
cation — The meaning of section 107 is that 
" If defendant-respondant instead of rescind- 
ing the contract had chosen to re-sell at tha 
plaintiff-appellant's risk, then, in order to be 
able to hold plaintiff-appellant liable for any 
loss on re-sale, he would have had to comply 
with section 107 by j^^iviug reasonable uotioo 
to the plaintiff-appellant." -0. C. (il referred 
to-NGA SHWE rEE v. NGA CHIT SON. 
U. B R 1903. P, 9. 

188- S. 55, 231. 2^2-— Time, essence of 
contract — Specific performance — Pleadings. 

In a suit lor sp'icifio performance it is of 
soma importauco to distinguish between nego- 
tiation and contract and to ascertain what tho 
contract is, when and by whom it was made,, 
and who the parties are who are bound by it. 
Where a party contracts with another in his 
own name, without disclosing at any time that 
he is only acting as agent for another, the 
burden of the contracc as between the con- 
tracting parties rests with the person aetually 
contracting, and the other party has nothing, 
to do with che former's undisclosed intentions. 
If a p-irson who has drawn up a contract 
with his own hand and signed it wislres to 
persuade the Court that somehow or otLier an 
important terra has h-en omilted hy inadver- 
tence or mist.ike, he is surely bound to pledge 
his oath to the truth of the story, and not the 
less so when bisoponent come; forward and 
swears that there is no foundation for tha 
suggestio-n ; and his advocate is not to bo 
listened to, if ha himself will not venture to 
go into the witness box in support of the story 
he asked the Court to believe. The defen- 
dants agreed to take a lease of certain promi- 
ses from the plaintiff at a certaiji rent, upan. 
the plaintiff undertaking to ei-ecta godowu la 
the premises, in accordance with a plan ap- 
proved by the defendants. The promises were 
in the occupation of tenants to the knowledge 



( 311 ) 



CIVIL DIGEST OF CASE3 



( 312 ) 



Sup: Govt, acts (IX of 1872) (Contd) 

of both parties and who could not be cj scted 
at a mouieiib's 7iotic5. The pbiintiff projnisod 
tocleirthe groind and erect the proposed 
buildings as soO'i as practicable and lio ulso 
said that wlie • thj land was ready, the build- 
ings might le tinislijd in the course of three 
or four mouths. 

Held : — That in the circumstances the plain- 
tiff did not undoitike to finish the buildings 
within 3 monihs, irrespective of the time 
when the existing tenants vacated the land. 

That though time was not made the essence 
of the contract by the terms of the written 
agreement, in the contemplation of both 
parties the buildings were to be completed, 
without unreasonable delay ; and that in case 
of undue delay on the part of the plaintiff, 
the defendants might have made time the 
essence of contract by giving notice tl'at they 
(the defendants) would not hold themselves 
bound to comioiete the covenant unless the 
business was finished within a specified time, 
assuming the time specified to be such as the 
Court would hold to be reasonable under the 
circumstances. 

In a suit for specific performance, if the 
plaintifi's case is clear and the written state- 
ment does not disclose any valid defence, the 
suit according to the English practice ought 
to be decreed at once. It is not incumber.t on 
a party to go to the trial a'-med with official 
and documentary evidence to rebut and dis- 
prove insinuations which had never been 
made.— IRKAMULI HUG v. WILKIE.— H 

CW N-346=4Ali J. 740=6 C- L J. 
682; P- C=17 M- L. J 454 (P. C) 

189. S. ^Q—Sale not completed— Retuni of 
deposit — Rescission of contract : — 

S. 56 provides for a case in which the per- 
lormanoe of the contract becomes impossible 
otherwise than by some act of the promisor. 
The contract does not become void if the pro- 
misor does something which renders the per- 
formance of the contract impossible. Where 
the parties to a contract agreed to sell and 
purohi se certain property but did not get the 
sale completed in ten months after the agree- 
ment and allowed the property to ba auction- 
ed : he'd that the reasonable inference from 
their conduct was that the parties had re.^c;n- 
ded the contract, and none of thein could sei 
for its performance. GANGA DEI v. ASA 

Ra:,!. 4 a LJ. 778= awn. 1908- P5 = 
8 12 L-T- 177- 

190 S- 56 — Impossible performance, S. 375 
C. P. C- Parlies to iuit agreed that plaint- 
ij) and his younger brother shonld execute a 
sale deed and that the suit should be dismis- 
sed in default — Rrfvsal of iiounger brother to 
join in its execution in effect of. — 

S. 375 C. P. C. docs not prevent the par- 
ties to a suit from entering into an agree- 
ment, that toe j^laintifl and his younger 
brother should execute a jiint !:alo-deod, 
within a week of the plaint property in 
favor of the defendant, for a certain amount, 
and that, if the plaintiff should fail to 
do so, the suit should be dismissed. 
Mor does it preclude the Court from giv- 



Sup: Govt, acts (IX of 1872) (OoPi^I). 

ing effect to it, if satisfied that the party 
has failed to perform his part. 

The refusal, by the younger brother, to 
join in the execution of the agreement, 
cannot make the performance of the agree- 
ment by the plaintiff impossible within tbo 
meaning of 9. 5G, Contract Act. R.ANG- 
ASWAMY KAVUNDAN v. TBISA M.\IS- 

TRY. 17 M L J. 37- 

li91 S. 5S — Alternative promise— Indivi- 
sible, — 

Difficulty arises where there is a single 
promise with alternatives which can not 
be separated and a single consideration. 
For instance where the contract between 
a husband and wife was that A, the husband, 
would live quietly with B. the wife if they 
could manage it and if not B. the wife would 
be free to live away from A. 

Held, it is impossible to separate the 
alternative and therefore the contract is 
totally void. MEHER ALLY v. SAKBB 
KHAN BHAI. 7, E L- E- 606- 

192 S. 59 — -Appropriatimi of instalments 
due under one decree. 

A deci-ee was passed on a compromise, 
which provided for payment by instalments, 
and the decree-holder was entitled to recover 
the whole balance immediately on default of 
payment of two consecutive instalmeirts. The 
judgment-debtor paid three out of five instal« 
ments, specifying that the payments were to 
be appropriated to the second, third and 
fourth instalments, held, that S. 59 of the 
Contract Act did not justify such appropria- 
tion and the decree-holder was entitled to 
appropriate the payments to the three first 
instalments and to an order absolute for sale 
by rea.son of the fourth and fifth instalments 
beingovcrduo. PAZ \L IIUSAIN i'. MfWAN 

ALI, AWN- (1906), 125 = 3:A L J. 430- 

193 S. 59.— Ri venue Sale Law (Act XI of 
lS-59), Section 27 — Revenue sale — Arrears of 
Government revenue — ' Debt' — Title of purchas- 
er — Date of sale — Appropriation of payment of 
arrears of revenue. 

As the terms of section 27 of the Kevenua 
Sale Law shDw, that the sale certificate is 
granted to the purchaser at a revenue sale for 
purposes of evidence, but the title vests in the 
purchaser from the date of sale. 

The sale law under Act XI of 1859 is com- 
plete by itself, and the relation between the 
Government and the holders of estates liable 
to pay revenue under the Act stands on an 
entirely different footing from that on which 
the relation between creditors and debtors 
is based ; and arrears of Government revenue 
are not a debt within the meaning of section 
59 of the Contract Aot. 

When kists ot Government revenue for 
September 1901 and January 1902 had fallen 
into arrears the defaulting proprietor paid 
the amount due for January hist but the 
Collector credited it towards September kist, 
and the land was sold to realise revenue for 
January kist — 

Held, that the action of the Collector was 
not irregular and the sale was not open to 



( 313 ) 



CIVIL DIGEST OP 0A3ES. 



( 314 ) 



Sup: Govt, acts (IX of 1872) (Ountd). , Sup: Govt, acts (IX of 1872) fContd). 



any obiootion. L.R., 20 LA • 165 referred to. 
MljNSUI GANG A BISHEN SINGH v. 
SIIKIK MAHOMED JAN. 10- C WN- 948- 

But sec la C. \\^.N. 646 to the contrari/—No. 1!>5 
Infra {Ed.) 

191 S- 59 — ApportioHmcnt of payiU'.nt — 
Ben;al Tenancy Act XIII of i.s.s'5 S. 55. 

There is much differenco betwooa the pro 
visions of S. 55 Bengal T. A. & S. 50 of the 
Contrjct Act. Under S. 59 of the Contract 
Act the Court may have regard not only to 
the debtors' express intimation, but also to 
circumstances implying that the payment is 
to bo applied to the discharge of some parti- 
cular debt. Under s. 55 B. T. A. the debtor 
must declare the year and the instalment to 
which he wishes the payment to be credited. 
]f he does not do so, the.payment may be 
troditcd to fcuch year and instalment as the 
Lvidlod t; ii'is fit MOHni CHANDRA 
B.)Y V SIIKIMAT KALITARI DEBYA U C- 

W- U 993 

195 S- 59 & GO— Sale binder Revenue sale 
iaii— iiiHuiy aside sale — Appropriation of pay- 
ments by Co'.Uctvr. 

A revenue sale vras set aside on the 
ground that there was no arrear inasmuch 
as the Collector ought to have appropriated 
the amount sent by the owner to the pay- 
ment of the January liist for which the sale 
was held and not to the following March 
hist. 

Whether S. 59 and 60 of the Contract Act 
apply to the appropriation of land revenue 
sent to the Collector discussed 10 C. W. N. 
94-; & 3:3 C. 1193 d s ented.from. JOGENDRA 
MiiHAN SEN u. UMANATH GUHA 12 C- 

W N- 646- 

196 S- 62- Contract— Novation. 

k contract by novation requires this as 
an essential element that the rigVits against 
the original contractor should be relin- 
quished and the liability of the new con- 
tracting party iiccepted in their place. N.ADI- 
WLLLA f.CHANNAPPA 5. B- L. R. 617 

197- S- Q2—^oi-alion—Hundies in sathfac- 
tion of account — Eight to sue on accounts. 

Where tne plaintiff accepted two hundis 
i.i satisfaction of money due to him on 
book accounts by the defendant, and on 
d;fault of payment sued the defendant for 
thj money due on book accounts, and it 
was contended by the defendant that there 
was a novation, and the plaintiff not having 
sued on the hundis his suit should be dis- 
missed. 

Held, that the plaintiff, not having 
parted with the hundis which remained un- 
paid till the date of suit, was entitled to 
sue for the money due on book accounts 
independently of the Jmndis. 7 Cal , 250. 
84 P. R., 1885. 82 P. R., 1801 ; 71 P. R., 1897, 
followed. BAIiDp:0 SAlIAl v. MVl, GHAND. 

28 P li R- 1903-7 P R. 1903- 

198- S- Q2—Novati,OH— Privily between 
parties to new contract. 

A party to an , agreement cannot plend 
that he is no longer responsible under it by 
reason of the other party having accepted a 



fresh agreement from a third person to which 
ho was no party. ISHER DAS v. HIRA 

NAND 80 P- L- R. 1903. 

19y- S 62 & Qi—Nuoation— Release. 

.\ sued B and C for the balance due ou 
promis.sory notes. .A admitted that by au 
agreement subsequent to pro-notes he bad 
agreed to release B on his iJaying half the 
amount due on the notes, but as B had not 
paid the half in full, ho claimed to be entitled 
to sue B and C for the full amount due ou 
the original notes. 

The document executed by A was in faot 
an absolute release of 13 from all liability 
on the pronotes. 

Held, that the rele .se could not be treated 
as a mn-e agreement to release upon the full 
pa\mjat of half the anoint due ou tbe 
note-, ; and that A had no right of suit 
against B on the pronote 3 C. 32! referred 
to, 15 C. 319 distinguish d. ABDUL MAJID 
V. K. P. M. VELLIAN CUEi'TY. L- B R 

1900 02. P 170 

200 S. 62, 78, 95— Negotia'Je . Instru- 
ments Act — Fayni nt — Contract uf purchase 

Hundi taken in part payment. 

Defendants agreed to sell p;>,ddy to plaint- 
iff on the terms that the balance of the price 
after giving credit for an advance of Rs. 
1,000, should bo paid by plaintiff on deli- 
very at a place mentioned. It was agreed 
that an assignment of a debt for Rs 100 
and a hundi fur li^. 900 should be accept- 
ed as payment of the advance. Defendants 
sold the paddy to a third party at a higher 
price, and plaintiff now sued for damages" 
for breach of contract: 

Hild, that plaintiff was entitled to 
damages. As the Rs. 100 assigned and the 
hiindi for Rs. 000 were agreed to be the 
payment of the advance of Rs. 1,000, the 
acceptance of tbo hundi operated as pay- 
ment, thouj^h it might be only conditional, 
and the rigiat to receive the Rs. 900 as p.ift 
nf the price might revive it the hundi 
should be dishoujured, and notice of dis- 
lionoui- duly given. 

IleUi also, that the property in the 
paddy had passed to the buyer under s. 73 
of the Contract Act, and under s. 05 of 
till t Act, the defendants, as vendors, would 
have a lien on the goods and would not he 
bo md to deliver until the price had been 
pai.l, including the Rs. 900 due under the 
liundi if the latter were dishjnoured — 

Kui'TAYAN ciif/i:ty v. pala:-;iap\ 
cHErTY. 27 M- 540- 

f 01 S. 63—iicc S. 2, 33, 63 and 'i5-:in. 
li 61; No II) fupra. 

202 S. 63— Sec S. 62 and 63—1 L. B. R. 
J.VO'O:?.!'. 170 No 199 supra. 

203 S. G3—Rcmii^ion — Dispcnsimj u\fh 
performance. 

A Municipal Committee sued a Contrac- 
tor and hi.s surety for sums due under a 
contract. The defence was that the Coni- 
niittee had in a .special gt;nerai meo-.iug 
p-!.i>cd a resolution di.-ipcusing witli or re- 
mitiiug the performance by the defendant 



( 315 ) 



CIVIL DIGEST OF CASES 



< 316 ) 



Sup; Govt, acts (IX oMS7i) (Contd.) 

of so miioh of his obligation as gave rise 
to the suit .ind that tlia resolution was 
communicated to tha defendaiil). 

Hdd thti,t there could be a dispensation 
or remission under S. 63 of the Contract Act 
by meaus of an agreomjnt or contract alone. 
There must be a proposal of the dispensa- 
tion or remission and ani acceptanca tiiare- 
of. ss. 2, 2:J, 25, G3, 133 and 135 of the con- 
tract Act were considered. 

Held, also that the committee's Reso- 
lutiou \Vi\s doS'^'otivQ and illegal. ABAJI v. 
T£tE TRTMBAK MaNIGirALITY. 5 B. L- 

R. 699=33 B 63. 

204 S. 63— •S'.'i; Evidence Act S. 92. Pro- 
viso {4) 25. .U. 195. 

204 S. Q^— Company — Agreement between 
Comjxiny and Director how far binding o>i 
Company -Scope of authority of officers of 

Company Principal and agent General 

authority— Ratification — Acquiescence — Invalid 
contract— Restitution. 

The plainlifTs who were until a short 
time before they filed the suit mutsaddis of 
the defendant-company brought this suit 
against the comp.iuy and their managing 
agents for refund of the value of the shares 
they had purchased under the agreement 
under which tbey had been appointed and 
for other damages for breach of the con- 
ditions of that agreement. 

It was alleged in the plaint that on 30th 
January 1899 an .agreement was entered into 
between the plaintiffs and the defendant 
company under which the plaintiffs were 
constituted mutsaddis of the company for 
twenty years and agreed to take 400 shares 
of the company valued at Rs. 40,000 which 
they stipulated to pay between Feb- 
ruary and .July 1892 and further to advance 
to the company Rs- 30,000 in promissory 
notes and bills of exchange, that their re- 
muneration was fixed at 8 annas per cent, 
on all purchases of raw materials and Rs- 1- 
6 iJer cent. -on all sales of its produce except 
such as the plaintiffs declined to guarantee 
and countersign, that plaintiffs were to bo 
irremovable within this period except for 
per.'ional dishonesty, and that accounts be- 
tween the plaintifis and dcfoudants were to 
be settled according to the provisions of the 
agreement, that in addition to the above the 
managing agents of the company agreed to 
give the . plaintiffs a quarter of their own 
commission, which by the Articles of Asso- 
ciation of the company was fixed at 7J 
per cent on the gross profits of its busi- 
ness, that plaintiffs fulfilled all the condi- 
tions imposed on them and performed their 
part of Ulie agreement and wor!;ed as mut- 
saddis of ihe company from May 1900 to 
March 1901 when the defendants wrongfully 
put an end to the agreement and ousted 
the plaintiffs from their post. 

It appctirod that one of the plaintifis 
was a Director of the compiny when the 
contract was entered into. He did not vote 
when the loan from the plaintitis was accept- 
ed at a meeting of the Directors and 



Sup: Govt, acts (IX of 1872) {Contd.} 

ceased to be a Director at least from 2l3t 
July 1900. The agroomant purported to ba 
one with the defendant-company and the 
Directors' interest in it was patent in the 
writinf in which it was embodied. There 
was no concealmont>'and the agreement waa 
drawn up and revised by the standing 
counsel of the company who had never be- 
fore ho appeared to conduct th.a defence on 
behalf of the company pointed out its 
invalidity or impropriety. In the Articles of 
Association of the defendant-company clau- 
ses 94 and 95 provided for Directors deal- 
ing personally with the company and laid 
down the consequences of such dealing. 
Clause 95 provided, inter alia, that by enter- 
ing the company's service or being a Direc- 
tor in a similar of competing company or 
being directly or indi.r6otly interested in any 
similar business, his post shall be vacated. 
Clause 95 provided exceptions, and among 
these were that, with the sanction of the 
share-holders at a general meeting, a direc- 
tor might buy and sell articles, land, &c. 
from the company and only required that 
ho should not vote when such a contract 
was put before the general meeting and in- 
validated his vote it he did give it. 

It was contended for the defendants, inter 
alia, that the agreement was invalid, for (a) 
it was entered into by the managing agents 
in excess of their authority, and (6) was a 
fraud on the company as it was agamat its 
interests and had been entered into with 
one of the Directors without the knowledge 
of other Directors and the share-holders. 

Held, that in regard to no part of the 
agreement could it be said that the fact of 
one of the proposed mutsaddis being a Direc- 
tor avoided it under the Articles of Associa- 
tion or on the general prinoiplo that the 
Director of a company stands in a fiduciary 
position to the share-holders and cannot 
make any personal profit in a transaction in 
which the company is interested without 
the knowledge and sanction of the share- 
holders. L. R., 32 L. /. Ch. (1863) 151, L. R., 
6 H L. 189. L. R; 42 L. J. Ch. 044, L. R., 1 
Ch. (1398) 358, L. R, 1 Ch. (1900) 753. L. R., 
22 L. J. C. P. (1853) 99, referred to. 

Held, also, that the contract was not 
biudino on the company for it was un- 
reasonable and excessively onerous and was 
not covered by the general authority given 
to the managing agents to appoint mutMddis 
on such terms as thev might think fit. 1( P. 
R 1901, s e , 93 P. fj. R., 1901, followed. 

' Heid, further, that ths agreement was 
not ratified by the company and there was. 
no acqaio.«3n.;o bv it in it=; t.^rm; so as to 
make the agroomont b ndiag oi ths cjmpvny. 
The faot of th • phiintifis baing miitsadd:s to 
th" knowledge of share-holders could not 
be treited as proof of aequiosaence in the 
terms of the agreement. 

Hdd, alsj. that the plaintiffs were not 

entitled to refund of the value of tbt; shares 

' for they must be tr.jat.ed as outside the ag- 

' reement and section 64 of the Contract Act 



( 817 ) 



CIVIL DIGEST OP CASES 



( 31S ) 



Sup: Govt, acts (IX of 1872) (Contd.) 

did not. apply to the case. RAM DHAND 
r DIAMOND JUBILEE FLOUR MILLS 
COMPANY LD. lOOP L R 1905 = 10 P- 
R., 1905- 

206 S 64 —See S. 19 & 61—49 P. R. 1904 
No. 64 stipra. 

207- S. 64-— See S. 10, 11, 64, 25—56 A 
342 No. 21 siqira. 

208- S- 64— See S. 11, 19, 64, 65—30 C. 
i3H P. C. No. 28 supra. 

209- S. 65-— Contract— Rectification, of— 
Discharge of debt by mistake — Helief. 

The relief contemplated by section 65 of 
the Contract .\ct is that the party prejudiced 
by the mistake should be releivod from the 
consequences thereof. 

Where the ijlaiotills by mistake released 
a debt due to them they would be entitled 
to be placed in the same position as they 
would be if there had been no release and 
also compensated for any loss which may 
have necessarily resulted from the mistake. 

Where the debt which was released by 
mistake was on the date of discovery of the 
mistake not barred by the statute of limita- 
tions the party entitled to relief on the 
ground of mistake could claim no compensa- 
tion as no loss was sustained. He can only 
bo entitled to a declaration that the release 
is void and should be cancelled if in writing. 

But where the debt released by mistake 
is barred at the date of the discovery there 
is a loss which is the necessary result of the 
mistake when relief against the mistake will 
comprise not only a cancellation of the 
rel.ase liut nlso coiupensation l^r the loss. 
THE MADK.iS COZnSULUJ.vTED SUG\R 
AND SPIKi'L' FACTORIES, LIMITED v. 
WILLIAM SIS3M0RE SHAW & OTHERS. 

14 M. I- J 443 

210. S- Qb— Report of referee— Onm— 
^VarraiUj as to age. 

A person insuring his life is bound to 
make a true statement regarding his age at 
the time of his insurance. 

The warranty as to ago is an absolute 

warranty and not only as one of his belief 

and the plaintiff on whom the onus lay had 

failed to prove the correctness of the ago is 

. warranted by him. 

He is not entitled under S. 65 of the 
Contract Act to a refund of the p'(;nM'(J paid 
on the policy during the lifetime of the 
assured. Section v5 can ajiply only to cases 
in which the agreement is discovered to be 
void or the contract becomes void at law for 
any of t be reasons specified in the Contract 
Ae[. Neither that Section nor Section U-i 
o.ijplies to cases in which there is a stipula- 
tion that by reason of a breach of the war- 
ranty by one of the parties to the contract 
the other party shall be discharged from the 
performance of bis part of the contract. 
ORIENTAL GOVT. SECURITY LIFE AS- 
SURANCE COY., LD. V. NARASIMHA CHA- 

Ei. M. L J. 180LP- 373 = 25 M 183- 

211-_ S. 65- Contract by Lunatic void. 
Whore money was but by a lunatic to 
another man hold that it could bo recovered 



Sup: Govt, acts (IX of 1872) (Confd.) 

in a suit on his behalf by hi.s next friend 
under S. 65 of the contract Act, even though 
the contract under wbicli it was but waa 
void in law. JUGAL KISHORE v. CHEDA. 
1- A. L- J- 43. See S. 11 dc. 30 C. 539 No. 28 
supra. 

212 S. 65— Limitation Act, (XV of 167?) 
sell, a, art. 0',-— Agreement to sell— Suit for spe- 
cific performance. 

The defendants against whom a decrcee 
for foreclosure was outstanding agreed to 
sell certain immoveable property to the 
plaintiff, and the plaintiff pci 1 into Court 
as part of the cousiderat.on the amount 
due by the defend::nts under the foreclosure 
decree. The defendants neither executed 
a conveyance rf the property which they 
had agreed to soil, nor did they return to 
the plaintiff the money which he had paid 
on their behalf. The plaintiff thereupon 
sued the defendants, claiming in the alter- 
native either a decne for specific perform- 
ance of the agreement to sell or a refund of 
the money paid by him as part of the con- 
sideration for the sale agreed upon. The 
Court of first instance gave the plaintiff a 
decree for specific performance^ On appeal 
by the defcndiints, it was held by the High 
Court: (1) that the terms of the agreement 
to sell not being satisfactorily proved, no 
decree for specific performance could be 
made ; (2) that the plaintiff was therefore 
entitled to get back the money which ho had 
paid under the agreement — 11 A. 47 followed 
UDIT NARATN MISR v. MUH vMMAD 
MINNAT-UI.LA. 25 A 618- 

213- S. 65 -Marriage Contract — Pan money 
paid — Suit for money paid and damages— Pub- 
lic j'olic)/ — (Jntis. 

The plaintiil alleged that the defendants 
agreed to give their si.ster in mairiage to 
him aud he agreed to pay them 4J«- 190 
as |)aa money, of which Jte- 135 was paid in 
cash and the balance was to be paid en thp 
marriage day. He also alleged tliat he 
pjrtormcd all ceremonies, feasted his caste 
people and on the day fixed, wett to the 
defendants house to marry their si, ter, but 
they refused to give her in marriage, and 
subsequently had her married to some other 
person. Therefore he sued to recover the 
sum advanced and damages. Now the ques- 
tion was whether the contract for marriage 
for a consideri.tiou was immoral and againat 
public policy and whether the plaintiff was 
entiUed to a refund of the money paid in 
part performance of tho agre ment aud to 
recover dam It es for breach thereof. 

Meld, from a review of the aalhorities, 
the fo.Howiiig rules are deduciblo; — (1) Au 
agreement to remunerate or reward a third 
person in cons d, 'ration of negotiating a 
marri-Fge, is contrary to public policy, and 
cannot he enforced 13 B. 131, Note; 17 M. 
9; 13 B. 120 referred to. (2) An agreement 
to pay money to the parents or guardian 
of a bride or bridegroom, in consideration 
of their cousonting to the betrothal, is not 
necessarily immoral or opposed to public po- 



( 319 ) 



CIVIL DiriEST OP CARES 



( 320 ) 



Sup: Govt, acts (IX of 1872) (Contd.) i Sup: Govt, acts (IX of 1372) rO,Hi ') 



licy. Where the parents of tbe brido are 
not seeking her welfare, hut give her to a 
husband, otherwise ineligible, in considera- 
tion of a benefit secured to themselves, the 
agreement by which such benefit is secured 
is opposed to public policy and ought not 
to be enforced 13 M. 83; '23 A. 49.5; 22 B. 
6o8; referred to. (3) Where an agreement 
to pay money to the parents or guardian 
of a bride or bridegroom, in consideration 
of their con5euting to the betrothal, is, un- 
der the circumstances of thi case, neither 
immoral nor opposed to public policy, it 
will bo enforced, and damages also will be 
awarded for breach of it 7 Bom. H. C. R. 
0. 0. J. 122; 11 B. il2; 2.5 W. R. 32; (4) 
A suit will lie to recover the value of orna- 
ments or presents given to an intended bride 
or bridegroom in the event of the marriage 
contract being broken 7 Bom. H. G. R. O. 
C. J. 122; IG B. 673; (5) Although a Court 
inay not enforce an agreement to pay mo- 
ney to the parents or guardian of an in- 
tended bride or bridegroom, on the ground 
that the agreement is opposed to public 
policy, yet a suit is maintainable for the 
recovery of any sum actually paid, pursu- 
ant to the agreement, if the contract is 
broken and the marriage does not take 
place 14 W. R. 154 = 5 B. L. R. 395; 10 C. 
1054; (6) If one of the contracting parties 
alleges that the agreement is opposed to pub- 
lic policy, it is for him to set out and prove 
those special circumstances, which will in- 
validate the contract 13 M. 83. Applying the 
above principles to the facts of the present 
case, the question of the illetfility of the 
contract was not raised in the written state- 
ment, nor was it argued in any shape ii 
the Court of first instance. There was no 
allegation or proof of any special circum- 
stances, under which the contract in this 
particular ca-'-e could be held illegal. The 
eoutentiou, that what is opposed to public 
policy in England is necessarily opposed to 
public policy ia this country, although the 
social circumstances of the two countries 
are admittedly widely different, cannot be 
accepted as correct. Similarly, the argument 
that a Judge has an almost unlimited right 
of deciding cases according to bis own view 
of public policy for the time being, cannot 
be accepted. Where a plaintiff has paid mo- 
ney to tbe defendant upon an illegal exe- 
cutory contract, or for a future illegal object, 
before there has been any substantial part- 
performance, there does not appear to bo 
any good reason why he may not demand 
or recover back the money. In the result, 
the suit was decreed. BAKHSHI DAS v. 
KADU DAP, 1 C- Ii- J 261. 

214- S- 65-— See S. 2, 23, 65—28. B. CG 
Ko. 10 SHjira. 

215- S- 65— See S. 10, 11, &c.— 26 A. 343 
No. 21 siij^ra. 

216- S. 65-— See S. 11, 6.5- 33 P. R., 1907 
No. m sii.im. 

217- S 6o.— See S. 12 and 65—1 A. L. J. 
43 No, 33 su2'ra. 



218- S. 65.— See S. 20, 30, 65—25 M. 66 

No. fi7 supra. 

219. S- 65— See S. 20, 65,— U. B. R. 1907 
P. 1, No. 68 supra. 

220- S- 65-— See S. 23, 65-28 M. 520 
No. 122 supra. 

221- S- 65, 70. 72-— Contract defective un- 
der MniiicipalUics Act not binding though 
performed in part — Suit not maintainable. 

Section 65 applies only to cases where an 
agreement is void on account of mistake or 
impossibility or want of a legal consider.ition. 
It does not apply where the agreement was 
defective, for example, not being signed by 
a Chairman and Secretary of a Municipal 
Committee as required by S. 40 of .\ct 15 of 
1883, N. W. P. and Oudh Municipal Act, and 
therefore did not ripen in to a legal con- 
tract. Such a contract being not binding 
a suit ia not maintainable thereon oven 
though there had been a part performance 
and materials over the value ot Rs. 2J had 
been supplied to the Municipality. 28 B. 66 
L. R. 8, App. case, 517 and L. B. 2, Q B. D. 463 
followed. RADHA KRISHEN DAri v. MU- 
NICIPAL BOARD OF BENARES. 2- A- L- 

J- 321= A. W- N.> 1905, P 111 = 27 A- 
592. 

222- S- 65, 1^.— Contract— Mistake of fact 
— Void contract — Compensation — Execution of 
decree — Interest awarded by decree of first Court 
— Decree of appellate Court silent as to inter- 
est — Execution postponed from lime to time 
on judgment-debtor agreeing to pay iittercs! as 
mentioned in the application for cxeciUion — 
Objection at a late stage. 

The decree of the original Court award- 
ed interest on the debt but the decree o£ 
the appellate Court was silent as t j it. In 
the applications for execution intjrest was 
claimed by the decree-holder. Tjj judg- 
ment-debtor agreed to pay the principal and 
interest as claimed in execution and obtiau- 
ed abjournments from time to time. .At 
a later stage he contended that interest not 
having been allowed by the final decree 
should not be allowed. 

Held, that interest could not bo allowed 
under the decree but since the judgment- 
debtor had obtained adj lurnments from time 
to time on the promise to pay interest he 
was bound to pay it not as interest but 
as oampansation fur the advantage received 
by him frozu tlio date he agreed to pay it. 
The agreement to pay interest wis void be- 
cause it was entered into under a mistake 
as to a matter of fact essential to the agree- 
ment, both the parties being under a mis- 
taken belief that interest was awarded by 
the decree. NARAYAN VITHA MA WAD 

V. RAOJI. 6- B- L- R, 417=28 B 393- 

223- S. QT—Fee of Legal Praclilioner— 
Clr.im for its refund on the ground of hisnot 
appcariiij in ike case — Justification. 

Held, liiat where a legal practitioner ia 
rendy and williag to conduct in Court the 
k'-,al business of his client but is prevented 
from doing so, by an act or omission of his 
client (e. g., compromisiug the case aud re- 



( 321 ) 



CIVTL r>ICtE.-5T OK CASES 



( 322 ) 



Sup: Govt acts (IX of 1872) {Ooiud ) 

fusing to pay Gourt-foc required for the 
po\vei--of-Attorney), the latter is not entitled 
to claim refund of the fee fi'oiii the former 
on nceount of his not appearing in the case. 
.JAC.GXX NATH v. MAHTAB "SlNGH, 23 

P W- R- 1907- 

224- S- 68— Sc7^. II, Alls. 57 and 61— 
Miiwr, suH for money adocmccd to — Rfijistra- 
tion of bond executed btj guardian — Ex.ten- 
sion of period of limitation — Necessaries sup- 
plied to minor — Money advanced to minor for 
litigation purposes. 

The plaintiff lont somo money under a 
registered bond to the guardian of a raiuor, 
to moot the expenses of a litigation, in which 
th-T raiuor w.ia concerned, and brouglit the 
present suit to recover the money against 
the minor, after the expiration of three 
years from the date when the loan was 
made. 

Held, that the claim was barred under 
Art. 57, and the registration of the bond 
coald not extend tlio period of limitation 
against the minor. 

Held, further that the suit could not 
be miintainoj by the plaintiff under S. GS 
of the Ci'itract Act, ina.imLich as she bad 
not pleaded, nor proved that the money ad- 
vanced by her was necejsary for the mi- 
nor. It was not sufTiaiout merely to prove 
that the money was spent for the purposes 
of the minor. L. R. 3 Exoh G3, 1.3 Q. li. D. 
410, 10 Q. B. D. 50!) referred to. AN.JU- 
MAN ATl\. BKGAM (NAWAB) v. NAWAB 
AN.JUMAN AllA BECAM, 10 0- C 38. 

223 3- 63-Scf! S. 10, 11, 68—11. C. W. 
N. i:JJ. No ;.'.j supra. 

223- S- 63— Griha Pravesam and Retu- 
saitti ccrenunies. Right of mother to }-ecoeer 
c.rj)i-';isi?.s iti,c:Lrred for — 

A suit by the mother of a girl for re- 
covery of expenses incurred by her on the 
ceremonies of Griha Pravesam and Ritusanti 
is mLiiutainable under section 69 of the Con- 
traTt Act against the defendant who takes 
th3 propn'ty left by the plaintil'f'g husband 
by survivorship. VAIKUNTAM A^IM \.N- 
GAR V. KALLAPIRAN AIYANGAR, 13. M- 

25. 

227 S- 69— Contribution. Suit for— Rent 
X^aid by one co-sharer for the entire holding — 
Claim for contribution against his co-sharer in- 
eqiiitablr; when the plaintiff icas in wrongful 
posses-^ion of hi^ co-sharcr's share. 

Section 69 of the Contract Act contemplates 
a case in which there are several co-sharers in 
possession of laud, and where some of them 
having neglected to pay what is duo from 
them in respsot of the occupation of the 
land, one of liiuir number pays what is due 
from all. He may then recover contribution 
from the rest. 

But when the plaintiff sues to recover what 
he hid by the wrongful appropriation of the 
proflw of the de.endant's share already re- 
ceived, it would be unjast and inequitable 
that under such circam,tanoes he should be 
allowed to sue to be reimbursed in respect of 
payments made with what was Tirtually the 



Sup: Govt. act3 (IX of 1872) (Contd,) 

defendant's own money. S\V VB^ \M )'fRFi 
DEBI V. H \ RI D.\S BOY. 6- C- W N- 903- 
223 3. 69- 

The parohaser in a Court sale of ravonuo- 
piying property who hi-j bjja compelled to 
I p ly the arrears of revenue that hid accrued 
due b.;fore the sale is entitled under section 
6'J of tha Goatraet .\et to be ro-imbursoj by 
the previous owners of the property. 6 .1^., 
67, distinguished. KISHEN LAL u. MEGH 

SINGH. W- N , A , 1901, p. 37- 

229 S. ed-Coalribulioii, suit for,—Pulni 
talu'i — Mortgage — Stile in e.cxution — Arrears of 
rent due previous to sale — First charge. 

A mortgaged a certain putni taluq to B. B 
subsequently brought a mortgage suit against 
-A, and in execution brought the property to 
sale and purchased it himself. In th3 mean- 
time, the rent duo to the zemindar had falluu 
into arroir, and the zorainlac obt.viuad a 
decree, and in execution thereof advertised 
the patui for sale. The mortgagee, to save 
the property, piid in the amount of the 
decree and afterwards sued the m^rtg'.gor 
tor contribution. Held that a m.M tgagee, who 
purchases properly at an exjoatioa s.ilj, is 
iitidor a legal liability to pay the rent due 
upon the property at the tim; of ptirch.i.se, 
and therefore cannot claim, under s. G3 of 
the Contract .\ct, contribution from the 
m.>rtga3or. Maharani D.isya v. Harendra 
LU Roy Choivdhury {1. C. W. N. 453) and 
Peari/ Mohan Mukliopadhya v. Srxram Chan- 
dra Bo^e (8 C. \V. N. 791) relied on.— (.MAn.\- 
R.VT.\; M\NINDR\ CtlVNDRV. N.VNDY v. 
JAMmiR KUMARI. 9 C W. N- 670-33 

C 643- 

230 S. G9 — Payment by one inters'el — Ds- 
cree for land in plaintiff's fauour — hand with- 
held pending app ^als — Paymmt ofkist by plain- 
tiff— Suit for a^nju'it piid. 

' Plaintiff had obtainsd decrees for pjsaissioi 
of certain l.inds, but, poading an app3.il a id 
secjud appeal, the lands were with'-ijld froai 
him. He, however, paid thj kist, and now 
sued to recover the amount so piid: Hild 
that he was entitled to recover. It w.is a 
payment by one interested in it, which the 
defendants, as t!>3 persons in aofuil posses- 
sion, were bound by law to pay. — CHtN'NA- 
S\"iIY AYYAB V. R.^THNASABAP.ATflY 

PILLVY. 37 M- 338- 

331 S. Q3— Suit fur ownership — Payment of 
revenue during pendency of appeal. 

A suit as to the ownership of immoveable 
property having bean dismissed, the plaiutilia 
pceferrei an appeal. When the appeil wag . 
still pending, they were obliged to piy G.iv- 
ornmant revenue in respoab of that property. 
Tiie appeal was eventually dismis3a,l. Hdd 
that the plaintiffs were eubitled to raoovec 
fi-Dm the defendaut the money which they 
lud paid as Qovecnmeat revenue, inasmiioh 
as tliey wore interested in the payment of 
the money which the defpnlant was hound to 
pay. Ta'.sa Eoerv. Jajoshar ("3 A. L. J. 372), 
follosved.— KaUSAL SINGH b. KHAWANI- 

L.A.L. 3 A li J- 665 = A W N 190S- P-23JJ 



( 323 ) 



CIVIL DIGEST OF CASKS. 



(324 ). 



Sup: Govt, acts (IXIof 1872) {Contd). 

232 S- Q9—Acl United Provinces Land Re- 
ventu Act. Ss. 183 and 233 — Suit to recover 
money paid to release attachment — Jurisdiction 
— Civil and Revenue Courts. 

T sued in a Civil Court to rocover money 
from J on the allegation that eortaiu property 
belonging to her, having boon wrongfully 
attached in order to realizo arrears of Gov- 
ernment revenue due from J she had, in order 
to save her own property, paid the arrears 
of revenue duo from J to Government. Held, 
that T had a good cause of action, having re- 
gard to S. 69 Contract Act and that jurisdic- 
tion of the Civil Court to entertain the suit 
■wa^ not ousted by the provisions of the Unit- 
ed Provinces Land Revenue Act of III 1901, 
S3. 183 and 23.3 (m). TULSHA KUNWAR y. 
JAGESHAR PRASAD, A W-N. (1906), 114 = 

3 AL J. 372 = 23 A 563. 

233 S" 69 — Land registered in A's name, 
hut belonged to and was in possession of B — 
Payment of kist by A^Suit to recover amount 
—Act (11 of I8Gi.) 

The owner of a land cannot by virtue of 
his o.vnership alone, be held as compellable 
to pay the revenue. Under the Revenue Re- 
covery Act II of 1364 (Madras) the property 
of the registered holder, as well as the land, 
on which the arroar is due, may be seized 
and sold, and such holder may also be arrest- 
ed and confined. But an owner of laud, v?ho 
is not a registered holder, cannot be arrested 
nor his property, other than the land in re- 
gard to which the arrear has accrued, can 
be proceeded against. No doubt, if the land 
liable for the revenue is sold in dvre course 
of legal process, the unregistered owner's 
right to the land would be lost. But, that 
shows nothing more than that it would be 
to his interest to pay up the arrear of revenue. 
But, such arrears cannot be said to be what 
the owner is hound by law to pay, within the 
meaning of S. 69 of the Contract Act. 

Where, therefore, A sued to recover from B 
the amount voluntarily paid by him on ac- 
count of the revenue due in respect of certain 
land which stood registered in his name, but 
which belonged to B and was in the latter's 
possession when the money was paid, held 
that the claim was unsustainable, under S. 69 
of the Contract Act, as the demand for the 
revenue was one which B was not bound to 
pay. EOTA SELLAPPA REDDY v. VRI- 
DHACHALLA REDDY. I M.L.T. 323 = 16 

ML J. 669=30 M. 35 

234 S. 69 — Government as tenant paying 
assessment for landlord. 

S. 69 of the Act applies, where A pays 
money which B is bound to pay. Payment 
in law means payment to another person. 
Government sued to recover, from a land- 
holder under whom it held certain lands, as- 
sessment paid as tenant fo preveut the laud 
from being sold for arrears of revenue. Held 
that no suit would lie under S. 69, inasmuch 
as the Government had not paid the sura to 
any one, but had retained it all along, mere- 
ly transferring it from one pocket to another, 
and inasmuch as the sale for arrears of re- 



Sup: Govt, acts (IX of 1872) (Cont3) 

venue could only take place under the orders 
of the Government. 3 B 1.54 and 4 B 473 
referred to— SECRETARY OP STATE v. 

FERNANDEZ, 17 M.L.J- 337=2 M-L-T- 
820 = 30 M. 375 

235 8. 69 — Rent paid by mortgagee for 
purchaser of mortgaged property — benamee 
purchaser. 

A. on the strength of his purchase of a 
share of a putui taluq from the mortgagor,- 
got his name registered in the landlord's 
book, in place of his vendor (mortgagor) 
and in various transactions, gave himself 
out as the purchaser, the mortgagee of such 
share, who paid up the putui rent, in order 
to save his interest therein, can recover the 
amount so paid from the purchaser, as the 
purchaser was prima facie bound in law to 
pay the rent, and the latter cannot plead 
that he was only a benamidar for the mort- 
gagor. UMESH CHANDRA BANERJEE v. 
KHULNA LOAN COMPANY. 84 Q- 92- 

236 8. 69 — Auctioyi sale subject to charge 
for maintenance — Purchaser's right to recover 
such amount paid by him, from judgment- 
debtor— Transfer of Property Act, S. 53 (5) (d), 

An execution-purchaser, who purchases 
certain property subject to a charge for 
maintenance, has no cause of action against 
the judgment-debtor, when the o'uarge is 
enforced against the property and the pur- 
chaser pays to avoid a sale. In private 
sales, the buyer is bound uader S. 5-5 (.5) (d). 
Transfer of Property Act to pay the princi- 
pal and interest on incumbrances subjjcb 
to which the property is sold, andthes.ne 
principles must apply to Court-!5alfcs. MAX- 
GAL.\.THAjniAL v. NARAYANASAWMY 

AIYAR. 17 M L- J. 250- 

237 8. Q9— Payment of rent to a pur- 
chaser of a putni tenure — Sale set aside at 
the instance of defaidlers — Whether monej can 
be recovered from putnidars: — 

See S. 72 5 C. L. J. 59 No 263 infra. 

238 S. 69 — Prior and puisne mortgagees — 
Each purchasing at his sale— Suit for posses- 
sion by prior mortgagee — Right of puisne 
mortgagee and purchasers not made parties 
in mortgage suit to redeem — Partial redemp- 
tion — Interest-Account-Payments made by subse- 
quent mortgagee to save property from rent sale, 
Contract Act (IX of 1H72) S. 69— Bengal Ten- 
ancy Act (Yin of ISSo), S. 171. 

A first mortgagee obtained a decree for 
sale of the mortgaged properties and pur- 
chased the same in execution, but, whea 
he proceeded to take possess! jn, was suc- 
cessfully resisted (i) by a second m-rtgagee, 
who had meanwhile sued on his mortgage, 
obtained a decree and purcl ased_ som- of 
the properties in execution, and (ii by cer- 
tain other persons, who h-ad parcuaood 
some of the other properties from ihe mort- 
gagor. None of tbese had been madj par- 
ties in the first mortgagee's suit, the latter 
not having had notice of their interest in 
the mortgaged properties. 

Held, that it was not obligat.iry on the 
first mortgagee to institute a fresh salt for 



( 325 ) 



CIVIL DIGEST OF 0ASE3 



( 326 ) 



Sap: Govt, acts (IX of 1872) fContd). 

sale on his mortgage against tliese persona, 
and a suit for recovery of possession of the 
properties, on the basis of his purchase, was 
maintainable (9 C. W. N. 728 = 32 o. 891 fol, 

21 A 301, 22 A 394 Ref.) 

That, if the defendants wanted to retain 
possession, they must redeem tlie plaintiff, 
but as the plaintiff was both mortgagee and 
parohaser, the defendants were not bound to 
redeem tlie entire mortgage, but only to the 
the extent of tiie properties purchased by 
them (2 C. L. J. 202 and 30 0. 755 Ref.) 

That, to redeem the plaiutlfi, it was not 
sufficient for the defendants to pay a propor- 
tionate share of the purchase money paid 
by him. The amount payable must be cal- 
culated on the basis of the plaintiff's mort- 
gage. But, inasmuch as the plaintiff had 
already enforced that mortgage, and the 
mortgage-debt had been thereby converted 
into a j idgmeut-debt, he was entitled to the 
contract rate of interest, only up to the date 
of the decree in the previous suit, and 
interest at the Court rate subseL[uent there- 
to up to the date of payment, to bo fixed 
by the decree in the present suit 3S 590, 
11 C. W. N. 249 fol, 8 C. 79 not fol, 17 C. 23, 
18 G. 1154 21 C. 366 Ref. 

Held — that, in taking accounts, credit 
ought not to be given to the defendants for 
payments alleged to have been made under 
S. 171, Bengal Tenancy Act, to save the pro- 
perties from sale, in execution of a rent dec- 
ree, inasmuch as the first mortgagee was 
not bound by law to pay the amount, with- 
in the meaning of S. 69 of the Oontraot Act 

22 G 800 Ref. GANG AD A BH ATTARS v. 
JOGENDRA NATH MITTER, H C- W. N- 

403 = 50 L J 315 

239- S- 69. TOSuit to recover ntonet/ 
paid under cjmpromise Sch. II, arts. 61 anl 
83 — TAinitalion — Suit on boni to recover moneij 
of tvhick a third party hai iij fact }ial the 
benefit — Compromise of suit by heiis of obli- 
gor — 

U. S. borrowed money on a bond from 
U. R. The sole obligor of the bond wis U. 
S., but the mDuey was in fact borrowed for 
the use of, and was pxid to, one M. Pi-jm 
tira; to timj, the original bond was renew- 
ed, and ul in Italy U. R sued upDu th? 
last bind a'ld obtained a decree for a larga 
sum of mo lev agiinit the h3irs of U. S 
The defenda'iis appsaled to th; HighGjurt, 
hut, pending the appaal, entered ints a oim 
promise with th; plaintiff on the 2nd of 
January, 1905, wlisi-eoy th)y agreed to piy 
to the plaintiff th) sum of Ri. 5],0)J and 
costs of the H gh G^art. Upia th3 9tb of 
Nov.'mbir, 1 ) ;2, the heirs of U, S. piid to 
thi plaintili dacroj-holder in pursuinoe of 
this corapromse Rs 40,010, and on th> 17t!i 
of July, 1901, they in3t;tuted a suit again, t 
M. to recover the amount so piid and tbeir 
cost-i. Jl'.ld that, on the facts, U. S. was 
not a siirjty for M , but the princip\l debtor 
aUhough the mjn^yw.as borrowed for M.'s 
benefit, tint th; p^ymsnt m\,do on the 
5tU of November, 19J2, in pursuance of the 



Sup: Govt, acts (IX of 1872) (Contd.) 

compromise referred to above, was not 
gratuitous, and that the heirs of U. S. were 
entitled to recover from M. the sum of Rj 
40,000 so paid with interest, but not the 
costs of the Higb Court, in respect of which 
the suit was birred. 8 C. B. 54.5, 2 I. A. 
131 Ref. GIRRVJ SINGH u. MUL GRAND 

A W N (1907). 214=4 A L T 501=29 
A. 627- 

240 S- 69 ani 70— "Person interested 
in the paymmt of money "^Valunteer — Civil 
Procedure Ooie, S. 283. 

The plaintiffs, alleging themielves to be 
the purchasers of the mortgagees' rights in 
certain land, piid the amount of a decree 
against the mortgagee, in order to save the 
property from sale. Bjt, it hid been 
already found, in a suit under S. 2S3 of the 
Code of Civil Procedure, that the sale to the 
plaintiffs w£us fictitious and iuoparative. 

Held, that the payment mide by the 
purchasers was a purely voluntary payment, 
and that the plaintiffs were not eut tied to 
recover the amount, paid as above described 
from their vendors 2 I. A. 131 and 11 A. 234 
Ref. JANKI PRASAD SINGH v. BAIiDEci 

PRASAD. A W- N. (1908), 53. 

241 S. 69, 70 — Income tax payable by one 
party paid by another under protest — Eight 
to recover. 

Where, notsvithstandiag the protest of A 
and B that the outstandings of a deoeasej 
person had not coma to them but had been 
bequeathed under his will to G and D the in- 
come tax authorities collected assessment 
from them in respect of that amount, and 
A and B consequently sue! to recover the 
same from G and D under Ss. 69 and 70 of 
the Contract Act. 

H'Ui that .\ and B were not entitled so to 
recover, and that S. 09 ani 70 of the Con- 
tract Act were inapplicable, as the Collector 
had not determined under S. 14 of ths In- 
come Tax .\ct of 1886, that G and D were 
chargeable under Part IV, or assessed thim 
at any amount, as it was from the plaintiffs 
th ;ms3lvoi that payment was demanded and 
enforced by the income tax authorities and 
as it cannot be said to have been made by the 
plaintiffs for the defendants, merely because 
the incom; tax authorities ought to have de- 
mmdjd a'ld exacted piyin;nt from tbe defen- 
dants instead of from thi plxintiffs. R\GHA- 
V\N, IIIMOR, BY GUARDIAN SA^;KARA 
S\.SrRl\R I'. ALiMflUU AM..\IAIj and 
another, 3 M L T 111- 

21'? S 89, 70— Ri.ght to recover voluntary 
paii'n'n''! — Donbay Lo:al Funis Act (III of 
IVn, By n), S'lction S—Superior holler 

Th3 Chief of Patri suad the defendants, 
whj were ' jiwak giras' (t) for a de-Uration 
thxt defendants were njt the superior hoLlei's> 
thay had ni right to pay the local fund cess 
d reot to Government, and the plaintiff wis 
entitled to recover the samj from the defen- 
dants and pay direct to Governnunt ; and 
(2) also to recover the cess which he had 
paid for the years 1833 to 1395. 



( 327 ) 



CIVIL DIGEST OF CASES 



( 323 ) 



Sup: Govt, acts (IX of 1872) (.Oontdj. j Snp: Govt, acts (IX of 1872) (Contd) 

Bvld, that the plaintiff was not entitled to 
the doclaratiun prayed for, as he was not a 
superior holder within the meaning of Sec- 
tion S of iJourbay Act III of 18G9. 

licLl, ivls:>, that the plaintiff was not en- 
titled to recover the cess paid by him on the 
ground that, though he had an interest in 
tho vilSiye, in respect of whioh cess was piid 
hy hiui, uo emergency had arisen, or was 
liljely lo arisi, tJ enable the plaintiff to claim 
re-imbiirsomenU The mere sei-viee of notice 
of du-.na: d on him was not sufficient. GOR- 
PHAN L\b V. SURAJ MALJI. 4. B-LR 

299-20 B 584- 

243'y- 69, ^G-Limitation Act (XV'of 1877), 
SckMid' 11, Ay:icle 61 — Suit for money payable 
to the p. 'lint ijj fur money paid to the defendant. 

An uiKU'ri,\Uing to pay is not actual pay- 
ment and does not afford a cause of action 
for the suits contemplated by sections 60 .\nd 
70 of the Contract Act and governed by 
article 61 of the second schedule of the Limi- 
tation Act. L. B , 2 B. and A. 51 ; L. E., 3 
East 169 ; L. B., 10 B. and C, 329 ; 13 Cat., 
ISS.foUoned. 

When the plaintiff sued the defendant on 
the lOtb November 1899 on the allegation 
that he had executed a pro-note to a creditor 
of the defendant for money borrowed by the 
laiter on the plaintiff's security and the cre- 
ditor having obtained a decree against the 
plaintiff the pliintifi on the 10th November 
18'.)6 in execution of the decree transferred 
possession of his land to the creditor as secur- 
ity for the debt — 

Hell, that the suit was governed by article 
61 of the second schedule of the Limitation 
,\ct and limitation began to run on the 10th 
No-.-ember 1806. 5 Cat., 3:11 ; 20 Cat., 18; 12 
W. B., V14, riferred to. FITZGERALD v. 

JIUSA. 31. p. R. 1904. 

244 S- 69, 70—" Interested in the pay- 
ment " - 

A sale under the Public Demand's Re- 
covery Act has the same effect as a sale un- 
der C. P. C. Therefore where a Patuidar pays 
the amonnt duo under a certificate issued 
iigainst his p.imidar for money payable by 
the latter, be can not be said to be interest- 
ed in such i^ayment" under S. 69 of Con- 
tract Act so as to be entitled to be re- 
imbursed by the ^imidar. No payment can 
be said to bo made "lawfully" under S. 70 
of the .\ct unless the payer had an interest 
in making it. RAJA BAIKUNTO NATH 
L11;Y r.AHADUR v. UDOY CHAND MAITI. 

2 C L J 811 

245 S- 69» 70 — Becovery of money paid 

to redeem mortgage of his predecessor in title, 
lie-imbitrsnncnt Compensation for act done 
for Hie tieni'fit of another. 

.\. mortgaged land and died. His widow 
sold the land to B. C. sued the widow and B. 
to enforce his right of pre-emption. C got a 
d'jcree which was upset in second appeal. 
In the meantime, however, C sued to re- 
deem the mortgage and got a decree and 
riciecnied the pr ijierty by paying the mort- 
gage Uebt. D a reversioner of the widow sued 



B to set aside the sale by the widow and to 
recover possession of the land. He obtained 
a decree and is now in possession of tho 
land as A's reversioner. C. sued D to reco- 
ver the amount of the mortgage money 
paid by him to redeem the land and also 
costs of the rederapjion suit. 

Held that unless the case fell under 3. 
G9 or S. 70 of the Contract, Act D was not 
bound to pay the mj-iey to C Th:< case 
did not fall under S. 60, because D was not 
bound by Liw to pay the inortgige debt. 
The case did not fall under S. 70 because 
the redumption was not an act done for D, 
but G paid the money considering hiinself 
to bo tlie owner of the propsrty under a 
title which subieqaently failed. G.ANG.\ 
SINGH V. P. SANGAMLAL. Q. Q. Q. 212- 
243 S 69> ^Q~Re-imhnrscment of person 
paying vuney due by ano'Iter. 

A was the first mortgagee of the village 
and was in possession of the mortgage pro- 
perty. B was a puisne mortg.'igee of halt 
of the village. B paid tho land re- 
venue into the Tehsil, A, who was respon- 
sible for revenue, was given the benefit of 
the pavments made by B. 

Held that under the oircumstanees, 
neither according lo the rules of "Jtistice, 
equity and good conscience" nor under S3. 
09 and 70 Contract Act was \ liable to pay 
to B the amounts paid by the latter for 
the land revenue. NAJU KHAN v. RAM 

BALI. 7 0. C- 146- 

247. S- 70 — Improvement effected by co- 
mvners of a bat to save the hat from forfeiture 
— Sztit against other co-oieneis for contribu ion. 
A Municipality issued notices to the 
owners of a hat to effect certain improve- 
ments in the hat, intimating to them, that 
ucn-compliance with the said notices would 
lead to a withdrawal of the l.couse granted 
to hold the /fa?. In persuanoe of tho notices, 
tho plaintiffs effected the required improve- 
ments at their own cost and brought the 
present suit for contribution a(,a>nst the 
defendants, the co-owners of the hat. Hdd, 
that apart from any contract to pay, alleged 
by the plaintiffs, the latter are entitled to 
contribution under S. 70. For, the hat was 
saved from a forfeiture or disability wh.ch 
would have injuriously affected its value and 
the plaintiffs did not intend to act gratui- 
tously. (IS M. S8, l.j Q. B. D. CO, .s El. £■ Bl. 
73S Befcrred).— 3 MiAO KUMARI v BASANTA 
KUMAR ROY,— 32 C- 374. 

248- S- 70— 'S"'( /or recovery of money 
paid to lileaders engatjed by shebait/or benefit 
of a debutter estate. 

A's father was the shehail of certain 
debutter estate. But, on entering into pos- 
session, he met with considerable opposi- 
tion from B who disputed bis title as shcbait. 
In consequence, he had to bring a suit to 
establish his right as sliebait and recover 
possession. A, on tho death of his father, 
paid certain amount as fees to the pleaders 
engaged by his father and brought the pre- 
sent suit against B who represented the 



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CIVIL DIGEST OF CASES 



( 330 ) 



Sup: Govt acts (IX of 1872) {Contd). 

dibutirr estal-i to recover the amount so paid. 
Hi/ /, the contoDtiou of B that the amount 
p:i.id by A as fees to the pleaders engaged 
by bis father for tho estate cannot be cliarged 
on the dcbtitler estate, is not correct. Though 
there is nothing to show that, when the 
picadors were engaged, they were so ongagod 
upon the und'jrntaULliug that the debutter 
estate would be liable to make good their 
fees, still A, as executor of his father's estate, 
wa^ juitified in paying up the pleader and 
calliug upon tho dcbattcr estate to recoup 
what he had p'.id, under the provisions of 
S. 70. The payments in question were law- 
fully made and with no intention to do so 
gratuitously, nud the debutter estate enjoyed 
the benefit tliereof and was oousequantly 
liable to miko the amount good. RAJ.\ 
TEARY MOirvN MOOKERJEE v NAREM- 
DRA NATH MUKERJEE,— 9 C- W- N- 421 

=32 C 582. 

249- S-TO— Cess— Bevenue-sale (Act XI of 
IHJS)) s. 9 — Ac! I of IStS — Mortgagee— Part-pro- 
prietor — Mortgage, lien — Transfer of Property 
Act (IV of 1SH:1), s. TS^Cesses— Personal decree. 
A mortgagee of a share of an estate, 
who \vas also a part-proprietor, deposited in 
the Collectorate revenue and cesses payable 
by the defaulting mortgagor to save the pro- 
perty from being sold ; Held, that on general 
principles of justice, equity and good consci- 
ence, the mortgagee is entitled to have the 
amount paid by him on account of revenue 
added to the amount of the original lion. 
Nugcuder CJiunder Ghose v. Sreemutty Kami- 
ncc Dcssce, (11 Moo. I. A. 241 ; 8 W. R. 17), P. 
C. relied upon ; Einu Bam Dass v. Mozaffer 
llnsain Shaha, (I L R 14 Cal. 809), distinguish- 
ed. Held, also, that the mortgagee is en- 
titled to a personal decree against the mort- 
gagor for the nmount paid on account of 
cesses, regard being had to s. 70 of the Con- 
trOiCt Act (IX of 1872). Smith v. Dinonatk 
Mookerjce, (I. L. R. 12 Cal 213), referred to.— 
UPENDRA CHANDRA MITTER v TARA 
PROSANNA INinivERJEE,-!. L- R. 30 Cal. 

794 ; 7 C- W- N- 609- 

250. S. 70, — Suit by a witness for his ex- 
penses for giving evidence i« proceeding under 
s. 115 of Criminal Procedure Code — Implied 
Contract — Refusal of Magistrate — Res-judicata. 
Proceeding under s. 145 Gr. P. Code, is a 
case of quasi-civil nature and a civil suit to 
recover costs incurred in giving evidence in 
it, is maintainable. Such a case comes under 
s. 70 of the Contract Act, as implied contract 
to pay the expenses may be inferred from 
tho fact that on the service of the subpcena, 
the witness had the right to refuse to give 
evidence unless his expenses are paid. Hullct 
v. Mean (13 East's Repts. of cases 15) and 
Pell v. Danbcny, (5 Exchequer Report 95S) 
referred to. The refusal of Magistrate, to 
pay the same on application being made for 
it, does not operate as res-jadicata. NE^rI 
CHUNDRA GHOSH v. AJAHAH CHOW- 

CURY. 8 C. W. N. 178. 



Sup: Govt, acts (IX of 1872) CCovtdj 

251- S. 70- — Zamindar paid tJie water-rate 
Inamdars liability to pay water-rate for icsing 
water. 

An Inamdar holding land rent-free is 
not entitled to take water from a Govern- 
ment source, for the use of his land and 
leave the Zamindar to bear the water-rate, 
which, in consequence of his action, becomes 
payable under Act VII of 18G5 (Madras). 

Under S. 1 of Act VII of 1865, such 
water-rate is only to be levied on the laud 
and, under S. 2, arrears are to be realised in 
the same manner as arrears of land revenue, 
that is to say, from the land-holder under 
Act II of 1864 (Madras). 

The Zamindar himself, deriving no be- 
nefit from the water, the Inamdar, who has 
enijyed the benefit of the water, is hound 
under S. 70 of the Act, to compensate the 
Zamindar by refunding the water-rate, 
which the Zamindar has Ijeen obliged to pay. 
BAJAH OF YENKATAGIRI v. SUBBARA- 

YUDU. 17 M. L. J. 145 = 30 M- 277- 

252- S. 70- See S. 65, 70, 72—27 A. 592 

No. siiijra. 

253 S. 70- See S. 69, 70- A. W. N. 1907, 
P. 214 No. supra. 

254- S. 70- See S. 69, 70— A. VV. N. 1908. 
P. 68, No. supra. 

255- S. 70- See S. 69, 70—3 M. L. T. Ill, 
No. supra. 

256- S. 70- See S. 69, 70—26 B. 564 No. 

257- S. 70- See S. 69, 70—31 P. R. 1904, 
No. ..upra. 

258 S. 70- See S. 69, 70—2 0. L. J, 311 
No. supra. 

259- S. 70- See S. 69, 70—6 C. 212 No. 
supra. 

280. S. 70- SeeS. 69, 70-7 0. C. 146No. 

supra. 

281- S. 72- Mistake — Payments made under 
— Suit fur refund — Will — Probate — Payments 
made to heir — Decree in favour of executor — 
Suit for refund. 

The present plaintiff made payments to 
the heir of a deceased person under the mis- 
taken belief that the heir was entitled to 
receive them. The executors of tho deceased 
who had obtained a probate of tho last Will 
of the deceased obtained a decree»against the 
plaintiff in respect of the sums paid by the 
plaintiff to the heir. 

Held, that the plaintiff was entitled to a 
decree against the heir for refund of the 
amount paid by him, even if the decree 
passed in favour of the executors was not 
satisfied bv him. RAM KISHEN v. RANI 
BHAGWAN KAUR. 161 P. L- R-, 1906 = 

131 P E. 1906. 

262 S- 72— P-'ght to recover money had and 
received to phiintiff^s use unaffected by s. 73. 

Defendant had sought to exercise, as against 
plaintin, the special powers conferred upon 
landholders by s. 38 of the Rent Recovery 
Act. In fact the relations between defii-udaut 
and plaintiff were not such as entitled de- 
fendant to cxerjise those powers. Plaintiff, 
iu order to avert the injury which he would 



( 331 ) 



CIVIL DIGEST OF CASES 



( 332 ) 



Sup: Govt- acts (IX of 1872) (Cojiid). 1 Sup: Govt, acts (IX of 1872) (Contd). 



have sustained if his interest in the land had 
been sold, paid the amount demandea by the 
defendant, and now sued to recover from the 
defendant the sum so paid. Hdd that plain- 
tifi was entitled to recover the money paid 
hv him as money had and received by delen- 
flant to the use of the plaintiff. S. 72 of the 
rontract, Act m no way affects the principle 
nf law that where a defendant has received 
money which in justice and equity belongs 
ft a plaintiff, under circumst.vuces which 
render a receipt of it a receipt by the defeu- 
^;,t to the use of the plaintiff, the plaintiff 
f^'^entmed to recover.^ JUGDEO NARAUN 
ci:?rH V. RAJA SINGH, (1. L. B., lo Cal. 
^M aPP ovcd.-NABAYANASAMI REDOX 

f '*6SURU IIEDDI, I. I.. R., 25 M. 548 

263 S- 72—'^'"'' /"'■ «"'-""""^i/ i'""^ under 
""n^w'that the plaintiffs were entitled to 
recover money paid on account of rent to 
defendant (Zammdar) while m possession as 
purchasers in a putni sale af erwards set 
Lm, "for irregularities, the same being money 
aside ''^'^ "f%": t„i,e^NAGENDRA NATH 
FaL CHOWDHURY.. CHANDRA SEKAR 

^S^'^72-^'«^'"''«'-i/ ' payment-Piopcrty of 
third person sold in e.zecution--His Right to 
rea>ver money erroneously deposited under S. 

310 A. C.PC. . ,, . 

When property belonging to A was sold in 
execution of a decree against B, and^ had 
the sale set aside by making a deposit under 
S 310 A of the Civil Procedure Code ; 

'Held that A has no right to sue the decree- 
holder for recovery of the amount of the de- 
posit money paid to him. 15 C 656 and 7 
C 648 referred to. A was not bound to ap- 
ply under S. 310 A Cr. P. C., to set aside the 
«nlfl nor had he the right to do so.— KUNJA 
BrHARI SINGH V. BHUPENDRA KUMAR 

^"or\ s 73-Daviages—Mode of assessing 
dcrmages 'where no proof of market price- 
Contract— Breach of contract. 

On 2Ut October 1899, defendant con- 
tracted to deliver to the plaintiff at Bombay 
1000 tons of Powell Duffryn coal, January 
to May shipments, 200 tons to be supplied 
each month. The first sh.pment was due 
in middle of February. Defendant ailed 
to deliver any of the coal, and the plaint- 
iC did not purcha.se any coal against defen- 
dant's contract. The plaintiff now sued for 
daiaa"es for breach of the contract. The 
onW question was as to the mode of as- 
se^-iine damages. There was practically no 
coal in Bombay of the description contract- 
ed for at the dates at which delivery should 
have been given and consequently no mar- 
ket rate could be proved. At the hearing, 
•nlaintifi produced a statement showing the 
r.ues at which he bad during the contract 
n'tnod settled c.-nain contracts for Powell 
Duffryn coal which he had with the Bom- 
bay Company, Limited. 



Held that under the special circum- 
stances of the case, and in the absence of 
any evidence as to a market rate, the fi- 
gures given in this statement might properly 
be received in evidence for the purpose of 
fixing the actual value of the coal at the 
dates of breach, thus aff-:>rdiug a measure of 
the damages suffered.— JUGMOHANDAS v. 

NUSSERWANJI. I L- R-, 26 B. 744=4 B. 
L- R. 504. ^ ^ ^ 

266 S. 73 — Suit for damages for breach 
of contract— Damages how cahulatcd. 

A sued B for damiges for breach of a 
contract by B to deliver, within a specified 
time, to A, nee of a specified quality milled 
at certain specifiod 'big mills'. The only 
matter in di.sputo was the amount of com- 
pensation to which A was entitled. Daring 
the course of the trial, the Judge refused to 
allow evidence to show the rate at which 
rice of similar quality and description mill- 
ed at small mills, was sold. 

Held that the principles laid down in s. 
73 of the Act must be the foundation of 
decision in assessing damages for breaoh^f 
contract and that the market price of rice, 
milled at small mills and otherwise, of the 
same description and quality, may rightly 
be taken into consideration in assessing 
damages for breach of big mills contract. 
Goods, which the buyer could not be com- 
pelled to accept, it tendered, may be a basis 
for the calculation of damages to which the 
buyer is entitled for breach of contract to 
deliver. The measure of damages is the 
difference between the contract j^rioe and 
the market price of similar, not necessarily 
identical, goods, L. B. (1877) 2 App ca 455 
cited. MAHOMED BHOY NANSEE KHAI- 
RAZ V. MEYEB. 3 L B. R. 12- 

267 S- 13—Sie S. IU?—3U C. Gi'J No Infra. 

268 S 13-See S. 51—30 C. 865 (P. C.) 
No Suj'ia. 

269 S. 73— Landlord and Tenant— Con- 
tract. Breach of — Specific performance — Da- 
mages — Cause of action 

When a person to whom a house is let 
for a fixed period refuses to take possession 
of the house and abide by bis contract the 
lessor may bring a suit for specific perfora- 
anoe or let the house to another person and 
sue the lessee for damages at once and need 
not wait till the expiry of the term of the 
lease. 

The measure of dam.iges is the loss ot 
rent suffered by the landlord after deducting 
such sura as be may recover from another 
source and it is the landlord's duty to make 
reasonable efforts to secure another tenant 
or otherwise cuv-r the loss unle^^ he sue* 
for specific perforinanee. L\CHMI NARA- 
IN V. VERNON. 137- P R 1903 = 5 p. L- 
R, 1907. =1 P W R, 1907. . 

270 S- T3 = r)'images. Hate of — in case of 

breach of contr.tct of sale. 

If the vendor has any specific period of 

time allowed to him for making the delivery, 

and finds, ba! ire the time has elapsed, that he 

1 will be unable to complete the delivery, and 



( 333 ) 



CrVIL DTGE??T OF CAS AS 



( 334 ) 



Sup: Govt, acts (IX of 1872) (Contd). 

gives uotioe to tbe purohaset that ha retuaea 
to proGOod th'irowith, and the price riaea, tbo 
measure of damnges is the differoooo between 
tl>e oontraot-prioo and the higher price of 
the suMictmat.ter on the last day of the 
period within which the delivery ought to 
have been made — 8 Taunt, p. iiO, fuUniocd. 

Where uader a contract of sale of j ite the 
delivery or shipment was at the seller's op- 
tion during August-September, and the seller 
refused to perform the contract — 

Held, that the measure of damages was the 
difference between the ooutvact-prico and the 
higher price of jute on the 30th of September. 
A. S. MACKEKTICPI v. NAVA COOMAR 

ROY. 7 W- N-, C, 431 = 30- C- 477. 

271 S- 73 — ConU-act — Damages for breach of 
CiTecutory contract — Contract not binding on 
plaintiff. 

In a suit for damages for breach of an ex- 
ecutory contract it is open to the defendant 
to show that it is not binding on him inas- 
much as it is not biuding on the plaintiff. 
THE AHMEDABAD MUNICIPALITY v. 

SULEMANJI. 5. BLR- 592=27- B- 618- 

272 S- 73 — Damages — Breach of contract of 
sale. 

la determining the amount of damages, in 
case of a broach of a contract of a sale by the 
purchaser, the Court has to take into con- 
sideration how much worse ofi is the vendor 
by reason of the non-performance of the 
contract by the vendee. 

It is open to the plaintiff to sue for speoifio 
performance of a contract or damages, and a 
Court in estimating the damages is not to 
take into consideration the fact that the 
pltintiif has not sued for specific perfor- 
mance of the contract but claimed damages 
only. MOHAN LAL TRIBHOWAND \S v. 
CIIUNI LAL HARINARAYAN. 4 B L-R- 

814 

273 S- 73 C- P- C- S- 588-Issues. Fram- 
ing of — Duty of parties — Remand— Costs— Con- 
tract of sale — Damages. 

The omission of a party to press an essen- 
tial issue in the Court of first instance, is 
not a ground for refusal by tbo Appellate 
Court to refer that issue for trial, if the lower 
Court has omitted to frame or try it. The 
omission should be considered in dealing 
with the costs necessitated by a remand of 
the case by the Appellate to the Original 
Court. 

In a suit for daraiges for breach of a con- 
tract for sale, the is;uo as to damages should 
be, — What w;i,s the actual iujiry sustained 
by plaintiff by reason of the defendant not 
having performed his contract ? The amount 
of the iuj u'y can only be ascertained ty de- 
termining what the p-operty would have 
fetched if pat up for sale in the open market. 

The Appellate Court is justified in re- 
manding an issue under gectiou 566 of the 
Civil Trocedure Code, for retrial when it 
appears that an essentitil point, thougli in- 
cluded in the form of the issue framed by 
the Origiiwl Cjurt, wis not present to it's 
mind prior to the remand. -JOSHI MATHU- 



Sup: Govt, acts (IX of 1872) (Goutd). 

RESII PITAMBER u. BAI DAHI. 4 BL-R. 

818 

274 S. ^S—Toll contract Traffic of people 
forbidden by Gouernmcnt owing to plague- — Con- 
tractor's liability to Government not affected. 

A toll contractor sued the Government for 
loss sustained by him owing to a notiiioatioa 
issued by Goverument, prohibiting villagers 
to visit other villages to avoid the spread of 
plague. 

Held, that there was no breach of contract 
or commission of tort on the part of Govern- 
ment, and the plaintiff was not entitled to 
succeed. THE SECRETARY OF .-VJATE v. 
ABDUL RAHIM. 4. BL-R. 874- 

275- S- 73- Contract for tolls with Local 
Fund Board — Implied contract to keep road fit 
for traffic — Da-mages, — Local Boards Act, 1884, 
S. 150 — Limitation. 

Plaintiff contracted for some tolls on a 
certain road under the Local Fund Board 
for ono year. During the year, he complain- 
ed to the President of the Board that the 
road was in such a state of disrepair as to 
prevent traffic, and that ho, in consequence, 
was sustaining loss, and applied for a re- 
mission. The President did not make any 
award in respect of this claim for compen- 
sation. Subsequently, tbe road, in order to 
enable thorough repairs to be affected, was 
completely closed to traffic under the orders 
of the President and without the consent o£ 
the contractor. 

Held, that this was a breach of the im- 
plied term of the contract to keep the road 
open to traffic, and that the plaintiff was 
entitled to rescind the contract and claim 
damages from the Board. The mea.iure of 
damages is the net amount, which the plain- 
tiff would have received under the terms of 
the contract for the entire term, if he had 
been allowed to carry it out. The suit is not 
barred by limitation under S. 150 of the 
Local Boards .\ct, 18S4, as the suit is not 
of the description provided for by paragraph 
1 of that section but one for a breach of 
contract 2 JI. 124 referred to. THE PRE- 
SI.OENT, DISTRICT BOARD, MALABAR 
V. KARIYARATH PUTHTSSERI KENTI 

KANARAM. 2 M L- T- 194=17 M-L- J. 
390 

276- S. 73- Damages for breach of con- 
tract — Vendor and purchaser — Co-)Uract to sell 
immoveable property. ' , 

The rule iu 21 W. L- B. L. 1078 and 7 
Eng. and Ir .\pp loS that the purchaser of 
real estate cannot recover damages for the 
loss of his bargain, but only his deposit and 
expenses, does noli apply to cases of wilful 
default, nor to unreasonable omission to 
complete the title by taking some definite 
steps m the vendor's power 42 B. 659, 2 G. 
■320 Fol, 11 B. 272 not followed. 

In India, in cases of breach of contract 
for sale of immoveable property through 
inal)ilifcv on the vendor's part to make a good 
title, the dama-^es must be assessed iu the 
usual way, uule-is the parties expressly or 
impliedly contract that such inability should 



( 835 ) 



CIVIL DIGEST OP CASES. 



( 3d6 ) 



Sup: Govt, acts (IX of 1872) fVontd). 

not lUike the vendor liable for damages. 
RANCHHOD BHAWAN c. M\NM0HAN- 

DAS B VMJI. 9. B. L- R- 1087- 

277- S- 73- li-'jii-t to iaUnsl— Plaintiff 
non-Hiiida^No iisaje — No loritteii instrument 
—No dciiicind in lOritlng. 

Xha plaintiff was not a Hindu, and there 
was no agroemoQt for intorest. Sdd interest 
could only be reoos'cred (a) by mjroantilo 
usage, or (6J under the Interest Act, XXXII 
of 1839. If it is claimed under the Interest 
Act there must be (1) a sum certain, payable 
at a certain time, by a written instrument, or, 
(2) a demand of payment in writing, giving 
notice that interest will be claimed. 

Whore neither of these conditions are 
fulfilled, the plaintilt cannot claim damages 
under S. 73 of the Contract Act, as that 
section is not intended to override the pro- 
visions of the Interest Act, 9 B. L. R. 439, 26 
C. 955, L. R. App. cases (1893) 431 and 20 M. 
4S1 ref. to. HA.TI JIQSO,. SON OF HA-TI 
JAN MAHOMED v. HA,JI NUR MAHOM- 
ED, SON OF ABDUL KADIR. 1. S- L- E- 

179- 

278 S. 73 Damages for breach of con- 
tract, — Damaijcs, how and when accrue and 
how calculated— Covenant, breach of ContraA:t 
Act S. 73 — Collateral or consequentiat dama- 
ges — Remote and iiidirect damages. 

A contract may be broken quite as much 
by repudiation of liability under it, as by 
making it impossible to fulfil the terms 
of the contract. 

Where a party sustains a loss by reason 
of a breach of contract, he is, to be placed 
in the sinie situation with respect to 
danrxges, as if the oontraoi had been per- 
formed. Exch 850 Ref. 

Where two particj have made a contract 
which one of .cuem has broken, the damages 
which the other ought to receive in respect 
of such breach of contract, should be such 
as may fairly and reasonably be considered 
as arising naturally, that is, according to 
the usual course of things, from such 
breach of contract itself ; the damages may 
be such as miy reasonably be supposed 
to have been in the contemplation of both 
parties at the time they made the contract 
as the probable result of the breach of it. 

The damages, however, cannot include 
compensation for any remote and indirect 
loss or damages sustained by reason of the 
breach, y Esoli 341, 7 ch D 490 Ref. 

Where a person agrees to pay and discharge 
an incumbranc3 and neglects to perform his 
covenant within the time fixed ther jfor or 
within i-oiSiii,bl3 tim' if none is fixed 
the covenantee is ordinarily entitled to recover 
the present amount of the iucumbranoe 2 
B & Ad. m2, 5 B & Ad. 78, 39 R R 405, 5 Ex. 
D 280 84 Iowa 71, 11 Am. Rjp. 133, lai Mass 
93, 41 Am. Rep. 199 Ref. DASWANT SINGH 
1'. SYED SHAH RAM/5AN 4LI, 6 C L- J, 

898. 

279. S. 73 Agreement to let a house — Breach 
of contract by tenaiU before time for perfor- 
viance -Measure of damages. 



Sup: Govt, acts ([X of 1872) {Oontl.) 

Where a plaintiff agreed to lot a housa 
to defendant, and placed it at the latter's 
disposal, but the latter refuijd to take the 
house and broke the contract, w ithout any 
j istilioation, plaintiff was held entitled to 
Dring an action for damxges for the breach. 

The measure of dimi^o.s is the loss of 
rent suffered by the landlord, after deduct- 
ing such sum as he miy recover from an- 
other source, and it is the landlord's duty 
to make reasonable efforts to secure another 
tenant or otherwise cover the loss, unless ha 
sues for specific performance. 

S. 73, Contract Act, does not help tbe 
defendant. The damxgi caused naturally 
arose in the usual course of things from the 
breach and was not inlirec'; or remote.' 
LUGHMt NARAIN v. VERNfON. 137 p. 

R. 1903=1 p- w, R i9ar-5 p. i' a. 

1907. 

230- S- 7S-—Siut for brea:\ of conlrxcl— 
D.imajes—Oitdh Rent Act [XXII of 18S6), 
S. lil — Liahility for interest on arrears of rent 
— Under-proprietor^Timi a! which rent is pay- 
able— Statute 3, i, Will, rr, c. -i3. 

Although an under-proprietor is not li- 
able for interest on arrears of rent under S. 
141 of the Oudh Rent Ast as not being a 
tenant within the meaning; of that section — 
Muhammad Mehndi Ali Khan v. Muha.nmad 
Yasin Khan, (L. R., 26 I. A., 41 ; I. L. R., 26 
Gal. 523) — yet there is nothing in the .A.ct or 
in that decision which excludes any liability 
for payment of such iatorost which an under 
I proprietor might be under apart. from the .Vot. 
\Vhere a compromise, containing an agrea- 
uimt to pay rent, como to between the pra- 
deoessors in title of the present Utigmti, lud 
been followed by a decree which oarrijd into 
effect the terms of the agreement: H'ldin 
a suit for arrears of rent thit the agreement 
was marged in the decree, bv which and not 
by the agreement, was established tho status 
of under proprietor from which the obli- 
gation to pay the rent was derived, and that 
the suit was therefore njt one for breach 
of contract within the moaning of 3. 73 of 
the Contract Act (IX of .1872) in wiiich in- 
terest on the arrears could be given as 
damages. Nor could such interest be givaa 
under the* .provisions of the lotjrest Act 
(XXXII of 13:39) it being necessary uudar 
those provisions for the plaintiff to show 
that the rent was payable "by virtue of soma 
written instrument at a certain timo ;" and in 
this case neither the deed of compromisa 
nor the decree prescribed any time for pay- 
ment of the rent, nor cont.uned any term^ 
from which the time could be ascertained. 
The Interest Act of 1839 wa.s passed for tho 
purpose of extending the English .\ct (3 and 
4. Will, IV, c. 42) to India, and its provisions 
in this respect being the same those of the 
English Act, tho English deeisioqB m.xy be 
r-oferred to in construing the Indian --Vet. 
Dancombev Br'igli'onClub Njrfolk Hotel Co. 
(L. R. 10 Q. B., 371) London Chatham and 
Dover Railway Co. v South Eastern Ry. Co. (L. 
R., 1 Ch. 120) and Merchant Shipping Co. v. 



( 337 ) 



CIVIL DIGEST OP CASES 



( 338 ) 



Sup; Go vt. acts (IX of 1872) {Contd) 

Armilmje (L. R., 9 Q. B. 90). referred to.— 
GANESH BAKHSH v HARIH.VR BAKHSH 

I L. B., 23 A 299; 8 C W. TJ. 521 ; 6 
B L R. 505; M L J.. 1904, P 190; 
P- C-70 C116=31I- A 116 

281- 8. 73- —Consent decree— Eject of breach 
of the terms of the decree on the part of 
plainiijf. 

By a consent decree the defcadauta 
consented to judgmout tor the entire 
amount claimed by the jjlaintiff ; but subject 
to tills proviso that if on a day the defendants 
should pay to the plaintiff the sum of Us. 
35,000, the decree should bo considered 
satisfied. It was also agreed that if for the 
payment of the aforesaid sum of Rs. 35,000 
it should be necessary for the defendants to 
transfer the mortgaged properties or aay 
plots or portions of them, or grant patlahs 
on receipts of snlami, that is, piemiumi or 
bonus for the lease, then the defendants 
shall, on settling who are to receive the 
property, gave the plaintiff the stkit paper 
iu relation to whatever proprrties they may 
from timo to time dcterm.uo to sell or 
lease before a certain date. Within 30 days 
from that day the plaintiff shall, at the 
defendants' expense, make appraisement of 
the htitli in the muflassil, aad after credi- 
ting the proper price, or the proper salami, 
against the defendant's debts, shall, at the 
defendants' expense, duly execute a deed 
of release or deed of oousont. The plain- 
tiff failed to make appraisement as agreed. 

Held, that the plaintiff was not entitled 
to recover from the defendants any thing 
more than Rs^ 3'1,3(0 (Rs. 700 having been 
paid by the defendants) as there was a 
complete breach of contract on the part of 
the plaintiff. HARENDKA LAL BOY 
CHOWDHRI I- MAHARANI DEVI,— V- W- 

N-, C , 1901, P 536 (P C ) 

282- S. 73 — Wliclhcr Lamberdar liable to 
paij interest on share uf jjrojits. 

Held, that Lamberdar was not liable to 
pay interest on the sums found to be due to 
the sharer at the end of each year for which 
profits wore claimed, and S. '73 Contract Act 
was cot ai^plicable. MIRZA SADDIQ HUS- 
SAIN KHAN V. HAFIZUL REHMAN. 6 
C 89. 

282 (a) S- 78- — Interest— Suit by superior 
agaifist an under proprietor. 

A superior proprietor sued under pro- 
prietors for arrears of rent and interest 
thereon. Held where uo contract is proved 
interest by way of damages can not bo 
decreed under S. 73 Contract Act. THAKAR, 
HARHIAR BUKHS v. TIIAKAR GANESH 
BAKSH. 1. 0- C- 94. 

283- S- 73' — Breach of contract. 

A superior proprietor sued an inferior 
proprietor for arrears of rent and interest 
thereon. 

Held that a Razinama in a previous suit 
was a proof of contract between the par- 
ties by which rent was payable by the ap- 
pellant to the respoudont, that the breach 



Sup: Govt, acts (IX of 1872) (Contd) 

of the contract rendered the appellant li- 
able to pay interest as damages for such 
breach, and even, under S. 12 Oudh Rent 
.Act, the a,ppellant was liable to pay rent 
one month before the date fixed for the 
payment of the revenue. He was therefore 
liable to pay interest also. GANESH BAKSlt 
SINGH V. HARI HAR BAKSH SINGH. 

3 C 22 

284- S- 73.- Under proprietors— Rcim- 
biirscinnit. 

Held that whoa an under proprietor is 
compelled to pay arrear.s of rent payable 
by his co-sharers (other undcn' proprietor) 
hu is entitled to the amount of rent paid 
by him and also to interest by way of 
damages u ider S. 73 Contract Act on the 
amount paid from the date of payment. 
LALRAM KINKAR SINGH v. FATEH B.V 
HADUR SINGH. 6- 0- C- 846- 

285 S- 73— Breach of contract — Assessment 

of damages. 

There is nothing in Contract Act which re- 
quires a person who cancels an agreement 
fur service to accept those services as original- 
ly agreed to. The principle on which dama- 
ges for breach of contract are assessed is laid 
down in S. 73 and its explanation shows that 
the means which existed for remedyin,: the 
iiicunvenieuee caused should be takon iuto 
consideration. B. DEY v. L. J. JOHN. 1. 

L B R. 1900 02 P 21- 

286 S- 7\—Explanaticn, effect of— Simple 
mortgage, personal liabiliti/ under exists unless 
i^pecial contract to the contrary — .ibsence of spe- 
cific prayer in plaint no ground for refusing 
appropriate relief — Delay no abandonment of 
right. 

In the case of simple mortgages the perso- 
nal liability of the m