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 FLf
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Digitized by Google
 VOLUME V.
'~--- -...,

REPORTS OF CASES
. --,---
DECIDED IN THE
~ u, J;. c..~

HIGH COURT OF (, BOMBAY.

1868-89.
. -· ..... - ., .... , .......

EDITED BY

CHARLES F. FARRAN, B.A.,

(OF THE MIDDLE TEMPLE)

BARRISTER A'£ LAW.

-"""":-~.:.r~-~-
.. ... .. 0 ; ~
"'.. , . . . . ..

ltombnJi:
PRINTED AT THE

EDUCATION SOCIETY'S PRESS, BYCULLA.

1869.

D1g1tized by Google
 : :..: : .
.. .: : : .. :

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 '"i( . ~'- .r-1uST o·~-._.-.·
NAMES OF REPORTERS.

~rigimd Qtibil iuris~idion.

CHARLES F. FARRAN, B.A., BARRISTER AT LAW,

1ppdlatc Qtibil Jurishidion.

KHANDERA'V
. CHIMANRA'V
. BEDA'RKAR, B.A., LL.B,

GIRDHARLA'L DAYA'LDA'S KOTHA'RE, B.A., LL.B.

KHARSHEDJI RASTAMJI THA'NA'VA'LA'.

irohm Qtasts.
KHAN~ERA'V CHIMA~RA'V BEDA'RKAR, B.A., LL.B.

GIRDHARLA'L DAYA'LDA'S KOTHA;RE, B.A., LL.B.

KHARSHEDJI RASTAMJI THA'NA'VA'LA'.

1971.81.

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Digitized by Google
 'l'ABL :~:
OF

CASES REPORTED
IN THIS VOLUME.

Page Page
.\brahim Alli"· Natha Jallam. A,C,.J, 74 Bhujangrav bin Davalatrav Ghor-
Abiloji valad Khauq.oji v. Dongar paq.e et al. "· Malojirav bin
Harichand Gujar· ............ A.c •.J, 176 Daulatrav Ghorpaq.e ...... A,C,.J. 161
Ahmedbhai Habibhai "· Premchand Bhulabhai Gullabhai et al."· Modji
Desalji et al ........... ........ A.C,.J, 48
Raichand et al . .... ; .......... o.c ..J. 83
Amritrav bin Yeshvantrav Desh- Chotalal AmritllH "· Bombay, Ba-
mukh "· Anyaba bin Abaji Desh- roda, and Central fodia Railway
mukh ........................ A.c •.J. 50 Company ..................... A.C,.J, 101
Asia, The, 'l'he Proceeds of. o.c ..J. 64 Chu1,1ilal Maniklalbbai. "· Mahipat-
Atmaram Kaliandas "· Fatma Be- rav valad Khanq.u ......... A.C •.J, 33
gam ........... ................ A,C,.J, 67Collector of Khega. "· Hari11hankar
Babashet bin Govindshet "· Jirshet Tikam et al ............... .... A.c •.J. 23
bin Yessbet et al ........... .. A.C,J. 71 Dadabhai Narsi "· Salleman Dassu.
A.C •.J, 126
Bai Gangav. Dullabh Parag. A•C.J. 179
Bai Kheq.h, Dasu Sale etal. A.C.J, 123 Dadu valad Ansar Saheb v. Bal-
A,C . .J, 209 gouq.abin Shankarappa ... A.C,.J. 39
Bai Premkuvar "· Bhika Kallianji. Desai Kalyanraya Hukamatraya v,
A,C,.J, 158 The Government of Bombay.
Baji DeY "· Sadasbiv Bhaishankar. A,C,.J,
Balaji Narji "· Babu Devli. A,C •.J. 159 Dipsangji Jitsangji "· Fattesangji
Bank of Hindustan, China, and Jasvatsangji .................. A.C,.J, 59
Japan (Limited),"· Premchand Gai;iesh Sadasbiv, In re ......A.C •.J. 117
Raichand et al. . ........... o.c ..1. 83 Gangadhar Raghunatb v. Chimi;iaji
Bapurav Krishi;ia v. Madhavrav Kesbav Damle ............... A.C •.J. 95
Ramrav et al . ............... A.C •.J, 214 Gai;ipat Moroba et al. v. Laksbmi-
Beattie et al. v. Jetha Dungarsi. bai. ............................. o.c ..1. 128
o.c ..1, 152 Gai;ipatrav bin Ramji v. Manuu bin
Bhima valad Krishi;iappa et al. "· Mohanji ..................... A.C •.J. 150
Ningappa bin Shidappa Tuse. Gopal Jayacband v. Hargovind
A,C,.J, 75 Khushal et al• .............. .A.C,.J, 83

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VI INDEX

PngP. Page
Government of Bombay v. Damo- Makhan Naikir.1 r. Manchand
dhar Parmanandas et al. . .. A.C.J. 202 Ladhubhai et al . ........ .. .. A.C.J. 107
Go,·ind R11mcl1andra Gok hie v. Makunda valad Balacharya "·
Shek Ahmed et al• ....... . . A.c.J . 133 Sitaram and Nilo .. ....... A·C·J. I 02
Hari Dhangar et al. v. Biru Dasru Mancharji Ilirji Readymoncy, In
et al.. ..... ..... ...... ........ .. A.C.J. 135 ,·e ....... ... ................. o.c.J. 55
Hari Sadashiv Dfkshit v. Biipu ! Manc~a;sh:i Ashp:mdiurji "· Kam-
Balvant .. ... ......... ........ .. A. C.J. 7S I rumsa Begam . .... ... . , .... A.c.J. 109
Hari Vasudev v. Mahadaji Ap- 11\Ial}ikji Shapurji Kakii, 111 re o.c ..1. fil
paji .. .. ··-·· ... .. . . .... . .. .. . A. C ..J, I
85 .Mai:iishanknr Hnrgovan "· Trikam
Has-am Kasam et al. v. Goma j Narsi et al . .................. A.C,J. 42
Jadavji et al. ............... O.C.J. 140 Mathur1ida~ Go,·ardhandas "· Fatma
Jafor Ali Nizam Ali v. Ahmed Ulka Begam ...... . .. .. .... A,C.J. 63
Ali Imam Haidarbaksh ... A•C.J. 3 i J\lehemfoji Manchnrji r. Punja
Jagannath Vithal v. Apaji Vish- Yelji ...... . . .. . .. .... .... .. ... . o .c.J. 147
i:iu . ... . ... .. ... .... ......... . A C . .J, 217 Moro B.ilkrishi:ia l\Iule "· Shek Sahcb
I nlad Badruddin K111nhle .. . A. c.J. 199
.Tanardhan Pan<lurang v. Gop.H
Pangurang et al . ... . ... . .. . A.C·J.
Jitmal valad Bahirnvdas v. Ram-
chandra mind Jagrup et al .
,i
I 4 c / ;\Ioro Vi( lial r. Tuknram mind Mai-
ha,ji ,, .,. . ........ ......... ,.c.,.
8'.~~'.1!i.. ~·...~i.~~~'.~'.~~ A.:'.:~
92

• A.C.J. 9_ . ~l:~an! 81

Ka.nu KhancJu v. Krishl}a Bhulaji

' I '.\luhammad Silemau ,·nlnd Muham-
Shet .... . ...... ... ...... ....... A.c.J: 1471 ;.~~.~~.l~~.~~.~~i.~:.~.~tu.~~l.adA~~:: 90
Kashinath Balal Ok, Ex purte.
A.C.J. 84 I:\luichand
I
,
J1:\hasM v. Kika Yardh-
van . ....... . ... . . .. .... .. .... . A.c.J. iU
Khangu ;\loreshvar v. Shivji bin Nagappa bin Hulgappa, Ex parte.
Gorkoji ...... . .... ... .. ... . . A.c.J. 212 A.C . J. 21 5
Kharshe(Jji Nasarva11ji Cama et Xandram Sundarji Nuik " · Balaji
al "· The Secl'etary of State Vithal et al .. . ... .. . .. . . .... . . A.C.J. 153
in Council oflndia ....... . . o .c.J. 9i Narayai:i bin Babaji et al. v. Ganga-
Kisandram valad Hirachand v. ram bin Krishi:iaji .. .. ... . .... A:C .J. 157
Jethiram valad Magniram. Naray11i:i Krishr.1a Lnud i•. Gerard
A.C.J. 57 Norman, Collector of Bombay
Lakhmidas Hanzraj, In re. o.c.J. 63 o.c ..1.
Lakshmibai i,. Gai:ipat l\foroba Narbheram Kisandas et al. v. Nav-
et al . .. .. ··· · ·· · ····· . ..... . . o. c.J. 128 nidram Kashiram. ······ .... . A. C.J. 46
Lalchand Ambaidas v. Sakharam Narsinvacharya et al. v. Svami
· valad Chandrahhai et al . ... A.c.J. 139 Rayacharya .. .. . .. . ........ . . .A.C.J. 55
Liquidators of the Indian Penin- Nathubhai Panachand v. Mulchand
sula, London, and Chiml Bank Hirachand et al . ......... . . . A.C,J. 196
(Limited), v. J. L . Scott ....o.c.J. 167 N~thu Sadashiv v. Ramchandra
Lopes v. Lopes . ......... ... .... .o.c.J. 172 Ai:i~ji.. ...... ...... ... ....... A,C,J. 76

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 INDEX vu
Page Page
Navroji_Pestanji v. Mansukh Jay11- Reg. "· Gopal Lakshuma1! and Ga!].-
chand ........................ A,C,J. 70 · pat Babaji ............... , .. CR,CA, 25
Payappa bin Sheshappa ~adni v. Reg, v. Govinda bin Babaji. CR.CA. 15
Dhonq.o Narayal). Damle ... A.C•J, 26 Reg. V, Jagannathbhat bin Appa-
Peninsular and Oriental Steam Navi- bhat ........................... CR,CA, 10:l
gation Company v. Somaji Vish- Reg. v. Joao 'l'homesit et al. CR.CA, 22
ram ........................... o.c.J. 113 Reg. v. Kabhai. Ravabhai et al.
Peninsular and Oriental Steam Na- CR.CA. 40
vigation Company v. The Secre- Reg. V• Kalidas Keva} ...... CR-CA. 10.
tary of State .................. APPX. Reg, v. KaJ.ya:,bin1,Fakfr... CR.CA. 34
R. S. W11ig1mk11r v. B. B. WalJ.ekar. Reg. "· Karsanlal Danatram, CR.CA. 20
A,C•J, 194 Reg, v, Kasamji valad Himinji
Ragho Bagaji 11. Anaji Manuji Pa- Mhaskar ..................... CR.CA, 6
til .............................. A.C,J, 116 Reg. v. Kasya bin Ravji et al. CR.CA· 35
Raicband l\langal "· Abdulla Am· Reg. v. Keru bin Ramshet et al.
ruddin Kotval.. ............. A,C,J. 99 CR,CA. 100
Rnkbmabui v. Radhahui ...... A,C,J, 181 Reg."· Khang.oji bin Tanaji. CR.CA. 21
Ramkrishl,lR Mahadev v. Bayuji bin Reg. v. Krish:i;ia Parashram, CR.CA. 69
' Santaji et al• ............... A,C,J. 35 Reg. "· Krish!].ashet bin Naraya1,1-
Reg. v. Ilai Divali ............ CR,CA. 48
Reg. v. Bechar Khush~ ...... CR.CA, 43 lwg. "· Lallubhai Jassubhai. CR,CA. 64
.
shet ........................... CR,CA. 46

Reg. 11. Bhagtidas Bhag,·andas. Reg."· Lallu Karwar ...... CR,CA, 63

CR.CA. 51 Reg. V, Mahipya valad Bomya
Reg. v. Bhagu bin Shabuji ... CR,CA. 4i Mahar ........................ CR•CA. 99
Reg, v. Bhavanishankar Haribhai Reg. V, Manobar Ruiji ...... CR.CA. 17
et al . ........................ CR.CA. 55 Reg. V, Mavji Dayal.. ....... CR CA. 10
Reg. v. Chanveraya bin Chanba- Reg. "· l\fuliya Nana et al. CR.CA, 24
saya ........................... CR,Ci\. 65 Reg. v. Murar Trikam ...... CR-CA, 3
Reg. V, Chenappa valad Nagappa. Reg. "· Naruinappa Comte. CR-CA. 39
CR·CA. 44 Reg. v. Narayiu). Sundar... CR,CA. 1
Reg. V• Dalpatram Pcm:ibhai- CR.CA. 105 Reg. v. Naro Gopal ......... CR.C.-1., .56
Reg. "· Damodhar Ramchandra Reg. V, Natha Lalla ......... CR.CA, 67
Kulkan;ii ..................... CR.CA. 68 Reg. v. Pam;lurang Mayra) et al.
Reg. "· Dhania Daji ......... CR.CA. 59 CR.CA, 4l
Reg. v. Dhon<Ju Ramchandra. CR.CA. 100 Reg. "· Purshotam Valji... CR.CA. 33
Reg. v. Fattechand Vastnchand et Reg. V, Ramji valad Daji. .. CR,CA. 12
al. . ............. .. ........... CR.CA. 85 Reg, v. Ramlo Jcrio ......... CR-CA, 27
Reg. v. Ganga kom Mhasu. CR.CA. 13 Reg v. Ravlojirav bin Hanmantrav,
Reg. v. Ga:i;ioji bin Pang.ji ... CR.CA. 49 CR.C.A, 7
Reg. v. Ganu bin Tatia Selar. Reg. v. Sadashivappa · Pan9nrang-
CR.CA, 38 appa ........................ CR. CA. 29
Reg. v. Genn bin Akn ...... cacA. 3H Reg. v. ~ajjan ralacl Vithu. cR. CA. 101
v-b

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viii INDEX.

Page Page
Reg. 11. Sakya valad Kavji et al. Shek Abas v111Ad Sbek Daud 11. !bra-
CR, CA• 36 bimji val11d Hasanji. .....••. A.c •.1. 118
Reg. 11. Santa bin Lakhappa Kore. Shivab:inkar Govindram 11. The Jus-
CR. CA, 45 tices of the Peace for the City of
Reg. 11. Shek Ali valad Fakfr Mu- Bombay ..... ................ o.CJ. 145
hammad ....... .............. CR, cA. 9 Temulji Rustamji "· Fardunji Ka-
Reg. t,. Surkya valad Dhaku. ea. CA. 31 vaaji et al ............ .. ....... .A.C .J. 137
Reg. 11. Thaku bin Ira ...... ea. CA. 81 Timmappa Bhat et al. "· Parmeshri-
Reg."· 1'unga Tuka ......... CR. CA. 14 amma et al .................. 4.C.J• 103
Reg."· Umtha Rugnath ... CR, CA . 8 Umedchand Hukamchand et al. 11•
Reg. v. Vithal LakshumaI].. CR, CA. 13 Sha Bulakidas Lalchand et al.
Reg. V• Vitboba bin Soma ... CR. CA. 61 o.c.J. 16
Reg. v. Vithu bin Mallu ... CR. CA. 36 Valla bin Hataji 11. Sidoji bin
Reg, "· Yessappa bin Ningappa.
Kon<Jii.ji ........................ A,C.J. 87
CR, CA. 41
Vasudev Vish!].U et al. "· Nii.ray&!].
Sadashiv Moresh var v. Hanso bin Jagannath Dfksbit ......... A.c.J. 129
Shravan .....................A.C.J'. 156
Samsuddin Sultan et al. v. Ramji Vithaldas Narotamdas "· Karsandus
Bhika et al . .................. A•C,J. 151 Keshavdas et al• ............ o.c.J. iG
Secretary of State in Council of Vithoba bin Keshavshet "· Shabiiji-
India v. The Bombay Landing rav and Anandrav ............ A•C.J. 122
and Shipping Company (Limited). Vithu et al., heirs of Bapu Kamble,
o.c.J. 23 "· NarayaJ.1 Dabhulkar ... A.C.J. ·30
Shanirav PangUl'ang "· Trustees of Vyasrav Balaji 11. Snbhaji Narii.yar.i
Bhagvandas Purshotamdas. o.c,J. 163 et al......................... A..c.J. 173

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 A TABLE
OF THE

NUMBERS AND DESCRIPTION OF CASES

REPORTED
IN THIS VOLUME.

Page Page
J,-0RIGINAL SUITS (4). Miscellaneous Regular Appeal No. 2
~o. l ll of 1865 ..... .......... o.c.J. 172 ofl868 ........................ A,C.J. 102
,, 461 of1867 ....•.......... o.c.J. 152 v.-SPECIAL APPEALS (40).
,, 1146 ,, ........ .. ... .. o.c.J. 76 No. 219 of 1866 . .............. A·.c,.1. 30
Admiralty Suit ................. .o.C,J• 64 ,, 443 ,, ............... A,C.J. 42
11,-APPEAI..S FROM ORIGINAL JURIS•
,, 485 ,, .•........ ...... A.C.J. 26
DICTION (8).
,, 150 Of 1867 .... ...... . .... A•C•J• 173
No. 115 (Original Suit No. 631 of ,, 448 ,, .. ... .......... A.c.s. 107
1867) .. ... .......... o.c.1. 23 ,, 505 ,, ............... A.c. s. 176
,, 117 ( ,, ,, 796 ,, o .c.J. 16 ,, 523 ,, ............... A.c.s. 48
,. 122 ( ,, ,, 720 ,, O,C.J. 113 ,t 622. ,, ••.••••••.•.••• A.C,J. 159
,, 125 and 126 ( ,, ,, 1507 of
,, 650 ,, •••.• •••••••••• A.C •.J. 217
693 ,, ............... A,C,J. 50
1866) .......... . ....... o.c.J.
,, 137 and 138 ( ,, ,, 383 of
128
,," 699 ,, . .. . ........... A.C ..J, 39
1867) ....•.. ........... 0,C.J. 83
,, 727 ,, ••••• •••••••••. A.C.J, 71
,. 141 ( ,, 547 of1865)
,, 752 ,, ••••••••••••••• A.C •.J. 139
o.c.J. 97
,, 761 ,,•..•••• • ••••••• A.C •.J. 123
,, 17 of 1868 ............... A.C.J. 81
., 146........... ............. o.c.J. 163
,, 21 ,, •••.•.••••••..• A.C,J. 23
,, 150 ........................ o.c.J. 167
,, 38 ,, ............... A.C ..J, 57
III.-APPEALS FROM INSOLVENT ,, 43 ,, ................ A,C.J. 75
COURT (3). ,, 70 ,, •·••••••••••.••• A.C,.J, 78
Jim. 31, 1868 .. .. ...... ........ o.c.s. 55 ,, 78 ··············· A.C •.J, 76
,, ,, · ,, ••••••• ••• ••••.•• O.C.J. 63 ,, 79 ",,•• . •••.•.••..•• A,C.l. 109
Feb. 3 ,, •............••... o.c.1. 61 90 ,, ............... A.C•.J. 85
IV.-REGULAR APPEALS (5). " 213 ,, •••••••• •••.••• A.C.J. 55
No. 15 of 1867 ... .. ........ .. A.C.J. 161 " 228 ••••• •• •••• •••• A.C.J, 137
,, 16 ,, . ...... ... . ..•• A,C•J• 1 ,," 259 ",, ............... A•C.J, 196
,, 17 ,, ....•...•...... A.C.J. J.81 267 ,, ••••••••.•••••• A.C .J. 126
,, 8, ,, . ... ... •.. . ... . 202
",, 293 A.C,.J. 135
" ···············
A.C.J.

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X APPENDIX,

Page Page
No. 304 of 1868 .. ..... . ... .... A, C,J, 118 Aug. 131868 117
• . .••... .• •..•. A.C.J.
,, 305 ,, .... ... .. . ..... A.C J, 133 ,, 24 ,, 122
..... .. ....... . A ,C.J.
., 309 ,, ........... ... . A.C.I, 153 Sept. 3 ,, • • : ...... .. . ... A.C.J, 129
311 ,, ............... A,C,J • 130 ,, ,, ,, ............... A,C,I, 214
" 332 ....... ........ A.C.J, li9
•• Nov. 12 ,, ............... A.C.J . 21!i
,, 353 ,," ···· ··········· A.C•J, 147 VIII.- CRIMINAL APPEALS (7).
,, 376 ............... A,C •J. 199 February 22, 1868 ............ CR. CA • Ii
3!il4
" 386 " ....... ··············· A.C.J, 157 June ~5 ,. ......... . .CR.CA. 49
•• ........ A,C,J, 151 July I ., ............ CR,CA • 51
,," 398 ,, ····· ·· ··· ····· A,C ,J, 145
399 .............. . A,C.J. 116 ,, "
,, 22
..
.. . .... .. ...CR,CA,
,, ......... . .. CR,CA. 56
55

,," 422 " ............... A,C,J. 194 ,, 23 ,, ....•..•.... CR.CA. 59

438 ,," ············· ·· A,C.J, 209 September 2 ,, ............ CR.CA, 85
"
VI.-RF.FERRED CIVIL CASES (23).
IX.-REFERREDCRU( INALCABF.S {39).
October 1861.. ........ ........ AI'PX. l January 16, 1868 .... ....... .CR.CA. 1
January 14, 1868 .... ..... ... A.c . J. · 33 ., 20 ., . .... ..... . ....ca.cA. 3
,, 28 ,, ... .. ...... . A,C,J . 35 ,, 30 ,. . . . ............ CR.CA. 7
,, 29 ,, . . ..... . .... A,C,J. 37 Febru11ry 4 ., ... .... . ....... CR.CA, fl
February~6 ,,
..
. . .......... A,C,J, iO
.. 1, . . . . . . . . . . . . . . . CR.CA 9
" ,, . .. .... . . . .. A,C,J, 70 .. ..6" ,, . .... . .........CR . CA• 10
,,
March I 0
28
,,
.... .... .. . . o.c.J.
........... . A. C .J, i4
.. 12
,, •.• . , ........ .. CR.CA,
., . . . ........ .. . . CR•CA,
12
13
"
June l l
",,
. . ... . . ... . . A,C.J.83 .. 13 ,,' .... ... ... . .. . . CR.CA. 15
" 22 "
............ A .C.J,
............ A,C.J,
84
87
..
~larch
22 " . .. . . ... . ...... CR,CA, 20
21
.. ..19
" " ... . ........ A,C,J, 90 10 ,, ............... CR.CA,
July l ., ..... . .... . ...CR.CA. 25
",, .... . .. . .... A.C.J. 92
",, 14
,,
,, . .. ..... . ...... . . . A.C.J, 97
..
April 2
,,: . . . . ........ . .. CR.C,\,
,. ....... . ....... CR,CA •
31
38
,, ,, .. ..... ........ . .. A. C .J. 99 ,, 15
" .............. . ... A.C .J. 101
., . . ......... . ... CR.CA. 33
,, " " May 20 ,, ••• , . ... ... . .. C R.CA. 35
,, 17 ,, .. ..... .... : .. .. .. o.c.J, 140 ,, .. ..... .. ...... CR.CA, 36
,, ' " ,, .......... . ... . .. . O.C.J. 145 " " ,, . . ..... . ...... . CR.CA. 39
Sept. 1
"
........ . ......... O.C.J. 14i
..
" " ., ........... .. .. CR.CA. 40
,,
Oct.
30
7
"
• • ••• •• • .- •..• •••• A.C.J. 150
. ...... . .......... A. C,J. 156
,,"..
June 10
,, . • •.•. ..•.• .... CR. CA• 41
41
" " ...... .... ..... CR.CA.
,, 8 ., . .... ..... . .. , .... A,C .J . 158 11 ,, . . ............ CR.CA, 43
Dec. 8 ,, . .... .. ... . ....... A,C,J. 212 "
17 ., .• . .•••• . • •• ... CR. CA• 46
Vll,-CIVIL PETITIONS (10). " ., , , •• , •••••.••. CR. CA. 47
tJ "
March 26, 1868 ............... A.C.J, 46 ., 18 ,. . .. . ...........CR.CA. 48
April 8 ,, ........ .. ..... A,C.J. 59 July 30 ,, . ... . ... . .. ... . CR.CA, 61
" ,, 63 ,, " 63
..
.. ............. A.C.J. ,, • ••••• , ...... , .CR.CA,
,, 22
·"
... ... ....... .. A,C,J, 6i " ,, ,. . • . • •...• • •.• . . CR. CA• 65
July 2 . . .. .. .... .. .. . A.C,J. 95 Aug. 6 ,, ...... .. . .. . ... CR,CA. 6i
"

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 APPENDIX. XI

Page Pait!
Aug. 13 1868 ...............CR,CA, 68 28 .. .......... CR.CA. 6
,, 26 ............... ea.CA. 69 "
February 13
",, • ........... CR.CA. 13
Sept. 10
16
"
"
............... CR.CA,
.............. CR.CA,
81
83 " 10
March
" .. ............ CR.CA,
............ CR.CA,
14
22
" 24 ",, ............... CR,CA, 99 ",, ............ CR,CA, 24
"
Nov. 13 ,, ...............CR.CA, 100 " 11 " ,, ............ CR.CA, 29
19 ,, ............... CR.CA, IGO "
April 15 ............ CR.CA, 34
Dec." 3 , ................ CR.CA, 103 May 20 ",, ............ CR,CA, 36
17 ,, ......... ... CR.CA, 104 June 17 ............ CR.CA, 44
",, ,, ............... CR,CA, 105 " ............ CR.CA, 45
" "
" 30
July
",, ............ CR,CA, 64
X ..:....CRIMINAL REVIEWS (12).
January 14, 1868 •••••.••..•• CR,CA, 27

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 E R RA T A, CORR I GE ND A, E T ADDE ND A.

Page
18 0,C,.J. Line at top of page,for " Sec. 9" read CI. 9.
29 ,, Line ·25 from top of page, for "us is" read " suits."
,, ,, Line 22 from top of page, for " s. 42" read " c. 42."
55 ,, LinP. 4 from top of page, for "appellants" read•• appellant."
69 ,, Add footnote " (lt), Fulton R. 130."
80 Line 5 from top of page,for" Gregson's" read" Gressons."
Bi ",, Lioe 10 from top of page,for" Ronald v. Edwards" re!ld
"Edwards v. Ronald.
131 ,, Line 2 from bottom of page, after " Strange" insert
"Manual.''
132 Line 14 from bottom of page,/or "property" read "family."
133 ." Line 14 from bottom of paii:e,for" 2 Strange H. L. 204"
read " 1 Strange H. L. 248.
135 . In line 3 ofNote,for" and Newton, J., followed the ruling
in the above case (S. A. No. 293}" read" and Gibbs, J.,
applied, hut under different circu1Mtancea, the rule as
to ancient documents laid down in the above case, (S. A.
No. 293 of 1868)."
138 ,, In footnote (a} before" Rep." inaert" Law."
153 Line 6 from top of page, for " Lord" read "Lady.''
"
54 A.C,.J. Line 15 from top of page, for "directly" read" indirectly."
83 ,, In heading of case for " reerred " read" referred."
96 To footnote (6) add" 2nd ed. 328.''
97 " In catchwords of case, for " Power at set aside " read
" " Power to set aside."
120 Line 15 from top of page, before "the court" inaert "the
Judge of.''
129 ,, Line 3 from top of page,: after '' what would be " inaert
" the result."
141 ,, In last line 1 after "following" insert "the."
149 ,, Line I O from top of page, for " Babjai., read "Babaji."
158 Line 21 from top of page, insert " or " at beginning of line.
li9
192
.
" Line 4 of headnote,/or "here" 1'ead "there."
At end of Line 20 from top of page, dele "; " and inse1't
" ·'' p.,,

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XlV ERRATA, COTCRIOENDA, ET ~DDEND,\.

Page
202 ,, In first line of he11<lnote, /or " .Majumdari '' read " Ahjmn-
dari," and similarly correct "majumdari" throughout
cue.
207 At end of last line o{ page, i,uert "not."
7
"
CR, CA. Line 2 of c11tchwords of case, /<>I' "Act VII. of 1854 " reacl
"Act XVII. of 1854."
27
61
.. Line 10 from top of pagP, after "thought" dele "that."
Line 20 from top of page, for " qe " read " be."
"

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 CASES
DECIDED tN THE

ORIGINAL CIVIL JURISDICTION

OI,' THE

HIGH COURT OF BOMBAY·

~

Rf'ferred Case.
1868.
NA'RA 1YAN KRISHNA LAUD v. GERARD NORMAN, Feb. 28.
Collector of Bombay.
Jurisdiction-Small Cause Court-Revenue-Collector-Act IX. of 1850,
Sec. 25-Reg. XIX. of 1827, Sec. 2-Act VII. of 1836, Sec. l.
The Collector of Bombay, bona jide believing that certain land upon
which a quarry had been opened by the plaintiff was Government waste
land, by his servants forcibly stopped the quarrying operations of the
plaintiff, " for the purpose" ( the Collector stated in his evidence) " of
preserving the land for Government, as land from which revenue might
in future be collected."
In an action of trespass brougb t against him by the plaintiff, it was held
that this act of the Collector was not " a matter concerning revenue"
within the meaning of Sec. 25 of Act IX. of 1850, and that the jurisdiction
of the Small Cause Court \\'US, therefore, not excluded.
Held also, upon the facts stated in the case, that the possession of the
plaintiff of the land in question was sufficient to entitle him to maintain
nn action of trespass against the Collector.
The Revenue Court, under Sec. 2 of Reg. XIX. ofl82i, has not exclu-
si,·e jurisdiction over the Collector of Domlmy for all nets done by him
in his official capacity.
Semble, Sec. l of Act VII. of 1836 (a) was retrospective only in its
operation, and is now obsolete.

CASEto thestatedprovisions
for the opinion of the High Court, pnrsuant
of Sec. 55 of Act IX. of 1850, and
Sec. 7 of Act XXVI. of 1864, hy John O'Leary, Acting
First Judge of the Bombay Court of Small Causes :-
" This was a summons for Rs. 101, damages sustained by
t,110plaintiff by reason of the defendant having wrongfully
(") Since repenle,l by Art YIU. ofl868.-Eo.

Y.-1 0 C

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 2 noMDAY lITGH CO'C'.RT REPORTS.

1868 i;topped certain 1,lnstiug operations carried on by tl1C' plnintiff

NA'RA'ffi un the buds r•f the plaintiff, within tho Mahim District, and
x. L.U:D
1•. for the defendant having wrongfully takl'n posses!'!iou of
NoRlUN,
certain tools and implements belonging to the plaintiff.
"The case came on for hearing before me ou the 4th of
February 1867.
" The Govanrne11t Solicitor, for the defenclant, objectecl that
this court had no jurisdiction to try the case.
"~n support of this objection ho cited Rt>g. XIX. of 1827;
.Act VII. of 1836, Ch. 1., Sec. 1 ; ancl Act IX. of 1850,
Sec. 25.
Mr. Mal'l'iotf, for the plniutiff, contended that this wns not
a matter of revenue, and that the court had jurisdiction.
" I was of opinion that, if it ,verc ncccssnry to sue tlio
CoJlector of Bombay in his capacity of Collector, the mnttl'r
prima fncie concerned revenne, and that the court had no
jurisdiction.
"I offered to amend the summons by striking out tlw
words' Collector of Bombay' from the designation of th<>
defendant, and to pr'->ceed to hear the defence, sons to as.
certain the nature of the acts complained of. Mr. Marriott
stated that, as I had expressed an opinion that I had no ju-
risdiction to try the validity of any net done by the Collector
in his official capacity, he wouhl not ar;k for the amendment,
if I would state a case for the opinion of the High Court.
" I agreed to do so, and subject to the opiuion of the
High Court on the following question :-Has the Court of
Small Causes of Bombay jurisdiction to try any nction
brought against the Collector of Bombay for auy actH done
by him in his official capacity as such Collector? I dis-
missed the case for want of jurisdiction. Shonlcl the High
Court be of opinion that I was wrong in so doing, the case
ought to be restored to the file, and heard in Jue course."
The case came on for hearing before ARNOULD and
WESTROPP, JJ., on the 7th of March ] 867.

Marnott for t,h e plaintiff.

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 ORIGINAL CIVIL JURISDICTION, 8

The ~'l!hsowtc General (llw Hono1·ablc L. H. Bayley) and __1_86_8_

._
NA RA YAN 1 1

Gl'een for the defendant. K. LAi.:n

t•.
The Court, being of opinion that the proposition contended NORMAN.

for by the defendant could not be established in so wide and

general a form, ordered the cause to be restored to the file
of the Small Cause Court, and the same to be heard in due
course.
'fhe cause was accordingly restored to the file, and heard
upon the merit:;, when a case was submitted for the opinion
of the High Court by the same Acting First Judge.
CASE. " 'l'he plaintiff alleges that he is the owner of certain
land .situate at Dharavi, in the Mahim District of Bombay.
" The defendant at the time of the alleged trespass was
Acting Collector of Bombay.
"The defendant pleaded-
I. 'fhat the defendant did the act complained of in his
official capacity of Collector of Bombay, and is not by
law answerable to thejurisdiction of this court.
II. That the alleged cause of action is a matter con-
cerning 1'evenue, and under .A.et IX. of 1850 the Court
of Small Causes hr~s no jurisdiction in the case.
III. 'l'hat the acts complained of ·were done by the
defendant as a judicial officer acting :in. the execu-
tion of his office.
IV. 'l'hat the acts complained of were done by the de-
fendant under a bona fidc belief that in so doing he
was acting in a matter concerning the revenue, or as
a judicial officer in the execution of his office.
V. That the land in question was not at the time &c.
the land of the plaintiff.
"The defendant admitted that he did, by his servants,
enter on the land and forcibly stop the blasting operations .
being carried on by the plaintiff.
'' On the evidence adduced before me, I find that there is
a certain piece of land, of no great value, situate at Dharavi,
which has never paid land-tax or quit-rent to Government,

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 4 DOMBAr HWH COCRT Ul-:l'OUTr:.

68:_._
~~1_8__ and which has never been nsse,,.,cd fur la111l-t:1x ur <1nit-1·c11L
NA'BA 1TA:(
K . L.u:n payable to Government, an<l upon which !-01110 thirty ur forty
r. years ago there stood certniu buil<ling,i used 11s t•il-milb.
NoRll.\N,

"These mills appear tv havo hct•n the p1·op1.·rty of a Cl'l'·

tain Captain Mignon, who, it wus i,;tatc<l iu the cuur:,.<.• uf
the trial, but not proved, helil some office u111ll'l' lroVl'l'll•
mcut at that timl',
"In 1806 Captain )iignon left Bomhay, nnil from him, in
some way not cle.arly or at nll pruvc1l lJL"forc lllL', thi,; pil'l'C of
laud, with certain mills thereon, passed into the possci;siuu
of one 'rhomas Cooke.
Letters of administrntion of the goods of Thomas Cooh,
who was a British subject born in Euglitnd, were, on the 2ith
of January 18-t7, grantc<l to one :F. lL Lausanne, and on the
1st of April 18-J,7 the said Lausanne leased the land in ques-
tion to the plaintiff for ten years, and on the 2uth of July
1850 the said Lausanne Bold tho said land:1 absolutely to the
plaintiff.
"The mills were, under somo arrangement between the
plaintiff and Lausanne, taken down about the,datc of the sale,
and since that time there have been no permanent building8
on the land.
"In 1850 the plaintiff made application to the then Col-
lector of Bombay, i,;tating that the land was standing in the
Collector's books in the name of Cooke, an<l applying to
have it transferred to the name of the plaintiff.
"The plaintiff further had a. ba{t(1ki beaten at this time;
but no such transfer was ever made in the Collector's books.

"I find that in the year 1859 or 1860 the plaintiff lived
on the land in question for a period of three or four days
during the Mahim fair, and in the early part of 1866 ho
again put up tents and lived there for three or four months,
and that, during the latter period, the Government Surveyor
of the Mahim District was aware of his living there, and did
not prevent him. With these exceptions, I find that since
the mills were taken down, in 1850, the land has not been·

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 ORIGINAL CIVIL JURISDICTION, 5

used by the plaintiff, by Government, or by any person for -=,....1,....86~8_._

NA'RA'YAN
any permanent purpose. K. LAun
v.
"In the latter part of the year 1866 the plaintiff corn- NoHAN.

menced blasting or ~1uarrying operations on the land, having

previously obtained the usual license from the Commissioner
of Police.
" In SeptemlJer 1866 a clerk iu the office of the Collector
of Bombay verbally reported to the Collector that quarrying
operations were being carried on on this land.
"Acting on this report, and, to use the words of the Act,ing
Collector, having satisfied himself that the land was the pl'O-
perty of Governrnent,-but without. communicating with the
plaintiff,-the Acting Collector, on or before the 26th of
October 1867, gave orders to have the operations on the land,
then being carried on by tho plaintiff, stopped : his object
being, as he stated before me, and as I find on the evidence,
' to zJrese1·1;e the lctncl for Govemnient as land from which
i·eveniie may in future be collected.' ·
"On the 26th of October 1866 the defendant's servants; by
his order, went on the land and compelled the plaintiff's ser•
vants to cease the blasting, and removed certain tools then
being used by the plaintiff's servants.

"The plaintiff applied for the tools, and, the defendant re-
plied that the tools would be retumecl on application to the
receiver of land revenue at Ma.him.
" Thereupon the plaintiff instituted the present snit.
"Ou the evidence before me, it appeared that the ground
claimed by the plaintiff consists entirely of rocky ground,
unfit for any agricultural purpose ; that it could only be used
for quarrying or building on; that it contains about 9,034
square yards, and that its value is less than Rs. 1,000. It
also appears on evidence that, prior to the building of the
mills on the land, there stood upon a portion of it (not, how-
ever, the portion on which the defendant entered) what one
of the witnesses described as a Government barrack, and
which wouid appear to have been used as a Customs cltauld.

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 6 IIO)[HA y IIWH l'O[t:T ma'Ol!'l'S,

]868. "'I'he defendant in his exnmiuatiuu gnvc the followiug

-}1A 1R A ~
K. LAt:o evideuce, which, so for as it r,•laks to matkrs of fad, 1111d
v. not mutters ()flaw or opini())1, l li)l(l fls part of this e1se : -
NoRY.\N.

" Ho stated that his clntic11 as L'ollcctor nre to eollel't thl'

land revenue, and look aft<:-r all the Yat·unt gruurnl, the pro-
perty of Government, in the islnnd of Bombay. The latkr
right hai; always been excrci,·l'd 1,y his prcdt>cessur. All
vacant ground in Bombay belongs to Gun•1·11rut•ut. \Vlwn
the Collector finds persons in occupation uf luml which he
belien:s to be the property of (:o,·crnmcut, he gcucrally
sends for the persons so in ul'cupation, aml, if he satisfies
hi1m,l'l f that they have 110 title, <'jects them.
"In the present case he did not send for the plaiutiff, nor
had lw any interview with him, until after he was c:jected.
"A plan made in 1829, and used in the Collector's office,
was put in; but from that it <litl not satisfactorily appear that
in 1829 the land in question was Government laml..
"On this evidence the defond::mt required IIH', in cn .~e I
should find for the plaintiff, to stak a case for the opinion of
the High Court on the following questions : -
I. Whether or not tho guardianship, mnnngemcnt, and
preservation from encroachment, of the landed pro-
perty of the Crowu in the island of' Uumbay, vest<:-d
in the Collector of Bombay, arc a part of his duties and
functions.
II. Whether acts done by the Collector in the cxcreisc,
or bona ficle intended exercise, of such guardianship,
management, and preservation, arc acts dune l1y him
in his official capacity.
III. Whether or not the acts complained of in this
suit,-or some, and which, of them ,-having been done
or ordered to be done by the Collector in the bona
fitlc intention of preserving from encroachment the
landed property of the Crown in the Island of Bom-
bay, are matters concerning the revenue within Sec.
25 of Act IX. of 1850, so as to exclude the jurisdic-
tion of the Small Cause Court.

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 ORIGINAL CIVIL JURISDICTION, 7

lV. Whether or not the plaintiff in this suit hacl such ~-1_868_._
NA'RA.'YAN
possession of the piece of ground in question as en- K. L,1.uo
abled him to maintain thi8 suit in respect of the acts No;;IAN.
complained of, or any, and which, of them.
" Snhject to tho opinion of the High Court on any or all
of the above qnestiom:, I find for the plaintiff: damages
Rs. 101."
R·g. XIX. of 182i, C'h. J., Sec. 2 :-"The C'ollectorand his
Assi,:tnnts and Natiw Officers r<hall, with respect to acts done
by them in their official capacities, be amenable by Civil
prosecution, to the jurisdiction of the Revenue Judge here.
inaner constituted."
Act VII. of 1836, Sec. l :-" It is hereby enacted that the
legality of acts done and levies made under Regulations
III. and IV. of 1817, and VII. of 1818, and IV. of 1821,
and XIX., XX., and XXI. of 1827, and XV. of 1828, and
XX. of 1830, and II. and XIII. of 1831, and I. and X.
of 1833, of tho Bombay· Code, shall not be questioned in
a.ny court of law whatever."
Act IX. of 1850, Sec. 25 :-" All suits where tho debt or
damage claimed, or value of the property in dispute, is not
more than Rs. 500, may be brought in the Court of S11:all
Causes. **** Provided always that the Court shall not
have jurisdiction in any matter concerning the revenue
**** or concerning any act ordered or done by any
Judge or Judicial Officer in the execution of his office."
28th Feb. 'l.'he case was this day argued l)cfore CoucH,
C.J., and WESTROPP, J.
Pigat and "Alarriutt, for the plaintiff :-Act VII. of 1836,
Sec. 1, was rotrospective only. in its operation, and is now
obsolete. There seems to have been some irrC'gularity about
the passing of the Regulations noted in the Act, which was
accordingly passed to legalise acts, done and levies made under
these informal Regulations. This is evident from the fact
that some of these Itegulations hacl been repealed at the time
of the pasfiing of the Act. Then as to Reg. XIX. of 1827,
Sec. 2, it has alreacly heen decided, in the former stage of this

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 8 BOllBA \' HIGH ('Ol'RT rn:l'OJff,1.

~-1_868_._ suit, thnt the Revenne Conrt hns uot <'XC'lusivc jurisdiction
1;{t:.~" over the Collector for all acts <lone in his officiul enpneity.
v. The real question, howev<'r, is whether tho act of tlH' defcnd-
NoRX.\X.
ant is a matter concerning the revenue within tlie meaning
of Sec. 25 of tho Small Cause Cow·t Act. A similar pro,-iso
was contained in the Charter of the Supreme Court. 'fhe
provisos must be read in connection with Reg. XIX. of 1827.
By that Regulation the duties of the Collector arc prt•:;cribed,
and in respect of acts <lone iu the execution of thc8c duties
he is thereby rendercJ amenable to the Rc\'ouuc Court.
The preservation of Crown lands from cn(!road1mcnt is
not one of his clntics so pre;;cribed, and in respect of thnt
branch of his duties ho doe:; not, thcrcforC', come within tho
jurisdiction of that. con rt.. Since the decision iu 8poo111•r v.
Hu.rliss01ulas (a), it cannot be contended that thnt fact nlono
gives the Supreme Court, OI" the Small Co.use Court, jurisdic-
tion, but where the matter is ambiguous, it is a reason for
reading the proviso in such o. wny ns not to deprive the subject
of his remedy. How co.n the act here complained of be
said to concern the revenue ? 'l'he laud iu question is not
assessed. True it is that revenue may in futm·e be collected
in respect of it; hut that is too vague a possibility to
render the act of the Collector an act concerning revenue.
Grn.liam v. Pecit (u), and Asher v. Wl,iflock (c), show that the
possession of the plaintiff in this case was sufficient to entitle
him to maintain trespass against a wrong-doer.

T!te Acfrocatc Geneml (tl1P Ho11oml.1le L. H. Bayley) and

Green, for the defendant :-There is certainly some difficulty
about Sec. 1 of Act VII. of 183G. The A.et contains no
recital, but the reasonable construction of it is that it refers
to future, not past, transactions. 'l'he A.et is commented on
by Pe·1·1~1, J., in Rmnch111ul v. Gla..~s (d).
[WESTROPP, J. :-May it not be that this Act was passed
to giw immunity to Government officers for what they hacl
<.lone, and that it was not intended to apply to fnture acts ?
(a) Perry's Or. Ca., µ. :{85, $.C.; -1 .Moo. Iu,l. .\.pp. ;{i,:3,
(b) l East 24(i. (c) L. ]fop. I Q. 11., p. I.
(d) l'eiTy's Or. Ca .. p. :l(i5.

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 ORIGINAL CIVIL JURISDICTION, 9

That would be better than accusing the Legislature of negli- -=--cl-'~..,..67_._. _

NA'RA'YAN
gence or mistake. Besides, the expressions of the learned K. LAuo
Judge in the case referred to seem to point to the fact that NoRMAff, v.
there had been irregularities or mistakes by Government
officers.]
The main question is, whether this act of the Collector
was an act concerning revenue, under Sec. 25. Itisa fallacy
to suppose that because there is at present no revenue de-
rived from this land, the assertion of the right of Government
to it cannot concern the revenue. The duty of preserving
such land is not, it is true, specifically imposed upon the
Collector by Reg. XIX.; but as a matter of fact the present
Collector and his predecessors have exercised this function,
and a. Collector by usage may have duties which were not
imposed upon him by Reg. XIX., and such duties may concern
the revenue. In the exercise of his duties, having taken
possession of this land, he may sell it for the benefit of the
revenue. The disposing of waste lands in this way is treated
as a branch of the revenue in Sec. 7 of Reg. XVII. of 1827.
(Coucn, C.J.: That rather refers to a disposal of land by
way of letting.]
The words of the section are the widest that could be
used; if the Legislature wished to restrict the meaning of
the proviso, they would have said" in the collection of the
revenue."
Then as to the possession of the plaintiff. In considering
this point, the fact that all waste land in Bombay belongs to
the Crown, which is always in possession, must be taken
into account. There has been no continuous ownership of
the plaintiff, the acts relied upon by him, such as putting
up tents for a few days, being of a most ambiguous nature·
The presumption, therefore, is that these lands are the pro-
perty of the Crown. They also referred to Doe d. E. I.
Company v. Hirabai (e), and Amended Letters Patent., High
Court, Cl. 12.
Pigot, in reply, was not called upon.
Coucn, C.J. (After stating the facts, as they appear upon
the case submitted), continued :-Under these circumstances
(e) Perry's Or. Ca., p. 4S0.
V,-2 0 C

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 10 BOMBAY mon COURT REPORTS.

---~1~868_._ the Judge has reserved for our opinion four questions. The
N4'1lA'YJ,N
K. LAUD first is, whether or not the guardianship, management, aud
No~N. preservation from encroachment, of the landed property
of the Crown in tho Island of Bombay, aro vested in the
Collector of Bombay, as a part of bis duties and functions.
Now that is a question of fact, or it may be a mixed question
of law and fact, which ought to havo been fqund by the
Judge; but, without any fin<ling, it has boon submittcu to
us, and it would seem as a matter of fact, that the preserving
from encroachment of tho landed property of the Crown in
Bombay is one of the proper functions of the Collector. But
that question is not a material one; nor is the second, which
is, whether or not acts done by the Collector in the exercise,
or bona Jule intended exercise, of such guardianship, manage-
ment, and preservation, are ad8 done by him in his official
capacity ? I should say that these aro acts done by him in
his official capacity, his duties being such as arc described.
The material question is the third, namely : -·whether or
not the acts complained of in.this suit having been done, or
ordered to be done, by the Collector, in the bona fidc intention
of preserving from encroachment the landed property of tl10
Crown, are a matter concerning revenue, within the moaning
of Sec. 25 of Act IX. of 1850. We cannot say that au
act done by the Collector with the intention of preserving
the landed property of the Crown from encroachment is
a matter concerning revenue. It may be that, at some
future time, revenue may ho claimable for this land, but I
think the words "matters concerning revenue" must be
construed to mean something less vague than that indicated
by the Collector, when he says that he "entered upon the
land with a view to secure it for the Crown, ns land from
which revenue may hereafter be collected."

If we were to hold that this act concerned the revenue, I

do not see where we could stop ; any act done by the Col-
lector would, as concerning revenue, be withdrawn from the
jurisdiction of the Small Cause Court. This question must,
I think, be answered in the negative. Then the next ques-
tion is, whether or not the plaintiff in this suit had such
possession of the piece of ground in question as enabled

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 KaiJlhosru J. R1lstomji,
Bar-at-Law,
ORIGINAL CIVIL JURISDICTION. Lahore. 11
him to maintain this suit in respect of the acts complained 1868.
NA'RA 1YAN
of. We must consider this question according to its literal K, LAUD
1/.
meaning,-not whether the Government had such a title NOB.JUN.
as would justify it in turning out the plaintiff. If it had
been the intention of the Judge to ask such a question, he
ought to have put it in a different form. Answering, then,
the question as submitted to us, I am clearly of opinion that
the plaintiff had in him such a possession as would entitle
him to treat the defendant as a wrong-doer, unless the de-
fendant could show a better title. The acts of possession
on the part of the plaintiff are much stronger than was
assumed by Mr. Green in the course of his argument. We
must look back to what has occurred in respect of these
lands since 1847, and, doing so, it appears to me that,
considering the state of things in Bombay, and the loose
way in which land is held, this is a strong case of posses-
sion, instead of a weak one. These are the two material
questions necessary for us to decide, and I answer both in
favour of the plaintiff. The judgment of the Small Cause
Court must, therefore, stand, and the defendant must pay
the costs of these proceedings.
WESTROPP, J. :-I completely concur in the opinion ex-
pressed by the Chief Justice. The two first questions are
questions of fact, rather than of law, and might, if material,
be answered, I think, .in the affirmative. To me, however,
they seem to be immaterial. The third question was, in sub-
stance, whether the acts complained of in this· suit having
been done, or ordered to be done, by the Collector, in the bona
fide intention of preserving from encroachment the landed
property of the Crown in the Island of Bombay, are matters
concerning the revenue, within Sec. 25 of Act IX. of 1850, so
as to exclude ·the jurisdiction of the Conrt of Small Causes.
The fourth question was, whether the plaintiff had such
possession of the piece of ground in dispute as enabled him
to maintain this suit in respect of the act of which he com-
plained. Both of these questions are material, and ought,
I think, to be answered in favour of the plaintiff. There is
not any sufficient ground for contending that this was a
matter concerning the revenue, which the Small Cause Court
was precluded from entertaining. A prohibition similar to
that in the Small Cause Court Act was also contained in the
-+

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12 BOJIBAY BIGB COURT UPOBTS.

1868. Charter of the Supreme Court, and yet Government itselt

NA'RA"YAN
K. LAUD brought an action, in the year 1843, in the Supreme Court,
tl.
NOlllU!f.
to recover land situated at Colaba from persons alleged to be
squatters: Doo d. E. I. Omnpany v. Hi.rabai (ubi ,upra~.
That action was sustainable on the ground only that it was
not " a matter concerning the revenue under the management
of the Governor and Council of Bombay." Not being an in•
formation by the Advocate General, or other principal law
officer of the Company, it could not have received any support
from Sees. 100 and 111 of St.at. 53 Geo. III., c. 155. The
East India Company by bringing that action, clearly admitted
the jurisdiction of the court, and on behalf of the defendant
no attempt was made to deny it. The plaintiffs succeeded.
In 1854 A1u Paru, who had been convicted of felony, died
at the Straits Settlements, while undergoing his sentence of
transportation for life. On his conviction his immoveable
property had been seized by GoTernment. In 1856 an ac-
tion of ejectment (f) was brought in tho Supreme Court by
his heirs against the East India Company, to recover differ-
ent portions of that property. His estates consisted of four
kinds :-(1) Lands of which A'lu Paru was fazendJ.,r; (2)
houses built on ground belonging to other fazendars; (3)
houses and lands for which a small ground-rent was payable
to the Company, the houses standing on, and the land being,
so-called Company's ground; (4) leaseholds for terms of
years. Counsel (of whom I was one) for the lesaors of the
plaintiff, contended that the three first kinds of immoveable
estate were of a freehold nature, and that, accordingly, the
forfeiture to the Crown was only for the life of A1u Paru,
the felony of which he had been convicted being neither
high treason, petit treason, nor murder (Stat. 54 Goo. III.,
c. 145, A.D. 1814). They relied on the Charter of the Supreme
Court (dated 1823) as directing that criminal justice should
be administered in the same manner and form, or as nearly
as tho condition and circumstances of the place and per-
sons will adu:iit, as criminal courts administer it in England.
Mr. William Howard, then Acting Advocate General, a
gentlemen of great ability and twenty years' experience in
the Supreme Court of Bombay, admitted the jurisdiction of
the court to ent3rtain the suit, and did not, on behaif of
(f) Doe d. Ralti,nbbai Alubkai a11d others v. The Ea,t India Company.

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 ORIGINAL CIVIL JURISDICTION, 18

the Company or of the Crown, deny the right of the lessors 1868.
N.i!RA'YAN
of the plaintiff to recover the two first kinds of property, K. LAUD
but objected that (a.a was the fact) there was not then '11,
Nouu.N.
before the court any sufficient evidence to show the nature
of the third kind. The Court gave a verdict for the lessors
of the plaintiff for the two first kinds, as being estates held
in perpetuity, and in the nature of freehold, but allowed
Mr Howard's objection to the third kind, at the same time
stating that it did so without prejudice to the question as
to the right of the lesso;5 of the plaintiff to recover the
third kind, if on further proof it should turn out to be of
the nature stated on their behalf. Subsequently, when they
were prepared with evidence to show· that it had been
held from time immemorial by the persons under whom
A'lu Paru derived title-they paying a small ground-rent
or quit-rent to the East India Company-and had notified
their intention to bring in the Supreme .Court a fresh
action of ejectment for the third kind of lands and houses,
the East India Company, by the advice of their law officers,
restored that part of the property to the lessors of the plain-
tiff, and retained the leasehold property only.
The Recorder's Court of Bombay was, like the Supreme
Court, prohibited from entertaining suits relating to the re-
venue under the management of the Governor and Council ;
and yet in 1805, when an action of trespass relating to land
alleged to be the property of the Company was brought in
that court before Sir James Mackintosh, by Shaik Abdul
Amlity against Nasarv&.nji Oawasji nominally, but in which
the East India Company were the real defendants, and were
represented by Mr. Thriepland, Advocate General, he did
not dispute the jurisdiction of the court.* The nominal de-
fendant was one of those to whom, in consequence of the
extension of the esplanade, and in lieu of his land in that
• NoTE.-By Bombay Reg. III. of 1799, the Civil Judge for Salsette, Ca.~
ra.nja, Elephanta, and Hog Islands wa.s (Seo. 2) created Revenue Judge for
the Island of Bombay. Sec. 7 gave him cognisance of "all suits respecting
the rents a.nd revenues due to the East India Company from the Island of
Bombay, or the adjacent dependencies of Old Woman's, Colabs, Cross, and
Butoher's Islands." Seo. 16 forbade him" to receive or entertain any suit,
wnder any pretence whauver, rel,a,ting to any h=e, l,a,nd, tenement, or heredi,
tament, or a dispute regardvng the boundary of l,a,nds, houses, tenements, or
hereditaments situated within the Town and Is'/,and of Bombay," ,t'c. This
shows that such suits were considered as within the jurisdiction of the
Recorder's Court, which had been created in the preceding year (1798), and
not included_in the prohibition in its Charter as to suits relating to revenue.

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 •

14 BOKBAY UIOH COt:RT REl'ORTS,

_1_868_._quarter, an allotment of ground on tho flats (foriu ground)

N~'.~:~: was made by the Collector, in the supposition that the space
v. assigned belonged of right .to the Company, though in tho
NoJUUN,
occupation of the plaintiff. The plaintiff, though he had a
long possession (thirty yeal'S), failed. Sir James Mackintosh
gave a verdict for the defendant, i.e., in favour of the titlo
of the Company, but ma.de s11ch remarks on the hardship of
the case as deterred the Government from further disturbing
the foriudars. The history of the foriu land question, and the
final settlement of it, in the ma.in in favour of the forasdars,
will be found in Mr. LeMessurier's Report, Bombay Govern-
ment Records No. III., New Series, and Act VI. of 1851.

It seems clear from these authorities that the fact, that

the right of Government to enter upon, retain, or interfere
with lands may be in dispute, does not of itself render
the matter one concerning revenue 0). The lands in the
present case have not been assessed, and no revenue has
been demanded, or sought to be recovered, in respect of
them. The mere possibility that Government might, at
some future period, be entitled to revenue out of them, is
too remote to render the suit one concerning revenue (h).
This case is not, !think, governed by Spooner v. Juddow (i).
As to the fourth question, I have no difficulty in answering
it in the affirmative. It is clear that the plaintiff had such
a possession as entitled him to maintain this action against
the Collector, for at.tempting to disturb him in that posses-
sion. We have not been asked whether the Government had
a title to these hnds. Had this been a case between sub-
ject and subject, and not a case between a subject and the
Crown, the evidence, so far as stated by the First Judge of
the Small Cause Court, would lead to the supposition that
the plaintiff not only had sufficient possession to maintain
this action, but had also acquired a title, under Act XIV. of
1859, by ai;lverse possession. He seems to have obtained a
lease for ten years from the administrator of Thomas Cooke,
(g) See also Doe d. Peearcemoney v. Bis,onath Bonnerjee, Bignell R. l.;
Morton R. 3i9; 1 Morley Dig., p. 380, pl. 159.
{h) See Vencata Rungay Pillay v. The East India Company, 1 Strange's
Notes of Cases at Madras, p. 1i4.
(i) 4 Moo. Ind. App. 353; S. C. as Spooner v. flurkis,ondas Hurgovin-
das, Perry's Or. Ca. 373, 3~5.

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 ORIGINAL CIVIL JURTSDICTION, 15

in 184 7, and an absolute conveyance from the so.me person in __1_s_68_._

NA'RA'YAN
1850, and to have personally occupied the land since on two K . LAun
or three occasions, and, in fact, to have been the only person NORMAN,
i•.
who was in possession since 1847. For some years pre-
viously to 1847, these lands seem to have had oil-mills upon
them, which mills belonged to Captain Mignon, and from
him, who le~ Bombay in 1836, the mills and land passed
into the possession of Thomas Cooke. Previously to the ex-
istence of the mills, it would appear that there was a chf.mH
or barrack upon the lands; but there is no satisfactory evidence
that Government ever was in possession of the land, or how
the chauki or barrack was occupied, or whether any rent
was paid for it.
It is quite unnecessary for me to give any opinion as to
whether the Limitation Act binds the Crown, and I offer
none; but assuming that it does not, I nevertheless hold
that the plaintiff had a possession amply sufficient to war-
rant him in :maintaining his present ~uit against a wrong-
doer. It has not beeri found in the case that Government
had a title to the land, nor has that question been submitted
to us. Looking to the length of the plaintiff's possession, and
especially to the fact that his claim to the land was notified
in the Collector's office so far back as the year 1850, I think
· that if the Collector thought, as I have no doubt he bona
fide did think, that the land belonged to Government, he
ought to have adopted a different proceeding, and instituted a
regular suit to assert the title of the Crown. As to whether
Government has such a title or not, I do not offer any opinion.
The doctrine laid down in Doe d. E. I. Co. v. Himbai, as
to the right o_f Government to waste land, I do not impugn.
It may be perfectly correct, but it is not applicable to this
case as it is now presented to us. I, therefore, agree in
thinking that the judgment of the Small Cause Court must
be affirmed, and with costs.
Judgment affinned.
Attorneys for the plaintiff: C. E . and F. Stanger Leathes.
Attorney for the defendant : R. V. Hearn (Government
Solicitor).

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 16 BOMBAY HIGH C'OCRT REPORTS.

1808.
Appeal No. 117.
March 13.
U'r.rnDOHAND HuKAMCHAND et al• .......... .. Appellants.
SnA' Bu1A'KrnA's LA'LcIIAND et al. . .. ... Respondents.

Account Stat«l-Implied Contract-Limitation-Act XIV. of 1859,

Sec. 1., Cl. 9, 10, and 16.

A suit to recover the balance or an account adjUBted and signed hy the

defendant, may be brought at any time within aix years from the date of
the adjustment, the contract to pay the amount found 1lue on the adjust-
ment being an implied contract, and, therefore, falling under Cl. 16 of
See. 1. of Act XIV. of 1859, and not under Cl. 9, Sec. 1. of that Act.
Semble, that the adjustment and signing of an account by the defend-
ant is a sufficient contract in writing to satisfy the requirements or Cl. 9
of Sec. 1.
APPEAL from the decision of Arnould, J.
The Original Suit (No. 796 of 1867) was tried in the
First Division Court on the 13th of August 1867, whon
judgment was given for the defendants.
The plaint (filed on the 22nd of July 1867) claimed to re-
cover Rs. 11,217-3-4 on an account stated and signed by
the defendants.
The following is a translation of the account sued upon,
taken from the books of the plaintiffs:-
" Interest on the account of Sha Bulakidas Lalchanil.
Per S. 1919 (1862-63).
Dr. Cr.
Rs. 10,717!-24! cents. Rs. 29 as. 2 Kartik Sud 1st,
Kartik Sud 1st, Friday (24th October Friday (24th October 1862), for
1862), Rs. 29-2. balance upto Ashvin Vad :,Oth,
Rs.10,688!-lltcents., } 13681 ~1. Wednesday (11th November
12! months an<l 9 clays. • • 1• · 1863), Rs. 10,6831-llf cents.

1,368-171
Abstract.
Dr. Cr.
Principal due . , ... , , , . , .. , •.. , , .• 10,688f-Ilf.
Interest, cents 136,8171 at i per cent.
amounting to .•••.• • •...•.•.• , • 1,026-12!,
Due on Kartik Sud 1st, 1920, Thurs-}
day ( 12th November 1863). ll,714i-24!
Written by Sha Bulakidas Lalchan<l; Rs. 11,714}-241 are duly found
to be due to you on account on Kartik Sud lst Thursday (12th November
1863), by the hand of Ravchand." '

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 ORIGINAL CIVIL JURISDICTION. 17

The plaintiffs, in their particulars of demand, gave the de- 1868.

fondants credit for Rs. 497-12-7, being the price of tea and J~~!~!!:~
sugar purchased from the defendants on several days subse- et ai.
v.
quent to the adjustment of the account. They claimed SHA' !3uLA;-
interest on the balance from the 13th of November 1863 till ~~~~! ~t"at
payment. The defendants set up as their defence the law of
limitation. -
The appeal was argued before CoucH, C. J., and WESTROPP,
J., on the 23rd of December 1867, and the 14th and 15th of
February 1868.
White (with him Marriott}, for the appellants:-The ques-
tion to be determined is whether the non-payment of an ac-
com;i.t stated and signed falls within the words "breach of any
contract" in Cl. 9 of Sec. 1. of .A.ctXIV. of1859. I contend
that it does not. The word "contract" in that section means
express contract, and that Cl. 9 does not apply to an implied
contract is clear from the decisions. Doorga Monee Dossee
et al. v. Doorga Mohun Doss (a) decided that the limitation
prescribed by Cl. 16 applied to a suit for reimbursement of
rateable shares of a joint decree. Radhanatk Dutt v. Gobind
Ohunder Ohattmjee (b) lays down the limitation which applies
in a suit brought by a principal, to recover money received
by his agent for his use, as six years. To the same effect is
Sheil,k .Amjud .Ali v. Syud .Ali Biiksk (c). In the case of
Noboo Kristo Bhunj v. Raj Bullubk Bkiinj (d), it was decided
that a suit for contribution by a perso;n who became surety
for the repayment of advances received by himself and the
defendant from Government for manufacturing salt, and who
was obliged by an execution against him to pay the whole
sum advanced, was governed by Cl. 16. [WESTROPP, J ., re-
ferred to Heera Monee Dossia v. Promothonath Ghose (e),
which was a suit on a foreign judgment, and in which it was
decided.that the period of limitation was six years.] The
conclusion to be drawn from all these, which are all cases in
which the obligation to pay arises from a promise implied by
law, is that implied contracts do not come within the mean-
(a) 2 Cale. W. Rep., Civ. R. 266. (b) 4 Cale. W. Rep., S. C. C. R. 19.
(c) 2 Cale. W . Rep., Civ. R. 122.
(d) 3 Cale. W. Rep., Civ. R. 134. (e) 8 Cale. W. Rep., Civ. R. 32.
V.-3 0 C

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 18 BOIIB.lY RIOS COURT BZPOBTS,

--=-1_868_._ ing of Sec. 9. The meaning of an account stated is clearly

U'JU:DCHANI>
HuuKC'HAND shown in Ashby v. Jamu (f), Irvi1"'} v. VeikA (g), and Layc.ock
"' al.
tl.
v. Pickle, (h). [Couce, C.J., referred to Tamierv. Smart (i).]
SHA' Buu'- It is a contract in which obligation to pay is raised by im-
JUDA's LA'L·
CHAND et 111. plication of law from the fact of the parties stating the

account. It has already been decided in this court, by the

late Chief Justice, Sir Matthew Sausse (Suit No. 316 ofl863),
that the limitation in cases of money paid to the use of
another is six years. What intelligible distincuon can be
drawn between that case and this ? The decision relied
upon on the other side, Nobin Chander Sahoo v. Suroop
Ohunder Doss(;), seems to have been decided on the au-
thority of two earlier cases, Doyl,e v. Khooaeeal (k), Kha,.
and Doyw v. Allum Biswaa (l), in neither of which are the
reasons for the decisions given. Even if it should be held
that an implied contra.et comes within the meaning of CL 9,
there is a sufficient written contra.et here to bring the case
within the exception : Villiappen Oltetty v, Nootoo (m), Syed
Ali Saib v. Sri Raja Saniyasiraj Pedda (n).
The .Advocate General (tli.e Honorable L. H. Bayley) (with
him Dunbar), contra :-All the cases in which the exact point
now before the Court was decided are decisions in my favour.
The decisions relied upon on the other side are, properly
speaking, not actions of contract at all. They are obligations
qiiasi ex clelicto. The obligation to pay is imposed by the
law upon the defendant in invitum,-particularly so in the
case of payment of money under a decree of court. It would
be absurd to suppose the Legislature had such a case as that
in mind when framing Cl. 9.

The case of "money paid" is certainly opposed to this

view, but that was decided in a Division Court, before a
single Judge, and the authorities in Calcutta conflict with it.
Whether the adjustment of an account be looked upon as a

(f) 11 M. & W. 542. (g) 3M. & W. 107.

(h) 33 L. J., Q. B. 43. (i) 6 B. & C. 603.
(j) 6 Cale. W. Rep., Civ. R. 328. (k) 3 Cale. W. Rep., S. C. C. R. 1.
(l) 4 Cale. W. Rep., S. C. C. R. I. (m) 2 Ind. Jur. 1.
(n) 2 Mad. H. C. Rep. 401.

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 ORIGINAL CIVIL JURISDICTION. 19

contract or not, it comes within the three years' limitation. 1868.

Tak .mg 1t
• as a contract, 1t
• 1s
• one m • wllich t he parties
• h ave 0'.MEDCHAND
HuuMcHAND

omitted to insert the obligatory portion : it is partly verbal and etal.

v.
partly in writing, but as the verbal portion-that is, the pro- SHA' BULA'·
KIDA's LA'L·
mise to pay-is that which the plaintiff sues upon, it is a suit CHAND et 11i.

for the breach of a contract not in writing. I, however, con-

tend that it is not a contract, but only the acknowledgment
of a debt; and, as there is no engagement to pay, it does not
come within the exception. The Court will not, unless com-
pelled, limit the word " contract" by the insertion of the
word "express" before it, as contended for on the other
side. He cited Rann v. H1,ghes (o); Chitty on Contracts,
p. 14; Phillimore's Roman Private Law 271.
White was heard in reply.
Our. adv. vult.

CoucH, C. J. :-The plaint in this suit claimed Rupees

11,217-3-4, for money found to be due from the defendants to
the plaintiff on an account stated between them, and signed
by the defendants, after giving credit in the particulars of
demand for a sum of Rs. 497-12-7, the price of tea and sugar
purchased from the defendants, and also claimed interest on
the first-mentioned sum from the 13th of November 1863.
The plaintiff relied upon a statement of account in the
following terms, written by one of the defendants, the name
used therein being the name of the defendants' firm :-"Writ-
ten by Sha Bulakidas Lalchand. Rs. 11,714f-24l are duly
found to be due to you on account, on Kartik Sud 1st,
Thursday (12th November 1863), by the hand of Ravchand."
And it was in evidence that the account adjusted was what
is called a Shroff's account, namely, for money paid and com-
mission.
The plaint was filed on the 22nd of July 1867, and the suit
came on for hearing before Sir Joseph Arnould on the 13th
of August, who held that it was baITed by Sec. 1., Cl. 9, of
Act XIV. of 1859, following a decision of the High Court at
(o) 7 Term Rep. 350.

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 20 BOVBA Y RJOB COURT REPORT8.

~-18_68_._ Calcutta (p). From this decision the plaintiff' has appealed,
U'HEDCHA.l!D
HuKAxcHAND and the question wh'1ch we haveto d etermme
' 1s,' wh eth er t he
et a!. suit comes within that clause.
v.
BaA' BuLA'-
KIDA's Lo1.'L· The nature of an account stated is described by Lord
CHAND et al.
Abinger in deliveringjudgment in Iri·ing v. V,•ilch (q), where
he says: "'fhe account stated is nothing more tlum the ad-
mission of a balance due from one party to another, and,
that balance being due, there is a debt; and when a man is
indebted, there is always a. good consideration for his pro-
mise. The very statement of the account, and admission
of the balance, implies a promise in law to pay it."
The action upon an account stated is founded upon a. con-
tract implied by the law, "that he against whom the balance
appears has engaged to pay it to the other, though there be
not a.ny·actual promise;" and belongs to the class of implied
contracts, which are described as a.rising from the "general
implication and intendment of the courts of judicature, that
every man hath engaged to perform what his duty or justice
requires:" 3 Blk. Com. 163, 164.
Writers on English law, as well as the courts in England,
have not made a distinction between a genuine tacit, or im-
plied contract-that is, a contract to be inferred from the
words, or from the position, or conduct of the obligor pre-
vious to the completion of the obligatory incident-and an
obligation resembling that created by contract, the instances
of which are given in Sees. 54 to 61 of the Indian Contract
Bill prepared under the superintendence of the Indian Law
Commissioners ; and have, for the purpose of enforcing the
obligation, treated both as contracts. It appears to us to be
necessary to bear this in mind when we come to consider
what construction is to be put upon Act XIV. of 1859. The
Act was, by Sec. 24, to take effect throughout the Presiden-
cies of Bengal, Madras, and Bombay, and was to be appli-
cable not only to suits in the Supreme Courts, which were to
be decided according to English law, but to suits in the
other courts in the Presidencies, which were not to be gov-
(p) 6 Cale. W. Rep., Civ. R. 328. (q} 3M. & W. 107.

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 ORIGINAL CIVIL JURISDICTIOJ!t. 21
erned by that law. We think it must have been the inten- 1868.
tion of the Legislature that the law of limitation, which is
law of procedure, should be uniform in all the courts, and
a:~::~~!!::
et al.
v.
that the language used in any of the sections cannot have SHA' Buu.'-
KIDA's LAL'·
one meaning given to it in a suit which is to be decided ac- CHAND et al.

cording to the English law, and another in a suit in which

the court is not bound to follow that law, or, as in cases of
contract or succession even in the Supreme Courts, may be
bound to follow another.
Before examining the language of Cl. 9 it will be well
to notice the clause immediately preceding it. By that it
is enacted that to suits to recover the hire of animals, vehi-
cles, boats, or household furniture ; or the amount of bills for
any articles sold by retail ; and to all suits for the rents of
any buildings or lands (except certain summary suits), the
period of limitation shall be three years from the time the
cause of action arose. Now we have here a special provi-
sion for suits which in very many cases are founded on an
implied contract, and will come within Cl. 9 if that ex-
tends to implied contracte ; and it would seem that the
Legislature did not look upon these as suits for the breach of
a contract.
Cl. 9 commences : " To suits brought to recover money
lent or interest" [both of which are cases in which the con-
tract or promise to pay is only implied], and continues : " or
for the breach of any contract, the period of three years from
the time when the debt became due, or when the breach of
contract in respect of which the suit is brought took place,
unless there is a written engageme:µt to pay the money lent
or interest, or a contract in writing signed by the party to
be bound thereby, or by his duly authorised agent." If the
words "any contract" are to be taken as meaning "any
implied contract" in the sense in which the term is used in
the English law, they will include not only genuine contracts,
but the obligations resembling those created by contract to
which we have alluded. We think this was not intended,
and that such a construction cannot be put upon an Act
applicable to suits in any court in the Presidencies.

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 22 BOMBAY Bras COURT REPORTS.

1868. Then as regards implied contracts, properly so called, the

U'KJWCBAND
HuuxcnAND reasons 1or
L'
t h'mk'mg t hat th ey were not mten
. ded by t hosc
et al. words are, that two of them, the obligations to pay money
v.
SHA' Buu.'- lent, and interest-are expressly provided for; anJ. o.lso that
KlDA!s LA'L·
CHAND et al. the words" breach of contro.ct" would be ordinarily under-
stood as meaning the non-performo.nce of an agreement
made by the parties, and not of a promise created by law,
or, to use the words of a learned writer, "resting on a mere
construction of law : " 2 Stepb. Com. 56. In many of these
cases-accounts stated and money paid, for instance-the
liability would ordinarily be describeJ. as a debt, and not for
a breach of a contract; and it is so described in Cl. 9 in
the cases of money Jent, and interest. It is only by a precise
and scientific use of legal language that the non-payment of
money due on an account stated can be described as a breach
of contract.
The late Chief Justice of this court, Sir Matthew Sausse,
on the 31st of August 1865, in a case which ha.a not been
reported, but of which we have seen his note, held that a
suit for money pa.id fell within Cl. 16 of Sec. I., and might
be brought within six years ; and the High Court at Calcutta
(4 W. Rep., S. C. C. R. 19) held that a suit to recover a
payment made on behalf of the defendant, which he was
bound in law to reimburse to the plaintiff, was governed
by Cl. 16. The same court (8 W. Rep., Civ. R. 82) has
held that a suit on a. foreign judgment may be brought
within six years from the day when the decree was made.
Looking to the principle on which actions on foreign judg-
ments are supported (Williams v. Jones, 13 M. & W. 628,
634; 2 Blk. Com. 160), it seems impossible to recqncile this
decision with the view that Cl. 9 applies to contracts which
are merely implied by faw.
For the above reasons, we are of opinion th11,t the present
suit is not one for a breach of contract within the meaning
of Cl. 9. Supposing we had not been of this opinion, we
think there might have been good grounds for cont.ending
that there was here a sufficient writing signed by the party
to be bound: as the writing by mere force of law, and with-

D1g1tized by Google
 ORIGIN.Al, CIVIJ:, JURISDICTION, 23
out any "further act on his part, had the effect of a contract; 1868.
b ut 1•t 1s
• unnecessary
. fior us to d eci•de th•1s. w e must reverse HuuMcHANo
U'.MEDCHANO

the decision of the learned Judge; and, as there may be a et al

v.
defence to the suit on other grounds, we must remand it for SHA'ButA,-
KIDA's LA'L·
re-trial·: and the costs of this appeal will be costs in the suit. CHAND et al.
Decree reversed and suit i·emtJ,nded .
•
Attorney for the plaintiffs: 0. Tyabji.
Attorneys for the defendants: Hearn, Cleveland, and Peile.

,' ..
i .
iI
Appeal No. 115.
'"{ '

In re Th_e Indian Companies' Act, 1866. March 13.

THE SECRETARY OF STATE IN COUNCIL OF

INDIA ................................. ... Appellant.
THE BOMBAY LANDING AND SHIPPING COM-
PANY (LIMITED) •.••••..•••••••••••••••• Respondents.

Crown Debts-Judgment Debts due to the Crown-PrecedenceinExecu-

tion-Judgment Debts due to the Secretary of State in Council for India
-Indian Companies' Act-Stay of Execution-Cession of Bassein to the
Portuguese.
A judgment debt due to the Crown is in Bombay entitled to the same
precedence in execution as a like judgment debt in England, if there be
no special legislative provision affecting that right in the particular case.
Under similar circumstances a judgment debt due to the Secretary of
State in Council for India is in Bombay entitled to the like precedence,
and the reason is that such·debt is vested in the Crown, and when realised
falls into the State Treasury.
The nature of the cause of action in respect of which the judgment was
recovered does not alfect the right of the Crown or of the Secretary of
State in Council for India to priority.
As the Crown is not, either expressly or by implication, bound by the
Indian Companies' Act (X. of 1866), and as an order made under that Act
for the winding up of a company does not work any aiteration of property,
such an order does not enable the Court to stay the execution of a
judgment debt due to the Crown, or to the Secretary of State in Council
for India.
The cession of Bas5ein and its dependencies (including Bombay and
Salsette) by Sultan Bahadur of Gujarat to the Portuguese, and the treaty
mnde thereupon, mentioned.

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 24 BO.IIB.AY 8108 COURT REP08T8.

1868. t It ia a principle recogniaed by the lawa of many count:rie. that claima

BscY. ol' I
or the Crown or State are entitled to precedence, ~. ,., the Hind6, Roman,
!
Sun J'O& aad French Codea, the laws of Spain, the United States or America, Scot-
lN!.1" I Jand, aad England.
BolflU.Y
LANDING &
SstPPING Oo.
I
rms W&S an appeal from an order made by Arnou}d, J .,
. t h e F'1rst D'1vis1on
m . . Court, on t he 29 t h ofJ uly 18~7
u •

The appeal was argued before Cocco, C.J., and WE8TROPI',

J., on the 7th, 20th, and 21st of December 1867.
The facts of the case fully appear in the judgmcnt of the
Court.
The Advocate Gene,·al (The Honorable L. H. Bayfoy), for
the appellant, cited Sta.t. 21 & 22 Viet., c. 106; 22 & 2:3
Viet., c. 41 ; 53 Geo. III., c. 155, s. 111 ; 24 & 25 Viet.,
c. 67, s. 24; 11 & 12 Viet., c. 21, s. 62; Giles v. Grover
(a); Laing v. Ingham, (b); Wildu v. The Altornoy GNwral
of Trinidad (c) ; Viscount Canterbury v. The Attor11ry Genfral
(d); Stst. 3 & 4 Wm. IV., c. 85, s. 48; 'l'lw ~Mayor of
Lyons v. The East India Company (e) ; The Adrorate Genel'al
v. Richmond (f); The Advocate General v. Ranee Surnomoye
Dossee (g) ; Khanoo Raoot Kulvelmr v. Dhunbajee Kan (h) ; ·4
Bae. .Ah., Prerogative, E. 5; R. v. Wright (i}; Com. Dig.,
Parliament, R.; The Attorney General v. Donaldson U) ; Baron
cle Bode's Case (k); Mersey Docks Case (l); and L. R. 2 Q. B.,
493, and 11 Jur. N. S., per Cockburn, C.J., p. 465.
Green, on the same side, cited Code Napoleon, .Art. 2098 ;
The Collector of Masulipatam v. Oavaly Vencafa Nan·ainapa.h
(m); Gunga Rupa v. Bap<10 Gungadhur, coram Sauase, C. J.,
(escheat); The Secretary of State v. Kam<tehce Boye Sahaba
(n); 2 Wms. on Exors. 893; Otway v. Ramsay (o); Prideaux
on Judgments 173; Parker R. 101 ; Grove v. Aldridge (p);

(a) 1 Cl.~ F., 72, 143, 197, 212, 213, 215; S. C. 9 Bing. 128.
(h) 3 Moo. P. C. 26. (c) Ibid 200. (d) 1 Phillips 30q.
le) l Moo. Ind. App. 175. (f) Perry's Or. Ca. 566.
(g) 9 Moo. Ind. App. 387, (h) 2 Borr. 301.
(i) 1 Ad. and E. 436 Crompton's Argument.
(j) 7 M. & W. 422, and 10 ibid 117.
(k) 13 Q. B. 364, per Wilde, C.J., 378. (l) 11 Jur. N. S. 746, 747 .
(m) 8 Moo. Ind. App. 500, 5~. (n) 7 Moo. Ind. App. 476.
(o) 4 B. & C. 414, 416 n., per Lord Hardwicke. (p) 9 Bing. ·128.

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 ORIGINAL CIVIL JURISDICTION. 25

The Attorney General v. Walmsley (q) • l Kent's Comm. 262, __,~l_'!AA_._

SECll'. 01!'
268 (et ib., Fisher v. Blight); Stat. 33 Hen. VIII., c. 89. suu FOR
INDIA
Dunbar, for the respondents, cited The Attorney General v. 'V,
BoKBAY
])akin (r); Com. Dig. Administration C.; 2 Wms. on Exors. LANDING &
SHIPPING Co.
894; Act X. of 1866.
The Ativocate General, in reply, cited Parke; R. 95, 99,
101, 260, 262,268; Sir Winiam Herbe1't's Gase (s); West
on Extents, p. 2; 8 Bae. Ab., Exors. and Admors., L. 2 ;
Naoroj,i Bercimji v. Rogers (t).
Our. adv. vult.
WESTROPP, J. :-In Suit No. 631 of 1867 at the Original
Civil Jurisdiction side of this :court, the Secretary of State
in Council of India, on the 17th of May 1867, filed his
plaint against the Bombay Landing and Shipping Company,
Limited, to recover moneys due to the plaintiff for work done
by the Government artisans at the Government Dockyard
(lately the property of the East India Company) for the
defendants a~d for materials, that is to say, Government
stores, supplied by the plaintiff to the defendants.
On the 6th of May 1867, at a meeting of the shareholders
of the defendants' company, a resolution was passed to wind
up the company voluntarily, and it was confirmed at another
meeting on the 14th of June 1867. On the ,29th of June e.
petition was pres~nted to the court, praying that the winding
up should be continued under the supervision of the court.
On the 9th of July 1867, the Secretary of State recovered,
in the Third Division Court, before Sir Charles Sargent,
a judgment ~n the action, No. 681 of 1867, against the
Bombay Landing and Shipping Company, for Rs. 1,568-0-10
and costs, and interest from the 11 th of March 1867 until
payment; but Sir Joseph Arnould, having been informed
that a petition to wind up the company under the supervi.
eion of the court was pending, stayed the execution of the
.•
(q) 12 M. and W. 179.
(r) L. R. 2. Exch. 290 (W. N. No. 27 for 1868, p. 192).
(•) 2 Rep. 12 b. (t) 4 Bom. H. C. Rep., O.C. J. I.
4-V . 0 C

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 26 BOXB! Y BJOB COURT Rr.POBfl.

~-1_868_._judgment., notwithsta1¥iing the opposition of the Advocate

SICCY. or
sun roa General on behalf of the plaintiff.
lNI>IA
v. On the 29th of July 1867, an order on the petition was
L~i:,a;: & made, by Sir Joseph Arnould, directing that the company
Sa1PP1No Co. should be wound up under the supervision of the court, and
at the sa~e timo cause shown by the Advocate General
against the Judge's order nisi of the 20th of July, that the
stay of the suit should be continued until further order, was
disallowed, and the order to stay was made absolute. On
the same 29th of July, an application to him by the Advocate
General, tho.t the winding up of tho company 11hould be
without prejudice to the pvment in full of the debt, interest,
and costs given by the decree oftho !Hh of July 1867, and
that such payment should be made in priority to the claims
of all other creditors of the company, was refused.
By consent of the learned counsel on both sides, it was
arranged that, notwithstanding any peculiarity in the form
of the application, and proceedings before Sir Jo~eph
Arnould, the questions to be argued before him should be :
whether the judgment recovered by the Secretary of State
was entitled to precedence over the claims of the ordinary
creditors, who sought the benefit of the winding-up order;
and, accordingly, whether the execution of that j udgment was
rightly stayed.
lI pou that understanding the matter was argued before
Sir Joseph Arnould. Against his orders then made, the
presnnt appeal was brought, and the case has been argued
before us on the same basis.
A preliminary question here is, whether, assuming, 1st,
that the nature of the causes of action in r.espect of which
the judgment has been obtained, pr~sents no difficulty; and,
2ndly, that the Secretary of State in Council is, in suits
brought by him, entitled, under ordinary circumstances, to
the benefit of the prerogative of the Crown as to precedence;
the Indian Companies' Act, X. of 1866, does not, in such a.
case as the preser.t, reduce him to the same position as that
of common creditors.

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 ORIGINAL CIVIL 1URISDlCTlON, 27

On that point. we have not felt any doubt. The· Crown is \ JARS.
SECY. or
not, either expressly, or, as we think, by implication, bound Suu :roa
by the Indian Companies' Act (X. of 1866). That Act has I 1Nox4
not worked any alteration of ownership in the property, Bo:~4T l
against which the Advocate General, on behalf of the Secre- 1
;: SB.~::, to.
tary of State, seeks execution. The <?~~ership still rem._ains
in the Bombay Landing and Shipping Company, and, that
being so, the doctrine which prevailed in Giles v. Grover (u)
applies. The cases of The Attorney General v. Capel ( v),
and The King v. Crump and Hanbury (w), there cited (x),
Audley v. Halsey (y), and Rex v. Pixle?J (z), show that before
assignment the Bankruptcy Acts did not bind the Crown.
In Tlte King v. Cotton (a), Chief Baron Parker says that the
reason given by Sir Bartholomew Shower in his reports,
namely, " that the property was not altered, is the true
reason," and adds : "Nothing bars the King, but the assign-
ment, and that bars him, because it has altered the property
in the goods."
It not appearing that the right (if any) of the Crown to
precedence is, either expressly or by implication, taken away
by the Indian Companies' Act, or any other special legisla-
tive provision which has been brought to our notice, affect-
ing a case so circumstanced as the present case, we proceed
to consider the second question, which is, whether the nature
of the causes of action, in respect of which the judgment has
been obtained, affects the right of the Crown.
Chief Baron Comyn (Digest, 'l'itle Debt, G 1) says-
" So every person, who by any means is chargeable· to the
King, shall be debtor to the King; for it shall be taken
e~tensive : as where he is answerable to the King for debt,
damage, duty, rent, arrear, &c." (b). Sir Edward West, the
first Chief Justice of the Supreme Court of Bombay, in his
Treatise on Extents, p. 25, says : "Wherever there is such a
(11) 9 Bing. 128, 253, 266, 267, 272; l Cl. & F. i'2,
{ti) 2 Shower 481. (w) See Parker R. 126. (x) 9 Bing. 263, 272.
(y) Sir Wm. Jones 202, and see Parker R. 127.
(:r) Bunbury 202. (a) Parker R. 112, 127, 128.
( b) Godbolt 293.

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 28 BOMBAY HIGH COURT BBPORTl!I.

1868. debt due to the Crown as that an action of debt, or indebi-

S.&CI. 01'
ST.A.TB l'OR
tatua aaaump11it, might be maintained against the debtor,
INDIA were it due to a subject, such debt may, it is app~hended,
11,
BoKBAY be found under the inquisition, for the purpose of issuing a
LANDING &
SHIPPING Oo.
scire faciaa, or immediate extent for it."
A very careful examination of the English authorities has
not enabled us to discover any instances in the case of an
extent in chief against the King's debtor, or in that of an
extent in chief in the second degree, i.e., by the Crown
against the debtor of the King's debtor, in which a distinc-
tion has been taken with regard to the nature of the debt
due to the King; though by the Civil Law the preference
given to the State, so far at least as it is secured by the jw,
pignuris (tacit or implied mortgage) appears to be subjected
to restrictions (vide infra, p. 34, note [n]).
In the case of-an extent in aid, in order to prevent abuse
of the process of the Crown, a distinction has been taken
where the King's debtor w;ho sued out the extent in aid, was
neither the officer of, nor an accounting party to, the Crown.
In The King in aid of Hughes v. Wilton (c), an extent in aid,
obtained under such circumstances, was set aside, q1cia
improvul.e emanavit. But the Secretary of State in Council
is not in the same position as a King's debtor, and an exe-
cution at his suit cannot be regarded as an extent in aid.
We think that the nature of the causes of action for which
the judgment was obtained in this case, cannot of itself affect
the right (if any) of precedence.
The third and remaining question has occasioned to us the
chief difficulty. That question is, whether the Secretary of
State in Council for India is entitled, in respect of payment
of debts, to the same precedence as the Crown would be in
England? In considering that question, we have not over-
looked certain English statutes (9 Anne, c. 10, s. 30; 14 &
15 Viet., c. 42, s. 31 ; 28 & 29 Viet., c. 124, ss. 3 and 4),
and Act XXXII. of 1860, ss. 185 and 188, of the Government
of India, which, it may be asserted, tend tb show that, with-
•
(c) 2 Price 368.

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 ORIGINAL CIVIt JURISDICTION, 29

-, out express legislation to that effect, neither the Secretary ........,,_1_sa_s_._

SECY. OP
of State in Council, nor any party other than lHer Majesty STATE .roa
herself, or her Law Officers, can be entitled to precedence, INDIA
'I).

or be in a better position with regard to execution than any Bouu

LANDING &
ordinary subject or body corporata. The object of the Stat. SHIPPING co.
9 Anne, c. 10, s. 30, appeared to be to render postage debts,
not exceeding £5, recoverable in a summary manner, as
small tithes were, before Justices of the Peace. That section
further provided that " such debt or sum of money shall be
preferable. in payment by the person owing the same, or
from whose estate the same is or shall be due, before any
debt of any sort to any private person whomsoever." Those
debts are in the same section described as " due and owing
to the Receiver General of the said" (Post Office) " reve-
nues for Her Majesty's use." _The mode of recovery of
small tithes was fixed by a prior statute, 7 & 8 Wm. III., c. 6,
which did not confer upon small tithes any preference over
other claims ; and as the statute of .Anne applied the mode of
recovery appointed for small tithes to postage claims not
exceeding £5, it, no doubt, was considered prudent exp1·essly
to reserve to such postage claims a priority of payment.
The Stat. 14 & 15 Viet., s. 42, related to the separation of the
direction of Her Majesty's Works and Public Buildings from
the management of Her Majesty's Woods, Forests, and Land
revenues. The 29th, 30th, and 31st sections related ~o us is
by or against the Commissioners or the .Attorney General.
The 31st section contained the following proviso: "Pro-
vided that nothing in this .A.et contained shall extend or
be taken to prejudice or affect the prerogative or rights of
Her Majesty, or the right, power, or duty of Her Majesty's
.Attorney General, to sue or defend, or other rights, powers,.
or duties of such Attorney General, in regard to any con-
tract, or any action, suit, or proceeding, whether such con-
tract, or such action, suit, or proceeding, shall affect or
concern the department of Her Majesty's Woods, Forests,
and Land Revenues, or the department of the Commission-
ers of Her Majesty's Works and Public Buildings:'' That
seems to us_to have been inserted by way of precaution, and
to be declaratory, rather than to lay down any new rule. The

Digitized by Google
 •
30 BO.llliY WGH COURT Jl&PORTl!I,

observations which we sha.11 make on the statute next to be

.........,=-1_868_._
SECY. or
STATE roa mentioned will, in a great measure, apply to this proviso also.
11,
INDIA
BoKBAY The Stat. 28 & 29 Viet., c. 124, consisting of twelve sec-
LANDING & tions, is supplementary to Sta.t. 27 & 28 Viet., c. 57, which
SBIPPINO Co.
related to the purchase and management of lantls for the
public service by the Commissioners of Admiralty. The
first section of Stat. 28 & 29 Viet., c. 121-, ga.ve them a
name by which they might be styled in actions, and suits,
or other proceedings, and provided that such actions &c.
should not be affected by any change among the Commis-
sioners, and that they should be liable to pay, and entitled to
receive costs.

The 3rd section is: "Nothing in this Act, or in the Ad-

miralty Lands and Works .A.et, 1864, shall take away or
abridge, in any action or suit, the legal rights, privileges,
and prerogatives of Her Majesty, her heirs and successors,
but in all actions and suits instituted by or against the Com-
missioners of the Admiralty, and in all proceedings and
matters connected therewith, the Commissioners of the Ad-
miralty may exercise and enjoy all such rights, privileges,
and prerogatives as are for the time being exercised and
enjoyed, in any action or suit in any Court of Law or Equity,
Ly Her Majesty, her heirs or successors, as if the Crown
were actually a party to such action or suit." '£he 4th sec-
tion is: "Notwithstanding anything in this .A.et, or in The
Admiralty L~nds and Works Act, 1864, i:t shall be lawful
for Her Majesty, her heirs and successors, to proceed by in-
formation in the Court of Exchequer, or by any other Crowu
process, legal or equitable, in any case in which it would
have been competent for Her Majesty, her heirs or successors,
so to proceed if no provisions respecting procedure had been
inserted in this .A.et, or in The Admiralty Lands and Works
.A.et, 1864."

The reservation of prerogative privileges to the Commis-

sioners in their litigation, and the reservation of the Crown's
right to proceed in the Exchequer, no doubt, afford an argu-
ment in support of the legal necessity for such provisions ;

D1g1tized by Google
 ORIGINAL CIVIL JURISDIOTION, 31

but such an argument is never, when it stands alone, a very 1868.

811:ct. or
strong one, and does not relieve us from the duty of inquir- SuT11: ro11.
· ing into the state of the law previous to such enactments. INnu.
v.
Legislation of that kind is often merely declaratory, and Bouu
•
. . caute1a,
resor ted t o pro maJori an d I!,or t h e purpose of c1ear1y SHIPPING
LANDING &
Co.
notifying to t.he public what the law is. We should, more-
over, observe that the provision in the 1st section as to
costs has an opposite tendency to that of the 3rd and
4th sections, as indicating that, were the Legislature to
have remained silent, the Admiralty would neither pay nor
•
receive costs, and would be in the same position as the
Crown was before the passing of Stat. 18 & 19 Viet., c. 90.
So far as the general rule still stands, independently of that
statute, it is that the Crown neither pays nor receives costs:
4 Stephen Comm., 4th Ed., p. 72.

What has been said with respect to those statutes is in

great part applicable to the provision in Sees. 185 and 188
of Act XXXII. of 1860. A clear declaration of the priority
of income tax over private claims may have been consi-
dered especially necessary for the Mofussil, where the extent
to which English law should be applied is much less
clearly defined than in the Presidency towns (d). There are,
moreover, certain special provisions, which are variations
from.Jhe English law, as to the priority of the claim of the
Crown, introduced into both of those sections.
In considering the position of the Secretary of State in
Council with regard to the revenue, after mentioning the
acquisition of Bombay by the Portuguese, it will be neces-
sary to refer to the Treaty, under which Bombay was ac-
quired by the British, and also to some of the charters and
statutes relating to India, and to notice how, in several
instances, those charters and statutes have dealt with the
revenue or particular items of it, the mode of levying it,

(d) The llfayor of Lyons v. The East lndi~Company, 1 Moo. Ind. App.
175; Varden Seth Sam v. Luchputty Royjee Lallah, 9 ibid. 303; Dada
Honaji v. Babaji Jagush~t, 2 Bom. H. C. Rep., A.C.J. 38; Wehbe v.
Lester, ibid. 55 ;. and see Bentinclc v. Willink, 2 Hare 1.

D1g1tized by Google
 32 BOMBAY HIGH COURT REPORTS.

---,_1_s_68_._ what powers were confe1Ted upon the Company, and what
B&cr. OP
STATB PoR reserved to the Crown. ·
INDIA
v. Bombay, sometimes called by the Portuguese the Island
BOMBAY
LANDING & of Bombaim, and sometimes the Island of Mahim (e), was
iiHtPPING Co
· at, an d fior some time
• " ly to,th e d eath of Ahmed Shah
preVIous
(j), and thence until its cession to the Portuguese by Sultan
Bahadur, part of the kingdom of Gujarat (g). Bombay was
then deemed to be of small importance as compared with
Bassein (Bac;aim), of which it at that time was, and still
continued to be, a dependency, until ceded to tbe British
Crown (h). In A.D. 1534, Sultan Bahadur, who ruled Guja-
rat, and to whom Portuguese writers occasionally give the
title as well of King of Cambay as King of Gujarat, being
har<l pressed by the Portuguese on one side and the Empe-
ror Humayun on the other, made peace with the former, and
formally ceded Eassein and its dependencies to the King of
Portugal. The treaty of cession was concluded in Docem her
1534, between the Ambassador of Sultan Bnhadur, on the
one side, and Nuno da Cunha, Governor of Goa, on the other
(i) . Our much esteemed friend the Reverend Dr. Wilson,
the very learned Orientalist and scholar, has kindly directed
• our attention to, and procured for us, the work of De Couto,
which contains a copy of that Treaty. The following is a
translation of the first Article, taken from the copy given by
De Couto :-" That the Sultan Bahadnr gave and made over
from henceforth and for ever to the King of Portugal, the
city of Bac;aim, with all its territories, continental as well as
islands and seas, with all the jurisdiction and sovereignty
thereof, with all its revenues and royalty rights, in the same
manner as he, the Sultan Bahadur, King of Gujarat, and his
Captains and Thanadars, had and possessed them hitherto ;
and that from henceforth all the right which he had to or
(e) 4 Bom. H. C. Rep., 0. C. J. p. 83, Patent of Mazagon.
(f) He reigned from A.D . 1412 to A ,D, 1443.
(g) 2 Erskine's Lives of Baber and Humayun, p. 20.
(h) 4 Bom. H. C. Rep., 0. C. J . p. 83, Patent of Mazagon.
. (i) Asia de Joiio de Barros, 4 Decade, Part I., Liv. 1v.,. Cap. xxvii.,
pp. 527,530, et seq., Lisbon Ed. 1777; Asia de Diogode Couto,4 Decade,
Part 11., Liv. ix., Cap. ii., pp. 314, 316, et seq., Lisbon Ed. 1778.

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 ORIGINAL CIVIL JURISDICTION, 33

upon the said territories, islands, and seas so transferred _,,_18_6_8._

an d ma de over to the King of Portugal, ceased, and he re- SnTE Foa
SECY. OF

quested him to send his officers to take immediate possession INDIA

11.
of the same."* BoMBAY
LANDING &
SHIPPING Co.
'l'he island . of Salsette {j) was, as well as Bombay, a
dependency of Basseiu. Both, accordingly, passed, under the
'freaty of 1534, to, and were taken possession of by, the Por-
tuguese. In 1532, two years previously to that treaty, the
Portuguese had made a descent upon the coast, and overrun
Bassein, Bombay, ~hana, and other places (k).

By Article XI. of the Treaty of the 23rd of June 1661, en-

tered into on the marriage of Charles II., the Port and Island
of Bombay were, by Alfonsus, King of Portugal, with the
assent of his Council, and of the Regent Louisa, ceded to the
Crown of England in perpetuity, "with all the rights, profits,
territories, and appurtenances whatsoever thereunto belong-
ing, and, together with the income and revenue, the direct,
full, and absolute dominion and sovereignty of the said Port,
Island, and premises, with all their royalties, t;reely, fully,
entirely, and absolutely."

'fhe Portuguese law was mainly founded on the Civil Law,

which (with certain exceptions and restrictions) gave to a
debt, due to the State, precedence over other debts. In his
* "Que El Rey Soltao Badur <lava e doava a El Rey de Portugal da-
quelle dia para todo sempre a Cidade de Ba<;aim com todos as suas terras,
assim firmes, como Ilhas, e mares, com toda sua jurisdi9ao, ruero e misto
imperio, com todas suas rendas, e direitos Reaes, assim, e da maneira que
elle Soltao Badur, Rey do Guzarate ate entao, as possuira, e possuiram
seus Capitacs, e Tanadares. E que dalli por diante desistia de todo o
direito, que nas ditas terras, Ilhas, e mares tinha: e que traspassava, e
applicava a El Rey de Portugal; e que havia por hem, que logo por seus
ofliciaes mandasse tomar posse de todo o sob1·edito." De Couto, ubi supra,
p. 316. De B:uTos would appear to gh'c an abridgment, rather than a
copy, of the same Treaty. The Treaty contained several Articles beside that
above extracted from De Couto, but they are not relevant to the present
question. As to the death of Bahadur Shah, see Elphinstone's Hist. Ind.,
6th Ed,, Appx., p. 6i8.
(j) De Couto, General Index, p. 319.
(k) 1 Grant Duff, Hist. Mahrattns, p. 56, Bombay reprint, 1863.
v.-5 0 C

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 34 BOMBAY HIGH COURT REPORT$,

1868. Sententioo Receptoo (l) the doctrine is expressed by Julius

s~:;:·.,~~ Paulus with characteristic brevity : Privilegium fisci est inter
INDIA. omnes creditores primum locum tenere. In the earlier days of
11,
BoxBAT the Empire, fiscus was the private treasury of the Empe-
LANDING &
SHIPPING Co. ror, an
d was d'1stmct
, f:rom rerarium,
• the pub)'1c h>
~,-easury ; but
in later times, and long before Julius Paulus wrote, the dis-
tinction had ceased (although noticed by him under the
terms jus populi and jus fiBC/,), and the term cerarium had
become merged in that of fiscus (m). The preference due to
the State as a creditor is again very clearly asserted in the
propositions llespublica creditm omnibus chirographariis cre-
ditoribus prrefertur : Dig., Lib. XLII., Tit. v., pl. xxxviii.;
and Fiscus semper habet jus pignoris (n) : Dig., Lib. XLIX.,
Tit. xv., pl. xlvi.
Such right to priority of payment of debts as the Crown
of Portugal may have possessed in Bombay, must, by the
Treaty, have passed to the Crown of England.
The introduction of the laws of England into this island
has so recently been discussed by us in this court, in the
case of Naoroji Beramji v. Rogers (o), as to render it un-
necessary to recur to that topic. We must, however, refer
briefly to such charters and statutes as bear upon Crown
debts, or debts due to the East India Company.
Charles II., in making over, by the Charter of 1668, the
Port and Island of Bombay to the London Company of

(l) Lib. V., Tit. xu., pl. 10 (Cumin C. L. 753). Vide etiam Codicis
Lib. IV., 46, l; Domat by Cushing, pl. 1758; Mackeldeii Syst., pl. 319, et
ibid., Pars Specialis, Lib. II., App. IV., de creditoribus concursus, pl. 20,
24, ed. Lipsire, 1847.
(m) Mackeld. Syst., pl. 144; Smith, Diet. Antiq., Tit. Fiscus, by Mr.
Geo. Long, quoting Savigny; et vide Sm. Gr. and Rom. Biog., Vol. III., p.
155; Cumin C. L. 76. CompareAdvocateGeneralv. Amerchund, 1 Knapp
P. C. C. 329 n., and The Secretary of State, ,tc. v. Kamachee Boye
Sahaba, 7 Moo. Ind. App. 476.
(n) This jus pignoris, or hypotheca tacita, as, in cases of lien implied
by law, it has with stricter accuracy been denominated (Saunders Inst.,
p. 216, 2nd Ed.), was not, it would seem, conferred by the Civil Law upon
every kind of debt due to the Emperor or State. For exceptions see
omat by Cushing, pl. 1758 n. (a); Mackeld., Lib. II., Appx. 1v., pl. 26.
(o) 4 Bom. H. C. Rep., O.C.J. I.

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 ORIGINAL CIVIL JURISDICTION, 35

Merchants trading to the East, did so " with all the rights, __,=-1_868_._
SECY. or
profits, &c., all and singular royalties, revenues, rents, cus- STATE FoR
toms, &c. privileges, franchises, &c., whatsoever within the lNou.
v.
said premises, or to them or any of them belonging, or in BoMBA.Y
LANDING &
any wise appertaining, in as large and ample a manner" as SHIPPING co.
the Crown of England enjoyed them by virtue of the treaty
with the Crown of Portugal, and not further or otherwise,
"_saving and always reservingto" the Crown o{England "the
faith and allegiance'' to it "due and belonging," and its
"Royal Power and sovereignty of and over" its "subjects
and inhabitants there." The same Charter empowered the
Company, for the better government of the Island, to make
laws, and, amongst other means of enforcing them, to impose
reasonable fines and amerciaments. The earlier Charters
granted to the Company, namely, 43 Eliz. (31st December
1601), 7 Jae. I. (31st May 1609), and 13 Car. II. (3rd
April 1661 ), while respectively authorising the Company
to make laws for the regulation of their officers, servants,
mariners, &c., and to impose reasonable fines and amercia-
ments for the enforcement of snch laws, further added :
"and the same fines and amerciaments shall and may levy,
take, and have to the use of the said Governor and Com-
pany and their successors, without the impediment of Us,
our heirs or successors, and without any account therefor
to Us, our heirs or successors, to be rendered or made,"
The Charter of 1668 expressly confirmed all jurisdictions,
powers, liberties, privileges, benefits, and advantages con-
ferred on the Company by the Charter 1~ Car. II. (3rd
April 1661.)

Infringements of the monopoly of trading to the East, con-

ferred upon the Company, were punishable by forfeiture of
the goods, merchandise, and things brought, and of the ship
bringing them into England, or any of the dominions thereof,
half of such forfeiture to go to the Crown, and the other
half to the Company (Charters 43 Eliz., 7 Jae. I., l 3 Car. II.,
31, Car. II.)

The Charter 5 Wm. & Mary (7th October 1698) granted

to the London Company full power to sue for all debts then

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 36 BOMBAY HIGH COURT REPORTS.

-~1_8G_~_._ due, or thereajte1· to become dtte, to them, and to "recover the

SECT. OF
. STATE .roRsame, either in the name of Us" (King William and Queen
Mary), "our heirs or successors, or in the name of the said
bDtA
~·.
Boll11.n Company, or otherwise as Law or Equity shall require or ad- ·
LANDING &
SmPPINo co. mit of, and to retain the same to their own use and benefit.1'

It also charged the property of the Company with debts,

due by them.
Upon the English Company trading to the East Indies,
which, under the authority of Stat. 9 & 10 Wm. III., c. 44,
was established and incorporated by Charter 10 Wm. III.
(10th September 1698), power was, by that Charter, conferred
to sue and be sued in their corporate name in Courts of Re-
cord, or any other place whatsoever.
The same Charter empowered that Company to make by-
laws for the good governance of their trade, factors, agents,
officers, and others concerned; and to inflict reasonable
pem,lties, &c., mulcts, fines, or amerciaments, for breaches
thereof, which should be recovered " to the only use and
behoof" of the Company, "without any account or other
matter or thing to be therefore rendered" to the Crown.
It also reserved to the Crown "the sovereign right, power,
and dominion" over all the forts, places, and plantations of
the Company.
The Indenture Tripartite of the 22nd of July 1702, be-
tween Queen Anne and the two Companies (by which, and
by Godolphin's Award of the 29th of September 1708, those
Companies were amalgamated) created and incorporated the
United Company of Merchants trading to the East, and em-
powered it by that name to "sue and be sued, grant, take,
possess, and enjoy, do, perform, and execute, and have, all
capacities, powers, privileges, benefits, possessions, and
advantages whatsoever," in the same manner as the English
Company. It contained a reservation of "the sovereign
right, power, and dominion" of the Crown over " all forts,
places, plantations, and settlements" of the United Company.
Clauses of reservation similar to this occur in many statutes
relating to India-for instance, 19 Geo. III., c. 61, s. 6 ;
20 Geo. III., c. 65, s. 6; 53 Geo. III., c. 155, s. 95.
'

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 ORIGINAL CIVIL JURISDICTION, 37
The Port and Island of Bombay, '' and all 1·e1Jenues, rents, 1808.
customs, incomes, and profits" arising therefrom, "and all BEcr. oF
STATE FOR:
pre1·ogatives, royalties, p1·ivileges, franchises, preeminences, INDIA
v.
and hereditaments whatsoever," of the old Company, were, BoHBAY

togeth er with oth er possessions . of t h at Company m. the LANDING

SHIPPING
&
co.
East Indies, and, in accordance with provisions in the Inden-
ture Tripartite, transferred by the Indenture Quinquepartite
of the same date to the new Company.
In pursuance of Godolphin's .A.ward, the debts due to the
old Company were by that Company assigned to the Crown,
which, by Charter 8 Anne (22nd April 1709), regranted them
to the new Company, and empowered it to sue for and
recover them either in its own name, or in that of the
Crown, and for tHat purpose granted to that Company · a the
aid and assistance" of the Court of Exchequer, and of the
"officers and ministers of the said Court, and of the pro-
cess thereof."
On the 7th of May in the same year, a surrender made by
the old Company of its Charters to the Crown was accepted.
That surrender could not extinguish or affect the rights pre-
viously acquired by the new Company from the old Company,
The Charter 1 Geo. II. (17th November 1727), by 'way
of supplement to the Charter (13 Geo. I., 24th September
1726) which first established the Mayors' Courts at Madras,
Fort William, and Bombay, granted all fines, amerciaments,
forfeitures, penalties, and sums of money imposed, or to be
imposed, by those courts, to the United Company of Mer-
chants trading to the East Indies, with power to "have,
hold, receive, levy, sue for, recover, and enjoy the same to the
said United Company iJ-c. and thefr successo,·s, in as large and
ample a manner, to all intents and purposes, as We, our heirs
or successors, may, might, or could have, hold, receive, levy, sue
for, recove1·, and enjoy the same, if these presents had not
been made, without any account, or other matter or thing,
to be rendered or paid for the same." It empowered
the Company to proceed for the recovery of them by action
of debt in the Mayors' Courts, "or by such other suits,
actions, ways, or means as may be lawfully had and prose-

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 38 BOMBAY HIGH COURT R:IJ:PORTS,

1868. cuted in those Courts, in their corporate name, or by any

SECT. OP
STATE PoR other lawful ways or means, either in tlw name of Us, our
INDIA heirs or successors, or of the said United Company of Mer-
11.
BoKBAY chants trading to the East Indies, or their successors, and to
LANDING & }} k •
SHIPPING co. co ect, ta e, seize, an
d }evy the sai"d fi nes, amercmmen
• t s,
&c. by the proper officers, &c. of the said United Company,
&c., to the only proper use and behoof of them and their
successors, without any writ, warrant, or other process out
of the Exchequer of Us, our heirs or successors, or any other
Court or Courts of Us, our heirs and successors, whatso-
ever and whensoever, to be had and obtained in that behalf,
any usage or custom to the contrary thereof in any wise
notwithstanding." It also directed the Mayors' Courts to
pay over all such fines &c. to the Company, and declared
that such payment should be as valid as if made into the
Exchequer.

The second Charter of the Mayors' Courts, (26 Geo. II.,

8th January 1753) repeated verbatim the above provisions as
to fines &c. contained in the supplemental Charter of 172 7.
The Charter (14 Geo. III., A. D. 1774) of the Supreme
Court at Calcutta expressly reserved all amerciaments, fines,
ransoms, and forfeitures set or imposed by that court to the
Crown (vide In re Gholam Quadir [p]). It empowered the
court, however, to make reasonable satisfaction to prosecu-
tors out of such fines.
To the United Company (which subsequently, by Stat. 3
& 4 Wm. IV., c. 85, s. 111, was styled the East India Com-
pany) the Stat. 3 Geo. II., c. 14, ss. 7, 10, and the Stats. 17
Geo. II., c. 17, s. 12, and 33 Geo. III., c. 52, s. 72, continu~
(inter alia) "the rights, remedies, methods of suit, -'and__ all
penalties and forfeitures, &c." to which it or the English
Company was entitled, by Acts of Parliament or Charters!

The Stat. 33 Geo. III. c. 52, s. 62 *

enacted that
presents received by servants of the Crown or of the Com-
(p) I Taylor and Bell R. 304.
* See also Stats. 13 Geo. IJI., c. 63 ss. 23, 24; 3 & 4 Wm. IV.,
c. So, s. 76.

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J
 ORIGINAL C1VIL JURISDICTION, 39

pany should be forfeited to the Crown, or (Sec. 36), at the 1868.

.
discretion ofthe Court trymg the offender, restored to the
SECY. OJI
STATE PoB.
donors. INDIA
v.
BOHBAY
In almost the same words as those used in the Charters of LANDING &
SHIPPING Oo.
the Mayors' Courts, the Charters of the Recorders' Courts at
Madras and Bombay (38 Geo. III., 28th February 1798), and
the Char~rs of the Supreme Courts at Madras (41 ,Geo. III.,
26th December 1800) and Bombay (4 Geo. IV., 8th De-
cember 1823) contained grants of fines &c., imposed or to be
imposed by those courts, to the Company, with power to levy,
sue for, and recover the same, in as ample a manner as the
Crown could, and either in the name of the Company or that
of the Crown. These Charters further provided that the
respective courts might make reasonable satisfaction to
prosecutors of informations or indictments out of any fines
imposed on persons convicted on such proceedings ; and
further that it should be lawful for those courts " to award
and issue such process against the persons liable to the
payment" of any fines, amerciaments, &c., "in order to the
recovery of the same, in aid or for the use of the said Com-
pany; or otherwise, according to the circumstances, to
discharge or mitigate the same, as our Court of Exchequer
in England, or the Chancellor and Barons thereof, may
or lawfully can do upon estreat.s of the Green Wax in
England."

Then followed a power to those courts to award a share of

any fine to a prosecutor for his expenses.

The Stat. 53 Geo. III. (1813), c. 155, s. 98, empowered

the respective local governments, with the sanction of the
Court of Directors and Board of Control, to impose " duties
of customs and other taxes" to be levied within the towns
of Calcutta and Madras, the Town and Island of Bombay
and Prince of Wales's Island, and upon all persons, British-
born or foreigners, resident in any country or place within
the authority of those governments, respectively, and upon
all goods, &c. and ·p roperty whatsoever, being in any such
country or place. Sec. 99 authorised those governments to

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 40 BOMBAY HIGH COURT BEPORTS.

make laws and regulations respecting such duties or taxes,

---=~1_86_8_._
8ECY. OF
STATE FOR and to impose fines, penalties, and forfeitures for the nonpay-
IN:.u. ment of such duties or customs, or for the breach of such
BoMBAY laws and regulations. The Supreme Courts at Fort William
LANDING &
SmPPJNo Co. and Madras, the Recorder's Court at Bombay, and the Court
of Judicature at Prince of Wales's Island, and all other courts
within the British territories in India,. were respectively
directed to take notice of these laws and regulations,..without
being specially pleaded, and it was declared "lawful for all
persons whomsoever to prefer, prosecut~, and maintain in
the same Supreme Court and Recorder's Court, and Court of
Judicature at Prince of Wales's Island respectively, all man-
ner of indictments, informations, and suits whatsoever for
enforcing such laws and regulations, or for any matter 01:
thing whatsoever arising out of the same ; any Act, Charter,
usage, or other thing to the contrary notwithstanding."
(The Stat. 54 Geo. III., c. 105, declared as valid as if im-
posed under the Stat .. 53 Gco. III., c. 155, all similar duties
and customs imposed by the Governor General in Council,
and Governors in Council, and all laws, &c., fines, &c., for
the enforcement of those duties and customs.)

Sec. 100 of the Stat. 53 Geo. III., c. 155, authorised the

Advocate General or other principal Law Officer·of the Com-
pany, at the several Presidencies and at Prince of Wales's
Island, "to exhibit in the Supreme Courts at Fort William
and Madras, Recorder's Court at _Bombay, and Court of
Judicature at Prince of W ales's Island, as occasion shall
require, against any person or persons whomsoever subject to
the jurisdiction of the said several courts respectively, any
information or informations for any breach or breaches of the
revenue laws or regulations of any of the said Governments,
or for any fine, &c., penalty, &c., forfeiture, &c., debt 01· clebts,
or sum of money or sums of money, committed, incurred, or
due by any such person or persons in respect of any suit, law,
or regulation, and such proceedings shall be had and taken
upon every such information as may lawfully be had or
taken in case of an information filed by His Majesty's
Attorney General in the 0011,rt of Eri.:cheq·uer in England for

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 ORIGINAL CIVIL JURISDICTION. 41

any offence committed against the revenue laws of England, 1868

8ECY.OF
or for any fine, penalty, forfeiture, debt, or sum of money STATE roa
due in respect thereof, so far as the circumstances of the case, INou.
v.
and the course and practice of proceeding in the s!l,id courts BoMBA v
. 1y, will a dm't
respec t1ve 1 ; an d all fi nes, penaIt'1es, 1or1e1tures,
I! I! • LANDING &
SHIPPING co.
debts, and sums of money, recovered or levied under or
by virtue of any such information, so to be exhibited as
aforesaid, shall belong to the said United Company, and the
same, or the proceeds thereof, shall be carried in their books
of account to the credit of the territorial revenues of the said
Company."
In applying the provision in the Charter of the Recorder's
Court, created in 1798, and in the Charter of the Supreme
Court, created in 1823, that those courts "should not have
or exercise any jurisdiction, in any matter concerning the
revenue under the •management of the Governor and Oounc,,:z,
either within or beyond the limits of the Town and Island of
Bombay," &c., it would have been proper to consider how
far that provision was controlled by the Stat. 53 Geo. III.,
c. 155 (r), and also by the provisions in those same Charters
relating to the recovery of fines, amerciaments, &c., to which
reference has already been made, and by Reg. XIX. of 1827,
Sec. 5, which empowered the Advocate General to sue for
certain forfeitures (s).
The 111th section of the same statute (53 Geo. III., c. 155)
is as follows:-
" .And whereas doubts have arisen whether the .Advocate
General, or other Principal Law Officer of the said Company,
at any of the said Company's Presidencies, is by law author-
ised to exhibit to the respective Courts of Judicature at any
of the said Presidencies, for and on behalf of His Majesty,
informations in the nature of actions at law, or bills in
equity, for or in respect of any cause or caitSes of action,
debts, dues, demands, accounts, rcckonings, sum or sums
(r) Sees. 98, 99, 100, above mentioned.
(s) Quit-rent payable in Bombay to the Company bas been held to be
revenue under the management of the Governor and Council, and, there-
fore, within the prohibitory clause in the Charter of the Supreme Court :
Spooner v. Juddow, 4 Moo. Ind App. 353.-[Eo.]
V.-6 0 C

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 42 BOKBAY HIGH COURT REPORTS.

of money, stores, goods, chattels, or any other matter, cause,

_..::;.18;:.:68~-;,_.-
s~!~!· ;:R
or thing whatsoever, which may have arisen or accrued, 01·
INDIA which may arise or accrue to His Majesty ; for remedy there-
11.
BoXBAY of, be it further enacted, that it shall nnd may be lawful to
LANDINO &
saiPPINo co. and for the Advocate General, or other principal Law Officer

of the said Company for the time being, at each of the said
Company's Presidencies respectively, for and on behalf of
His Majesty, his heirs and successors, to exhibit to the re-
spective Supreme Courts of J udicatnre at the said Com-
pany's Presidencies of Fort William and Madras, or to the
Recorder's Court at Bombay, or the Court of Judicature at
Prince of Wales' s Island, any information or informations in
the nature of an action or actions at law, or of a bill or bills
in equity, as occasion shall require, against any person or
persons residing within, or being amenable to, the jurisdic-
tion of the said courts respectively, for or in respect of any
cause or
causes of action, debts, dues, demands, accounts, reck-
onings, sum or sums of money, stores, goods, chattels, or
any other matter, cause, or thing whatsoever, as fully and
effectually to all intents and purposes, as His Majesty's
Attorney General for the time being is by law authorised
to exhibit any such information or informations in any of
His Majesty's Courts of Law or Equity in this realm; and
that thereupon, such proceedings shall be had, as far as the
circumstances of the case, and the course and practice of the
said Courts of Judicature at the said several Presidencies
will admit, as are had i1pon any such inforrnations exhibited
by His Majesty's Attorney General {n any of His Majesty's
Courts of Law m· Equity in this realr,i (t).

That section, it will be perceived, is of very great im-

portance as to the remedies of the Crown for debts due to it,
and for its other rights or claims.

(t) The Attorney Generalv. Brodie, 4 Moo. Ind. App. 190; The Advocate
General v. Amerchund, 1 Knapp P. C. C. 329 n; The Advocate General v.
Richmond, Perry's Or. Ca.566; The Advocate General v. Damo.ther, ibid.
-,._ 526; The Wardens of Nossa Senhora v. Bis!iop Ha.rtmann,ibid. 433; The
ocate Generalv. RaneeSurnomoJJe Dossee, 9 Moo. Ind. App. 387; The
Advo e General v. Vist•anath Atmaram, Supreme Court, Bombay, June
12, 1855, are case I s 've of the application of this section.-[En.J

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 ORlGINAL CIVIL JURISDICTION. 43

The Charter of the Supreme Court (u), in that part of it 1868.

8ECY. OP
·relating to Civil causes, and after providing for suits against Stmi: Poll
the Company, contained this passage:-" And the said Com- INDIA.
11.
pany may also sue in the said Supreme Court of Judicature Bonu
• LANDING &
at Bombay, m the same manner and to the same effect as SeiPPINo co.
any other persons within the jurisdiction thereof can or may
do ; and, if judgment shall b'e given against the said Com-
pany, the said Court of J udicat,ure may order reasonable
costs to be paid by them to the defendant." The Recorder's
Court Charter contained a similar provision.

The 8th section of the Indian Insolvent Debtors' Act of

1828 ( Stat. 9 Geo. IV.), c. 73, provided "that no debt due to
oiir Sovere·i gn Lo1'd the King, nor any fine, penalty, or for-
feiture whatsoever, nor any recognizance whereby a debt is
acknowledged to the King, or forfeiture, nor any estreat, shall
be deemed or taken to be such a debt or debts as to entitle
any person or persons to petition as is before mentioned,
nor shall any person be entitled to receive any dividend for
the same under this Act, nor shall any such fines, penalties,
forfeitures, recognisances, debts, or estreats be in any way
discharged or ~ffected by any thing done under this Act,
otherwise than they might and would have been discharged
or affected if this Act had not been passed." The 62nd sec-
tion of the Indian Insolvent Debtors' Act of 1848 (Stat. 11
& 12 Viet., c. 21) is in precisely the same terms.

The Stat. 3 & 4 Wm. IV., c. 85, s. I, enacted that, with

the exception of St. Helena, all of the territories of the
Company, including the Port and Island of Bombay, and all
their "lands, heredita.ments, revenues, rents, and profits,"
&c., "chattels, moneys, debts, and real and personal estate
whatever" (subject to the debts and liabilities affecting the
same) (v), "and the benefit of all contracts," &c., and "all
rights to fines, penalties, and forfeitures, and other emolu-
ments whatsoever," should remain and be vested in the Com-
pany "in trust for His Majesty, his heirs and successors,
(u) Para. XL., 2 Morley Dig. 663.
(v) See Sees. 10, 17.

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 l!OYBA Y HIGH COURT REPORTS,

1868 for the service of the Government of India, discharged of all

811:CY, OP
STATE :roa claims of the Company to any profit or advantage therefrom
IN~.1A to their own use, except the dividend on their capital stock."
Bonn That arrangement was continued (w) by the Stat. 16 & 17
LANDING & v· ~
SHIPPING co. ict., c. 9 a. By t h e 7t h section,
. a11 fi nes an d pena1ties,
. m- .
curred by tho sentence of any Court of Justice within those
territories and forfeitures, escheats, and lapses of real and
personal estate for want of an heir or successor, and bona
vacantia, were declared to belong to the East India Company
in trust for Her Majesty for the service of the Government
of India, with certain powers of the Governor General in
Council over the same, which it is unnecessary now to state.
The Stat. 21 & 22 Viet., c. 106 (1858), which (Sec. 1)
terminated the rule of the Company, by Sec. 2 enacted
that "India shall be governed by and in the name of Her
Majesty, and all rights, which might have been exercised
by the said Company, if this Act had not been passed, shall
and may be exercised by and in the name of Her Majesty
as rights incidental to the Government of India, and all the
territorial and other revenues of or arising in India, and all
tributes and other payments in respect of any territories
which would have been receivable by or in the name of the
said Company if this Act had not been passed, shall be re-
ceived for and in the name of Her Majesty, and shall be ap-
plied and disposed of for the purposes of the Government of
India alone, subject to the provisions of this Act."
The 39th section enacted that" all lands, &c., moneys, &c.,
and other real and personal estate" of the Company, "subject
to the debts and liabilities affecting the same," and "the
benefit of all contracts, &c., and all rights to fines, penalties,
and forfeitures, and all other emoluments, which the said
Company shall be seised or possessed of, or entitled to," at •
the time of the commencement of tha,:t Act, " except the
capital stock of the ~aid Company and the dividend thereon,
should become vested in Her Majesty, to be applied and
disposed of, subject to the provisions of that Act, for the
purposes of the Government of India.
(10) Sec. I.

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.-. ,

ORIGINAL CIVIL JURISDICTION. 45

The same Act (a:) conferred upon the Secretary of State 1868
BECY. OF
in Council for India the general control over the expendi- STATE FOil
ture of its revenues. It direct.ad certain accounts to be INou
1•.
opened in his name (y), empowered him to borrow (z), and · BoMBAY
to " sue and be sued, as well in India as in England, by the 0° s~~;:X~ to.
name of the Secretary of State in Council as a body corpor-
ate," and gave the same suits, remedies, &c. against him as
might have been had against the Company, and enacted
that the property and effects by that Act " vested in Her
Majesty for the purposes of the Government of India, or
acquired for the said purposes, shall be subject and liable to
the same payments and executions as they would, while
vested in the said Company, have been liable to in respect
of debts and liabilities lawfully contracted and incurred by
the said Company" (a). The 66th section rendered contracts,
&c. of the Company enforceable against the Secretary of
State in Council.
The 68th section is important : it provided that neither the
Secretary of State, nor any member of the Council, shall be
person~lly liable. in respect of any such contract &c. of the
Company, or in respect of any contract entered into under
the authority of this Act, or other liability ~f the Secretary of
State in Council in their official capacity; but all such lia-
bilities, and all costs and damages in respect thereof, shall
be satisfied and paid out of the revenues of India.

We are acquainted with the decision of the Supreme Court

at Calcutta in The Peninsular and Oriental Steam Navi-
gation Company v. The Secretary of State,* upon a case sent
• up in 1861 from the Calcutta Court of Small Causes. The
Supreme Court there held that an action lay against the
Secr~tary of State in Council of India, in respect of damages
sustained by the plaintiffs in consequence of the negligence
of the workmen lmployed by Government in one of its
dockyards. The Court was of opinion that the East India
Company would have been liable to such an action, and that

(.r) Sec 41. (y) Sees. 43, 44, 45. (z) Sec. 49.
(a) Sec. 66. • Appendix A.

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 46 BOMBAY HIGH COURT REPORTS.

1868 the words "liabilities incurred" in the Stat. 21 & 22 Viet.,

SECY.OF
STATE FOR c. 106, ss. 42 and 65, are applicable as well to liability
IN~~A arising out of a wrongful act (b), as to liability under a con-
BoKBAY tract, and that, therefore, the action would lie against the
LANDING &
SHIPPING co. Secretary of State in Council of India, and the damages

would be payable out of the revenues of India. That deci-

sion, however, does not seem to us to affect the question
in the present case.

The Stat. 22 & 23 Viet., c. 41 {1859), inte,· alia, author-

ised the Governor General in Council and the Local Govern-
ments of Bombay, Madras, and the North-Western Provinces,
in the name of the Secretary of State in Council, to sell real
and personal estate in India vested in Her Majesty under
the Stat. 21 & 22 Viet., c. 106, and to purchase land, &c.
and other property, and to enter into any contracts whatso-
ever, for the purposes of that Act, and enacted that all pro-
perty so acquired shall vest in Her Majesty for the service
of the Government of India. It declared that neither the
Secretary of State nor any member of the Council shall be
personally liable in respect to such sales, purchases, or
contracts, and that all liabilities, costs, and damages in re-
spect thereof shall be satisfied and paid out of the revenues
of India. Lastly, it declared that "all actions, suits, and
proceedings in respect of any of the matters aforesaid shall
and may be carried on, prosecuted, or defended in the name
of the Secretary of State for India in Council."

The statutes and charters, which have been referred to,

show that the right of the Crown to proceed in the · Re-
corders' and Supreme Courts in India as in the Exchequer, •
or as nearly thereto as may be, has been recognised.., and
that in many cases the same privilege has been granted to
the Company.
•
We next proceed to consider whether in England, if a
judgment be recovered in the name and at the suit of a sub-
ject, but the Crown be entitled to the actual benefit of it, the

(b) Yule Dkalcji Dadaji v. The E . I. Company, Perry's Or. Ca. 343.

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 ORIGINAL CIVIL JURISDICTION. 47

Crown can successfully maintain a right to have that judg- __1_868_._

SECY. OF
ment satisfied in priority to the claims of ordinary creditors. Eun :roa
INDIA
It is deserving of remark, that there are several cases in v.
BoxBAT
which it has been laid down, that although the C:cown be the LAND1No &
nominal party to whom a recognisauce has been acknow- SHIPPINoOo
}edged, yet, if the recognisance be really for the benefit of a
subject, and not for that of the Crown, such recognisance is
not entitl~d to prerogative privileges. Inez parte Ushe1· (c),
which was the case of a recognisance by a guardian in the
matter of a minor, Lord Ma.nners said : "It certainly does
not appear to me to be a debt due to the Crown, nor such as
to warrant a Baron of the Exchequer to grant a fiat for the
purpose of an extent issuing; for it is not a public debt,
in which case alone the Crown process issues. And I think
that the form of the security does not alter the nature of the
debt in this 1·espect." The same principle was acted upon by
Sir M. O'Loghlen, M. R. in Ireland, in Keily v. Mu,phy (d),
which was the case of the recognisance of a tenant under
the Court of Chancery. He declined to allow costs in addi-
tion to the sum secured by the judgment, as the debt was
not, in his opinion, one really due to the Crown. The Mas-
ter of the Rolls mentioned several cases, both in England
and Ireland, which supported his view. He acted on the
same principle subsequently in Oreed v. Oreed ( e). In Reg.
v. Bayley (f), where Sir E. Sugden held that one of the
Irish Limitation Acts, 8 Geo. I., c. 4, does not bar the re-
medy on a Receiver's recognisance, he mentions, but does
not dispute the authority of, those cases.

The question asked in those cases was not, "In whose

name is the debt standing on record"? but " Dpes the debt,
when recovered, fall into the coffers of the State ?" We
shall presently again advert to those cases.
There can be little doubt that tne rule of the Roman Law,

(c) 1 Ball & Beatty 199; Re Dalton, 2.Molloy 442, is to the same
effect.
(d) S. & Sc. 479. ( e) 4 Ir. Eq. R. 299.
(/) 1 Drury & War. 213 S. C,, 4 Ir. Eq. 142.

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 48 BOMBAY HIGH COURT REPORTS,

_ _1_868
__ already referred to, has been the pa.rent of the maxim of
SECY. 01'
SuTE roa English law : Quando jus domini 1·egis et subditi concu1-runt,
IN:.1.a. jus regis prreferri debet (9).
L:!7:!& Parker, f.). B., in Rex v. Ciirtis (h), says: "By the Com-
SuiPPINo Co. mon law the King has a prerogative of preference in pay-
ment to all his subjects, and to be first satisfied; the reason
of it is given in Sir William Herbert's Case (iJ : Quia the-
saurus regis est pacis vinculum et belloru1n nervi. This
preference which the King had by the Common law was the
foundation of Magna Charta, c. 18, which was only declara-
tory of the Common law. And that this was the King's
prerogative by the Common law, and that process issued
out of this court (Exchequer) to enforce it, appears by
Madox's History of the Exchequer from fol. 662 to fol. 667."
In hie Commentary on Littleton (JJ, Lord Coke puts it
thus: "The King, by his prerogative, regularly is to be
preferred, in payment of his duty or debt, before any subject,
although the King's debt or duty be the latter; and the
reason hereof is : for that thesaurus reg is est fundarnentum
belli et firmamentum pacis." The principle seems to be de-
tur digniori, and is more or less recognised by the laws of
many countries as applicable to the claims of the Sovereign
or the State; e. g., France (k), Spain (l), America (m), and
Scotland (n).
That principle is no novelty in India. At ari early date
we find it promulgated by Hindu jurists. Yajfiavalkya
says : " A debtor shall be forced to pay his creditors in the
order in which the debts were contracted, after first dis-
(g) Broom 66, 3rd Ed. (k) Parker R. 95, 100.
(i) 2 Rep. 12 b.; et vide 2 Inst. 18, 19; Com. Dig., Tit. Debt, G 8;
Tit. Execution, B 3.
(j) 131 b.
(k) Code Civil, Art. 2098; Ibid., note l, Iith Ed. by Tripier, p. 275.
(l) Institutes of the Civil Law of Spain by Del Rio and Rodriguez,
6th ed., translated by Johnston, London, 1825, Bk. II., Tit. vu., p. 157;
Tit. xr., pp.. 194, 197; Bk. III., Tit. x., p. 351. The dwelling-houses,
arms, and horses of knights (caballeros) and noblemen (hijosdalgo) are
exempt from seizure, ~cept for Crown debts: Ibid., p. 356.
(m) l Kent Comm. 262-269; 2 Ibid. 552,558, 10th ed.
(11) I Bell Comm. 620, 621, 6th ed.

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 ORlGlNAL CIVIL JURISDICTION. 49
charging those of a priest or the King.'' Katyayana says : "If 1868.
SECY, OP
there be many debts at once, that which was first contracted STATE :roa

shall be first paid, after those of a King or of a priest learned IN~.IA

in the Veda" (o). The term " King" is by the commentator BollBAY
, , , LANDING &
Jaganatha Tercapanchanai;ia, extended t(? the whole m1htary SHIPPING co.
(Oshatriya) class, to which class, he seems to think, a
BrahmaIJ. would, as dignior, be preferred in the payment of
debts (p). Hinda Law regards land revenue a.s the paramount
eharge on the land, and if the subject do not pay it, the
King may grant the land to another (q). Muhammadan
sovereigns were not prone to waive or abandon such royal
prerogative as they found existing in India. The British
rulers of India have recognised the precedence of the State.
In the Mofussil of this Presidency, and in the Island of
Bombay, land revenue, by express legislation, is o.eclared to
be prior to any other claim on the land: Bombay Reg. IV.
of 1827, Sec. LXIX., Cl. 2; Reg. XVII. of 1827, Sec. v., Cl. 3
(qualified by Sec. 13), and Sec. 12; Reg. XIX. of1827, Sees.
3 and 4 ( that Regulation was confirmed by Act VII. of 1836).
The purchaser at a sale for arrears of revenue in Bengal ac-
quires the land free of all incumbrances created since the
settlement of revenue with the defaulting tenant : Act I. of
1845, Sec. 26 (r). Where lands in the Bengal Mofussil, after
seizure by the Sheriff under an ordinary execution, were sold
by the Collector for arrears of Government revenue, the sur-
plus proceeds only were held liAble to satisfy the debt due to
the execution creditor : Khisticoomar Moitre v. Isseuchwndm·

(o) Yyavahara Maf6kha, Ch. V., s. 1v., pl. 9. The rule Nullum
temptl,S occurrit regi is also to be found in the Hind6 Law ; ibid., Ch. II.,
S, II,, p. 7.
(p) l l)ig. trans. Colebrook, Bk. I., eh. 1., pl. cclxxviii., cclxxix.
(q) Ibid., Bk. II., eh. 11., plac. xii. comm. et seq. See, as to revenue,
Mann, trans. Sir W. Jones, Ch. VII., pl. 130-132; Ch. X., pl. 118;
Elph. Hist. Ind., 4th Ed., pp. 72, 73; and his Report on the Territories
conquered from the Peishwa, pp. 17, 27, Bombay reprint in 1838; 1 Grant
Duff Hist. Mahrattas, pp. 26, 27, 326, 407; ibid., Vol. II., p. 170; 1 Mill
Hist. Ind., Bk. II., eh. v., pp. 224,225, 5th Ed. As to land revenue (pen-
sion and tax) in the Island of Bombay, see 4 Bom. H. C. Rep., O.C.J. pp.
1, 39, 40, et seq., 82-86; Morley Dig. Vol. I., p. 559, Tit. Revenue, pl. 2.
(r) And see Bengal Regs. I. and XIV. and XLIV. of 1793; II. of 1793,
Sec; 37; Reg. XLVII. of 1803, Sec. 5; Reg. V. of 1812.
V,-7 0 C

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 BOMBAY RIGB COUKT REPO.RT§.

1868. Moostofee (s) . In his judgment in that case, Peel, C.J ., says :
8ECY, OY
STATE YoR "Now the prior right of the Government did not abrogate
IN~~A wholly that of the Sheriff and creditor. It took precedenc~
BoHBAY in like manner, as the concurrent claim of the Crown under
LANDING & ,
SHIPPING co. its process
d e1eats
I!
or postpones t he execution
' of t he sub'~ect
whilst it is incomplete, that is, till completed by sale;'> and
again (t) : " the surplus in the hands of the Collectors was
still subject (the claims of the Government being satisfied) to
the still existing and unsurrendered rights of the creditor,
there having been no abandonment of the execution." .A.et
XII. of 1850, Sees. 4 and 5, gave the same remedy against
defaulting public accountants throughout India, as exists for
the recovery of land revenue,-a remedy closely akin to an
immediate extent.
In England the right of the Crown to precedence does
not arise out of any peculiar quality in the writ of extent.
The reasoning of Lord Coke and Chief Baron Parker, it has
been seen, rests on a broader foundation, namely, that the
destination of the debt, when recovered, is the State treasury.
Accordingly, we find that the Crown enjoys the same prefer-
ence in the administration of assets: 2 Wms. on Exors., 4th
Ed., 850 to 852 ; 3 Bae. .A.b., Tit. Exors. and .A.dmors., L 2;
2 Inst. 32.

It would seem reasonable that tl:te converse of the rule in

Ere parte Usher (u), and the c\ses of that class already cited,
should prevail, and, consequently, that if the debt, though
nominally due to a subject, really belong ;o the Queen, and,
therefore, be destined to fall into ihe public treasury, that
debt should be entitled to prerogative privilege. We asked
for authority on.that point, but none was cited. Neverthe.
less the books are not destitute of examples.
Admitting the general rule, that execution ought to be
sued out by him who i~ party to or privy to the record, and
that a scire facias does not lie upon a. judgment, when there
wants privity (Com. Dig., Tit. Execution, E, and Tit.
Pleader 3, L 7), we proceed to refer to Beverley's Oase first.
(s) 3 Taylor & Bell 99, 100 (1853). (t) Ibid. 101. (u) Ubi svprit.

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 . ORIGINAL OtVIL JURISDICTION, 51

In Michaelmas 29 Eliz., Thomas Beverley (v) re.covered in 1868

SECY. 01'
· .· ,uare impedit, and before he had execution he was outlawed; STATE roa •
whereupon the Queen brought her writ of scire facias, in INDIA
'V,
virtue of the outlawry, for execution of the judgment. BoMBAY
, , LANDING &
Walm.esley, S0!Jeant, argued strongly that the writ could not SHIPPING Oo.

lie, because, amongst other reasons, there was no privity in

the Queen to sue out execution. Sed tot11, ci1ria confl'a eum,
and they said that the Queen in the case aforesaid had suffi-
cient privity to sue execution, because the chose, which had
been in the plaintiff, Beverley, was then vested in the Queen.
To the same effect is Bae. Ah., Title Scire Facias, B; Title
Outlawry, D 8 (4).

In Noone's case (w) an action of debt .was brought in Lon-

don against one as an executor, and, on plea of plene admin-
istravit, judgment was given for the plaintiff, who assigned
the same to the Queen, whereupon a scfre far.ias issued out
of the Exchequer against the defendant into the county
Dorset. The Sheriff returned nulla bona, &c., which scire
facias was upon a constat of goods in another county. It
was agreed by all the Barons that the debt was well assigned
to the Queen, and also that the scire facias might issue forth
of another court than where the record of the judgment
remained. Citing that case, Oomyn, C. B. (Dig., Tit. Pleader
3, L 3, Scire facias upon judgrnent), says : "If a debt,
after recovery in B, is a~signed to the King, a scire facias
may issue out of tlle Exchequer."

At page 11, pl. xxviii. of Savile, the right of the Queen to

proceed on a debt assigned to her is thus recognised :-" If
J. S. be indebted to J. D., who is in debt to the 'Queen, and
make over the bond of J. S. to the Queen, process shall be
awarded to inquire what go_ods and chattels J. S. had at the
time of the assignment, and not at the time of the making
of the bond."
(.,,) Sir F. Moore, p. !341, pl. 378, Beverley's outlawry was afterwards
reversed: Ibid. , p. 249, pl. 421; but that does not affect the law as laid
down in this case.
(w) 2 Leonard 67, Trin. 31 Eliz.; Com. Dig., Tit. Assignment D; and
tee York v. Allen, Savile, p. 133, pl. l'Cx. Pasch. 36 Eliz. in the Exchequer.

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 52 llOMBAY HIOU COURT REPORTS.

18tl8. In Beaumont's Oase (~) it was held by the Exchequer that

8ECY. OF
• STATE FoR the Queen might have a scire facias upon a bond conditioned
IN~~A for the performance of covenants, which bond was assigned
BolilBA r to her by the obligee, who was her debtor. The cases of
LANDING&
BBIPPINo Co. Breadman v. Ooles {y), and TJ~e Attor11,ey General v. Poult-

ney (z), show the validity of such assignments, notwithstand-

ing the Stat. 7 Jae. I., c. 15.

In the course of his able judgment in Cawthorne v. Oamp-

bell (a), Eyre, C.B., says: "We held, upon very solemn
argument, not a great while ago, that the King's moiety
1·ecovered in, I believe, a popular action, as soon as it was fixed
and vested by judgment, became a regular debt to the
Crown, and was within the Act of Harry the Eighth, which
entitles the Crown to be preferred in its execution as for a
debt; so that the Crown's interest in the snbject is very dis-
tinctly marked and affirmed."
That case mentioned by Eyre, C.B., is the strongest of
all of the decisions which we have been able to discover
in favour of the Secretary of State. The action was a qiti
tam popular action brought by an informer. By him the
judgment was obtained. There was not any assignment to
the Crown, and the mere fact that the Crown was benefi-
cially entitled to the moiety of the penalty recovered by
the judgment, was held to give precedence in its execution
to the Crown.
Those cases, such as Oawthorne v. Campbell (b), The .Attor-
ney Gene;al v. Hallett (c), The .Attorney General v. Kingston
(d), Adams v. Fremantle (e), Lamb v. Gunman (f), in which
the Court of Exchequer has removl3d from other courts in-
to the Exchequer, suits or proceedings in which the profit
of the Crown came in question, show that the Exchequer sets
no importance upon the question whether the Crown was
actually a part-y to the suit or other proceeding, and considers
only whether the Crown is interested.
(.x) 2 Leonard 55, Trin. 29 Eliz, (y) Hobart 253.
(z) Hardress 403. (a) I Anst., p. 221.
(b) 1 Anst., p. 205. (c) 15 M. & W. 97. (d) 8 M. & W. 263.
(e) 2 Exch. 453. (f) Parker 143.

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 ORIGINAL CIVIL JURISDICTION,

On the same principle, that court, in Ez parte Dut'?'and (g), __1_868.:..;;.__

held that it might entertain an application to control the l~~~ 11 ~~
conduct of the Commissioners for auditing public accounts, lNDu.
V,
with respect to a contract entered into by Durrand with the BoHBAY
L ordS O f t he Treasury. LANDING &
SHIPPING Co.

The test adopted by Lord Manne1's in Ea: parte Usher (h),

we think, affords a safe guide in the present case, which is
the converse of that case. The question with him was, does
the money go into the State Treasury ? That principle does
not seem to be in conflict with any of the authorities, but ap-
pears to have been acted upon in several of them, especially
in the instance mentioned by Eyre, C.B., in Oawthorne v.
Campbell. The Secretary of State (who is very much in the
same position as the public officer of a joint stock company,
through whom• the company may sue and be sued, but is
himself uninterested), we have seen, takes by the statutes
no beneficial interest whatsoever in the money to arise from
the judgment. It is indeed an item of casual revenue only,
but, for that, just as much as for an article of regular
revenue, Eyre, C.B., held, in Oawthorne v. Campbell, that the
.King was entitled to assert his prerogative to have the case
moved into and determined in the Exchequer.
The East India Company, at all events down to the pass-
ing of the .Act 3 & 4 Wm. IV., c. 85, were beneficially in-
terested in the revenues of India, and, even after the passing
of that statute, and down to the close of their. career as a
governing power, in 1858, continued so interested to the
extent of the dividends on their capital stock; yet we have
shown that, with respect to many items of their revenue, they
were entitled to the same advantages of suit as the Crown.
The Secretary of State in Council has no interest whatever
in the revenue of India. Whatever rights the Crown had to
any portion of Indian revenue before 1858, it still has. Fur-
ther, Sec. 2 of the statute of that year (21 & 22 Viet., c. 106)
(g) 3 Anst. 743.
(k) Ubi suprd. And see the observations of Lord Campbell in Spooner
v. Juddow, 4 Moo. Ind. App. 379, as to quit-rent going into the Treasury
of the East India Company. ·

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 BO)(BAY HIGH COURT REPORTS.

vested in the Crown all the territorial and other reve-

~_1_8_68_ _
SBcY. OP {
Sun roa nues o 01· arising in India, and directed that all of those
INDIA. revenues should be received not only for, but in the name
"· · of, Her Majesty.
BollBu
LANDING &
SHIPPING Co.
The judgment debt in this case seems to us to fall within
the words " other revenues of or arising in India ;'' and in
receiving the same the Secretary of State must, in obedience
to that enactment, do so both for and in the name of Her
Majesty. Were we to hold that this judgment debt is not
a debt due to the Crown, we could only do so upon grounds
highly technical, and upon no satisfactory principle whatso-
ever, and, as we think, in contravention of the Imperial
Statute of 1858. The outlawry or assignment of a judgment
creditor will, we have seen, so vest the judgment debt in the
Crown as to entitle it to priority of execut,i<111. We cannot
attribute a less effect to the statute. The property in this
debt is, under that statute, vested in the Queen. The Sec.
retary of State in Council cannot, to use the most carefully
measured language, be regarded as having even so much of
property in that debt as the informer, who was the plaintiff
in the qui tam action mentioned by Eyre, C.B., had vested
in him in the King's moiety of the penalty, the subject of
that action. The Secretary of State in Council has merely
a power or capacity to sue and be sued, but has no property
in this or any other item, casual or regular, of the revenue
of India.
For these reasons, we feel bound to decide, although in
this particular instance with some reluctance, in favour of
the priority of the Crown as represented by the Secretary of
State in Council for India. In consequence of the opposite
opinion arrived at by th~ eminent and learned Judge, from
whose decision this appeal has been brought, we have
thought it our duty thus fully to give the grounds of our
judgment.

We reverse the orders of the learned Judge so fa.r as they

affect the claim of the appellant, and we direct that the judg-
ment debt, in Suit No. 681 of 1867, be paid, out of the

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 OltIGINAL ·CIVIL JURISDICTION. · 55
assets of the Bombay Landing and Shipping Company, --=,...1_8_68_ _
SECY , OP
Limited, before any distribution is made amongst the other STATE ros
creditors of the company. We give no costs of this appeal. IN:.IA.
BollBA.Y
Attorney for the appellants : R. V. Hearn (Government LA.NDINo &
SHIPPING Oo.
Solicitor).
Attorneys for the respondent: .A.eland PrentiB, ~ Bishop.
,,
-}! !+-
In re MANCHARJI Hrn.rr READYMONEY. Jan. 81.

I nsoloent-Detaining Creditor-Imprisonmtnt-Ezecution-Indian
Insoloent Debtors' Act.
Where, under Sec. 51 of the Insolvent Debtors' Act (11 and 12 Viet., c.
21 ), it has been adjudged that an insolvent shall be forthwith discharged
from all his debts,-&c. except as to certain specified debts, and as to these
that he shall be discharged so soon as he shall have been in custody, at
the nit of the person or persons who shall be creditor or creditors for the
same respectively, for such period as the Court shall direct.
Such an order of adjudication does not in itself operate as an order for
the imprisonment of the insolvent, but the detaining creditor, if he wishes
to arrest or detain the insolvent for such period, must (if he have not
already done so) place himself in . a position to issue execution against
the insolvent.

M.A.NCHARJI HIRJI READYMONEY was brought up in

the custody of the Marshal of the County Gaol, under
a writ of habeas corpus dated the 30th of January 1868.
The Olerk of the Crown (J. Marriott) read a warrant, dated
the 30th of November 1867, under which the prisoner had
been imprisoned in the County Gaol on the criminal side
for two calendar months, for an offence under Sec. 50 of the
Insolvent Debtors' Act.
He also read an order of the same date made by Tucker, J.,
sitting as Commissioner in Insolvency, whereby he directed
that the said Mancharji Hirji Readymoney should be dis-
charged forthwith as to all the debts and liabilities men-
tioned in his schedule, save as to the debt due to H. and
A. Berens ; and as to that debt, that he should be discharged
so soon as he should have been in custody for six calendar
months in the County Gao}, on the Civil Side, at the suit of

' .,,..,
j_ ..,

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 56 BOMBAY HIGH COURT REPORTS,

1868. the said H. and A. Berens, his opposing creditors, such term
In.re
MANCHARJI H. of custody to date from the date of the order.
READUlONEY,
The said H. and A. Berene were not judgment creditors
of the insolvent.
McOulloch (with him Macpherson) moved that the prisoner
should be discharged from custody. The prisoner is now
detained in prison not under a warrant, but under an order
of the Insolvent Court made under Sec. 51 of the Insolvent
Debtors' Act. That order does not justify his detention. The
words of Sec. 51 are that it shall be lawful for the Court in
the case of debts, contracted within the meaning of that sec-
tion, "to adjudge that such insolvent shall be so discharged,
and so entitled, as aforesaid, as soon as he shall have been
in custody at the suit of the person or persons who shall be
creditor or creditors for the same, for such period or periods
not exceeding two years in the whole, as such Court shall
direct." The question is whether the word suit can mean
simple request, or whether it does not rather mean the re-
sult of judicial proceedings instituted by the opposing cre-
ditor. Was it not t'he intention of the Act that only acre-
ditor who had sued the insolvent to execution should avail
himself of the provisions of that section ? Sec. 52 shows
that this is so, for it enacts that the insolvent whose com-
plete discharge has been postponed, under Sec. 51, is liable
to be arrested a.nd kept in prison at the suit of the opposing
creditor, until the period mentioned in the order has arrived,
in the same manner as he would have been subject and liable
thereto as if the Act had not been passed. If the Act had
not been pasaed, the only way the opposing creditor could
keep the insolvent in custody would be by obtaining a
judgment against him and issuing execution. The conclud-
ing proviso of that section also, by stating that even though
the insolvent shall not have peen in custody he shall be
entitled to his discharge at the expiration of the period,
plainly indicates that the imprisonment is to be the act of
the creditor, not of the court. Under similar words in the
English Act (1 & 2 Viet., c. 110, s. 86), it was held that the
only way a creditor could avail himself of that section {86)

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 ORIGINAL CIVIL JURISDICTION, 57
was by arresting his debtor under a ea. sa.: Samuel v. Nettle- 1868.
ship (a). If the Court should hold contrary to the view we MANJ;;:.,1
H.
contend for, a practical inconvenience would result, as in case READYMoNEY.
of the creditor not coming forward, there would be no one
to provide the "reasonable allowance" contemplated by the
statute _for the support of the prisoner.
A. Marcus, of the firm of H. and A. Berens, appeared in
person, and objected to the release of the prisoner.
Couca, C.J. :-I am of opinion that no legal ground has
been shown for the further detention of the prisoner, and
that he is entitled to his discharge.
The meaning of the words in Sec. 51 of the Indian Jn.
solvent Act-" That in case it shall appear to any such Court
that such insolvent shall have contracted any of his debts
fraudulently, &c., it shall and may be lawful for such Court
to adjudge that such insolvent shall be so discharged and
so entitled as aforesaid forthwith, excepting as to any
debts, sum or sums of money, or damages, to be specially
mentioned in the order, and as to such debt or debts, sum
or sums of money, or damages, t_? adjudge that such insol-
vent shall be so discharged and so entitled as aforesaid as
soon as he shall have been in custody at the au.it of the per.
son or persons who shall be creditor or creditors for the
same respectively, for such period or periods, not exceeding
two years in the whole, as such Court shall direct"-is ap-
parent from the provision in the following section, that " in
all cases where it shall have been ordered that any such in-
solvent shall be discharged from imprisonment as aforesaid
at some future period, such insolvent shall be subject and
liable to be detained in prison, and to be arrested and charged
in custody, at the suit of any one or more of his creditors
with respect to whom it s'hall have been so ordered, at
any time before such period shall have arrived, in the same
manner as he would have been subject and liable thereto if
this Act had not passed." It is also apparent from the pro-
viso that" when such period shall have expired he shall be

(a) 11 L. J., Q. B. 185.

v.-B oc

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 58 BOllBJ.Y HIGH COURT REPORTS.

1868. entitled to the benefit and protection of the .A.et, notwith-

MAN~9:i;;:JI H. standing that he may have been out of actual custody dur-
READYllloNEY. ing all or any part of the time mentioned in such order, by

reason of his not having been arrested or detained during

such time."
That provision in Sec. 52 appears to me to make it clear
that "at the suit of the person or persons who shall be ere-
. ditor or creditors," must mean, at their suit by means of
their detaining him by the process of the court, and by the
power which they might have acquired of detaining or arrest-
ing him if this Act had not been passed; and if such pro-
ceedings have not been taken, the insolvent, in my opinion,
is entitled to his discharge.
I may here adopt a remark, made by Mr. Justice Patteson
in the case to which we have been referred, that "I am not
prepared to say precisely what was the intention of the
Legislature, but the words of the Act are quite clear." We
must be governed by the language of the Legislature, with-
out considering what may have been its intention, if the
words themselves are clear. The case which has been
cited (Samuel v. Nctfleship ~is even stronger than the present,
because in that case the order of the Insolvent Court for the
prisoner to be kept in custody at the suit of the named
creditor was an order made in consequence of misconduct
similar to that which is punishable here under Sec. 50
by imprisonment on the Criminal side of the gaol. There
is this distinction between the English Act and the Indian
Act, that misconduct for which a person may here be sen-
tenced to imprisonment for two years on the Criminal side
of the gaol under Sec. 50 is punishable in England by
his being made liable to detention by a creditor for the
period of three years on the Civil side.
It appears to me that we cannot get over the language of
this Act, and that, in order to carry into effect the order of
the Insolvent Court under Sec. 51, there must be a deten-
tion under the pi·ocess of the court, by virtue of which alone
a creditor can ordinarily detain, and that the order of the
Insolvent Court cannot bo held to operate as a detention

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 ORIGINAL CIVIL JURISDICTION. 59
a.t the suit of the creditor. If we were to hold otherwise, ISGS.
the difficulty, pointed out by Mr. McCulloch, would arise; MAN[;,,.r:JiH.
that, if the order of the court is to operate as a detention READnlONEY.
of the insolvent at the suit of the creditor, there is no
power of ordering the creditor to maintain the insolvent,
because the creditor may say, "I am not seeking to detain
him, and I will take no proceedings in order to detain him,"
and thus the insolvent might .be kept in custody without
having that provision for his subsistence, which it is clear
it was the intention of the Legislature should be made for
him if he were kept in prison by virtue of the provisions
.;>f Sec. 51.
I!, is not necessary for us on the present occasion to
determine what procedure it would be necessary for the cre-
ditor to take, or what he might take, ifhe were now desirous
of keeping the insolvent in prison. It is enough for us
that up to the present time, two months having elapsed since
the order of the Commissioner was made, he has taken no
steps to detain the insolvent, but has left the matter to the
operation of the order of the Insolvent Court. I think, there-
fore, that no legal ground having been shown for the flll'ther
detention of the prisoner, he must be discharged.
ARNOULD, J. :-I am of the same opinion. Looking at
the language of Sec. 51 alone, it would appear to be doubt-
ful whether the words " at the suit" of the creditor mean
more than " at the instance" of the creditor; but when
we look at the language of Sec. 52 it becomes clear that
the words " at the suit" of the creditor mean something
more than at his mere instance. They must mean that there
shall have been a suit, and that this suit shall have arrived
at such a stage that-if the imprisonment is at once to be
effected-the creditor might enforce his decree by imprison-
ment in the same manner as he might have done if this Act
had not been passed. What, to my mind, makes the mean-
ing of the section quite clear is this, that at the moment of.
adjudication under Sec. 51 the insolvent is present in
court, and if it had been intended by the Legislature that
the order under Sec. 51 should operate as instantaneous

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 60 BOMBAY HIGH COURT REPORTS,

1868. imprisonment, it would be impossible to attach their natural

MAN!;:~1
H. meaning to the words that occur in Sec. 52, namely, that
Ru»uoNEY. he should be "liable to be arrested and charged in custody
at the suit of any one or more creditors." Those are not
the words which one would expect to find if the order of
the court was to operate as an instantaneous imprisonment.
That conclusion is still further strengthened by the latter
pa.rt of the section, which provides that when such period
shall have expired, the insolvent shall be entitled " to the·
benefit and protection of this Act, notwithstanding that he
may have been out of actual custody during all or any part
of the time mentioned in such order,"-contemplating a
state of things which would clearly be impossible if the order
of adjudication under Sec. 51 operated, as it is contended,
as an order for instantaneous imprisonment. It clearly
appears that what was contemplated was that there should
be a suit, and that upon that suit the creditor, if he is
a judgment creditor and has taken out execution upon
his judgment, may at once enforce that execution, supposing
it not to have been stayed by order of the High Court
under Sec. 49. If it has been stayed by order of the High
Court under Sec. 49, he will in the first instance have to
apply to that court for leave to proceed in carrying out
bis execution, and upon obtaining such leave he will be
entitled to execute his decree in the same manner as he
would have been if the Insolvent Act had not passed.
Therefore, it appears to me that, looking especially at Sec.
52, there is no reason whatever for saying that this prisonet'
is not entitled to his discharge forthwith.

Pri.soner discharged.

Attorneys for the insolvent: Hearn, Cleveland, a.rid Peile,

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 ORIGINAL CIVIL JURISDICTION, 61
1868.
In re MA'NIKJI 8HA1PURJI KA'KA. Feb. S.

1ft80l"ency-Criminal Sentmce-Adjourmnnit of Hearing-I I et 12 Viet.,

C, XXI,, "· 47 and 50.

A Commissioner sitting in Insolvency, while sentencing an insolvent to

imprisonment on the Criminal side, under Sec. 50 of the Insolvent Debt-
on' .Act, hu power, in addition, to order that the further hearing of the
insolvent's petition be adjourned, with or without protection, under
Sec. 47, beyond the expiration of such term of imprisonment.

THIS was an appeal, under Sec. 78 of the Indian Insolvent

Debtors' Act (11 & 12 Viet., c. XXI.) from an order
ma.de by Tucker, J., sitting as Commissioner in Insolvency.
The judgment of the learned Commissioner, after setting out
at length the facts of the case, concluded as follows : -
" The result of this investigation is that I convict this m-
solvent of having fraudulently discharged the debt due by
Mr. Stewart to the insolvent's firm, and of false and fraudu-
lent entries in his accounts in several instances, with intent
to diminish the sum to be divided among his creditors ; and
that I likewise find that he has traded recklessly, and has
contracted debts without reasonable or probable expectation
of paying the same, and under circumstances which amount
to gross misconduct, and that he has been extravagant in
personal expenditure; and on the two first charges on which
a conviction has been recorded, I adjudge that the insolvent,
MaJ,likji Shapurji Koko, be imprisoned for three months,
under Sec. 50 of the Insolvent Act, and on the remaining
charge, that his discharge be adjourned without protection
for one year from the present date."
The order was drawn up accordingly.
From this order the insolvent appealed, upon the ground
(inter alia} that" the Commissioner, having adjudged that
the insolvent should be imprisoned for three months under
Sec. 50, ought to have declared him entitled to his discharge
at the expiration of such term of imprisonmen~, and had
no power to order the discharge of the insolvent to be still
further suspended after the expiration of the said term of
imprisonment."

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 62 BOMBAY HIGH COURT REPORTS.

1808. The appeal was argued before Coucu, C.J. and ARNOULD, J.
In re
}{.~'NIKJI Pigot and Dunbar for the insolvent.
s. KA'KA'.
The Honorable L. H. Bayley (Advocate General) and
Mayltew for Kavasji Jehangir, opposing creditor No. I.
McOulloch and Green (with them White) for Hirji Jehangir,
opposing creditor No. 2.
Our. adv. vult.
CoucH, C. J. (A.fter reviewing the facts of the case,
upon which the finding of the Commissioner was confirmed),
proceeded :-It was also argued before us that the Insolvent
Court had no power to make an order adjourning the dis-
charge of the insolvent, and at the same time to make an
order under Sec. 50; and it was strongly contended that if
an order was made by the Court under Sec. 50, adjudging
the insolvent to be imprisoned, the Court was bound to
declare the insolvent entitled to his discharge at the end of
the term of such imprisonment. That is not, in my opinion,
the true construction of Sec. 50.
The words "and declare him entitled to his discharge,"
which occur in that section, I look upon, not as imperative or
directory, but as permissive, and enabling the Court to de-
clare that at the ter°:1ination of the imprisonment the-insol-
vent shall be entitled to his discharge without the necessity
of a further hearing, but not directing the Court to do so.
Looking at the many inconveniences which would result if
a different construction were adopted, and considering that
in many cases it would operate most mischievously if the
Court had no power, while making an order under Sec. 50,
to deal with the other matters in the case as law and justice
require, and seeing also that the words are capable of bear-
ing this construction, I think we are bound so to construe
these words. I think, therefore, that it is competent for the
Court, if the circumstances of the case require it, to make
an order under Sec. 47, adjourning the further hearing of
the petition, and at the same time to adjudge that the
insolvent shall be imprisoned, under Sec. 50.
There is, however, a verbal inaccuracy in the order, which
requires alteration. Under Sec. 47, speaking strictly, it is

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·~ Kai 7: 7, , ,,;: , 1:. J. .U.1a;lomdi,
Bar-at Lc1,,w 1
ORIGINAL CIVIL JURISDICTION. Lahore. 63

not the discharge of the insolvent that is adjourned, bnt the __1~86_8_._
further hearing of his petition. The order must, therefore, M1:.:X:JI
be amended by substituting in the latter portion of it the S. KA'u.'
words " further hearing" for " discharge."
ARNOULD, J., concurred.
Appeal dismissed w·i th costs.
Attorneys for the insolvent: Acland, Prentis, and Bishop.
Attorneys for the opposing creditors : Hearn, Cleveland,
and Peile.

In re LAKHMIDA's HANZRA'J. Jan. 81.

Jnsoloency-Practice-Notes of Evidence-Appeal-Time for Appealing-

Vacation.
In order to enable an insolvent to appeal from an order passed in the
matter of his petition, notes of the evidence must be taken at the hearing
by an officer of the court.
In the time allowed for appealing, the vacation is to be computed,
unless such time expire during the vacation, in which case the petition
of appeal must be presented to the Court or a Judge on the first day after
the vacation.

piGOT moved for leave to file a petition of appeal against

an order made by Tucker, J., sitting as Commissioner
in Insolvency, whereby he sentenced the insolvent to be
imprisoned on the Criminal side for six calendar months, and
adjourned the hearing of his petition for twelve calendar
months.
The order of the Commissioner was made on the 23rd of
December 1867, and was sealed on the 24th of January 1868.
The calendar month allowed for appealing under Sec. 73
of the Insolvent Debtors'Act had, therefore, expired, from the
time of the making of the order. It also appeared that no
notes of the evidence had been taken at the hearing by
the officer of the court, but notes of the evidence had been
taken by the Commissioner.
Pigot contended that the days of vacation should not
count (in which case the petition would have been in time).
He further contended that the time allowed for appealing
should date from the sealing of the order.

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 BOMBAY HIGH COURT REPORTS.

1868. PER CuRiill (CoucH, C. J., and .A.RNOULD, J.) :-Notes must
Inre be taken by an offic~r of the Court in Insolvency to enable a
L,utHlfIDA 'a
HANZRA'J. party to appeal. Vacation is to be computed in the time
allowed for appealing, unless the time expires during the
vacation, in which case the petition should be presented
to the Court or a Judge on the first day aft.er the vacation.

Admfralty Side.

April 28. The Proceeds of" The Asia."

i f,,/l~
HoRMASJI AND UKARJI, ........ ............ Plaintiffs.

Jurisdiction-Admiralty - Necessaries-Foreign Ship-Discretion-

7 Geo. J., c. 21, Sec. 2 - 3 «$" 4 Viet., c. 65, Sec. 6 - 24 Viet., c. 10.

The Stat. 7 Geo. I., c. 21 , Sec. 2 (which declared void all con-
tracts by way of bottomry made by any subject of His Majesty on any
ship in the service of foreigners bound, or designed to trade, to the East,
and all contracts for loading or supplying such ships with goods, &c.,
or with any "provisions, stores, or necessaries," &c.), is repealed by
implication.
The Stat. 3 & 4 Viet., c. 65, Sec. 6, does not confer jurisdiction upon
the High Court of Bombay on its Admiralty side to entertain causes for
necessaries supplied to foreign ships, that statute not extending to India.
The Stat. 24 Viet., c. 10 (Admiralty Act of 1860), does not extend to
India.
The jurisdiction of the High Court on its Admiralty side is the same
as that exercised in the Court of Admiralty in England prior to the pass-
ing of the above statutes.
The extent and nature of that jurisdiction considered and explained.
When a suit is brought by material men for necessaries supplied to a
foreign ship against the surplus proceeds of such ship lying in the regis-
try of the court, and there is no opposition on the part of the owners of
those proceeds, the Court has a discretionary power to allow the claim of
the Inaterial men to be paid out of such unclaimed proceeds.

THIS suit, filed on the Admiralty side of the High Court,

was heard before WESTROPP, J., in a Division Court.
Farran for the plaintiffs.
There was no appearance on behalf of the owner.
The facts, pleadings, and cases cited are fully reviewed in
the judgment of the Court.
01tr. adv. viilt.

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 ORIGINAL CIVIL JUl:t!SD1C'l'ION, 65
WEsTROPP, J. :-This suit! at the Admiralty side of this __1,,....8_68_._
Inre
court, J,o recover Rs. 2,402-3-5, "for necessaries supplied to, "THE Asu."
and necessary expenses incurred in respect of, the ship 'Asia'
on the credit of the said ship," whilst lying in Bombay
Harbour, was commenced on the 10th of December 1867.
The plaint stated that another suit (No. 5 of 1867) at the
same side of this court had been brought by the seamen of
the same ship (which was a Portuguese vessel) for ,vages;
and that on the 9th of October 1867 it was decreed in that
suit that she should be sold, and that the wages due to the
seamen, and their costs, should be paid out of the proceeds,
and that the surplus should be paid into court. The present
plaintiffs prayed for payment.of the amount of their claim
out of those surplus proceeds.

The Portuguese Consul, Mr. Fernandez, had due notice of

*
both suits, and, by order of the court, the sale of the ship
in Suit No. 5 of 1867 was conducted, under his superintend-
ence, by the Sheriff. •

The first point which arose was, whether the Stat. 7 Geo.
I., c. 21, which (inter alia) declares to be void all contracts
by way of bottomry made by any subject of His Majesty on
• any ship in the service of foreigners bound, or designed to
trade, to -the East, and all contracts for loading or supplying
her with goods, &c., or with " any provisions, stores, or
necessaries," &c., is still in force. The case of The India
(No. 2) (a), decided by Dr. Lushington in January 1864,
happily disposes of that question in the negative. Although
it is not in terms repealed by any statute, he, on grounds
which are quite conclusive, held it to be repealed by impli-
cation, because its continuance would be inconsistent with
the state of trade as established by subsequent enactments.
He referred to the Stat. 3 Geo. III., c. i 17 ; Hertslet, Vol. 6,
p. 535; Acts VI. of 1848 and V. of 1850 of the Government
of India; andStat. 3 &4 Wm. IV., c. 93,s. 2.

* NoTE,-As to the necessity for notice to the Consul vide "Tlie Nina,"
L. R. 2 Privy Council App. 38.-Eo.
(a) 33 L. J., N. S. Admil'alty, p. 193 8. C. ; 12 L. T., N. S. ; all(l
2 Pritchard 1073.
V.-!) 0 C

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 60 BOMBAY HIGH COURT REPOltTS,

· 1868. The next point vras, whether the Stat. 3 & 4 Viet., c. 65,
Inre
"THE As!.\." Sec. 6 (passed in the year 1840), confers jurisdiction upon
this court at its Admiralty side to entertain causes for
necessaries supplied to foreign ships. And this I think
it does not: 1st, because, as a general rule, Imperial statutes
in which India is not named or indicated, generally speak-
ing, are not applicable here; 2ndly, because that statute
purports to apply to the High Court of Admiralty of Eng-
land only, and contains provisions wholly inconsistent with
its application to Admiralty Courts out of Great Britain. I
find that in The Australia (b), which was an appeal from
the Vice-Admiralty Court at Hongkong, Dr. Lushington, in
giving the judgment of the Privy Council, and after declaring
that· the decree below must be reversed, said: " I ought to
have said one word with respect to the jurisdiction in cases
of this kind. Their Lordships have decided this case upon
its merits, because it appeared to them that it would be
more satisfactory on the whole so to do ; but the state of the
law must be taken to be this. A Vice- Admiralty Court
has no more than the ordinary Admiralty jurisdiction. That
jurisdiction is the jurisdiction which was possessed by
Courts of Admiralty antecedent to the passing of the statute
(c) which enlar'ged it. What is the nature of that jurisdic-
tion in a cause of this description will be seen from the
judgments of Lord Stowell upon that subject, which are
collected together in Mr. Pritchard's Digest." The question
the1·e was one of title, and, as Dr. Lushington thought, not
within the jurisdiction of a Vice-Admiralty Court. In The
Rajah of Cochin (d) the same learned Judge, in the Court of
_i\.dmiralty, said: "I am of opinion that by statute, and for
other reasons, the Vice-Admiralty Courts in our Colonies
properly constituted exercise the same jurisdiction as this
court, with one exception, and that is, where particular
powers ar~ conferred upon this court by name, and not upon
the Vice-Admiralty Courts ; and there are instances to that
effect. I need not look to the Merchant Shipping Act alone
(b) Swabey R. 480-488, decided in 1859.
(c) 3 & ·1 Viet., c. 65 ; and see especially Sec. 4, as to trying questions
of title.
(d) Swabey R. 475.

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 ORlGINAL CIVIL JURISDICTION, 67
for this position ; there is also the Sta.t. 2 Wm. IV., c. 51 (e), 1868.
one special object of which was to obviate doubts as to the "Te~n l!u.."
jurisdiction of the Vice-Admiralty Courts." He then pro-
ceeds to show that Sec. 191 of the Merchant Shipping Act
applied in direct terms to Vice-Admiralty Courts.
In both of those cases the remarks of Dr. Lushington were
made with respect to Vice-Admiralty Courts, but the prin-
ciple contained in them seems equally applicable to the Ad-
miralty jurisdiction of this court.
The Admiralty jurisdiction of this court is the same as
that of the Supreme Court (f). The Admiralty Civil juris-
diction of that court is contained in Sec. 53 of its Charter
{see 2 Morley Dig. 0. S. 673), which empowered that court
to take cognisance of and determine all causes civil and mari-
time, and many other matters voluminously enumerated in
that section, but strictly limited by the following provi-
sion :-" The cognisance whereof doth belong to the jurisdic-
tion of the Admiralty, as the same is used and exercised in
that part of Great Britain called England, together with all
and singular their incidents &c., and to proceed summarily
therein, with all possible despatch, according to the course
of our Admiralty of that part of Great Britain called Eng-
land, without the strict formalities of law, considering only
the truth of the fact and the equity of the case." The lan-
guage of the 26th section ot the Charter of the Supreme
Court at Calcutta is very nearly the same. If it had been
intended that the Admiralty jurisdiction in Bombay should
expand pari passu with the jurisdiction of the High Court of
Admiralty in England, as enlarged from time to time by
legislation, I should have expected to find in the Charter a
provision similar to that in the Indian Insolvent Debtors'
Act, 11 & 12 Viet., c. 21, Sec. 40, which gives to the Insol-
vent Debtors' Court power to admit proof of debts to the
same extent as might be done in England under the Bank-
ruptcy Acts then in force, or which thereafter might be pctssccl,
(e) Sec. 6.
(f) See Chaijcr 28th Dec. 1865, Sees. 32, 33; ancl Charter 26th Juue
18G2, Sees. 31, 32.

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 68 l!OMDAY HIGH COURT RJJPORTS,

-~1_868_._ The case of T!te Hoo9l31 Steam Ti19 Company v. The Indian,
In re
"TuE MIA." stated to have been decided on the 30th of January 1866 on
the .A.dnuralty aide of this court, was mentioned to be a suit
for towage,-whether for ordinary towage, which was pro-
vided for in England by the Stat. 3 & 4 Viet., c. 65, Sec. 6,
or salvage by way of towage, and so a case within the
ancient jurisdiction of the High Court of Admiralty, I do not
know, nor is it of importance to .consider, as the decr~e was
by consent, and, therefore, cannot aid tho Court on the
question of the applicability of that .A.et. The case of
Soomarldwn Mahomed ~· Co. v. The Steamer Sir James Rivett
Oarnac, which has been also mentioned by Mr. Farran in
his excellent argument for the plaintiffs, was 11n action for
coals supplied to a steamer, and there was a decree in 1·em
for a sale of the steamer, pronounced on the 10th of January
1868, at the Admiralty side of this court, but there was nei-
ther any argument, nor any appearance for the owner, and
the attention of the Court does not seem to have been drawn
to the question of jurisdiction.
For reasons andogous to those already given, I lately,
and with some reluctance, held, in an original suit, No. 4 of
1867, brought by Sir Charles Forbes & Co. against this same
Portuguese ship, " The Asia/' in respect of the non-delivery
of timber pursuant to a bill of lading made at Moulmein,
that such an action would not lie in 1·em at the Admiralty
side, the High Court of Admiralty in England not having had
in 1823, ·or until 1861, any jurisdiction to take cognisance of
such a suit. That jurisdiction, together with other new and
very useful powers, was conferred upon the High Court of
Admiralty in England by the Admiralty Court .A.et of 1861
(24 Viet., c. 10), which statute, for reasons similar to those
given with respect to the Stat. 3 _& 4 Viet., c. 65, does not,
I think, apply to India, or operate to extend the Admiralty
jurisdiction of this court. I should mention that in Murray
v. Langford (g) Mr. Leith moved at the Plea side of the
Supreme Court at Calcutta, in November 1842, for a prohibi-
tion to the Admiralty side of it to prohibit it from proceed-
(g) Fulton R. 95.

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~
{; ·.·-:g.:·-
·_

ORIGINAL CIVIL 1URISDIC'fION. 69

ing with a suit in rem for stores supplied to The Hem-ietta. 1868.
Mr. Leith said that the Admiralty Court had no jurisdiction, "TH~1 I.:u.."
as the party could not proceed against the ship for stores.
Peel, C. J., said that "the Court could not grant this prohi-
bition, as it will be a prohibiting of themselves. The best
plan will be for the parties to come in on the Admiralty
side and move to take the libel off the file, or to set aside the
order a:1d the proceedings had thereunder by which the ship
has been seized." Eventually, however, on the 26th of
January 1843 (h), the court stayed the proceedings, on the
ground that it had no jurisdiction, for the vessel was stated
to belong to Liverpool, and the contract to have taken place
there, Peel, C.J., adding: "The contract, therefore, having
been entered into in a place out of the local jurisdiction of
this court on its Admiralty side, it is not necessary to in-
quire whether a prohibition would issue from the Queen's
Bench in Epgland, though it appears to us that it would.
This being a case in which there is a defect in the court,
the moment it appears, the court should stay the proceed-
ings, but we are not at preient prepared to say that the
libel should be taken off the file. Some summary mode like
this must exist, and each party must pay his own costs," &c.

It is evident, I think, from these remarks, that Sir L. Peel

and his colleagues thought that, independently of the objec-
tion as to the locality in which the necessaries were fur-
nished, the Admiralty Side of the Calcutta Supreme Court
had not any authority to entertain a suit for necessaries
in rem. That case occurred in 1842-43; the Stat. 3 & 4
Viet., c. 65, received the Royal assent on the 7th of August
1840, and the Report does not show that either the Court or
the counsel suggested that that enactment could be brought
in aid of the jurisdiction.

"Suits for necessaries" against vessels have been, I

think, inadvertently introduced by usin No. 6 of our recent-
ly made Admiralty Rules. Those rules were, in the main,
copied from the English rules, a circumstance which :well
account!'! for the slip. Of course the mention of such suits

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 70 BOMBAY HIGH COURT REPORTS.

1868. in that rule cannot give us jurisdiction, if we have it not

In re
"Tma: A.s1A." aliunde.
It becomes necessary, therefore,""to ascertain what was
the jurisdiction of the High Court of Admiralty in England,
previously to its extension by the Statutes 3 & 4 Viet., c. 65,
and 24 Viet., c. 10, with respect to repairs executed and
necessaries furnished on the cradit of the ship, and what were
the rights, as regards lien on the ship, of the persc;ms who
make repairs and supply necessaries, and who, in the archaic
phraseology of that court, bear the appellation of material
men.
By the general maritime law of Europe, which adopted the
Roman Law, persons who repaired, or furnished necessaries
for a ship, or lent money for that purpose, had, independ-
ently of any express contract, a lien on the ship.
In the earlier days of the Court of A.dmiralt~ it would ap-
pear to have adopted that rule, and, notwithstanding some
statutes* unfavorable to its jurisdiction in that particular,
to have entertained suits for tlie enforcement of such liens.
In The Zodiac (i) Lord Stowell said: " In most of thos~
countries governed by the Civil Law, repairs and necessaries
form a lien upon the ship herself. In our country the
same doctrine had for a long time been held by the Mari-
time Courts, but after a long contest it was finally over-
thrown by the Courts of Common Law, and by the highest
judicatrtre of the country, the House of Lords, in the reign
of Charles II."
It must be noted, however, that a 1;1hipwright, who has
taken a ship into his possession to repair it, is not bound to
part with his possession, until he is paid for the repairs . .
But if he have once parted with it, or not taken possession,
he has no lien on the ship by the Law of England (j).
In 1846 the Supreme Court of Calcutta, in Stalkartt v.
* 13 Ric. II., c. 5; 15 Ric. II., c. 3; 2 Hen. IV., c. ll .
(i) l Hagg. Adm. R. 325.
(j) The authorities are collected in Abbott on Shipping, Part II., Chap.
III. (p. 116 of the 9th Ed.)

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ORIGINAL CIVIL JURlSDIC'.l'ION, 71

Macko.y (k), an Equity Suit, held that they could not sell a 1868.
British ship at suit of a party who had a simple lion on the "TJ; ~IA."

possession for repairs.

From the reign of Queen Anne, at latest, the. Maritime
Courts of England ceased to attempt to proceed in 1·em,
against the ship herself for repairs made or necessaries fur-
nished to British ships in England (l). In 1818 the, Supreme
Court of Calcutta., following that course, declined to enter-
tain an original suit in rem at its Admiralty side for repairs
done to a ship in Calcutta, of which the owner resided also
in Calcutta.: Henriquez v. The Admiral Moore and W. T.
Bennett (m).
A distinction, however, was taken between original suits
by material men against the ship herself, and suits against
surplus proceeds remaining in the Registry after a sale of
the ship at the suit of mariners for their wages, or in other
suits properly maintainable in 1'Cm, That distinction, upon
the authority of The .Adventure, decided in 1763, and quoted
by Lord Stowell, was recognised by him in The John (n ),
which was, however, a foreign (American) ship, a circum-
stance which he likewise noted. In another case, relating
to the surplus proceeds of the same vessel (o), he also held
that where the demand itself is a subject of dispute, the
Court of Admiralty would not interfere.
In the cases of The Wharton, The Barba1·a, The Harmonia,
The Bombay, and The Unity, mentioned in a note in 3
Hagg. Adm. Rep. 148, and also in 3 Knapp P. C. C. 110,
material men were paid out of surplus proceeds remaining
in the Registry; but in three out of those five cases there
was no appearance given for the owners, or opposition by
any person; and in the two others (The Harmonia and The
Bombay) the opposition at first made was eventually with-
drawn.
The Portsea (p) was a case in which a mortgagee who had
never been in possession, but the bona fides of whose mort-
(k) Montriou R. 227. (l) 3 Hagg. 144.
(1n) East's Notes No. 86; 2 Morley's Dig., p. 156.
(11) 3 C. Rob. 288. (o) Ibid. 291. (p) 2 Hagg. Adm. Rep. 8-1.

_a;. '
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 72 BO.IIBAY HIGH COURT REPORTS.

1868. gage (which was under seal) was not denied, failed, on the
"T;; ~eu.." opposition of the executor of the owner, to obtain payment
out of surplus proceeds. It was argued for the mortgagee,
but denied by the Court, that his case was like that of
material men.
In The Maitland (q), which was the case of a Calcutta ship,
material J)len sought for payment out of surplus proceeds;
their application was opposed by the owners, and the ac-
counts were disputed. It was argued that the principle which
was adopted in The John applied to British, as well as to
foreign ships. Dr. Lushington, for the owners, r6plied that
The John was foreign, and there was no opposition. Sir C.
Robinson refused the application, and denied that there was
"any solid distinction between original suits, and suits
against proceeds in cases that are opposed" (r). I shall pre-
sently again refer to his judgment.
The Neptune (s) was the case of a British ship, and it was
held in the Privy Council, on appeal from, and reversing the
decree of Sir J. Nichol in the Admiralty, that material men
in England have no lien for supplies furnished in England
on surplus proceeds remaining in the Registry after sale of
the ship, under a decree ~f the Admiralty Court for payment
of seamen's wages. There the mortgagee, who had been in
possession when the ship was arrested, at the suit of the crew,
opposed the suit of the material men, and was held, for that
purpose, sufficiently to represent the owner (t), and the surplus
proceeds were paid over to him in respect of his mortgage
claim. That decision has been followed in The New Eagle
(u). The observations of Dr. Lushington incidentally made
in his judgment in The Pacific (v) are to the same effect.

Until the passing of the statute, which I shall next men-

tion, the same doctrine was applicable to suits for necessarieR
against foreign ships (w).
(q) 2 Hagg. Adm. Rep. 253. (r) Ibid. 255.
(s) 3 Knapp P. C. C. 94. (t) Ibid. 120.
(u) 10 Jur. 623, S. C. 4; Notes of Cases 426. (v) 10 Jur. N. S. ll 10.
(w) Sec The Comtesse de Fregeville, 1 Lushington 332; The Ocean,
2 W. Rob. 3il; The Wataga, Swabey, 166.

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ORIGINAL CI\'IL JURISDICTION. 73

The Sta.t. 3 & 4 Viet., c. 65, s. 6, assimilated the law of 1868.

England to the maritime law of the Continent, so far as to "TBit
In.A.re ,,
SIA.
confer on the High Court of .Admiralty in England jurisdic-
tion to entertain suits in rem in respect of necessaries pro-
vided for foreign ships: The Fecha (x), The Perla (y), The
Wataga (z), The Alexander (a).

The Admiralty Court Act of 1861 (Stat. 24 Viet., c. 10) was

a further extension of the powers of the High Court of .Ad-
miralty in England. Soo. 4 gave it "jurisdiction over any
claim for the building, equipping, or repairing of any ship,
if, at the time of the institution of the cause, the ship or the
proceeds thereof are under arrest of the Court." Sec. 5 gave
it "jurisdiction over any claim for necessaries supplied to any
ship elsewhere than in the port to which the ship belongs,
unless it is shown to the satisfaction of the Court, that at the
time of the institution of the cause, any owner or part-owner
of the ship is domiciled in England or Wales," &c. ii< That
enactment, it has been held, did not curtail or affect the Stat.
3 & 4 Viet., c. 65, Sec. 6: The Ella A. Clark (b).
I hM·e already stated that neither of these enactments is,
in my opinion, applicable to this court, but as neither the
owner, nor any other party interested in "The Asia," has ap-
peared, .or opposed this suit against the surplus proceeds re-
maining after the sale and satisfaction of the decree in the
wages suit; and as Mr. Fernandez, the Portuguese Consul,
who throughout this suit has had full knowledge of it, has,-
as I think, very properly,-abstained from any opposition,
kno~ing, I presume, that, according to the general maritime
law of the continent of Europe, a proceeding in 1·e1n wo"Uld,
pursuant to the Civil Law, be allowed in such a case, I think
that, independently of the Stat. 3 & 4 Viet., c. 65, s. 6,
(~) I Spinks Ecc. & Adm. Rep. 441. (y) Sw11bey 354.
(z) Swabey 165, which case shows that a suit may, under the statute,
be maintained in England for necessaries supplied in a Colonial port to a
foreign ship. But neither that statute, nor the Admiralty Courts' Act,
1861, Sec. 5, is applicable to repairs to a foreign ship in a foreign port :
The India, 9 Jur. N. S. 418.-Eo.
(a) I W. Rob. 288 S. C.; l Notes of Cases 188.
* See also Sec. 35. (b) 9 Jur. N. S. 312.
V,-10 0 C

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 74 BOKBAY · HIGH COURT REPORTS.

---=1=-868_._ the Court ie, on the English authorities, warranted in eanc-

J.n re
.. TKB Asu.." tioning a payment out of the surplus proceeds to the plain-
tiffs of such amount as fairly cornea under the head of neces-
saries supplied by them. In the case of The Maitland,
already mentioned, there is a passage in the jndgment of
Sir C. Robinson, which is quoted apparently with approba-
tion by the learned Judge who pronounced the judgment of
the Privy Council in The- Neptune. It is this : " There does
not seem to be any solid distinction between original suits
and suite against proceeds in cases that are opposed ;
whereas in cases unopposed, the exercise of a judicial dis-
cretion by the Court in permitting bills of this kind to be
paid out of unclaimed proceeds, instead of being indefinitely
impounded, may be a sc;mnd discretion, and capable of being
justified to that extent, notwithstanding the general prohibi-
tion" (c).In The John, Lord Stowell, as we have seen, rested
his decree on the grounds that the ship was foreign (which
circumstance standing alone would not be sufficient), and the
claim of the material men being unopposed. In the Afina Van
Linge (d), which was an action for necessaries brought subse-
quently to the passing of -the Stat. 8 & 4 Viet., c. 65, s. 6,
the action went by default, the ship was sold, the proceeds
were paid into the ~gistry, and the Surrogate, by in-
terlocutory decree, found a sum dua to the plaintiffs. On
a µiotion for payment of that sum, out of the proceeds, to
the plaintiffs, Dr. Lushington, after noticing that the neces-
sary moneys had been advanced partly within, and partly
without, the jurisdiction of the court, said : " It must be well
understood that, if such a motion were opposed, the Court
would have considerable difficulty in making the order.
But as on this occasion the shipowner has not interposed
to protect his interest, I shall grant the motion, and I order
the money to be paid out, as prayed."
Had there been any opposition by the owner in this pre-
sent suit, or by any person occupying such a position as
would justify him in opposing, I should be compelled to
(c) 3 Knapp P. C. C. 119, 120; and see 2 Hagg. Achn. Rep. 255.
(d) Swabey 514.

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ORIGINAL CIVIL JURISDICTION.

75
decree against the plaintiffs. But as there is not any such 1868 _
opposition, I decree that a sum of Rs. 2,312-3-5 be paid out In Te
of the surplus proceeds. to the plaintiffs, which amount is less, "THE Asu.."
by Rs. 90, than that claimed by them, as, although the late
Master of the vessel has given evidence in support of the
whole of their claim, I have disallowed the item of Rs. 90
for" dingy hire," because I think he ought to have used the
ship's boat. . I have passed the itetp. of Rs. 50 for "carriage
hire," as it is a necessary in this climate for a. master when
going about, as he did, upon the ship's business. The Por-
tuguese Consul, Mr. Fernandez, is, therefore, to pay to the
plaintiffs, or their attorney properly authorised, the sum of
Rs. 2,312-3-5 and their taxed costs of this suit, out of the sur-
plus proceeds, in his hands, of the said sh:ip, and then forth-
with to pay to the Accountant General the balance of such
proceeds left in his hands. The same to be invested by the
Accountant General to the credit of Admiralty Suit No. 5
of 1867.
lt may not, I venture to hope, be considered presump-
tuous on my part to say that the interests of commerce in
the East would be advanced, were the Legislature to confer
upon the Admiralty Side of the High Courts in India some
of the powers given, in 184'0 and in 1861, to the High
Court. of Admiralty in England, by the Statutes 3 & 4,Vict.,
c. 65, and 24 Viet., c. 10.

Decree for the plaintiffs.

Attorneys for the plaintiffs : Keir, Prescot, and Winter.

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 76 JIOMBAY HIGH COURT REPORTS.

1868. Suit No. 1146 of 1867.

April 28.

VI!HALDA's NAROTAMDA's .................. ... Pla'intiff.

KARSANDA's KESH.A.VDA's et al.......... .. . . .. Defendants.
Practice-Suit by second mortgagee to redeem first mortgage-Necessary
parties-Administrator Gtneral-Act XXIV. of 1867, Sec. 17.
In a suit, brought by a second mortgagee against first mortgagees
(admittedly overpaid) to compel the first mortgagees to convey to him
the mortgaged premises, the heir or legal representative of the deceased
mortgagor is, according to the balance of imthority, a necessary party.
Cases bearing on the above question collected and considered.
Where it was uncertain who was the heir 6r legal representative of the
deceased mortgagor, and the circumstances attending the execution of the
second mortgage were not free from doubt, the cause was allowed to stand
over, for the purpose of enabling the plaintiff to apply for an order to the
Administrator General (under Sec. 17 of Act XXIV. of 1867) directing
him to apply for letters of administration to the estate and effects of the
mortgagor; and the plaintiff was allowed (in the event of letters of admin-
istration being granted to the Administrator General) to amend his plaint
by making the Administrator General a party to represent the deceased
mortgagor. The plaintiff was, however, ordered to give security for the
probable costs of the Administrator General in the suit.

THIS suit was tried in a Divfaion Court before WESTROPP, J.

On the 17th of January 1852, Jankibai, widow of Lalchand

Velchand, mortgaged to the defendants a piece of ground in
Shek Muhammad Street, Bombay, to secure payment of a
sum of Rs. 1,801 with interest (co)llpound) at the rate of
nine per cent. per . annum. The mortgage deed contained
the usual covenant to reconvey to Jankibai, her heirs or as-
signs. Jankibai died on the 2nd of August 1853, having by
her will (dated the 23rd of July 1853) devised the premises
to Narandas Hargovandas, the son of her deceased son Bhag-
vandas. Narand6s was described in the will as being then
fou.r years old.
After the death of Jankibai the defendants entered into
possession of the premises, and at the time of the suit still
contin1:1ed in possession.
Probate of Jankibai's will was, in September 1863, grant-
ed to Narotamdas Trikamdas. On the 20th of July 1866

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 ORIGINAL CIVIL JURISDICTION. 77

Narandas Hargovandas attained his majority, and on the 26th 1868.

of March in the following year he mortgaged the premises N~~:::i!~\
in question to the plaintiff, to secure the sum of Rs. 1,407, KABSANDA
v.
8 1

J1,D.d such further moneys as the plaintiff might advance, with KESHAVDA's
et ai.
interest at the rate of fourteen annas per cent. per mensem,
subject to the mortgage of the defendants. This mortgage
contained a covenant on the part of the mortgagor to redeem
,within two months the defendants' mortgage.

On the 12th of August 1867 Narandas Hargovandas died.

A short time previous to his death he had given instructions
to his solicitors to file a suit against the defendants to re-
deem their mortgage, they having refused to account or re-
convey, except on condition. of the balance alleged to be due
to them being paid.
On the 29th of November 1867, the plaintiff, the second
mortgagee, brought the present suit against the defendants,
and in their plaint, after alleging that the defendants had
been overpaid, prayed-
I. That the defendants might be decreed to execute to the
plaintiff a conveyance of the mortgaged premises free from
incumbrances;
II. That for this purpose all necessary or proper direc-
tions might be given and inquiries made ;
III. That the defendants might be decreed to pay thEJ
costs of the suit.
The defendants put in a written statement (20th Jan.
1868) in which they (without admitting that the plaintiff
was a mortgagee of the premises) admitted that they were
mortgagees, and alleged that they had accounted up to the
25th of December 1867 to Narotam Trikamdas, as repre-
sentative of Narandas Hargovandas.
They submitted that the suit "{as defective for want of
parties, the mortgagor or his representative not being a
party to it, and that the plaintiff could not give a valid
receipt.

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 78 BOMBAY HIGH COURT REPORTS.

1868. They admitted a surplus of Rs. 267-7-6 of rents· payable

V!THALDA'S
NAROT,UlDA'S to the mortgagor or his representative, and stated that
v. they were willing to pay that sum to the Administrator
LRSANDA's
KESHAVDA'S General.
et al.
The issues framed were-
I. Whether, in the absence of the heir or legal repre-
sentative of Narandas Hargovandas as a party to the suit,
the plaintiff could obtain any relief therein.
II. Whether Narandas Hargovandas. duly executed the
alleged mortgage to the plaintiff.
The plaintiff in his evidence stated that Narandas
Hargovandas, the mortgagor, was about seventeen years
of age when he executed the mortgage to the plaintiff, and
that he had no other property than that so mortgaged; that
the mortgagor had stated to him that he wanted the money
to pay some of his creditors, but that he did not mention
their names, nor did the witness as~ for them ; that his
father supported the mortgagor when he was alive ; that
the mortgage-money was paid to the mortgagor about two
months before his death, but that nevertheless he (the
mortgagor) left no money ; that the house was worth
Rs. 10,000; that several persons claimed to be heirs of the
mortgagor, and that he himself claimed to be so like-
wise ;-but that he had never instituted any inquiries as
to who was in fact the heir of Narandas.
White for the plaintiff.
Mayhew for the defendants.
Our. adv. vult.
WESTROPP, J. (after stating the pleadings and facts as
above given), proceeded :-In Palk v. Olinton (a), Sir
William Grant, M.R., said: "The question here is, whether
you can proceed without the mortgagor. I always under-
stood that, before you can agitate the question of redemp-
tion as between two mortgagees, the mortgagor shall be a
party. In Fell v. Brown (b), that is laid down as Lord
Thurlow's understanding of the practice; which was very
(a) 12 Vesey 58, 59. (b) 2 Bro. C. C. 2i6.

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 ORIGINAL CIVIL Jtr&TSDICTION, 79
inconvenient in that instance, the heir being out of the 1868.
.JUrIS
. d"ICt ion
· : yet 1n
. his ab sence L ord Thur1ow wonld no t NAaonMDA's
VITHALDA's

decree redemption against the first mortgagee ; saying the KAas:~oA's

natural decree is that the second mortgagee shall redeem KESHAVDA's
et al.
the first mortgagee ; and that the mortgagor shall redeem
him or stand foreclosed ; and he never knew a decree that
was not so perfected; that is the expression. This appears
to be a rule of long standing; for in Lord Nottingham's
manuscripts I see a. case, Woodcoclc v. Mayne, in .which
it was held, that a second incumbrancer could not ·file a bill
to redeem prior incumbrancers without the mortgagor-the
very same doctrine in express terms."
In Fell v. Brown, Lord Thurlow, L.C., ordered the cause
to stand ov.er in order that the heir should be made a party.
The same course was adopted in Farmer v. Ourtis (c), which
was a suit by a second mortgagee against the first mort-
gagee to redeem and foreclose the equity of redemption.
The mortgagor there was dead, and the plaintiff alleged, in his
bill, that after diligent inquiry he was unable to discover
where the heir of the mortgagor resided, or whether he
was living. Mr. Tur·M r (afterwards Lord Justice Turner),
arguendo, there said: " Now it has been said that the first
mortgagee may keep the estate; but does not that argument
apply to the second mortgagee also ? He, too, may keep the
estate, and get it, without there being anything due to him.
For in the absence of the mortgagor the Court does n9t
decide whether anything is due to the second .mortgagee or
not."
The heir of the mortgagor, Narandas Hargovandas, is the
party whose interest it is the very object of this suit to affect;
and he, therefore, should be before the Court. He is not
what is denominated in Equity a passive party. If the Court
were to comply with the prayer of this plaint, the heir
would be put to liis suit or action to recover possession from
the plaintiff if his mortgage be impeachable ; the legal es-
tate would, by the conveyance of the defendants, if they
were compelled by the Court to execute it, become vested in

(c) 2 Simon 466.

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 80 BOMBAY HIGH COURT REPORTS.

-=--1-86_8_
• ....,..... the plaintiff. In Ireland, where, as here, a sale, and not
VITl!ALDA'8
NAROT.uiDA'e merely a. foreclosure, is usually decreed in mortgage ea.uses,
11 • the heir ofthe mortgagor is esteemed a.n indispensable party,
lu.RSillD.!.18
KESHAVDA'S a.s well in foreclosure a.s in redemption suits: Burroughs
et al. and Gregson's Ir. Eq: Pleader 32. "All persons having a.
right to redeem should be parties to the suit, either as plain-
tiffs or defendants:" Ibid. 127. In Gopey Mohun Thakore v.
Sebun Gower (East's Notes No. 64, 2 Morley's Dig. 105),
which was a. case between Hindus, it was not denied that
there must,be some party to represent the mortgagor. There,
he had died without.any son, but leaving a widow and two
daughters. The widow was deemed sufficiently to repre-
sent the estate of the mortgagor.
In Ramsbottom v. Wallis (d), Sir C. Pepys, M.R., says
that the cases " are quite conclusive, that there cannot be
an adverse redemption between the first and second mort-
gagees, without bringing the mortgagor before the court.
The second mortgagee has a right to do this ; he has a right
to put in operation his security : he has a right to work out ·
the means of payment; but, there being a prior incum-
bra.nc·e r before himself, he cannot do that against the mort-
gagor without putting that prior incumbrancer out of the
way, the only means of doing which is by redeeming. He is
only permitted, therefore, to redeem the mortgage for the
purpose of working out his security. It is very true that
Lord.Eldon gave to a second incumbrancer against the first a
remedy undoubtedly beyond what prior cases would author~
ise ; he put a receiver upon the estate, in the absence of the
mortgagor, adversely against the first incumbrancer. It is
not easy to see how that could be done, except for the pur-
pose of ultimately working out the security, and be the
means of securing it in the mean time. There have been
instances where the assistance of the court . has been offered
to the parties, though in the absence of the mortgagor; but
then the first and second mortgagees concurred, and the
first mortgagee was willing to be redeemed ; but it is, in
fact, only doing that which the parties might do for them-
(d) Coote on Mortgages, Appx .•576, 3rn En.

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OlUGINAL CIVIi, JUIUSDIOTION, 81

selves." The case before Lord Eldon, to which the Master 1868.
of the Rolls there alluded, was Tanfaul v. I1•vine (e}: the first N~1;;;~~:.:~11
incumbrancer was not in possession ; the second incum- KAIISA~DA's 11•

brancer, an annuitant, obtained a receive1• over the lands, the KESHAVD&'s

. . ~~

grantor of the annuity being a.broad, and not a party to the

suit; the bill being filed against the trustees of the legal
estate, ~nd the first incumbrancer. The order appointing
a. receiver directed him to keep down the interest on the
incnmbra.nces (genera.Uy) affecting the estate.
The defendants, I gather from their learned counsel, only
ask for safety, and are not to be considered as opposing the ·
plaintiff's suit further than is necessary for their own pro•
tection. As overpaid mortgagees, they have become mere
trustees for the mortgagor, and may be held liable to pay
interest on all balances in their hands from the time they
were paid in full: Q1tarrel"v. Beckforcl (f), Smith v. Pilking-
ton (g). They declined to convey to the plaintiff, because
they considered that, as between them and the heir of the
mortgagor, they would still be regarded in Equity as ac-
countable as mortgagees in possession, unless the convey.
ance were made with the assent of the heir; and I am not
prepared to say they were wrong.
I am not at all disposed to outstep the authorities in such
a case as the present, by permiUing the plaintiff's mortgage
to be established, or the plaintiff himself to enter into pos-
se~sion, in the absence of some person representing the
estate of the deceased mortgagor. Looking to the tender
age of that mortgagor when he is alleged to have e":ecuted
the mortgage to the plaintiff, to the fact that the plaintiff's
father was in the natare of a guardian of the mortgagor, and
to what the plaintiff has said as to the necessity for that
mortgage, and his admitted apathy in inquiring into that
necessity, a.nd looking also to the high rate of interest
stipulated for by the plaintiff, I am very clearly of opinion
that this is not a case for departing from precedent. But
as I do not think that the property of the deceased mortgagor
· (e) 2 Russ. 149.
(J) Seton on Decrees, 3rd Ed., 469. (f/) 1 D, F. & J. 120,
v.-11 oc

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 82 BODAY HIGH COURT REPORTS,

1868. is at presm,t in a safe or satisfactory condition, and as there

NViTBALDA'~
AROT,\llDA S
exists here an officer with such powers as those of the Ad-
1·. ministrator General, I think that I can, consistently with
KAB.SANDA'S
KEsHAYDA's the precedents, the interests of the parties to this suit, and
et " 1· the safety of the estate, make an order which will ensure
the due representati<;m of the mortgagor's interest. That is;
to allow this cause to stand over for two months, for the
purpose of enabling the plaintiff to apply for an order to the
Administrator General, under Sec.17ofActXXIV.of1867,
directing him to apply for letters of administration of the
estate and effects of N arandas Hargovandas, the decease~
mortgagor, the plaintiffs undertaking to give good security,
to the extent of Rs. 2,000, before the Prothonotary, to in-
demnify the Administrator General against any costs of this
suit : such indemnity to be without prejudice to the right of
the Administrator General to receive his costs, or any part
thereof, out· of the estate, should the Court think fit to order
the same ; and, in the event of such letters of administration
being granted to the Administrator General, the plaintiff to
be at liberty to amend the plaint, and all other proceedings
in this suit, by making the Administrator General a party
to 'the same. This order to be without prejudice ·to the
right of the Administrator General to demand in this suit
that the defendants should account, as mortgagees in posses-
sion, for all moneys which have come into their hands in
that character, and that they should pay into court any
balance found due from them; and also that, in the like
event of the said letters of administration being granted aa
aforesaid, the defendants should pay into court forthwith, to
the credit of this cause, the surplus, Rs. 267. 7.6, admitted
~

in their written statement, and _any moneys subsequently

received by them, after making all just allowances ; and the
Administrator General to be permitted to receive the rents
and profits of' the said mortgaged premises, from the time-
of the granting of such letters of administration. Costs of
the present i,arties to this suit reserved, except the costs of
the day, which the plaintiff is to pay to the .defendants.
If the plaintiff be unwilling to accept the above order, he
may have liberty to withdraw from this .suit, under Sec. 97

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 ORIGINAL CIVIL JURISDICTION, 88
of the Civil Procedure Code, with permission to bring such 1~8.
.n.·
OWJ.er sw't as h e may b e a d v1se
• d ; he 1ort
J.' hwit
• h paying
• to -VITHALDAS'
NAROTAMDA's

the defend.ants their costs of the present suit. KAn;~'!DA's

KEsHAVD.l's
Attorney1:1 for the plaintiff: Mncfarlane ancl Green. et al.
Attorneys for the defendants: 0. E. §· F. Stanger
Leatltes ..
Note. The plaintiff subsequently elected to take the fo1·mcr ordcr.-Eo,

.Aug. 6.
Appeal No. 18J.
BANK OF HINDUSTA'N, CHINA, AND JAPAN 1
(LIMI'l'ED) .................................... A ppellarits. . )/
· 'I f'"t r-7v..,.,'l 'i
PREMCHAND RA'ICHAXD et al • ......... , .•... Respondents. ' l I

Appeal No, 188.

AHMEDBHA'1 HABI'BHA'1 •. ; ••••••••••••••••• • Appellant.
PREMCIIAND RA 1ICHAND et at ............... Respondents.
The Companies Act, 1862 (25 ~ 26 Viet., c. 89, s. 87)-Leave of the
Court of Chancery-Stay of Proceedings-Comity of Courts-Sale-
Ezecution Sale-Purchase-money-Civ. Proc. Code, Sees. 246 and 258
-Hindu Law-Gift of Land-Receypt of Rent.
A suit,may be brought in the Courts in India against a company that is
being wound up under " The Companies Act, 1862," without the leaYe of
the Court .of Chancery being first obtained.
Seinble-The High Court will, in the exercise of its general 1Jower, stay
the proceedings in a suit against such a company where the circumstances
are such as to render it proper to do so.
In a suit, under tlie latter portion of Sec. 246 of the Civil. Procedure
Code, brought by the owner against the purchaser of property, which has
wrongfully been attached and sold in execution of a tlecree, the execution
creditor is properly matle a party, the object being to restore all parties
to the position which they occupied previously to such attachment _and
sale.
When a sale is set aside by reason of the execution debtor having no
interest in the property sold, the purchaser of such property is entitled to
receive back his purchase-money, as on a consideration that has failed.
To make a gift of land complete under the Hindu Law, there must be
either possession or receipt of rent by the donee. The recetpt of rent
may be by an agent, and, if the transaction is bond fide; it is immaterial
that such agent has before the gift receivetl the rent for tl!.e tlonor.
THESE were ·two separate appeals from a decree of
.Arnould, J., made on the 20th of March 1868, in
Original Suit No. 383 of 1867. •

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 BODAY HIGH COUBT DPOBTS.

1808, The plaint-after stating that the plaintiffs, as trustees of

. u;;.~:,~.~- certain religious and charitable trusts, sought to establish
Pu:~a.u.o their claim to certain immoveable property sold in execu-
B..t.'1ca.um tion at the suit of the defendant bank ; and after stating
AK•~=!~•. 1 that one Bai Javervau had by will devised and bequeathed
BAB1'au'1 her whole estate to Kandas Narandas and his brother (since
PaS:~.uro deceased), and by her said will had directed them to" form
L'ICB&ND
et al, an enclosure in which two thousand men could be feasted,
in order that the name of her (the testatrix's) husband might
be perpetuated;" and after stating that Kandas Nllrandas,
in order to carry out these directions, had, in June 18t7,
purchased an om-t called Telvagi for the sum of Rs. 25,000;
and that, in December 1863, Kandas Narandas, in order
further to carry out the said charitable and religious estab-
lishment, executed a Gujarati paper, in the nature of a deed
of trust, whereby he conveyed the Telvacp. estate to the
plaintiffs upon certain trusts therein mentioned ; and after
stating that the said defendant bank (which had obtained
a. decree for Rs. 1,12,003-15-0 against the said Kandas
Narandas) had attached in execution, under Sec. 235 of
the Code of Civil Procedure, the said Telva~.i estate, and
(though informed of the existence of the said trust deed)
had caused the estate and interest of the said Kandas
Narandas in the same to be sold by the Sheriff, which sale,
accordingly, had taken place on the 22ndofNovember 1866,
when the said estate had been sold to Ahmedbhai Habi-
bhai for the ~um of Rs. 56,300, who claimed to hold the said
estate as absolute owner-concluded thus :-" The plaintiff's
now, under Sec. 246 of the Code of Civil Procedure, seek to
establish their title as such trustees of the said estate of
Telva<J.i, and pray that they may be declared, as against the
defendant, Ahmedbhai Habibhai, to be absolutely entitled
thereto, and they pray that this Ho~orable Court will grant
them such further and other r~lief in the premises as shall
seem fit, and the circumstances of the case may require."

The defendant, Ahmedbhlli Habtbhni, in his written state ..

ment, alleged (-inter aUa) that the Telvagi estate was th&
• property of Kandas Narandas, and that the conveyance of

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 ORIGINAL ctvlL JURISDICTION.

it t.o trustees in 1868 (if such conveyance ever existed) was 1868.
an 1 usory, and not a bona~ J"'""e
IU
conveyance, a.nd that t he BANlt 01' HIN•
0
}}
»uBTA'N, &o.

trusts alleged to have been therein declared never did in Pux~;mm

fa.et ·affect the said premises. RA'1cBAN»
et al,
He further alleged that the trustees named in the deed of ABn»nA'1
HABI'BBA11
1863 never took possesssion of the property, which remained i•.
in the books of the Collector in the name of Kandas N{U'an- PH]((JIIAN»
RA 11CBAND
das, and that it was in his legal and actual possession, and ,t al.
not in that of the trustees, at the date of the s9:id attachment.
He also prayed that, if necessary, the conveyance of 1863
should be declared fraudulent and void, and that he might
be declared absolutely entitled to the premises.
The written statement of the Bank of Hindustan stated-
I. That the bank was an English registered joint stock
company, and traded by agents only .in Bombay, and was
not registered under any of the Indian Joint Stock Com-
panies Acts. ..,,
II. That it was then, and at the time of the commence•
ment of the suit had been, in voluntary liquidation under
The English Companies Act of 1862 (25 & 26 Viet., c. 89),
subject to the supervision of the High Court of Chancery in
England.
It was submitted, therefore, that, under Sees. 81 and 87
of The English Companies Act, no suit could be maintained
against the said bank without the leave of the Court of
Chancery having been first obtained. It was also submitted
that the said bank should be dismissed from the suit with
costs, no reliefluwing been prayed, nor any case having been
ma.de against it by the plaint, and the bank having unneces-
sarily been ma.de a defendant.
25 & 26 Viet., c. 89, s. 81 :-" The expreHion 'the Courl' in this part
of this Act shall mean the following authorities (that is to say)* * * *
In the case of a Company registered in England that is not engaged itt
working any such mine as aforesaid-the High Court of{)hancery."
Sec. Bi :-" When an order bas been ·made for winding up a Company
under this Act, no suit, action, or other proceeding shall be proceede~
:..nth or commenced against the Company except with the leave of the
Colll't, and subject to 11uch tel'Dll u the Court may impose." ·

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 86 BOXBAY HIGH COURT BEPOBTS,

J!IM. After the attachment mentioned in the plaint had been

»::!:.!,1l':.· laid upon the Telvatji estate, the trustees (the.present plain-
"' tiff's) came in (under Seo. 246 of the Civil Procedure Code)
:PllJ:KCHANQ, ,
JLA'1CJW1» 1 and asked to have the attachment.set aSide. They were unsuc-
.A.K:!:!'HA,1· oessful, and consequently brought this suit, under Seo. 246,
Hu1'B1u'1 within a year from the date of such unsuccessful application.
• •
Pll}IXCBAND The learned Judge found that the plaintiffs were entitled

"AA~c~» to the relief they prayed; that the suit was properly pro-
ceeded with against the Bank of Hindustan, though the leave
of the Court of Chancery in England had not been first
obtained for proceeding therewith ; that the bank was not
entitled to be dismissed from the suit with costs for the
reasons stated: in its written statement. He, however, by his
llecree, dismissed the bank from the suit without costs.
Pi.got and Dunbcw, for the appellants :--The object of the
section on which we rely (Sec. 87 of 25 & 26 Viet., c. 89)
is to leave it in the hands of the court under which the com•
pany is being wound up, and which is cognisant of all its
affairs, to determine whether or not to admit the various
~Jahns that may be brought against it, This is for the
interest of all parties concerned, between whom the Court
of Chancery will do complete justice. Its object being thus
beneficial, the words used have been made as wide as
possible.
[CoucH, C.J. :-Do you contend that this section applies
. to the courts in this country, India not being mentioned in
the A.et f] Yes. The words are general:" No suit shall
be brought.'' Grave inconvenience would at•ise, and the
object of the A.et, which, as of it Bankruptcy Act, is to
divide the assets- 1•ateably amongst the creditors; would be
defeated if snits were !1-llowed to be brought without such
leave obtained. Suppose most of the assets were in Bom-
bay, and a creditor were to obtain a decree without such
leave being obtained and proper terms imposed upon him,
he might sei1:0 in execution the whole a.mount of his debt
and costs, and leave the other creditors without any assets
wherewith to satis(y their claims. [CoucH, C. J. :-This courfl
might and doea interfere in such C6llle8 to protect the assets.]

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 ORIGllfil CIVIL JOllllDICTION-. 8?
The result then would be a~ more unfortunate. The 1868.
OJ' HIN•
c1"fflutor
--.3!
wh o had ob"'-
w.m . ed JU
. dgment h ere mus t nee d s res02' t BAN&:
nuau'N, &c.
to the Court of Chancery for satisfaction, and that court might Pux~;,.,ni
refuse to recognise the juogment of this court, its aanction RA'1c1mm
for bringing the suit not having been obtained. On the AHx~!.
4 ,l
other hand, a slight delay is the only disadvantage under Hur'111U.'1
which the creditor labours, and that is a. result occasioned Pui:;HAND
R.\'ICH4ND
by the fact of a creditor dealing with the agents of a com- ,t al.
pany registered in England. There is no authority directly
in point, but the case of Ronald v. FldUJ(l/rds (a) determined
that a. certificate in bankruptcy (and proceedings in bank-
ruptcy must be taken to be aµalogous to proceedings under
the Winding-up Acts) was a bar to proceedings against the
bankrupt in the Supreme Court of Calcutta taken by a
creditor who had no notice of the bankruptcy. That case
seems to have been followed by the High Court in Calcutta,
which, when applied to under Sec. 87, stayed all proceed.
ings : Peifsch v. Tlw Commercial Bank Corporation (b).
[OouoH, C. J. :-The court has a discretionary power to
stay proceedings.] The judgment of Phear, J., goes much
further than that. Even supposing the court here is not
bound to stay proceedings, it onght, in its discretion, to do
so. That is the mode in which the Act is taken advantage
of in England : Langley v. Smith (c); Lindley on Partnership
1255; see, too, Wilson v. Tlio Natal Investment Oo. (d).
Further, it is contended that the bank ought not to have
been made a party to this suit. This is practically an action
of ejectment. No relief is sought for as against the bank,
nor could any be obtained : DhonqJ, Mathuradas v. Ramji
valad HanmanM, (e). The Sheriff sold this property; the
bank did not, nor did it in any way guarantee the title. It
is not even alleged in the plaint that the bank is a 'wrong-
doer. If the bank acted maliciously or without due caution,
it would be reasonable to make it ·a party ; but nothing of
the kind is even alleged. (CoucH, D.J. :-The bank ha~ in a

(a) 1 Knapp P. C. C. 259. (b) 1 Ind. Jur., N. S. 263.

(c) 3 B, & S. 938. (d) 15 Law Times 65~ .
•
(e) 4 Bom. H. C. Rfp., A.C.J . 114.

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 88 BOXBAY BIGR COURT R!POBTS.

------=,,...+· formal way attacked \he title or the plaintiffs. Have not,
then, the plaintiff's a right. to make the bank a party ?]
[SARGENT, J. :-Where a decree-holder directs the Sheriff,
through the court, to attach ceri;in property, «loes he not
AHllll:DBHA'I set up such an ol>fectiou·'r o1lielit1eoIUie·owner·asto justify

H.t.BI~B4'I, the" !atter 1ll }!l&ki!ij_~~~pa~i-~o-~~siii~-t~e'atablish his

PaucHAND title ?] In the present suit, at any rate, no ·relie11s prayed

R4'ICll4ND""'----..- fi .
et 111. against the bank; there ore, none can be obtained. On t}le
merits of the case, the decree <;>Ught to have been in favour
of the bank with costs-also in favour of the other defend-.
ant: The .Attorney General v. Poulden (!). The gift to
the trustees was incomplete under the Hind(, law, as there
was no delivery of possession nor receipt of rent : Harjivan
.Anandram v. Naran Haribhai (g).

White and McOulloch, for the respondents :-It is difficult

to draw any analogy from the Bankrupt Laws. A certifi-
cate in bankruptcy seems to operate upon the status of the
bankrupt. [CoucH, C.J. :-That is not the ground on which
the decisions on that point are founded. The principle
seems to be, that it is unjust to hold a man still liable for
his debts who has parted with all his property to his credi-
tors.] At any rate, it is a principle which ought not to be
extended. If the contention on the other side were well
founded, this Court would be actually bound,-not by the
comity of courts, but by law,-to say that, even as against a
wrong-doer, no action could be maintained in ~he case of a
company being wound up. Cases may be imagined in which,
the law here being different to the law in England, the
Court of Chancery would refuse its leave to file a suit. Is
this Court, then, to abrogate its own functions, and refuse
relief ? This Court would never do that unless compelled
to do so. The general law is clear. English statute law
does not extend to India, unless India is specially men-
tioned. There are provisions in the · English Compaities
Act for·putting it in force in Ireland and Scotland, none as
to India-expressio 1tniiis exclusio altei·fos. If, then, there
be nothing in the nature of this Act which shows that

(J) 8 Sim, 472. (fl) 4 Bom. H. C. }Jep., A.C,,J. 31.

•

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 •
OR.JOINAt CIVIL JURISDICTION, 8.9
its provisions are intended to apply to India; there is 1868.
nothing in its words which would necessarily have that BoAt~KT.
s AN,
~~ H&,N--
C.
effect.. The words of the Wagering Act (8 & 9 Viet., c. 109, t ·.
Pnirn<'HAND
s. 18) are equally general, yet it has been held that its pro- RA'1c%1No
visions do not apply : Ra,mloll Tlwcl.:001"s1,ydctss v. Soojmn- Att 1 ;!:!~A'i
rml Dliondmu.ll (h.). EJH'(ml.~ ,·. Ronalr:l (supra) stands alone. Hn.11'Btt.t'1

That seems to have been.. decicled upon the words of the Act, PnE;~HANn
which said "that a certificate shonld be a bar in any of His R,',cnAxo
et al.
Majesty's Courts," of which the Supreme Court of Calcutta
was one. [CoucH, C. J. :-Sitla1rny Y. Hay (1) was like it.
All the cases on this subject are reviewed in Bartley v.
Ho~c.~ (j).] A curious point on this anomalous case of bank-
ruptcy is, that the benefit is not reciprocal between the
Colonies and England: ,vestlake, Internat. Law, 230,240,
241. In the case of Peitsch v. The Oommercia.Z Bank the
suit wa,; stayed. That was done in accordance with the
principle of the comity of courts.
As to the question whether or not the bank was a proper
party, a distinction must be taken between necessary and
proper parties. We do not contend that the bank was a ne-
cessary party. I.~J},1,E:l j~4g1!.1~1:~ ,.~~:~djtot.~t~"?e _11}.a?~.~P~X-t!
J,n any~ase ? If he can be made a party in any case, he is
liable to be made a party in every case. It must be that he
is interested. Take the case of mo;eable property attached
and sold; the purchaser goes away wit.h the chattel. Is the
owner without remedy ? Is not his course to proceed against
IV
the person who has the proceeds of his chattel in his pocket,. /
Is the latter to be allowed to say : " I did not sell your f
chattel, hut only the interest of my judgment debtor in it" ?
[CoucH, C. J. :-The sale is the act of the Court.] True,
but the court acts upon the representations of the judgment
creditor. [CoucH, C. J. :-'l'he act of the Court is not minis-
terial oniy ; it is judicial. 'fhe Court, under Sec. 246, decides
against the claimant, and in favour of the execution creditor:] I/
When the sale is set aside under Sec. 258, the purchaser is
entitled to recover back his purchase-money as on a failure
of consideration: Gl'ecsh Olmnder Pottw· Y, Lookhooda Moyee
(h) 4 Moo. Ind. App. 339.
(i) 3 B & C. 12. (j) 3 0 L. J. Q. B. 352.
V.-12 0 C

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 90 flOMBAY HIGH COURT REPORTS.

__1808. __ Dalw (le); B1'0jendnr Roy Olwwlwy v. Jugunath Ruy (7); Mo.
n;:s~:,~,H&t ha,wncl Holclm· v. Akial Meha1da1· (m).
These cases have
11 •
PREM CHAND
' given to 8ec. 258 of the Code a broad construction. In
RA'ICHAND the case relied upon on the other side, Dhontj,u Mathiwadas
et al.
AHMEDBHA'I v. Ramji 1:alacl Hanmcmta, t,he very narrowest construction
H,\BI'BaA'r was applied to Sec. 258, merely because it follows a section
i·.
PREMcaAND which speaks of setting aside a sale for irregularity. If
RA'ICHAND
et al. this narrow construction be adopted, it will be disadvan-
tageous to all parties concerned. The purchaser will not be
secure in his title. The creditor will not be able to sell the
/ attached property to a.dvantage, which of course will react
upon the judgment debtor. In this case we substantially
ask to have the sale set aside. We are also entitled to sue.
ceed upon the merits.

P1'gut in reply :-The cases cited on the other side are not
in point. In all of them the sale was set aside, which has not
been clone here, nor was there any prayer to that effect. If
it should turn out that this TelvacJi estate was the' property
of the plaintiffs, nothing at all was sold. [SARGENT, J. : -
If your argument is sound, a third person whose property is
,,. ,.· proposed to be sold by the judgment creditor is not inter•
ested, and ought not to interfere;.] HC' comes in to prevent
his property being handed over. [Coucn, C.,J. :-Not only
that, but t~ prevent the order for sale from being made.]
[SARGENT, J. :-If the bank had not been made a pa1'ty,
could not the .~£fe11d3.:.~t1_4~1!1_e,clp:9Ai,_lf~9'£!P.~~J.11mre insisted
ou its beiD.g.,j_Qjpe~ as a . co-:defep,dant. Such is the course
in Courts of Equity~to avoid multi~~.~~~~<2.f~uits. A man
sues for a claim against me, in consequence of which I have
a claim against some one else. I can ask to have that per.
son made a part,y, so that complete justice may be done in
II the suit.] That might be so if the sale were to be set aside;
but that is not done. The case of Dho1u/,·11. Mathuradas v.
Ramji valad Hanmanta is conclusive,

Our. adv. vult.

(k) l Cale.'. W. Rep., Civ. R. 55. (l) 6 Cale. W. Rep., Civ. R. 147.
(m) 9 Cale. W. Rep., Civ. R. 118.

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 ORIGINAL CIVIL JURISDICTION, 91

6th Aug. CoucH, C.J. :-In these appea1 s, which were 1868.
,
h eard t oge th er, t h e C·ourt has t o d etermme h , BANK OF lilN•
t ree questions : Dlisl'A'N, &c.
Whether, in order to maintain a suit a 00'ainst the Bank of r REMCHAND i,.

Hindustan, which is now in liquidation under t.he orders of RA'1cHAND

the Court of Chancery in England, the leave of that cow-t is AiDt:!·uA'i
not necessary; whether, supposing such leave not to be H.rni'nuA'r
-v.
necessary, the bank was properly: ma~o a party; and whether PREMcuAND
< R.-1.'rcRAND
thera was a complete gift of the property in this suit to the et al.
trustees of the charity. In the last question two are in-
cluded: one, whether there was a compl~te gift according to
the Hind(1 law; and the other, whether there was not a secret
trust in favour or,' or a power of revocation reserved to, the
grantor. .A.s to the first question, it was contended that
leave was required by Sec. 87 of the English Companies
.A.et (25 & 26 Viet., c. 89). The words of that section are :
"vVhen an order has been made for winding up a Company
under this .A.et, no suit, action, or other proceeding shall be
proceeded with or commenced against the Company, except
with the leave of the Court, and subject to such terms as the
Court may impose." 'rhe Court in this section is defined
by Sec. 81 to mean the Court of Chancery in England. It
was argued before us that this provision extended to actions
brought in this country and by persons domiciled in India,
as the _plaintiffs in this suit were.
'fhe ,rule as to the English statute law since 1726 applying
here, is stated by Mr. Morley at page 23 of his Introduc-
tion. He says that the law which governs the courts is
the statute law expressly extending to India, which has been
enacted since 1726, and has not since been repealed. It
appears to me that this definition is defective, and it is
necessary to add to the word " expressly" the words " or by
necessary implication." That seems to me to be the result
of the dacision in Edwcwds v. Ronald (ubi s·upra). No rea-
sons al'e given in the judgment, but, looking at subsequent
cases in which that decision was discussed, especially the
case of Sidaway v. Hay, and the reasons relied upon by
counsel before the Privy Council, I think we are justified
in concluding that the grounds of the judgment were, that
this pal'ticular statute extended, by reason of its terms, to

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 92 BOMBAY HIGH COURT REPORTS,

1868. the Supreme Court at Calcutta. What we then have to

BANK 0; H&ni-consider here is, whether the Act (25 & 26 Viet., c. 89,
Dl'"STAN, "C.
v. s. 87) is by necessary implication extended to India, and .
PRE}ICHAND
R-l'1cnAND to persons domiciled in India. 'J'he words of the section,
et a.l:
AHMEDBHA'l
no doubt, are general, but that of itself is not a sufficient
H.un'»H.\'r ground for saying that its provisions apply in India. If
~·.
PaExcH..um that were so, the Act relating to gaming and wagering

Ri:~ 0 :tND would also have so applied, the words being equally gene-
ral; and yet the Privy Council, in the case to which we
have been referred, would not allow that point to be even
discussed. 'fherefore the words of this section are not suffi-
cient to oblige us to hold that its provisions extend, as
contended for, to this counfry. Except the general words,
there is nothing in the statute to show that there was any
intention of' the Legislature to apply thii,; provision to India.
I think, therefore, that we may, and ought, to hold that thiB
clause of the English Companies Act is not extended by
necessary implication.
Although, however, this Court would allow a suit to be
brought without leave obtained, yet, on a representation
being made to it, showing circumstances that would render
it proper that a suit should be stayed, the Court would un-
doubtedly entertain the application, and, in the exercise of
the general power which it possesses, would do what is just
and right to assist the Court of Chancery in winding up the
compa-ny. That is a different matter from saying that no
suit or action can be brought without leave first obtained,
as was contended for. 'l'he result of holding the contrary
would be, that a person, who may have a trifling cause of
action against the bank, would be compelled, either himself
to go to England and bring his suit there, or else ask for
and obtitin the leave of the Court through the expensive
medium of agency. In many cases this would operate as a
complete denial of justice.

I now proceed to consider whether the Bank of Hindustan

was a proper party to the suit. The circumstances are
these. 'l'he bank, having obtained a decree, applied to the
Court to attach and sell the property which is the subject of

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 ORIGINAL ClVIL JURl6DICTION, 93 ·

this suit. The present plaintiffs then came in under Sec. 246 1868, I
of the Code of Civil Procedure. Upon that application the B:~:{1 ~:.· 1
decision was against them. It would seem that after that, PRu~~A'ND I
the defendant, Ahmedbhai Habibhai, purchased the pro- R..1.'1cu..1.ND ,
perty, knowing that an application had been so made. The Aul::;uA'i /j
plaintiffs then brought a suit in accordance with the latter_ fuB1'BH..1.'1
i>,
part of Sec. 246, which says : "The order which may be Puxcuun
passed by the Court under this section 8hall not be subject RA':~!t
0

to appeal, but the party against whom the order may be

given shall be at liberty to bring a suit to establish his right
at any time within one year from the date of the order."
What is the uature of the suit thus brought? It is a suit
to establish a right. What, then, is that right ? Sec. 246
empowers a party to apply to the court to release the pro-
perty from attachment. What, in fact, he claims is, that
the lands are not to be sold. It is his right that the lauds
should not be sold. When a suit is brought, it is a suit to
establish that right, namely, that the lands ought not to
have been sold. The course to be pursued under that sec-
tion is not an appeal, but what the Legislature has sub•
stituted for an appeal, probably deeming that in a suit the
facts would be better and more thoroughly investigated than
in an appeal.

If that is the nature of the right and of the suit that is to

be brought, the suit is ~~~~lly ?ne to :3et aside.. th~-sal~
already made, and to restore the partie3 to the position which
they originally occupied. And if the right of the plaintiff is
established, the proper decree to be made is that the sale
should be set aside. It is, therefore, impossible to say that
the bank is not a proper party. It is not now necessary to
determine what is the proper course to be pursued by the
p~haser in order to recover bac...!,Jl~,2~~~!!3:.s~;~onoy. It
may be that, under Sec. 258, in a properly constituted suit,
the Court ought to direct the money to be restored. I give V
no opinion upon that; but it is quite clear that, the object of
the suit being to set aside the sale, the bank is interested,
and was properly made a party to the suit, and that on that
point the learned Judge came to a correct conclusion,

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 94 BODAY HIGH COURT REPORTS ,

1868. The remaining question goes to the merits of the case.

~~::. .?:, t~· Was the gift complete according to Hindu Law ? 'l'he case
Piu.:.11~~.L~D quoted in the argument shows that, according to that law,
R.\'1oaAso to givo effect to a gift, there must be possession or receipt

· Au:u:~:;A,1 of rent. I have read onir, and fully considered, the evi-
H.\aJ'nHA'I dence on this point, and I think the result of it is that there
t•.
l'1U1:MoHA?u1 wa::; a receipt of rent. Vithald(1s Vittandas was appointed
RA'ICIIAND
et al. to colltlct the rents of the property. It is true he had col-
lected them for Kandas N11randas, but still it was quite
allowable for the plaintiffs to appoint him. He did collect
rents. 'Nas it done for the plaintifl'!; ? 'l'he· books were
produced, in which it appears that the rent collected was
credited to the charity, and against the sums so credited
other sums were debited, as having been expended for the
purposes of the· charity. The plaintiffs could not reeeive
the rents in person; they were at perfect liberty to appoint
an agent, and receipt of rent by him is sufficient, according
to Hindu Law.
It only remains to consider whether this was a gift for
charitable purposes ; and upon that point I am: satisfied that
it was what is sometimes called a gift "out and out." }'rom
the time the deed was executed, and for a considerable
period, the proceeds were credited to the trustees, and the
trusts were to some extent carried out ;-very little, it is
. I

true, with respect to this property, but still to some extent.

Some allowance must be macle for the dilatory way in whieh
these matters are carried out by natives, and also for the
circumstances of the time, which caused the performance
of the trusts to be postponed to a future occasion. I need
not go at length through the evidence, which was fully
discussed iu the course of the argument, and which I have
since considered with my brother Sargent : and, thoug·h
not without difficulty, I have come to this conclusion. I
think the parties were acting bona jide, and that the pro-
perty passed to the plaintiffs.
SARGENT, J. :-I see no reason to change the opinion which
1 formed when the case came before me in chambers.*
"' Upon motion made on behalf of the bank to reject the plaint.

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 ORIGINAL CIVIL JURISDICTION, 95

That Seo. 87 of the Companies Act does operate as a __1 ~

. • f ( BANK 01' HIN•
bar to a smt brought without leave o the 1ourt of nusu'N, &o.
Chancery can be put upon two grounds only : that the sec. Pin::~HAND
tion extends to India; or that, from the comity existing be- RA'10RAND
et al.
tween the Courts here and at home, this Court is bound to .Am!Ensiu't
treat the want of' that leave as a bar to the suit. Now that Hrn'»H 4'x
v.
an .Act of the English Legislature subsequent to 1726 may Pauca.1.ND
1
RA IOHA.ND
extend to India, it must.be so by express words or necessary efal,
implication. Here there are no express words, but it was
contended, from the analogy of the case of Eclwm·ds Y,
.Ronald, that this section must be so extended by necessary
implication. There are no reasons given for the decision
in that case, and it was probably decided on the ground that
the Aot applied to the Supreme Courts in India, as included
in the expression "any of His Majesty's Courts."
, Here, however, we have only such ordinary general fan.
guag_e as was necessary to effect the object of the section
within the United Kingdom, for which the Imperial Legisfa.
tnre must 1n-ima facie be presumed to legislate.

Then as to the comity of courts. On looking at the Eng-

lish cases decided on the effect of a discharge under Colonial •
and Scotch bankruptcy laws, it is to be remarked that they
one and all assume that no such comity or international law
exists. In Bartley v. Hoclges it was simply said that the Vic-
toria statute did not apply to Great Britain. So in the Scotch
sequestration case the judgment proceeded on t-he ground
that the Act was an imperial Act, and that there was nothing
in it which showed that it did not extend to England.
Still less should comity · require a foreign court to give effect
to a section which would oblige every man having a claim
against the company to lay all the particulars of that claim
before the Court of Chancery in England, before attempting
to establish it in the courts to which he was of right entitled
to resort.
-
The Courts here might indeed, under proper circumstanre3,
and where no injustice would be worked, give effoct to it
partially, by staying proceedings; but that is quite a different

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 96 BOMBAY HIGH COURT REPORTS ,

1868. matter from saying that no suit can be instituted until leA.ve
B~s~A~!, !t of the Court of Chancery is first obtained.
v.
PnElleHND As to the second point, I think that a suit under Sec. 246
Il.\':~H:t 0 was intended to restore all parties to tl1ei1• former state.
- ARMEDB~A~'11 The section say-:i the suit is to establishth~plaintiffs' right,
HABl'BR.\ I
i•. and that right is clearly to have it declared that the pro-
~:;~c~:~;1. pcrty belongs to tho plaintiff~ and should not luwc been sold,
. et al. ' and to have the sale consequently set aside. If so, all
parties interested in the proceedings. in· execn t.ion must he
affected by the judgment, and on this ground the bank is a
proper party to the suit. But I think the bank was also
properly made a party, .!:,O av~~~~~pli~},~ l~ suits. A
questioq must arise between the -~_!i,?~ creditor and
the purchase~. There must be an equity on the part of the
latter to recover b~!_!_i,'.l,_p~1~-~s~:~1o~~Y,.. ~ e consi-
deration
...........- ... for it has... failed.
...
This depends on the general
principles of Equity, and it also appears that it is so _under
..§.~c.,.,29$.. of the Codo of Civil Procedure. That section,
in my opinion, being general in its terms, applies to all
cases in which a sale is set aside, and not merely when it is

J. set aside by reason of some irregularity in the proceedings :

n.ncl so it would npp0,r to have been decided hy the High
Conrt in Calcutta. Whether, therefore, we look t<, the
I words of the Code, or the general principles of Equity, there
must be a question between the execution creditor and the
purchaser in such a case as this. The former is, tl1erefore,
interested in the subject-matter of a suit in which the whole
question might be gone into.
Mr. Pigot, however, contended that in this particular case
{ the bank ought not to have been made a party, as no relief
i is prayed against it. The plaintiff.c, haye, howeyer, set out
i
&11 the circumstances of the casP, under Sec. 246. They ask
for a declaration of right to the property, and then follows
a. prayer for general relief, which would include the sett-ing
the sale aside. It is true the declaration of right to the
~ property is prayed " as against the purchaser," hut that when
!i made in this suit must be equally binding as against the
bank, and, therefore, the Court conld, under the prayer for

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 ·r.

ORIGINAL CIVIL JURISDICTION, 97

general relief, grant that to which the plaintiffs and the 1808.
, , lhNK O}' HIN•
purchaser are abke entitled, namely, to have the sale set ~us·rA'N, &c.
aside. It is true that a prayer fo.r general relief is not in P ltEllCHAXD 1,•,

accordance with the provisions of the Code, which in Sec. 26 RA1'ca.um

-- - -~- .._,.-w,-~ et al
declares that the plaintiff must ask for the specific relief he AalCED»~A'i
claims. If the defendant h~d raised that point at -theooi:" HAUI'»HA1'
11,
set, the Judge would doubtless have ordered the requisite Pn:t:~caAxo
amen d men t to b e made, b ut as th e b ank d1'd not ob'~ect 1u . RAIetCH.Um al,
the Division Court, it cannot now be allowed to do so.
As to the question that arises on tho merits of this case,
I agree with ~vhat has been said by the Lord Chief Justice • .
Decree confi1'11ied.
Appeals dismissed wt'.tli costs.

Attorneys for the plaintiffs: ·.Macfarlane and Green.

Attorneys for the defendants in both cases: Rimln9to11,
. Hore, and Langley.

Appeal Suit No. 141. Sept. 3.

KHARSHEDJI NAsARVA'NJI. CA'MA' et al....... Appellants.

THE SECRETARY OF STATi IN COUNCIL OF
INDIA ••••.•••••••••••••••••.••••••••••••••••••• Respondent.
Land required /01· public purposes - .4.ppointment of Arbitrators-
Laches-Waiver of Right to have entire Manufactory taken-Neg{ect to
put forward Defence in written statement-Surprise-Act VI. of 1857,
Sec. az:--·---· ·· ·
By a Government notification of the 3rd of June 1863, published in the
Gazette, it was declared, under the provisions of Act VI. of 1857, that a
certain strip of land passing by the mill of the defendants was required
for a public purpose, tl1e B. B. aml C. I. Railway, a plan of which land
was to be seen in the Collccto1·'s office.
On the 4th of November following, the Secretary of the defendants'
company received a notice, signed by' the Collector, requiring the owner of
the mill to call at the Collector's office to signify his acceptance or other-
wise of the compensation for the land requh-ed.
The Secretary went to the Collector's office, anll there saw a plan, from
which it appeared that an adjoining well from which the engine of the
mill was supplied with water was intended to be taken, but no compen-
sation for the well or land required was then agreed upon,
y,-13 0 C

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 98 BOMBAY HIGH COURT REPORTS,

1868. On the 28th of November a notice was served upon the defeudauts,
K. N . C,.'.YA' signed by the Collector, stating that he had appointed an arbitrator ou
et al. behalf of Goverument, and requiring the <lefendants to appoint a second
v. OP arbitrator to determine the amount of compensation for the land (dc-
SECY.
STATE ron scribing it) required by the B. B. & C. !:Railway Co.
INDIA,
The defendants' Secretary wrote in reply that the defendants had ap-
pointed an arbitrator on their behalf to determine the amount of compen-
1ation for their land required for the B. B. & C. I. Railway Co.
Semble that a contract was entered into bv the last mentioned notice and
letter of reply to it, of which specific perfo'rmance could be enforced.
Held that the defendants had, by appointing their arbitrator to deter-
mine the compensation for the land required, waivecl any irregularity in
the previous proceedings, and precluded themselves from claiming to have
the whole manufactorytaken under Sec. 32 of Act YI. of 1857, though no
proceeding• were taken in the arbitration for nearly twelve months
subsequently, and the defendants had shortly before such proceedings
Jllll.de such a claim.
A well in a mill compound from which the mill's engine is, by means
of a pipe, supplied with water, is part of a manufactory within the meaning
of Act VI. of 1857, Sec. 32.

THIS was an appeal from the decision of Sargent, J., deli-

vered in a. Division Court on the 26th of March 1868.
The facts of the case were as follow:-
The plaintiffs, who were Directol'! and Trustees of the Ark-
wright Cotton Mill Company, as such were possessed of a
certain manufactory called the Arkwright Cotton Mill. This
mill was -situated near the Chaupati Road in the island of
Bombay. It was built in a compound or enclosed piece of
ground, to a lease of which the plaintiffs were entitled for the
unexpired portion of a term of ninty-nine years.
Water for the use of the boiler and engine by which the
mill was worked was supplied from a well in the compound,
about thirty feet distant from the engine-room. The natural
flow of water in the well was supplemented by water con-
veyed into it by means of pipes connected with the Vehar
waterworks.
The evidence adduced at the trial showed that, although
the position of this well, with referen~e to the engine-room,
was particularly well adapted for the working of the ~ngine,
other wells could be sunk in the compound which "would
yield an equally large snpply of water, and that th~e

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 ORIGINAL CIVIL JURISDICTION, 99

engines could be worked almost, if not equally, as advan- 1868.

t ageousIy as firom th . ques t·10n.
. e we11 m K. N. C.-1.'u&'
et al.
1.'.
The cost of sinking a new well was estimated by the wit- SECT.OF
nesses at from two to three thousand rupees; and the time Sun: FOR
lNDJA,
necessary to complete it from two to three months. .A. wit-
ness for- the defence, Mr. Ormiston, suggested that a well,
arched over, and sunk in the building itself, would, from the
fact of a well so constructed maintaining a lower tempera-
ture and being closer to the engines than the existing well,
answer the purposes of_ the manufactory :even better than
the existing well.
Ou the 81·d of June 1863 a notification was published in
the Government Gazette as follows :-
" It is hereby declared, under the provisions of .A.et VI.
of 1857, that the land on the island of Bombay, described
below, is required for a public purpose, that is to say, for the
Bombay, Baroda, and Central India Railway, and is to be
taken at the public expense :-
" .A.strip of land sixty feet more or less in width, extending
from the point where the Bombay, Baroda, and Central
India Railway line touches the new road to Cammathepoora,
thence crossing Grant Road, Breach Candy Road, Gam Davi
Road, passing by the cotton mill, thence crossing the Mala-
bar Hill Road, crossing Nacooda's Oart, and opening on the
sea-beach of Back Bay. This land is in the occupation of
various individuals.
" Plans of the land, and all particulars regarding it, may
be obtained on application to the Collector of ,J3ombay."
.A. trial line had been made in the direction indicated in
this notification in 1862. The line, as finally proposed to be
taken, was found in May or June 1863. Marks and pegs
were then placed to show its direction, and it was then,
where practicable, lock-spitted.
When the line was finally determined on, it was surveyed
by a. Surveyor in the Collector's Depal'tment, and the plan
made from such Survey was that alluded to in the Gazette
notification as to be seen on application to the Collector,

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 100 BOMBAY HIGH COURT REPORTS,

1868. On the 4th of November 1863 a notification, signed by

K. Net ~tiixi' the Collector, was received by Motiram Bhagabhai, the
v. Secretary of the Arkwright Cotton Mills Company :-" To
SECT. or
SuTE FoR Owner of the Cotton Mill. Yon are hereby required to
INDI~. call at my office, on Thursday the 19th instant, to signify
your acceptance or otherwise of the compensation for your
land required by the Bombay, Baroda, and Central India
Railway."
Motiram, in accordance with this notice, went to the Col-
lector's office, and was there shown a plan, which, by means
of a schedule attached to it, indicated the portions of land
proposed to be taken for. the railway. Upon this plan the
well adjoining the manufactory was shown as portion of the
land required for the railway. No agreement as to the
compensation for the land and well was then arrived at, nor
was it proved that any specific sum was tendered as such.
On the 28th of November 1863 the following notice (dated
November 23) was sent to Motiram, signed by the Collec-
tor :-" Take notice that I have appointed Major A. H. Curtis
as arbitrator on behalf of Government, and that, unless you
concur in his appointment as single arbitrator, you are here-
by required to appoint in writing your arbitrator within
fifteen days from this date, to determine the amount of com-
pensation for land situated near and between the Camatee-
poora Road and Back Bay, required for the Bombay, Baroda,
and Central India Railway." On the 7th of December 1863
Motiram wrote in reply:-" Sir,-With respect to your notice
dated 23rd ultimo, I am desired by the Directors of the
Arkwright Cotton Mill Company to inform you that they
have appointed Sorabjee Pestonjee, Esquire, arbitrator on
their behalf, to determine the amount of compensation for
their land required by the Bombay, Baroda, and Central
India Railway Company."
Subsequently C. M. Keir was appointed third arbitrator,
and S. J. Harrison and Nasarvanji M. Petit wct·e substituted
for the arbitrators at first appointed.
After the appointment of the arbitrators the mill con•
tinued to be worked as before, and in March or April 1864

j
I

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i
 ORIGINAL CIVIL lURISDICTION, 101

two new cooling reservoirs were constructed by the Directors __1_8_68_._

of the Company-not, as the witnesses stated, in lieu of the K. N. 0 A'MA'
1
et a.
well for the supply of water to the engin~, but because the SEc;'." or
water in the well used to become too heated for condensing STATE J'OR
purposes, and these cooling reservoirs were required in bou.
addition for the advantageous working of the engine. On
the llth of November 1864,, Mr. C. Tyabji, solicitor, on
behalf of the plaintiffs, wrote to the Collector as follows :-
" Dear Sir,-1 was unable to communicate to you the final
resolution of the Directors until they had time to consult with
competent persons with reference to the practicability of
carrying on the mill aftElr the railway has taken a portion
of the ground in the possession of the company. They have
now come to the conclusion, after obtaining the best advice
on the subject, that it will be impossible to work the mill
_with any advantage when the t;ains are running so close to
the premises, and they must, therefore, part with their entire
interest in the ground and premises, the value of which they
estimate at four lakhs of rupees. The company have a very
valuable lease of the ground, but they have no power to con-
vey an estate in fee simple.-(Signed) C. TYAB.n."
After some further con·espondence and meetings between
the parties, the Acting Collector, on the 17th November, wrote
the following letter to C. Tyabji :-" Dear Sir,-With re-
ference to the conference you have had with Mr. G. Scott,
late Collector, and Mr. Peile, Solicitor, regarding the .Ark-
wright Mill property, I have the pleasure to send you the
sketch plan, as promised, and hope you will be able soon to
let me know that an amicable settlement is practicable.-
(Signed) R.H. SHOWELL."
No settlement was arrived ab.
On the 25th of November 1864 the Acting Col1ectoi'
wrote to the solicitor of the plaintiffs, informing him that the
ground required for the railway would be taken possession
of, under Act VI. of 1857, Sec. 8, on the 28th then instant.
This was accordingly done, and, the well having been filled
up, the mill ceased working on the 2nd of December 1864.
· On the 19th of December 1864 the arbitrators held their

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 102 BOMBAY HIGH COURT REPORTS,

lSM. first meeting. It was then objected, on the part of the

Kr ~i ~{n' plaintiffs, that the arbitrators should arbitrate on the value
SEc~: or of the entire manufactory, and not on the slip only required
STATE roR for the railway. Several meetings were held, and evidence
INDIA, k
was ta en, but no award was finally made, but the arbitrators
came to the conclusion that their functions were limited to
arbitrating on the slip of land required for the railway only,
'.l.'he plaintifls, pending the arbitration, filed their plaint in
the present suit, by which, as amended, they prayed-(!) That
it might be declared that the first defendant (the Secretary
of State) was bound to purchase the plaintiffs' interest in the
whole of the said land, buildings, mill and macl1inery, being
a manufactory within the meaning of Act VI. of 1857, Sec.
32; (2) that the arbitrators appointed under the said Act
might be directed to determine the compensation money in
respect of the plaintiffs' iX:terest in the whole of tbe said
land, buildings, mill, and machinery; (?) that the defendants
and the arbitrators might be restrained by injunction from
proceeding to determine the compensation money in respect
of that part only of the land of wl1ich possession had been
taken by the first defendant on behalf of the Railway Com-
pany; (4) for further and other relief.
The first defendant put in a written statement in which,
after admitting that portion of the land of the plaintiffs had
been taken possession of, he denied that the land so taken
formed part of any house or other building or manufactory
within the meaning of Sec. 32 of Act VI. of 1857. ·
Para. III. The defendant says that no objection was
made on behalf of the plaintiffs to the taking possession by
the Collector of Bombay of the said portion of land prior
to the same being so taken possession of, on the ground that
the same formed a part of any house, building, or mauufac-
tory. /
Para. IV; That the question of compensation for .the
laud so taken possession of was referred to the arbitrators,
whose :6.tst meeting was held on the 19th of December 1864,
when it was objected that a portion of the mauufactory hav•
ing been taken by Gove:rnn1eut, the whole ought to be taken ;

D1g1tized by Google
 ORIGINAL CIVIL J'URISDICTION, 108
and on the part of the defendant it was contended that the 1868.
a r bit rators ought to decide that preliminary objection before -=--=---=--
K. N. O.\'MA.'
et ill,
proceeding with the arbitration. v.
SECY, OF
The written statement then set out in great detail the STATE Fo11

proceedings that took place under the arbitration, and con- lNDB..

eluded thus :-(VIII.) Under the circnmstances aforesaid, the

defendant, the Secretary of State, contends that by reason
of the lachcs and conduct of the plaintiffs in the premises
they are disentitled to any of the relief claimed in the
plaint.
A list of documents upon which the defendant intended
to rely, and which included the respective appointments of
the various arbitrators, was annexed to the written state.
ment.
'lllie .issues framed we~e-(1) Whether the land taken
possession of by theC~llector on the 28th of November 1864
formed part of a manufactory within the meaning of Sec. 32*
of Act VI. of 1857; (2) If so, whether the plaintiffs are not
deprived by their own }aches and conduc.t of the relief
sought, or anypart thereof; (3) Whether the plaintiffs are
entitled to the relief prayed or any part thereof.
The second and third issues were, by the learned Judge
found in favour of the defendant.
The Appeal was argued before Coucu, C.J., and WF.s.
TROPP, J., on the ] 3th of August and subsequent clays.

White (with him lfa.yhew) for the appellants.

The Advocate General (The Hono1trable L. H. Bayley) and
Dunba1· for the respondent.
The following authorities were cited in the course of the
arguments :-8t. Tlwmas's Hospital v. Ohai·ing Gross Rail.
Oo. (a.); SpaiTow v. Deford and Wolverhampton Rail. Co. (b};
Dakin v. London 9· N. W. Rail. Oo. (c); G1·osveno1· v.
* Act VI. of 1857, Sec. 32-" The provisions of this Act shall not be put
in force for the purpose of acquiring a part only of any house, or other build-
ing or manufactory, if the owner desire that the whole of such house, build-
ing, or manufactory shall be taken."
(a) 30 L. J. Ch. 395. (b) 21 L. J. Ch. 731. (c) 3 l>e G. & S. 420;
and see 26 L. J. Ch. 734 in notis.

. •..,:::....<. .
D1g1tized by Google
 104 BOlfBAY HIGH COURT REPORTS,

1868. Hampstead Junction Rai'.l. Oo. (d) J Oole v. West Lon,lon,

=-=-c..,_-:-;
K. N. O.\'YA.' and Crystal Palace Rail. Co. (e); King v. Wycombe Bail. Co.
et al,
i ·. {!) ; Co. Lit. 5. b.
Sxcr. oF
8-rATE l!'Olt
Onr. aclv. vult.
INDIA.,
CoucH, C. J. :-The facts of this case, as proved by the
evidence, I consider to be as follow :-By a notification
signed by the Chief' Secretary to the Government, dated the
3rd of June 1863, it was declared, under the provisions of
Aot VI. of 1857, that a strip ofland si:dy feet, more or less,
in width, extending from the point where the Bombay,
Baroda, and Central India Railway line touched the new
road to Cammathepoor11, thence crossing Grant Road, Breach
Candy Road, Garn Devi Road, passing by the cotton mi11,
thence crossing the :Malabar Hill Road, c1•ossing Nacoodu's
Oart, and opening on the sea beach of Back-Bay, and in
the occupation of various individuals, was required for a
publio purpose, that is to say, for the Bombay, Baroda,
atid Central India Railway, and was to be taken at the
public expense. The cotton mill there mentioned is tho
plaintiffs' mill. In June 1863, according to the evidence
of Pangurang Sukiuji, a surveyor to the Railway Company,
the intended line of railway was set out and marked by
cutting a narrow trench and placing pegs. ,A trial line was
made in 1862, and marked by paint and pegs; and these
were left when the line was set out. The two lines are
correctly shown in the map No. 7, which was put in evidence. "'
The line thus marked out was, according to the evidence
of Govind Gang(idhar, the head surveyor to the Collector of
Bombay, surveyed by the Collector's Department, and a
plan (No. 9) of it made with a schedule, which was to be
seen at the Collector's office by any person who· wished
to do so. On the 4th of November 1863, the following
notification, signed by the Collector, was received by Mo-
tiram Bhagabhai, the Secretary of the Arkwright Cotton
Mill Company, the owners of the mill:-" To Owner of the
Cotton Mill. You are hereby required to call at my office
on Thursday the 19th instant, to signify your acceptance or
(d) 26 L. J . Cb. 731. (e) 28 L, J. Cb. 767, (!) 29 L. J. Cb. 462.

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 ORiaINAL CIVIL JURH!DIC'TION. 10;,

otherwise of the compensation for your laud reqnired for the __1~68. _
Bombay, Baroda, and Central India Railway." This WI\S K. ~i ~{~u·
not such a notice as is required by Sec. 4 of Act VI. of S•:c:r. 1 ,.
o"F
18.57, and the Collector appears to havo paid bnt little S·r.m.: foH
bDl.\,
regard to tho provisions of the Act; but it tok1 the owners
of the mill tlmt their hmd was required for the railwa~·,
nncl that they might rcct'ivo compewmtion for it. Upon
the receipt of this notice, l\Iotir[1111 Bhag[1bhiii went to the
Collector's office, wlH'ro he says he saw a large plan in
which he does not think the well was included that he imw
the surveyor, a Hindt1 (apparently Goviud Gangadhar), who
hacl a large plau, and he does not recollect whether the
well was included. Notwithstanding what this witness sayF:,
I have no doubt that the well was include<l in the plan of the
land at the Collector's office, and iu the intended line of
the railway which had been i:;et out and marked. The plain-
tiff..., might at this time have ascertained, and most pro-
bably did, by their agent .Motirum, ascertain, what portion of
their lancl was. goiug to be taken. Ou the 28th of November
1863, a notice dated the 23rcl, and signed by the Collector,
was ser,·ed upon them. It was as follows : -" Take notice that•
I have appointed Major .A.. H. Curtis as arbitrator on behalf
of Government, aIJd that, unless you concur in his appoint.
ment as single arbitrator, yon are hereby required to ap-
point in writing your arbitrator, within fifteen days from this
• date, to determiue the amount of compensation for land
situated near and between the Camateepoora Road and Back
Bay, -required for the Bombay, Barocla, and Central India
Railway." On the 7th of December 1863 the f~llowing letter
was addressed by :Motirum Bhagabhui, as Secretary of the .
Arkwrighb Cotton l\Iill Company, to the Collector:-" Sir-
.With respect to your notice dated 23rd ultimo, I am desired
hy the Directors of the Arkwright Cotton Mill to inform yon
that they have appointed Sorabjee Pestonjee, Esquire,arbitra-
tor on their behalf to determine the amount of compensation
for their land required by the Bombay, Baroda, and Central
India Railway Company." Now, what was the effect of the
notice of the 23rd of November and this letter? When the
amount of the compensation lmd been settled by the arbitra.
Y,-l.j O C

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 106 BOMBAY HIGH COURT REPORTS,

1868. tion, they would constitute a contract, which could be en-

K. ~t ~( 1u' forced by this court, at the instance of either the Government
· v. or the plaintiffs, the land required being capable of being
SECY. OP
SuiE roR ascertained by a reference to the Collector's plan : Mason v.
INDIA, The Stokes Bay Pie1· ancl Railwciy Company (a). And it is
very material to observe that the plaintiffs were entitled,
not only to compensation fo~ the land taken, but also, by
Sec. 24, to compensation for any damage that might be sus-
tained by them in respect of the adjoining land. But it is not
necessary to go so far as to consider that there was a con-
tract. Wheu the Collector notified the appointment of an
arbitrator, the plaintiffs were at liberty to desire that the
whole of the manufactory should be taken, and the Collec-
tor might then have, either withdrawn his notice of the 4th
of November, and appointment of an arbitrntor: The Queen
v. The Lonclon and South- Western Railway Oornpany (b);
or assented to take the whole and appointed the arbi-
trator accordingly. If the notice· by the Collector of the
4th of November 1863 had been in accordanc~ with Sec. 4
of Act VI. of 1857, the plaintiffs would have been obliged
to give him notic~ that they required the whole ·o f the
mill to be taken, within a reasonable time and before he
proceeded to put in motion the compuls_ory provisions of
the Act: Ga1·dner v. The Gharing 01·oss Ra,ilwa.y Oornpany (c);
Possibly, as the notice was irregular, the Collector might, if
they had remained quiescent, have been unable to take the ..
la1;1d; but, by appointing the arbitrator to determine the
amount of compensation for it, I think they waived any ir-
regularity in _the previous proceedings, and made their elec-
• tion, which, unless they could show it was caused by any false
representation by the agents of the Government, they were
not at liberty to withdraw from. I look upon the case as one,
not simply of ]aches in making a claim under Sec. 32 to
have the whole of the manufactory taken, but of the plaintiffs
having done an act inconsistent with such a claim. Although
no proceedings were taken in the arbitration before the 11 th
of November 1864, the basis of it was unaltered, and could

(a) 32 L. J. Ch. 110. (b) 12 Q, B. 775, (c) 31 L. J. Cb. 181,

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.1-. -

ORIGINAL' CIVIL JURISDICTION. 101

not be altered without the consent of the Collector. I 1868.
think Mr. Showell's letters oftho 17th of November and the K.N;t~flu.'
5th of December do not show that such consent was given, SE;;:o:r
but only that the parties were endeavouring to com~ to an STATE 'FOlt
INDIA.
amicable arrangement.
The written statement <lid not set up as a ground of de•
fence the la~es upo~~~~:h.~~e d:~ision of the court. below
w~~nded ; but the written statement is, by the express
languageoil'he Code of Civil Procedure, to be confined as
mu<:h as possible to a simple narrativo of facts which the
party believes to be materiano· the case, and which he be-
lieves he.JYill be able to _p..rove ; a~d we cannot apply to it the
rules applicable to Equity pleadings. T~~ question was rai~~g.-
bz the second iss~.. and if, upon the facts proved, it -ap-
peared that the plaintiffs wero not entitled to relief, the
Judge was right in refusing it; but I think the first defend-
ant ought not to have the costs, either of the original suit
or of this appeal ; and that the arbitrators should pay their
own costs of appearing on this appeal. The order of the
court below must be amended, by ordering the first defend-
ant to pay his own costs.
WESTROPP, J. :-On the first question whether the portion
of the premises ta1'en falls within Sec. 32 of .A.et VI. of 1857,
there cannot, I think, be any doubt that they do form a part
ofthe factory. The evidence, in my opinion, completely
, brings the case within the authorities quoted on behalf of
the appellants on that point.
On the second question, whether, under the circumstances
of this case, the laches of the appellants has been such as to
deprive them of the benefit of Sec. 32 of the .A.et, I have •
had considerable doubts.
If there have been laches on their part, there unquestion-
ably have also been irregularity and laches on that of the
Collector's Department in 1863 and 1864.
Sec. 4,of the Act requires the Collector to affix a notice
upon a conspicuous part of the land, and to make proclama•
tion that the land is about to be taken by Government for
a public purpose, He does not appear to have done either

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- - --------~=-==
 108 DOM.BAY ltIGH COURT REPORTS,

1868. the one or the other. The section further requires the
.K. N. l:A')U.' C ll . .
et ai. o ector to give notice to the same effect to the occupier,
SEt:~: 01 anll to all persons· known or believed to be interested,
SrAtE FoR who reside or have agents within the district; and that
Ixou..
such notice shall contain a citation calling on all persons
interested in the laud to appear, personally or by agent, at
a time and place therein mentioned, and to state the nature
of their interests in the land, and the amount and particulars
of their claim to compensation for the same. The Collector
has neglected to serve any such notice. 'rhe notice of tho
4th of November 1863, signed by Mr. Scott, t~e Collector,
does not comply with any one of the requirements of the 4th
section. It calls upon the mill-owners to state whether they
will accept the compensation for their laud, but there is
nothing whatever to show that any sum for compensation
was then, or has ever since been, fixed or named by or on
behalf of the Collector. .A. more irregular or meagre docu-
ment I nc-ver recollect to have seen produc_ed from a public
office. One of the principal objects of the notice required
by the 4th section to be served upon the landowner is to
elicit from him a clear statement of the nature of the claim
which he intends to set up, so that the points at issue be-
tween him and the Government may be placed beyond doubt.
Nothing of the kind was ascertained by the Collector.
However, Motiram Bhag11bhfri, the Secretary of the appel-
lants' company, notwithstanding the irregularity of the notice,
went to the Collector's office, and there saw a plan of
the intended course of the line. '!'hat plan I believe to have
been the exhibit No. 9, prepared in the Collector's office
from the Railway Company's plan (Exhibit No. 7). Both of
those plans show that the line was intended to run directly
through the place where the appellants' well was situated.
An alternative line was laid down on the plan No. 7, but it ran
on the other side of the factory, and did not touch any of the
premises belonging to it. Motiram says that, so far as he re-
collects, the plan which he saw did not include thowell; but
he says this in a somewhat equivocal manner, and as Govind
Gangadhar, of the Collector's office, says that there were not
any other plans except No. 7 and No. 9 in that office, Motiralll

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 ORiG1NAL CIVIL JURISDIC'I'IO.&. 109
•
is either mistaken or in:;incere in his testimony on that point. ___ 186~. __
E V1.d ence has also been given on behalf of the Secretary of K · Net CA
al.
1
11A 1

Stat~, that the line had been marked out· by surveyors, or as i· ••

SECY. 01"
they style it, lock-spitted, in June 1863-a long time before STATE rnn
the claim of the appellants that the whole factory should be INDIA,

taken was put forward by them. Motiram also said that the
course of the line had been changed, al!-d that the ruarks
did not include the well. That evidence has not, I believe,
been contradicted by any other witness, but, having regard
to the want of accuracy in what he has said about the plan,
it is difficult to give much weight to what he says with re-
gard to tbe moving of the pegs.

The Collector, Mr. Scott, on the 23rd of November 1863,

wrote a letter to the appellants appointing Major Curtis
arbitrator on behalf of Government to determine the amount
of compensation for the appellants' land required by the
R:1,ilway Company, and on the 7th of December 1863 Moti-
ram replied by letter, on behalf of the appellants, appointing
Sorabji Pestanji Frumji arbitrator for the appellants~ to
determine the amount of compensation for their land re -
quired by the Railway Company. That letter does cer-
tn.inly, in its terms, justify the view taken of it by my
Lord Chief Justice and my brother Sargent. I am not
prepared to dissent from them, but I am not free from
doubts on the subject. Motiram is not, apparently, an ad-
vanced English scholar. His style of writing indicates
this, and his letter, in speaking of compensation merely
echoes a passage in the letter of the Collector to which
be was replying. I doubt whether he, by his reply, iu-
tende~ to limit the claim of the company in any respect, as
he does by the reference in it to compensation for the land
required. Moreover, the letter of Mr. Showell (replying to
the letter of the llth of November 186-t, in which the appel-
. lants claimed to have the whole factory taken under Sec. 32
of the Act) does not affect to·treat them as precluded by the
correspondence with respect to the appointment of arbitra-
tors from raising that claim, nor did Mr. Showell then say
tha.t the ciaim was too late. The appellants' request, made

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 110 BOMBAY HIGH COURT REPORTS.

_ _1 ~ about that time, to be furnished with a plan showing what

K. ~ ~{x,1.' part of their premises was to be taken, and Mr. Showell's
v. · compliance with it,· ~lso tend to show that the appellants
8ECY. OF
STATE Foa were not previously well informed as to the course which
INoi,1., the line was to take. Of the same complexion is the fact
that in March and April 1864 the appellants constructed two
reservoirs in conne.ction, and to be used together, with the
well for the purpose of working the steam engine. That fact
is scarcely to be reconciled witha complete knowledge on their
part that the well was to be destroyed by the line of railway,
or that they had, by the letter of Motiram agreeing to the
appointment of arbitrators, completely bound themselves to
give up the well to the Railway Company, and to be satisfied
with compensation for it. Again, there is no evidence what-
ever to show that the appellants, by any plan or otherwise,
were informed that the line, as constructed through their
premises, would be a et~tting eleven feet beiow the level of
their-compound. No such information appeared either upon
Exhibit No. 7 or Exhibit No. 9, the two plans which lay in
the Collector's office. I find it difficult to hold that the
absence of such information is excusable. A cutting of that
depth through the appellants' land and the adjoining land
could scarcely fail to affect to a considerable extent the sup-
ply of water to any future well which might be constructed
on the premises of the factory. Such a deep cutting would
act as a drain to the adjacent land to the extent of eleven
feet in depth. Under Sec. 16 of the Act, the Collector had
full power to compel the arbitrators to proceed with the ar-
bitration; but so far from his doing so, although arbitrators
were, as has been stated, appointed on both sides early
in December 1863, yet not a single step was taken in the
arbitration until the 19th of December 1864, and no sufficient
explanation of this delay of more than a year has been given
on the part of the respondent. The Goyernment arbitrator
first appointed, Major Curtis, died in April or May 1864,
and another arbitrator in lieu of him was appointed on the
1st of July 1864, and on the 17th of November 1864 Mr.
Harrison was substituted for him. Sorabji Pestanji Framji
resigned, and Nasarvanji Mal}-ikji Petit was appointed in lieu

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 ORIGINAL CIVIL JURil:IDICTION', 111
of him by the appellants on the 16th of January 1865, and -~868. _
Mr. Keir was appointed umpire on the 7th of July 1864. • But K. ~~'MA'!·
these changes do not sufficiently account for the delay. If the i•.
8ECY. Ol'
Collector had exercised his authority, and compelled the arbi- STATE l'OR
trators to proceed, au award might have been made long I,soi.1..
before the first of these changes occurred. The delay in
compelling the arbit.rators to proceed, al.n\ost indicates doubt
on the part of Government as to the course which the line
should take. Further, not one iota. of evidence has been
offered on behalf of the respondent to show that the line was
in November 1864 so for advanced towards the premises of the
appellants as to render it impossible, or even difficult, for
the engineers to make such a deviation as would enable them
to carry the lino clear of the well. I mention November
1864 because it was then that the appellants first made their
claim to have the whole factory taken; and. it would even
then, so for as the evidence goes, have been in the power of
Government to have avoided these pre~ises altogether. At
least, there is not any evidence to the contrary. These cir-
cumstances lead mo strongly to doubt whether we ought to
hold that on the 11th ofNovember 1864 the claim of the ap-
pellants to have the whole factory taken was too late. How-
ever, it is impossible to deny that their delay was very great.
In June 1863 they knew that it was in contemplation that
the line should pass through some part of their premises. The
visit of Motiram to the Collector's office I have already com-
mented upon. The appellants seem, at all events, to have been
very apathetic in their proceedings, and to have made very
slender, if any, inquiry beyond that made by Motirum, who
I think, did know that the taking of the well was in con-
templation. It is, I think, the policy of the Act that early
information should be given by any house or factory owner
intending to proceed under Sec. 32, and to compel Govern-
ment to take the house or factory off his hands. The ap-
pellants have not' done so.

Thl3ir reply, through Motiram,on the 7th of December 1863,

assenting to the appointment of arbitrators, is open to the
view taken of it . now by my Lord Chief Justice, and by·

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 112 BOMBAY HIGH COURT REPOR'IS,

----
!i
K. .
1868.
~i~'i,u ·
Sir Charles Sargent in the Dh-ision Court. That is t.he
natural construction oft.hat letter; and, on the whole, 11.lthongh
Sxc~: o:r with much doubt, I mnst say that I am not prepared to dis-
STATE l'OR sent from tho decision which the Chief Justice proposes to
INDIA.
make.
This decree will not prevent tho appella1its from recover-
ing full compensation for any damage sustained by the factory
conseqnent upon the taking of the well and adjacent land.
That right to compen,;ation is secnrN1 to them by the 2'1th
section of the Act. For the fnll mmuing and scope of the
word "land" used in that section, the interpretation clause
(Ree. 39) should be consulted.
As to the fact of the particular act of !aches, now relied
on, not being put forward in the writJ~n stat~,nt, and,
therefore, coining on tTie plaintiff.~ by ~<;;{~~·prise, I should have
heen wi1Th1g:-1r-rrie J)faintitrs Irnd allegecl"fhat --they were
taken by surprise by the finding of the court, and could
h~·i~g for,~;r~ _a ny fresh eviden~e on that pa;t o~}he case,
to allow them · an opp~~·tunit§ of now bri1~g·ing forward
~~~!1 additional evidence. Mr. White, how-eve-;;· ,vas not in-
structed by his clients that they were in a position to adduce
such evidence ; and no advantage would, therefore, a·ccrue
from making an order sanctioning the production by the
plaintiffs of additional evidence. I quite agree in the order
which the Chief Justice proposes to make with rEgard to
costs.
Attorney for the appellants : 0. Tyabji.
Attorneys for the respondent: HN1m, Olel'elancl, ancl
Pt•ile.

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 ORIGlNAL CIVIL JURI::<DIC'J'ION, 113

.Appectl S11it No. 122. 1868.

Sept. 3,

TnE PENINSULA AND ORIENTAL STEAM NAVI•

GATION CoMPA?>.'Y ........................ ... Appellants.
SoMA'JI VrsnRA'M .... . .............. .. ....... ... Responden.t.

Bill of Lading-I11su.fficiencv of Package-Negligence-Onus of Proof.

The defendants, by a condition annexed to their bill of lading, stipu•

lated that they should not be responsible for " leakage or breakage or other
consequences arising from the insufficiency of the address or package.' 1
The plaintiff shipped, for conveyance from Hongkong to Bombay, cer-
tain goods on board a steamer of the defendants, in packages which were
proved to be insufficient.
These goods, in accordance with a condition to that effect contained in
the bill of lading, were transhipped at Galle.
On their being landed in Bombay it was found that all the packages
were broken, and in a much more damaged condition than is usual in the
case of such goods carried from Hongkong to Bombay in similar packages.
The contents had, to a large extent, escaped from the packages, but were
otherwise uninjured.
Held that, under a bill of lading in the above form, the onus of proving
that the packages were insufficient, and that the injury which they had
sustained was the consequence of such insufficiency, lay upon the defend-
ants, but that when the result of the evidence on both sides was to leave
it in doubt whether the injury was caused by negligence, or was the
consequence of the insufficiency of the packages, the plaintiff was not
entitled to recover.

THIS was an appeal from the j11dgment of SARGENT, J.,

delivered in a. Division Court on the 16th of September
1867, in Suit No. 720 of 1867.
\

The plaint stated that,the plaintiff shipped at Hongkong;

on the 28th of February 1866, on board the steam-ship
"Behar,'' of the defendants, seventy-five chests of aniseed
and five boxes of vermilion ; that the said goods were trail ..
shipped at Galle by the defendants from the "Behar" to the
steamer "Baroda ;" that on the arrival of the "Baroda" in
Bombay the plaintiff caused application to be made to the
defendants for the said goods, and it was then found that,
with the ei:ception of three boxes of vermilion, all the chests
and boxes were broken, and the contents had been removed
V.-15 tJ C

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 114 BOMBAY HIGH COURT REPOR'fS,

1868. thercfrom in part, and such portion as remaiuccl was un-

P. & 0. S. N.
Oo. mark eat ble.
v.
Soiu'n The plaintiff claimed as damages Rs. 5,750. '!'ho facts in
V1SHRA'X,
this case were similar to those in the case of M6tiikji N.
Pad-shu v. The P. 9· 0. 8. N. Co. (a), the claim having arisen
in respect of a portion of the cargo of the same vessel. Tho
defence set up was ~lso the same. The defendants relied
upon a condition iu their bill of lading, which declared "the
company not to be responsible for leakage or breakage, or
other consequences arising from the insufficiency of package."
'l'hey also relied upon a stipulation in their bill of lading
which gave them liberty," at any time cluring the voyage, to
tranship the goous into any other steamer of the clefencl-
ants, aucl for that purpose to land anu store the same at tho
company's expense, but at the merchant's risk."
In the margin of the bill of' lauing the following claui:ies
appeareu:-
" This bill of lading ii:> issued at a lower freight, the ship-
pers taking risks upon themselves. ·
"N. B.-Forms of bills of lading by which, in considera-
tion of an <Ul valorem freight, risks are taken by the com-
pany, are also issued. It is at the option of the shippers
which form they adopt."
The aniseed was packed.in chests which usuallf contained
about one "picul," or, 133J lbs. Some were somewhat
heavier. One contained as much as 160 lbs. The planking
of these chests was of China pine, a soft white wood, three-
eighths of an inch in thickness. They were described as
similar to tea-boxes of the largest size, but the exact dimen-
sions were not given in evidence. They were covered with
China matting, inside of which were bands of split rattan.
'fhesc packages were said to be exceptionally bad, even for
China packages.
T~e vermilion was contained in boxes fourteen inches
long, eight inches broad, and six inc4es deep. The plank-
ing was half an inch in thicknes~, bf China pine. These
(a) 4 Bom. H. C. Rep., O.C.J. 169.

D1g1tized by Google
 ORIGINAL CIVIL JURISDICTION. 115
boxes were also covered with matting, and weighed each 1808.
about fifty-six pounds. P. & N. Z/·
On the arrival of the "Behar" nt Galle, the goods were So:iu'JI
transhipped into the "Baroda," and this lntter vessel arrived V1Sff11A'M,

in Bombay Harbour on the 4th of April 1866. The goods

were landed by the defendants on the Custom House
Bandar.
When the plaintiff applied for them, it appeared that all
the aniseed boxes were broken, and the contents had largely
escaped. They were in a much worse condition than that in
which China packages usually arrive. 'l'he woodwork WM
smashed, so as to have lost its original shape-the boxes
looked, one witness said, more like bags than boxes. The
matting also was in $Orne places torn. The aniseed itself,
which hacl escaped from the boxes, was not injured, but the
witnesses were unable to say whether or not any portion of it
had been lost. It appeared, however, that loose aniseed is
sold at a less price than that which arrives in unbroken
packages. It appeared also from the evidence that ahont
thirty per cent. of China packages usually arrive in a clam-
aged condition.
Of tlie vermilion boxes three arrivecl uninjurecl, and the
remaining two, though slightly damaged, were merchantable,
and such as a com;ignee would be bound to accept.
No evicletl.ce of express negligence on the part of t]ie de.
fondants was giycn.
'fhe issues raised were-
I. Whether the goods were insufficiently packed.
II. Whether the c1amage was the result of such insuffi-
cient packing.
III. Whether the damage occurred during the trnnship-
ment.
IV. If so, whetl1er the company were liable for such dmn-
age, assuming that the goods were sufficiently packed.
The learnecl ,Tndge held that the packages were insuffi-
cient, and that no custom to treat them as snfficient hnd been
established.

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 116 BOMBAY HIGH COURT REPORTS.

1868. On the second issue, he delivered the following judg-

P. & g~.
8 · N. ment :-" It is not sufficient that the goods should be shown
v.
SoXA'lI
to have been insufficiently packed; the company must give
V1saBA'x. reasonable proof that the damage resulted from such insuf-
ficient packing. In the case before the court of appeal, the
Chief Justice is reported to have said: 'The evidence which
was given of the state in which the goods were, leads to
the conclusion that insufficiency of packing was the cause
of the injury.' As there is no reference in the judgment of
either of the members of the Court to the particular state in
which the goods arrived, the conclusion at which the Court
arrived can only be a very imperfect guide to me in deciding
this issue.
"The fair rule, in cases of this kind, to apply would seem to
be this. If the damage to the goods is of the same de-
scription and degree as the experience of practical men shows
not uncommonly happens to China goods, it is a fair a.nd
reasonable conclusion that the damage was the result of
insufficiency of packing; but if the goods arrive in a very
exceptional state-a state arguing that the goods have been
subjected to more than ordinary strain and pressure, then
the company ought to give additional evidence, explaining
how the damage occurred, and to rebut the presumption
that arises that ordinary. care has not been employed by the
company's servants. The owner of the goods hp,s no means
of knowing the circumstances of the case, and if the mere
fact that the packages are broken is to be taken as sufficient
proof that the dam.age arose from insufficiency of package, it
is clear that the shippers of goods are completely at the mercy
of the company.
"It appears from the evidence of all the witnesses; whether
of the plaintiff or the defendants, that the aniseed boxes
were very badly broken-smashed in so as to lose all appear-
ance of boxes, and look like bags ; and ~here is no evidence
to show that it is a common occurrence for China cases to
arrive in that state; and, although the risk is doubtless
increased by transhipment, there is not a tittle of evidence
to show that in cases of transhipment the cargo sustains

Google
-w---~-~ D1g1tized by
 ORIGINAL CIVIL .TUBISDICTION. 117
similar damage to the present. It is olear that both Captain 1868.
Dixon and Mr. Gordon considered the state of the cargo P. &~.s· N.
quite exceptional. 11.
S0u'11
V ISHU'K,
"Here; then, we have an exceptional state of cargo, pointing
quite as much to want of ordinary care on the part of the
company, as to insufficiency of packing; and, that being so,
the company were bcund to remove the suspicion by addi-
tional evidence. This they have not done; nor have they,
in my opinion, satisfactorily proved that the damage done
to the cases of aniseed was the result of insufficient pa.eking,
and consequently they have not relieved themselves from
their Common Law liability. With respect, however, to the
boxes of vermilion, the case is different. It is clear that
these sustained but little damage, and such as they did sus-
tain is fairly attributable to insufficiency of packing. The
second issue must, therefore, be determined in favour of the
plaintiff as regards the aniseed, and for the defendants' com.
pa.ny as regards the vermilion.
"It is unnecessary to decide the third and fourth issues."
The Appeal was argued before CoucH, C.J., and WESTROPP,
J., on the 24th and 25th of July.
Marriott and Bmnson (with them McCulloch), for the
appella~ts :-The only question here is as to the on1ts of
proof. ~ facts are the same as in The P. and 0. B. N.
Co. v. M. N. Padsha, except that here the boxes were rather
more broken. The Judge has found that the boxes were
insufficient; and we have accounted for the exceptional state
in which they arrived, by the fact of their having been tran.
shipped at Galle. We showed, too, that ordinary care was
t~en. [CoucH, C.J. :-Can we say, on the evidence before
us, that the damage to all the boxes of aniseed arose from
the insufficiency of packing ? ] Under oul' form of bill of
lading, as soon as it is proved that the packages are in-
sufficient, the omts of showing want of care is on the plain-
tiff: Czech v. The Gen. Stecim Nav. Co. (b); though if negli-
gence be proved, such a clause affords no defence : Phillips v.
(b) Law Rep., 3 C. P. 14.

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 118 DOMBAY HIGH COURT REPORTS,

1868. Olcwl,; (c), The extent of damage merely does not entitle the
P. & o. 8
Co, · N. plam 1 t o recover, nor 1s
. t'ff . 1"t proo f of neg1·1gence. I n Ohr l <?u#
so:A'Jt v. Bl'iscall (cl) the words in the bill of lading were" not ac-
V1sHRA')r, countable for leakage," and it was held that this clause
protected the shipowners, even though all the oil escaped.
Lord Justice Tw·1w1· there said:-" The condition that the
shipowners aro not to be accountable for leakages does not,,
in its ordinary and grammatical sense, put any limit on the
quantity of leakage; and on principle, therefore, we do not
think it would be justifiable to add any such limit to its
terms. Nor are we aware of any authority for doing so. It
follows that, in our judgment, the memorandum in the bill of
lading protects the shipowner as to all leakage except that
caused by negligence, and, therefore, if no negligence is
shown, there is no cause of action." Putting the construc-
tion most favorable to the other side upon the evidence, it
shows a state of facts equally consistent with negligence 01•
the contrary, and so corues within the rule laid down in
Cotton v. Woocl (e), and approved of in B,·19r;1-s v. Oliver {j).
[CoucH, C.J. :-You say the case may be put thus :-Accord-
ing to law, if the case comes within the exception in the bill
of lading, negligence must he shown. Aud if the facts
proved are equally consistent with negligence or its opposite,
negligence has not been P.roved.J

Pigat and White, for the responueut :-From the character

and nature of the damage, a jury may draw the inference that
such damage was occasionctl by negligence. '£hat was done
in the case of Czech v. Tl10 Gen. 8teain Nlw. Oo., aucl that
is what the Judge below has done in this case. The maxim
"re.~ cipsa loquitw·" applies. All the cases here were crushed
"so as to look like bags," as one witness described their
state. Under ·such circumstances unexplained any reasona-
ble man would be justified in drawing the conclusion that
the damage was caused by negligence, remembering that
similar packages usually come safely-only about twenty-fiyo

(c) 2G L. J., C. P. Hi8.

(d) Law Rep., I, P. C. App. 231.
(e) 29 L, J., C. P. 333. (f) 35 L. J, Exd1, l6:3.

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 ORIGrnAL CIVIL JUR18DICTION, 119

or thirty per cent. being injured. All the authorities on this ~ - ' - _
question a1·e collected in Czc('h v. T!te Gen. 8tcmn Nal'. Co. l>. & ~~~- N.
It is only necessary to. instance Hammack v. lV/,ite (9), B!Ji·ne v. i•.
Sml.l'Jt
Bo(Ulle (It), and. Scott v. The Lontlun Dod.:1S Co. (i). [Couca, V1saaA'M.
C.J., referred to Tlic G1·cat 1Vcstan ll11il1ra!J Co. of Canculn v,
Fawcett LJ).] The Judge below puts the proposition very
clearly : he says, "The presumption arising from the ex-
ceptional state of the packages rebuts the presumption
arising from the packages being insufficient." [WESTROPP,
J., referred to Phillips v. Etlwanl.~ (k), in which case a ca;;k
of brandy tlrnt was being carried. by 11 shipowner was
staved in, and. yet he wus held to be protected by the clause·
in his bill of Jailing.] 'l'he words limiting the liability of
the shipowner are very strong in that case. He was not to
be liable for any cause whatever. So, too, aro the words
used in Czc(·h v. '11/w Gen. Steam.Na l'. Co.," Free of leakage,
breakage, 4nd d.amage." Lcuw v. Dudgeon (l) is a strong
case in my favour. Ohrl<rO-' v. Bri.~wll d.oes not apply, for
there it was shown how the damage · arose, and the cause
was held not to amount to negligence; and besid.es tho
slripper assented to what was <lone. Voyd v. '1.'lw Gen.
8cl'ew Collic1· Co. (m), Grill v. The Gen. Steam Na1,·, Co. (n),
Austin v. The Mcmchestc1', Slwffielll, mul Lhwolnshfre Rliilwag
Co. (o), and Walker v. The Yo-rk anc?Nol'th Midlaml Railway
Co. (p), were also referred to. ·
Mm'1·iott in reply.
C111·. aclc. i·ull.
CoucH, C.J. :-In this case the plaint states that the de-
fendants were owners of steam ships which ply between
Hongkong and Bombay; and that the plaintiff shipped at
Hongkong on board the steam ship "Behar," belonging to
the defendants, seventy-five chests of aniseed and five boxes
of vermilion, deliverable to the plaintiff in Bombay. It then
alleges that a transhipment of these goods had taken place
(g) 11 C. B. N. S. 588. (/tJ 33 L. J. Excli. 13. (i) 34 L. J., Excli. 17.
(j) 1 Moo. P. C., N. S. 101. (k) 28 L. J. Exch. 52.
(l) 37 L. J., C. P. 5 (in notis); Law Rep., 3 C. P. 17 (in 11otis).
(111) 33 L. J. Exch 26!). (n) 35 L. J., C. P. 321; Law Rep. 1. C P. 600.
(o) 21 L. J., C. P. 179, (p) 23 L. J., Q. ll. 73.

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·~ --=--==:=-:,~~~~~-
 120 BOMBAY HIGH COURT REPORT::!,

1808. a.t Galle, and that when the goods arrived in Bombay, the
P. & i~· N. plaintiff caused application to be made for them, and it was
So~,11 then found that, with the exception of three boxes of ver-
V1aau'x. milion, all the cases were broken, and the goods had been
removed therefrom in part, and such part as remained was
unmarketable.
Now it appea.l'S that the "bill of lading" under which the
goods were shipped contained a. clause "that the company
were not to be responsible for leakage or brea.kage or other
consequences a.rising from the insufficiency of the address or
package."
The plaintiff endeavoured to show, as had been done in a
previous case against the same defendants, that there was
a. custom in Bombay to treat such pa-0kages as these were
as sufficient packages. This he failed to prove. Then the
evidence shows, and the learned Judge has found, that the
packages were insufficient ; and I think that they must be
so considered. The question then arises, whether the defend-
ants are liable for the injury which it was proved the pack-
ages had sustained on their being landed in Bombay.

The defendants seek to avail themselves of the clause which

I have. read from their bill of lading. In order to bring
themselves within the exception contained in that clause, it
was not sufficient for them to show that the packages were
insufficient ; but they had further to show that the injury was
caused by the insufficiency. That is the distinction between
this case and those cited before us: Ohdoff' v. Briscall
(sup,·a) and Czech v. The Gen. Steam Nav. Co. In both
these cases the exception clearly applied, and it was neces-
sary for the plaintiff to show negligence. The defendants
there stipulated that they should not be accountable for
leakage, and then it was for the plaintiff to show that the
leakage arose from negligence. Here the question is, whe-
ther the exception does apply. Did the damage here arise
from the insufficiency of the packages ? The plaintiff need
not prove negligence, except to rebut any evidence for the
defendants which tended to show that the damage arose

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 BOllBAY RIGH COURT REPORTS, 121

from the insufficiency. On the law of the case the 01ii"8 1868.
was on the defendants. Though, however, that is so, if the P. & N.g~_s.
evidence leaves it in doubt what the cause of the iniury
.,
was, SoxA'lI
"·
or if it may as well be attributable to a cause within the V1sHllA'x.
exception in the bill of lading as to negligence, the plaintiff
cannot recover. The plaintiff must show that there is a
brea-0h of duty on the part of the defendants. If he does
not do this he is not entitled to damages. This is the law
laid down in Angell on Carriers, p. 217, which, on questions
of this kind, is a work of authority.
That this is the law is also shown by the mode of stating
his case by a plaintiff in an nction brought ago.inst ship-
owners for the loss of goods. In his declaration the plain-
tiff must aver that the defendants were not prevented from
carrying or delivering the goods by any of the perils or
casualties excepted. That is the form adopted in those
courts in which a plaintiff is bound to state his case with
exactness, and not in the loose form mmally adopted here
under t,h e Code of Civil Proqedure.
It frequently affords strong proof of what the law upon a
particular subject is, to observe what averments the plaintiff
must necessarily make in order to entitle him to recover.

If the plaintiff here were obliged to plead stri@tly, he

would have to aver in his plaint what he must subsequently
prove, viz., that the alleged injury did not arise from the in-
sufficiency of the package, and that the defendants were not
prevented from carrying safely by any of the perils or casual-
ties excepted. If that matter is left in doubt, the plaintiff
mnst fail in his suit. In order to prove this, the plaintiff may
have to resort to the evidence of persons in the service of
the defendants, but, though that may seem hard_, it does not
exempt him from having to do so.
In the former suit in this court, we were of opinion t.lmt
the damage arose from the insufficiency of the packages; and
this appeared also to have been the opinion of the court
below. Now the evidence in the present case is similar to
that given in the former. The witnesses speak rather more
v,-16 0 C

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 122 ORIGINAL CIVIL JURISDI~TION,

. 1868. strongly, but the result of the evidence is the same. Upon
P. & g~.
8 · N. it the court below has expressly found that as regards the
v. aniseed the damage was not the result of insufficient pack-
So?,u.'Jt
VmrnA.'M, ing. I have read through that evidence, and, with all
regard for the opinion of the learned Judge, I am not able to
say that the damage· was not the result of insufficient pack-
ing. To my mind the question is left in doubt. The damage
may well have arisen from ·the insufficiency of the packages,
as there had been a transhipment, the risk of which the
plaintiff had to take upon himself. That being the result of
the evidence, it was necessary for the plaintiff to give some
evidence of negligence, and it was not necessary for the
defendants to disprove negligence. That this was the result
of the evidence seems to me to be t,h e opinion to which the
learned Judge himself came, for he says in his judgment,
" If the damage to the goods is of the same description and
degree as the experience of practical men shows not uncom-
monly happens to China goods, it is a fair and reasonable
conclusion that the damage was the result of the insufficiency
of packing. But if the goods arrive in a very exceptional
state-a state arguing that the goods have been subjected to
more than ordinary strain and pressure,-then the company
ought to give additional evidence, explaining how the damage
occurred, and to rebut the presumption ·which arises that
ordinary care had not been employed by the company's
servants." That form of expression, I think, shows that the
learned Judge did not consider that the evidence did more
than leave the question in a doubtful state. Then fur ~her on
he says : '' It appears to me we have here an exceptional
state of cargo, pointing quite as much to want of ordinary
care on the part of the company as to insufficiency, and that
the company were bound to remove the suspicion by addi-
tional evidence." There the expression is that the state of the
cargo pointed as much to want of care as insufficiency of
package; and then, in my view of the law, it was for the
plaintiff to give some evidence to lead to the conclusion that
the damage arose from negligence, and not from other
causes. Therefore, I look ,upon the difference of our views
not merely as on a matter of fact depending on the evidence,

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 BOMBAY HIGH COURT REPORTS. 123

but on a matter of law, by which an additional burden w~

put upon the defendnnts. The onus is really in this state of
----1868.
P. & o. 8 · N;
Oo.
facts on the plaintiff. It may be that very slight evidence of v.
S0:1u'JI
negligence would turn the scale; but it lay upon the plaintiff V1suaA'M.
to adduce that evidence, and that is ~ot a great hardship on
him, if it can be said to be any hardship at all. The plain-
tiff might have shown that the transhipment had been made
in a hurried manner, or that the goods were taken out of the
ship and put into the boats, or from the boats on to the
shore, without proper appliances- being used. No evidence
of that kind was given, and the plaintiff relied solely upon the
state of t~e packages. We cannot supply that evidence for
him, and ~e, therefore, must fail in his suit. I think the
judgment of the court below should be reversed, but with-
out costs.
W ESTROPl', J. :-I concur m the propositions of law laid
down by my Lord Chief J·ustice. He has entered so fully
into the law that it is unnecessary for me to say anything
more upon it. And in so far as the learned Judge who
tried this cause in the Division Court found that the packing
of the ~niseed was insufficient, and that there was not any
evidence of usage to treat such packing as sufficient, I agree
in his views also.
But I am unable to agree with him in his finding on the
second issue, viz., that the damage to the aniseed cases can-
not be imputed to the insufficiency of packing, or in his
dictum that the state in which the aniseed has been landed,
is one "pointing quite as much to want of ordinary care on
the part of the company as to insufficiency of packing, aud
that the company was bound to remove the suspicion (of
negligence) by additional evidence."
Before discussing the state of the aniseed, it is convenient
"to advert to that of the vermilion packages. Of these there
were five, of which three anived iwrfectly sound·, and the
remaining two were slightly damaged, but not so as mat~-
rially to affect their value, or to render them unmerchant-
able. And such appears to have been the opinion of the
learned Judge.

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 124 ORIGINAL CIVIL •JURISDICTION.

1868. Vermilion, which I believe to be an artificial prepa1'ation

p & o. B. N.
co. mad e m . . l component part 1s
. Oh.ma, of whi ch t h e prmc1pa .
Sox~~'JJ cinnabar (i.e., bisulphate of mercury, the most common o.re
V1sHRA'M. of mercury), and the minor ingredients sulphur and- solid
caustic potash (Eng. Cyc. Arts and Sciences, Vol. V., p. 578,
title Mercury: and Ibid. Natural History, Vol. III., p. 774;
see also McCulloch's Commercial Dictionary, title Cinnabar),
must be n. heavy commodity. .According to Mr. Blackmore
{one of the plaintiff's witnesses), the vermilion in this in-
stance was contained in boxes not so strong as would pro-
bably be used in England for the same purpose, but fourteen
inches long, eight inches broad, and six inches deep, the
planking being half an inch thick, and each box ,vith its
contents weighing about fifty-six lbs. Those boxes were
stated by Mr. Crawford (who was examined on behalf of
the plaintiff) and other witnesses to be stronger than the
boxes containing aniseed.
The evidence, when analysed, shows that the aniseed
boxes must have been much larger and much weaker. The
witnesses seem to agree in stating that the planking was
only three-eighths of' an inch thick at the utmost. Aniseed
Mr. Blackmore states to be not heavier than tea, and he adds
that the boxes were much of the same size as the largest
kind of tea-boxes, which are sent to England, and that the
tea-boxes which come to Bombay are smaller, and hold about
forty pounds. Mr. Crawford and one or two other witnesses
state that the aniseed boxes when full should have weighed
one "picul," i.e., one hundred and thirty-three pounds and
one-third of a pound; in fact Mr. Crawford saw one box
which weighed one hundred and sixty pounds. To contain
that weight, or the lesser weight of 133 ! lbs., of a substance
ofno heavier specific gravity than tea, the boxes must have
been very much larger than boxes containing 56 lbs. of so
heavy and compact a substance as vermilion. .Accordingly
~e have in the case of the aniseed boxes a very much larger
surface of planking, and a scantling slighter by one-eighth
of an inch, to hold a weight not far short of being three
times as great as that co~tained in the vermilion boxes

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~•. ,:ti:" -·

BOKBAY HIGH COURT REPORTS. 125

which seem to be only barely strong enough to sustain 1868.
the wear and tear of the voyage from China. to Bombay. P. & N. g~_s.
The evidence of Mr. Parker, who m.anaires ~
tJie Company's So,u'n
11•

freight department, is to the effect that China packages are V111su'M.

generally bad and insufficient, and that aniseed packages
from China are, even amongst China packages, " except,ion-
ally bad." Mr. Gordon, the manager of the British India
Steam Navigation Company, substantially supported that
evidence. He said that the goods in this case were packed
in the ordinary way, but, if anything, slighter than usual.
Keeping in view :Mr. Blackmore's comparison of aniseed
packages to large packages of tea, it should be noticed that
one of the defendant's most important witnesses, Mr. Maury,
who is Assistant Commissioner of Customs at Bombay, says
that packages of tea and sugar-c~ndy from China to Bombay
almost invariably come broken, and that sugar-candy boxes
generally weigh half a hundredweight. We must remember,
too, that those tea-boxes, being much smaller than those
which go to England, to ~hich latter Mr. Blackmore com-
pared the aniseed boxes iu size, expose a very much less
surface to hardship than the aniseed boxes. Mr. Dixon,
. Lloyd's Surveyor, another important witness for.the defence,
said-" The cases of aniseed were in broken condition. In
some cases the matting was burst. The wood was three-
eighths of an inch thick, and of the soft China pine. The
sides were dovetailed. So far as I remember, that is usual
in China cases. Sometimes a nail is m;ed. The sides were
too thin to be dovetailed. I don't consider that the aniseed
was sufficiently packed. I don't consuler that the bo;ces are
fit to be moved about without ·more than ordinary ca1·e." He
adds "all of the aniseed boxes were very much broken ;"
and again, "I could see that they were badly broken, from
the irregular shape."

A1though I have not now quoiled the whole of the evi•

deuce relating to the aniseed packages, I have very carefully
read and considered it. The impression left on my mind is,
that having regard to their considerable size, the great quan-
tity and weight that is in thetn, and the degree of thickness

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 126 OJUGINAL CIVIL JURISDICTION.

of the soft pine wood of which the boxes are made, and
1868,
P. & g~.8 • N.
assuming that they are equal in all these particulars to ordi•
So~'n nary aniseed packages from China, yet they must be con-
V1sHu'u. sidered as somewhat inferior in packing to China packages
in general.
But there seems to be a general concmTence amongst the
reliable witnesses, that a very large percentage of China
packages in general arrive at Bombay from Hongkong in a
broken condition, even in ordinary voyages, in which there
has not been transhipment. Mr. Maury says of China car-
goes: " They generally come very much damaged-I should
say thirty per cent. more or less damaged. Nothing like the
same percentage of goods from Europe is damaged. I con-
sider China packing insufficient." Mr. Dixon says: ".Every
steam ship from China contains some broken packages.
Goods of this description if sent from England would be more
strongly packed. It is quite exceptional for any claim to be
ma.de for broken China goods, unless it is very serious." Mr.
Blackmore too admits that" the China packages are more
likely to be broken than English packagesc?ming round the
Cape or overland."
It is, I think, manifest that, even for the ordinary voyage
from Hongkong to Bombay, China packages are generally
quite insufficient, and are liable to an average damag·e, say,
of thirty per cent. ·
But here there has been a transhipment at Ceylon. 'l'he
voyage is the same one as that out of which the case of
Ma,:,.ikji Nasarvanji v. The P. 9'" 0. S. N. Co.* arose. It is
contended for the plaintiffs that the damage to the aniseed
packages in this case being greater than that to the packages
of bangles, yellow stone, and brass leaf in that case, is in itself
evidence of negligence, and creates a distinction between
the two cases. '.!'he damage does appear to be greater, the
boxes seein to be more broken, and, though the quality of
the contents does not seem to have suffered, a larger q-qan-
tity of them has escaped from the packages. It is, I think,

* Ubi aupra.

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 (''" ., r /. ,.,
B0l(BAY IDGH COURT REPORTS, 127
• quite consistent with the main current of the evidence, 1868.
that the damage arose from the insufficiency of the packing. P. & 00• s. N ·
o.
The evidence of Mr. Gordon is direct on this point : he 11.
8oJU.'1r
says-" I have had great experience in China goods : I don't V1a1U.'x.
consider the packages strong enough to bear transhipment ;"
and again, " I am of opinion that the goods in question were
broken in transhipment, and so being subjected to double
the u13ual handling."

Mr. Gordon, it is true, had not received in Bombay a

cargo from Hongkong which · had undergone transhipment,
but he must have formed his opinion on the damaged condition
in which a China cargo usually arrives here after tm unin-
terrupted voyage, the frail nature of the aniseed packages in
this particular case, and the indisputable fact that they had
to undergo double the usual hardship. It would be difficult ·
to say that those are not fair grounds on which to build an
opinion. Although the hardship is only double the ordinary
amount, it is reasonable to suppose that the injury would be
more than double, because the packages, which are insuffi-
cient for even an ordinary voyage, would, after sustaining
from the first handling the amount of injury which it is to be
expected might t,hen occur, be in a much worse condition
to resist the second handling than the first, and the in-
jury accordingly must be expected to increase in that ratio.
Further, the aniseed packages here seeming to be a degree
inferior to ordinary China packages containing goods other
than aniseed, we cannot be surprised to find the damage
greater than accrued to tl;ie packages the subject of the action
brought by Mul)ikji Nasarvanji against the company. Had
the aniseed packages been as well suited for carriage in size
and strength, and in the amount of weight with which they
were loaded, as the packages of vermilion, t.he former would
probably have been conveyed with equal safety as the latter.
The safe arrival of the vermilion tends to repel the supposi-
tion of negligence. Beyond the state of the aniseed packages,
the plaintiff.,; have not given any evidence of negligence
on the part of the company, which, even assuming it to be
doubtful whether the damage arose from the insufficiency of

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- - -~ ~---
 128 BOMBAY HIGH COURT REPORTS,

1868, the pa.eking, I think that the plaintiffs would have been
P. & i. s.
bound to do ; and under these circumstances I think that
N.
11•
S01u'n
the company are protected by the terms of the bill of lading.
V1Snu'11. That bill provides for the contingency of transhipment, and
exempts the company from liability arising from damage
caused by insufficiency of packing.
Decree 1·evel'sed witk01tt costs.
Attorneys for the plaintiff: Acland, P1·entis, and Bisliop.
Attorney for the defendants : J. 8. Hurrell.

Oct. I. Appeal Suits Nos, 125 and 126.

LAKSHMIBA1I, widow of Krishnanath

Moroba ................ ............ ·....... . Appellant.
GANPAT MoROBA', NA'RA1YAN MoROBA', and
SATYABHA1 MA1BA'1, widow of Vina.yak
Moroba .................................... Responde·nts.

GA~PAT MoROBA' and NA'RA'YA~ MoROBA' •.Appellants.

LAKBHMIBA'I, widow of Krish:r;ianath

Moroba' ..... : .............................. Respondent.
Hindu Law-Partition-Ancestral Estate-Will-Construction of
Hindu. Will-Guardian-Family Arran_qement-Acq11iescence-Adoption
of Acts of Guardian-Hindu Widow's Estate.
V., a Hindu, being possessed of property, both moveable and immove-
able, which he bad acquired by making partition with his brother of
their joint ancestral estate, diccl in 1850, after making a Will in the
English language, by which, after various bequests, he disposed of the
resiclue of bis said property : one-third to bis son V. absolutely; one third
to his son L . absolutely ; "ancl tbe remaining clear third-share to my
grandsons K., V., G., and N., the sons of my late son Moroba, deceased,
their and each of their respective heirs, executors, administrators, and
assigns, share and share alike." These residuary bequests were not to
take effect until after the death of the testator's widow, who was ap-
pointed executrix and manager of the w.hole estate during her life.
The estate was divided by arbitrators in 1855, after making provision
for the testator'• widow, in substantial accordance with the Will, and V.
and L. immediately entered into possession of their respective third-
shares; the third-share allotted to the four sons of M., who were then

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 ORIGINAL C'IVIL JURISDICTION, 129
infants, represented by their mother and guardian, remaine1t unapportioned 1868.
until 1856, when, ona suit being filed, the greater·part of the moveable L.\KBHlllBU
property was apportioned. The immoveable property continued unap- • 1'·
G.\NPAT
portioned, the bill stating that it was not for the interest of the minors MoaOBA'
then to apportion it ; and the sons of 1\1. continued to enjoy the rents et al.
and profits, living together as an undivided Hindu family, the property GANPAT
being successively managed by the eldest surviving brother. In 1866 the MoaoBA'
then surviving sonll of M., having attained their majority, joined with V., et ~1•
the son of the testator, in conveying to R purchaser a banglu, which had LusH~IB.\'J.
been allotted to him as portion of his share under the Will.
In a suit brought by L., the \\idow of K., against K.'s Eurviving bro-
thers, and S., the widow of his brother Y., in which L. claimed to be
absolutely eutitle1l, as heir of her husband (and also as heir of her daughter,
who died, after the husband's death, childless and unmarried), to a fourth
part of the third-share of the estate allotted by the Awar1l of 1855:
Held, that the sur,·iviug brothe1·s of K. had, by thei~ conduct since
attaining their majority, ado11ted the acts of their mother and guardiau,
and hRd agreed to treat the Will of the testator ns a ,·alid Will, and were
accordingly estopped from disputing it8 provisions.
Held, further, that the language of the testator showed au intention
that his grandsons shoulil take the one-third between them in·severalty,
and as members of a divi1led family, and that the Will must be so con-
strued.
A Hindu widow succeeding to the immoveable property of her deceased
husband, and also claiming as hcil' to her only daughter, who llie1l after
her father, chilttless and unmarried, is only entitled during her life to a
widow's estate. The doctrine laid tlown 1n the Division Court that ances-
tral property after partition can be clisposecl of by Will, in the same way
as self-acquired property, disapproved of, as opposed to the authorities
and general spii·it of Hindu Lnw.
THESE were cross - appeals from a decree made by
ARNOULD, J., in the First Division Court, on the 19th of
An gust 186 7.
. The facts of the case sufficiently appear from the judgment
of the Court below (a), and from the judgmeut of the Court
of appeal. The plaintiff appealed from that portion of tho ·
decree which limited the estate taken by her in the one-fourth
share of the immoi•eablc property to an estate for life, as sho
claimed as heir, not only to her husband, but also to her
daughter Devkuvarbaf, who died, after the husband's death,
childless and unmarried.
The defendants appealed generally from the whole decree.
The appeal was argued before CoucH, C.,J., and SARGENT, ;J.,
on June 19 and 20, and July 9, 1868.
(a) 4 Ilom. H. C. Rep., O.C.J. 150.
V,-17 0 C

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 130 BOMBAY HIGH COURT REPORTS,

1868. Pigot and Mm'1·iott, for the plaintiff appellant :-The Court
L.\KSHM:IBA'l
u. • below has decreed to the plaintiff, Lakshmibai, only an
G.i.NPAT estate for life in the immoveable property; but Lakshmibai
MonoBA'
_ _,,,e_t_al_._ is the heiress of her daughter, and so entitled absolutely. By
:i:i:.:, Hindu· Law, on the death of a father without male issue,
et al. the daughter takes an estate in remainder vested in interest,
t•.
L.\1tsmn»A'1. subject to what may be called the widow's interposed.bone-
. fi0ial interest, in her father's immoveable property, and such
vested interest upon her death passes to her heirs : Jami-
yafrain v. Bai Jam.na (b); in this case, as she died childless
nnd unmaiTied, to her mother: West and Biihler's Hindu
Law, In trod., p. 63; ibid., p. 189; Stokes' Hindu Law Books,
p. 4-87.
'l'he next question that arises is with respect to the right
of Vasudev Vishvanath to make a "\'Vill; and this depends on
the effect of the partition between him and his brother in
1823. After that partition we contend that the share of
Vasudev, in the ab1rnnce of a Will, would have descended as
separate property. There is no expi·ess authority for this
proposition, but there are strong dictci to that effect. Lord
Justice Turner, delivering the judgment of the Lords of the
P;ivy Council in The Rajah of Shivagunga's Case (c), says that
";vhen property belonging in common to a united Hindoo
family has been divided, the .divided shares go in the general
course of descent of separate property." To the same effect
are the remarks of Westropp, J ;, in Narottani Jagji1:an v.
N a1·sanclas Hltrikisand(is ( d). If, then, the course of descent
of ancestral property is altered by partition to that which
prevails with respect to self-acquired property, it seems
logically to follow that the other incidents of self-acquired
property should alst> attach to it, one of which is the.
ri{)'ht
0
to
dispose of it by will : Nagalutchmee Ummal v. Gopoo Nada.
raja Ohetty and others (e), Vallinayagani Pi!fai v. Pachclie (!),
If the contention on the other side is correct, it would have
the result of introducing a third kind of property into Hindu
•
(b) 2 Bom. H. C. Rep. 11. (c) 9 Moo. Ind. App. 609.
(d) 3 Born. H. C. Rep., A.C.J. 6; vide infrd, p. 136 in notis.
<e) G Moo. In<l. App. 309 ; and see p. 345. (j) l Mad H. C. Rep. 326.

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 ORIGINAL CIVIL JURISDICTION, 131

Law, neither ancestral uor self-aoquired; but none such is 1808.

mentioned by the authorities. Then as to the construction LAKSIBIIIIA'l.
v.
of the WilJ, the intention of the testator must be looked G.\:S-PAT '
Mouo1a'
to: 8reem·idty Soo,jecmoncy Dossce v Dcnobuncloo Mullick (y). et al.
'l'hat case is almost precisely similar to the present. --G.i:xrn -
Monon.1.'
From the use of the words " their respc(·tive heirs," and et al.
"sh~re and share alike," the testator must have intended L .\Krn~rn.\·1•
to givt his grandsons separate estates. In English Law
these words would create a tenancy -in - common. Even
supposing the testator had no right to dispose of his pro-
pe~-ty, as he has done by his Will, the parties, by their sub-:
sequent acts and conduct, have acquiesced in the disposi-
tion of the property made by the testator : and in all those
acts the infants were sufficiently represented by their mother
and guardian, and since their attaining majority they have
ratified these acts : Nallappi .Reddi v. Balammal (11) ; 1
Daniell's Chancery Practice, p. 77 (2nd ed., 1845); Morrison
v. Morrison (i). Lastly, there was no re-union in this case,
as re-union cannot take place except between the persons
who were parties to the partition : Jlishvanllfh Gangadhcir v.
Krish'!aji Ga?iesh U).
The Hono-mbw L. H. Bayley (Ad,·ocate General) and
White (with them McCnlloch), contra :-The principle of a
. son being equally entitled with his father to ancestral pro-
perty seems to pervade the whole Hindu Law. By adopt-
ing a son the father loses his power of disposing of ances-
tral estate: Rungama v. A.tc!uuna (k), A.yyavii Muppana1· v.
Nilculatchi A.m-nial (l). The Court wilJ decree a partition of
ancestral property at the suit of the son : Beer Kis!tore Siihye
Sing v. Hur Bullub Ncircdn 8ing (m); Macnaghten's Hindu
Law, Ch. I. In places where the Mitakshara does not
prevail, the act of a father disposing of ancestral property,
though not void, i;; sinful : Strange, Ch. 12. The authori-
ties lay down the propoi:;ition broadly. On the other side

·• (g) 6 Moo. Intl. App. 526. (h) 2 Mad. H. C. Rep. 182,

(i) 4 My!. & C,. 215, and per Ld. Cottenham, p. 225.
(j) 3 Born. II. C. Rep., A.C.J, 6~. (k) 4 Moo, Ind. App. 1.
(l) 1 Mad. H. C. Rep. 45, (m) 7 Cale. W. R('p., Civ. R. 502.

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-~~~ - -~ ..__ ~.:.-···-·· - -
 132 DO.MBAY HIGil COURT REPORTS.

1868. two dicta only arc cited, waich were unnecessary for the deci-
LAKs1u11nA'1
"· sion of the cases in which they occur. In Shivayunga's Case
..?Axr.i~
iuo1tonA
the question was with reference to the descent of sepa-
__-5.!!._l_._ rate property possessed by one of several coparceners : see
~~~~~:. page 625 of the report. In Narottani Jagjivan v. Narsandas
et al. Harikisandas the person suing was separate in estate from
t'. .
Lus1rnrnA'1. the testator, and the nature of the property was not ascer-
tained. That case was probably decided on the authority
Nagaluchince Ummal v. Gopoo Naclarajc£ Ohettv (sttp)·a);
and the decision merely amounts to this, that the Will
was good in the absence of any one to make a claim.
The answer to both dicta is, that the question w~ are con-
sidering was not present to the minds of the Judges.
[CoucH, C.J. :-'l'he ground of the disability to make a
Will has not i~ general been sufficiently kept in view,
namely, the right of some person other than the testator to
claim to sh11re in the property. When property is divided
each parcener can make a Will; but when sons are born
their interest intervenes.] Here the sons had vested rights
in 1823 : distribution is made between the brothers; but
what is there to divest the right of the sons to share with
the father? Thefr title is unaffected. The separation of .._
the brothers does not separate the rest 'of the family. The
:n:ember of an undivided property cannot make a gift of
his·share, or leave it" by Will : Gangnbai kom S,tdltappa v.
Raman.na bin Bhinianna (n). It is said he may sell it; but
even this has never been solemnly decided.
It is admitted that the Will, if it were made by an :b}nglish-
man, would create a tenancy-in-common, but being made by
a Hindu member of an un<livided family, it must be con-
strued with reference to the usages, customs, and circum-
stances of the testator : S1'eBniutty Rabutty Dossee v. Sib-
chunde1' Mullicl.: (o), Sreemi1tty S001jeemoney Dossee v. Deno-
lnmcloo M11Uick (p). [SARGEN1', J. :-'The same reason that
induced English lmvyers to favour a tenancy-in-common
would induce lawyers here to favout· a joint tenancy, as t~at
particula1• mode of enjoyment is best suited to the Hindu
(11) 3 Bom. H. C. Rep., A.C.J. 66. (o) 6 Moo. Ind. App. 1.
(p) 6 Ibid. 526.

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 ORIGINAL CIVIL JU.IUSDIOTION. 133

family exigencies.] Yes; and here the children being minors, -=--_1_86_s_.~ 1
LAKSHHIJW. 1'
it is probable that the testator desired there should exist 11.
G.!.NP.\T
amongst them the jus a.cc,1·escentli, Moao&.'
et al.
We have not, however, acquiesced in the provisions of the GANPAT
M:oROBA
Will. A. large portion of the moveable property has been et al.
divided, but what has been done in respect to tho immove- L.\KSH~IBA'I.
able.property does not even show an intention to divide.
Except as to the Equity suit, the family has always dealt
with the property as undivided; and, as that amounts at
most to a mere proposal to divide, the widow cannot enforce
partition: Tinimi Recld,y v. Achamma (q) ; but we contend
that even an agreement to divide is not tantamount to a
partition, or to a deed constructively dividing the property:
Praunkisson Mitie1' v. Srcemiitty Ramsoond1·y Dossco (r).
[SARGENT, J., refen·ed to Lctlla Mohabee1· Pcrsltad v. Mussamut
Kttnd_un Koowar (s).]
•
What estate does the widow take? Here we support tho
finding of the Court. The case cited_ on tho other side, Bai
Jamna's case, is founded on a misapprehension of a passage
in Strange, 2 Strange H. L. 204. It is difficult to give a
definition that conveys an adequate conception of the estate
a widow takes ; but, whatever it is, she is incapable of alien-
ating it, except for certain causes, and yet she succeeds qua
heir to the whole estate, and until her death it cannot be
- determined who the heirs of her husband are: Mitak., Ch. 2,
Sec. 1, para. 39; 2 Mor, Dig., p. 329, Sec. 183. Even if a
widow could be said to take as heir of her daughter, there
can be no enlargement of her estate. That is a doctrine
· unknown to the Hind(1 law. A. widow inheriting from her·
son takes just the same estate as if she inherited from
her husband: P. Rachiraju v. Venka.tappad1i (t) ; Vinayek
Anundmo v. Lwuumeebaee (u) ; The Collector ofMasal·ipatani
v. Oavaly VenccitaNarainapah (v); KantooLall v. G-reedharee

(q) 2 Mad. H. C. ltep. 325. (r) Fulton R. 310.

• (s) 8 Cale. W. Rep., Civ. R. 116. (t) 2 Mad. H. C. Rep. 402.
(u) l Born. H. C. Rep. 117; in the Privy Council, ib. 126, and 9 Moo,
Ind. App. 516.
(v) 8 Moo. Ind. App. 529,

Google
D1g1tized by

-
 134 BOMBAY HIGH COURT REPORTS,

Lall (w); Raja Ram Tewa1·y v. Luchniun Pershad (a:); Mitak.,

-=--1_86_8_.-,-,
l4KSHKIBA'I
v.
s
Chap .I., ec. I, paras. 28 and 29,and Sec. 9, para. 2; Strange,
.;;::;:, H. L., pp. 20,190; Lalla Runseedlmrv. Koonwar Rinde Seree
-=e_ta_i_. _ Dutli Sing (y); Prankinsin Paul Ohowclry v. Motlwommohun
GAN PAT '
MolloBA' Paul Ohowdry (z); and Boclh Mal v. Gouree Sunlwr (a), were
et ai. also cited.
'I/,
L.Ut8HKIBA'l,
Pigot was heard in reply.
Ow·. adv. vult.
CoucH, C. J. : -In this case, two brothers, Vasudev Vish- .
vanath and Madhavji Vishvanath, on the 20th of November
1823, made a-partition by deed of all the property, move ..
able and immoveable, which had come to them from their
father, Vishvanath Vithu. At the time of the execution of
the deed of partition, Madhavji was without male issue, and
V'asudev had five sons, all then infants, namely, Vithoba,
Vishvanath, Rumchandra, Moroba, and Lakshumar;i. Vish-
vanath, about the time of the execution of the partition
deed, was adopted by Madhavji, and on his death inherited,
and has ever since enjoyed, Madhavji's share. Ramchandra
died intestate, and without issue, in his father's lifetime, ·
leaving a widow. Moroba also· died in his father's lifetime,
intestate, but leaving a widow, Anpur1,1abai, and four sons,
KrishQanath, Vinayak, GaJ].pat, and Narf1yat,1. Krish1,1anath
and Naraya'Q. have since died, the former leaving the plainWf,
Lakshmibai, his widow, and the latter the defendant Satya-
bhamabai his widow. On the 23rd of December 1850, Vasu-
dev Vishvanathdied, having, on the 14th of November 1850,
made a Will in the English language, by which, after making
·various bequests to different members of his family, and_
constituting his widow, Lakshmibai the elder (who is stiU
living), executrix and manager of all his estate for her life,
he disposed of the residue as follows:-" And on the death
of my said wife, I give, devise, and bequeath all the said
rest, residue, and remainder of my property, estate, and ef-
fects, real and personal, in the mauncr following, that is to
(w) 9 Cale. W. Rep., Civ. R. 469.
(~) 8 Cale. W. Rep., Civ. R. 15. (y) 10 l\foo. Ind. App, 454.
(z) Ibid. 403. (a) 5 Cale. W. Rep., Civ. R. 16.

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 ORIGINAL °CIVIL JURISDICTION, 185

say, one clear third part or share thereof to my son Vithoba 1868.
V asu • execut ors, a dmmlS
" IDs he1rs,
, deVJi, • • t rato rs, an d assigns
• i LA.KBHKIBA.'l
i•.
another clear third part or share thereof to my son Lakshu- MGA.NPA.T,
OROBA
ma[]. Vasudevji, his heirs, executors, administrators, and as- et aZ.
signs : and the remaining clear third pa.rt or share thereof ~~!~:,
to my grandsons, the sons of'my late son Moroba Vasudevji ,t e1Z. •
'V,
deceased, Krishi;ianath, Vinaya.k, Gar;ipat, and Niirayal}, their LA.KSHKIBA.'l,
and each of their respective heirs, executors, administrators,
and assigns, share and share alike."

By the law of tl1e Mit4kshara, the sons of Vnsudev Vish-

vanath had, at the time of the partition, a vested interest in
the property which was the subject of it, ancl it was compe_-
tent to any of them to have disputed the validity of this Will :
Mitak., Chap. 1, Sec. 2, para. 6; Sec. 5, paras. 5, ·9, 10, 11 ;
Nagalinga Muclali v. Subbirama~iiya Mudali (b); Konth
Narain Singh v. Premlal Pam·ey (c). In the vi3w we take of
this case it is not necessary to determine whether the Will
wa3 a valid one. It is sufficient .that its validity might fairly
.have been questioned; but, as the learned Judge in the
Division Court has held it to be valid, and the question has
been argued at great length before us, we think it right to
state our opinion that it was not a valid Will. " Partition
(vibhaga) is the adjustment of divers rights regarding the
whole, by distributing them on particular portions of the ag- .
gregate :" Mitak., Chap. I, Sec. 1, para. 4; and we do not
· see any principle upon which it can be held that Vusudev
Vishvanath acquired by the partition a greater dominion, a,s
against his sons, over the share which he took under it, than he
previously had over the whole of the property. It was still
property which had descended to him from his father. The
adjustment of the rights over it cannot be held to amount to
a new acquisition by the brothers. It does not appear to us
to follow from the decision of the Privy Council in The
Rajah of Shivayunga's Gase, quoted in the judgment of the
Division Court, that "the divided shares go in the general
course of descent of separate property," that there is the

(b) 1 Mad. H. C. Rer, 77, (c) 3 Cale. W. Rep., Civ. R. 102,

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 136 BOMBAY HIGH COURT REPORTS,

1868, sa.me power of alienation by gift, or disposal by Will, as in

LAKe!~rnA'Ithe case of separate property. In the case before Mr. Justice
GANPAT Westropp, also quoted, the person disputing the Will was a
lt:OROBA'
et al. remote kinsman, and the opinion that there is in all cases
:~::::, the same power of disposition over property obtained on
• et al, partition as over self-acquired property, must be considered
Lus;~m.',. as extrajudicial. We cannot give the same effect to it as
we should if it were an express decision upon the point in
dispute in that case, though, when this question has to be
determined, it must receive all the consideration which the
learning and experience' of the learned Judge entitles it to.*
The opinion we no,v express is likewise extrajudicial, and
we only give it in order that we may not be supposed from
our silence to concur in this part of the judgment of the
Division Court.
The validity of the Will being then at least liable to be
questioned, on the l 0th of November 1854, articles of agree-
ment were made between Lakshmibai, the widow ofVasudev,
Vithoba, Lakshumai), and Anpurl).abai, the widow of Moroba,
and as the guardian, according to Hindu law, of his sons
Krishl).unath, Viniiyak, Ga1,1pat, and Narayal)., who were therein
stated to be all infants under the ago of twenty-one years.
By these, after reciting that Vasudev Vishvanath duly made
his Will, and after giving certain legacies and bequests
therein specifically mentioned, gave and bequeathed the re-
mainder of his property to his sons and grandsons in the
shares therein specifically mentioned, and declared that the
said grandsons should be considered of age, and have posses-
* Previously to the decision in this case, the remark of Mr. Justice
Wcstropp in NarottamJagjivandas v. Narsamlcls Harikisandas, that it fa
difficult to assign any sufficient.reason why the power of disposition by will
should not exist with regard to separate, as well as with regartl to sclf-
acquiretl property, was quoted in a recent case before him at the Original
Jurisdiction side of the Court, and he said that the expression was not suffi-
ciently guarded, and must he considered as limited to a state of facts simi-
lar to those in Narottam Jagjivandas v. Narsa11das Harikisandas, where
the party denying the power of testamentary disposition was a remote kins-
man of tJie testator, and separate from him in estate; ancl that the Court
had not then any intention of expressing an opinion upon the question
whether a testator, possessed of separate property which was ancestral
and leaving sons or other male issue, could bar them _by clevise.-Eu. '

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 ORIGINAL CIVIL .TUBlflDIOTIOlf, 187

lion of the property so bequeathed to them, on their attaining 1868.

the age of twenty-one years; and that LaJcshmibai had duly L.u.a!~1B•'1
Proved the Will in the Supreme Court of Bombay, and had GANllAT KoaoBA'
pa.id all the legacies, it is recited as follows :-" And whereas ,t al.
the parties hereto so entitled to the said property of the said ::::,
Vasudev Vishvanathji, deceased, a, aforesaid, being desirous .e ed.
of eft'ecting a partition and division among them of the same, LAIIIK~at.'r,
some disputes have ari&en as to the manner in which the
same should be divided, and which, in consequence more
especially of the infancy of .the said KrishJ].anath Moroba,
Vinayak Moroba, GaJ].pat Morobn, and NarayaJ}. Moroba, it is
difficult to settle amongst themselves." It is then agreed to
refer all the said matters in difference, with reference to the
division of the property of V'1sudev Vishvanath to the ar-
bitration of Mr. Rimington and three Native gentlemen, it
being stated that Mr. Rimington was appointed arbitrator
on behalf more particularly of the grandsons. On the 17th
of May 1855, the arbitrators made their award, and posses-
sion was taken of the shares awarded accordingly. On the
10th of July 1856, a. suit was instituted on the Equity side of
the Supreme Court, in which Ga.l}pa.t Moroba and Narayal}.
Moroba, therein stated to be Hind{1 infants under the age of
sixteen years, by Vishvanath:Madha.vji, their next friend, and
Vinayak Moroba, were plaintiff's, and Krishy;ia.nath Moroba
and Son'1blli, widow of Sa.dashiv Raghunathji, the sister -of
the plaintiff's and Krishl}anath, were defendants. The bill
stated the Will of Vasudev Vishvanath, his death, and that
Lakshmibai, his widow, proved the Will, and paid the debts
and legacies~ and that the family continued for some time
after his death to Jive together as an undivided Hindu family
in food, religion, and estate, under the management of the
executrix, Lakshmib'1i, until the Award. It then stated the
reference, and set out the Award, so far as it related to the
aha.re of the grandsons, and stated the death of AnpurJ].abai
in June 1855; and after stating that it was not for the
benefit of the infant plaintiff's, nor the wish or the plaintifl'
Vinayak Moroba, that any immediate partition should be ma.de
of the immoveable property, it prayed that an immediate
·partition might be made of the moveable property, and that
Y,-18 0 C

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 188 DOHBAY HIGH COURT REPORTS,

..,,...._1s_68_._,- Krishl)anath Moroba might be ordered to account annually

Luse::.m,1.'i for the share of the infant plaintiffs of the immoveable
GANPAT property. What followed is stated in the J. udgment of the
MoRou'
_,,_e_t_,,,z_._ Division Court, and need not be repeated here; but there. is
if t:C:~":, one material fact which does not appear to be noticed.
et o-L.
i·. By a deed dated the 11 th of January 1866, a piece of land
'th a b ungalow upon 1't a t Breach Can dy, wh'1ch 1orme
LU'.BHYIB.&.'I. wi J.' d
part of the share allotted to Vi~hoba. Vasudev, was conveyed
by him to Beramji Jijibhai, who had purchased it. The pre-
sent plaintiffs, who had then attained their majority, joined
in this conveya1;1ce, and in it are recited the Will and probate
of it, the reference to arbitration, and the Award.

Now upon these facts we are of opinion that there is evi-

dence of a family arrangement to give effect to the Will,
which the Court ought to uphold. The defendants, if not
bound by the ref~rence to arbitration and the Equity s~t,
have, since they attained their majority, adopted and con-
firmed the act of their mother and guardian. In order to
constitute a binding family arrangement it is not necessary
that there should be any formal contract between the parties, -
and if sufficient motive for the arrangement is proved, the
Court will not consider the quantum of consideration: Wil.
liams v. Williams (d). The fact that, by their agreement, the
parties have avoided the necessity of legal proceedings, is a
sufficient consideration to support it : Parfridge v. Smith (e),
Naylor v. Wynch (J). From the time of the death of Vesudev
Vishva.nath, until the dispute between the present plaintiff
and defendants arose, the validity of the Will does not appear
to have been ever questioned. The Court must, .therefore,
consider the Will as a valid one, and we are of opinion that
the language of the testator clearly shows an intention that
the grandsons should take the one-third between them, in
severalty and as members of a divided family, and that the
Will must ,be so construed. ·The words " share and share
alike" are not, to our minds, the only words which show

(d) Rep. 2 Ch. App. 294. (e) 9 Jur. N. S. 742.

(f) Sim & S. 564; 2 L. J. Ch, 132.

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 ORIGINAL CIVIL JURISDICTION. 139

that intention ; and the argument for the plaintiff in the 1868.
Division Court, that those words must be construed as ere- LAKsuxmA'i
v.
a.ting a tenancy-in-common, with all the incidents to it by GANPAT
MOROBA'
English law, appears to have gone further than was neces- et al.
sa.ry. -Such being the nature of the estate which the grand- :::~,
sons took under the Will, it follows that, although there has et al.
been no division of the third-share awarded to the grand- LJ.us:~u'1.
· sons, by metes and bounds, upon the death of Krish:Qanath
without male issue, his widow, the plaintiff, became entitled
to his share for such an estate as a widow has by Hindu
law in the property of her husband so dying, and not being
a member of an undivided family. It is difficult to find a
term by which this estate can be accurately defined. In the
decree it is called an estate for her life; but we think it will
be better to substitute for the words "to an estate for her
life" the words " during her life to a widow's estate."

The decree passed by the Division Court, after declaring

the plaintiff entitled to an estate for her life, according to
Hindu law, proceeds v with remainder to those who at her
decease may be the heirs of her said deceased husband;"
and an application was made to the learned Judge to alter
the minutes, on the ground that Lakshmibai claimed as
heir, not only to her husband,. but also to her daughter,
Devkuvarbai, who died, after her husband's death, childless
and unmarried. This was refused, and the plaintiff has
appealed against the decree, on the ground that the plaintiff,
as the heir of her daughter, has become absolutely entitled to
the property. In support of this, the case of Jamiyatram v.
Bai Jamna (ubi supra) has been cited, in which it was held,
on the Appellate side of this court, that " when a separated
Hindu dies, leaving landed property, and no sons or sons'
sons, his widow on his death takes for her life ; and the
daughters, on his death, subject to the widow's life-estate,
take estates in remainder, vested imn;iediately in interest, but
not coming into the possession of themselves or their sons,
as the case may be, until after the death of the widow." The
law thus laid down is opposed to a long current of author-
ties, of which one of the earliest is the judgment of Chief

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 BOHBAY HIGH COURT l\BPOBTS,

1868.
~--.,-
Justice East in O«saina.tk Bysack v: Hurroosoondry Dosst,
L.+.K~~IBA'I (g); and recent one• are Katama, Natchiar v. Th6 Rajah of
G.&.NPAT Shivagwn,ga (aupi·a); Mussumat Boobun Moyee Debai v. Ram
lr£OB0BA'
et aZ. Kishore Acharj Ohowdhry (h) ; and Nobin Okurule-r Okucw•
-=---
GANPAT butty v. Issur Ohunder Olluckei·butty (i), per Peacock, ·C.J.
lloBOBA'
n'V,al. The declaration in the d. ecree, that the remainder is to
Lu1BXIBA'1, those who at the decease of the plaintiff may be the heirs of
her deceased husband, is in accordance with these authori-
ties; and the learned Judge, who was himself one of the
Judges by whom the case of Janiiyatram V, Bai Jamna was
decided, having refused to alter the minutes, we think we
cannot treat that case as an authority binding us to alter
his decree. Opposed as the decision is to such high au.
thorities, and not ourselves concurring in it, we do not feel
bound to apply it in this case. The decree appealed from,
ought, in our opinion, to be amended in the manner we have
mentioned, and iu other respects to be confirmed; and, as
each of the appellants has failed in his or her appeal, we
think each should bear his or her own costs.
Deci·ee a,s amended conjfrmed.'
Attorney for the plaintiff: Sham?'/1,v P{uuJurang,
Attorneys for the defendants : Dallas and Co.
(g) 2 Mor. Di~. 198-210. (Ii) 10 Moo. Ind. App. Z,9, 311.
(i) 9 Cale. W. Bep., Civ. R. 505,508.

July 11. Ileferred Oase.

Ha'sAM KA'sAM et al. .. ................... ... Plaintiffs.
GoMA' JA'DAVJI et al. .. ................ ...... Defendants.
Conr,er,ion of Ornament, Pledged-Metllhl.re qf Damage,,
In an action or damages for the detention or ol'ilaments pledged with
the defendant which the defendant has wrongfully converted to his own
uae, the measure of damages is the value of the ornaments less the ,um for
which they have been pledged.

CASE stated for the opinion of the High Court; pili'saa.nt

to Sec, 55 of Act IX. of 1650, and Sec. 7 of Act XXVI.

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·:.1'P'

omanu.L CIVIL JUBISDICTION. 141

0£ 1864,by John O'Leary, First Judge of the Bombay Court _,=1868-,--._

H.&.'SA)(
of Small Causes : - Iu's•x
et al.
"In this case the cause of action appears in the sum. "·
mons, as ultimately amended by order of the Court of Small 1 1:J::V~'
Causes on the 14th of January 1868. ,ll. e,
"The facts of the case, as proved before me at the trial
on the 11th of December 1867, were as follows:-
" In the month of Paush 1923, the plaintiff Chandu
pledged certain ornaments with the defendant as security
for a loan of Rs. 3,200. In the month of Ashad in the
same year he redeemed a portion of the ornaments, and paid
Rs. 2,870 in part payment of his debt. He subsequently ten-
dered the balance of the debt, and demanded the remainder
of the ornaments, but the defendant refused to deliver them
up. It was admitted by the plainti1f that the value of the
ornaments claimed by him exceeded Rs. 1,000. The reason
alleged by the defendant for his refusal was as follows :-
" The defendant alleged that in ~he month of Shravat;t
1923, after payment of the sum of Rs. 2,870, the plainti1f •
came to him to demand the rema.inder of his ornaments,
u.ying he wanted to sell them ; that a calculation as to the
value of the ornaments then in the defendant's custody
was made, and this was settled at Rs. 750, which sum was
lodged with the defendant by the plaintiff', who took away
·the ornaments (with the exception of one, which the defend-
ant produced in court); that the account between the plain-
tiff' and the defendant was not then settled, but that on sub.
sequent examination the defendant ascertained the a.mount
remaining due to him to be about Rs. 472-8-0, principal and
interest, and he paid into court Rs. 270, being the be.la.nee
of th~ sum alleged by him to be due to the pla.intifi' on
settlement of account.
" In my opinion, the defendant wholly failed to prove hia
defence. I was satisfied that he had refused to deliver up
the ornaments, although the amount due had been tendered
to him by the pla.intifi'.
" The question for the decision of the High Court is, had

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 142 BOMBAY HIGH COURT REPORTS,

1868. the Court of Small Causes jurisdiction in the case, under the
fu'sAlll
KA'sAM circumstances stated above.
et al.
11. '' For the defendant it was contended, under the plea to
GoXA'
JA'DAVJI the jurisdiction, that the action was in the nature of an
ot al.
action of trover or detinue, and that the plaintiff was bound
to sue the defendant for the full value of the ornaments
detained by him, without deducting therefrom the sum ad-
mitted by the plaintiff to be due by him to the defendant.
'11hat, as the value of the ornaments was over Rs. 1,000, and
the amount so deducted or given credit for was not a pay-
ment on account, or an admitted set-off, the plaintiff could
not bring the case within the jurisdiction of this court, except
by abandoning the excess.
"For the plaintiff it was contended that the cause of
action was the damage sustained by the plaintiff, by reason
of the wrongful detention of the pledge after tender of the
amount due, which damage, being the excess of the value of
the ornaments detained over the amount due, was less than
Rs. 1,000, and that, therefore, the court had jurisdiction .
•
" I inclined to the latter view of the case, and gave a,
verdict for the plaintiff for Rs. 608-11-0 with costs, and I
certified plaintiff's costs at Rs. 51.
"The defendant having applied to the Court of Small
Causes for a new trial~ that Court, on the 14th day of Janu-.
ary 1868, amended the summons as set forth in copy of
amended summons (A), and, subject to the opinion of the
High Court on the question whether, under the circum-
stances stated above, the Court of Small Causes had juris-
diction to hear and determine this case, the Court of Small
Causes refused to grant a new trial, and confirmed my decree
of the 12th of December 1867. And I refer the case to ·the
High Court to make such order, under Sec. 8 of Act XXVI.
of 1864, as the said High Court may think proper."
The amended summons was for damages sustained by the
plaintiffs, by reason of the defendants' detention 1:1.nd con,ver-
sion to their own use of the plaintiffs' ornaments, pledged
with them by the plaintiffs, being the value of the said orna-

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~ · ··

ORIOIN4L CIVIL JURISDICTION, 143

ments less the sum of Rs. 478 due by the plaintiffs to the ~1=-868-,--._
H.l'e.u,
defend.al\ts on pledge of the same ••••••• , Rs. 885 14 0 KA's.u
et ai.
Rs. 835 14 O v.
Goiu.'
Costs ,, 61 8 9 JA'DA.Vn
,t al.
Total •. Rs. 897 6 9
There was no appearance for the plaintiff's.
I
The Hono1·able L. H. Bayley (Advocate General) for the
defendants cited Chitty on Contracts, p. 754; Avarda v.
Rhodes (a).
Coucu, C. J. :-It is clear to my mind that the Small
Ca.use Court had jurisdiction in this case. The original sum-
mons stated that the action was brought for Rs. 835-14-0
claimed as damages for the detention of certain ornaments.
The particulars go on to show how that sum was arrived at.
The value of the ornaments was Rs. 1,313-14-0, and there was
a debt due upon them of Rs. 478-0-0.
Now, according to several authorities, in such cases as this
the damages are to be measured by the amount of the loss
actually sustained by the plaintiff. Chief Justice Earle, in
Johnson v. Stear (b), delivering the judgment of himself and
Byles and Keating, JJ., said: "On these authorities we hold
that the damages due to the plaintiff for the wrongful con-
version of the pledge by the defendant are to be measured by ·
the loss he has really sustained, and that in measuring these
damages the interest of the defendant in the pledge at the
time of the conversion is to be taken into account." The
Judges, in coming to this conclusion, followed the case of
Ohinery v. Viall (c) in the Court of Exchequer, where it was
held that an unpaid vendor of goods who had wrongfully re-
sold them was liable only in damages for the difference be-
tween their value and the price that was to be paid for them.
It is-true that in Johnaon v. Stea1· Mr. Justice Williams
differed from the other members of the court, being of opi-
nion that the plaintiff was, upon the conversion of his goods
(a) 22 L. J. Exch. 106. (b) 33 L. J, C. P, 130.
(c) 29 L. J, Exch. 180.

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 144 BOllBAY HIGH COURT REPORTS,

__,=-1-.868_._ by the bailee, entitled to recover the whole a.mount of the

~~! value of the goods; but if bis judgment be examined, it will
.t ed. be found that even in his opinion the plaintiff' was not bound
"
Gox4' lilo to treat the demand, and that it was optional for him not
J4 '»4 m to sue for the entire amount; so that, as applicable to the
,t '"· present case, his judgment is not inconsistent with that of
the rest of the Court.
Applying the above rule to the case before us, what the
plaintiff bad a right to recover was, the value of his orna-
ments less the claim which the defendant had against him in
respect of them.
The case of A.vards v. Rhodes has, in my opinion, no ap-
plication to the present question.
The decision of the Small Cause Court was, therefore,
right, and the defendant must pay the costs of reserving
this question.
SARGENT, J, :-I am of the same opinion. It seems to me
that, on the face of the summons, if you omit the plaintiff's
particulars, no question could be raised. Those particulars
merely show how the result is arrived at, which is imma-
terial so long as the damage claimed is under Rs. 1,000, In
Ohinery v. Viall, Bramwell, B., says: "If the facts were
simply set forth according to the truth" (which is what the
plaintiff' has done here), "it would plainly appear that he
lost only the difference of value and price, being liJi,ble to pay
the price."
The plaintiff', by setting out the particulars, did no more
than state the true f 3.cts of the case. The summons
was substantially a claim for damages to the amount. of
Rs. 835-14-0.

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 OlUGJNAL CIVIL 1UBIBDICTION, 145

Referred Oase, 1868.

July 17,

SmvsHANKAR GovINDRA'M ... ............... Plaintiff.

THE JUSTICES OF THE PE.A.OE FOR THE CITY
OP BOMBAY-................................. ... Defendants.

J,utictl of tll, Ptact-Muicipal CommiuiOflff'-A.ct (Bofllhay) II.

of 1865, Stea, 4 nd 11-A.ct (Bombay) IV. of 1867.
No 1uit can be maintained against the Juaticea of the Peace of the City
of Bombay in respect of an alleged wrongful diatresa for unpaid ratea levied
by the Municipal Commi11ioner of that City, either under the proviaiou
of Act II. of 1865 (Bombay) or Act IV. of 1867 (Bombay) In auch a
auit the Municipal Commi11ioner himaelf or the actual tortfeuor ii the
proper defendant.

CASE stated for the opinion of the High Court, under

J Sec. 55 of Act IX. of 1850 and Sec. 7 of Act XXVI. of
1864, by John O'Leary, First Judge of the Bombay Court of
Small Causes :-
"This was an action to recover the sum of Rs. 525 aa
damages for a wongful distress levied by the defendants of
the goods and chattels of the plainti1f, in respect of moneys
alleged to be due to the defendants for house-rate for the
two quarters ending 80th June and 80th September 1867, in
respect of the house of the plainti1f, No. 28, Narron Dhurn
Street. * * *
"In July 1867 a bill was presented to the plainti1f for
house-rate at six per cent. on the assessed value of the said
house, and, the rate remaining unpaid, a notice of distress
was served on the plaintiff in August 1867.
"On the 21st of August 1867, the plaintiff wrote to the
Municipal Commissioner, tendering Rs. 15-12-0, being the
amount of house-rate claimable for the period mentioned
above, calculated at :five per cent. on the assessed value of
the said house. * * *
"On the 27th of August 1867 a distress warrant was is-
sued from the office of the Municipal Commissioner, order-
ing Babaji Sundar to distra.in and sell the goods of Bha.vani
Govindram to satisfy the amount claimed by the bill.
v-19 0 C

Google
~--
. '
D1g1tized by
 146 DOMB.A.Y HIOH COURT REPORTS,

1868. "Under this warrant certain goods of the plaintiff were

SHIVSlliNKAR
GovINDRA'.M
•
seize d, an d a por t'10n t h ereof was soId t o sat'1sf y th e c1aim
.
v.
JUSTICES Ol"
for house-rate. * * *
;:~~!~. "I was of opinion that the defendants were not the per-
sons properly liable to be sued in the present action, and,
being requested ·t o state a case for the opinion of the High
Court, I found a verdict. for the defendants subject to the
t>pinion of the High Court upon the following question :-
" Whether any such c:1se can be maintained against the
defendants in respect of the alleged causes of action, in ac-
cordance with Sees. 4 and 11 of Bombay Act No. II. of
1865, or either of them, or under any other provisions of
the said .A.et, or of Bombay .A.et No. IV. of 1867."
JJ'arran and Macplierson for the plaintiff.
Pigot for the defendants.
CoucH, C. J. :-In this case it does not appear that the
Justices in point of fact did anything at all. It was stated
in the argument, and no doubt rightly so, that they made
the rate; but the · rate, when made, is to be levied by the
Municipal Commissioner. Sec. 11 says that the entire exe-
cutive power and responsibility for the purposes of the Act
shall be vested in the Commissioner. And the act com•
plained of was accordingly done by virtue of a warrant
signed by H. B. Vikaji on behalf of the Commissioner. I
cannot conceive how, with such a provision as that contained
in Sec. 11, it can be contended that the Justices are to be
made liable for a tort committed by the Commissioner. They
have no control over the Commissioner. If be_ levies a rate,
they cannot prevent him from doing so. Then with regard
to the content.ion that because ult.imately the money to be
paid is to be paid out of a fund over which the Justices have
control, therefore the Justices are liable to be sued. It
cannot be supported for a moment. It would c1•eate im-
mense confusion if we were to look to the fmid out of which
persons were to be compensated, in order to fix parties, other
than those who have actually done the wrong, with liability.
We must say-tha.t the action is not maintainable.

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 ORIGINAL CIVIL JURISDICTION, 147
SARGENT, J. :-It is just possible that the Justices might 1868.
. . C
ren der t h emse1ves liable for a tort committed by the om-
SHIVSHANKA!t
GovlNDRA'M

missioner by interfering personally. in the collection of the v.

JUSTICES Ol'
rate ; but there is nothing in this case to show that they did PEACE,
BollBAY.
so, and the Commissioner is clearly not their agent so as
to fix them with liability for torts committed by him in the
general course of his business. The plaintiff must pay the
costs ofreserving this question.

Referred Ca~e.

MEHERVA'NJI MANCHARJI •.•..••••..•••••. , ••. Plaint{ff: ·

PuNJA' VELJI ................................. Defendant.

Juri.sdiction-Small Cau.se Court-Liquidated Damages-Earnest-money.

Where a contract for the sale and delivery of two thousand baras of
stone contained a provision that in case of breach by the purchaser, dam-
ages (liquidated) were to be paid by him at the rate of one mpce per
baras, and the purchaser paid Rs. 1,000 earnest-money, but made default
in acceptiDg the stone :-
Held that, though in default of acceptance,the earnest-money, Rs. 1,000,
,vas forfeited,the vendor could not retain the earnest-money and sue for
the whole amount of the liquidated damages (Rs. 2,000), but that his
proper course was to sue the purchaser for the difference only, and,
such difference amounting to Rs. 1,000, tsat the suit was properly brought
in the Small Cause Court.

CASE55 ofstated for the o:pinion of the High Court, under Sec.
Act IX. of 1850 and Sec. 7 of Act XXVI. of 1864,
by John O'Leary, First Judge of the Bombay Court of Small
Causes:-
" In this action, which was tried before me on the 6th
day of May 1868, the plaintiffs sought to recover from the
defendant the sum of Rs. 1,000, being the balance of a sum
of Rs. 2,000 alleged to be due by the defendant to the plain-
tiff as liquidated damages for breach of a certain agreement
(translated copy of agreement marked A annexed), aftei·
giving credit to the defendant for the sum of Rs. 1,000, de-
posited with the plaintiff by the defendant on account of the
said agreement.

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 148 BOMBAY IDGH , COURT RBPORTS.

1868. "The defendant pleaded-Id, want of jurisdiction in this

~~!!":~:• court to try the case; and, 2nd, a denial of the breach of
P UNIA~·vIILII, the agreement on his part.
"On the evidence I found that the defendant had broken the
agreement, and was liable to pay to the plaintiff Rs. 2,000,
being the liquidated damages as in the said agreement pro-
vided.

"As to the plea. to the jurisdiction, I held that the plain-

tiff was entitled to sue for the liquidated damages due to him,
and to give credit to the defendant in the summons for the
amount of Rs. 1,000, which, it was admitted, was deposited
with the plaintiff by the defendant on account of the said
agreement, and thus bring his claim within the jurisdiction
of this court; and I found a verdict for the plaintiff for
Rs. 1,000 and costs, subject to the opinion of the High
Court on the following question :-
" Had the court of Small Causes jurisdiction to try the
above case, on the ground that the claim was brought within
the pecuniary jurisdiction of that court by the credit given
to the defendant of the sum of Rs. I ,OOO deposited with the
plaintiff by the defendant on account of the said agreement ?
"And whereas the defendant has deposited in this court
the said several sums so decreed to be paid to the plaintiff,
together with the aum of Rs. 50 for the costs of taking out
such order as may hereafter be ma.de herein,
"The High Court will make such order iu the premises as
to it shall seem meet."

The following is a translation of the agreeme11t 0,bove

referred to :-
" To Parsi Mehervanji Mancharji. Written by Thakar Punja
Valji & Co. To wit: I do give in writing unto 'you as fol-
lows :-I have agreed to purchase frott1 you 2,000, namely,
two thousand, bcwaa of rubble stone. The same is agreed to
by me and you. Rubble stone is to be duly measured at
the rate of feet (100) one hundred per one bar(l8; the price

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'7

OBIOINA.L CIVIL JUBIBDICTION, 149

of that one banu is at the rate of Rs. 4-6-0, namely, four 1868.
•
rupees a.n d a. quarter a.n d two a.nna.s, a.t which rate
I ha,ve lhi:RBllTA'NII
luNcuui
a.greed to take (orpnrcha.se) the same; it is duly a.greed to by, P UNIA~·v ELII.
a.nd binding on, me and you. .As to the time fixed in respect
of the abovementioned two thom1and baraa, I will duly take
delivery (of the same) in full from the first day of November
of the year 1867 up to the first day of February of the
year 1868; and in the event of your not delivering the goods
to me at the fixed time, I will duly receive from you damages
a.t the rate of one rupee per one baras ; and the above•
mentioned number of ba1·aa you have agreed to deliver; (and)
as to the bsla.nce (or remainder) of the ba1·as or rubble stone
relating to you, a.s long as I shall keep (or purchase) the
same, you cannot sell to any other person. In the event of
your selling (the same) to any one else, I will duly receive
from you damages in respect of as much goods as you shall
have sold. You are to prefer to me a bill for the money
in respect of these your goods in 10, namely, ten, days. On
deducting from that bill 5 per cent., namely five per cent.,
whatever balance of account thero may be, I will duly pay
the same in full.
"In the event of my not taking (delivery) of the above-
mentioned number of baras, I will duly pay damages at the
rate of one rupee per one baras.
" I have agreed to purchaee from you these abovemen-
tioned baraa 2,000, namely, two thousand : on acoount thereof
Rs. 1,000, namely, one thousand, hav;e been duly paid in cash;
and hereafter, when my work shall commence, from the first
da.y of November, and your goods shall come, on deducting
Rupees one thousand from the amount of the goods, I will
duly pa.y in full the bill which you shall prefer in respect
of the balance remaining (unpaid). Now as to five per cent.
of your money, which shall continue to remain with me, I will
duly pay that amount to you in full. Lastly, and I am to
pay to you money in full, clear (or without deduction). I
will not deduct anything therefrom (and receive) from you.
I have given this writing in writing of my own will and
accord, 11.nd in sound sense and understanding ; the English

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 150 BOMBAY HIGH COURT REPORTS.

1868. date is the 19th of August of the year 1867. The hand-
MEnEavA'NJI
MANCHAnJI wr1
. t h at of .cwmJI
·t·mg 1s n.<: •. R, .. ,,
upJl,
'I!.
PuNa'VELJI. There was no appearance for the plaintiff'.
Fa1Tan for the defendant.

Coucn, C.J. :-In this case, which was stated for the
opinion of this court by the Chief Judge of the Small
Cause Court, and was an action to recover Rs. 1,000, alleged
balance of liquidated damages due from the defendant to the
plaintiff' on account of a breach of contract by the former, in
which the defendant pleaded to the jurisdiction of the Small
Cause Court, the question is, whether or not that court had
jurisdiction to entertain the suit.
The agreement on which the action was founded was one
between the plaintiff' and the defendant by which the parties
agreed, the one to sell and the other to purchase, a quantity
of rubble stone, amounting to two thousand baras, at the
rate of Rs. 4-6-0 per baras. Then, after providing for the de-
livery of the stone, the agreement proceeds to state what is to
be done in case of a breach of the contract. The material
portion is-"In the event ofmy not taking (delivery) of the
abovementioned number of baras, I will duly pay damages
at the rate of one rupee per one baras. I have agreed
to purchase from you these abovementioned baras 2,000,
namely, two thousand, on account thereof Rs. 1,000, namely,
one thousa~d, have been duly paid in cash, and hereafter,
when my work shall commence, from the first day of N ovem-
ber, and your goods shall come, on deducting Rupees one
thousand from the amount of the goods, I will duly pay in
full the bill which you shall prefer in respect of the balance
remaining (unpaid)."
What was done was; that the defendant, the purchaser,
paid to the plaintiff', the seller, a deposit amounting to
Rs. 1,000. The plaintift'now complains that the purchaser
has broken the contract; and is bound to pay him Rs. 2,000,
and has given credit to the defendant for Rs. 1,000, and
seeks to recover only the remaining Rs. 1,000. It is objected
on the part of the defendant that the plaintiff' is not bound

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 ORIGINAL CIVIL JURISDICTION, 151
to do that, nor is he right in doing so, but that he is bound 1868.
to sue for the whole Rs. ·2,000 (or abandon the difference, M:r::;~;~~~r
leaving the question as to the deposit-money untouched) ; P UNJA :'v·ELJI,
and the real question is whether he has properly sued for
Rs. 1,000 only. The position of the parties was this: the
defendant could not recover back the deposit from the plain-
tiff, as the plaintiff had not broken his contract ; the deposit
was forfeited by the defendant: Sp1·att v. J~ffel'Y (a), Be.mmn
v. },J'Donnell (h). But then, though the defendant, there
having been n. default, could not recover back his deposit,
yet the intention of the parties appears to have been that
the plaintiff was not to be entitled to have Rs. 2,000 and the
deposit also ; and this is in accordance with what is the law
on the subject : Palmer y, Temple (c).
Independently of authority, however, any one reading the
agreement would say that the deposit should be considered as
paid on account of the damages. The rights of the parties
were these. The plaintiff was entitled to Rs. 2,000 only, as
liquidated damages. The defendant could not get back his
Rs. 1,000 deposit, as the plaintiff was entitled to retain that
sum. The proper course, therefore, for the plaintiff was to
apply the Rs. l ,OOO in reduction of the liquidated damages,
and to sue for the balance only, which is what he has done.

Under these circumstances, the suit was rightly brought

in the Court of Small Causes. The case is very like one*
which came before this Court not long since, from the Small
Cause Court, and the principle then laid down applies. I
am of opinion that the Judge was right in holding that
he had jurisdiction; and that the defendant should pay the
costs of reserving this question.
SARGENT, J. :-I concur. It would not be at variance
with any of the decisions to hold that a deposit is paid on
account of whatever may happen in respect of the contral!t,
if the contract be performed as on account of the purchase-
money, and if it be broken on account of the damages.
(a) 10 B. & C. 249. (b) 9 Exch. 309. (c) 9 Ad. & E. 508.
* Hasam Kasam v. Goma Jadavji, supra, p. 140.

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 152 BOICBAY HIGH COURT REPORTS.

1868. Assuming that to be the right principle, the plaintiff' could

?,fEHERVA 1NJI
J.IANCHA.KJIonly recover what is the real amount of damage (which in
PuN,/V.1:LJI, this case is ascertained), minus the amount already paid.

--<*>--

Original Suit No, 461 of 1867.

Aug.SO.

et al. . . , ........... , , ................. Plaintiffs.

BEA'I'rJE
JE;HA' DUNGARSI ... •• . •.•..••.....•• . ....... •• Defendant.
Mortgage-Right of Mortgagee to withhold production of MortgagB
Deed or 1itle-deeds-Declaratory Decree-Consequential Relief-Cir,,
Proc. Code, Sec. 15.
B. mortgaged by deed certain premises to J. D., and at the same time
delivered to him title-deeds comprising the said premises, and also other
immoveable property of B. B. subsequently became embarrassed, and as-
signed all bis immoveable estate to trustees for his creditors.
The truatees sued J. D., and, alleging that he bad refused to permit the
sale by them of the said immoveable property, including the mortgaged
premises (they offering to apply the pPOCeeds of the latter in satisfaction
of J. D.'s claim) and to band over to them the said title-deeds, prayed for
a declaration that the said immoveable property other than the mortgaged
premises 'IV1UI vested in them free from any lien of the defendant.
J. D., in his written statement claimed a lien on all the title-deeds, and
submitted that be was not bound (until his claim was satisfied) to hand
them over to the plaintiff's, or to·produce the same or his deed of mortgage.
Si,mble, that, on the authorities, J. D. was not bound to produce the
title-deeds before satisfaction of bis claim.
~re whether before such satisfaction be was bound to produce even
bis deed of mortgage 1
Held that J. D. not having made any attempt or taken any active
measures to enforce bis lien, and no foundation having been laid by the
plaintiffs upon which consequential relief could be granted by the Court,
the latter were not, under Sec. 15 of the Civil PPOCedure Code, entitled
to a declaratory decree,
THIS case, the facts of which appear from the judgment
of the Court, was tried before WEsTROPP,- J., in a Divi-
sion Court, June 25 and 27, 1867.
Howard, for the plaintiffs, insisted that the defendant ought
to be now ordered to produce his deed of mortgage and title-
deeds; that his written statement was evasive ; and that,
under Sec.15 of Act VIII. of1859, the plaintiffs were entitled
to the declaratory decree prayed by the plaint.
White, for the defendant : The Court will not compel the
production of documents: 2 Spence Eq. Jur. 670, Addilon

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 ORIGINAL CIVIL JURISDICTION. 153

v. Wall.m· (a), 01-isp v. Platel (b), Brown v. Loekha,l't (e); -=--1868_._

nor will it, in such a case as the present, make a declaratory BEet:f.i,;
decree : Jackson v. Turnley (tl), Gl'eenwood v. Suthm·land (e), 11.
JETHA'
Fletcltei· v. Rogers (f), Garrick v. Lawson (g), Fu.ffe v. Arbuth- DuNoARSI.
not (h), Drew v. O'Hare& (i), Rooke v. Lorcl Kensi-ngton (j),
Lonl Langdale v. B1·iggs (k).
Ou1·. adv. vult.
WESTROPP, J. :-The plaint states that, by an indenture
of the 23rd of June 1866, Bomanji Framji Cama mortgaged;
to J etha Dungarsi, the defendant, four dwelling-houses and
premises situate at Malabar Hill, in this island, to secure the
repayment with interest to the defendant of two lakhs of
rupees lent by him to Bomanji Framji Cama, and that, at
the same time " the said B. F. Cama handed to the defend-
.ant certain title-deeds which comprised the said mortgaged
premises, and also other adjoining .immoveable property of
the said B. F. CalJla," and that Cama subsequently became
embarrassed, and, by private arrangement with his credi-
tors, executed, on the 6th of August 1866, a deed of assign-
ment of all his real, leasehold, and copyhold estates to the
plaintiffs, in trust for the benefit of his creditors. The
plaint then proceeds thus : " The plaintiff.'>, as such trus-
tees, proceeded to realise the said estate, and applied to the
defendant to permit the sale of the immoveable property,
including the mortgaged premises comprised in the said
title-deeds, proposing to pay over to the defendant the pro-
ceeds of the said mortgaged premises, and to apply the
residue to the general purposes of the said trust; but the
defendant declined to give such permission, and pretended
that he had a lien on the whole of the said. immoveable
property comprised in the said title-del;lds, but the plaintiffs
charge that the defendant has no lien except 011 the pre-
mises comprised in the said mortgage." It then prayed for a.
(a) 4 Y. & C. 447. (b) 8 Beav. 62. (c) 10 Sim. 421.
(d) 22 L. J. Ch. 949; S. C. 17 Jur. 643; I Dre'\\TY 617.
(e) 10 Hare Appx., p. xii. (/) Ibid. xiii. (g) Ibid. xiv,
(h) I De Gex & Jones 406. (i) 2 Ball & B. 562, note b.
U) 2 Kay & J. 753; S. C. 2 Jur. N. S. 755; 25 L. J. Ch. 795,
(k) 2 Jnr. N. S. 982.
V,-20 0 C

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 154 130:HBA.Y HIGH COURT :REPORTS.

declaration by the Court that the immoveable property com-

~;..18;;..68...;._._
Bi:ArrIB
et al.
prised in the title-deeds deposited by B. F. Cama, with the
v, exception of the mortgaged premises, is vested in the plain-
JBTBA'
DuNe.usI, tiffs "as such trust~s, as aforesaid, free from any lien or
claim whatsoever, whether at law or equity, of the defend-
ant, and that they may have such further or other relief in
the premises as may seem just."
The defendant filed a written statement, whereby he
claimed a lien on all the deeds deposited with him by
Cama for two lakhs of rupees, principal advanced by the
defendant, and Rs. 30,000 for interest, and stated that he
was ready and willing to hand over all of those deeds to the
plaintiffs on being paid the principal and interest due to him
on the mortgage ; and finally submitted that he is not bound
to produce those deeds to the plaintiffs in the mean time,
and adds that he has not consented to produce them.
The issue settled was, whether the plaintiffs are entitled
to the ,declaration prayed. No evidence has been given.
The execution of the mortgage was admitted, and also the
deposit of several title-deeds ; but neither the mortgage nor
the title-deeds have been produced. A copy, however, of
the mortgage is ann(lxed to the plaint, and referred to in it.
There is a blank in that copy for the time at which the prin-
cipal should be repaid. A collateral issue has been raised,
namely, could the defendant be compelled to produce the
mortgage or the title-deeds deposited?

This is not a case coming within the Indian Insolvent

Debtors' Act, or Act XXVIII. of 1865. The plaintiffs,
claiming under a private deed of trust for the benefit of the
creditors, stand in iio better position than the mortgagor
himself. The deed is not as favorably circumstanced as
it would be· in England, if registered under Sec. 197 of
the Bankruptcy Act of 1861. Therefore, ·w ith regard to the
right of the plaintiffs to compel the production of the inden-
ture of mortgage, this case does not f.all within Ere pa1'te
Oaldecott (l) and In 1·e Mark's Tr1tst Deed (ni).
(l) Mont. 55. (in) L. R. I Ch. App. 429.

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 ORIGINAL CIVIL ;JURISDICTION, 155
Whether, independently of the law and practice of bank- _,,,_1_868_._
BEATrlE
ruptcy, a mortgagor can compel the mortgagee to produce the et ai.
mortgage deed itself, is a question which has given rise to 1;~ ...,
conflicting decisions. It seems to be admitted that as a gen- DuNoARsr.
eral rule, and in the absence of fraud or other very special
circumstances, the mortgagee cannot be compelled to pro-
duce the title-deeds deposited with him so long as the
mortgage debt is unpaid (n). And a person who claims a
lien upon a deed generally has the same right to refuse pro-
duction (o), unless it be the object of the suit to impeach
the deed (p ). In favour of the production of the mortgage
deed itself are an order of Lord King, reported by Moseley
(q), Patch v. Wm·d (1·), decided by Stuart, V.C., and, perhaps
I may add, Owen v. Nickson (.~), in which a list or memo·
randum of deeds deposited by way of equitable mortgage,
under the Act to amend the Law of Evidence (t), was ordered
by the Court of Queen's Bench to be produced in an action
of detinue brought to recover the deeds. Of that case Mr.
Fisher, in the 2nd edition of his work on Mortgages, says :
"The order was considered by one of the learned Judges
(Hill, J.) to be justified by the case of Latimer v. Ner.,Je (u),
in which, however, the instrument ordered to be produced,
-o.nd alleged to be a mortgage, had been set np by the defend-
ant as conferring an absolllfe title, and was impeached for
fraud" (v). Sir L. Shadwell, V. C., in Browne v. Lockhart (w),
expresses but little respect for the order in Moseley. He
says : " I apprehend that such an application would not be
listened to at the present time. It does not quite tally
with our notions of the right of the mortgagee to keep his

(n) Greenwood v. Rothwell, 7 Beav. 291; Sugden V. & P. 371, 13th

ed.; and see Wallwyn v. Lea, 9 Vesey 24, over-mling Strode v. Black-
burne, 3 Vesey 222.
(o) Griffith v. Rickets, 7 Hare 305.
(p) Balch v. Symes, T. & R. 87; Fencott v. Clarke, 6 Sim. 8; Phillip•
v. Evans, 2 Y. & C., C.C. 647.
(q) Anon. Moseley 246. (r) L. R. 1 Eq. 436.
(s) 7 Jur. N. S. 497.
(t) Stat. 14 & 15 Viet., c. 99, s. 6; see Act XV. of 1852, s. 6.
(u) 4 Cl. & F. 570, explained 2 Ph. 484.
Cv) 1 Fisher on Mortgages, p. 346, para. 594; and seep. 341, para, 583.
(w) 10 Sim. 421.

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 156 BOMBAY HIGH COURT REPORTS,

18_68_._
--:=- deeds to himself until the moment arrives when the mort-
BE.1.Tr1E
,t al. gagor appears with the principal and interest in his hand ;
J1i1~~A' and then the mortgagee is not bound to part with the deeds
OL\'0Aus1. before he has received his money ; at least it mu,st be a
simultaneous transaction." In .Addison v. Walker (re), to an
inquiry in the bill, whether the defendant did not claim to
be a mortgagee of the whole, or some and what part, of a
testator's estates, the defendant, by his answer, stated that
he wa.~ mortgagee of part of the testator's estates, without
saying what part, and that he had an equitable lien on the
whole by deposit of title-deeds. He scheduled the title-
deeds in his possession, insisting that he was not bound to
produce them; the plaintiff excepted to that answer, and con-
tended that the defendant, having stated he was a mortgagee
of part of the estates, was bound to go further, and state
what part, and the Court of Exchequer held that he was not
bound to state the contents of title-deeds, and overruled the
exception. InBcntinckv. Willinlc(y), Wigram, V.C., in lay-
ing down that the defendant, a mortgagee of plantations in
Demerara, could not be compelled in a suit by the mortgagor
to produce the grosse (if it had been in his possession}, which
g1·osse is, according to the law of Demerara, the authentic
document which ~vidences the mortgage (the mortgage itself
being an act of court), said, "It is not alleged that there is
any right, according to the Dutch law, in a mortgagor to
· call on a mortgagee .to produce the g1·osse, or the title-deeds,
until the mortgage is satisfied, and, there being no sugges-
tion of any peculiarity in that respect in the Dutch law, I
can only consider what the law of this court is. Now I
believe that no point is better settled than this, that where
a mortgagor is proceeding against his mortgagee, a Court
of Equity will not compel the mortgagee to produce his
securities, except on payment of the moi:tgagee's claim; and
the rule does not depend upon any peculiarities of system,
hut is founded on principles of abstract justice." In 0'1'isp
v. Platel (z), which was a suit to redeem certain admitted
mortgages, but the bill contested the validity of another

(.r) 4 Y. & C. 447. (y) 2 Hare, pp. 1 and 8. (z) 8 Beav. 2.

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 ORIGINAL CIVIL JURISDICTION, 157
mortgage, and prayed a declaration that it was not a valid -=1_86_8_._
security, Lord Lang da1e, M.R., refused to compel the de. BEA'ITIF:
et al.
fendant to produce that mortgage for inspection. Dendy v.
JE'l'IU'
v. Cross (a) is a strong case to the same effect, and decided DvNoARsr.
by the same Judge (b). In Patch v. Ward, already men.
tioned, the order of Stuart, V.C., may possibly be sustainable,
on the ground that Ward prepared the mortgage as solicitor
both for mortgagor and mortgagee, and subsequently took
a transfer of it, and foreclosed. But the general doctrine,
laid down there, that the privilege of the mortgagee not
to produce his title.deeds does not extend to the mortgage
deed itself, is opposed t9 the main current of authority.
Many of the cases which I have mentioned do not appear
to have been cited in Patclt v. War<l. The Lords Justices
seem to have rested their decision · In 1·e Mark's T1·11st
Deed upon, and to have attribut€d the case of Ex pm·te
Caldecott to, the special powers which have been given in
bankruptcy to compel the production of documents (c), and
;t
do not hint any such general doctrine as that laid down in
.Patch v. Ward. My opinion would have been very clearly
in favour of the right of the defendant to refuse to produce
not only his muniments of title, but also his mortgage deed,
were it not that the decision of the Court of Queen's Bench,
in Owen v. Niel.son, compelling the production of a memo-
randum of· deposit of title-deeds by w~y of equitable mort-
gage, which memorandum must be viewed in the same light
as a deed of mortgage, raises some doubt as to whether
the ancient privilege of the mortgagee, so far at least as re-
gards the withholding of the mortgage deed, must not be
considered as to some extent infringed upon.
But even assuming that the Court has power to direct the
defendant to produce both the mortgage and the other title.
deeds, there are other difficulties in the plaintiff's way.
This is not a suit praying redemption. In D1·ew v.
(a) 11 Beav. 91.
(b) Sec also Lewis v. Davies, 17 Jur. 253; Gill v. Eyton, 7 Beav. 155;
Jones v. Pugh, 12 Sim. 470; Lloyd v. Wait, Ibid. 103.
(c) Stat. 24 & 25 Viet., c. 134; Stat. 1~ & 13 Viet., c. 106, s. 120;
6 Geo. IV., c. 16, ss. 33, 3-!; and see Stat. 11 & 12 Viet., c. 21, s. 4.

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 158 BOMBAY HIGH COURT REPORTS,

-=1868_.__ O'Hara (d) Lord Manners held that "a 'Person deriving title
l!E.U"rIE
et aZ. from a mortgagor after he had executed the mortgage could
1 .;~A.' not be in a better situation than the mortgagor, who could
DuNoA.asr. not file any bill against the mortgagee, except to redeem
him"-a rule not absolutely without exceptions: Je;freys v.
Dickson (e), Dalton v. Hayte1· (!).
For .the plaintiffs Sec. 15 of the Civil Procedure Code
(Act VIII. of ~ 859) was relied upon. It enacts that "no
suit shall be open to objection on the ground that a merely
declaratory decree or order is sought thereby; and it shaJl
be lawful for the Civil Courts to make binding declarations
of right without granting consequential relief."
Sec. 50 of Stat. 15 & 16 Viet., c. 86 (amending the prac-
tice and course of proceeding in the Court of Clhancery),
passed in· 1852, and Sec. 29 of Act VI. of 1854, amending
the practice and course of proceeding on the Equity side of
the Supreme Courts in India, are in the same words as tl10
section of Act VIII. of 1859 which has been qU,l)ted.
Notwithstanding the form of the prayer of the plaint, the
nature of the declaration which it seeks snbs~antially is a
declaration that the defendant has not any lien or claim at
law or in equity upon the immoveable "property comprised
in the .title-deeds deposited with him by Cama, except so
much thereof as may be specified in the mortgage as thereby
actually mortgaged to the defendant.
·IuJackson v. Tnrnley (g),Kindersley, V.C., refused to en-
tertain a suit merely for the purpose of declaring that a
person who claims to have a right which may arise hereafter
has no such right. In discussing the intention of the Legis-
lature in making the English enactment (h), similar to that
here relied on for the plaintiff.<!, he said-
" There is another observation: for I think that even if
the Legislature did think that the right of making a declara-
(d) 2 Ball & Beatty, note b, p. 562; Acc. McDonough v. 'Shewbridge
Ibid. 555; Hughes v. Cook, 34 Beav 407. '
(e) L. R. 1 Ch. App. 183. (f) 7 Beav. 313.
(g) 17 Jur. 643 S. C. 1 Drewrv 617.
(h) Stat. 15 & 16 Viet., c, 86, ·s. 50,

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.....
ORIGINAL CmL JURISDICTION, 159
tory decree should be given to the Courts of Equity as to ~1_868_._
BEATTIE
legal rights, still it would, if it meant to give a right to et al.
t•,
make a declaration, and nothing more, have expressed its JE'fHA'
intention in a very different manner. I will not suggest the DUNGARSI,
expressions, but I think it would be enacted in a very differ-
ent form from that which has at least left it so ambiguous.
Now, what is the language of the section ?-for there is no
preamble, and nothing else to guide us ; and it is to be borne
in mind that a suit might have been objected to on the
ground that the party only asked, and could only have, from
the nature of the case, a declaration of right. That was one
objection, and it might have been said by the defendant,
'you have no right to bring me here to litigate, irrespective
of your having no right to a declaration of consequential
relief.' Has the Legislature meant to remove both those
objections, or only the first ? What is the language used ?
[His Honour read the section.] Now, the only objection
intended to be removed was this :-' Though you may have
a right to sue, and bring me here in this suit, you have no
right merely to ask for a declaration.' That objection the
Legislature has removed; but did it also mean, besides re-
moving that, to say that anybody who had an apprehension,
however well founded, that, at some day or other, and in
some possible events,-a claim would be made against him,
may institute a suit to have the rights declared ? I should
not be justified in holding this by the words used, or by
anything that appears in the rest of the Act, or by anything
that has ever been done by the Legislature. The Legislature
has enabled the parties, where the question arises upon the
· construction of an instrument, or any other question of that
nature, or upon the rights of the parties, which were ca-
pable of being litigated in a Court of Equity, to agree upon
a special case, and take the opinion of the Court upon that
point. If it comes within that provision, let the parties
agree _up~n a special case ; but here they do not agree. In
that cautious way, where the parties agree who might
have litigated it, they may come before the court without
suit. But here the question cotild not be litigated between
these parties : the representatives of the deceased partner

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 160 BOMBAY HIGH COURT REPORT8,

__,~18_6_8_._ could not file a bill against the lessors to ascertain whether
BEATTIE
et al. in the abstract, and in an event which might occur hereafter,
JE:i~.1.' these lessors would have a right to file a bill against the repre-
DuNo.1.11111. sentative.s of the deceased lessee. I must also observe that
the language of the last branch of the clause is not unimpor-
tant; for it says afterwards, 'it shall be lawful for the Court
to make binding declarations of right, without granting con-
sequential relief.' That seems to import that it supposes
a case in which the court was capable of granting conse-
quential relief, if consequential relief had been asked or de-
sired; but here none is asked or desired."
Wood, V. C., in Rooke v. Lo1'Cl Kensington ('i)! said:: " I ap-
prehend it to be quite clear that nothing before the Chan-
cery Jurisdiction Improvement Act, and nothing in that Act,
justifies the position that a party can come here asserting
that he has a good legal title, but that somebody else has
set up an equity, not interfering with the possession of the
plaintiff, but only placing his title in an unsatisfactory state,
and can claim a declaration determining his right against
these dormant claims. Such a suit would be a mere action
of declarator, which, whatever may be the merits or value of
such a jurisdiction, the Legislature has not empowered this
court to entertain. The authorities before the late statute
are numerous. Gi·orc v. Basta1'cl (j) is an authority to show
that nothing in the nature of a mere action of declarator
can have~ locits standi here. Then under the Stat. 15 & 16
Viet., c. 86, the 50th section only says that no objection is
to be taken in this court in consequence of the legal right
being at issue, as appears by the case of Tu1"ne1· v. Blamirc
(7.:). It was not the intention that a party should come
here with merely a legal title, but that, there being equities
to be tried, the mere fact of the legal title being also at
issue is not to oust the jurisdiction of the court. Therefore,
as to all that part of the bill by which the plaintiff seeks to
be quieted in the enjoyment of his legal estate, there can be
no relief."
(i) 2 Jui'. N. S. 755, 2 Kay.& J. 753; 25 L. J., Ch. 795.
(J) l De Gex Mac, & Gor, 69. (k) l Drewry 402.

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 •
vl, ·:
.[l._l ( 1/ ,
1 . . . ,. ,,
. . ' '. J
.T lt'n.don:.n .
• ' t' .

Jj f"·
I ' '. :, l! L,' lA'
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1 (

ORIGINAL CIVIL JUfll8DICTJON, 161

The remarks of Phcar, J., in Ke1uimm Clwckabuft!J v. 1863.

llE.\l'l'IE
Dinanath Panda (I), upon Sec. 1;, of Act VIII. of 185!), are et al.
particularly apposite to this case. He said : "It seems to i•.
JET HA'
me that this section gives the Court power to make a mere DtJXG.\ltSI,

declaration of right, without anything more, only in those

cases where the factis proved before it arc such that it would
have been able to give consequential relief had the plaintiff
asked for it, and the Court seen fit to grant his prayer. In
other words, the plaintiff, iu order to entitle himself to a
bare declaration of right under this se0tio11, must make out,
to the satisfaction of the Court, some act done by the defend-
ants which is hostile to and invades that right, and which
would justify au injunction or a decree for damages, or a
decree for delivery of possession, being passed against the
defendant, if the Court had so thought fit to exercise its
discretion. In this case, it does not appear that the de--
fondant has done anything whatever which can give tho
plaintiff a cause of action against him. No doubt, when
challenged by the pL.'lint, he is ready to deny the plaintiff's
claim. But this denial by itself does not give the plaintiff
a right of suit if ho had it not before, although of course it
may afford some evidence of its existence."
The same views were adopted in many other instances in
which declaratory decrees were sought: e.g., O,i:.ce Muzlm,·
Hossain v. Dinobundoo Sen (m); Baboo blotee Lal v. Rance,
'tl)ife of Mcihal'ajci Dlwop Sing Bahaclooi' (n); BrindCl' DabeLJ
Ohowclhrnin v. Pearce Lall 0/wwclhry ( u) ( where it was held
that the mere fact of a Hindu widow making alienations
during her life, which are not binding on the heir of her
husband after her death, does not entitle him to a declara-
tory decree) ; Brojo Kisho1·ce Dassec v. Srincdh Bose (p); Tlw
Tntstces of Birkenhead Docles v. The Birl.:,cnhcacl Dock Oom-
1xiny (q); Goslht[/ v. Gosling (r) ; Webb v. Byng (s); Bristow
(l) 9 Cale. W. Rep., Civ. R. 325.
(m) 1 Ilonrke Cale. R. 9. (n) 8 Cale. W. Rep., Civ. R. 64.
(o) 9 Cale. W.R., Civ. R. 460; see also 2 Hay's Rep. 608.
(p) 9 Cale. W. Rep., Civ. R. 46:1.
(q) 18 Jnr. 883, S. C. 4 De Gex Mac. & Gor. i32; 23 L. J. Ch, 457.
(r) 5 Jnr. N. S. 91v.
(s) 3 Jur. N. S. 1243; S. C. 8 De Gex iifac. & Gor, 633.
V.-21 0 C

/
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 162 BOMBAY HIGH COlJRT ttl!PORTS,

_ _1_868_._ v. Whitriw1·e (t); Lculy Langdale v. Briygs ('u); and the cases
BEATrlE
et al. cited by Mr. White from the Appendix to 10 H are.
i·.
JETHA The principle which pervades the cases which have been
I)i.;~G.\RSI,
mentioned, and which relate to declaratory decrees under
'Sec. 15 of Act VIII. of 1859, and the similar section in
the English statute, is applicable to the present case. The
plaint does not allege that the mortgagee, the defendant,
has taken, or attempted to take, possession of any premises
to which he is not entitled; nor does it aver that he has
taken any active measures whatsoever to enforce his alleged
lien on the property (asserted by the plaintiffs not to be
included in the mortgage), either by the institution of legal
proceedings or otherwise. Nor has any ground been men-
tioned upon which an injunction could be granted. In
!!!hort, no foundation has been laid upon which, if the Court
were so minded, it could decree consequential relief. Under
these circumstances, howsoever willing I might be to assist
the general creditors of B. F. C(ima, I have no choice but to
find in the negative the issue whether the plaintiffs are en-
titled to the declaration prayed; and accordingly to di~misi;
the plaint. 'fhe decree must, therefore, bo for the defendant;
and as, having regard to the authorities, this suit was a very
bold experiment, the plaintiffs must pay the costs.

Dcci·eo for llefenclant with costs.

(t) 4 Kay & J. 743. (u) 2 Jur. N. S. 982; 8 De Gex Mac. & Gor. 391.

NoTE BY EoITOR.-It may be useful to mention the followin"' cases

in which declaratory decrees have been made: Norman v. Jolinson~ 6 Jnr.
N. S. 905; Byam v. Byam, 1 Jur. N. S. 79; 19 Beav. 58; Savil v. Bruce,
29 Beav. 55-57; Hope v. Hope, 4 De Gex Mac. & Gor. 328; S. C. 23 L.
J ., Cb. 602 (of English law for informationof foreign Courts); L. R. 4 Eq.
310 (of right to renewal). See further, as to declaratory llecrees, Jenner
v. Jenner, L. R. 1 Eq. 361 ; G_obind Monee Dossee v, Ram Lall Bysack,
Cale. W. Rep., Full Bench Ruhngs 1864,p. 165; andPureeJanKhatoon
v. Bykunt Chunder Chuckerbutty, 9 Cale. W. Rep. 380.

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 ORIGINAL CJYIL JURISDIC''l'ION. 1133

Appeal No. 146.

SHA1MRA'v PA'NDURANG .................. ... Appellant. 1808.

Dec. 17,
'l
1RUSTEES OP BHAGYA1NDA's PunSHOTAMDA's.Respondenfs.
Attorney-Costs-Retainer of Attorney by Tl'ustees of an lnsolcent-
Liability for Costs.
The contract to he implietl from the employment, hy the trustees of an
insolvent, of an attomey to carry on n suit already commenced by the
insolvent ns plaintiff', and in which such attorney wns rctainetl for him, is a
contract to pay nll future costs, but not the costs incurred prior to surh
employment.

JN 1863 Bhagvandiis Pnrshotamdiis filed a suit (No. 642

of 1863) against Gokalnuth Siivaknuth and others, pray-
ing for an account, and employed Mr. Shamrav PiincJurang
as l1is attorney to conduct it for l1im.
On the 6th of November 1865 a decree was obtained in
that suit, by which it was referred to the Commissioner to
take the accounts between the parties. Bhagvandus Pur-
shotamdns also employed Mr. Shamriiv Pan<'.[urang to bring
another suit (No. 31 of 1866), and in that suit a decree was
made for the plaintiff, in the early part of 1866. In July
1866 Blmgvandiis Purshotamdas took the benefit of Act
XXVIII. of 1865, and his estnte was snbseqnently vested in
Trustees under the .Act.
These Trustees signed a wa1Tant appointing Shamrav P{~n-
<Jurang their attorney to carry on Suit No. 642 of 1863.
He accordingly obtained a Judge's order to substitute the
Trustees as plaintiffs, instead of Bhagviindas Purshotamdas,
which was done, and the suit was entitled John Beattie ancl
othcriJ, Trustees of Bhayi•a1ulft.~ Pm·slwtamclas, v. Gokalnath
Savalrnath and othel'S, but 110 further steps were taken. In
Suit No. 31 of 1866 the Trustees directed Shamrav Pan<Jurang
to issue execution, but nothing was done in that suit.
In the latter portion of 1867 Shamrav Pan<Jurang sent in
his bill of costs to the Trustees, but they refused to pay in
full for any part of it, except for what was actually done
subsequent to their retainer, but they allowed him to rank
as a creditor on the estate for the whole amount.

~·
D1g1tized by Google
 164 DOMBAY HIGH COURT REPORTS,

1sos. Ou the 27th of July 1868 Shumrav Panq.urang took out a

SHA.1 )£U.\1 v
PA'NounANG summons in chambers, calling upon Mr. M. R. de Quadros

·v.
T RUSTU:S {the then sole surviving Trustee of the estate of Bhagvundas
OF .
DHAGvA'xnA's Purshotamdas) to show cause why he should not pay his
PUIISHO'l'All•
DA's.
, P'au<_l urang, h.1s costs of s
attorney, Shi.,unrav . No. 64"~ of
( rut
1863 (John BcatHo antl others, Tr11stees of Bhagvanclas P1irslw-
tamdas, V, Gol.:alnath Sat'llknath) from t110 time of the institu-
tion thereof down to the then present time. This summons
was dismissed by .Arnonlcl, J., on the 18th of .August 1868.
From the order dismissing the suit, Shamrav PancJumng,
appealed, and the appeal was argued before CoucH, C.J.,
and SARGENT, J., October 1 and 2.
White {with him Mayhew), for the appellant :-The Trus-
tees, by the appointment of the appellant as their attorney,
have rendered themselves liable for all the costs of the suit.
They have adopted the contract between the original plain-
tiff and his attorney. Having had the benefit of the papers
in the case, and of the knowledge of the attorney, they are
bound to pay: "qui sontit commodmn senfii-o clebct et onus."
The contract between the attorney and client is an entire
contract: Harris v. Osbourn (a), Mason v. Polhill (b).
Dunbar and McC1illoch, for the respondents :-The appel-
lant is only entitled to claim on the estate, and to his lien
on the papers in his hands. He might have refused to go
on with the suit except upon terms of the Trustees render-
ing themselves liable for all the costs, but in the absence of
an express promise the law will not imply one for him. It
would be unjust to do so. The Trustees have received no
benefit. They cited E;u parte Dean (c), Parke1· v. Toofal
(d), Siinmoncls v. Grt. Bastern Ry. Co. (e).
White in reply,
Cur. adv. vult.
Dec. 17. CoucH, C.J. :-This was an appeal from an
order made, by Sir Joseph Arnould, on the 18th of August,
(a) 2 Cr. & l\L 629. (b) 1 Cr. & M. 620.
(c) 2 Mont. D. & D. 438. (d) Law Rep. 1 Exch. 41.
(e) Weekly Notes, 8th Augu~t 1868, p. 239,

..'·
D1g1tized by Google
 ORIGINAL CIVIL JURISDICTION, 165

dismissing a summons, dated the 27th of July of the present 1868.

• • S11A'l!RA'V
year, which directed Mr. M. R. de Quadros, the surv1vmg P.\'NouR.\No

Trustee of the estate

.
of Bhagvandus Purshotamdus, to show T ~·.
Kl:S'fEES OF
cause why he should no.t pay Mr. Shamrav PancJnrang his B11AG\'.\'ND.\ S
0

. f:rom t he time
costs of swt . . . . t h ereo f d own to
of t h e mst1tut10n l'ntS110TAl!•
DA's. ·

the date of the summons.

The facts appear to be that two suits, Nos. (H2 of 1863

nnd 31 of 18<36, were brought by Mr. SM1mr£1v PancJurang as
attorney for Bhagvandus PurshotamJus, and that in Suit
642 of 18(33 a decree was obtained, by which the suit was
referred to the Commissioner, who has not yet made his
report; and in the other suit there was a decree for the
plaintiff. Bhagvuudas Pursbotamdus subsequently took the
benefit of Act XXVIII. of 1865, and the Trustees of his
estate applied to Mr. Shumrav PumJurang to continue the
suit in the one case, and in the other to issue execution on
the decree already obtained. In the latter suit nothing was
done, but in the former the names of the Trustees were
inserted as plaintiffs. It is contended, on the part of the
appellant, that, under these circumstances, the surviving
Trnst~e is liable for the whole of the costR in that suit.

I am of opinion that the learned Judge was right in

dismissing the summons. The only fact upon which the
appellant relies is a retainer to continue the suit, and I think
that the contract that is to be implied from the employ-
ment to continue the suit is to pay for the work that may be
done under it, and not for the costs previously incurred,
Harris v. Osbourn was cited for the appellant. In that case the
Court helcl that where an attorney is employed to conduct a
suit, it is an entire contract to carry on the suit to its ter-
mination, and determinable only by the attorney on reasonable
notice; and where no such notice has been gi,,en, the statute
of limitations does not commence to run till the suit is at nn
end. What the Court decided there was, that the employ-
ment not having been determined, the statute did not begin
to run. It is settled law that it is a contract that may be
determined ; and though the contract is entire in the sense

D1g1tized by Google
 10'.3 BOMBAY HIGH COURT REPORTS,

_I'!_~·- that if not determined the statute of limitations does not

SHA'lllU'V
PA'irnnnNo
b egm
• t o run t'll h te rmmat10n
1 t e
• , of the sm't, 1t
• IS
• not entire
• so
i•.
T Rl'.STEES OF
as to prevent a person from taking it np without being- liable
~

BHAG\·A':rnA.'s for the whole of the costs. The attorney might, if he ha<l
P1ms1JOT.BI• •
nA's. thought fit, have refused to accept the employment ; he might
have retained his lien on the papers; but in the absence of an
agreement he can ouly recover from the Trustees for what he
has done for them. It was argued that it was an advantage
for the Trustees to employ the same attorney ; that may be
so, but it is not a ground for implying such a contract as
is contended for. The learned Judge was, in my opinion,
right in the conclusion he came to, and there is no ground
for saying that the 'l'rnstces have made themselves liable for
the whole of the costs.
SARGENT, J. :-I entirely concur. It is admitted that there
was no express promise; if the 'l'rnstees are liable, it is only
a liability to be inferred from their conduct. 'l'hat conduct
was to allow Mr. Shnmrav Pan1nrang to continue the suit,
and, in my opinion, it would be going too far to say that
from that alone the law will imply a contract to pay all
the back costs. The liability to do so is put up~n the
ground that the Trustees have adopted the contract entered
into between the original plaintiff and his solicitor. If the
contract had been 0110 that could not be determined, there
might be something to be said in favour of snch a conten-
tion; but it is considered to be a determinable employment.
The remarks of Lord Chief Justice Tindal, in 9 Bing. 407
(Vctnsandau v. Brown), "Suppose the employer to become
insolvent while the attorney is engaged in a long and diffi-
cult suit, it would be hard if he could not recede-resile-
from such an engagement," show that the mere fact of a.
man's becoming insolvent would entitle the solicitor to de-
termine the contract, and sue for his costs : if the Trustees
afterwards go on with the suit, the mere fact of doing so is
not an adoption of the former contract; on the contrary,
there is reason to suppose that the Trustees never intended
to make themselves liable for the formercostR. The solicitor
was engaged by them in what must in fact be regarded as

D1g1tized by Google
 ORIGINAL CJVlL JUlUSDIC'fION, 167
a new suit. 'l'he summons, then, in my opinion, was pro- 1808.
--=---
p erly dismissed. SnA' )mA ,.
P.\'XDl"JUN(;

Appeal llism-i'.ssc<l, with costs to be paid uitt Tia~.:'~Es OF

0 t' th,• e:slale ut' B. P. BuAuvA' XDA'.;
'J 'J l'ntsHOT.\M·
Attorney for the appellant: Sltamrav Phllj111·a11g. DA.'d.

Attorneys for tho respondents: 1Iccir11, Cle1:claml, aml Peife.

Appeal Nu. 150.

THE LIQUIDATOU~ OF THE !ND1AN PENINSULA, Dcc.19.

LONDON, AND CHINA BANK (Lnn·rED) ... Appellants.
_J. L. ScoTr, Trustee of the estate of
Kharsedji Fardunji .. , . , , .....•........ , ... Respondent.
Purcha.ye of Shares in a Company by Directors-Ultra vires-Breach
of Trust-Debts proveahle u11der Act XXVIJJ, of 1865.

A claim against the Directors of a Joint Stock Company to make goo1l

fumls of the company expended by them, on behalf of the company, in
transactions that the company was forbidden by its Article::1 of Association
to engage in, is proveable under Act XXVIII. of 1865.

THIS was an appeal from an order of Arnould, J., made in

chambers on the 5th of October 1868, by which ho
ordered that the Trustees of the estate of Kharsedji Fardunji
should be at liberty to distribute the assets among the credi-
tors who had proved their claims, without reference to the
claim of the Indian Peninsula, London, and China Bank
(Limited) in liquidation.
The facts upon which the above claim was founded
appeared from affidavits ma.de respectively by Mr. Scott,
Trustee under .A.et XXVIII. of 1865 of the estate of Kharsedji
Farduuji, and Mr. Punnett, one of the Liquidators of the
Indian Peninsula, London, and China Bank (Limited), and
were as follow :-
Kharsedji Fardunji had been a Director of tho I. P. L. &
C, Bank.
In May 1866, at n meeting of his creditors, it was resolved
that his estate shotild be wound up under Act XXVIII. of

D1g1tized by Coog le
 lt38 IJO.llll.\Y HIGH conn REPORTS.

_1~_8._ 1865. By a Judge's order dated 17th May 1867, it was

L!QUU.\l'Ol!S
ot· ho. l'El'f.d'1rected t h at t h e ered'1tors to t h e estate should send m
' the1r
'
&c. B.1NK claims before the 20th of June 1867. In August 1866 the
t•.
J. L. Sc:ot1·. Manager of the I. P. L. & C. Bank had sent in a claim,
founded on a promissory note, on the estate of Kharsedji
Fardunji for Rs. 2,41,916, which claim was admitted, and
dividends were received upon it in due course.
On the 22nd of May 1868 Mr. Scott received a letter in
the following terms from the Liquidator~ of the I. P. L. &
C. Bank:-
" To THE TRUSTEES OF THE EsTATE OF KHARSRDJI F ARD UNJI.
" DEA& Srns,
"In. addition to the admitted claim of this bank, upon
which the dividcmls already declared have been duly re-
ceived, we have now to give you notice of a claim amount-
ing, exclusive of interest, and without prejudice to such
increase as a further investigation of the affairs of the Bank
may call for, to Rs. 3,26,268, being the amount of money
disbursed by the Directors of this bank during the time Mr.
Kharsedji Fardunji was one of them, in contravention of the
Articles of Association; Rs. 1,58,745, expended in the pur-
chase of shares, Rs. 1,67,523, loss on sundry ioans made on
the security of shares in the bank.
"We have to request to be informed, at your earliest cpn-
venience, whether you are prepared to pay to us the divi-
dends on the amount claimed which have already been
declared, and to give you notice, should you decline to do
so, that immediate application will he made to the Court m
the matter.
(Signed) P. E. BENDIR,
for self & T. F. Pnnnett, Liquidators."
This claim the Trustee of the estate of Kharsedji Fardunji
refused to admit, as not being proveable under Act XXVIII.
of 1865, and as being too late in point of time. He accord-
ingly, on the 29th of September 1868, applied to Sir Joseph
Arnould to be allowed to wind up the estate without refer-
ence to -it, stating that he was in a position finally to

Digitized by Google
 ORIGINAL CIVIL JURISDICTION. 169

Jiqui<late the estate in fourteen days, but that if the liquida- 1868.
.
t 10n were t o b o k ept open unti·1 a suit
• to establ"1sh sueh claim
• LIQ,UWATORB
oF IND. PEN.

should bo decided, more than a year must elapse before the &c.11.BANK
estate could be finally closed. J. L. Scon.
The I. P. L. & C. Bank went into liquidation in March
1867.
Mr. Punnett made an affidavit in reply, in which he ex-
plained how the delay in making the claim arose (the delay,
however, was not insisted upon at the hearing of the appeal),
and set out in detail the circumstances under which the
loans were granted, and the purchases of shares made, by
the Directors, and stated that he was about to file plaints
against all the Directors of the bank who were implicated in
the purchase of the bank's shares and the loans upon them.
Art. XIV. :-"No share in the Company shall be pur-
chased by or on behalf of the Company, and no advance of
money or security for money shall be made by or on behalf
of the Company to any person on the security of any such
share."
'rhe Appeal was argued before CoucH, C. J., and SARGENT,
J., on the 12th of November 1868.
Pigot and Marriott, for the appellants :-.As no question
with respect to the delay of the appellants in making their
claim is raised by the respondent, the only point before the
Court is, whether a claim can be proved in bankruptcy (and
under Act XXVIII. of 1865) for a debt incurred by a bank-
rupt by breach of trust of his duties as Director of a bank.
..
It is submitted that such a claim is proveable. The specific
breaches of trust we complain of are-(1) dealing in the
shares of the .bank ; (2) lending money on the security of
such shares : for such acts Directors are liable to be sued :
Jehan9fr Rastamji Mofj,i v. Shamji Laclha (a). The only
question is as to the amount of loss, and that is not a claim
sounding in damages. The suit is in fact to recover back
the money wrongfully appropriated, and resembles claims
upon tho estate of a bankrupt for money embezzled by him,
or obtained by forgery, which are proveable : Ex partc Jones
(b); Ditdley and West Bromwich Banl.ing Co. v. Spittle (c);
(a) 4 Born. H. C. Rep., 0. C. J. 185.
(b) 2 Mon. & Ayr. 19:J; 3 Den & Clt. 525. (c) 1 John & Hem . 14.
V.-22 0 C

D1g1tized by Google
170 BOMBAY HIGH COURT REl'OR'l'S,

1838. Mavoi· v. Davenport (cl). A debt incurred by a breach of

L!Qt:IOATORS
01, I:rn. PEN.
'
trust 1s •
a s1mp1e con t rac t debt, an d, there1ore,
r'
proveab}e :
&c. BANK Cox v. Bateman (e) ; March v. Russell (!); Lowin on
i•.
J. L. ScoTT. Trusts, 158, 590.
McOulloch (with him Wldte) for the respondent.
Cur. adv. 't'Ult.

Dec. 19. CoucH, C.J. :-In this case a snmmons was

taken out before Sir Joseph Arnould, by which, upon reading
the affidavit of Mr. Scott, sworn on the 29th of September
1868,· it was ordered that the Trustees of the estate of
Kharsedji Fardunji should be at liberty to distribute the
assets among the creditors who had proved their claims,
unless good cause were shown to the contrary by the Liqui-
dator of the Indian Peninsula, ·London, and China Bank
(Limited) ; and in accordance with that summons the Liqui-
dator appeared to show cause. The cause which he showed
was stated in his affidavit, and in substance was, that there
had been a claim made by him against the estate ofKharsedji
Fardunji in respect of transactions and dealings by him, as
Director of the company, with the property of the company,
contrary to the Memorandum and Articles of Association,
whicl1 amounted to a breach of trust. That is set out in
the 11 th, 12th, and following paragraphs of the Affidavit of
Mr. Punnett. In the 18th paragraph it is put shortly in these
words: "I have been advised, and believe, that the with-
drawal of the said bank funds for the purpose of purchasing
• shares in the said bank, and the advancing money to share-
holders upon the security of the shares of the said bank is
contrary to the Articles of Association of the said bank,
and is particularly prohibited by Article 14 of the Articles of
Association."
Upon the summons being heard, Sir Joseph Arnould made
an order absolute, by which he directed that the Trustee of
the said estate should be at liberty to distribute the assets
among the creditors who had proved their claims, without
reference to the claim of the Indian Peninsula, London,
and China Bank; and the Liquidator of the hank has ap-
pealed to this Court against that order.
( d) 2 Sim. 22i. (e) 2 Ves. ID. (f) 3 Myl. & Cr. 31.

D1g1tized by Google
 ORIGINAL CIVIL JURISDICTION, 1il

It was a.dmitteu that the only point was, whether tho claim 18GB.
~
proveablo un d er A et X XVIII. of 186.), and that there oF I;;o. l'Ex.
LlQ.UlDA'l'IIR:i
wt'I
was no difference in this respect between that Act and thC? &c. ~A;;K
Insolvent Act, Sec. 40 of which enacts: "That all such J. L . ScoIT.
debts, dues, and claims as migl1t ho proved under a fiat of
bankruptcy bearing even date with the insolvent's petition,
or the adjudication (as the case may bo) 1 according to the
provisions of 6 Geo. IV., c. 16, 01• any other statute or
statutes now in force, or hereafter to be passed, relating to
b~nkrupts, may also be proved as hereinbefore mentioned,
in the same manner • * * as in the saiu statutes arc
or may be set forth and prescribed." The question then
resolves itself into this, whether the claim is such as could
be proved in bank1•upwy in England; and we are of opinion
that it is. 'rho nature of the fobility of the Directors of a
company was determined in the caso of Jehangil' Rastainji
Motf,i v. Sluimji Ladha (supra), where the learned Judge
held that a shareholder in a Joint Stock Company could main-
t!l-in a suit against the Directors to compel them to restore
to the company fonds of the compn.ny that had been made
uso of by them in transactions that the Directors had no au-
thority to enter into, without making the company a party to
the suit. That jnclgment was founded on a series of decisions
of the courts in Eugln.nd; and the principlo that Directors
who noglect the rules of a compa.ny are liable to make good to
the shareholders any loss occasioned thereby, and that their
liability i11 this respect does 3.3-ot differ from that of ordinary
trustees, has been recently affirmed by the Master of tho
Rolh in England, in tho c:i.so of Turquan1l v. Mm·shall (g).
Such being tho nature of the liability of Directors, and tho
breach of their duty reudoring them liable as trustees, the
claim is in respect of a breach of trust, which is a claim
proveable in bankruptcy: E,iJ pnrte Richard.~on, 1·e Hodgson
(h); E,i; parte Heaton, 1·e Mo:vu1i (i); E:r parte Vi1w, 1·e Hooper
(j); E,'/J pa1·te. Watson (k). •
The authorities clearly establish th::i.t such a claim as this
is provoable; but even if there wero no authorities to guide
us we should have considered that it was so ; for the claim is
(g) Law Rep. 6 Eq. 112. (It) Buck's Ilktcy. Ca. 202, 421.
(i) llJid. 386. (j) 1 Dcac. & Ch . 357. (k) 2 Yes. & n. -tU.

D1g1tized by Google
172 BOMBAY HIGH COURT REPORTS.

__
18_6_8._ really that the trustee shall be made liable for the money that
LIQUlDUORB
oP !No. PEN. he has improperly taken, and the money is to be consider1d

&c. BANK
v.
as if it still belonged to the Association. It is money of the
J. L. Scon. bank which is in the hands of the trustee, who cannot be
allowed to say that he has made use of it in breach of his
trust. ,
'l'he order of the learned Judge must be reversed; the
Trustees of the estate of Kharsedji Fardunji must be pro-
hibited from parting with all the assets until this claim is
decided, and the costs of the Liquidators must be paid out
of the estate of Kharsedji Fardunji.

Attorney for the appellant : J. S. Htwrell.

Attorneys for the respondent: Kci1~ Prcscot, and Winter.

1867-68. J oAO MARIANO LOPES ..................... Plaintiff.

FRANCISCO LoPES ........................ ... Defendant.
Portuguese Law-Primogeniture amongst Portuguese Inhabitants of
Bombay-Cession of Bombay to the English-Englislt Law introduced into
Bombay.
The Portuguese inhabitants of the Town and Island of Bombay, not
having hnd their laws, and usages having the force of laws, preserved to
them by the Treaty by which Bombay was (A.o.166l)ceded to the English,
are subject to English law, so far as the same has been introduced into
. Bombay, and bas not since been varied by legislation.
Where a Portuguese inhabitant of Bombay being entitled to certain im-
moveable estate in perp~tuity died intestate before the 1st of January 1866
(on which day the Indian Succession Act, 1865, came into force), leaving two
nephews by a sister as his next of kin, it Vias held that the elder of them, as
heir at law of the intestate, was entitled to succeed solely to such immove-
able estate.

T HE facts of this case sufficiently appear in the judgment

of the Court. The arguments of counsel, and the ex-
amination of witnesses, extended over ten days.
Edwa1·d Howard (with whom was Scoble), for the plaintiff,
cited or commenied on -Doe d. De Silvefra v. Texeira (a);
Campbell v. Hall (b); Calvin's Case (c); TlteAttomey Gener~l v.
Stewal't (d); The Mayo1· of Lyons v. The East India Company
(e); Anonymoits (f); The Inclfrm Chief (g); 2 Bruce's Annals,
(a) 2 M01·. Dig. 2-17. (b) Cowper 20-1. (c) 4 Rep. 2a, 17b.
(d) 2 Mcriv. 1-13, 158. (e) l Moo. Ind. App. 175, 271, 274.
(f) 2 P. Wms. 75. (g) JC. Rob. 22.

D1g1tized by Google
 ORIGINAL CIVIL JURISDICTION.- 173
242, 271, 279, 385, 407, 417, 512, 538; Statutes 13 Geo. 1867-GB,
LOPES
III., c. 63; 21 Geo. III., c. 70; 37 Geo. III., c. 142, ss. 8, 'IJ,
10, 12, 13; 39 & 40 Geo. III., c. 79, s. 13; 53 Geo. III., LOPES,

c. 155, s. 105; 2 Morley's Dig. 503,504; The Advocate Geneml

v. Ranee Surnomoye Dossee (h); Abraham, v. Abraham (i);
Blankard v. Galdy (J); Maltass v. Maltciss (l.:); The Slave Grace
(l) ; Riiding v. Smith (m) ; Heatlifield v. Chilton (n) ; Wilson
v. M£wryat (o); Sibchundm· Doss v. Sibltissen Bonnerjeo (p);
1llusleah v. Musleah (q); Charters of Recorder's and Supremo
Courts; Treaty of Cession, 1661; Le~ Loci Report of 1840.

Pigat and Groon, for the defendant, quoted Perry's Ori-

ental Cases 60, 62, 119, 331, 332, 335; Jebb v. Lefevre (1·);
Burton's Real Property, Appx. 522 et seq.; G£mliner v. Fell
(s); Cumming v. Foreste1· (t); Acts IX. of 1837 and IX. ofl842;
Furlong's Landlord and Tenant 11, 12, 13; De Monte v. Hus-
sein Bibi (it); Doe d. Sav:ige v. T£igore (v); Joseph v. Ronctlll
(w); Fl'ceman v. Fa·irlio (a:); Charter of 1668, granting Bom-
bay to the East India Company. They contended that Doe d.
De Silveira v. Texeira was bad law, and had never been fol-
lowed in the Supreme Court; and they commented upon an
admission made by the plaintiff in his evidence, as showing
!i,t there_ could not have been any general belief, even
amongst the Portuguese inhabitants themselves, that the
Portuguese law was of force in Bombay. That admis,ion
was that he had never until recently claimed a share in
his uncle's property as a matter of right, when he had been
advised by counsel that the Portuguese law gave him that
right.

(h) 9 Moo. Ind. App. 387. (i) Ibid. 195.

(j) 2Salk. 411. (k) 1 Robertson 76, per Dr. Lushington.
(l) 2 Hagg. Adm. R. 76, per Lord Stowell.
(m) 2 Hagg. Con. R. 381. (n) 4 Burr. 2016, per Lord Mansfield.
(o) 8 T. R. 31. (p) Boulnois R. 74, per Peel, C.J.
(q) Ibid. 239, per Colvile, C.J.
(r) Clarke's Addl. Rules and Cases 56, and see 4 Born. H. C. Rep.,
0 . c. J. 68.
(s) 1 Jae. & W. 22; S. C., 1 Moo. 1ml. App. 299.
(t) 2 Jae, & W. 334.
(u) Coram Amould, J., 7th Sept. 1863: see 4 Born. H . C. Rep.,
0. c. J. 100.
(v ) Mortou R. 70.
(w) Cited 1 Moo. Ind. App. 310, :113, 314. 315, 320, 3-!5,
("') 1 Moo. Ind . App. 305.

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174 DOMBAY HIGH COURT REPORTS.

1868. October 9. WEST&orr, J. :-This case has been well argued

Lol'Es on both sides. Ono of the learned counsel, whoso argument
l'.
LOPES. showed great research and ability, has since, to tho deep
regret of his own profession and of tho Court, been removed
from amongst us by a deplorable and fatal accident. 'l'o tho
memory of one who so highly distinguished himself this
passing tribute is justly due.
The facts of this case lie within a narrow compass. Daniel
de Silva died in February 186,J, intestate and without leav-
ing issue. He, had been married, and had a son who died,
in the lifetime of the intestate, unmarried and without
issue. The intestate's wife had also died in his lifetime, as
had.his only brother, Joao Antonio do Silva, without leaving
issue. The intestate's only sister, Antonia, tho wife of Pascoal
Lopes, and her husband, had also predeceased the intestate;
but she left two sons, the elder of whom is the defendant,
Francisco Loi)es, and the younger the plaintiff, Joao Ma-
riano Lopes. According to English law these two nephews
of tho intestate Daniel de Silva would bo his next of kin, and
the defendant, as the elder, would be heir at law. The im-
moveable property left by the intestate in this island consisted
of two lots, viz., a pieco of land in an oatl called Ambram, at
Girgam, liable to tho usual annual payment of pension ~d
tax to Government, and a bungalow upon it, which land -
bungalow liad been, for a sum of Rs. 1,225, purchased by the
intestate from, and were, under an indenture of the 13th of
March 1850 in the nature of a deed of bargain and sale, con-
veyed by, Govindji Jivanji, a Hindu, to the intestate " Daniel
de Silva, his heirs, executors, administrators, and assigns for
ever." 'l'his is clearly an estate in perpetuity. The second
lot was a piece of land situate in the Mahim district, and
correctly described, in the receipt of the Collector of Land
Revenue, as " for.fa freehold new salt batty ground," which
is liable to a smallforas or quit-rent payable to Govornment.
It also is an estate held in perpetuity.
On the death of Daniel do Silva the defendant entered
into possession of all of his immoveable estate above men-
tioned. The plaintiff has brought this suit for partition, and
for the allotment to him of a moiety of that estate, to which
he asserts himself to be entitled " according to the laws and
usages regulating the descent of property amongst the Por-
tuguese inhabitants of Bombay." The ::;cventh paragraph of
the plaint is as follows :-The :;aid Daniel de Silva and the

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 ORIGINAL CIVIL JURISDICTION, 175
plaintiff and defendant are d0scendod from Portuguese families 1868.
LOPES
resident in Dom bay e.t the time of the cession of the island to v.
the Crown of England.'' · That allegation Mr. E. Howard, for LOPES.

the plaintiff, admitted that he was unable to prove. ·

The defendant, in his written statement, contends that the
immoveable estate of D11,niel do Silva was, as regards both
lots, an estate of inheritance in fee simple in possession, and
that he (the defendant) is entitled and did succeed to it as
l1is sole heir. In reply to the 7th paragraph of the plaint he
says : "The plaintiff and defendant bear Portuguese names,
profess the Roman Catholic religion, speak the Portuguese
language, and dress in the European manner, and, so far as
the defendant knows to the contrary (though, so far as the
same may be material in this suit, he calls upon the plaintiff
to prove the same), the said intestate was, and the plaintiff and
<l.efendant are, descended from Portuguese families resident
in Bombay at the time of the cession of the island to the
Crown of England ; " and he submits that the property in
question being in the nature of freehold of inheritance, the
descent of it is governed by the English law of intestate
succession to property of 1ike nature, and not by any supposed
laws and usages regulating the descent of property amongst
the Portug_nese inhabitants of Bombay, and that the plaintiff
is not entitled to any relief,
A matter not mentioned in tae plaint or written state-
ment, and not made the subject ofan issue, but t ::mched upon
in the evidence, and in argument, was an alleged promise by
the defendant to divide the inimoveable property of Daniel de
Silva equally between himself and the plaintiff, and that the
defendant refused to execute a deed which he had instructed
Mr. Prentis to prepare for the purpose of carrying out that
promise, an engrossment and copy of which proposed deed
were produced. The defendant, however, denied that he
made any such promise, or gave any such instructions, and
stated that the engrossment was prepared, in the manner in
which it was drawn,on the instructions of the plaintiffhimself;
that the plaintiff, on the defendant refusing to execute the
deed, prepared a letter (No. 1) addressed to Messrs. Acland
and Prentis, which he requested the defendant to sign, but
the defendant refused so to do. That letter proposed to alter
the deed so as to give the plaintiff a moiety in the house only.
It is worthy of remark that both the deed and the letter
treat the defendant ns having succeeded to the whole of Daniel
de Silva's illlmoveable property in Bombay as heir at law.

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17G BOMBAY HIGH COURT REPORTS.

1868. The defendant said that he was at one time willing to

LoPEs- allow to the plaintiff, as a matter of favour, and not as a
"·
LOPES. matter of right, a fourth of the rents of the house at Gir-
gfu:h, and that he would after his death continue that allowance
to his children; but as the plaintiff was not satisfied with
that, and insisted on obtaining a Il!Oiety of the whole of the
immoveable estate of Daniel de Silva, the defendant now
declined to give him. any share whatever in it, and stood
on his rights. I am clearly of opinion that no agreement
binding on the defendant for the division of the property,
or for the allotment of any part of it to the plaintiff, has
been proved; and on that branch of this case I must say
that I have great doubts as to the straightforwardness and
bona fldes of the plaintiff's conduct.
The issues are-
(1) Whether the plaintiff is entitled to a moiety of the
immoveable property, or any part thereof, in the plaint men-
tioned.
(2) Whether Daniel de Silva was descended from Por-
tuguese families, .or a Portuguese family, resident in Bombay
at the time of the cession of the island of Bombay to the
Crown of England.
(3) Whether Daniel de Silva was a Portuguese by de-
scent, and if being so, bua not descended from Portuguese
families, or a Portuguese family, resident in the said island at
the time of the cession aforesaid, his immoveable property,
or any part thereof, in the plaint mentioned, descended ac-
cording to Portuguese law.
(4) Whether the plaintiff and defendant are the heirs of
the said Daniel de Silva.
(5) Whether the defendant is the sole heir of Daniel
de Silva, as being the eldest son of Antonia, the sister of the
said Daniel de Silva, or on any other ground.
(6) Whether the said Daniel de Silva was a member of
n,race or community amongst whom the descent of immove-
able property in Bombay was, by custom having the force
of law, regulated in conformity with the Portuguese law of
succession.
These six issues may be reduced to two questions, viz.,
Is the English rule of primogeniture applicable in this case ;
and if not, what, rule of descent. is so . .

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 ORIGINAL CIVIL JURI8DlCTION, 177
The law which the High Court is bound to administer in
this case is the Ia,v which would have been applied by the 'l).
Supreme Court (y). Lo1•£s.
It was agreed by counsel on each side, that, subject to
the result of an inquiry as to the doctrine of that Court upon
the question involved here, the plaintiff should be permitted
to give evidence of the custom alleged in his plaint. I did
not at the hearing conceal from counsel my strong impression
that the Supreme Court never had sanctioned such a custom,
and had invariably in its decisions between Portuguese applied
to the Portuguese inhabitants of Bomba.y the English law.
As I then promised to do, and wit.h the consent of coum,el
on both sides, I have communicated with Mr. LeMessnrier
and Sir John Awdry on the snhject. That circumstance
and others have necessarily much retarded the disposal of
this case. Mr. LoMessurior was formerly .Advocate General
at Bombay, and his practice at the bar extended from the
year 1822, ·i. e., two years before the Recorder':.1 Court was
closed and the Supremo Court opened, down to August
1854. My own acquaintance with the Supreme Court dates
from February 1854, so that our united experiences cover the
whole period of the Court's sitting, from May 1824 to August
1862. I have also communicated withSirJohn.Awdry, whose
experience as a Puisne Justice of the Supreme Court was from
the 31st of December 1830 to tlru 29th of January 1839,
,vhen he became Chief Justice, and so continued until his
departure from India on the 2nd of March 1841. Both of
these gentlemen have most kindly favoured me with replies,
of which I shall presently i;tate the substance.
Although in Nao1·oji B,,ram:f'i v. Rogers (z) the Conrt of
Appeal abstainf'd from giving any opinion upon the presump-
tion made by Sir A. Anstruther of au enactment rendering
the immoveable property of PortugneRe in Bombay tmnsmis-
sible as personal estato, and on which presumption hf' finally
rested his decision in DoP d. De Sifreim v. Te.refrci (a), many
of the statutes, eharteri', documents, and authorities referred
to in Naol'oji Beramji v. Rogc;-s, and the view there taken by
the Court of Appeal, hear strongly upon the present case, and
render it unnecessary for me to speak at such length as we1-e
I now to discuss those matters for the first time.
(y) Charter, High Conrt, 26th June, 26 Viet. (1862), s. 18; nnd Charter,
High Court, 28th December, 29 Viet. (1865), s. 19.
(~) ,1 Born , H. C. Rep., 0. C. J. 1. (n) 2 Mor. Dig, 2-ti, 26/i.
Y.-23 0 C

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178 BOMBAY HIGH COURT-REPORTS.

1808. Regarding- the law of descent which generally prevailed

LOPES
II.
in Bombay amongst landholders while it was Portuguese
·Lons. territory, we have not any conclusive information. There is
reason to doubt that, with the holders of the principal estates
at least,.the principle of partibility of the lands of an in-
testate amongst sons and daughters, or next of kin, pre-
vailed. The Portuguese were during their earlier career in
India an aggressive race, constantly engaged in war. They,
therefore, in the absence of a standing army, almost neces-
sarily, resorted to feudal tenure (b). The tenants-in-chief
of the Crown were expected to be constantly ready to render
military service. Their liability to render such service con-
tinued for fifty-seven years after the cession to Charles II.
in 1661, and was eventually, in 1718, commuted by the East
India Company for an annual tax (c). The same feudal rea-
sons, which in Europe (cl) gave rise or assisted in giving rise
to the rule of primogeniture, existed for its introduction into
Bombay whilst under Portuguese sway.

The 2nd article in Aungier's Convention (e), entered into

on the 12th of November 1672, which article stipulated for the
grant of new patents by the East India Company, tends to
show that the landholders had previously held under patents
from the [Portuguese Government. As already stated in
Naoroji Bm{emji v. Roger'S, I have not bsen able to discover
whether any new patents were made out in pursuance of
that 2nd article, and with the exception of the patent of the
manor ofMazagon, bearing date in 1637 (J), and reciting· for-
mer patents of the ·same district, of which the earliest bore
date in 1572, I have not succeeded in obtaining any informa-
tion as to patents of dates prior to the cession in 1661 of the
island to Charles II. In using the phrase "manor" as appli-
cable to Mazagon, I do so because it is employed in the Patent
(g), Humphrey Cook's Treaty (h), and Aungier's Convention
(i), and has been popularly applied. But I do not venture
to say whether Mazagon could be considered a manor within
the technical meaning of that term according to English law,
(b) See the references to Warden's Report; Bruce's Annals; The Lon-
don Company's despatch of the 18th of March 1691; and Perry's Or.
Ca. made in Naoroji Beramji v. Rogers, 4 Born. H. C. Rep., O. C. J. 82.
(c) Ibid. (d) Maine's Ancient Law 229 et seq., 2nd ed.
(e) 4 Bom. H. C. Rep., 0. C. J. 39, 42. (f) Ibid. pp. 83-85;
(g) 4 Born. H. C. Rep., 0. C. J. 85, (11) Ibid. 86. (i) Ibid. Si,

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 ORIGINAL CIVIL JURISDICTION, 179

e. g., as caITying with it the right to hold a court baron 1868.

LOPES -
and other such privileges. The patent.of Mazagon shows that i-.
Mazagon was granted in emphyteusis, and was descendible LOPES.

according to the rule of primogeniture : and so it wouh1

appear to have continued to descend in the family of the
. original grantee, until its sale, with the consent of the
Governor of Bombay, in 1731, by the then tenant, Martinho
de Silveira de Menezes, in which sale his son Joao Vicente,
and wife, as concurring parties, joined, which concurrence
may have been au attempt of an irregular kind to bar what
may perhaps be called a species of entail created by the patent,
and the dower of the wife. The quit-rent payable to the lord
(dom·in11 .~ c111phyicnseos) by the tenant (emp!tyteuta) is techni-
cally known to the Civil Law as pensio (which word I admit
to ha Ye been sometimes of old popularly employed to signify
any payment) : and though it is impossible now to say with
eertainty that many, or any, other la~ds in Bombay than
those of :Mazagon were held, before the cession to Charles II.,
in cmpliyteusis, the eircumstance that the other larrds would
appear to have been held by letters patent, the feudal mo-
ti,,es already suggested, the continual necessity for milit.i.ry
organisation, aucl the undoubted fact that the quit-rent pay-
abb to the Portuguese Government for a large part of the
island, probably the whole of it, which was in occupation
or cultivation at the time of cession, bore the same ancient
name of zJCn , ,'o (pensao, pension), render it far from impl'D-
bahle that the six other districts in the island, beside
Mazagon, or scveml of them, were also held in cmpliyteusis,
and were accordingly dei,cendible according to the rule of
primogeniture (j). If the supposition be well founded, the
introduction of l<.Jnglish law when the island became British
territory would not have wrought any alteration in the gene-
ral course of descent of the principal estates in the island.
•Assuming, however, that this was not su, and that, except
the manor of Mazagon, lands were, before the cession to
Charles II., partible amongst the sons and daughters, or other
next of kin, of a deceased intestate, it is necessary to con-
sider whether that rule of descent, differing as it does from
English law, was preserved to the Portuguese.

It cel'tainly was not so preserved by the marriage treaty of

1661. The cesi:;ion, which thereby was made of Tangier

(j) 4 Born. H. C. Rep., 0. C. J. ~6, P.7.

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180 BOMilAY HIGH COURT REi'OHTS,

1868. and Bombay to Charles II., was not a cessio .~imple.r:, but a
LoPE.~ ce.~sio cum conditionibus-what was reserved was expressed.
1'.
LOPES. To the inhabitants of the town and castle of 'l'angier were
reserved " the free exercise of the Roman Catholic religion,"
and that, obeying the King of Great Britain in all ci";l mat-
ters, "they shall be ruled and governed by the same laws
and, customs as have hitherto been used and approved in the
aforesaid town and castle." But to the inhabitants of Bom-
bay was reserved only the free exercise of the Roman Catholic
religion. The treaty is completely silent as to their laws and
customs. I adhere to the reason as:;igned by the Court of
Appeal in Naoroji Bcramji, v. Roge1·s for this marked distinc-
tion made by the treaty between Tangier and Bombay (k).
It is a case strongly calling for the application of the rule
ezpressio miius, eir:clusio alte1·ius. That the policy of the British
Crown, in entering into that treaty, was not to continue to
the inhabitants of Bombay the laws and customs which pre-
vailed while the island was under Portuguese dominion,
is, I think, perfectly clear on the face of the treaty. A pas~
sage (l) in Humphrey Cook's treaty reads like an efforj; to
reverse that policy, but his treaty was unauthorised, repu-
diated, and never of any force (m) . . The fixed determination
of the British Government to abide by their policy, of substi-
tuting in Bombay the laws of England for those of Portugal,
was clearly manifested in the Charter of 1668, by which
Bombay was transferred to the East India Company. It
reserved to the inhabitants the free exercise of the Roman
Catholic religion, "and further ~lso that the said inhabitants,
and other Our subjects in the said Port and Island, shall and
may peaceably and quietly have, hold, possess, and enjoy all
their several and respective properties, privileges, and advan-
tages whatsoever, which they lawfully had or enjoyed at the
time of the surrender of the said Port and Island to Us as
aforesaid, or at any time since." '.L1he words "properties,
privileges, and advantages" do not comprise laws, or customs
having the force of laws. As to that passage in the Charter
of 1668, I adhere to the view expressed in Naoroji Beramj,i
v. Rogers, "that this proviso cannot be regarded as confer-
ring upon the inhabitants of' the island anJ. other or higher
rights than they were entitled to under the marriage treaty

(k) 4 Bom. It. C. Rep., O. C. J. 31, 39.

(l) Quoted 4 Bom. H. C. Rep., 0. C. J. 33. (m) Ibid. 34.

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 <Jl,IOINAL ~IV!L JURIS1>1C'l'10N, 181

of Charles II." (11). 'l'he restriction in that Charter of the 181)8.

-LoPEb--
power of legislation given to the East India Company for the 11,
good government and other use of the " Port and Island of L()l'EJ.

Bombay, and t!tc inhabitants thereof," to such laws as should

be" not repugni.l.nt or contrary, but as near as may be agree-
able, to the laws of this Onr realm of England," and the
power to estabfuh Courts of Justico "like unto those estab-
lished and used in this Our realm of England," the laws and
ordinances for the regulation of which, and the proceedings
in which, should be "not repugnant or contrary, but as near
as may be agreeable, to the laws, statutes, government and
policy of this Our kingdom of England," and the declaration
that it should be lawful for the Company aucl their agents,
factors, and servants to exerci8e in Bombay the ju1·isclicti'.on.~
conferred· upon them by an earlier Charter, 13 Car. II. (3rd
April 1661), amongst which was a power for the Governor
in Council of any places which the Company then had or
should have in India to judge all persons belonging to the
Company, "or that shall live under them, in all causes,
whether civil or criminal, according t-0 the laws of this king-
dom" (England), "and to execute judgment accordingly" ( o),
are conclusive as to the continuance of the policy of the mar-
riage treaty of 1661.
In his work on Colonial Law (p ), Mr. Clark, referring to
the authorities, lays it down that in cn.ses of' conquest or
cession the conquered or ceded country retains ~ts former
laws until they are changed by competent authority; that
the power of changing the laws of a conquered country re-
sides in the King in council ; that the cases of' cession and
conquest are in this respect not distinguishable, unless the
right is restricted by compact with the ceiling party; and
that when the change is partial only, it is said that the former
customs of the conntry will still be in, force tts to all matters
not otherwise provided for (q), aJ<l.s "but when by royal
commission a new legal constitutioi.;. has been granted to a
colony, est~blishiug a legislature, courts of' justice, &c., the
commission has generally directed that the law administered
in its courts of justice shall be in all things as nearly as
(n) 4 Bom. H. C. Rep., 0. C. J. 36.
(o} See the remarks on the Charter 13 Car. II. (3rd April 1661) in
Naoroji Beramji v. Rogers, 4 Bom. H. C. Rep., 0. C. J. 28, 29, 38, 39.
(p) pp. 4, 6, 7.
(q) For which he cites Blanhard v. Galdy, 4 Mod. 222; and see 2
Salk. 411.

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182 BOMBAY HIGH COURT REPORTS,

1868. agreeable as possible to the law of England. After the issu-

-LOPES
tJ.
ing of such commission, therefore, the law of England is the
LOPES, rule in cases. not specially provided for" (r).
.A. Charter (1:3 Geo. II.) under the Great Seal of England
instituted in the conquered colony of Gibraltar a court of judi-
cature, and provided that the laws of England should be the
measure of justice between the parties, which court was em-
powered to hold pleas of what nature and kind soever, and to
issue warrants of execution for putting parties into possession
of houses, lands, tenements, or other things, under its de-
crees. It was held by the Privy Council in Jephson v. Riem (~)
that the effect of that Charter was to sub::;titute the English
law of real property in Gibraltar, and, therefore, that a widow
was entitled to dower out of lands of her late husband situ-
ated in that colony.
Governor Aungier's Convention, entered into on the 12th
of November 1672 and re-affirmed on the 16th of July 1674,
was the settlement of a dispute, which arose between Govern-
ment and the inhabitants, as to what lands belonged to the
latter, and what had belonged to the Crown of Portugal,
and did not affect in any way to regulate the course of de-
scent oflands held by the inhabitants ( t). It speaks of the
lands as " lands of inheritance," and it mentions" the heirs"
of the owners, and is not in any point inconsi:,;tent with
the existence at that time of the English canon:,; of descent
amongst the inhabitants of Bombay. Although the land-
holders were then chiefly Portuguese or ludo-Portuguese,
they ,vere not exclusively so (it),

Dr. Fryer (whose Indian experience extended from 1673

to 1681, and who spent a considerable tiu:c in Bombay), in
describing the Common Law as in force in Bombay amongst
fi·eemen, makes no exception in favour of Portuguese (c).
An attempt made in 1699-1700 by the Portuguese to in-
duce the Government of Bombay to recognise the unauthor-
ised treaty of Humphrey Cook was unsuccessful (w).

(1·) Clark's Col. Law, p. 7, note 9, and see pp. 25, 26.
(s) 3 K.napp P. C. C. 130. J. 42.
(t) 4 Born. H. C. Rep., 0. C.
(u) See note (o) to I'· 45 of 4 Bom. H. C. Rep., O. C. J., and p. 41,
showing that there were then some English landholders.
(v) Fryer's Tra\'els, pp. 87, 88; 4 Born. H. C. Rep., O. C. J. 49, 51.
(w) 4 Bom. H. C. Rep., 0. C. J. 35, and note (y) ibid.

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 ORIGINAL CIVIL JURISDICTION, 183

In 1726 the Mayor's Court Charter was granted, and if it 1868.

cannot be regarded as introducing the English law into Lons
t •.
Bombay, inasmuch as it had been long before introduced LOPES,

there, it at least recognised it as the existing law of the

island (a:), and neither made, nor suggested that there was
already in existence, any exception in favour of any law or
custom of the Portuguese inhabitants. The powers of legis-
lation given by that Charter to the Governors in Council,
and by the subsequent Mayor's Court Charter of 1753 to the
Governors in Council and to the Court of Directors, 'pro·
vide that such legislation shall not be contrary to the laws
and statutes of England. The Charter of 17 53 in the main
agrees with the Charter of 1726, but contains the earliest
trace (in royal charters) of a reservation to the natives resi-
dent in our territories in India of their laws and customs, by
excepting " Indian Natives" from the civil jurisdiction of
tho Mayors' Courts in suits between themselves, unless they
consented to submit their suits to the determination ofthosu
courts. Mr. Morley (y), as to that, says: "'fhis, however, was
merely an exception to the jurisdiction; nor indeed does
it appear that the native inhabitants of Bombay were ever
actually exempted from the jurisdiction of the Mayor's court,
or that any peculiar laws were arlministered to them in that
court." Subsequent enactments, as well for the Mofussil as
for the Presidency Towns, throw some light on the meaning
of the phrase " Indian Natives." Bengal Reg. I. of 1780,
s. 27, enacted "that in all suits regarding inheritance, mar-
riage, and caste, and other religious usages or institutions, the
laws of the Koran with respect to Muhammadans, and those
of the Shaster with respect to Gentus, shall be invariably
adhered to." This section was by Beng. Jud. Reg. VI. of
1781, s. 37, re-enacted in the following year with the addition
of the word "succession.'' The Stat. 21 Geo. III., c. 70, passed
in 1781 for the purpose of settling questions which arose as to
the scope of the jurisdiction of the Supreme Court at Fort
William (established in i. 774 under the Stat. 13 Geo. III.,
c. 63, passed 1 773) expressly provided by Sec. 17, that" their
inheritance and succession to lands, rents, and goods, and all
{x) See Freeman v. Fairlie, 1 Moo. Ind. App. 305; The Advocate Gen-
eral of Bengal v. Ranee Surnomoye Dossee, 9 Moo. Ind. App. 394, 420,
J:
427 ; 4 Born. H . C. Rep., 0. C. 54, 56.
(y) Mor. Dig., Vol. I., p. clxix. See Sir E. Perry's remarks on the
words " Indian Natives" as used in that Charter : Or. Ca. 66, 67,
2 Mor. Dig. 343.

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184 BOMBAY HIGH COURT REPORTS,

1868. matters of contract and dealing between party and party, shall
·LoPF.S
r. be determined, in the case of MuhammadanR, by the laws and
}..oPES. usages of Muhammadans; and in the case of Gentus~ bythe
laws and usages of Gentus; and where only one of the parties
Rhall be Muhammadan or Gentu, by the laws and usages of
the defendant." The Stat. 37 Geo. III. (A.D. 1796), c. 142
(which authorised the establishment of the Recorders' Courts
at Madras and Bombay), contained a nearly similar pro"
vision (Sec. 13) : "their inheritance and succession to lauds,
rents, and goods, and all matters of contract and dealing
between party and party, shall be determined, in the case of
Muhammadans, by the laws and usages of the Muhammadans,
and where the parties are Gent,us, by the laws and usages
of the Gent,£1s, or by such laws and usages as the same would
have been determined by, if the suit had been brought, and the
action commenced, in a Native Court; and where one of tho
parties shall be a Muhammadan or Gent,11, by the laws and
usages of the defendant," &c. &c. By its Charter (1798) the
Recorder's Court at Bombay had "full power to hear and de"
termine all suits and actions that may be brought against
the inhabitants of Bombay, yet, nevertheless, in the case of
Muhammadans or Gentus, their inheritance to lands, rents,
and goods, and all matters. of contract and de&ling between
party and party, shall be determined, in the case of Muham"
madam;, by the laws and usageR of the Muhammadans; and
where the parties are Gentus, by the laws and usages of the
Gentus, or by such laws and usages as the same would have
heen determined by, if the suit had been brought, and the
act.ion commenced, in a Native Court," &c.
The Charter of the Supreme Court of Bombay (1823)
contained a precisely similar provision, with the ac1dit.ion of
tl10 wor<lH :, and succession" after "inheritnnce."
}\fr. Edwa1·<l, Howard, in his argmnmt on behalf of the
plaintiff, coupling the rec:ital of the Stat. 21 Geo. III., c. 70,
that it is expedient " that the inhabitants >•honld be main-
tained aud protected in the enjoyment of all their ancient
laws, usages, rights, and privilegei;;," with the 17th an<l 18th
Rcctions of that statute, contended that the word" Genr,ui;;"
must be int,erpretcd as including all natives of India other
than Mussalmaus, and that it· must have an equally wjde
meaning in the CharterR of the Recorder's and Supreme
Comts at Bombay, and, thC'refore, would here include thf'
so-ealkr1 Portugi10:-;c 01· Ind0. Port11g1ws(• community ofBom"

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 .
ORIGINAL CIVIL JURISDICTION • . 185

ba.y, and Pnrsis, Jews, Armenia.ns, Native Christians, &c~ 1888.

Lou&
No doubt it h~ here always been held to include Ja.ins; as
well as Hindus properly so called. Sir Edward Hyde East, "·
LOPIIS.

in a paper on the condition of the Native population within

the jurisdiction of the Supreme Court of Calcutta. in respect
to laws 'a nd usages, which he furnished in 1830 to a Com-
mittee of the House of Lords, before which he was examined
as a witness, states that while he was in Calcutta. questions
arose " concerning the inheritance and succession of Sikhs,
depending on questions of marriage and adoption, the forms
of which are different from ·those of Hindus in general; yet
in that instance the difficulty was gotten over by considering
the Sikhs as a sect of Gentus or Hindus, of which they were
a dissenting branch" (z).

In the paper already mentioned, Sir Ed~ll,l'd Hyde East

treats Portuguese, Armenians, and other Christians of na-
tive or foreign extraction, and Parsis, Chinese, and Jews, as
not within the pale represented by the term "Gentus" (a).
In Humphrey Cook's Treaty' that term is used in direct
antithesis to "Portuguese," thus:-" Gentus in charge of
property belonging to Portuguese or other subjects of the
King of Portugal" (b ). Fryer says "the Gentues, the Por-
tugal idiom for Gentiles, are the aborigines, who enjoyed
their freedom till the Moors or Scythian Tartars (whether
mediately from P~rsia, or immediately from tha.t overflow
of Tamerlane into these parts, is not material, since they
both pretend to the same extract, and that will be fitter
declared in another place), underminhg them, took advan-
tage of their civil commotions" (c). He then subdivides the
Gentus into Brahmat].s, Rashpoots (Rajputs), &c., and rarely,
if ever, mentions the term" Hindu," but throughout his book
he uses "Gentu" ( d) and" Gentile" (e) as synonymous terms,
frequently contra.sting them with the Moors (f) (Mussa.Imans),
and occasionally with the Parsis (g) and" Portugals" (h), as
.
(z} Evidence, quarto ed., p. 140. (a) Ibid. pp. 134, 140; 141, et 1eq.
(b) See 4 Bom. B. C. Rep., 0. C. J. 33; Warden's Report on Land
Tenures, Appx. p., 69.
(c) Fryer's Travels, pp. 27, 189, 190, 193.
(d) Ibid., " Gentu," pp. 29, 31, 32, 33, 34, 40, 112, 117, 118, 124, 138,
143, 174, 189, 190, 191, 194, 199.
(e) Ibid., ":Gentile," pp. 56, 72, 81, 95, 111, 112, 158.
(f) Ibid. 118, 139, 174, 191, 194.
(g) llrid•.117, 189, 197. (la) Ibid. 81.
V,-24 0 C

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186 BOMBAY HIGH COURT REPORTS.

he usually calls the Portuguese. It is particularly important

to observe that,. not only in the early days when Fryer
"·
LoPES. wrote, and in the more modern days of Sir E. H. East, but
also about the year 1781, in which the first of the statutes
making an exception in favour of Muhammadans and Gentus
was passed, the English by the name Gentu understood that
Hindu was meant. The name which Mr. Halhed has given to
his English rendering, published in 1777, of a Persian tram;.
lation of a compilation in Sanskrit of Hindu law, is" A Code
of Gentoo laws or ordinations of the Pundits." In his preli-
minary letter to the Directors, dated 6th August 1775, and
in his dedicatory letter to Warren Hastings, then Governor
General, and in the letter of Warren Hastings, dated 2 7th
March 1775, transmitting Mr. Halhed's work to the Directors
for publication, the term " Gentoo" is applied to the Hindu
Code. In Sec. 27 of the Bengal Reg. I. of 1780, already
quoted, we find the Shastr named in immediate connexion with
the Gentus as the guide for the Courts of Justice which that
Regulation concerned. This if! conclusive that by" Gentus"
Hindus were there meant, but Hindus, no doubt, in a large
and liberal sense of that term. For these reasons it would, if
the question were not already closed by authority, be impos-
sible to support Mr. Edward Howard's view, that the term
" Gentu '' is sufficiently large to include Portuguese, Indo-
Portuguese, Native Christians, Parsis, Jews, or Armenians.
Had that term been so extensive, the law could not have been
laid down as it was in Jebb v. Lefevre (i), Emin v. Emin (j).
Musleah v. Musleah (k), De Monte v. Hussein Bibi (l), and
other cases. Even in Doe d. De Silveim v. Texeira (m), Sir
Alexander Anstruther did not venture on the proposition that
Portuguese or Inda-Portuguese could be treated as Gentus
within the meaning of the Charter of the Recorder's Court,
and he admitted that the Portuguese laws had not been re-
served to the Portuguese on the cession of the island ( n).
That case, however, has, on other grounds, been strongly
reli~d upon in the argument for the plaintiff.
Sir A. Anstruther there permitted the administratrix of a
Portuguese intestate, who was not, according to English law,
( i) Clarke's Addl. Rules and Cases 56; 4 Bom. H. C. Rep., 0. C. J• .
68; and see 1 Mor. Dig., p. 300, pl. 97.
U) Fulton R. 227; 4 Bom. H. C. Rep., 0. C. J, 79.
(k) Fulton R. 423, 441; Boulnois R. 234.
(l) 4 Bom. H. C. Rep., 0. C. J. 100. (m) 2 Mor. Dig. 247.
(n) Ibid. 251, 252.

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 ORIGINAL CIVIL JURISDICTION, 187

his heir, to recover, in ejectment, lands, in which the deceased 1868.

Lon:s
had a perpetual estate, from the eldest grandson of the eldest
uncle of the deceased, which defendant was the heir, accord- "·
LOPES.

ing to English law, of the deceased e;r. pm·te paterna, but the
lands had descended upon the deceased e;r. pm·te materna.
The lessor of the plaintiff had obtained letters of administra-
tion to the deceased as his next of kin, and, Sir A. Anstru-
ther said, insisted that she was "one of the heirs of the de-
ceased according to the Portuguese laws, and more near than
the defendant to the line of ancestors through whom the
property came. But she is of half-blood in that line, and,
therefore, never could inherit according to the English laws
of descent." The defendant set up a title, under the Portu-
guese law, to half of the property in right of his wife. Sir
A. Anstruther thought that, according to the English law of
inheritance, the titles of both parties were defective, but, partly
upon evidence and partly upon admissions of counsel (o),
-arrived at the opinion that by custom prevalent not only
amongst the descendants of the Portuguese inhabitants, but
also amongst all of the Christian subjects of the King, the
succession to lands in Bombay went in the same channel with
personal property ; and he, therefore, expressed an opinion
that in the case of English, and indeed of all Christian, sub-
jects of the King, he might presume, and in fact with regard
to Portuguese subjects he did presume, that an enactment had
been made either by the East India Company or the Crown,
which conferred a legal origin on that supposed custom (p ).
At the date of that decision (31st March 1817) Sir A.
Anstruther had been only three years in Bombay, and there
was very little business in his Court, so that his experience
must have been very limited. The next point for observation
is that the admissions attributed by him to the counsel
on both sides (q) are not deserving of much weight. It
was the interest alike of the lessor of the plaintiff and
of the defendant to deny the application of English law ;
neither of them had a good title according to that law.
The combination of the parties to set . up the Portuguese
law, and so to exclude the title of the Crown or East India
Company by escheat, deprives the admissions of any value.
Neither the Crown nor the East India Company appears to
have been at all represented upon that occasion. What
the evidence may have been I do not know, but it very pro-

(o) 2 Mor. Dig. 249,250,257. (p) Ibid. 252, 265. (q) Ibid. 249,250,257.

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188 BOMBAY HIGH COURT REPORTS.

1868. bably was not 1,1nlike that which has been given in this case.
LoPEB
11.
In Naoroji Beramji v. Rogers (r) the inferences which Sir A.
LOP.ES. · Anstruther drew from the right to sell real estate in Bom-
bay by way of execution were pointed out by the Court af
Appeal as inconsistent with F,·ceman v. Fairlie (s), Gardi-
ner v. Fell (t), Jebb v. Lefevre, and other cases, and shown
to be erroneous.

Sir A. Anstruther altogether failed to appreciate the force

of the special dispensation from English law given to Mu-
hammadans and Gentus in the Stat. · 37 Geo. III., c.: 142,
s. 13, and in the Charter of the Recorder's Court. If there
were any exception in favour of Portuguese law, as pre-
awned by Sir A. Anstruther, it is strange that the statutes ·
and charters relating to the Recorder's and Supreme Courts,
which carefully repeat the exception in favour of Muham-
madans and Gentus, so completely have ignored the Portu-
guese exception. The frequent presence of the one, and the
unbroken absence of the other, seem to speak with a distinct
voice. With the aid of a dangerously facile admission at the
bar (u), Sir A. Anstruther concludeq that the provision as
to Muhammadans and Gentus (which latter term ho renders
by the word" Hindus") is not an exception out of a con-
trary general ruJe, but rather a legislative recognition of the
legality and correctness of a general principle equally ap-
plicable to all other Asiatic tribes. But of that exception
Sir B; Malkin said : "The benefit, if it be one, is confined to
Mahomeda.ns and Hindus, and is limited to certain classes
of rights and privileges" (v) . And of the similar provi-
sion made in 1781 for the Supreme Court in Calcutta by
the Stat. 21 Geo. III., c. 70, s. 17, that excellent lawyer
Sir Henry Seton, J., in Musleah v. Musleah, while speaking
of Emin v. Emin, in which, pursuant to the · English law of
real estate, the Supreme Court at Calcutta. decreed, in favour of
the widow of an Armenian, dower out of the lands of her de-
ceased husband in the Mofussil, said (w) it "must have pro-
ceeded not on the ground of any personal law applicable to
the parties as British subjects; this Court (Supreme Court,
Calcutta) having no jurisdiction to administer the personal

(r) 4 Born. H. C. Rep. 77.

(s) 1 Moo. Ind. App. 305. (t) Ibid. 299, S. C., 1 Jae. & W. 22.
, (u) 2 Mor. Dig. 256,257.
(v) Morton's Rep. 19, 20, 4 Born. H . C. Rep. 0. C. J. 78, 79.
(w) Fulton R. 423, 4U; sec 4 Born, H. C. Rt>p. O. C. J . 79, 80, 18.

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 ORIGINAL CIVIL JURISDICTION. 189

law of the parties except in the case of Hindus and Mahom- 1808.
Loris
eda.ns, but on the ground that, the parties and the property
being alike subject to the jurisdiction, and the parties not
"·
LOPES.

being within the exception, the Engiish was the only law
which the Court was competent to administer between them.
For this purpose there can be no distinction between Jews
and Armenians, neither being within the excepted classes.
The law of England makes no distinction between Jews and
other persons except as to their laws of marriage, and as to
certain incapacities for office. Their law of descent must be
governed by the tenure of the lands to which it is incident,
and where this is quasi freehold, as it is foun.d to be by
the decisions of this Court and those of the Court of Chan-
cery which are binding on it, the law of primogeniture
must prevail." In the case in which Sir Henry Seton thus
spoke, it was held that lands situated in the Ben.gal Mo-
fussil belonging to a Jew who died domiciled in Calcutta, as
well as land in Calcutta, must by the Supreme Court be held
to descend according to English law, and accordingly de-
scended on the eldest son as heir at law. In the same case
Sir L. Peel, C. J., concurring with Sir H. Seton, J., after
pointing out the jurisdiction. of the Supreme Court to try
causes relating to lands in Ilengal, Bahar, and Orissa, said;
" The local boundaries of Calcutta circumscribe its jurisdic-
tion. over persons, not over things. The laws by which it is
to decide are prescribed. It has no discretionary power,
is not a court of conscience, and must decide by those laws
alone which are ordained for it. The general law oj the C01irt
iB the English law. The e.i:ceptions are stat,utoriJ, and the
introduction of the very ~.ceptwns proves the general rule."
Gr~t, J., dissented from that decision as regarded the lands in
the Mofussil, but assented to it as regarded the lands in Cal-
cutta. On.a rehearing of the sa~ecausein 1857 before Colvile,
C. J., Buller, J., and Jackson, J., the decree of Peel, C. J., and
Seton, J., made in 1844, was unanimously affirmed (u). The
principles laid down in that case were quite as applicable to the
Recorder's Court in Bombay, over which Sir A. Anstruther
presided, and the Supreme Court of Bombay, as to the
Supreme Court at Calcutta, which two latter Courts had pre-
cisely the same jurisdiction (Stat. 4 Geo. IV., c. 71, s. 17).
And that this was so, the passing of Act IX. of 1837, to
emancipate the Parsis from tho English law of succession. to
real property, conclusively showed. There would not have
(u) Boulnois R. 234 ; and see 4 Born. H. C. Rep., 0, C. J . 79, 80, 81.

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190 BOMBAY HIGH COURT REPORTS,

~.L,_~8-::-8-'- been any necessity for that Act had the law been as it was
v. laid down by Sir A. Anstruther in Doe d. De Silveira v.
LoPEs. ,Texeira, for he treated all property in Bombay as personal
property. Sir M. Sausse, C.J., aH we have fully mentioned in
Naoroji Beramji v. Roge1·s ( v), held in a case before him, that
where the lands of a Parsi who died intestate before the 1st
of June 1837, appeared to have continued after his death in
the possession of the eldest of several sons of the intestate,
they must be taken to have descended upon him by the Eng-
lish rule of primogeniture.

Previously to the legislation of 1865 the law applicable to

Parsis was the English law, except so far ·as it was varied
by Act IX. of 1837, and except as to marriage, bigamy, and
since the decision of the Privy Council in Ardaseer Oursetjee
v. Pm·ozebaee ( w), except as to matrimonial suits at the
Ecclesiastical side of the Court.

As an example of the strictness with which the Supreme

Court applied English law to Parsis, I may refer to a case
decided on the 12th of February 1856 (Rutunbaee, wife of
Framji Bomonji Bhunclari, v. Bomonji Manockji Bhunclari),
which was an action of trover at the Plea side of the Supreme
Court, brought by a Parsi woman to recover certain .jewels
and wearing apparel, which she alleged in her plaint to be
her separate property. In the plaint she also described
herself as a married woman. The defendant demurred, as-
signing as cause of demurrer that a Parsi woman cannot
sue without her husband, even for her separate property.
William Howa1·d, Advocate General, supported the demurrer,
and Lowndes argued against it ·on behalf of the plaintiff.
Yardley, C.J., allowed the demurrer, on the ground assigned.

Even admitting with Peel, C. J., as he did in Storm 7.

Homfray (:r) and Sibchv.nder Doss v. Siblcissen Bonnerjee (y),
that when immoveable property is in question, English law
incorporates into it a lex loci rei sitre, and local customs pre-
vailing in greater and less degree, and whether relating to
succession or enjoyment, yet that does not aid the plaintiff
here ; because the alleged custom which he seeks to enforce
is, as pointed out in the communication with which Sir J.
Awdry has favoured me (extra(?ts from which I shall presently

(v) 4 Born. H. C. Rep., A.C.J. 99. · (w) 6 Moo. In<l. App. M8.
(.r) I Taylor & Bell 49, 331. (y) Boulnois R. 74, and see bid 2a9.

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 ORIGINAL CIVIL JURISDICTION, 191

read), ilot a local custom, ·but a custom personal to some 1868,

LoPE.;-
class of Portuguese or Indo-Portuguese, a class, too, which V,

it would be next to impossible to ascertain. If it be limited LOPES,

to the descendants of the Portuguese or ludo-Portuguese

families resident or holding lands in Bombay at the time
of the cession, the plaintiff must fail : for he has not shown,
and the defendant has not admitted, that Daniel de Silva,
the intestate, through whom the plaintiff claims, was de~
scended from one of those families. The constant ingress
of Portuguese and Indo-Portuguese to Bombay from Goa,
Diu, Damann, Choul, Karanja, Salsette, and other places,
and their egress from Bombay to those localities, have
brought matters to such a pass as to make it doubtful whe-
ther any Portuguese or ludo-Portuguese .now resident in
Bombay could prove his descent from a family resident or
holding laud in Bombay at the time of the cession. Again,
if a Portuguese or ludo-Portuguese descended from such a
family sold his lands in Bombay, and went to reside in a Por-
tuguese or other foreign settlement, would he or his descend-
ants, on returning to Bombay, and acquiring new lands there,
be entitled to the benefit of the alleged custom ? The charters,
in their frequently reiterated mention of the· English law as
the guide for legislation and judicial decision, the isolated
e:s:ceptions in favour of Muhammadans and Gentus, and the
historical facts to which I have referred, are not in accord-
anco with the passing of the enactment presumed by Sir
A. Anstruther. There is not, in fact, any reason to believe
that any such enactment was made. The population of the
island at the time of the cession does not appear to have
exceeded ten thousand : such of these as were landholders
must have been chiefly Portuguese or Indo-Portuguese. The
fact that the Portuguese did not tolerate the exercise of any
religion except the Roman Catholic (z), Dr. Fryer seems to
think deterred natives of other parts of India or Asia from
immigrating into the Portuguese settlements, and it may have
been a main, though not perhaps the sole, cause of their
want of growth, ·and ultimate decadence into obscurity. The
English removed all restrictions on the free exercise of the
religion ot' Hindus, Muhammadans, and other nations of the
m
East, who resided or came to Bombay, and the consequence
undoubtedly was a great and rapid increase in the influx of
Asiatics of all kinds into Bombay. Dr. Fryer, who came to

(z) ·Fryer's Travels 73, 75,

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192 BOMBAY HIGH COURT REPORTS.

1sr,s. Bombay only eight or nine years after it had passed into the
-LorEB possession of the English (though the Treaty dates in 1661,
v.
LOPES.
the. possession was not given up until 1664), and four years
after it was made over to the East India Company, thus de-
scribes the population as he then found it: "The people that
live here are a mixture of most of the neighbouring countries,
most of them fugitives and vagabonds, no account being here
taken of thein; others perhaps invited hither. (and of them a.
great number) by the liberty granted them in their several
religions; which here a.re solemnized with variety of fop-
peries, (a toleration consistent enough with the rules of gain,
though both Moors and Portugals despise us for it ;} here
licensed out of policy, as the old Numidians, to build up
the greatest empire in the world. Of these, one among
another, may be reckoned 60,000 souls ; more by 50,000
than the Portugals ever could. For which number this
island is not able to find provisions, it being most of it a rock
above water, and of that which is overflowed little hopes to
recover it. However, it is well supplied fro.m a.broad with
corn and meat at reasonable rates; and there is more flesh
killed for all the English alone here in one month, than in
Surat for a. year for all the Moors in that populous city." (a)
The change in the population produced a proportionately
rapid change in the proprietorship of the land. The new
comers, Hind6s, Muhammadans, Parsis, and others, including
some English, but especially the Parsis and Hindus, owing
to their commercial activity and success, became extensively
purchasers of property.
This alteration in the population and proprietorship was
so speedy and so great, as soon to reduce th~ Portuguese
and ludo-Portuguese inhabitants to a comparatively unim-
portant position with regard both to land and commerce,
and in a great degree to account for 1.he absence of any
special measures, or the creation of any exceptions from the
English law for their benefit; and, having regard to the
indisposition, from the earliest period, mft.nifested by the
Crown in its charters to make any such exceptions, renders
it additionally improbable that such would have been ·made.
The only support by a Judge of the Supreme Court which
I have found for the doctrine of Sir Alexander Anstruther
is in the evidence given by the late Sir Ralph Rice before

(a) Ibid., p. 68.

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 ORIGINAL CIVIL JURISDICTION, 193

a Committee of the House of Lords in 1830. He was for 18fl8.

LoPES
about seven years Recorder of Prince of Wales' Island, and
a Puisne Justice of the Supreme Court of Bombay from the "·
J..oPJ:8.

27th of October 1824 until the 27th of November 1827.

I have made the following extract from the quarto volume
containing his evidence and that of the other witnesses ex-
amined before the Committee.
"1439. With respect to the Civil law, on what principle
was that administered ?
" The same as the English law, but no alterations have
taken place which have taken place in the Civil law in this
country, unless as altered by Act of Parliament, or by Rules
and Regulations which they have the power of making in
that country, subject to their approval in this.
"1440. Is the Civil law applied to the interests of the
natives without any exception as to the law of succession
and contract ?
" By the charter, the natives of Bombay, the Mahomed-
ans, and Hindus, are entitled to have all their questions of
Civil right tried by their respective laws. With regard to
the Portuguese who are there, they have the law adminis-
tered, where it differs, according to Civil law, which is com-
monly called the Civil law which existed under the Portu-
guese Government; but I never knew a case to occur in my
time as to the Portuguese.
" 1441. When you state that the Court administer the
Civil law of England, you mean in the cases of English
Europe:in subjects only ?
" Quite so in that respect, according to the words of the
charter. There has been a great difficulty with regard to
the Parsis, who are a very opulent body of men there; but
they having adopted, generally speaking, the laws of the
Hindus, they have been regulated, where there has been no
custom to the contrary, by the laws of the Hindus, and not
by those 'of the Mahomedans.
"1442. Next to the English law the Hindu law is the
one you were most frequently called upon to administer at
Bombay?
" I think it has been by custom more than by the strict
Hindu law."
V.-25 0 C

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194 BOMBAY HIGH COURT REPORTS.

1868. Sir Ralph Rice would appear to have had an imperfect re-
LoPEs collection of the Charter, and to have confounded its 28th
11.
LOPES. with its 29th clause, The 28th clause, it is true, specially re-
lated to "British subjects " residing in any of the factories
subject to or dependent upon the Government of Bombay &c.
But the 29th clause gave the Supreme Court full power to
administer civil justice to the "inhabitants of Bombay'' at
large, reserving to :Muhammadans and Gen~us only, their
laws and usages relating to iuheritance, succession, and con-
tract, and thus implying that as to all other inhabitants of
Bombay, English law should be the rule in civil matters.
Re admits that he knew of no Portuguese case in his time.
This seriously diminishes the value of his evidence. He
probably spoke only from a vague recollection or tradition
of the decision of S~ .A. .Anstruther (b). What he says
as to the administration of Hindu law to Parsis is quite con-
trary to what every practitioner in, and Judge of, the
Supreme Court know to have been the rule of that Court,
and also contrary to the report of the Parsi Law Com-
mission. I observe that Sir B. Malkin (c) impeached the
accuracy of Sir . R. Rice's evidence as to the Recorder's
Court of Prince of Wales' Island, and it is impossible to
attribute much importance to his above-quoted evidence with
regard to Bombay, opposed as it and Sir .A. Anstruther's
judgment are to the current of authority.
I now proceed to refer to Mr. LeMessurier's communication.
After stating that he commenced practice in the Recorder's
Court in June 1822, he says that he then folllld it to be
"the general opinion of the profession, that in the descent of
lands, to all but Muhammadans and ·Hindus, the English
law of primogeniture prevailed;" that this also was the
opinion of the Bench, and he specially instances Sir Herbert
Compton (Chief Justice from 1st December 1831 to 2nd
January 1839), who, he says, "having had an experience of
forty years as an Advocate in the Madras and Calcutta Courts,
was thoroughly acquainted with their practice in regard to the
laws of inheritance of all classes of Natives besides Hindus
and Muhammadans, and he always held that, with the ex-
ception of these two classes, the English law of primogeniture
was the law to govern the Court," but that he and the other
Judges of the Supreme Court, knowing that law to be uncon-
(b) It was not published until 1849.
(c) In the Goods of Abdulla deceased, Morton Rep. 19, 20.

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 ORIGINAL CIVIL J-t:RISDICTION. 195
genial to the practice and ha.bits of natives, as far as possible l86R.
LOPES
evaded enforcement of it, by encouraging- private 8.ITange- v.
ments out of oourt, and when these had been clearly acqui- LOPES.

esced in, acted upon such acquiescence. This compl~tely

agrees with the statements in the opinion, referred to in
Naoroji Beram}i v. Rogers (d), given by Sir Henry Roper with
regard to Parsis at the time the passing of Act IX. of 1837
was proposed. Mr. LeMessurier adds that Sir Alexander
"Anstruther's judgment was not thought good law," and
that Sir Ralph Rice was on the Bench in Bombay for about
three years, during nearly one year of which he was absent
on a. tour in the Upper Provinces, and that his evidence did
not carry "any weight."
In the judgment in appeal in Naoto}i Beramji v. Rogers
(c) it was stated that I had been unable to discover whe-
ther the Judges of the Supreme Court had been consulted
on the petition of the Parsis, presented in March 1836 to
the Bombay Government, praying for legislative relief with
regard to the descent of immoveable property. Since t}len,
however, I have learned, both from Mr. LeMessurier and
Sir John Awdry, that Sir Herbert Compton and Sir John
Awdry were consulted, and that they both felt the necessity
for legislation. Sir John Awdry has informed me that the
idea of affording to Parsis the relief which they sought
from the English law of inheritance of real property, by ap-
plying to the transmission of their immoveable property, in
cases of death and intestacy, the English law of succession to
chattels real, originated with him, and the draft of Act IX.
of 1837 (subsequently laid before the Indian Law Commis•
sioners and the Indian Legislature) was prepared by him for
that purpose. After stating that the question of inheritance
according to the English law of freehold property did arise
amongst the Parsis, and after referring to Act IX. of 1837,
he writes : " No doubt, Mr. Roper, as Acting Advocate
General, would be consulted upon it. But the idea of thus.
cutting the knot was mine, and the draft, which was passed
with ·only trifling alterations, was by me. l had been in
communication with some of the leading Parsis in order to
get a scheme of inheritance in accordance with their usages.
But none was proposed which would be either certain or
reasonable in the apprehension of an English lawyer. I felt
(d) 4 Born. H. C. Rep., 0 . C. J. 97, 98.
(e) 4 Born. H. C. Rep., 0. C. J. 9i.

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196 BOM"BAY HIGH COURT REPORTS.

1868. that, if the property were divisible, it would be substantially

Lons what they required, and that it was better to adopt wholesale
v.
LOPES, a well-matured system than to legislate de novo. All this
fixes indelibly on my memory that I held that Parsi inherit-
ance was governed by English law."
In a previous part of his letter Sir John Awdry writes:
" I do not believe I ever heard of Sir A. Anstruther's de-
cision in Doe d. De Silveira v. Texeira. If I ever did, it was
so clearly not the doctrine held in my time that it made no
impression. I have a dim notion that Sir R Rice, probably
in evidence before some Commission on some occasion, said
they tried to follow the 'Portuguese Civil Law;' but nothing
of the kind was in my experience. Between the testament-
ary power, and the system of compromise or reference to a
forum domesticiwi such as you mention, and which the Court,
in its apprehension that the law would conflict with the habits
of the people, favoured, questions of inheritance were kept
from legal decision."

As to the enactment which Sir A. Anstruther presumed in

favour of Portuguese inhabitants of Bombay, Sir J. Awdry
says-
" In regard to Sir A. Anstruther's second ground, the Court
would have been anxious to presume a legal origin of a con-
sistent and reasonable usage (Lord Mansfield somewhere says
an Act of Parliament) : therefore, it might not be impossible
to presume a legislative Act, though not to be found. Nor
· do I think that a tenure in the nature of gavelkind need be
held contrary to the laws of England. It is clearly recognised
as a part, though an exceptional part, of those laws. But no
such usage can be proved. The very expedients to which they
are reduced in order to keep these questions out of court are
a disproof of anything sustainable as a special custom. It is
not annexed to the land. If it be personal, how shall we de-
fine the line between those entitled to and bound by it, and
those Christian populations external to it? The only Portu-
guese usage in relation to land which, as far as I am aware,
has been· recognised, has been local, and irrespective of the
caste of the parties interested. I speak of the Fazendaree
tenure. I believe my opinion on it has been overruled by
Sir E. Perry, Sir W. Yardley,! believe, dissenting; but I am
not informed of the ultimate result of the case (!) in which
(f) Doe d. Dorabji v. The Bishop of Bombay, Or. Ca. 498.

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 ORIGINAL CIVIL JURISDICTION• 197
the question arose. My belief is that it is a license given 1868.
by the Fazendar, or lord of the manor, to put a structure Lorn 'V.
(probably in its origin a ca.djan hut) on the waste-that it· LOPES,
was not revocable when it had been 1acted o~, and conse-
quently gave the licensee a sort of base fee in the structure
as long as it stood without substantial repairs, but that no-
thing could be done to alter its character, or add to its dura-
bility, without a fresh agreement. But, whether I am right
or wrong in the details, it would give no support to a separate
law of inheritance for the Portuguese. lstly, It was local, and
not personal. 2ndly, Whatever doubts might result from the
ignorance of the Judges, it- was often asserted in invitum.
3rclly, If I am right, it was no special custom at all, but
merely an application to land, situated where an interest
equal in duration to freehold could pass without livery, of the
rule of law that a license executed cannot be revoked to
the detriment of the licensee. The recovery of 1842 {g)
could hardly have passed sub silentio, and, therefore, is strong
proof of the state of opinion. On the whole I entirely
concur in your conclusion, that the Portuguese in Bombay
have been in all respects liable to English law, including
the law of inheritance. I have no recollection of this having
ever been seriously doubted in my time. The effect of this
is the stronger, because there was such a sense of the
hardship which might occasionally result from the rule, that
any serious ground of doubt would have been respectfully
considered. I also concur in your reasons.
"Nor do I consider that the hardship would be much
lessened by overruling the doctrine. How would you de-
fine the class entitled to the exception ? You cannot include
every man popularly called a Portuguese.
" Is a Goa man entitled to the name, an exception ? Surely
he can only come in on the same terms as any other alien.
But how often at this distance of time can unbroken descent
from the residents at the time of the cession be found ? If
found, will intermediate alienage, so likely where some mem-
bers of the same family may have been resident at Goa and
in other Portuguese territories, or else-\\rhere, vitiate the right,
&c. &c. The value of all Mahim woods may be wasted in
litigation many times over before all such questions can be
settled."
(g) Mentioned in Naoroji Beramji v. Rogers, 4 Bom •.H. C. Rep., 0. C. J.
93 and infra.

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198 BOMBAY HIGH COURT REPORTS.

1868. A recovery with double vouchers was suffered in the .Su-

LoPJ:s
'!).
preme Court of Bombay, the proceedings in which commenced
LOPES. on the 10th of February 1842, and terminated by judgment on
the 25th of June 1842. John de Faria, a Portuguese, was the
demandant, Francis John Lugri:q the tenant to the prrecipe,
and the attorney on record was Acton Smee Ayrton. The
disseisor was Hugh Hunt, and the vouchees were Jose
Maria de Ga and Manoel Murzello. The property consisted
of seven oarts and several other pieces of land, situated in
Girgam, two messuages, dwP.lling-houses, and a church,
also situated in Girgarh. This recovery, resorted to in the
case of the immoveable property in Bombay of a Portuguese
or Indo-Portuguese, was a proceeding_ applicable only to real
estate.
Sir E. Perry, in Perozeboye v. Ardaseer Ozirsetjee (h), re-
ferring to "that numerous class of Her Majesty's subjects
settled in Bombay, comprising Parsis, Portuguese, Native
Christians, Jews, &c.," speaks of them as "exclusively gov-
erned by English law;" and again, in The Advocate Geneml
v. Rich1nond (i), says: "there is not the least vestige of
Portuguese law or courts at any time after the cession by
the King of Portugal," and adds "· there is no doubt that
English law was the law of the place."
Mr. Morley published in 1849 Doe cl. De Silveira v. Texeira,
which had been decided in 1817. He obtained it from Sir
Erskine Perry, who did not publish his own volume of
Oriental Cases until 1853. If he attached any weight to
that decision, he would surely have noticed it in the notes
of the two cases from which I have cited his dicta as to the
Portuguese.
I have recently had an opportunity of ascertaining from
Sir Charles Jackson that during his experience as a; Puisne
Justice of the Supreme Court, from February 1853 to No-
vember 1855, none but English law was administered to
Portuguese, and that he considered that the English law
of descent of real estate was the only law which the Supreme
Courts could have auplied to the transmission of an estate
in perpetuity held by a Portuguese either in Bombay or
Calcutta.
I have more than once heard Sir Matthew Sausse (who
from 1856 to 1859 was a Puiszi.e Justice of the Supreme
(k) Or. Ca. 60. (i) Ibid. 5j3.

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 ORIGINAL CIVIL JURISDICTION. 199

Court, and thence until its close in August 1862 was Chief 1868.
LoPEB
Justice of that Court, and afterwards Chief Justice of the v.
High Court from that time until April 1866) state that the LOPES,

course adopted and views held by him were the same as

those which I have just mentioned as those of Sir Charles
Jackson.
Sir Joseph Arnould (who was one of the Judges of the
Supreme Court from 1859 to 1862) has since decided in the
High Court the following case, which sufficiently shows what
is his view of the law.

It was the cause of Pedro Laurence de Monte v. Hussein

Bibi (j), the plaintiff in which was a younger son of Manoel de
Monte, a Portuguese, who died on the 15th of September
1844, leaving immoveable property (a house in which he had
an estate in perpetuity) situated in Girgam, in this island.
Manoel de Monte left surviving him his eldest son, Joao de
Monte, who died in 1847, leaving two sons, Francis and Felix
and a daughter and widow. In 184 7, after the death of J oao
de Monte, the plaintiff proved the Will of his father, Manoel
de Monte. Subsequently Francis de Monte died, leaving
his brother, Felix, surviving him; Felix was alive at the trial
of the suit, which was brought in 1863 by the plaintiff, as
executor of Manoel de Monte, to recover possession of the
house from the defendant. By his Will, Manoel de Monte
directed his executor to sell the house, but did not devise the
house to him for that purpose. On the hearing before our
brother Arnould, Mr. Dunbar, for the defendant, objected
that the plaintiff, not being heir at law, and being executor
only, could not maintain ejectment, the Will containing no
devise to him, and nothing but a bare power to sell ; and he
cited Doe d. Hampton v. Shatter (k); 1 Sugden on Powers
229, 6th ed.; 1 Wms. on Executors, p. 549, 4th ed. After
hearing Mr. Scoble, on behalf of the plaintiff, Sir Joseph
Arnould, on the 7th of September 1863, dismissed the suit
with costs, " on the ground that there was no devise of the
house in the Will, but merely a power, coupled with a direc-
tion to sell." That is in effect a clear decision that the pro-
perty was real, and not personal, and is in direct opposition to
Sir A. Anstruther's ruling in Doe d. De Silveira v. Texeim,
that the administratrix might recover in ejectment immove-
able property in which the intestate had an estate equivalent
(j) 4 Bom. H. C. Rep., 0, C. J, 100. (k) 8 Ad. & E. 905.

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20(,) BOMBAY HIGH COURT REPORTS.

1868. in interest to what is known in English law as freehold

Lons estate of inheritance. .And, so well understood was it in the
ti.
LOPES •. profession that the Portuguese are liable to English law only,
no attempt, I believe, was made before him to resuscitate
Doe d. De Silveira v. Te.reira, or to argue that Portuguese
law had any place in Bombay.
Upon the authorities quoted, upon the inquiry which I
have made of those who had opportunity of being acquainted
with the doctrine of the Supreme Court, and upon my own
experience of the course of that Court, during which I have
never known any law but English to be applied to Portu-
guese (and I have been counsel in many Portuguese cases),
and for the reasons which I have stated, I have no doubt
that the Supreme Court would have decided this case ac-
cording to the English law of real property, and that, accord-
ingly, I am so bound to decide it. But assuming that the
law was unsettled in 1864, when Daniel de Silva died, and
that it became important to look at the evidence of the al-
leged custom, that evidence is not of such a nature as would
enable me to _decide this case in favour of the plaintiff, on
whom the burden lay to establish the custom. It did not
lie on the defendant to disprove it. No doubt the plain-
tiff has given evidence of several cases in which immove-
able property of Portuguese or ludo-Portuguese intestates,
chiefly but not wholly situated at Mahim, has, by the in-
tervention of the parish clergyman, or other clergymen, or
of friends or relatives of the next of kin, or by arbitrators,
been divided either amongst the male, or the male and
female, next of kin of the intestate. It is not a local custom
attached to the land, that is say, it is no part of the le~ loci
1·ei sitre. If merely personal, there is no certainty in the
evidence as to what persons it extends. If it be a custom
for the descendants of the families resident in Bombay at the
cession, the plaintiff has not proved that Daniel de Silva, or
the plaintiff or defendant, is descended from any such family.
Nor has it been shown clearly to what share a daughter
would be entitled, though most of the plaintiff's witnesses
agree in thinking that she would be entitled to some share if
she were not otherwise provided for. If it be a custom for
Portuguese or Indo-Portuguese inhabitants of Bombay, there
is no evidence to show how long they must have been resi-
dent in Bombay in order to bring them within the descrip-
tion of inhabitants of Bombay. The alleged custom never
appears to have been recognised by the Supreme Court, and

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 ORIGINAL CIVIL JURISDICTION. 201

cannot be said to have been recognised by tho Recorder's

Court. Sir A. Anstruther abstained from deciding the ques- v.
tion as to the shares into which the estate should be di- LOPEB.

vided, and in point of law only decided that the administratrix

might recover th~ property as personalty, and left the ques-
tion open as to the proportions of the division. But sup-
posing that he did judicially recognise the custom, his de-
cision has never been followed by the Supreme Cow·t, and
rests, as I think has been shown, upon unsound reasoning,
and is opposed to authority. The attempt to establish a
qua.'l_i estoppel against the defendant from disputing the cus-
tom, because a division was made of his father's immove-
able property, quite failed. Nothing could be more irregular
than the transaction. After the death of his father, Pascoal
Lopes, intestate, his widow, Serafina, step-mother of the
plaintiff and defendant, by a writing, affected to appoint the
plaintiff's and defendant's uncle to be the executor of her
husband, Pascoal Lopes, and that so-called executor divided
the property of Pascoal Lopes between the plaintiff and
defendant and their elder half-brother, Elias Lopes, who was
then an adult, the defendant then being only nine years
old, and the plaintiff still younger.
The plnintiff has failed, both in law and in evidence of
the alleged custom, to establish his case. The questions
which he has raised, although not without interest, are not
nearly of so much importance as they would have been had
not the Indian Succession Act (X. of 1865, which applies to
wills made or intestacies occurring since the 1st of January
1866) been passed.
· The first four issues and the sixth issue must be found
in the negative and for the defendant. The fifth issue,
"whether the defendant is the sole heir of Daniel de Silva,
as being the eldest son of Antonia, the sister of Daniel
de Silva," must be found in the affirmative, and for the de-
fendant.
The defendant, to his hcnour, does not ask for costs
against his brother. '£he decree accordingly will be for the
defendant without costs.
The Court and the legal profession are much indebted
to Sir John Awdry and Mr. LeMessurier for the valuable
information which they have so courteously furnished with
respect to the doctrine of the Supreme Court as to Portu-
guese.
V.-26 0 C

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Digitized by Google
 CASES
DECIDED IN THE

APPELLATE CIVIL JURISDICTION

OF THE

HIGH COURT OF BOMBAY·

fleyula1· Appeal No. 16 of 18G7. 1867.

Dec. 18.
DEsA'1 KAL¥A 1 NRA 1 YA HuKAMA'l'RA'YA ...... ... Appellant.
THE GoVEilNMEN'l' OP BoMnAY •• •••••• , ••••• , Respondent •
•
Long Enjoyment-Legal Presumption-Prescriptive Title-Palkhi Hak-
Reg. V. of 182i, Sec . 1.
Where the plaintiff's ancestors bad enjoyed nu nllowance during four
successive gcncrntions for n pcrio'1 extending over more than a century,
the legal presumption, in the ahscnce of the original grnnt, is that such
grant was hereditary.
The allowance having been continued by the British Government to tl1e
plaintiff's grandfather for the same reasons for which a village (admitted
to be heltl on her.:1litary tenure) bad heen continued, and having been paid
to~l1e plaintiff's g1·amlf11ther up to his decease, and afterwards, as a matter
of course, to the plaintiff's father, it was heltl that the enjoyment of the
plaintiff's granclfothcr and father was proprietary enjoyment, anil, as this
enjoyment had continued uninterruptedly for more than thirty years, that,
under Reg. Y. of l 82i, Sec. l, a statutory aml indefeasible title to the
allowance l1ad been arquircrl.

THIS was an appeal from the decision of C. G. Kemball,

Judge of the District of S(1rat, in Original Suit No. 19
of 1866.
The facts of the case folly appear from the following judg-
ment recorded by the District Judge :-
" This action is brought against the Government to estab-
lish the plaintiff:s right to tho continuance of a certain al-
lowance, culled a l'alkh i lwk, which had been regularly
enjoyed by the plaintiff's ancestors, but which was stopped
v.-1 AC

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 2
186'1. . by the orders of the Government on the death of his (the
DESAI l • t"ff' ) i! th
KA.LYA.'NRA.'Y.\ p a1n 1 S Hl, er.
lIUKillAT• • • bl
1u'YA " The defendants reply that the action is not mamtama e,

0 0 .:';. oF as the hak 'was not granted for service ; that it was granted
:Po¥B.A.Y. for the lifetime of the original grantee, and was liable to re-
sumption on his death; and that, as the grant of such allow-
ances emanates from Government, it is competent to them
to continue or withhold payment at discretion.
" The issue for consideration is, whether it was competent
to the Government to discontinue the allowance, which is
.>
now claimed in perpetuity.
"The plaintiff avers that his ancestors have, for hundreds .
of years under late governments, and down to the time of
the death of his father, Hukamatr(1i Daulatrai, which occurred
on the 8th of January 1863, under the British Government,
received a· palanquin allowance amounting annually to Rt;,
1,352 Broach currency, or in Queen's coin Rs. 1,274-4-2,
which was hereditary.
"The Government deny that the allowance was here-
ditary.
"I propose, therefore, to consider, first; the character of
the grant, and secondly, the nature of the right by which the
plaintiff founds his claim to a continuance of it in perpetuity.
"The plaintiff is a Desai of Broach, and as such enjoys
undisturbed possession to the present day of a grant of land
as jughir, to which was added, expressly for the expenses of
keeping up a palanquin, the allowance now in dispute.
" Though now the duties of the Desnis are nil, I find,
from the Bombay Revenue Selections printed by order of
the Court of Directors in 1826, that they were in older
times hereditary officers presiding over pragal)as in which
the villages were divided,-in fact the whole country was so
completely in the hands of the Desais, who considered their
possession so permanent, that each family partitioned its
pragal)a amongst its members, like the P1t!fls of a bagdar
village. Every Desai managed the village of his own bay

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 APPELLATE CIVIL 1URISDICTION. 3

as he pleased, and in general they displaced the old PatHs, 1867.

d , d . th , t • f h 11
an carrie on e,·en o m enor management o eac V1 age KALYA'NRA'YA
0
DESA'I

by means of their own agents. The D.esai was thus the HuKAMAT· RA'YA
perfect master of the villa:ge, without any one to check him.' 1,.
GoVT. m·
By degrees these Desuis were reduced from the position of BolleAY.
masters of the district to that of mere ministerial offic.ers,
and the extent of their duties as such became greatly dimin•
ished. The Honorable Mountstuart Elphinstone, President
of the Council, writing in 1821, even then remarked that
'the authority of the Desai has long since been destroyed,'
the British Government itself mainly contributing to this
end by introducing the Kamavisd[tr in the place of the
Des[tis, though the latter were still recognised. As an intro-
duction to the discussion of the question at issue, I will here
give, as briefly as possible, the history of saranjams or jaghfrs,
i. e., grants of a purely personal character made to Ejtate
officers, civil and military. 'rhese g~ants were of two kinds,
one for the performance of certain allotted duties, and the
other for the maintenance of the dignity of the officer. It is
not shown when the grant in this particula~ case was fin1t
made, but the plaintiff asserts without contradiction that it has
been enjoyed for hundreds of years. As, therefore, the suba
of Gujarat was annexed to the Mogal empire, if it did not
owe its origin tO' the Mogals, I think I cannot go for the
required information to a better source than to the minute
of Sir John (or, as he was then, Mr.) Shore, recorded.on
the 2nd of April 1788, from which, where it bears on this
subject, I purpose to make certain extracts.

" After remarking that as traces only of the ancient forms

of the Mogal constitution were in existence when the com-
pany acquired' possession of the dewanny,' it was not surpris-
ing that the English should have adopted erroneous ideas
on the subject, and have confirmed abuses which they found
to exist, and that to no subject was this reflection more
applicable than to that of jaghirs, Mr. Shore says: 'A J[,_
ghir is property, an appendage to a dignity called munsub,
which it is, therefore, necessary to explain. In the Mogal
empire there are no hereditary dignities. The rank of the ·

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 4 DOMBAY HIGH COURT REPOR'l'S.

1867. nobles was conferred by special appointment from the Em-

KAL~:,~~~'u peror for life only, and revocable at his pleasure, and it was
Huiwu:r- estimated by the number of horse which they were supposed
1
RA YA
1,•. to command. This command was denominated ' munsub,'
Gov·r. oF
Bo.u»AY. and a Jaghirwas an appendage to it. The mode of granting
munsubs and Jaghirs was first reduced to a regular system
in the reign of Akbar, during which 66 Munsubd{trs were
raised to this dignity by the Emperor himself, or by him
at the recommendation of the Nazims of Bengal, Kabul, and
the Deccan. · When the power of the Emperor declined, the
•
Nazims of the distant Soubahs, who were originally allowed
only to recommend munsubs, usurped the privilege of
granting Jaghirs, both conditional and unconditional. This
act was so avowedly derogatory to the authority of the
Emperor, that an evasion (in the manner of preparing the
sanad for the Jaghir) was practised to conceal it. From the
preceding explanation; a Jaghir may be defined to be an
assignment in land or money for the support of a certain
dignity, and for the troops annexed thereto. It was either
conditional or unconditional. The former implied that it
was granted for the expenses of a particular ,office or station,
the latter that it was independent of any office or station,
being appropriated for the maintenance of a dignity, a
suitable number of attendants and the troops annexed to
H. In the latter case it was granted for life,.or until the
Emperor should please to resume the dignity or diminish it.
In the former case it existed whilst the possessor continued
in office only, and upon his removal or dismission devolved,
either in whole or· in plirt, upon his successor,' and in laying
down the circumstances to be considered in deciding on the
resumption of certain J{tghirs, Mr. Shore remarks 'that
many persons have succeeded to them by virtue of in-
heritance, in direct violation of the constitution of the Em-
pire,-such has been the lenity or want of information of the
British Government.'

" I would here further note the following historical facts,

for which I am largely indebted to the 'Ras ma.la.' of the late
Mr. Kinloch Forbes. After Gujarat was conquered and an-

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 APPELLATE CIVIL JURISDIC'l'ION, 5

nexed by the great Akbar iu A.D. 1572, his enlightened diva?& 1867.
DEst'1
Toran Mal was deputed to effect a revenue settlement, and KALYA'~HA'YA
during his visit he conferred the dignity of munsub on cer- H~:;Y:n-
tain of the chiefs. Tho power of the Mogals continued undis- i,.
GoVT. oF
turbed until the beginning of the 18th century, when the BolIBAr.
:M:arathas began to make incursions into, and exact tribute
from1 Gujarat. In 1730 Damriji GaikvacJ was appointed to
command under the sonapctfi of the Madfha empire, and
was ennobled by tho title of Samshir Bahaclar. Aftel'. his
death his nephew Pi!itji succeeded him, and on PiJaji's
assassination (since which time Barod{i lrns continued in
the hands of the G[iikv[uJ family) he was succeeded by his
son Damuji. DSmiiji used to levy all the usual 1\fai-afha.
dues in Gujarat, and possessed considerable resources, and
in 1751 the Peshvu, who had got him in his power, bound
him down to the payment of a large · sum of money, and
exacted a bond for an equal partition, both of the districts
the!). held by the Guikvaq family and .of all futui·e conquests.
AhJ?.edabad, the only place remaining to the Mogals, was
taken by Damuji in concert with the Peshva's brother
Raghunathrav, in 1758; not very long after this Dam£1ji died,
and was succeeded by one of his sons, Fatesing. The Eng-
lish then came on the scene, and took Broach from its Nawab
in 1772; they coded it to Mahadaji Sinde by the treaty of
-1783, and with him it remained till 1803, when, Mahadnji
engaging in war with the British Government, it was taken
from him on the 29th of August. Fatesing Gaikva(J died in
1789, was followed by his brother Govindr(tv, who also dy-
ing, September 1800, was succeeded by hir;i son A'nandrav
GaikvacJ.
" I have deemed it necessary to glance thus cursorily at
a brief portion of the history of Gujar{it, as the plaintiff has
put in certain documents, which he styles sanads, relating to
the allowance which he now claims, the earliest purporting
to have been issued by the great Damaji Gaikv(u;l in 1754,
and the last by the Sinde Sarkar in 1786. I will refer to
these documents hereafter.
"The witnesses produced by the plaintiff speak mainly

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 6 BOMBAY HIGH COURT REPORTS.

1867. to the facts of a palanquin having been maintained iu the

DESA'I
KALYA'NJL\'YA
~ '}y, an d of h.1s ances tors havmg
p 1a·mti•ff's 1am1 • regu1arly re-
HuKAMAT·
ltA'YA
ceived a palanquin allowance, but these are virtually conceded
v. on the part of the defence, so that I need not dwell on this
GoVT. OF
Boll»Ar. evidence.
" For the defence there are two principal witnesses, the
Daftardar of the Collector of S{1rat, and the Judge of the
Court of Small Causes at Ahmedabad, who wore both
formerly employed on the Inam Commission. These wit-
nesses concur in thinking that the allowance under considera-
tion was not hereditary, and apparently draw in this respect
a distinction between service jahagirs and personal jahi\girs,
Mr. Gopalrav further saying that, if on the face of the sanad
a hak is not hereditary, it must be regarded as personal, by
which I understand him to mean a life-grant. They both
manifestly use the word' personal' to distinguish the allow-
ance from a service grant, which they seem to think is of
necessity 'watan,"Lc., enjoyable for ever. Possibly their
conclusion on this question is derived .from the distinction
which Gov~rnment itself has permitted in dealing with the
question of jahagirs, but that jahagirs of all kinds were
essentially grants to the person, or life-grants, I think their
history sufficiently shows, borne out as it is, generally, by
the recorded opinions of such authorities as the Honorable
Mountstuart Elphinstone, the Honorable Mr. Warden, and
Captain Cowper. See the correspondence by the lnam
Commission on the Dakhan saranjams (Bombay Government
Records, No. XXXI., New Series),
"Mr. Warden thus expressed himself:-' A saranjam was
of two kinds, one, called a Frouj Saranjam, was a grant of
land from the sovereign to a noble, to enable him to support
a contingent of troops, with which· he was bound to take
the field with his lord paramount; the other, called a Jat
saranjam, was a distinct grant to the same noble to
maintain due state and dignity as a feudal chieftain. Both
grants were personal, and held on life tenure only. While,
then, an inam was a gift to the poor for his maintenance, a
saranjam was an assignment to a noble for his dignity; while

D1g1tized by Google
 APPELLATE CIVIL JURCSDICTION, 7
the inam was a gift for ever, the saranjam was an assignmenb 1867.
- ,
resumab1e at pleasure, an d never contmued for a longer KALu'NRA'n
DESA I 1

Period than the life of the · grantee ; while the title of an Huu¥AT·
JU.'YA
inamdar was upheld by his title-deeds, the only title of a 11.
00YT. OP
saranjamdar was the favour of his soveretgn, an~ it is, there- BOlIBA.Y.
fore, as great a misapplication of terms to talk of an here-
ditary saranjamd11r as it is to talk of an hereditary pension,'

"Captain Cowper, in replying to this, pointed out an

omission on the part of Mr. Warden, which must .have been
•
inadvertent, of a third and important description of saran-
jam, that granted to civil ministers and others of the non-
military classes. He also asserted that Mr. Warden was
wrong in stating that saranjams were never hereditary,
naming in support of his assertion two such instances, and
remarking that Mr. Elphinstone had spoken of the existence
of hereditary saranjams when explaining to the Court of
Directors in 1838 some of the general principles upon
which he had in 1819 recommended to the Governor General
that the Dakhan saranjam should bo continued. Mr.
Elphinstone thus wrote :-' The maintenance of many of the
Chiefs in their possession was certainly suggested, as sup-
posed by the Governor General, for the purpose of avoiding
popular discontent, and preventing the too rapid fall of
great families, but in other cases it rested in the belief that
the holders were entitled . of right to their possession.
Where a jahagir was by the original grant made hereditary
in the family of the grantee, there could be no doubt of the
right· of the descendant ; but where there was no such grant
(as was the case with almost all thejahagirs) the right rested
on different grounds, arising from the tenure of jahiigirs
(or saranjams, as they are called by the Marathas).'

"A jahagir made hereditary by original grant is shown

, by the correspondence to have been of exceedingly rare
occurrence, and t,he proposition, which Mr. Elphinstono
made, or is supposed to have made, in respect of the Gov-
ernment, declaring certain jahugirs to be thenceforth heredi-
tary, in his letter of the 25th of October 18191 was not con-

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 8 BOMBAY HIGH COURT REPORTS,

1867. curred in; the Govemment of India remarking thus :

DEsA'I
KALYA'NRA'rA 'With reference to those grants, which it is proposed to make
HUKAll!AT· hereditary, the Governor General in Council doubts the
RA 1 \',\
'V. policy of making any grants hereditary which may justly be
Gon. OF
llOMBAY. put on the footing of lifo grants. By keeping them as life
gr~nts, Government is by no means excluded from the power
of renewing them, if it should be found expedient to do so,
and every renewal will be a fresh act of grace, conferred on
the individual receiving it : but by now declarin~ these
grants to be hereditary, Government would be precluded
from both resuming its rights, when it might be necessary
to do so, and from conferring favours on the descendants of
the present grantees, and would thus be deprived of a pro-
bable source of future improvement .in revenue, and every
other branch of civil administration, as well as of the means ,
l_)f winning attachment by personal obligation.'

"To this the Government of Bombay, of which Mr. •

Elphinstone was then at tp.e head, replied, on the 11th of
May following, thus :-' Independent of the considerations
which determined the original amount of the grants, and
appear to the Governor in Council to be still in force, almost
the whole of those grants have now been issued, and the
individuals have been told that they will enjoy them for life.
No grant of any description has'been declared hereditary;
the distinction in the list of jaht\girs transmitted. to the
Supreme Government, into he1~ditary and for life, being
intended as a suggestion for the future regulation of the
Government, but having in no instance been communicated
to the party concerned. The Governor in Council is of
opinion that the grants marked hereditary should be con-
tinued to the heirs of the present occupants : but he entirely
concurs with His Excellency the Most Noble the Governor
General in Council in respect to the expediency of renewing
the grant on the death of each incumbent. Government will
indeed be at liberty to exercise its discretion in granting or
withholding the renewal on such occasions, except in the
case of what is termed Padshai grants, which the Governor
in Council conceives ought in all cases to be renewed : and

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 APPELL.\'l'E Cl \ll L .JU Rl8111CTION.

of the more ancient grants, by the Rajas of Satar:i, which 1867.

DEsA'I
should be treated with similar attention.' KALYA'NRA'Y ...
IlUKA~!A'l'·
" The Pudshai grants I take to mean those of the :Mogal R.!.'YA
v.
emperors, and the holders of these and the more ancient Gov-r. OF
Bol!BAY.
Satar[i grants the British Government were pleased to de-
clare entitled of right to an hereditary tenure not (in general)
by express grant, but by length of possession ; though in
doing so they drew a marked distinction between grants to
civil ministers and others of the non-military classes, and
those to the military chiefs, :Mr. Elphinstone thus speaking
iu paragraph 33 of his ~espatch No. 78 of the 18th June
1818, 'With respect to the old military jahagirdars, I would
by no means recommend the resumption of their lauds on
the death of the individual ; those of civil officers, or new
jahagirdars, may more p1·operly be lessened or entirely
resumed.'

"Why a distinction was drawn between a service or con-

ditional jahagir and the personal. or unconditional jah[igir
it is not now my business to inquire : which grants should,
and which grants should not, be declared hereditary, was
purely a question for the consideration of the State; it is
sufficient for me to note here that all jahttgirs were, strictly
speaking, personal, i. e., held on life tenure only; and that
unconditional _jahagirs especially have always been treated
by the paramount power as life-grants, each renmval bt:ing
a fresh act of grace, unless the sanag.s relating to them con-
tained distinct words of inheritance.

" I will now consider briefly the documentary eviueuce

which the plaintiff has put in, which consists of an extract
(paragraphs 1 and 16) from :Mr. Secretary Goodwin's letter of
the 7th of February 1808, to the Revenue Commissioner at
Broach, sanctioning the continuance to Daulatr{1i of the
palanquin establishment, with sepoys' and peons' allowance
'from the beginning of the current JJ[rug sal ;' eight orders
from different Gaikvags, and one from Sincle Sarkar to
Mamlatdars for payment of the palklii allowance to Des,1is
Bhikariclas Jamiyat.r[ii and Danlatrni, and the Queen':, pro-
v.-2 AC

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 lQ BOMBAY HlGH coux·.r Rli:POR-1'8.

1867. · clamation to her Indian subjects at the close of the mutiny.

KAL~:,~A~~'u The plaintiff argues upon these that the grant was here-
Huuxu-
BA'Y-A
ditarv,
·,1
as shown by the use of the word 'sudamat' in the
11. sanad issued by Damaji Gaikva~ in 1761, and in that of the
Gan. or
Boxuu. Sinde Sarkar dated 1786; that the Government of Bombay,
by its orders of the 7th of February 1808, confirmed this grant
to his grandfather Daulatrai ; and that H~r Majesty's pro-
clamation proves the illegality of now attempting to inter-
fere with it. But I am of opinion that what the plaintiff
designates ' sanads' are nothing more than orders for the
punctual payment of the allowance to the individuals named
therein respectively. I gather this from the general ten our
of the documents, and from the fact that the 2nd, 3rd, and
4th (in the first of which appears the word' sudamat') were
all issued in 1761, 1762, and 1768 respectively, by the same
Gaikva~ Damaji, in favour of the individual Desai Jamiyatrai.
As regards the word 'sudamat,' on which so much stress
is laid, and which, as I have said, occurs in the docu-
ment of 1761 and a second time in one of 1786, I find,
upon the evidence of Mr: Gopalrav, a Marathi scholar of
great repute, that it conveys no meaning of hereditary
tenure, or continuance in perpetuity, but means simply
'without objection,' ' without molestation.' The recurrence
of the words in several of the orders, 'you' (speaking to the
Mamlatdars) 'are not to require a fresh order each year,'
fully bears out this view.
"I am of opinion, therefore, that the plaintiff has failed to
establish that the grant was hereditary prior to the accession
of the British rule, and that, as to what followed after the
year 1803, there is no evidence that the Bombay Goverµ-
ment, either directly or by implication, ever consented to
regard it as such. On the contrary, the correspondence of
the Government at those early times shows beyond a doubt
that this was one of the allowances which }hey intended
uniformly to consider life-grants, to be resumed at pleasure.
" Whether or no the Government ought to have regard to
the length of time the allowance has been enjoyed, is a ques ...
tion of State, and, as such, quite beyond the Court's consider-

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 APPELLATE CIVIL JURISDICTION. 11

atitm, but it is clear that, from the fact of its having been 1867.
continued as an act of grace, the long enjoyment of itself KAL~:~A;~.;A
gives the plaintiff no title. HuKAHAT-
11.A'YA.
"The conclusion I come to is, that there is no right resid- "'
GoVT. OP
ing in the plaintiff which he can enforce in a court of law; BoXBAY.

and I, therefore, throw out the claim, with costs on the

plaintiff."
'l'he appeal was argued before TucKER and GIBBS, JJ.
Pigat (with him Nanabhai Haridas) for the appellant.
White (with him DMtajlal Ma.thu1·adas, Government
Pleader) for the respondent.
TUCKER, J. :-The plA.intiff in this suit, Desai Kalynnraya
Hukamatruya, has brought this action against the Govern-
ment of Bombay, to enforce the continua.nee of the payment
of an annual allowance of Rs. 1,274-4-2, styled a palkhi
allowance, which, he stated, had been granted hereditarily to
his ancestors by former Native governments, and had been
continued by the British Government up to the death of his
father, on the 8th of January 1863. He, therefore, prayed
for a declaration of his right to the allowance in future, and
for arrears from the date of cessation of payment.
The defence was that the allowance had not been granted
htlreditarily or for service. That it was a personal allowance
to the original grantee, which had been continued to the
grantee's successors individually, as a matter of indulgence,
and not of right; and that t.he Government were not bound
to continue the allowance after the death of the last holder.
The District Judge of Surat, C. G. Kemball, who tried
the original suit, was of opinion that the plaintiff had failed
to establish that the allowance had been granted hereditarily,
or that he could del_lland its continuance as a matter of right;
and he, therefore, decreed for the defendant with costs.
In · appeal, Mr. Pigot, for the appellant (plaintiff), has
contended, that it is shown by the authorities cited by the
District Judge, ~nd by the evidence of the witnesses produced
by the Government, that allowances of this character were in

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 )2 .BOMBAY HIGH COURT REPORTS;

__ism. some instances grn.1ted hereditnrily; that the original grant

DE~A'J
KALYA':rn.t'YA •1s not r1orth coming,
· as th e so-ea11 eu
·1 " sanad s," w h"1ch l1ave
lit.;KA)IAT•
RA 0 YA
been recorded, are not grants or deeds addressed to any
v. of tho plaintiff's ancestors, but are orders to the district
GOYT. OF
Bolo!BAY. authorities for the payment of the allowance to the successoril
of the original grantee, and that there are words in some of
these orders which show that the allowance was continued
to the several successors of the original grantee as of right;
that from this long enjoyment by the several heirs of the
first holder, the Judge should have presumed that the
original grant was hereditary, as nothing had been brought
forward to rebut this presumption; that, further, it was clear
that the British Goyernment treated this grant as hereditary
in 1808, as the pulkhi allowance was then continued to the
plaintiff's grandfather, Daulatrai, in the same manner as the
.ina~ village of Kalam and the Desai's other allowances,
which arc not disputed to be h~ld on hereditary tenure, and
the said allowance was continued to the plaintiff's father.,
Hukamatrai, on Daulatrai's death, without further inquiry
or order, and this uninterrupted enjoyment by the plaintiff's
grandfather and father from 1808 to 1863 would alone, under
Reg. Y. of 1827, Sec. 1, give the plaintiff a prescriptiYe
title.
Mr. ,vhite, for the Bombay Government, has argued, on
the other hand, that the "sanads," which have been pro-
duced, are the only grants which have been ever made, and
that they show that the allowance was simply personal, and
had never been conveyed to any of the holders and their
h~irs; that the subject-matter of the grant forbids the .sup-
position of its being anything but personal, and that no pre-
sumption could be founded upon the long enjoyment of the
plaintiff's ancestors, as the origin of the title is shown, and
the continuance of the allowance to the several successors
of the original grantee was a matter of grac~ and favour,
and not of right.
I am unable to concur in the conclusion at which the
learned District Judge has arrived, which appears ,to me to
l?e opposed to the weight of tl1e evfrknce recorded. He

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 APPELL•TE C'TVTL JURiSDTCTfON. 13

seems to have considered that the allowance, which admit- 1867.

tedly has beou enjoyed by the plaintiff's ancestors for four KAL~!~!;A'YA
generations, was appurtenant to a jahagir of which, to uso HU KAMAT• 1
RA YA
his own words, "plaintiff enjoys undisturbed possession to v.
Gon. OF
the present day," but that it was granted for the mainten- BOMBAY.
ance of the dignity of an office, and that consequently, in
accordance with the opinions expressed in the publisp.ed
reports of several eminent Indian statesmen, which he
recites in his judgment, it could not have been in its origin
more than a personal or life grant ; and on this ground
alone he would seem to have rejected the claim. I think
this was not a proper way of dealing with a claim like tho
present one. 'l'he opinions of Indian statesmen so learned
and distinguished as the late Lord Teignmouth and the
Honorablo Mountstuart Elphinstone, with respect t9 the
practice and policy of the Mogal emperors, and of other
Native sovereigns, who ruled in Hindustan prior to the
establishment of the British empire in India, though entitled
to great respect, are of no judicial authority, and, in a court
of justice, should not have been allowed to prevail against
the positive evidence of facts, 11,nd the legal presumptions
which arise upon these facts.

In addition, it may be observed that the reports, from

which the District Judge has made extracts, admit the exist-
ence of ma~y exceptions to the theory that all jahagirs, or
grants of land, or money, for the maintenance of an office, or
for the support of the rank and dignity of privileged persons,
were for the life of the original grantee only. As might
a
have been inferred priori, the acts of despotic and arbi-
trary governments with respect to such grants were not uni-
form. To this fact, the records of this court and the reports
of the High Courts in each of the Presidencies, .and of the
Courts of the $adr Divai;ii Adalat to which they succeeded,
bear abunoont testimony, and it has frequently been
declared from this bench, with respect to jahagirs and
other analogous grants, that no general rule can be laid
down regarding them, and _that the rights of persons to
whom such grants haye been made, and of thei:r heirs and

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 14 BOKBAY HIGH COURT RIPORTS,

~6?-·_ representatives, must be determined in each particular case

DEaA'I ·
KALYA'NllA'YA by the language of the deed by which the grant was con-
Hu~xAT- ferred, or, in the absence of any such deed, by the surround-
BA YA
'II, ing circumstances.
GOVT. OJ!'
BOKBAY. What, then, are the facts and circumstances established
in this suit?
The first fact, which stands forth prominently, is that, under
the rule of the Marathas, allowances identical with the one
of which the plaintiff claims the continuance, were granted
hereditarily to officers in the position of the plaintiff's an.
cestors. This is proved by the defendant's witness, Mr.
Gopiilrav Bari Deshmukh, the present Judge of the Small
Cause Court at Ahmedabad, who, beiing himself an hereditary
district officer, admits that he is the recipient of a palkhi
allowance conferred upon his ancestor hereditarily by a
sanad from one of the Peshvas. He states that he does not
remember another instance of an hereditary palkhi allowance;
but the fact which he admits is sufficient to destroy the in-
ference drawn by the District Judge, namely, that the nature
of the allowance precluded the supposition that it could have
been granted hereditarily. It is to be regretted that this
witness was not examined more particularly, and called upon
to produce the sanad to his ancestor, as it would have shown
the manner in which hereditary grants were made by the
Marathas, and the terms used in the deeds by which such
grants were conferred.
The second fact, which is demonstrated by the document-
ary evidence, is that no deed, which can properly be treated
as an original grant from a Native sovereign to the plaintiff'f
ancestor, has been produced. The papers (exhibits 3 to 11)
filed by the plaintiff, though styled " sanads," are clearly
not deeds or conveyances by the several Gaikva~ princes,
under whose names and seals they were respectively issued,
to any ancestors of the plaintiff. They are simply orders
from these chieftains to the then existing district officers
and their successors, reciting the complaints and demands of
the plaintiff's ancestors, and directing the continuance of the
payments w)lich had hitherto been made to them in their

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 APPELLATE CIVIL lUBISDICTJO~. 15

capacity of district hereditary officers. It ma.y be that it -=l_S_fYT,....----,-

D:su.'1
was not the ordinary practice of Marat,ha rulers when making KALYA.'N·
grants of land, or of money, to execute formal deeds, or H::,~~~T-
writings to the grantees, and that the orders issued to the RA'YA.

district authorities, reciting the grants which had been made, or Go;;.
h
were, in accordance with the usage of those days, t e so e 1 BoKBAT,

memorials of the gifts, or concessions, to which they referred;

but the defendant has produced no evidence to prove the
existence of any custom of this character, and in the absence
of such testimony, a court of justice would not be justified
in treating these so-called sanads as the original deed~ by
which the allowance was conferred upon the plaintiff's an-
cestors, or in holding, as there are no words in these papers
which specifically declare that the allowance is to be con-
tinued hereditarily, that such was not the character _of the
original grant. These papers, which are acknowledged
to be both genuine and authentic, clearly prove that the
palkhi allowance was paid by order of Damaji Gaikva-9,
so far back as A.D: 1754, to Bhikaridas, the father of Jami-
yatrai, plaintiff's great-grandfather, and that,. on the death of
Bhikaridas, it was continued to his son Jamiyatrai, and, after
the decease of the latter, to Jamiyatrai's son Daulatrai, by
different orders from Damaji, Fatesing, and Govindrav Gaik-
vags, and that, after the conquest of the Broach pragaQa by
the English in A. D. 1772, and its cession to Mahadaji Sinde
in A. D. 1783, it was continued in A. D. 1786, by an order of
Sindia's government. In the orders made by Damaji Gaik-
va9 in A. D. 1761 in favour of Jamiyatrai (exhibit No. 4),
and by Govindrav Gaikva9 in A. D. 1745, on the death of
Jainiyatrai (exhibit No. 10), there are expressions from which
it may be inferred that the continuance of the payment was
directed as a matter of right, as well as a matter of favour.
The allowance is referred to as the property, not of the de.
ceased holder, but of his successor, and it is ordered to be
continued "sudamat," which under one interpretation means
"as of old," and under another "without molestation." In
exhibit No. 6, an order made by Damaji Gaikva9 in A. D. 1768
in favour of Jamiyatrai, the allowance is described as "the
amount of palkhi expenses, which has been entered as an

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 BOMBAY HIGH COU J<'l' IU.:POU'l'S.

_ _1~67";- allowance to Des~i Jamiyatrai Bhikaridas, of the praga1pi

DF.sA I
KALYA'NRA'YA
I! 'd, smce
a::i a10resai . t h e ancient
. .
time of wealt h (prosperity),
.
IIuKA!!AT- the same and the inam village Desai Dar Dastur, Gumasta,
llA'YA
v. in ihe aforesaid praga~a, are to be respected, and, by causing
GOVT. OP
llo:11n.n. the same to be paid, you are to maintain dignity." In the
order of Mahadaji Sinde in A.D. 1786 in favour of Daulatrai
(exhibit No. 11), it is set forth thatthesaidDaulatrai had re-
presented that the allowance had been conferred ana con-
tinued by Damaji Gaikvag., and had been further continued
through the intermediate administration of the English, and
it is further directed that the allowance should be continued
in consideration of previous enjoyment. There· are words in
the order which indicate that Daulatrai's claim was allowed
as much on account of ancient enjoyment as out of kindness
or for reasons of public policy, and it appears to me t o be a
fair construction of this document, to say that the demand
of the applicant was complied with on considerations both of
justice and of expediency.

We next come to the dealings of the British Government

with the plaintiff's grandfather after the second conquest, in
A. D. 1803, of the territory out of the revenues of which this
allowance has been paid. An extract from a letter has been
put in by the defendant, dated the 7th of February 1808,
from R. T. Goodwin, Esq., Secretary to the Government of
Bombay, to Messrs. Guy, Lennox, Prendergast, and William
Steadman, members of a Revenue Commission at Broach
(exhibit No. 84), in which it is stated as follows:-
" Paragraph 1. In view of the period now at hand for the
formation of the current year's Jammabandy, I am directed
to furnish you with the following remarks and instruct.ions
on the subject of your very valuable and satisfactory r eport
of the 31st of May last."

"Paragraph 16. Proceeding next to the Desais' allowances,

the village of Kalam, or (as written in the sanad) Kallab,
is confirmed by Government, as you recommend, as is, on the
same grounds, the palanquin establishment, with sepoys' and
peons' allowance to Daulatrai from the beginning of the

Digitized by Google
 APPELLATE CIVIL JURISDICTION, 17
cuITent Mi'1tf! sal, but without arrears for the time the same 1867.
have been suspended." K-A-L~:~;:,L~
Ht"KU!.\T-
From this document it is clear that the pcW.·hi allowance
t •,
was continued to Danlatrfti on the same grounds as the innm Gon. m·
BolmAY,
estate in the village of Kalmn or Kalab, to which the plaintiff
has succeeded as heir to his father, and his right to which is
not disputed by Government. The exact grounds on which
this concession was mrulo are not apparent, as the defendant
has omitted to proc1uce the report of the Revenue Commis.
sion, in whoso reasons for the perpetuation of the payment
the Government of the day declared their acquiescence.
The withholdal of this document, which is not alleged to have
been lost or destroyed, and the production of which was
applied for by the plaintiff, has not been satisfactorily ex-
plained; and the omission to produce it is a very significant
fact, from which it may justly be inferred that the real
•
ground for the continuance both of the village and of the
annujty was· that tho plaintiff's grandfather was helil
to have established an hereditary right . to each of these
items of property. 'l'his view is further confirmed by the
action of the revenue authorities on the death of Daulatrai
in A, D. 1828. At that time no investigation appears to
have been made, and the payment of the allowance was
continued .to the plaintiff's father, Hukamatr6i, without
inteJTuption up to the date of Hukamatrui's death on the
8th of J anuary 1863. No doubt as to Hukamatriii's right
would seem to have been raised till 1856, when an inquiry
was instituted by the In{rn~ Commission, and on the report
of the officers of that commission, two of whom have been
examined in this suit, the Government decided, under date
the 8th of November 1861, that the allowance should cease
on the death of Hukamatriii. At that date, however, the de-
ceased Hukamatrai bad, under Reg. V. of 1827, Sec. 1, ac-
quired a prescriptiv~ right to the allowance, as he had en-
joyed it as a proprietor for upwards of thirty years. There
is no pretence for saying that it was ·continued to him after
his father's decease as a matter of favour. It was paid to l1im
as a matter of course, in consequence of his supposed right ·
y,-3 AC

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 18 BOMBAY HIGH COURT REPORTS.

~67. _ as su<'r!-'ssoi· to his father, and it was too late, after the pay-
KA::~;'.\.'n meut had been made for mone than thirty years, for the
~u&AMAT·
h~
Government to attempt to place any limit on its continuance
.
i•. to Hukamatrai or his heirs. It has been contended that
Govr. OF
Bollu.H. the fact that Hukamatrai's right was questioned in 1856,
a.nd made the subject of investigation, was sufficient to pre-
vent his acquisition of a prescriptive title. In this view I am
unable to acquiesce, as there was apparently no stoppage of
the payment of the allowance, or any intimation that the
G9vernment denied the plaintiff's proprietary right, till 1861,
by which time the possession required for the perfection
of a prescriptive title had been completed; but, even if it
be conceded that the enjoyment as of right was interrupted
by the inquisition which was com!Ilenced in 1856, yet, on
that date the title of Hukamatr:H was beyond dispute, as
the uninterrupted enjoyment of himself and his father since
1808 had then exceeded thirty. years. That the enjoyment
of Daulatrai was of a proprietary character is, I think,
shown by the terms of Mr. Goodwin's letter, as the allow-
ance is continued for the same reason as the village, and if
there be any doubt on this point, by reason of any imperfec-
tion or incompleteness in the terms of the order, it must be
determined in favour of the plaintiff, in consequence of the
failure of Government to produce a document which would
have thrown a full light upon the transaction in A.D. 1808.
Iu a contention between the representatives of the ruling
power in a state and an individual citizen, the keeping back
of any document which may exist in the public archives, and
which is calculated to explain, or make clear, the former ac-
tion of Government in relation to any matter on which the
parties may be at issue, is a practice which cannot be too
strongly reprehended.
I consider, then, that the plaintiff is entitled to succeed in
this suit-
lst-Because, in the absence of the original deed of con-
veyance or grant, the long enjoyment of the plaintiff's an-
cestors during four generations successively, and for a period
of more than a century, creates a legitimate presumption that

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 APPELLA'l'E CIVIL JURISDIC'l'ION, 19
the allowance was coufe1Ted on the original grantee and his _,,,_1_86_7,...._
'
hell's d DE8A'I
; an K.\LYA'NRA'YA.
HUKU.\T•
21ully-Because the uninterrupted enjoyment of the plain- R.\'YA
t•,
tiff's grandfather and father, under the order made by the GoVT. OF
Government of Bombay on the 7th of February 1808, which Boxsu.
extended from that date to the commencement of 1856, gave
to the plaintiff a statutory and indefeasible title.
On these grounds I would reverse the decree of ths
District Judge, and declare the plaintiff entitled to the allow.
ance mentioned in the pl11.int from the date therein set .
forth, and also to the a1Tears claimed in the said plaint, with
interest, and I would further direct that the defendant pay
all cost,s of the suit both in this court and in the court
below.
The learned counsel for the defendant has urged very
strongly that it is in the public interest that the Government
should resist claims which, if admitted, would create a per-
manent and perpetual charge on the revenues of India, and
in this view I concur to the extent that such claims should
not be allowed without strict and careful scrutiny.
But, in the present instance, it would be carrying the
doctrine too far to hold that a regard for the general good
justified the disturbance, in A,D, 1861, of a settlement,
apparently equitable, which had been made in A.D. 1808
after deliberate investigation, and had since then been acted
upon uninterruptedly for forty-eight years.
GrnBs, J. i-The facts of the case having been ftilly set out
by my learned colleague, Mr. Justice Tucker, it is not
necessary for me to note them otherwise than in my finding
on the merits of the case.
There are two points which arise; and on which I think it
right for us to record judgtnent: (1) whether the plaintiff has
established his claim; and (2) whether there is not a pre•
scriptive title made out, which, under Reg. V. of 1827, Sec.
1, will give the plaintiff his elaim against the Government
irrespective of the facts. I will commence with the former,
as, should this case go in appeal to the Privy Council, a

D1g1tized by Google
 20 BO¥BAY HIGH!coURT ltEI'ORTS,
:~~~·~·/·1
_ 1867. __ finding on facts may possibly prevent the necessity of a
KALY.\'NILt'Lt reman d ,
DEs.\'i W'th
1 th'IS view
· I w1'll fi1•,ut
., oxam1'ne t,he docu-
H1;KA1IAT· ments filed in the case.
B.\'YA
'l/,
Gurr. uF The grant in dispute appears to havo been made by D[t-
Bu)l!l.\Y,
m11ji GaikviicJ to Bhikaridas, the ancestor of the plaintiff in
the direct line, in 1754 (exhibit No. 3) ; the next document
(exhibit No. 4), dated 1761, is by the same Gaikv,~~ in favour
of Jamiyatr6i1 the son of Bhikaridas; No. 5, dated 1761-62,
is also by the same Gaikva<_l in favour of Jamiyatrai; exhi-
bit No. 6, dated 1767-68, is similar to exhibit 5, but contains
allm,ion to the-inam village as well as the palkhi allowance.
The next exhibit (No. 7) is by Dalllaji Gaikvaq.'s son and
successor, Fatesing, dated 1772, in favour of Jamiyatrai.
The above documents allude to the palkhi allowance, but
exhibits Nos. 8 and 9 relate to the grant of several slii-
baniUs or peomi, granted apparently by Fatesing GaikvacJ
in exhibit 8, and continued by his son Govindrav Gaikva~
in exhibit No. 9. Exhibit No. 10, dated 1774, after narrating
the fact of Jamiyatrai's death, directs the payment of the
pulkhi and shibancli a1lowance to his son Daulatrai.
The nature of one and all of the above documents is the
sa,mc. They are not in themselves sanads or grants by
the ruler to his subject and servant, but they are orders
from the ruler addressed to his local revenue officers for the
payment of cel'tain allowances which, by the wording of ex-
hibit No. 7, may be fairly supposed to have formed the sub-
ject of a formal grant or sanad, and they show an uninter-
rupted payment of these allowances to three generations, viz.;
Bhikaridas, his son Jamiyatrai, and his grandson DaulatrM.
Exhibit No. 11 is of a different nature. Wars and disturb-
ances had caused a change of dynasty, and Mahadaji Sindc
had become, by cession of the British Government, ruler
of this part of Gujarat. On application by Daulatriii, this
Chief directed the revenue officers of the Broach pragal).U
that the payment of the pall.:!1i and other allowances, which
had been granted to his grandfather, should be continued
to Daulatrai.

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 APPELLATE CIVIL .JURISDICTION, 21
There are · no more documents produced until after ___ _ ! ~
August 1803, when the Bl'itish again captured and obtained K\~~~~~A'u
Possession of Broach. Exhibit No. 60 is the first pnper in Hc!Ll.YAT·
RA'LI.
any way connected with tho British Government, and this i·.
Gon. oF
would appear to be au ackuowledgmeut by Daulatrai of Bo:llnn.
having received the pall.-lii and other allO\vauces. The next
exhibit, to which I shall refer, is No. 84, which is au extract
from a letter addressed by tho Secretary to the Government to
the Revenue Commissioners, and is dated 7th February 1808,
in which is recorded the confirmation by the Government of
the payment of the palanquin establishment all<l sepoys and
other allowances, on the sa~e grouuds as those on which, to
the same Des[,i, the village of Kala.m had been confirmed. ·

This Desai Daulatrai is said to have died in 1808, and

his son Hukamatrui succeeded, and he, up to his death in
January 1863, received the same allowances without,, as is
shown by the Collector Mr. Oliphau~'s Report (exhibit No.
88), the Governnicnt making any separate order :-in other
words, it was evidently continued as a matter of right.
An examination of al~ these documents shows clearly to
my mind that the palkhi allowance was received by father
and sou through three generations, from 1754 to 1863, and the
sepoys and peons from 1773 to the same date, and further
that from the date of .the confirmation by the British
Government in 1808, both were received by two generations,
without any interference on the part of the Government,
extending over a period of about fifty.five years.
I would now notice that portion of exhibit No. 84 iu
which allusion is made to the village granted in in(im to this
family. From an appeal* lately before this court, it appeared
that the village in question was conferred on Daulatrui
· and his heirs in perpetuity; construing, therefore, the 16th
paragraph of Secretary Mr. Goodwin's letter by this light,
it would a.ppear that in 1808 the palanquin and shibamli
allowance was also conferred on a similar tenure, the words
being, " the village of Kalam is confirmed by Government
"'S. A, No. 567 of 1867, 4 Bom. H. C. Rep., A.C.J. 189.

Digitized by Google
 22 BOMBAY JiIGH COURT REPORTS,

~~ as you recommend, and so is, on the same grounds,-the palan-

DEsA'i
KALYA'rou'YA qmn• es""' t W1"th
•ftblishmen, · sepoys an d peon aIIowance ..
"
HUJUMAT•

·t).
Some argument took place at the bar on the nature of
,GOVT. OF these exhibits, and it was suggested that they did not prove
BoMBAY,
the nature of the grant, and that we could not, therefore,
decide that the allowance was one made -in perpetuity. But
I think that the case, as allowed by Mr. White, must be de-
termined on the construction of the documents, and the ad-
mitted acts of the parties ; and having most carefully consi-
dered both these points, I can come to no other conclusion
but that there is strong evidence that a sanad had been
granted, while the acts of the British Government in 1808
and in 1828 clearly indicate that they considered it an_heredi-
tary grant.
It may be said that the absence of the original sanad is
not accounted for; but I think in justice that a change of
government on three occasions, and the disturbed state of the
country, which is a matter of history, would alone suffice to
explain this absence ; but I may also add that I am the less
toncerned on this point from the conduct of Government
in ~efusing to produce the papers on which their decision in
1808 was based, and on which my learned brother has com-
mented.
I have not alluded to Mr. Gopalrav Hari's deposition,
No. 58, for it is after all nothing more than a rather boastful
statement that he believes he alone is the possessor of a
sa.nad for an hereditary palkhi allowance,-a statement of no
value as evidence, save in showing that such a thing may pos-
sibly exist otherwise than among that witness's muniments.
'the more I examine the case, the more certain I feel that
the plaintiff has a good case on the merits, and I, therefore,
find that he has proved his claim.
On the second point I find that there was an uninterrupted
enjoyment of this allowance for more than fifty-five years
between the date bf the confirmation of Government in
1808 and the death of Hukamatrai in 1863, without any

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 APPELLATE CIVIL JURISDICTION. 28
re-grant by Government, but, on the other hand, by a con- 1867.
tinuation of the grant as of right to Hukamatl'ai on his KAt~~~~A'YA
father's death,· and I am, therefore, unable to arrive at any HuKAMA·r.
IU'YA
other conclusion than that Hukamatrai, and in consequence 1J,
Gon. OP
the present plaintiff, has acquired a prescriptive title under Boirnu.
Reg. V. of 1827, Sec. I : and even if this were not the case,
I think, as I have above shown, that the plaintiff would be
entitled to a decree in his favour on the merits.
Under these circumstances I would reverse the District
Judge's decree, and award in favour of the plaintiff a::
claimed, with all costs ou the respondent, the Government.
Decree 1·eversed,

Stecial Appeal No, 21 of 1868. 186i-.

April 21.

THE COLLECTOR
.
of KHEDA' ••••••••••••••• Appellant•.
HARISIIANKAR TIKA!I! et al ................ Respondents.
Temple Allowa11ce-Prescription-Presumed Hereditary Grant-Reg. V.
• of 1827, Sec. l.

Where a charitable grant in connection with a temple was proved to

have been enjoyed by the incumbent, and those under whom he held in
regular succession for more thau thirty years :
It was held that the grantee had acquired a right of property in it under
Reg. V. of 1827, Sec. l. By Warden, J., independently of the origin or
nature of the grant. lly Gibbs, J., in the absence of it being shown to
have been a personal grant, and by the conduct of Government in paying
it to several generations in succession.

THIS was a Special Appeal from the decision of F. D.

Melvill, Acting Judge of the District of Ahmedubad,
in Appeal Suit No. 126 of 1865, reversing the decree of
A. Bosanquet, Senior Assistant Judge at Khe<Ja.
The plaintiff.~ brought the suit against the Collector of
Khega to recover their share in a temple allowance.
The Collector answered that the allowance was a chari.
table, and not an hereditary, grant.
The Senior Assistant Judge called on the plaintiffs to
prove that the grant to them was of an hereditary nature ;

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 24 BOMBAY HIGH COURT REPORTS,

~-1_8_6_8.__ and, being of opinion that they had not done so, or shown
OOtLF.(,'TOlt
m· KHEDA' that it was ever recognised as such by the British Govern-
1
••
H ARISHAl\"KAlt ment, threw out their claim.
TIKAll et <!I. . o A ct'mg J u d ge cons1'dere d th
Th . at there was no d ou b t
that the allowance had been enjoyed. by the descendants of
the original grantee down to a recent date, when the Govern-
ment, on the death of the plaintiff's father, ordered that his
share should .no longer ho paid. He was of opinion that the
question to be determined was, whether the Government had
now any right to stop the allowance, or, in other words,
whether the plaintiffs had not acquired a prescriptive right
to it by an enjoyment extending over more than thirty years,
and found that although the grant might have originally
been personal, as contended for by the Collector, yet that, the
plaintiff.-, having prornd a prescriptive title, the Government
had forfeited their right of resumption. He, therefore, made
a decree in favour of the plaintiffs.
The appeal was heard before W ARDF.N and Grnns, JJ.
])himjlal Matlnwada.~, for the appellant :-The allowance
•
was a personal charitable grant. 'l'here is no law, custom,
or usage having the force of law, which compels a person to
continue his charity against his will. The luw of prescription,
therefore, does not apply to the case.
[Grnns, J. :-You attempt, by the Takid of 1770, which
you produce from your own records, to show that the grant
was personal; but the 'l'akid ·shows nothing of the kind.
Supposing, however, that it was personal, can the Collector,
having given the allowance to the plaintiffs' ancestors for a
series of years far more than thirty, now refuse to continue to
give it? This cnse seems similar to that of De.~ai'. Ifolyan-
niya v. 'l.'he Government of Bombay (lt), and if so, the ruling
there may apply.]
In that case the grant of the palkhi allowance to the Desai
was made in consideration of good serYices. In this the
grant was purely charitable, and had no con,;i<lerntion what-
ever to support it.
(a) Ante, p. l.

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 APPELL.A.TE CIVIL JURISDICTION, 25
[GIBBS, J. :-The grant, which was by a former ruler, had __,,_1_8_68_.~
perhaps the consideration of religious merit.] ~~L~!<;i.~,
tl,
[WARDEN, J. :-I do not want to know either the natnre Hu1sBANuB
· · of t h e grant. W e go bac k 1or
or t h e or1gm I.'
t h1rty
. years, TIKA¥ et al.
aml find that this grant he.s been hereditarily enjoyed
without any obstruction during all that time.]
'!'here is a point of limitation which has been omitted in
the memorandum of special appeal, which I propose to raise.

[WARDEN, J, :-You are too late.]-[Grnns, J. :-You admit

it has only occurred to yon since the hearing commenced
before us: I think you are, therefore, too late.] ,

WARDEN, J. :- I think the Acting Judge was quite correct

in the view he took of the case. I am of opinion, independ-
ently of the origin and nature of the grant, that the plain-
tiffs' uninterrupted enjoyment of it for a period _of more than
thirty years has given them a right of property in it. The
Collector has no authority to stop it. I further consider that
it is too late now to permit the new point to be taken. We,
the1•efore, confirm the Acting Judge's decree.

GrnBs, J. :-In this case, under a grant from a former gov-

ernment-that of the Gaikv{uJ-a charitable allowance in con.
uection with a temple has been paid to persons in hereditary
sm;icession for a period of more than thirty years. Govern:
meut stopped it, a few years ago, and hence this suit.

'l'he Government Pleade~ refers to the grant to show.it was

purely personal, and offers a translation made by the Alien-
ation Department, which, however, curiously omits all men-
tion of the date. We have a c~py, put in by the Collector, of
the original.sanad, and from that it appears it was granted on
8 Rajjab 11 71, corresponding with A.D. 1770, and I fail to see
that it was a personal grant. The sanad is silent on that
point, but the condttct of the Government in paying it from
generation to generation for many more years than thirty
must militate against the view set up by the Governm~nt
Pleader.
f,-4 A 9

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 26 DOMtlAY HIGH COURT REPORT~.

1868. The case is very similar to the one I alluded to in the

OoLKLECTO~
OF REDA
course
'
of the arg~ment, and I think that Reg. V. of 1827,
i•. Sec. I applies;and the District Judge was, therefore, correct
HARISHANKAR J
T1ux et «t in the decision he arrived at.

PER CuRIAM :-The Court eonfirm the clecree of the District

Court with eosts.
Dec1·tie cmifi1'111ed.

Jan. 9. Specia,l Appeal No. 48iJ of 1866.

bin SHESHA'rr.{ NA'DNJ' ...... ... Appellant.

PAYA1 PPA1
DHONDO NA'RA'YA:-r DA':m,i~ ........ . ...... ... Respondent.
. .
Reg. XVJII. of 1831-Act Ill. of 186:-! (Bombay}-J11risclictio11.

A suit was instituted in a court, which at the date of the filing of such
suit was in a Non-Regulation District, to recover possession of a piece of
land situate in a village then within the jurisdiction of that court; when
the Regulations were introduced, the Regulation Court, which succeeded
the said cou\'t, was pliu'ed in a district different from that to which the
said village was annexed,
Held that the village in. which the suit arose having been transferred to
a district different from that which included the court which had suc-
ceeded the Non-Regulation Court, this last-named court had 'no jurisdic-
tion to try and determine the suit. •
Held, also, tlrnt an appeal to a Judge of one district from a decree of
a subordinate court in another district, when such an appeal was permis-
• sible, was not an appeal which coultl be referred by the District Judge
for trial to a Principal ~adr Amin untler Reg. XVIII. of 1831, Sec. 3.
Qumre-When a district, or pa1·ticular portion of a district, is for the
first time brought under the Regulations, can the Regulation Court, which
is established in the territory where a Non-Regulation Court previou~ly
existed, continue the trial of suits instituted in the Non-Regulation Court,
if no provision have been made in the Act by which the Regulations
became operntive in the said territory, for the continuance of the trial of
such suits by tl1e said Regulation Court.

THIS was a Special Appeal from the decision of Rav BaMt-

dur Tirmalrav Vyankatesh, Principal f;ladr Amin in
the District of Dhurwfir, in Appeal Suit No. 44 of 1864 on
the file of the Dharwar Judge's Court, confirming the decree
of the Munsif of Tasgu~.
l'he appeal was heard before TucKER and GrnBs, JJ,

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 Al'PELLA'l'E CIVIL JURISDICTION, 27
Shant/mfoi Narayti~i and Dhirajlal Jiathw·adas for the ~-1_s_os___._
PAYA'PPA'
appellant. s. N.\'oNx'
'l'he facts of the case sufficiently appear from the following DHoN:o N.
judgment :- DA'llLE.

TucKER, J. :-'l'he plaintiff sued as the khatedar, or regis-

tered holder, of a particular field in the village of Jughal,
'l'[tluka Athni, to recover the said field from the defendant,
whom he alleged to be his tenant, but who refused to givo
up the field.
The defenuant denied that he was a tenant of the plaintiff,
or that the plaintiff had ever let this field to him. He further
asserted that the land was his 1nirasi land, and that he and
his ancestors had always paid the Government assessment.
That when the village of Jughal was held by the Kagvagkar
family, the plaintiff was Kam[tvisdur of the village, and the
assessment of the field was assigned to him as remuneration
for his office, and, therefore, the field appeared in his name
in the village books; but that he (the plaintiff) never had any
proprietary right in the field, but was merely an assignee of
the Government assessment, and on the village lapsing to
the Br~tish Government, and the cessation of his office,
the plaintiff had no claim whatsoever on the land.
The Munsif at Tasgu~ (Hanmantrav Subaji), on the 31st
of December 1865, decided that the land was entered iu
. the plaintiff's name in the Government books, and that it was
established that the defendant's family had for a long time
paid rent for the land to .the plaintiff. He, therefore, de-
creed that the defendant should restore the land to the
plaintiff.
The Principal ~adr Amfn of Belga~ (Tirmalra.v Vyanka-
t,esh) affirmed this decree, as he found it proved that the
land belonged to the plaintiff, and that •the defendant was
the plaintiff's tenant.
In special appeal it has been contended (1) that the Prin-
cipal ~adr Amfo had no jurisdiction to try the appeal, as,
under Reg. XVIII. of 1831, the District Judge had no power
to refer this appeal for trial to the Principal ~dr Amin, as

D1g1tized by Google
 28 BOMBAY nron COURT REPORTS.

_ _it was not an appeal from a decree made by a Munsif with-

_:1:..:.868.:.:.:..·

JAJ::;;~, in the district; (2) that the Munsif at Tasga~had no juris-

Duo:o N. diction to make the decree, as the suit had been filed when
DA'.MLE, the Tasga~ court was a court in a Non-Regulation Pro-
vince, and it could not be proceeded with afterwards in a
court established under the Regulations, there having been
no provision in Act III. of 1863 which authorised the courts
in the Regulation Districts to continue the trial of the suits
which were pending in the Non-Regulation Court previously
existing.
The history of the litigation i~ this case is as follows :-

'.rhe suit was instituted in a court at Tasga~, which at

the time formed a portion of certain territory in the South-
ern Maratha Country, which was not then under the Regula-
tions. By ActIII. of1863 (Bombay) the province of Sataru,
as well as this territory, was brought under the Regulations;
and by a proclamation in the Government Gazette, dated the
10th of June 1863, the taluka of Tasga~ was included in the
Saitara collectoratc, and the court of the Munsif established
there beca1ne a court in tlte Satara. district. By a pro-
clamation dated 26th August 1863, the village of Jughal,
in which the land which forms the subject of this action
was situate, was annexed to the district of Dharwar, and
consequently ceased to be within the jurisdiction of any
court in the Satara district. Notwithstanding this change
in the distribution of territory, the Munsif at Tasga~
proceeded to dispose of this suit, which he decided on the
31st of December 1863; and an appeal from this decision
was made to the District Judge .at Dharwar, who referred it
for determination to the Principal ~adr Amin, at Dharwar,
from whose decree the present special appeal has been made.
We are of opinion that, under any circumstances, this was
not an appeal which could be referred by the District Judge
for trial by a Principal ~adr Amin. Sec. 3 of Reg. XVIII.
of 1831 only authorises the Zilla Judge to refer to Native
Judges, or Principal ~adr Amins, appeals from decisions
made in any pa1·t of the Zilla by principal or junior Native

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 APPELLATE CIVIL JURISDICTION, 29
Commissioners, i.e. by ~adr A.mins and Muns ifs; and the ....,.._1_s_68_._
decree m ' thi s suit,
' havmg
' been made by a Munsif sitting in PA'YA PPA'
s. NA'om'
1

another district, could not, under this Regulation, be sent "·

DHONDO N.
to a Principal ~adr Amin for disposal. },urther, we are of DA'MLE.
opinion that it was not competent to the subordinate court
at Tasga~, after it had been included in the Satara,dis-
trict, to determine a question of the right to land situate in
a village which had been annexed to the Dharwar district ;
and that, coui:;eqnently, the decrees passed in this case by
both the lower courts are equally without jurisdiction. We
must, thE)refore, annul the decrees of both the lower courts;
and as it is not clear that any com·t uow existing in
the Dharwur district ii:! competent to continue the hearing
of a suit which commenced iu a Non-Regulation Court, a,nd
was pending when the village out of which the suit arose
was brought under the Regulations, we consider that the
best thing, which can be done for the plaintiff, will be to
permit him to withdraw from the suit, with liberty to bring
a fresh action to recover this land. The plaintiff is not
represented iu special appeal, so t1iat we must remand tho
appeal to the lo'Jer appellate court, with a direction that the
suit be remitted to the court in which the trial took place,
with a direction that the plaintiff be allowed to withdraw
from the suit, with. permission to bring a new action, under
Sec. 97 of the Code of Civil Procedure. We m&y remark that
neither of the lower courts appears to have entered upon
the substantial question raised by the defence, namely, that
the plaintiff was never the holder of the land under the
Stale, but had simply obtained an assignment of the assess-
ment payable by the defendant to the ruliug power as remu-
neration for the office which he held in the village under the
jahagirdar of Kagvac;i. Under the circumstances, it appea1;s
just that each party should bear his own costs in all courts.

Grnas, J. :-I concm·.

Decrees of both tltc luu'c1• courts ctnimlled.

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 30 llOltllAY HIGH <.:OURT .REPORT!:!,

1868. Special Appeal No. 219 of 1866.

Jan. 10.

et al., heirs of Bapu Ka.mble ... ..•Appellants.

:\
1V
Vl~'HU

Ir ' ..o NA'

RA'YAN
. D' · ...... -...... ...... ... Respondent .
A DHULKAlt

Procedure-Splitting up of Claims-Act VIII. of 1859, Sees. 2, i, and

350-Errors wltich do not ajj'ect merits.

A Hindu whose shnre i11 au ancestral estate had been alienated bv a co•
proprietor, instituted sju;iultaneously three different actions against.the co·
pro1Jrietor, and the persons to wl~c;m the ailenaH~;l~ lmcl respectively been
made, to recoYer seYernl distinct parcels ofland which constituted his share.
lil'ld, that as the plnintiff had hut one single cause of action against
the t·o-proprietor, he ought to have hrough~ but 01:1e suit R3!-inst him, and
either included all the alienees in this suit, or brought separate actions
against the alienees for the several pieces of land in their possession, and
caused the proceedings in these suits to be stayed till the suit against the
co-proprietor was determined .
The course of proeecllll'e last indicated is the more correct course •.

I Held, furtl1er, that, as the separate suits against the co-pro11rietor were
~<l.!!.hn.t~)tnneQ!lsly, the error in splitting up the claim against him
did not affect the merits ; and accordingly the decree was affirmed.
'
THIS was a Special Appeal against the decision of W. M.
Coghlan, Acting ,Joint Judge of the Konkal). at Ratnu-
girt, in Appeal Suit No. 444 of 1864, confirming the decree
of the Munsif of Mulva1J,
'rhe case was heard before TucKER and WARDEN, JJ.
Bhairamilith ltlangcsh for the appellant
Shanta.ram Narayci,ti for the respondent.
The facts of the case sufficiently appear from the follow-
ing judgment of-

TucKER, J. :-The plaintiff, Nur{1ya1~ Dabhulkar, sueu to

recover the moiety of a f hika'f,I,, or parcel of land, at V engurl6,
in the collectorate of Ratnagirt, which thikati, he alleged,
was the joint property of himself and one PancJuraug
1X1bhulkar, and which had been alienatecl by the said
PamJurang to the deceased Bapu Kumble. The action was
brought against Pangurang D,1bhulkar, the . vendor of the

D1g1tized by Google
 APPELLATE CIVIL JURISDICTION, . 31
land) nnd the heirs of the vendee, and it is these last 1868.
persons alone w h o have ma de t h e present speciaJ appeal.
HEIRS OF
BA'PuKA'Msr.F.
1•.
Pani;iurang Dubhulkar denied that the pareel of fond, of NA'RA'1·A:s
which a moiety was claimed, had ever been the joint family D \ ' sHnBR.
property of himself and the plaintiff, or that the plaintiff had
ever had any interest in the said land; and the special
appellants pleaded that they had purchased the land in dispute
from P1foq.urang Dabhulkar in A.D. 1838; and that the plain-
tiff had no right in it, and tlmt they (the defendants) hall
spent money upon it.
The Munsif and Joint Jndge of Ratnagiri both held that
the laud in dispute was proved to have been the joint pro-
perty of the plaintiff and of PuucJurang Dabhulkar ; and that
the plaintiff was entitled to a quarter-share subject to the
mortgage made by PantJuraug's father, Ramchandra, in A, J),
1834.
In special appeal two objections have been taken to these
decisions :-{ 1) 'l'hnt the present action cannot be main-
tained under Sees. 2 and 7 of the Civil Procedure Code, as
the plaintiff had brought three other suits for partition against
Pangurang Ramchandra in 1861_; and that if he omitted
to include in those suits the portion of the joint property
now claimed, he could not now recover it by a separate action.
(2) That the present claim is barred by the law of limita-
t.ion, as Panq.urang Ramchandra purchased the field in A.D,
1830, and sold it to the other defendants, and consequently
tho defendants and Panq.urang, under whom they derive
their title, have had exclusive and adverse possession for
more than thirty years.
On the other hand, it has been contended fo; the special
respondents that the present is not a suit for partition, but
, for a declaration of the plaintiff's right to redeem a mortgage;
that different portions of the joint estate had been mort,gaged
to several persons, and so several actions to redeem the dif-
ferent parcels ofland so mortgaged had become necessary.
I am of opinion that the procedure, which has been
aHowe.cl by the lower courts iµ tpjs case, is ~ot m.. ac,

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 32 BOMBAY HIGH COURT REPORTS,

~-1_868_._ cordance with law. It would seem that the plaintiff, who
HEIRS Ol'
BA'Pi: KA'KBL claimed to be entitled by inheritance to a share in certain
11 •
NA'llA'fAX
lands which had been left in the possession of his relative,
DA BRl:LKAB Pangurang Dabhulka.r, brought, in 1861, three separate
imits simultaneously, of which this action was one, against
the said P11n~lurang, to have his right declared to his shai·c,
and to recover the said share from the different persons into
whose possession the said lands had passed either by sale or
mortgage. As it is dear tl1at he had but one cause of action
against PancJurang Dahhnlkar~ec. 7 of the Civil Procedure
Code required that he should prefer the whole of the claim
arising out of this cause of action in one suit; and it should
ha.Ye been pointed out to him that under these circumstances·
he should l1a,e sued Pun,Jurang separately, including his
whole claim against that person iu one action, and should
have applied to have the heariug of his suits against the
purchasers or mortgagees from Pfo1Jurang deferred until his
rights with reference to this last-n11med person were decided
upon; or, if ho preferred it, he could have brought one
general action against P{m~lurang nml all the persons to
whom he had assigned the lands, though, as this mode of
proceeding would have rendered the assignees liable to
larger costs than if they hacl been sued separately, the
t course first mentioned would se~m to have been the more
proper of the two. But allowing that the lower courts have
acted erroneously in permitting the plaintiff to split up
into portions the claim which he had against Punq.lll'ang, and
which arose from a single cause qf action, I consider that,
as the three suits were brought simultaneously, this was an
eiror which <lict not affect~~crit~ ·orth;-;se or the juris-
uiction of the court; and I am, therefore, of opinion that,
under Sec. 350 of the Code of Civil Procedure, it would
not be proper to interfere with the decisions of the lower
courts on this account.

With regard to the second gi·ouncl of objection, I may

observe that the lower courts lm,o found that the f hikar_i in
dispute was the joint property of the. plaintiff and of P6nq.u-
rang Dabh~lkar; and it is admittNl that the defep.dants

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 APPELL~TE CIVIL JURISDICTION, 33

arcquired possession as mortgagees in 1834, and that there was 1868.

no sale till 1838. There is nothing to show that the posses- BA'~~~,~=LE
sion of Pandurang
•
or of his father was exclusive or adverse N A ,RAv;YAN
to the plaintiff prior to the mortgage in 1834, or that there Da'BHULK.A.R,
was any possession on the part ofBapu Kamble which can be
treated as adverse to the plaintiff till 1838. The mainte-
nance of the suit is, consequently, not barred by adverse
possession for more than thirty years on the part of tho
s.pecial appellants, or of those under whom they derive, as
laas been alleged in special appeal.
I hold, therefore, that the grounds of special appeal have
failed; and the decree of the Senior Assistant Judge must
be affirmed : costs on special appellants.
WARDEN, J., concurred.
Dec1·ec affernuxl.

Refen·ed Geise.

CHUNILA' L MA' NIKLA ' LRHAI I... .. .. •• .. . • . .. • .. . . Pl ain

. t ~u.
'+I-'

MArriPATRA'v v~lad KHANDU ............... ••• Defenda.nt.

Jurisdictio•-Cause of Action-Place of Delivery.

The defendant at Parola. agreed to sell and deliver to the plaintiff cer-
tain goods, for which the plaintiff then paid in advance. ~J~e _terms of
the agreement, the goods were to be measured at Mazrod~-]j,~IS!l,
at Pad§h_a. In default of delivery it was stipulated that the value of the
-g6ods should be paid for at the market rate at Parola.
The ·goods were not delivered in pursuance of the agreement.
Held, in an action brought to re~over their value at the market rate at
I
Pa.rola, that the cause of action arose at ~-~.l't:D.i:m_m~_g_oods ou~li~ !o
have been deliv!!red.

CASESec.referred for the decision of the High Court, under

28 of .A.et XXIII. of 1861, by the Honorable G. A.
Hobart, District Judge of Khandesh.
"The plaintiff sued to recover the sum of Rs. 440, as value
of certain goods, which was alleged to be due on an agree-
ment between him and the defendant, the agreement being
that the goods should be delivered at a certain time at
v.-5 AC

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 34 BOMBAY HIGH COURT REPORTS.

__1s_os_.__ Mazrod (a), or' the value of the goods at the market ,q-alue
CIIUNILA'L
MA'NJKLA'L· of the same obtaining at Parola.'
BIIA'I
v. "The Munsif threw out the claim, on the ground that the
M~~=~!~~'v defendant was living beyond his local jurisdiction, and the
cause of action arose beyond it.
" The plaintiff appealed, urging that the cause of action
arose within the Munsif's jurisdiction, as the ·agreement for
• the performance of the contract was made at Parola, and
the payment of the price of the goods was, by the same
agreement, to be at the market rate of the same obtaining at
Parola; and that the cause of action-non-payment of price
-arose, therefore, at Parola, which was within.the Mtinsif's
local jurisdiction, and, therefore, the suit was cognisable. I
was of opinion that 'Mazrod' appeared, from the words of
the agreement, to be the place where the goods were to be·
delivered, and where in default of their delivery the price
was to be paid, and that clearly the place agreed· upon for
the performance of a contract is the place where the cause
of action on breach of such contract must be held to arise, so
as to bring the case within the Munsif's local jurisdiction.
The defendant wae,. on.the face of the plaint, non-resident
within the M~nsif's local jurisdiction; therefore, I affirmed
the Munsif's decision.
"The plaintiff's (appellant's) vakil has requested me to
make my decree contingent on the opinion of the High
Court on a case submitted on the ground urged in appeal
for holding the Munsif's jurisdiction complete.
" I do not see any reason fo:r thinking that the facts of the
agreement being made at Paro16, and of the market value of
the goods at Parola being the price agreed on to be paid,
make it appear that the cause of action arose at Parola ; but
I think, on the tel'I)ls used in the agreement as above noted,
Borne doubt, from the ambiguity of expressfon, arises, whether
payment was not expected to be made at Parola, Parola
being the village where the plaintiff resided, and it being rea-
(a) The District Judge was here in error. The exact words of the agree-
ment were that the goods were to be measured at Mazrod and delivered
nt Paclsha, or, 011 failure, their value was to be paid at the market rate at
Pal'ola. He t;tated the agreement as one for delivery at Mazrod.

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 APP:BLLATE CIVIL JURISDICTION, 35

sona.ble to expect that a debtor should find out his creditor, --=-18_68_·__,..-
. CHVNILA'L
unless any particular place were agreed on for payment to MA'NIKLA'i:..
be made ilhere." BIIA'1
i:.

PE& Cu&Wl (CoucH, C.J., and NEWTON, J.) :-The Judge Mtr_i;:::~:'v
is to be informed that the cause of action arose at Padsha,
and the Judge's attention is to be called to the erroneous
statement regarding the contract in his statement of the case.

)
He recites the agreement as for a delivery at Yazrod, where-
as from the agreement itself, which has been sent up to the
Court, the Court finds that the contra.et is for measurement
at Mazrod and delivery at Padsha.
Note.-As to the meaning of the wonls "Cause of action," and where it
may be said to arise, see DeSouta v. Coks, 3 Mad. H. C. Rep. 384
(decided 21st Jan. 1868).-Eo.

Referred Case. Jan. 28.

RA'MKRISHNA MAHA'DEV •••••• ..••.••.••.••.• Pla-intfff.

BAYA'JI' biii SANTA'Ji' et al . ......... ...... Defendants.
Limitation-Instalments-Bond-Waiver-A.et XIV. of 1859, Sec. 1.
Suit upon a bond executed by the defendants to the plaintilf for the
payment of a sum of money by instalments. The bond contained a pro-
viso that on llefault being made in the payment of any one instalment the
whole amount shoul<l become due .
.Default was made in the payment of several instalments, but subse-
quently payments were made by the defendants and accepted by the
plaintiff 011 account of the unpaid instalments.
The defendants pleaded the law of limitation. The suit was brought
more than three years after the first default in payment of an instalment
had been made, but within three years from the time when, taking into
account the payments that had been made, the first instalment claimed
became due.
Held that these payments as regards both parties must be considered as
if made at the time fixed; that . the defendants could not rely upon the
stipulation as making the whole debt due, and fixing the period from which
the time of limitation ran ; and that, the .first of the instalments claimed
having become due within three years, the suit was not barred.

CASE referred for the decision of the High Court, under

Sec. 22 of .A.et XI. of 1865, by Janardan Vasudevji,
Judge of the Small Cause Court at PuQa.
" The plaintiff sues the defendants for the payment of
Rs. 99-6-6 on n bond for Rs. 95, dat£d the 3rd of Angust

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 36 BOMBAY HIGH COURT REPORTS,

1868. 1864, payable by daily instalments of four annas each, with

H.A'!IIKRISHNA
MAHA'DEv
•
a proviso, t hat on de£ault b emg
• mad e m
• the payment of one
BA~A'n' instalment the whole debt should be paid at once.·
SANTA'JI'
et a/.. "The following are the particulars of this claim:-
" Principal Rs. 95, Interest Rs. 48-12=Rs. 143-12-0;
Paid Rs. 44-6-6, Balance Rs. 99-6-6.
"All the defendants enter appearances, and put in differ-
ent pleas. One of them, the defendant No. I, pleads the
law of limitation. He contends that the payments given
credit for by the plaintiff were not made as each instalment
became due; that his. (the plaintiff's) right of action accrued
from the first default, which took place on the 6th of August
1864; and that, reckoning the period of limitation from that
date, the claim is beyond three years, and is, therefore,
barred.
"The plaintiff admits that the payments were not made
regularly as each instalment became due, but that each of
these payments was made after several had remained un-
paid, and without reference to the amount of those instal-
ments. He nevertheless contends that those p!l.yments were
accepted by him to meet the convenience of the defendants,
and are sufficient to cover instalments which wiH pring the
claim within the law of limitation. In support of his argu-
ment the plaintiff cites 5 Cale. W. Rep., Civ. R. 45."
PER CuRJAM (Coucn, C.J., and NEWTON, J.) :-The Court
is of opinion that although the instalments were not paid ty
the defendants at the times fixed for payment, yet the
defondants having paid the money on account of them, and
the plaintiff having accepted it, the payments must be
considered, as regards both parties, as if made at the times
fixed ; and the plaintiff cannot take advantage of the stipu-
lation that the whole sum should become due on failure to
pay any instalment, or the defendants rely upon it as
making the whole debt due, and fixing the period from
which the time oflimitation ran. The first of the instalments
claimed having become due within three years, the suit is
not barred.

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 APPELLATE CIVIL JURISDICTION. 37

Ileferred Gase. 1868.

Jan. 29.
JA'FAR ALI' N1zA'M ALI' v. AHMED ALI'
IMA'M iIA'IDARBAKSH.

Muhammadan Law-Agreement-Consideration-Relationship-Parol
· Etmltnce.
By Muhammadan law an agreement to pay an annuity, though signed
and registered, has not the effect of a deed in English law, but requires a
consideration to support it.
The relationship existing between cousins is not a sufficient consideration
to support such an agreement.
Parol evidence is inadmissible to show that in an agreement to pay an
annuity there was a consideration for the granting of the annuity different
from that expressed in the agreement.

QUESTIONS and case referred for the decision of the

High Court, under Sec. 22 of Act XI. of 1865, by
Gopalrav Harl Deshmukh, ,Tudge of the Court of Small
Causes at Ahmedabad : -
" I. Whether or not the agreement, a copy of which is
annexed for perusal, has the same legal efficacy as a deed in
English law, i.e., there is no necessity for receiving proof of
consideration.
" II. Whether or not the relationship mentioned is a
su:fficient consideration.
" III. If not, whether parol evidence can be admitted to
. .

show that there was some other consideration not expressed

in this agreement.
" 2. The plaintiff has brought an action against the de-
fendant on an agreement in which the defendant promises
to pay the plaintiff Rs. 12 per annum for his maintenance,
because he is a cousin of the defendant. It .is stated that
this annuity was to be paid hereditarily from a larger amount
of Rs. 200, which the defendant draws from the Nawab of
Baroda, and should this source fail, from other means. The
defendant, who is the Mutavalli of the celebrated Roza of
Shah A1lam, enjoys a yearly income of Rs. 10,000 from
lands and cash allowances.

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 38 BOllBAY HIGH COURT REPORTS,

1868. " 3. The defendant admits the execution of the agree-

J.a.'.rA&ALI'
v. . ment, but pleads want of consideration. He states that the
AHMED Au'. plaintiff has no right to any portion of the amount of

Rs. 200 which he draws, and the distant relationship .is not
a sufficient consideration.
" 4. The plaintiff replies that the consideration of re-
lationship is good and sufficient, and even if it were not so,
he can produce other evidence to show that the agreement
was founded upon consideration other than that expressed
in the said agreement.
"The agreement is written upon stamped paper, and bears
the defendant's signature, and, among other attestations,
the Kazi's seal, and is registered, though not in the presence
of the defendant, because the law which prevailed at the
time did not require it. * * *
"The plaintiff cites in support of his case: "Manual of
the Law of Evidence for India," Ch. V., para. 19; Norton on
Evidence, p. 47, Sec. 94; Annagnmbala Ohetti v. Krish'l}a-
svcimi Nayakkan (a), Dada Honaji v. Bcibaji Jagushet (b).
" The defendant has applied to me to refer the above
questions to the High Court, and, notwithstanding the au-
thorities quoted by the plaintiff, which are not all in point, I
do not think that these questions can be considered as settled,
though my opinion on them is that the agreement of the
nature produced in this case has the efficacy of a sealed
deed, and that the relationship spoken of in it is sufficie:g.t
consideration, and that the parol evidence which the plaintiff
offers cannot be taken."
The material portion of the agreement alluded to above
was as follows : -
" You and I. are cousins, the descendants of Shah .A.1ani.
I am in receipt of an annual allowance from the Nawab of
Baroda. Out of this I ,vill go on paying you Rs. 12 every
year. I and my descen_d ants' will continue to pay as long
as there shall exist a descendant of yours. And even if I do
not get the allowance from the Nawab of Baroda, I will still
(a) 1 Ma<l. H. C. Rep. 457, (b) 2 Born. II. C. Rep. 38.

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 .APPELLATE CIVIL JURISDICTION, 89
go on paying the said sum of Rs. 12 every year. · In con- __1_8_68_._
s1'derat•10n of your bemg
• my cousin, I have given this dom1- JA'FAR ALI'
v.
ment to you for your maintenance." AHuD AL1',

Dhirajlal Matlwtradas for the plaintift'.

Marriott (with him A'tmaram Jagannuth) for tho de-
fendant.
The following authorities were citod in the course of the
argument:-
Taylor on Ev., Sec. 1035; Gale v, Williamson, 8 M. &
W. 405; Peacoclc v. Monk, 1 Ves. Sen. 128; Norton on Ev.,
Sec. 647.
PER CuRIAM (CoucH C.J., and NEWTON, J.) :-The Court
decides, upon the first question, that the agreement has not
the same efficacy as a deed according to English law.
On the second, that the relationship mentioned in the
agreement is not a sufficient consideration.
And on the third, that evidence cannot be admitted that
there was a different consideration from that expressed in ..,
tho agreement. :}
I ,'. r'J r11:
/ :j Jan. 30.
Special Appeal No. 699 of 1867. l

DA'ou valad .ANS.AR SA'HEB ............ ...... Appellant.

BA'1aouoA' bin SHANKA.RA'PPA' •••••••••••• ••• Responden,t .

• Month-British Calendar Month-Act VIII. of 1859, Sec. 230.

The word " month" in Sec. 230 of the Code of Civil Procedure means
a month according to the English calendar. An applicant under that
liiCction has a clee.r calendar month, exclusive of the day of dispossession,
within which to prefer his application.
THIS was a. special appeal from the decision of W. Sand..
with, Acting Judge of the District of Kalagghi, in Ap.,.
peal No. 85 of 1867, reversing the decree of the Munsif of
Bijapur.
The plaintiff, Balgouda, under Sec. 230 of the Code of Civil
Procoduro, applied to recover possession of a jnif,i field, . No.
112, measuring 25 acres 34 chains, alleging that it was

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 40 BOMBAY HIGH COURT REPORTS.

1s68. entered in the name:ofBapu bin Sangambassappa, and given

DA'nu,/NsAR by the latter to him, the plaintiff, in consideration of love
BAL'ooun,1.' and affection, but that he was dispossessed of it, on the 2nd
SHANKAR•
A'PPA'. of December 1865, by the defendant, Dadu, in execution of a
decree obtained by him against the aforesaid Bapu's son
Bassangouda.
One of the objections taken by the defendant in his writ-
ten statement was, that the application of the plaintiff had
been presented to the court on the 2nd of January 1866,
after the month allowed by Sec. 230 had expired, and that,
consequently, his application should not have been received,
as it was not presented within the prescribed time.
The Munsif allowed the defendant's objection, and gave
a decree in his favour.
In appeal, the Acting District Judge held that the words
in Sec. 230, namely, '!he may apply to the Court within one
month from the date of dispossession," indicated that the day
following the dispossession was to be the commencement of
the month allowed; and, finding in favour of the plaintiff on
the merits of the case, he reversed the MUD.&if's decree, and
awarded the plaintiff's claim.
The special appeal was heard before TucK~R and
WARDEN, JJ.
Fakfrappa Lingappa and Bhairavanath ManfleBh, for the
appellant :-As the word "month" in Sec. 230 of the Code
of Civil Procedure has not been defined in any part of the
Cod~ it should, according to the Common Law of England,
be taken to mean a lunar month; and as in some sections of
the Code-for instance, in Sec. 333-it has ·been expressly
provided that the period allowed for the performance of a
particular act is to be reckoned from, and exclusive of, the
day in which another act had been done which formed the
starting-point of the term of limitation, it would be re-
sonable in construing Sec. 230, where no such provision is
made, to hold that the period of limitation includes the day
on which dispossesion takes place.
Ga?J,esh Hari Pcqvardhart for the respondent.

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 APPELLA.TB CIVIL JURISDICTION. 41

'l'ocKER, J. :-Although it has been decided in England -=-.,....1_868....,.--_

DA'DU ilSAR
that where " months" are spoken of in an Act of Parliament 11:
without the word "calendar," and nothing is added from BA'LOOUDA'
SHAN KAR•
which a clear inference can be drawn that the Legislature A. PPA'. 1

intended calendar months, it is understood that they are lunar

months (a), we are not bound to assume that it was the in-
tention of the Indian Legislature, when they used the word
"month" or "months" without prefixing any defining adjec-
tive, to mean lunar months. The rule of construction which
has been followed in England originated in old times, and its
adoption has been regretted by eminent English Judges, and
wo do not feel ourselves constrained to follow it in inter-
preting Indian Acts. The word "month" has not been
defined in the Civil Procedure Code; but in the Regulations
which were superseded by that code it had always been
interpreted to mean a calendar month. There is no indica-
tion that the Indian Legislature, when it passed Act VIII:
of 1859, intended to use the word in any other sense than
that which had been generally applied to it in India, previous
to tho passing of the Act. In the Criminal Procedure Code,
which was passed by the same Legislature, and which came .
into operation three years subsequently, we find it distinctly ·
declared: "Wherever the word" year'' or the word" month"
is used, it is to be understood that the year or month is to.
be reckoned (b) according to the British Calendar." A simi-
lar definition is to be found in the General Clauses Act of 1868
(e). From the practice which prevailed previous to 1860;
when the Civil Procedure Code came into operation, and from
the subsequent Acts of the Legislature, I think it may be
rightly inferred that their intention was to express by the term
" month" a British calendar month, and, so far as I am aware,
all Civil Courts on this side of India have adopted this inter-
pretation since the code became law. The words in Sec.
230, " he may apply to the conrt within one month from the
date of such dispossession," give to the applicant a. clear
month, computed according to the British calendar, exclu-

(a) Lacon v. Hooper, 6 Term Rep. 224.

(b) Act XXV. of 1861, Sec. 20. (c) Act I. of 1868.
V.-6 AC

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 42 BOMBAY HIGH COURT REPORTS.

=-,,--18..,..68_._ sive of the day on which ae was dispossessed, in which to

D.a.'nu :,Nsn make his application. I hold, therefore, that the District
B.a.'Looun.a.' Judge took a correct view of the law, and that his decre"
SHANKA.R- 1
.a.'PPA'. • must be confirmed, with costs on the special appellant.
WARDEN, J., concurred.
Decree confirmed.
Note.-Upon a .re(erence made by the Judge of Khandesh, in his letter
No. 893 dated the 23rd. of April 1866, submitting, under Act XXIII. of
1861, a statement of a case involving a question of law, and requesting to
be informed whether the period of limitation prescribed for a suit based
upon a bond should be computed according to the British or Mara!hi calen-
dar, the Court (CoucH, C.J., and NewToN, J.) ruled, on the 27th of
September 1865, that it should be computed according to the former.

·~-
1867. Special Appeal No. 443 of 1866.
March 5.
MANISHANKAR HARGOVAN ........•.....•..•.. • Appellant.
TRIKAM NARSI et al. . .................... ... Respondents.
Jru,aaion of Privacy by opening doors and windows-Actionable Wrong
-Usage of Gujarat-Injunction to restrain invasion of privacy.
Held, that, in accordance with the usage of Gujarat, an invasion of
privacy is an actionable wrong, and that ii. man may not open new doors
or windows in his house, or make any new apertures, or enlarge old ones, in
a way which will enable him to overlook those portions of his neighbour's
premises which are ordinarily secluded from observation, and so intrude
upon his privacy. ·
Doctrine of English Law, which has been followed by the High Court
of Madras, different.

THIS was a special appeal frol!l the decision of J. R.

Naylor, Senior Assistant Judge of Surat, at Broach, in
Appeal Suit No. 146 of 1864, reversing the decree of the
~dr Amin of Broach.
The plaintiffs sued to obtain an injunction directing the
defendant to close up certain doors and windows, which he
bad recently opened out, through which he obtained an out-
look into the plaintiff's premises.
The defendant answered that he could do whatever he
liked with his own house, and that the opening of the doors
and windows was no invasion of the plaintiffs' privacy, since

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 APPELLATE CIVIL IURISDJCTJON. 48

smaller gratings had always existed in the same positions in 1867.

w h1c • d ows were now pJac~ d•
. h the d oor an d wm MANIBHA.NliR
HaoouN

The $adr Amtn of Broach held that the defendant was at Ta~ur
liberty to make wha.t improvements he liked upon his own et 11!.
NAB.BI

premises, and that if this caused an invasion of the plain-

tiff's priracy, he might make his own arrangements to pre-
vent it.
The Assistant Judge adopted a different view, as appears
from the following extract from his judgment :- " The vakU
for the respondent ( defendant) has urged that a man has a
right to do as he likes in hie own house, and with his own
property. But a general proposition like that is only ad-
missible with the well-known reservation " Sic utere tuo ut
alienum no~ lreda,s ;" and where, as in this country, privacy
is thought a matter of such consideration, everything that
tends to lessen that privilege is pro tanto an injury, and
must be held actionable. The true test of it is, that the in-
jured party must incur the expense involved in an altera-
tion of his own premises, or of his own domestic arrange-
ments, in order to secure the same privacy that he enjoyed
before. Otherwise he must submit to the annoyance of being
constantly overlooked." He accordingly reversed the decree
of the Munsif.
At the hearing of the special appeal, the High Court sent
down the following issues to be tried by the Acting Senior
Assistant Judge:-
(1) Is the space between the houses of the plaintiff and
the defendants, upon which the new door and windows open,
a public thoroughfare, or a passage to which a large num-
ber of persons have constant access ?
(2) Did the opening of the door and windows cause an
invasion of the privacy of the plaintiff, having regard to the
fact that grated apertures previously existed ?
(3) What are the dimensions of the door and windows
complained of, and what were the dimensions of the former
grated apertures ?
The Court further remarked that, with respect to the second

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 BOMBAY HlGII OOtJRT REPORTS,

lSM. issue, the met'e enlargement of a. previously existing a.per~

MANISHANKAR
HAllOOVAN ture wouId not a 1ways a.motlll
" "t t o a.n mva.s1on
· · of pnvaoy,
· as,
11 •
T RIii.AH • if the size and position of ·the previous aperture were such

NARs1 et al. as to give an easy and complete view of the premises which
are alleged to have been in a. state of privacy, it is obvious
that no such-state of privacy existed, and that, consequently,
the extension of the opening would not amount to an inva-
sion of privacy.
The Senior Assistant J~dge, on the first issue found that
the space between the houses of the plaintiffs and the de-
fendant upon which the new door and windows opened, was
not a thoroughfare, i. e., it was only open at one end j but
that it was a narrow lane, 41 feet wide, to which the few per-
sons who had any occasion to go to and from the houses,
eleven in number, in it, had access, and that it was not
a. lane that would usually be frequented by any large num-
ber of persons, although there was nothing to prevent any
one who wished to do so from going along the lane.
The finding on the second issue was, that the opening of
the door and windows &c. did cause an invasion of the
privacy of the plaintiff.
The finding on the third issue was, that the dimensions of
the door &c. complained of were as follows : -
The door-5 ft. 7 in. high, 2 ft. 8 in. broad.
The grated apertures on either side of the door,
each-1 ft. 3 in. X 1 ft. 4 in.
Windows-(!) 5 ft. 5 in. X 2 ft. 8 in.
(2) and (3) each-3 ft. 4 in. X 2 ft.
and the dimensions of the former apertures were about one
foot high by one foot broad.
The appeal was heard before TucKER and GIBBS, JJ.
PER CuRIAK :-A series of decisions (a), extending over a
long number of years, has settled the question, that, in ac-
cordance with the usage of Gujarat, a man may not open
(a) See l Borr. 272; ibid. 422; 7 Harington 212; 9 Harington 274;
S. A. 278 of 1863.

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 APPILLATE ClVJL JURISl>ICTlOJl. 45
new doors and windows in his house, or make any new 186'1.
• .
apertures, or enlarge old ones, m a way which shall enable HuoouN
MANISHANKAK

him to over look those portions of his neighbour's premises Ta;~Ax

which are ordinarily secluded from observation, and in this Nnst et al.
manner to intrude upon that neighbour's privacy ; . and that
an invasion of privacy is an infraction of a right, for which
the person injured has a remedy at law. The rulings of the
late ~adr Court and present High Court on this point have
been founded on the long-established usage of the province,
and, though opposed to the doctrine of the English Law,
must be upheld and affirmed. The decision of the Madras
High Court, Komathi v. Gurunada Pillai (Vol. III., Part II.,
p. 141), which has been cited to show that an invasion of
privacy is not a.n actionable injury, is not an authority which
we can follow in a matter of this kind, which is governed by
the usage of the di.strict, which has been frequently declared.
The usage is not altogether singular, as a similar custom is
recognised by the law of France,
The point to be determined in these cases is, whether new
openings have been made, or old apertures · enlarged, in a
manner which will constitute a substantial invasion of priv-
ncy. In the present suit the lower appellate court has
found that the new door and windows, which the defendant
has made, do constitute a substantial invasion of the privacy
hitherto enjoyed by the plaintiff. This is a determination
of a question of fact, with which we cannot interfere ; and
this decision being good; the decree made by the Senior
Assistant Judge, that the door and windows recently made
by the defendant should be closed, was correct, and must be
affirmed, the special appellant paying all the costs of the
special appeal.
Dec-ree affirrned.

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 46 BOllBAY HIGH COURT REPORTS.

1868.
· March26. Civil Petition.
NARBBERA'M Krs.ANDA's et al . .....•... ... Petitionen:.
NAVNIDRA'M KA'sHIRA'M ••••••••••••.•• •.• Opponent.
Eittcution of Decrte-Jarisdiction-Senior Asriatant Judg-.4.pptal.
Held that a Senior Assistant Judge is not compet.ent to hear an appeal
from an order made in the execution of a decree in a case in which he is
not competent to hear an appeal from the decree itself.

Tms was an application to set aside an order made by

S. H. Phillpotts, Acting Senior Assistant Judge at
Broach, on the 11th of September 1867, in the matter of the
execution of a decree.
The petitioners and the opponent jointly obtained a decree
in the court of the ~adr Amin of Broach for Rs. 9,425 and
costs against Fattesa.ngji Jasvantsangji.
In execution of this decree a sum of Rs. 10,593-5-3 was
paid by the defendant Fattesangji, and this amount was de-
posited in court. ·
As the other co-plaintiffs would not join the opponent,
Navnidram, in taking the money out of court, the latter ap-
plied to the f;!a.dr Amin for his one-third share of the money,
or to be paid the entire amount on his furnishing security to
repay what might be paid to him in excess of his share.
The ~adr Amin, under date the 9th of July 1867, rejected
this application, on the ground that all the plaintiffs who
applied for the decree should join in taking out the money,
as there was no order in the decree for paying it in separate
shares.
Against this order the opponent, Navnidram, appealed to
the Senior Assistant Judge at Broach. It was objected
before the Senior Assistant Judge that he bad no jurisdic-
tion to entertain the appeal; but he overruled this objection,
on the ground that the opponent, Navnidram, desired in
appeal to get Rs. 3,531-1-9 only, being his one-third share
of the amount of the decree; that although he had sought in
the lower court to get the whole of the amount recovered
under the decree, yet the amount in dispute in appeal was

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 APP.ELLA.TE CIYIL JUBISD!CTION, 47

under Rs. 5,000; that, therefore, he must be presumed to -=--1868_.----,._

NARBHBIU. JI 1
have given up the other part of the money, and that, conse- KtsillDA's
quently, under Sec. 7 of Act VIII. of 1859, the court had et:.i.
jurisdiction to hear the appeal. He directed that one-third NAvNmJU.'ll
KA'su1aA'K,
of the money deposited should be pa.id to the opponent,
Navnidram, as his share.
The case was heard before NEWTON, Acting C.J., and
TUCKER, J.
Shantaram Narayati, for the petitioners :-An appeal in
this case does not lie to the Senior Assistant Judge, but to
the Judge of the District. By Cl. 5 of Sec. xxvm. of Reg. II.
of 1827, the Original jurisdiction of a Senior Assistant Judge
is limited to five thousand rupees; and Sec. 4 of Reg. I. of
1830 provides that the jurisdiction of a Senior Assistant
Judge, in cases of appeals from the decision of a Native
Commissioner, shall not exceed five thousand rupees. In
this case the original claim was for more than nine thousand
rupees, and the whole amount was recovered under the
decree. There can be no distinction between appeals in re-
gular suits and in miscellaneous matters.
Nanabhai Haridas, for the opponent, Navnidram :-The
Senior Assistant Judge had jurisdiction to hear this appeal,
since the matter of the appeal, and what was ordered to be
paid to Navnidram, was his one-third share only, and
the decree, as far as he was concerned, was not capable of
being executed to a larger extent.
PER CuRIAM :-We are of opinion that the order passed
by the Senior Assistant Judge, under date the 11 th of Sep-
tember 1867, has been made without jurisdiction. The decree
itself was not appealable to his court, and consequently
his was not the court to which an appeal from any order
passed in execution of that decree should have been made.
The pecuniary value of the particular matter decided by
the order in execution is immaterial. The value of the
• original suit should have determined the court to which the
appeal would lie, which in this case was the court of the
District Judge of St1rat.
Or<ler reversed.

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48 BO)(B.U HIGH COURT REPORTS,

1868. Special Appeal No. 523 of 1867.

:Y:a.roh 30.

BHULA1BHA'J GuLLA1 BHA1I et al . .......... .. Appellants.

MoDJI DEsA'LJI et al. .. ................... Respondents ..
Copy of a Copy-Evidence.
A certified copy of a document deposited in a public office, which docu-
ment is itself a copy, is admissible as secondary evidence where the absence
Qf the original is duly accounted for.

SPECIAL Appeal from the decision of S. H. Phillpotts,

Acting Senior Assistant Judge of Khega, in Appeal
Suit No. 16 of 1867, confirming the decree of the Munsif of
Khega.
This suit was instituted by the heirs of Jethsanji Mansang,
to recover, on payment of such sum as might be found due,
possession of a field, alleged to have been mortgaged, for
Rs. 61, to the defendants' ancestors.
The Munsif awarded the claim, and his decision was con-
firmed by the Senior .Assistant Judge, who recorded the
following finding : -
" As the field in question was mortgaged between fifty
and sixty years ago, it is almost impossible for the mort-
gagor's representatives to produce direct proof of the trans-
action, as it is contrary to the law of nature that any of the
parties or witnesses to the deed should be alive ; hence the
original and almost only proof must be in the hands of the
mortgagees (defendants), who are of course interested in
denying the _fact of the mortgage, and do deny it, though a
notice wa~ served on them to produce the mortgage deed.
Hence, secondary proof must be accepted, which is produced
by the plaintiffs, the representatives of the mortgagor, in
this case. It appears that in Sa:nivat 1879 (A.D. 1813), ten
years after the mortgage had taken place, copies were
made, by order of Government, of all deeds connected with
•
girasias' holdings, and that the mortgage deed in ·question
was produced and copied : a copy of this, attested as a true
copy by Mr. .Richey, Settlement Commissioner, in whose

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 E.u I . , -< 1 ( , J ]/ lt.:ilullijiy
Ba/ r -o t Law,
II APPBLLATB -CIVIL 1UBJSDICTION, Lah0T6a 49

charge the books are, is recorded in this case, and as the __1_868_._
court has no k nowIedge of where Mr. Richey, in whose charge GuLLA'BHA'i
BHULA'BHA'I

the original is, may be, it must be assumed a prinn4 jMie true et al.
copy. This document being admitted, clearly proves that Monn "· DIC,
' BA Lll 1

the land was mortgaged in Samva.t 1879 (A. D. 1813) by one et aZ.
Jethsangji Mansa.ngji to the defendants' ancestors, Sambhu-
das and Kasa.ndas, for Rs. 61."
The case ea.me on for hearing before NEWTON, Acting C.J.,
and GrnBs, J.
Shantaram Nar&ya'!-, for the appellants :-The objection
t.o the lower court's finding is, that it has based its decision
upon a copy of& copy. [GIBBS, J. :-The Privy Coun~il have
decided the point.] ·
In the case referred t.o, irnw.e Ilajaka Ba1uulur v. Pemma-
aamy Naidoo (a), the Privy Council have ruled that where
the practice of the court is to receive such copies, their Lord-
ships would not reject the copy from evidence; but it is
not shown here that the practice of our courts is to receive
such copies in evidence. Moreover, there is nothing to show
that the copy,· from which this copy was made, was sworn
to, and was a. correct copy of the original.
It has been often r11led by this court that it should be
shown, when a copy is received as secondary evidence, that
such copy had been examined. If such strictness is insisted
upon in respect of the first copy, how much more should
it be required in regard to the second. In the case of Mu-
hammed valad .Abdul Mulna v. Ibraham valad Ha.san and
others (b), where it was found that a, copy from the register
was received in evidence, the rule requiring the original to
be accounted for, before the receipt of secondary evidence,
was applied, though the copy had been ta.ken from a regis-
ter kept by a public officer.
Nanabha.i Haridas for the respondent.
. PER CuRiil{ :-The rule in regard to the admission of
~econdary evidence would have applied to_ the copy in this
(a) 7 Moo. Ind. App-. 128. (b) 3_ Bom. H. C. Rep., A.C.J. 160.
V,-7 AC

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 50 BOXBAY HIGH; COURT REPORTS.

~:~==~;~
1868.

et ai.
11,
case, had the absence of the original not been accounted for;
but here the Judge states that the original i~ in the possession
of the appellants. _ The objection taken in the .memorandnm
Monn DB· of special appeal is apparently directed to the absolute inad-
u.'L11
et al. missibility of a copy of a. copy ; but this has been somewhat
amplified and varied in the course of the argument. We do
not find, however, that any error in law has been committed
by the lower court, since we are not aware of any law or
practice binding on the courts in the Mofussil which pro-
hibits the reception by them of a copy of a copy in evi-
dence.
The judgment of the Privy Council is a sufficient prece-
dent for our decision, that there is no objection to receive in
evidence a copy coming out of a public office, and duly cer-
tified as a copy of a oopy deposited there.
We affirm the lower court's decree with costs.
Decree affirmed.

March Sl. Special .Appeal !fo. 693 of 1867.

AMRITRA'v bin YEBRVANTRA'v DEBHMUKH ••• Appellant.
A.NYA'BA' bin ABA'JI DEsHMUKH ...... ...... Respondent.
Limitation!._Riglit to ,hare in a Watan-Acknowledgment ia Writing-'-
Act XIV. of 1859, Sec. I., Cl. 13, and Sec. IV.
Anacknowledgment in writing, signed by the defendant, or the person
through whom he claims, of the right of the plaintiff to share in a watan,
is not sufficient to revive the period of limitation contained in Act XIV. of
1859, Sec. I,, Cl. 13, so as to give a new starting-point from the date of
such acknowledgment ; under that clause, there must be a payment on
account of the alleged share by the person in possession of, or having the
management of, the watan: and Sec. IV. is not applicable to such a case.
\

THIS was a special appeal from the decision of A. Bosan-

quet, Acting Judge of the District of Ahmedna.gar, in
Appeal Suit No. 216 of 1867, confirming the decree of the
Munsif of Sangamner.
Anyaba brought this action against Raghoba bin Khan-
<}.oji, Amritrav bin Yeshvantrav, and Vithoba bin Ramba, to
recover a half-aha.re in the proceeds of ten villages, and a.

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 APPELLATE CIVIL JUBISDICTIOlf. 51

half-share in certain inam lands, representing that he and 1868.

• ilBITa.t.'v Y.
the defendants were co-equal sharers m the office of Desh- Di:snKUur
mulch of A'kola ; that the defendants, being members of the .bu~~' A.
elder branch of the family, had been performing the duties of Dssn11uJ1.
Deehmukh, and drawing the allowance thereof, after deduct-
ing the expenses of the establishment ; that a field in which
ihe family had an hereditary right of occupancy was allotted
to him, the plaintiff, as his share, and that the rent of it was
paid by the defendants ; that since the Summary ~ettlement,
in 1862, the defendants ha.d been allowed the procee&i of the
village and the inam without performing the duties apper-
taining to the office of Deshmukh ; that they refused to
share the amount with the plaintiff', and had not paid his
share fur the years 1862-63 and 1863-64; and that the suit
was, therefore, brought to establish hie claim, and to recover
hie share of the land and allowances.
The defendants Raghoba and Amritrav denied the right
of the plaintiff' to recover, a.nd alleged that there had been
a separation of their family from the plaintiff's family
sixty years ago, a.nd that Khan~oji, the father of the first
defendant, Raghoba, had acquired the estate after such
separation ; that the plaintiff had never exercised any right
over the estate ; that he had been a sub-sharer, but never
drew any of the allowances of the office since the days of tha
·Peshva; that their (the defendants') names alone had been
on the record ; that their ancestors allowed one field, which
was in the defendants' names, for the maintenance of the
plaintiff', who paid the rent to the defendants, and they paid
it to Government; and that upon his omitting to pay the
rent the plaintiff' relinquished it.
The third defendant, Viinoba, admitted that the plaintiff
was a, co-sharer, and consented to allow him one-half of all the
in.am lands and other emoluments.
The Munsif, Hari Ga.ngadhar, rejected the claim, on the
ground that the plaintiff' had never obtained any portion of
the emoluments, or of &ny of the iicam land of the Deshmukh's
estate, except one field, which he cultivated as a tenant, and
not as a proprietor.

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 52 JIOJlBAY HIGH COURT REPORTS;

1868. . ·In Appeal No. 130 of-1866, the Jadge, A. Richardson,'

AxlllTJlA 'v Y.
DEBHIIUI.H fonnd that the plaintiff · ~as the proprietor of half of the ,
11. emoluments and of ha.If the inam lands pertaining to the
ANYA'BA. A.
1

DEBHIIUltB, office and estate of Deshmukh of A'kola, but that the evi-

dence did not show that the plaintiff' had ever held the said
half of the lands, or· drawn half of the emoluments of the
office and estate of Deshmukh;
There was, however, an exhibit (No. 5) in the case, which
consisted of a deposition, given on solemn affirmation before
the Mamlatdar, by Yeshvantrav, the father of the defendant,
Amritrav, and which wa.s a.s follows : -
" The Deshmukhi wat01ti, consisting of ten of the villages
in the Turf Rudanv{uµ, forms one takshim or share, and
there is but one family passing by the surname ofMalonka.r.
The elder branch is that of Savdoji Deshmukh, and the
younger that of Abaji. Savdoji Deshmukh, my grandfather,
held the office for many years under (the) Government.
Subsequently; however, Raghoji, my father, having declined
to take up the office, the kluzta was not ·continued in his
name, but then it ea.me to be in my name after the resigna~
tion of office by Savdoji, and I wa.s appointed, before the
Act came into operation, to the office, without a.ny restriction
as to its tenure. I have thus held the office up to the
present time. I name my son Amritrav for the office, as I
am unable to hold it myself, owing to my having run
into
debt, and trust that he will be appointed accordingly.
Anyaba Deshmukh, the sub-sharer to the extent of eight
annas (in the rupee), has also consented to the arrangement.
NarayaJ}. alone is against it at present. This is given in
writing. Dated 1st August 1857.
Da.stur of Va.man Babaji Karkun. · Signature ofYeshvant-
rav bin Raghoji Deshmukh, in his own handwriting."
The Judge was ·or opinion that this deposition was evi-
dence of admission by · the defendants, and that it, being
dated the 1st of September 1857, would remove the bar
unde:i; the statute of limitation. He, therefore, remanded the
case to enable the parties to prove, by production of the

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 A.PPBLLATE CIVIL lUBIBDICTlON. 53
receipts for five past years, what were the average amounts 1868.
of each item of income due or payable to the Deshmukhs. ~~=~I.!·
1/.
The Munsif thereupon decreed for the plaintiff as to the .bu'11.&.' A..
half-share of the Deshmukh's emoluments claimed, amount- DnuKuu.
ing to Rs. 183-2-9, and also as to the future payment by the
defendants of half of the' Deshmukh's emoluments to the
plaintiff; but he decreed for the defendants as to the share
of the inam field claimed : and this decision of the Munsif
was, on appee.l, confirmed by the Acting Judge.
The case came on for hearing this day, before NEWTON,
Acting C.J., and GIBBS, J.
Bhairavan/J.th jfp,ngeslt (with him Dhirajlal Mat1uw6daa),
for the appellant :-The Judge has applied Seo. 4 of the
Limitation Act to this case ; but that section provides only
for the cases of debts and legacies, whereas this suit is to
recover a aha.re in family property. To meet the cases of
mortgage, deposit, &c., a specie.I provision is made by Cl. 15,
Sec. I. of the Act, which requires an acknowledgment in
writing of the title of the mortgagor, &c. In the same way
a specie.I provision is made in Cl. 13 of the same section
for cases like the present one, and nothing less than pay-
ment by the person in actual possession or management, on
account of the alleged share within twelve years preceding
the suit, will satisfy its provisions. Even if the admission
here be held sufficient to satisfy Sec. 1., Cl. 13, it will bind
Yeshvantrav's son Amritrav only. Besides, it was made to
the Mamlatdar, and not to the person who seeks to avail
himself of it. The Ce.lcutte. High Court have held that
admission under Sec. 4 must not be to a third party (a).
Sluint&ram, NarayatJ, for the respondent :~The exhibit
No. 5 is more than an admission. The property in dispute
is service watan, and our right to the enjoyment of a share
in it is acknowledged. There is possession here. This court
has held that residence in the family house is an enjoyment,
under Cl. 13. The present claim is for money received by
the opposite p1uty, and the admission No. 5 will be binding
(a) Hyde's Reports, p. 14.

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 BOKBAY HIGH COURT HBl'OBTS.

1868. under Sec. 4, which is a general one for all kinds of debts.
t:1:_~;;· [NEWTON, Acting C.J. :-Sec. 7 of Reg. V. of 1827 is differ-
1

•.. ~· , A.
.AnYA.BA.
ently worded from Sec. 4 of the Limitation Act. The word
D&&BKuu. debt in Seo. 4 cannot be construed as demand in Sec. 7.]
Under the admission in No. 5, the opposite party should be
treated as a trustee. We let him in for the .first time, and he
is our trustee, and represents us. If we had objected, the
Collector would not have sanctioned the appointment. If,
th~refore, he is in possession by virtue of his office, to which
he was !!>ppointed by our consent, his tenure of holding cannot
be adverse to us. We stated in our plaint that the defendants,
being elder, have their names on the revenue records, but
that we hold one field, and the assessment on it, Rs. 43, was
paid by the defendants on our account. This is a payment,
inasmuch as we received the income directly. The Judge
has not . gone into · this matter, and has not considered
whether this was a payment on account of our share.
Bhairavanath Mangesh, in reply, cited Kaja Tevara Das v.
Richardson and others (b).
PBR CuRIAM :-The Judge has founded his decision on the
admission, No. 5, of Yeshva.ntrav, the father of the defendant
Amritrav. This admission is looked upon by the Judge as
sufficient, not only to show the plaintiff Anyaba's title, but
also to take the claim out of the law of limitation. Sup-
posing the District Judge to have considered Sec. 4 of the
Limitation Act to be applicable (as no other is suggested), we
find that that section refers to legacies and debts only ; and
we are unable to bring within its provisions an alleged
acknowledgment of a right to share in a watan, so as to
revive the period of limitation within which a. suit to estab-
lish such right may be brought.
As to whether what is stated in the exhibit No. 5 a.mounts
to an admission of trusteeship, we· are of opinion that we
cannot give any such effect to the words which have been
referred to in it. The person who gave the deposition had
his own purpose to serve, and the Court would not bo
(b) 2 Mad. H. C. Rep. 84.

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 •

APPELLATE CIVIL JURISDICTION. 55

justified in giving to a mere statement of consent on the part 1868.

of Anyaba, made under such circumstances, the force which ~:;::::u~·
would be necessary in order to found on them a cause of v.
A.MY.t.'BA' A.
action not otherwise existing. D.1:1u11u1.u.

The only question to be decided, therefore-as the case

comes under the provisions of Cl. 13, Sec. 1. of Act XIV. of
1859-is, whether the field,which the plaintiff alleges to have
been in his possession down to 1862, or thereabouts, rent-
free (the assessment due on it being paid by the defendants),
has been so held by him within twelve years preceding the
suit, as part payment of the alleged share in the tleshmukh.i
watan due to him. On this point the Judge has not re-
corded a finding, and we, therefore, reverse the decree, and
remand the case that this issue may be decided, and a new
decree passed. Costs to follow the final decision.
Decree reversed and suit remanded.

Special Appeal No. 213 of 1868. April 2.

NARSINVA1CHA 1RYA et al................... Appellants.

SvA'MI RA'YA'cHA'RYA ......... ............ Respondent.

Stamp-Varahasan-A111111al Allotl,ace-VaZ.ation-Stamp Act (X. of

1862), ScleduleA, Sec. 2, alld Act XXVI. o/1867, Schedule B, rwte (b).

In a suit for a declaration of right to an annuity (t,arshasan), it was held

that the stamp for the petition of special appeal should be regulated by
the market value of the annuity, and that "primd Jacie" ten times the
amount of the annuity may be assumed to be ita market value, as enacted
for analogous agreements by Sec. 2, Schedule A, Act X. of 1862.

JN this case the original claim was to establish the re-

spondent's right to a varsluisan or annual allowance of
Rs. 192. In both the original and appeal suits the claim
was valued at ten times the amount of one year's allowance,
but in the petition of special appeal it was estimated at the
amount of a single annual payment.
The Registrar declined to receive the petition without
an order from the Court.

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 •

56 BOMBAY HIGH COURT REPORTS.

1868. DMrajlal Mathuradas cont.ended, for the appellant, thl:\t by

c~1..~:~W:t\i. the new Stamp Act, XXVI. of 1867, "immoveable pro-
11· , perty" includes land and every benefit to arise out of land,
Sv1..'llll R1..'n. .
.cn'au. and things attached to the earth, or permanently fastened to
anything which is attached to the earth;" and "moveable
property" means "property of every description except im-
moveable property." A ·11arslz&11an or annual allowance,
therefore, is moveable property according to this Act. Cl. b
( 1) of the" Special Rules for the Bombay Presidency" given
under Cl. 11, Schedule B to Act XXVI. of 1867, does not
apply, because the suit is not for moveable property other
than money. The suit is, therefore, for money, and Cl. b (8),
under the said rules, applies to this case.

PER CuRIAM (NEWTON, Acting C.J., and TucKER, J.) :-The

present is a suit for a declaration of right to an annuity or
annual allowance, and the question which we have to deter-
mine is, what is the stamp necessary for a petition of special
appeal in such a case. The Stamp Act contains no specific
regulation for the valuation of a. claim of this description,
but the general rule for all claims whi~h are not for a specific
. sum of money is, that such claim should be estimated at the
market value of the subject-matter of the suit at the date of
filing the plaint (note [b] to Schedule B, Act XXVI. of 1867.)
In Schedule A, Cl. 2 of Act X. of 1862,. we find that the
stamp required for an agreement for an annual or periodical
payment,shall be the same as for a bond for the a.mount of
ten years' payment. In this part of the stamp law we have,
therefore, an intimation that, in the opinion of the Legisla-
ture, ten ·times the a.mount of a. particular annual payment is
a fair representation of the value of that payment, and we
think that by analogy we are entitled to assume that in the
present case ten times the value of the annuity, which forms
the subject-matter of the suit, is a fair representation of the
value of the claim until the contrary be shown. We, there-
fore, consider that the petition of special appeal required a.
stamp for a. sum equivalent to ~n times the value of the
annuity claimed, and that the Registrar wasl'ight.,in refusing
to receive the application on a lower. stamp.

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 APPELLATE CIVIL JURISDICTION. 57
The late Court of Sadr Adalat recommended the introduc- 1868.
tion of a special clau~~ in the Stamp Act, declaring that claims ~I. c:;\:::x;t
to periodical payments should be valued at ten times the i ·.
SvA'm R.\'YA.
amount of the particular payment claimed, but this recom- . c1u'au.
mendation seems to have been overlooked (vide Circular letter
No. 1706 dated the 2nd of July 1864, p. 4).
Application to be ret1~r11ed.

Special Appeal No. 38 of 1868. April 6.

K1sANDRA'M valad HmA 1 CHAND ............ : •. Appellant.

JE:HIRA'M valad MAGNIRA'M ............... ... Respondent.
Small Ca118e Court-Title to Land-Special Appeal.
Where, in a suit cognisable by a Court of Small Causes, iu order to
determine the question at issue between the parties, it w11s necessary for
the court of appeal in the first instance to determine n question of title to
land (which had been raisecl by the Munsif) : Held that n special appeal
lay to the High Court, though the court below hacl omitted to determine
aueh question of title. ·

THIS was a special appeal from the decision of J. L.

Warden, Assistant Judge at A.hmednagar, in A. ppeal Suit
No. 172 of1867, amending the decree of the Munsif' or'Sinar.
The action was brought b);. Je~hiram to prove his right to
a half-share in a crop of bazari grain, which was attached
and sold, in pursuance of a decree obtained by Kisand1am,
the first defendant, against Khanc_lu, the third defendant.
The land was bought by Bapu, tho second defendant.
The defence was, that there was no partnership between
Khanqu and tho plaintiff, and that the whole crop belonged
to Khangu.
The Munsif found for the plaintiff, on the ground that it
was proved that he bought the land in question at an auc-
tion. sale, and took Khangu into partnership to culti:vate the
• field.
. In appeal, the Assistant Judge laid down the issues for
decision
. .
to be-' 1st, Can Jethiram prove his right to half of
V,-8 AC

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 ,j8 IIO'MBAY IJIGH COURT REPORTS.

_ _
18tl8_._ the crop ; 2ndly, What was the value of the crop ; and 3rdly,
KlsANl>RA ' lil
liiu.'~HAND Supposing J e!h1ram's
• title to be goo d, J!n-om w h om ough t h e
11 • to recover. The Assistant Judge, however, did not record
JETHIRA 1.M
MAoNmA'M. a distinct finding on the first and second points raised for
decision.
'fhe case was heard this day before NEWTON, Acting C.J.,
and GIBBS, J.
Dhirajlal Mathuradas, for the respondent :-I have a.
preliminary objection to make, viz., that no special appeal
lies in this case. 'fhough the question of partnership is raised,
th.e plaint and decree show that the suit is of the nature cog-
nisable in a Court of Small Causes, under Sec. 6 of Act XI. of
is65. [NEWTON, Acting C. J. :-We have held thata. Court of
Small Causes can incidentally determine title, to ascertain
whether the amount claimed is due, but that such determina-
tion would not be binding on the Civil Courts.] The Assistant
Judge has not gone into the question of title, nor was it
necessary for him to do so. The field was cultivated on surkat,
by which the cultivator or tenant gives half of the produce to
the owner. lie1,'e the claim rests upon a lease, and if that
is proved, there is no necessity to go into the title.
Shantaram Naraya~,, for the appellant :-This suit arises
under Sec. 246 of the Code of Civil Procedure, and the ·prac-
tice is that the court before which the attachment pended
tries the suit. [NEWTON, Acting C.J. :-The suit is allowed
by the last part of the section, but the suit must be filed in the
right court. The clause merely gives a right of suit. Here
the grain was cut, and it had become moveable propertty.]
In this case the title of Khangu to the land is directly
involved, and the Assistant Judge ought to have determined
it, as he could not have found Khangu's right to the crop
without determining his title to the land itself.
PER CuRIAM :-This is not, in our opinion, a case that can
be properly treated as coming under Sec. 27 of Act XXIII.
ofl 861. The M unsif went into the question of the plaintiff's
title to the.land, and it was necessary, therefore, that the
.Assistant Judge should determine the first and second issues.

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 APPELLATE CIVIL JURISDICTION. 59
A special appeal lies, on the principle laid down in the case of 1s68.
Dikshit v. Dflu,h.i t (a) ; and we reverse the decree, and re- KtsAND1u:.1i1
• • Hnu.'cHAND
mand the case that the issues indicated may be decided. 11.

Cos ts t o ~1011ow the fi nal dec1s1on.

•. _ JETBl&A'II
M•oNia.'».

Suit remanded.
(a) 2 Bom. H. C. !up. 4.

Civil }>etition. April 8.

DIPSANGJI J ITSANGJI ........................... Petitioner.

FATI'ESANOJI JASVATSANGJI ••••••••••••••••••••• Opponent.

Pauptr Suit-Inq»iry-Cillil Proc. Code, Stcl. 305, 306.

When a pauper petition comes on for hearing, under Sec. 306 of the ·
Code of Civil Procedure, the Judge baa no power to inquire into any
other circumstance than the pauperism of the petitioner.

THIS was an application to the Court, in the exercise of its

extraordinary jurisdiction, under Cl. 2 of Sec. v. of Reg.
II. of1827.
The petitioner, Dip'Sangji, applied for permission to file
• a suit in Jonna pauperis against Jlattesangji Jasvatsangji in
the court of the Principal ~dr Amin of Surat, to establish
his right to succeed to the principality of Ahmod, and to
recover arrears of revenue &c. due to him, on the ground of
his being·the son of the late Jitsangji, and as auch entitled •
to the property left by him.
The Principal ~adr .A.mfo, after examining the application
and the petitioner, fixed the 17th of December 1867 for
receiving such evidence as the petitioner might adduce in
proof of his pauperism, and for hearing any evidence which
the defendant might wish to bring forward in disproof of it,
and served a notice upon the defendant to that effect. The
notice further stated that the court had seen no reason to
refuse the application.
The defendant accordingly appeared, and prayed the Prin-
cipal f:!adr Amfo to reject the petition, on the ground that
the petitioner had no cause of action, as his claim was barred

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 60 llOMBAY HIGH COURT REPORTS.

1868· by previous orders or decisions of the late Judge of Surat~

DIPSANGJI
.JITSANGJI as well as of the f?adr Fouzdari Adalat, which declared the
FATTE:·ANGJI petitioner to be a spurious Dipsang. The petitioner contended
JAsVATsANGJI. that, at the then stage of the proceedings, an inquiry ihto
his pauperism only could be made; and that the court could
not enter into the merits of the case.
The Principal f?adr Amfo, however, observed that though
Sec. 305 directed a notice to be issued to the defendant, re-
quiring him to appear and produce evidence in disproof of
the pauperism of th.e petit~orter, yet t1?-e following section (306)
enjoined the. ??.~:t . to. .~onsider any objections made by the
opposite party, and that, taking both the sections together,
it was clear that, besides the evidence in disproof of the
petitioner's pauperism, the opposite party was at liberty to
raise any other objections he might have to urge. ·
Under this view of the law, the Principal f?adr Amin went
into the objections raised by the defendant, and rejected the
application for permission to sue in forma pai1peris, on the
grounds that it had been found by the Ciril (a) and Criminal
Courts that the petitioner was a spurious Dipsang, and that
the real Dipsang had died in 1850-51, and that a previous
application which the petitioner had made, for permission to
sue in form& pauperis against the defendant and the Govern-
ment of Bombay, had also been rejected.
Against the order 9f the Principal f?adr Amhi, rejecting
his petition to sue in forma pauperis, the petitioner made
the present application.
The case was argued before NEWTON, Acting. C.J., and
TUCKER, J,
Marriott (with him Dhirajlal Mathuradas), for the peti-
tioner :-Upon an inquiry into the pauperism of the petitioner,
it was not competent for the court below to go into the
other objections raised by the defendant. The words "any
objections" in Sec. 306 of the Code of Civil Procedure, which
have been much relied upon by the Principal f?adr .Amfn as
giving him power to go into the merits of the case, must
{a) 9 Harington 136.

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 APPELLATE CIVIL JURISDICTION, 61

-be read in connection with the previous section (805), which 1868.
confines their meaning. The Calcutta High Court have ruled f.1:.:A::J~1
tha.i; when a case comes on for h&aring under Sec. 306, the 11•
FATl'IIIIANOJI
Judge has no power to inquire into any other circumstance JuvAtuN11.

than the pauperism of the petitioner: Shaponessa Bibee v.

Kaminee Bibee (b). The Principal f?a.dr Amfo has alluded
to an application made for permission to sue in f orma
pauperis; but that was a suit against Government and other
parties, and the Judge, finding that the suit would not lie
against Government, rejected the application.
Nanabhai Haridas, for the opponent :-If the defendant
can urge any defence which, without requiring an investiga-
tion into the merits of the case, deprives the petitioner of his
right of action, such as a plea of limitation or a former judg•
ment, he ought to bring it forward at the earliest opportu-
nity. To admit of such an inquiry as this, the words "any
objections'' are used in Sec. 306. The petitioner, as the
lower court has found, is barred by reason of certain crim-
inal proceedings taken against certain persons who set up
the petitioner as Dipsang, and who were convicted of con-
spiracy.
[TucKER, J. :-The criminal case is not binding on the
petitioner. He was then an infant. He is now of age, and
alleges that he is the real Dipsang; and he may be able to
prove it in a civil case. We have to see whether he has a
case prima facic ; and his pauperism is the principal ques-
tion. I recollect a case in which the defendant, before the
registration of the plaint, wanted to appear and urge that
the plaintiff was barred; but Mr. Justice Westropp held that
the defendant could not be heard, under Sec. 32 of the Code
of Civil Procedure.]
Marriott :-The Principal f?adr Amin having sanctioned
the prosecution of the petitioner for false personification, in
having stated in his petition that he was the real Dipsang,
and the witnesses called by him to prove his pauperism be-
ing charged with aiding and abetting, I ask for an order to
stay the proceedings.
(b) 2 Ind. Jur., N. S., p. 121.

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 62 BOMBAY HIGH COURT REPORTS.

1868. PljB CuRIAM :-Chap. V. of the Code of Civil Procedure lays

lJIPSANGJI •
JiTuNon
. Iar stages of mqmry
d own particu . . m . o.ases of pauper suits.
11 • By Sees. 303 and 304, the first two questions which the court
FATTESANJI
,1... svATllAN011. itself is required to dispose of summarily are-whether the
suit is barred or not ; and whether the allegations in the
petition constitute a sufficient cause of action : and on the
determination of these questions follows the notice to the ,
oppbsilie party to produce his evidence in disproof of pau-
perism. It is for the court to determine, from the state-
ments in the plaint and the examination of the petitioner,
whether he has a cause of action ; and there is no provision
under which the opposite party can be heard at this stage
of the case, or on this question. Subseq-qently he receives
notice, under Sec. 305, of a day fixed for the further hearing
of the case, but the inquiry is then limited to the recep-
tion and consideration of such evidence as the petitioner may
adduce in proof of his pauperism, and of any evidence which
the opposite party may bring forward in disproof of the pau-
perism of the petitioner. The words "any objections" are
indeed used in Sec. 306, but they cannot be read as intended
to extend the limits of inquiry express}~ laid down in Sec. 305.

A precedent of the High Court of Calcutta has been

quoted to us, and it agrees with the conclusion to which we
have been led, namely, that when the case comes on for hear-
ing, under Sec. 306, the Judge has no power to inquire into
any other circumstance than the pauperism of the petitioner.
We, therefore, reverse the order of the Principal f;iadr .Amin,
and remanp. the case that he may, as required by law, inquire
into the pauperism of the applicant, and, if this be estab-
lished, further proceed with the trial of the suit according
to law. We further cancel the order of the Principal f;iadr
Amin sanctioning a criminal prosecution, with an intimation
that the Principal f;ladr Amin will be at liberty to reconsider
the propriety of making a new order of this character after
finally disposing of the suit, if he then thinks that the cir-
cumstances disclosed require further action on his pa.rt.

The applicant to be allowed costs.

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 '}
I
I '
APPELLATlll CIVIL JURISDICTION, , 63
I , .1
Civil Pdit·ion. 1868.
April 8 .
MATHURA'DA's GovARDHANDA's ............ ••. Petitioner.
F A'TMA' U LKA BEOAM ........................ Opponent.

Procedvrt-Sak under Decree-Joint Owners-Eztraordinary

Jurisdiction.

Where an execution debtor is jointly interested with another pt:rson in

immoveable property which the execution creditor seeks to sell in execu-
tion of his decree, the ordinary procedure for a court executing the decree
to adopt is, to put up for sale the right, title, and interest of the judgment
debtor in his undivided share of the pr+rty to be sold.
Where the court below adopted a dilferent proce\iure, and, after parti-
tionmg the property' put up for sal~ the divided share of the execution
debtor, the High Court, in the exercise of its extraordinary jurisdiction,
refused to interfere, in consequence of the laches of the applicant in
neglecting to avail himself of an opportunity, which the lower appellate
court had given him, of showing that the~ition which had been made
was injurious to him.

THIS was an application made to the High Court, in the

exercise of its extraordinary jurisdiQtion, under Cl. 2,
Sec. v. of Reg. II. of 1827, to set aside an order· of C. G.
Kemball, District Judge of Surat.
The petitioner, Mathuradas, obtained a decree for debt
against the Bakhshi Mir Mohiuddin Khan ofSurat (deceased),
who was the brother of the opponent, Fatma Begam. In
execution of this decree, the petitioner sought to attach and
sell the whole of a building called Dariamahal, in which
the Bakhshi was admittedly entitled to a share consisting of·
two-thirds, and his sister, Fatma Begam, to a one-third share.
The Principal ~adr Amtn and the District Judge held that
it would not be equitable to sell the whole house under the
decree, as the one-third and two-thirds could be separated,
without inconvenience or loss to the petitioner.
On inquiry the Prmcipal ~adr Amin held that the mardani
(male) apartment was properly the two-thirds of the whol'e
of the Dariamahal, and that, therefore, it alone should be
sold in execution of the decree, and that the janani (female)
apartment should be left for Fatma Begam as her one-third
share. The District Judge, to whom the petitioner made

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 BOMBAY HIGH COURT REPORTS.

1868. an application, refused to interfere with the order of the

M.i.TBURA'DA's p . . l S dr A , ·
GoVARDBAN• r1ncipa •. a mm.
DA's
v. The case was heard before NEWTON, Acting C.J., and
F,1.'nu'
BEGA.ll.
TUCKER,J.
Nanabhai Haridas, for the petitioner :-As the decree
sought to be executed was a decree for money, and not for
a partition of the property, the lower court had no jurisdic-
tion to order partition. The proper course for the court to
take was, to sell such interest as the Bakhshi had in the
property, leaving the purchaser to make a partition. Had
this been done, Fatma Bega• would have purchased the two-
thirds share, or given up her one-third share at a valuation.
'l'he property, if sold as a whole, will be disposed of to
better advantage than if the separated two-thirds only be
sold. Besides, the portion that has been reserved for Fatma.
Begam is more than h• share. It is on the river-side,
and has tanks, &c. included in it. At any rate, there is no
evidence before the court to show that the partition is a fair
o,ne; and as in any case my client will be materially injured,
i,f the decree is carried out in the way proposed, I contend
,ve are entitled, as in the ordinary case of joint ownership,
to have the Bakhshi's undivided portion sold, or else to have
the whole property sold a;nd one-third of the purchase-money
paid to Fatma Begam.
White (with him Dhirajlal Mathur/Jdas), contra:-The con•
duct of the creditor towards·Fatma is oppressive. First, he
laid an attachment on the whole Dariamahal. Fatma applied,
under Sec. 246, to set aside the attachment; but failing in
that, she filed a regular suit, and it was declared therein
that her one-third share could not be sold. The court below
then made the order, to set aside which this petitio:11 is
brought. That order is, I submit, a just order, and fair to-
wards the parties. It would be most unjust to allow the
creditor to sell the whole property. [NEWTON, Acting C.J. : -
If the right, title, and interest of the Bakhshi is sold, as the
petitioner demands, still the court, under Sec. 268 of the
Code, will be required to do what has been done,-make
partition.] Yes. .And, unless the petitioner can show that

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 Af'PELLATE CJ\'IL JURISDICTION. o5
he has been materially injured, the court will not interfere 1868.
•m t he exercise• of its• d. I MATR\JR4' D4'II
extraor mary powers. n no case GouaosAN·
will the petitioner be allowed to turn Futma out of her o1.'s
tl.
apartments; the rule of Equity is, that on partition care F1.'Tu'
BEGAV.
shall be taken to assign to the parties such portions of the
estate as will best accommodate them. Story on Equity, Sees.
655 and 656. If Fatma's share is more than one-third, she
might have to pa.y compensation. [TucKER, J. :-The Mu-
hammadan law appears to direct that each share shall be
appraised and then assigned by lot.] In Equity any single
part-owner can enforce partition, but by Muhammadan law
all must consent, which we do not do. There is nothing
to show that the partition the courts below have made is
unfair. The result of the evidence is to show thu.t Fatma
ha-a got rather less than her one-third share. At any rate,
this is a question of fact, with which the court would not in-
terfere even in special appeal, if a special appeal lay, much
less on the present application.
Nanabhai Haridas was heard in reply.
P!i:n. CuRiill :-It appears that the petitioner, Mathuradus,
obtained a decree against the estate of the deceased Bak.hshi
generally, and that, as the extent of the Bakshi's right in the
DariamaMl was not defined in that decree, the petitioner
considered that he was entitled to attach the whole of it ;
and he accordingly made an application for the attachment
and sale of the whole house as belonging to the Bakhshi.
Subsequently the High Court, in special appeal (No. 211 of
1864), declared that the right of the Bakhshi in the Dariu-
mahal extended to two-thirds of it only, and that the remain-
ing one-third belonged to his sister, Fatma Begam.
The proper procedure thereupon would have been t-0 apply
fo1• the e~cution of the High Court's decree. The petitioner / •
had no right to seek to have his first application carried
out. He never applied, however, for the execution of the
High Court's decree.
Had there been an appeal to us in this case, we should
have considered whether the Principal f?a.dr Amfo had a
right to make a partition.
V.-9 AC

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 66 BOMBAY HIGH COURT REPORTS.

1868. The ordinary procedure, under the circumstances of the

M.i.THURA'DA's • •
Goun.»RA.N· case, would have been, to put up for sale the Bakhshi's right,
DA 18
II,
title, and interest .in the property, which extended to two-
FA'T.IIIA' thirds, leaving it to the purchaser to settle with Fatma Begam
B:a:o.u,.
what portion of the property formed the two-thirds share, no
partition or separation of her share having been made. We
must make a distinction between cases in which an appeal is
allowed, and those in ,vhich we are solicited to exercise our
extraordinary jurisdiction. In the latter class of cases it is
) not our practice to interfere, i:inless a substantial injury is
V ,1
, 1
shown to have been done to the party coming before us; and
I! tlie applicant in this case has no such injury to complain of.
u
From the report of the engineer, it appears that the area.
of that portion of the property which has been reserved for
Fatma Begam is more than one-third of the whole Daria-
mahal ; but it may be that the area is not in proportion to
the value, although it has not been shown that there are
tanks in the share assigned to Fatma Begam, so as to
render it more valuable.
We find that there were several inquiries to ascertain the
value of the shares, that the Nazar and the Principal f?adr
Amfo inspected the premises in the presence of the peti-
tioner, and that the latter was allowed an opportunity to
show that the division proposed was not a fair one. We
also find that the Judge was inclined, when the case was
first before him, to uphold the order of the Principal f?adr
Amin, but that, at the instance of the petitioner, he re-
manded the case, in order that the petitioner might show that ..
the partition was unfair to him, and that he then did not
take any steps to establish his objection.
As he failed to avail himself of the opportunity which was
given to him, he cannot now, with any justice, complain that
the assignment of shares, which has been made by the court
of first instance, is injurious to him ; and, after such laches on
his part, it would not be right for us to interpose on his be-
half, by having recourse to our extraordinary jurisdiction.
We reject his application with costs.
Petition rPjecttd.

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 •
APP.11:LLATi CIVIL .JURISDICTION. 67

Oivil Petition. 1868.

April D.

E~1c11tion of Decr-PartitioJa.

In execution of a decree which merely declared that the right of a judg-

ment debtor in certain property extended to two-thirds of it, the lower
court divided the property before selling the debtor's share :-Held, that-
as the decree did not specify that any particular portion of the property
belonged to the debtor as his share-his right, title, and interest in the
property could only be sold, and that the determination of this right must
be left for future adjudication between the purchaser and the co-sharer of
the debtor, unless an arrangement could be arrived at.

THIS was an application to the High Court for the exer-

cise of the extraordinary jurisdiction given to it by
Cl. 2, Sec. v. of Reg. II. of 1827, under the following cir-
cumstances : -
The applicant, A'tmartim, having filed a suit against
Fatma Begam, to recover the balance of principal and in-
terest due on a mortgage bond executed by her deceased
brother Mir Mohiuddin Khan, the Bakhshi of Surat, ob-
tained, on the 22nd of December 1864, a decree, in Special
Appeal No. 856 of 1864, whereby the High Court decreed
to the applicant the sum of five thousand rupees against the
estate of the late Bakhshi, and against his sister, Fatma
Begam, as his legal representative, to the extent of any
assets of the said Bakhshi's estate which were found by
the High Court, in Special Appeal No. 211 of 1864, to be
in, or should thereafter (under Sec. 203 of the Code of Civil
Procedure) be found to have passed into, her possession. The
said decree declared that the said Bakhshi's interest in
Da.riamahal and its appurtenant buildings, which extended
to a share of two-thirds of the entire ancestral property,
which formed the joint inheritance of himself and his sister
the defendant, Fatma Begam, should alone be liable to the
claims of his creditors.
On the 27th of August 1866, the applicant, A'tmaram,
applied for the execution of the said decree by the attach-
ment and sale of the mortgaged property, which did not

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 •

68 , BOMBAY HIGH COURT REPOR'l'S,

1868. include Dariamahal, &c. This last-mentioned application was

A'TXA'li'K
LLu.'ND.&'s opposed by Fatma Begam, on the ground that she had a.
FA~iu. ' third-share in the said property, and that, therefore, the whole
BEou. of it could not be attached and sold. The Principal l:?adr
Amin of Surat, who had tried the original suit, thereupon
directed, on the 4th of October 1866, that, as the deceased
Bakhshi had a right over two-thirds of the property, a war-
rant would be issued for the attachment and sale of the said
share only, on the same being pointed out by the applicant.
The applicant thereupon presented a petition to the Judge
of the District, C. G. Kemball, but he rejected it, on the 18th
of October 1867, on the ground that it would be highly im-
proper to dispose of by auction unnecessarily the share of
Fatma ;Begam.
The case came on for hearing this day, bE.'lfore NEWTON,
Acting C.J., and TucKER, J.

Nanabhai Haridas, for the applicant :-In this ea.so the

property sought to be attached and sold is mortgaged to us,
and it is in our possession; and the decree of this court
does not declare that the Bakhshi's sister, Fatma. Begam,
had any right to this property, as the decree in the other
case (Special Appeal No. 211 of 1864) did declar~ that the
Bakhshi's share in Dariamahal &c. was two-thirds. We
want to sell merely the right, title, and interest of the
Bakhshi in the property, leaving the purchaser and Fatma
Begam to settle what right the deceased Bakhshi had in
the property, as we do not admit that the property now in
dispute is ancestral, like Dariamahal. [TUCKER, J. :-The
decree should have been against the mortgaged property ;
but it is not so-why, I don't know : perhaps by some
mistake in drawing up the decree.] The Principal l:?adr
Amin says that, unless we show that a particular portion
is the two-thirds, he will not attach the property ; but the
two-thirds has never been divided, nor is it decided that
Fatma Begam has a one-third share in this property.
Dhirojlal Mathu1'l1das, conlm :-The Principal $adr Amin
finds the property to be ancestral. The petitioner did not

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 APPELLATE CIVIL JURISDICTION, 69
appeal on this point,. nor did he ever dispute, until now, tha.t __1_8_68_._
. 1
t he property 1s not ancestra .
1
AT1lA 1U.'.I(
KALIA'NDA's

Nanabltai, in reply :-As mortgagee, we a.re in possession FA~;.llA'

of the whole ~f the property, and no one can dispossess us BEoAM.

until we get our money.

PER CuRIAM :-We aro of opinion that the applicant is
entitled, under his decree, to have the interest of the late
Bakhshi of Surat in tho property in dispute attached and sold.
The decree has not been made against the mortgaged pro-
perty, nor does it specify that any particular portion of the
said property belonged to tho Bakhshi, further than it con-
tains a general declaration that tho Bakhshi's interest in the •
entire ancestral property, which formed the joint inheritance
oftho Bakhshi and of his sister the defendant, Fatma Begam,
amounted to two-thirds. There is nothing in the decree to
show that the attached property was ancestral, and, there-
fore, unless the parties, within a reasonable time not exceed-
ing one month from this date, can come to some agreement
as to what constitutes the late Bakhshi's share in the said
property, his right, title, and interest in the undivided pro-
perty can alone be sold, and the determination of what this
right, title, and interest may extend to, must be left for
future adjudication between the purchaser and Fatma Be-
gam. We modify the order of the District Judge and th9
Principal i;;adr Amin, and direct that the attachment and
sale be carried out in conformity with the views which are
above expressed.
Each party to bear his own costs.
It must be observed that the other case of Mathuradas
Govardhandas (a) is distinct from this, as Mathuradas did not
avail himself of the opportunity given to him to show that
the portion of the Dariamahal found by the Principal E;ladr
Amin to be the two-thirds share of the Bakhshi was not so.
(a) Supra, p. 63.

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70 BOMBAY HIGH. COURT REPORTS,

1868. Referred Oa.Be.

Feb.6.
MutoHAND JE:HA'SHA' ................. • Plaintiff.

KrKA' VARDHVA' N ••••••••••••••••••••••••.:JJefendant.

Retnew of Judgment-Small Cause Court-Instalment-Act XI.

of 1865, Sec. 21.
Held that it is not necessary for a defendant in a Small Cause Court
to deposit the amount of the decree in court, when applying for a review
of judgment for the purpose of obtaining an order to pay by instalments.

IN this case the Judge of the Small Cause Court at Ahmed-

• abad referred, under Sec. 1 of Act X. of 1867, for the
decision of the High ~ourt, the following question :-
" Whether or not the defendant who applies for a review
of judgment with the only object of obtaining an order for
payment of the debt by instalments, must deposit in court
the amount of the decree."
PER Cu&IAM (Coucu, C.J.,andNEWTON,J.):-In such a case
as is stated by the Judge, it is not necessary to deposit in
court the amount for which the decree was obtained.

Feb. 6. Refei-red Case.

N AVROJI PESTANJI •••••••••••••••••••••••• Plaintiff.

MANSUKH JAYACHAND .................. ••• Defendant.

~iew of Judgment-Small Cause Court..;.New Trial-Act XI. of

1865, Sec. 21. ·

If an application for a review of judgment made by a defendant in a

Small Cause Court be in the nature of an application for a new trial, the
amount of the decree, though made payable by instalments, must be de-
posited in court, under Sec. 21 of Act XI. of 1865.

QUESTION referred for the decision of the High Court,

under Sec. 1 of Act X. of 1867, by Gopalrav Ha.ri Desh-
mukh, Judge of the Small Cause Court at Ahmedabad:-
" Whether or not a defendant can apply for a review of
judgment without depositing in court the amount of the
decree passed against him, when the decree is for money to

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••·'' •
APPf.LLATE CML JURISDICTION,

be paid by instalments the first of which has not yet become -~18_08_._
NAVBOJI
due." The Judge was of opinion that the defendant should P,gsuNii

not be required a.t once to pay the amount for which the MAN~~KH

decree had been passed. Ju..i.cHAND.

PER CuRIAM (CoucH, C.J., a.nd NEWTON, J.):-The circum-

stance of the debt having been ordered to be paid by insta.1-
. ments does not except the case from the operation Qf the
proviso in Sec. 21 of ActXI.of 1865 ;and, if the application
for a. review of judgment be in the nature of an application
for a. new trial, the amount of the decree must be deposited.
NoTE.-" In suits tried under this act all decisions and orders of the
Court shall be final ••••• Provided abo that it shall, be competent to the
Court, if it shall think fit, in any case not falling within the proviso last
afo~said, to grant a new trial, if notice of the intention to apply for the
same at the next sitting of the Court be given to the Court within the
period of aeven days from the date of the decision, and if the aame be
~pplied for at the next sitting of the Court ; but no such new trial shall be
granted where the party applying for the same is the defendant, or one of
the defendants, unless be shall, with bis notice of application, deposit in
court the amount for which a decree shall have been passed against him,
including the costs (if any) of the opposite party." Act XI. of 1865,
Sec. 21.

Special Appeal No. 727 of 1867. Feb.10.

BA1BA'.$HE: bin GoVINDSHE: et al. .. •. .• Appellants.

JmsHET. bin YESBHET. et al. ............ ... Respondents.
Suit/or Partitioo-Onua Probandi-Khoti estate.
Where the plaintift's aued for the partition of a J:hoti estate, alleging
that they and the defendants were joint proprietors thereof, and where the
defendants admitted that the estate was originally joint, but set up that
a partition bad taken place more than a hundred and fifty years ago :-
Held that the burden of proving that a partition bad been made lay on
the defendants; and that the mere distribution of lands and tenants,
such as is usual in the South Konkan, while a khoti estate continues to
be held in coparcenary, in no way established a formal partition.

THIS was a. Special Appeal from the decision of J. R.

Naylor, Acting Senior Assistant Judge of the KonkaI]. at
Ratnagiri, in Appeal Suit No. 762 of 1866, confirming the
decree of Raghunath Gai;i.esh, Munsif of ChipluI].,
The plaintiffs sued to obtain partition of the khoti village

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 72 BOMBAY HIGH COURT REPORTS.

--:,,-1,...s68~·- of Musalandi, in Taluka Anjanvel of the Ratnagiri collec-

BA'BA'sHET
OovrnnsHET torate, alleging that they and the defendants were descend-
et al. ants of the same common ancestor, and that, although the
v.
JrnsHET several sharers had each a certain portion of the village lands
YESSHET
et al. in dispute in their occupation, yet that no formal partition
had taken place between them.
Some of the defendants put in no appearance. Those, who ·
did, admitted that the, estate was originally joint property,
but pleaded that a partition had, taken place more than a
hundred and fifty years ago.
The Munsif of Chiplw;i held that the plaintiffs had not
proved that the village was held in coparcenary ; and he,
therefore, rejected their claim.
The Acting Senior Assistant Judge took the same view
in appeal. He recorded as follows:-" The defendant No. 8
states that a division of the property has already taken place;
and the burden of proving such division would appear at
first sight to be upon the defendants, because the plaintiffs
cannot very well be expected to prove a. negative. But the
fact is, that if the plaintiffs had proved that the whole
village is still held in common, they would have established
a positive fact, and not merely a negative one, and when they
had made out a prim& Jacie case as to the property being held
in common, the Court might have properly called upon the
defendants to produce their proof of the alleged partition.
Therefore, the burden of proof is divided, but it rested with
the plaintiff.~ in the first instance to show that the village
was held in common. This they have not done." The
Acting Senior Assistant Judge, therefore, confirmed the
Munsif's decree, rejecting the plaintiff's claim.
The Appeal came on for hearing before TUCKER and
WARDEN;JJ.
Shantaram Narayati, for the special appellants :-Both the
lower courts have erroneously thrown the burden of proof
upon the plaintiffs. They have proceeded to investigate the
case upon a principle which is fundamentally erroneous. The
plaintiffs alleged a joint holding-the normal state of a Hindu

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 APPllLLATB CIVIL .TUBIBDICTlON, 78
family; while the defeudan·t s set up a division. The bur- --;;,-1,,_s68--,-._
BA'DA'lllll.T
den of proving an exceptional state of things lay on the party GoTINDsHIIT
who set it up. A distribution of village lands and tenants et a,Z.
11,
among the shareholders is usual, and not at all inconsistent J1BsHET
YEssHET
with a stn.te of union. et al.

P11::RCuRIA.M :-We think that the Assistant Judge and

the Munsif have improperly cast on the plaintiffs the onus of
proving that the village was held in common at the time
the suit was instituted. The defendants admit that the khoti
estate was originally joint, and that they and the plaintiffs
originally held that estate in coparcenary; but they allege a.
partition more than one hundred and fifty years ago, and it
was for them to have proved that partition. The fact that
the plaintiffs and defendants have each a certain portion of
the village lands in occupation, and that there has been
a certain distribution of tenants among them, in no way
proves that any formal partition of the ldwti estate in the
village has ever been actually made. It is the normal con-
dition of a klwti estate held in coparcenary iu the South
Konkat;1 that the parceners should be in occupation of
particular portions : and this circumstance alone will not
establish that any division of tne land intended to be per-
manent has been made; and if it be shown in this case that
there has been nothing more than a temporary allotment
of lands and tenants, such as is usual while a khoti estate
continues to ha held in coparcenary, the plaintiffs will be
entitled to the formal partition which they sue for.
We reverse the decrees of the Assistant Judge and the
Mnnsif, and remand the suit to the court of first instance,
in order that the defendants may be called upon to estab~
lish the partition which they allege, and that, if they fail to
do so, a decree f9r partition may be made, in which the plain-
tiffs shall be assigned such shares as they may be shown to
be entitl~d to.
Costs, including the costs of this Special Appeal, to be
apportioned at the final decision.
Decree reversed and sitit remanded.
V,-10 AC

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74, BOMBAY HIGH COURT REPORT&,

1868. Reje1Ted Case.

March 10.

Mesne Profits-Appeal-Act XXJII. of 1861, Sec. 11.

N. obtained a decree against A. for certain lands, and was p~t in posses-
aion of them in execution of the decree.
On appeal the decree against A. was reversed, and the lands were accord-
ingly restored to him, but no provision was made as to the mesiie profits
received by N. when he was in possession of the land~ under the de~ree of
the lower court. In a suit brought by A. against N. to recover such
mesne profits, it was held that the suit would lie, and "Vl'as not 1irohibited
by Sec. 11 of Act XXIII. of 1861.

THIS case was referred, under Sec. 28 of .A.et XXIII. of

1861, for the decision of the ~igh Court, by H. Phill-
potts, Acting Senior Assistant Judge at Broach.

The defendant sued the plaintiff in the Court of the

Munsif of Jamb6sar, to recover possession of certain lands,
and obtained a decree for the possession of tliom, which he
executed. The Munsif's decision was reversed on appeal,
and the lands were restored to the defendant, the plaintiff in
.
this suit. He now sues to recover the rent of the land which
was received during the time which elapsed between bis
ejection by the Civil Court and his reinstation. 'rhe question
submitted for the opinion of the High Court is, "whether
a suit for mesne profits payable on account of the subject-
matter in another suit, but about awarding which no deci-
sion has been passed in that suit," is barred by Sec. 11 of
Act XXIII. of 1861. The Acting Senior Assistant Juclge
was of opinion that the words of the said section were plain,
and barred such a suit as this.
PER CuRIAM (Couc11, C.J., and NEWTON, J.) :-The Court
is of opinion that, under the circumstances stated by the
Acting Senior Assistant Judge, a suit does lie, and that it
is not prohibited by Sec. 11 of Act XXIII. of 1861.

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 APPELLATE CIVIL JURJSDICTlON.

Special Appeal No. 43 o.f 1868.

1868.
March 20.
BHIMA' valad KRISH~A'PPA' et a.l. ....... .. Appellants.
NrNGA'PPA' bin SHIDA'PPA' TusE . ... . .... ... Respondent.

· -4.grteme,;t to ar,oid litig11tio11-Con1idtration.

A mutual agreement to avoid further litigation is not an agreement \'oid

of consideration.

THIS was a Special A~peal f r?m the decision in r~view ~f

· R. W. Hunter, Senior Assistant Judge at Solapur, m
Appeal No. 135 of 1866, reversing the decree of the ~dr
Amfo of Solupur.
The plaintiff sued to cause the remo\'"al of seven water-
pipes, attached to the defendant's house, from which, he
alleged, the water flowed on to his (plaintiff's) premises, and
to obtain an injunction restraining the defendants from
interfering with the plaintiff's building a new house on his
own ground.
The defendants, as to the water-pipes, set up a prescriptiv~
title, extending over more than thirty years, and asserted
that the plaintiff's new house would interfere with their
water-pipes.
The f?adr Amin threw out the claim of the plaintiff for
the removal of the water-pipes, but direct-ed that he might
build his new house so as not to interfere with them.
The Senior Assistant Judge reversed the decision of the
..f:;iadr Amfo, and directed that tho defendants should remove
four of the water-pipes attached to the defendant's western
wall that discharged water on to the plaintiff's building, but
that the three others might remain, and that the defendants
should not obstruct the plaintiff in building his house, pro-
vided he built in such a manner as not to injure the de-
fendant's western wall.
The original defendants then applied to the Senior As-
sistant Judge to review his own decision. They produced an
agreement passed to them by the phintiff, and alleged that
the decision was not in a.ccorda.nce with that agreement.

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 BOKBAY BISH COURT R.EPOR'l'S.

1868. The Senior Assistant Judge found that there was no con-
K11,~:;::PP.a.' sideration stated on the face of the agreement, and that it
et1/.aZ. was entered into merely to avoid litigation.
NINGA.1PPA.'
BHrn.&.'PPA' The case was argued before WARDEN and Grn:es, JJ.
Tu sir,,
Shantaram Naraya~ contended, on behalf of the special
appellant, that an agreement entered into between the par-
ties could not be said to be without any consideration;
for the avoiding of litigation was in itself a good con-
sideration.
Bhairavanuth Mangesh for the respondent.
PER CuRIAM :-The Court find that the Senior Assistant
Judge has erred in holding the agreement No. 11, in appeal,
invalid for want of consideration, it having been mutually
entered into by the parties with a view to avoid further liti-
gation. The Court considers it ought to be upheld, and, .
therefore, reverses his decision, and passes a decree in ac-
cordance with the terms of the said agreement.
JJecree reversed.

April 21. Special Appeal No. 78 of 1868.

NATHO' SADA'smv ....... . ............. ... Appellant.

RA'MCHANDRA A?:~A'JI .................. R.espondent.

Civ. Proc. Codt, Sec. 246-0nus of Proof-Ejectment.

r Where the plaintiff filed a suit to set aside a sale of land after he had
been unauccessful in an application made under Sec. 24.6.~f.the Civil
Procedure Code to raise an attachment that had been laid on such land :
Held that the onus lay on the plaintiff to prove bis title, ud ll,Ot on

I the purchaser to prove that of the judgment debtor.

THIS was a special appeal from the decision of~- Lyon,

Assistant Judge of the KonkaIJ. District, in Appeal Suit
No. 145 of 1867, confirming the decision of the Munsif of
Bhivandi.

Harjivan obtained a decree against one Vithu, and m

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 APPELLATE CIVIL JUIIBDICTIOH. 7.7

execution thereof attached a piece of land. The plaintiff 1868.

Nu:;;~•n•'·

~:":~: ;~"E~.~!~~~~!~:,: .~src:. .~~~-..

applied, under Sec. 246 of the Civil Procedure Code, to

this regular suit against the purchaser. .

The Judge, considering that the onus of proving his title

lay upon the plaintiff, and that he had not succeeded in doing
so, passed a decree for the defendant.
The appeal was argued before WARDEN and GrBBs, JJ.
SMntaram Narayati, for the special appellant :-The on1t1
of proof has been wrongly thrown. It has been uniformly
decided by the late ~adr Adalat that although the claim
to attached property be rejected, still in the event of dis-
possession and a suit following, the person causing dis-
possession has to prove the title of the judgment-debtor:
Ni-ngapa bin Racltapa v. Bltowray Punvutee (a). The Assist-
ant Judge has put a wrong construction upon Sec. 246 of the
Code of Civil Procedure, in holding that it directs how the
parties are to be ranked, and thus indicates how the onus of
proof is to be placed.
Dhimjlal Mathuradas for the respondent.
PER Cuat.ut :-It is true that the late ~adr Adalat threw
the onus on the decree-holder, but later decisions of the
High Court have gone the other way. We consider that
the onus is <?~ ..the ..plaintiff, the party dispossessed, and,
tberefo~~~nfi.rm the decree of the Assistant Judge, with
costs.

Dec'ree affirmed.

(a) 8 Hanington S. D. A. 293.

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 78 BOMBAY HIGH COURT REPORTS. -

Spedal Appeal No. 70 of 1868.

1868.
April 21.
HAR! SADA 1 SHIV DIKSHr'T ...••. .• ...•...... ... Appellant.
BA'Pu BALVANT ...... '. " ..................... ... Respondent.

H. sued B. to recover possession of a certain house.

- ----
Adj11,stment of Decrei-Compromise-Civ. Proc. Code, Sec. 206.
...
.......~
B. answered that the house was his own ; that H. having fraudulently
got possession of it, he, B., had filed a suit to l'ecover possession ; that a
~ ( tJ decree was passed in his favour in tile lower court, which, however, was

~~
--J /k \·. .' 7 \ ( reversed on appeal ; that, pending a special appeal, a compromise had been
·\'t; entered into between hiin and H., in pursuance of which he, B., was put
r y\, J , ~,,.) '; in possession of the house. .
' 1 rl • · ~, · The terms of this compromise were not certified to the court under
~ l/) , \ · .
J(•, ~-- ,
,·1• •• /
' ,1\-"i •
};) • •
~1 -
Sec. 206 of the Civ. Proc. Code. ·
Reli1 tliat this compro~ise,' having been effected aft~r the decree 1·n
i.''
: . ' ·;~<) ~~t:n~f!~s~::e~:;:r:~:eio~d :~~e::! ~~~:;;:7;n)~;. meaning of See.
' )1.' . /
4 - ! ~·

~ :·. .J;r; THIS was a Special Appeal from the decision of the
Honorable G. A. Hobart, District Judge of Khandesh,
in Appeal Suit No. 161 of 1866, confirming the decree of the
Munsif of Tengora.
Hari brought this suit against Hemchand, Bapu, and
Devji to recover possession ofa certain house, alleging that it
was his own property ; that in March 1859 he had lent it to
Hemchand, who fraudulently transferred it to Bapu, and that
the latter again transferred it to Devji.
Hemchand and Devji did not appear to defend the suit.
Bapu answered that the plaintiff's allegation of his being the
proprietor was false; that Hemchand, who wa.s the real owner,
had given him the h_ouse in payment of a debt; that subse-
quently the plaintiff having got possession of it by fraudu-
lent means, he, the defendant Bapu, instituted· a suit to get
it back again, and obtained a decree in his favour ; that this
decree being reverse'd on appeal, he was about to prefer a
special appeal, but that, a compromise having been effected,
the plaintiff vacated the house and made it over to him.

V This compromise '\!_ll.!:l 110i,certified tpj)e court.

- - · - - .. ··· ·~· ···y• __ .,.,_

The Munsif, holding the compromise proved, rejected the

plaintiff's claim. '

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 •
APPELLATE CIVIL 1URISDICTION, 79

The Judge also held the compromise proved, and · cons1- .1868.
HA'lll SADA'·
dered that it was a good defence to the suit. saiv Di'Ksai'r
'II,
His reasons are thus recorded:- BA'PU
BALVANT,
" Such an assertion as was made in the defence, namely,
that the claim awarded had been compromised out of court,
could not properly be listened to as an objection raised to an
application to execute the decree. That is clear from Sec. 206
of Act VIII. of 1859, but a refusal to listen to an objection
so made would not be a bar to a regular suit brought by
the judgment-debtor to cancel the operation of the decree, on
the ground of the decree-holder's fraud in applying for
execution of a decree which had in fact become inoperative,
from a new arrangement of the claim having been made,
and it follows that such an objection as that made. by Bnpn
must be listened to, when put forward· as an answer to a
fraudulent attempt by the plaintiff to eject him from property
awarded to thfl plaintiff by a decree, but which property
the plaintiff had transferred to him."
'l'he appeal was argued before ,VARDEN and GIBBS, JJ.
Nanabhcti Hariclas, for the special appellant :-The de-
cision of the District Judge contravenes the provisions of
Sec. 206 of the Code, which enacts that no adjustment or
compromise of a decree, in part or in. whole, shall be recog-
nised by the court, unless it be made through the court, or
ho certified to the court by the decree-holder.
[GmBs, J. :-But this is not. a compromise of a decree within
the meaning of this section. The decree given against you
was reversed in appeal. You were only entitled to your
costs. You had not a substantial decree in your favour.]
It has been held by a majority of the High Court at
Madras, in the case of Arunochella v. Appavu (a), that a suit
would not lie whore the plaintiff owed the defendant a judg- ..
ment-debt, and the plaintiff paid the dt3bt, but.not through y
the court. 'fhe defendant fraudulently applied to the court •
to execute the decree, and the court, being debarred by
Sec. 206 from recognising payments made otherwise than
(a) 3 Mad. H. C. Rep. 188.

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 •
80 BOKBAY RIG.II COURT REPORTS,

1868. through it, executed the decree by making the plaintiff pay
~
HA.Jtl 8.i.DA'·
iKiv Di'a:sa:i'T
•
again the sum decree d, an d wh ere t h e p lamt1
< . "ff t h ere1ore sued
BA~;u to recover the amount overpaid. •
BA.Lv..i.NT. • J, :-That case is distinguishable from the present.
[GIBBS,
In that case the plaintiff owed a judgment-debt. In this
that is not the case. If, before the reversal ofBapu's decree,
the compromise had been effected, that compromise would .
have been within the meaning .of Sec. 206.]
My second objection is, that the compromise between
Bapu and Hari was a n·udwrn pactttrn. ·
[WARDEN, J. :-We do not think so. We have recently
held, in S. A. No. 43 of1868 (b), that a mutual agreement to
avoid litigation was not void for want of consideration.
Bapu wanted to prefer a special appeal, and your client
prevented him from· doing so by inducing him to enter into
this arrangement.]
In the present case the threat of litigation was without
any foundation. The winning party in the appellate court;
gave up everything without gaining anything instead.
[GIBBS, J. :-He might have considered his chance m
Special Appeal as a very poor one.]
PER CuRIAM :-We agree with the·Judge below in his
view of the law of the case. We think that the compromise,
having been effected after the reversal of Bitpu's decree, was
not an adjustment within the meaning of Sec. 206 of the
Code of Civil Procedure. An order to pay costs, by the
party whose claim has been rejected, does not bring this case
within the ruling of the Madras High Court quoted in the
argument. We must confirm the Judge's decree.

Decree affirmed.

(b) Supra, p. 75.

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 APPELL!.TE CIVIL JURI.SDICTION,

Special Appec,l Nu. 17 of 18u8.

18ll8.
April 3.
Mo•1•1 KAHA 1NJI •••••••••••••••••••••••• ••• Appellant.
DIPCH.AND VIRCH.AND •••••• , •••••••••••••• Rl.'spondcnt.
A.cknowkclg,ntnt of Debt-86.matlaskat-Onus Prohandi-Reg. V. of
1827, Sec. 9-Englisk Lo10-Alttratioii of a Writing after Signature.

Where the plaintiff 1me1l to l'ecover money lent, 1-elying upon a Sa11111,
cla,kat, or acknowledgment of debt i;,•en by tbe defendant:
Held that Sec. 9 of Reg. V. of 1~27 contained the rule of law appli-
cable to the case, and tbat the 011us lay on tbe defendant to prnYe that he
had not received full consideration for the acknowletlgment of indehtedne~~
\Vhicb he had subscribed.

THIS was a Special Appeal from the decision of C. G.

Kemball, Judge of the District of Surat, in Appeal No.
121 of 18<37, confirming the decree of the Munsif of Surat.
The plaiutiif sued to recover money alleged to have been
lent to the defendant, and produced a written acknowlcdg·
ment of indebtedness, signed by the defendant in hi::1 (tho
plaintiff's) aecount book.
The defendant pleaded want' of consideration, and denied
his indebtedness. He also alleged that the acknowledg·
ment had been altered after he had signed it.
The Munsif threw out the plaintiff's claim, findiug thut lw
had not proved that auy con:;ideration had been given for the
acknowledgment.
'rhe Di::1trict Judge agreed with the .Munsif. Iu his judg-
ment he said-" I need make 110 observation on the :;eco1id
point (whether the l\Iuusif wa:; wrong in castiug the lmr-
den of proof in respect of the eousi<leratiun on llw plain.
tiff), for it is a settled rule tliat when a urn11 ;-;ccks to c11forc,,
a i;itnple contract., he must, :;ave in the case of liill;:; nnd
notes, which arc au exception to the rule, an•1· that it wa,J
made on good consideration, and must lllakc guod that ,tile·
gation by proof."
'fhe case came on fur heariug before 'fucKBr: aml Urn11:,;,.J.J.
8/tirntarfwi Nlmiya~i, fur the appdla.nt :-'l'he Court ue-
low was wrong in applying the rule of :English Law to the
V,-}} AC

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 82 BOMBAY HIGH COURT REPORTS,

_ _1~8_68_._ present case, which is governed by Sec. 9 of Reg. V. o,

Mon
K.rnA'NJI 1827. A, written acknowledgment was made by the de-
D,Pc~A'ND fondant in the plaintiff's book, and the onus lay on the de-
VrncHAND. fondant to show that he had not received full consideration.

PER CuRI!.M :-The Com·t is of •opinion that the Judge

was in error in deciding that it lay upon the plaintiff to
prove that consideration had been received. · Reg. V. of
1827, Sec. 9, is the law which governs the case, and this
declares that it is incumbent on the defendant to show that
a full consideration has not been received. The defendant
can establish this either by direct testimony, or by the
facts he may elicit by , cross-examination of the plaintiff's
witnesses. In the present suit the defendant pleaded that
the samadaskat, or memorandum 011 which the plaintiff sued,
had been tampered with, and altered since he signed it, and
the Munsif found that the execution of the samadaslait, as
it now stands, was not proved. The District Judge sho11ld
have in,q•ired and decided whether the acknowledgment of
debt had been altered, subsequent to the defendant's sign-
ing it, without the assent of the defendant, as in that case
the· plaintiff will not be entitled to recover, and it will be
unnecessary to enter upon the question of consideration.
'rhe Court reveri;cs the decree of the District Judge, ancl
remands the appeal to the lower appellate court, for a re•
trial on the meriti;, with reference to the instructions con-
tained in this judgment. Costs in all courts to be appor-
tiimed at the final decision.
Decl'ee raer6ed and suit remanded.

1'oT!i:.-A6 to the natlire of 11n account stated sec lrri11g 1·. Veitch,
3M. & W.107.

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 APPELLATE CITIL .JURISDICTION, 83

Reerred Oase. 186~.

Juno ll,
GoPA'L JAYACIIA?t."D.,; ... : •• ............... ,,, ... Plaintffj:

I
HARGOVIND KausHA'L e.t al . ................. •Defendants.
Yakn-Poirer to plead-Vakalatnama-Cit,. Proc. Code, Sec. 246.

The t:akil retained by the plaintiff in a suit in which a decree bas been
given for the plaintiff, iij competent to plead for bis client in answer to a
claim ad,·anced ( nuder the fil'st portion of Sec. 246 of the Civil Procedure •
Code) to property attnrhcll in cxcr11tion of Rnrh clerree, without the pro.
duction of a fresh t1aklilah1um1/,

CASE and Question submitted for the decision of the High

Court, nuder Act X. of 1867, Sec. I, by Gopalruv Ha1•i
Deshmukh, Judge of the Court of Small Causes at .A.hmeda.
bad:-
" The question is, whether or not a vakil of the plaintiff',
engaged in a suit in which he obtained judgment in favour
of his client,, should be permitted to plead for him, in answer
to a claim advanced under Sec. 246 of the Code of Ofril
Procedure, to certain property attached in execution of that
judgment without a fresh vaka'atnama. I am of opinion that
a vakil should be allowed to plead for the plaintiff as above
stated. A. 1:akil in a suit is allo~ed_~-~ppl_y f~~-e~_<:c~_t_!?.11_ o~
I
jud8'll;.ent without a. fresh ;eower, and the claims to attached
property are incidental to the execution of decrees." \
PER CuRIAlll (NEWTON, Acting C. J., and TucKER, J.) :-As,
under Sec. 2-t6 of the Code of Civil Procediue, the Court is
to investigate a claim of the character therein described with
the like powers as if the claimant had originally been made
a defendant to the suit, we are of opinion that the pleader
retained by the plaintiff in the original suit may be per-
mitted t-0 plead for him with respect to any claim preferred
or objection offered )lnder the first portion of the sai.d sec- I/
tion without producing any additional rnlialat11amt:i.

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84 BOMBAY IDGH COURT REPOR'l'S,

1868. Refareil Gase.

June 11.
Em parte KA'SHINA'TH BALA'L OK,
Gaol-S11'1sistence Money-Civil Gaol F11nd-Act IV. (Bombay) of 1865.

"'here the defendants were arrested through the Munsif's Court iu

execution of a decree, but were released at the request of the execution
1·rcditor before tl1ey bad been sent to the Civil Gaol:
It was 1,eld that the execution creditor was entitle1l to a refund of the
balance of ~ubsisten<>e money llll\'Rneed by him, that remained in the
:\[un$irs hand at t.be time of bis debtors' 1·eleasc, Sec. 10 of Act l Y. of
186.'i (Ilomhn~·) not bring applicable to snl'b a rase.

CASE referred by A. Lyon, Assistant Judge at ~'luh)a, for

the orders of the High Court. 'l'he fo,cts were these:-
Kashinuth Balul Ok c'aused fom• clefenclants to be arrested in
execution of u clccrce through the Munsif's Court at Kalyun.
He hncl prepni<l. Rs. 21 on account of the subsistence money
of the defendants. On the defendants being arrested, they
were detained two days in the l\funsif's Court at Kalyan,
instead of being sent to the Civil Gaol at Tharyu. During
these two days the :Munsif allowed the defendants each two
annas per diem out of th'e Rs. 21 advanced by the judgment
creditor, Ok. At the encl of two days Ok prayed tho
Munsif's Court to release the defendants, and this was done.
A balance of Rs. 19 remained out of the subsistence money
advanced by Ok. This sum the Munsif refused to repay to
Ok, on the ground t,hat his judgment had been enforced, at
his request, by the imprisonment of his juclgment debtors;
that the balance of subsistence money remaining in hand
nt the time of the prisoners' release was, under Sec. 10 of
Bombay Act IV. of 1865, to be credited to the Civil Gaol ,
Fund; and that the money, therefore, had ceased to belong
to Ok, and had become a portion of that fund.
The Assistant Judge, in appeal, was of opinion that the
prisoners referred to in Sec. 10 were the prisoners for whose
safe custody, under Sec. 4,, the Nazar of the District Court,
as ex-officio keeper of the Civil Gaol, was responsible ; and
that as th~ N6zar of the District Court was not responsible
for the safe custody of any Civil prisoners apprehended by

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 K. J. Rusro.,~
APPILLATJC CIVIL JURISDICTION• 85
order of a subordinate court of which he was not the Nazar, __,,,__1868_._
until such prisoners were made over to his custody, Sec. 10 it::i':!~H
did not ap'ply. •
BAL.\7i OK.
PER Cunru (NEWToN, ActingC.J., and TucKEit, J.) :-The
Court is of opinion that•as the debtors i~ question had nevel'
been prisoners in the Civil Gaol, the Muneif was in e1Tor in
refusing to return to the execution creditor the balance of
snbsifltence money that remained in his hands at the time of
the debtor's release. The Court, therefore, reverses the ·
order of the Mnneif dated 10th September 1857, and directs
that t,he ha.lance· of subsistence money be repaid to the ap-
plicant., Kashinuth Balul Ok.

8pe(·ial .A11peal No, 90 of 1808,

HARi ,r-A'sunEv .....•............... ,,, ...... ... A.ppella.·n.f.
lfAHA'()A 1.H Ara1JI ........................... ... Respondent.

Tena11cy-Re11t-Limitation-Act XIV. of 1859, Stc. I., cl. 8.

Where the existence of a tenancy is proved, the fact of the tenant not
having paid rent to his khot landlord for tweh-e years prior to the in.
i!titl.ltion of the anit, is no bar to the right of the lantllord to reco,·er rent
falling due within the period of limitation, i .e., for three ye1us pre,·ious
to suit brought.

THIS was a Special Appeal from the decision of C. B.

Izon, Joint Judge at Ratnagiri, in Appeal Suit No. 731
of 1866, reversing the decree of the Sa91· Amfo of R.atn{1.
giri, and remanding the case for re-trial.
Hari Vnsudev, a klwt, on the 23rd of June 1862, filecl
this suit to recover from Mahad!~i Apaji the tlial rent of
certain land for the year 1859-60.
The defendant stated that he had never paid the thal, and
that the land was his ancestral watani land.
The f?adr Amin, Daji Govind, on a.
remand of the case,
a.warded Rs. 36-3-9, finding that was the value of the rent
proved.
The Joint Judge, after stating that a previous decision
between the parties left no doubt of the fact of a tenancy

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 86 BOMBAY HIGH COURT REPORTS,

-=1~868_._ existing between them, remanded the case with the follow.
HARi
VA'sunEv ing observations:-
•
l!ARA'»A'JI
AP.\'JI,
"The f?adr .A.mfo ought to have raised and determined
the point whether the defendant can show that for twelve
years prior to June 23rd, 1862, the date of the suit, neither
he, nor any person through whom he claims, has ever paid
any rent to the plaintiff, or to any other sharer in the
khotsbip, or to any manager or person holding under such
sharer. If he can, then I find the present claim will no_t lie,
It is not that a prescriptive right is acquired in twelve years,
but as a suit to establish a right to rent must be brought
within twelve years, so a suit to recover rent must also be
brought within twelve years from the discontinuance of pay-
ment, unless of course there be any special agreement; but
such is not even suggested in the present case.
"The plaintiff will now (if, as is probable, he wishes to
have the point finally decided) b_e able to appeal from my
decision that there is such a period of twelve years appli•
cable to suits by a klwt for thal rent.
"This point bas never, that I am aware of, been de.
cided, but the principle followed in the case of Bharatsangji
Mansan9ji v. Navanid]iaraya Mansukluu·am (a) appears to
involve a similar decision to that I have come to."
The case came on for hearing this day, before CoucH,
C.J., and NEWTON, J.
Panefw·ang Balibhadm (with him S!tantaram N,fraya-ti), for
the appellant :-The lower court, having fotmd the tenancy,
was wrong inholding that a claim to the land and to furt,hol'
rent could be extinguished by non-payment of rent for tweh-e
years.
Visliranatlt Govind Oholkar contra.
PER CumAM :-Though the lower court found tenancy, it
threw out the claim, which is merely to recover rent,
because no rent had been paid for twelve years previous
to the filing of the suit. The Conrt was wrong in so doing,
(a) 1 Born. U. C. Rep. 186.

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 APPELLATE CIVIL JURISDICTION, 87
and the decisiou quoted by the Joint Judge does not touch -~1-868_._
this case. We, therefore, reverse the decree of the lower VA~~~~v
court, a.nd remand the ca:.e for the Court to pass a. decree "·
MAHA'DA'Jl
awarding rent becoming due within thrco years before the Au'n.
institution of the suit. Costs to follow the final deci::;ion.
Decl'ce 1·evc1"scd, a111l suit ·remanded.

Refe1·rcd Case. June 22.

VALLA' bin HuA'Jr ........................ ... Pl£tint~t):

Smon bin KoNnA.'JI .........·............... ... Defendant •.
E.i•trinsic Evilk,ice-Patent A,nbjguit9-Writt~1 Co!1tract.
Extrinsic e,·ideuce way be 1-ecei\'etl to identify the thing refe1·rcd to
iu a written agreement. ·
Where there is a written ag1·eewent to delh·el' a quantity of grain
(galla) at a particular time, parol evidence is admissible under certain
limitations to show what kind of grain the contracting parties had in their
contemplation at the time the contract was made.

c.ASE refe1Ted for the <lecisioll' of the High Court by

Janardhan Vasudevji, Judge of the Small Cause Court
at PutJa, under Sec. 22 of .Act XI. of 1865.
"In this suit the plaintiff sues the defendant as the repre.
sentative of his deceased brother, Ramji bin Kongaji, for
the recovery of -ii mat, of galla (grain), or its value, Rs. 9,
011 a promissory note alleged to have beeu executed by the

deceased Ramji.
<.< 'rhe defendaut enters appearance, aud states thl!t he has
no objection if the plaintiff recover against the estate of his
deceased brother.
"The note, on which this aetion is founded, is for ;J ma.t,
aud 2 paya,lia of ytilla (graiu), being the balance of the
former debt, but what kiud of grain is not stated in the note.
it is, therefore, a patent ambiguity; . and extrinsic evidence
cannot be admitted to explain such ambiguity i'l executory
contracts; but in the present case the contract is for an
oxecutecl consideration, and as I doubt whether in this cai:;e
pa.rol evidence might not he let in, to show wlrn.t description

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 88 BOMBAY HIGH COURT REPORTS,

._.,,,,_1s_as_•.,.._ of grain actually passed from the creditor to the debtor, I

;!~!,~: beg to be favoured with the decision of their Lorch;hips on
11. the point."
SlDOII
KoNDA 11I,
'l'he High Court having requested the Judge ~o state hi~
opinion more distinctly on the question of law submitted by
him, he stated as follows : -

"The rule of law is that no extrinsic evidence shall be

admitted to explain a patent ambiguity in a written contract.
Of the applicability of this rule to executory contracts, where
the intention of the contracting parties is to be ascertained,
there is no doubt ; but in the present case the contr&.ct
is for an executed consideration, and that consideration is
expressed by a generic, and not by a specific term. 'fhe
ambiguity, therefore, lies, not in what the intention of the
parties was, but in what particular kind of grain actually
passed from the creditor to the debtor. A distinction may
be made between a case in which the intention of the partie::;
is to be obtained, and one in which what consideration ac-
tually passed from the orie to the other is to be ascertained ;
but I have not met with any reported cases in which such a
distinct.ion has been recognised. If parol evidence be ad-
mitted to explain a patent ambiguity in a contract for ex-
ecuted consideration, as in the present case, it will, I appre-.
hend, open a wide door to fraud. The object of the craft,y
)farv119i in using the generic term "galla" to express tho
consideration, is evidently to extort from the gullible Ku-
lambi a superior kind of grain for an inferior description
actually · lent; and he will find 110 difficulty in procuring
witnesses to support his case. I am, therefore, of opiniou
that it would not be expedient to allow extrini-ic evidence to
be put in in tl1e case submitted by me."

1'1,:t: ()un1AM (S:mv'J'o~ and 'J1ucKER, JJ.) :-'l'hc quc:;tiou

rcforred to u1:1 is, whether extrinsic evidence i:; adllli8sible to
~how what kind of' grain was h1 the contemplation of the
parties to a w1·itteu contract, the writiug contaiuiug onl~· au
ucknowledgment that a certain quantity of g1·ain (ga,l/li) wns
clue, and a promise that thi:,: shonkl he paid in a particular

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-·
APPELLATE CIVIL .TURISDICTION, 80
month, with a certain proportional addition by way of in- -=18_68_.__
VALLA'
terest. HAu',i
We answer the question in the affirmative. ~
Smon
XoNDA'JI,
Although, under the Law of Evidence, as administered by
English Courts, parol testimony cannot be received, to con-
tradict, vary, add to, or subtract from, the contents of a
written instrument, nor is it permissible to explain a patent
ambiguity in a writing by evidence of the declarations of
the maker of the instrument with respect to his intention,
yet it is a settled rule " that extrinsic ev·idence of every
· material fact which will enablo the Court to ascertain tlte
nature and qualities of the subject-matter of the instrument,
or in other words, to ·identify tlte persons ancl things to which
the instrument refers," is admissible. This rule is laid down
with great distinctness by Mr. Pitt Taylor in his 'l'reatise
on the Law of Evidence, Ch. XIX., Sec. 1082, p. 1007 (4th
ed.), and is founded on the authority of the numero~ de-
cisions cited by this learned author.
In addition, proof of a particular usage may be given to
interpret or make clear the 11ignification of any word or sen-
tence employed, the meaning of which, without knowledge
• of the usage, would be doubtful.
In the case that has been submitted to us, the fact that, in
the transaction out of which the debt originated, a particular
kind of grain had been advanced by the plaintiff to the
defendant, would be material, as it would indicate clearly
what was the intention of the parties when the acknowledg.
ment of indebtedness was made ; and we consider that the
plaintiff is entitled to adduce any evidence, documentary or
oral, which may be forthcoming to establish this fact. Fur-
ther, if there be any custom of the district, or of the class of'
persons to which the plaintiff and the defendant belong,
with reference to the term "galla"-for instance, if it be
ordinarily applied to any particular description of grain
which forms the staple crop of the district, or if, as between
a cultivating ryot and his savaka1·, it is uniformly used to
designate the particular crop which the rayat may grow on
his holding in the year in which payment is promised to be
V,-12 AC

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 90 BOMBAY HIGH COURT REPORTS.

~1~8_68_., _ made, it is competent to either party to give evidence of ·

VALLA'
HATA'll
the existence of such custom or usage, and of the collateral
v. facts necessary to identify the thing which formed the sub-
Smon
KoNDA'H, · ject of the agreement between the parties. Within these
limitation!$, we hold that evidence outside the instrument
may be received to identify the thing referred to in the
agreement.

July 1. Referred Case.

MUHAMMAD S1LEMA'N valad MUHAMMAD

IsHAKBHA'1 .................................. . . Plaint{jJ'.

SATU valad HARJI •••••••••••••••••••••••••••••• Defendant.

Growing Crops-M0t,eable Property-Act XI. of 1865, Sees. 19 and 20.

Held thai crops, which have not been severed from the ground, are not
moveable property within the meaning of the term as used in Sec. 19 of
Act XI. of 1865.

CASEBhaskar
referred for the decision of the High Court, by
Damodhar, Judge of the Small Cause Court at
Ahmednagar, under Act X. of 1867 :-
" The plaintiff, in the above suit, obtained, on the 22nd
instant, a decree against the defendant, Sa.tu valad Harji, •
for Rs. 53-7-6, inclusive of costs.
" The plaintiff has now presented an application for execu-
tion of the aforesaid decree, and he seeks to attach, through
this court, as moveable property, a crop of sugarcane grow-
ing on a field belonging to the defendant.
" I consider thi:.t the sugarcane crop cannot be attached
as moveable property, so long as it is not cut and separated
from the land on which it is growing; but before rejecting
the plaintiff's application, I refer, for the decision of Her
Majesty's High Court of Judicature, the question w4ether or
not, in the execution of decrees for money, 9rowing c1·ops
should be treated as immoveable property.
" The words 'moveable property' and' immoveable pro-
perty' are not defined in the Small Cause Court Act, No. XI.
of 1865, or in the Civil Procedure Code, but in the Penal

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-
APPELLATE CIVIL JURISDICTJON, 91
Code it is stated (Sec, 22) that' the words 'moveable property' ~_1_868_._
MUR4XXAD
a.re intended to include corporeal property of every descrip- SILJUU.'N
tion, except land and things attached to the earth, o_r per- 11•

manent1y fastened to anything which iR attached to the S.i.TU Hun.

earth,' and the Criminal Procedure Code gives the same
definition in Sec, 6, only substituting the words 'shall in-
clude' for the words 'are intended to include.'
"In the Registration Act, No. XX. of 1866, the words
'immoveable property' and ' movef\ble property' a.re defined
as follows :-' Immoveable property includes land, buildings,
rights to ways, lights, fisheries, or any other benefit to arise
out of land, and things attached to the earth, or permanently
·fastened to anything which is attached to the earth, but not
standing timber, growing crops, nor grass. Moveable pro-
perty includes standing timber, growing crops, grass, fruit
upon trees, and property of every other description except
immoveable property.'
"In Act No. I. of 1868, entitled 'the General Clauses A.et,
1868,' the following definitions occur:-~ (5) Immoveable
property shall include land, benefits to arise out of land,
and things attached to the earth, or permanently fastened to
anything attached to the earth.' ' (6) Moveable property
shall mean property of every description except immoveable
property.'
" I am of opinion that, under the definitions given in the
Penal and Procedure Codes, and in the General Clauses Act,
1868, growing crops come under the head of immoveable
property ; and that in defining them as moveable property
in the Registration Act, the Legislature has made a special
provision, with a view to prevent the hardship which would
result from rendering compulsory the registration of deeds
relating to property which, though immoveable while at-
tached to the earth, is in its nature moveable."
PER Cu&IAM (NEWTON and TucKER, JJ.) :-The Court agrees
with the Judge of the Court of Small Causes that crops,
which have not been severed from the ground, are not
moveable property within the meaning of the term a.s used
in Act Xl, of 1865.

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92 BOl03.A.Y HIGH COURT REPORTS,

1868. Referred Gase.

July 1.
MoRo VITHAL ................................. ... Plaintiff.
TuKA'RA'ii valad MALHA 1 RJI et al. .. ....... ])efendant$.
Bbadekhat-Registration-Lease-Counterpart of a Lease-Act XX.
of 1866, Stc. 17.
Held that a bhadelckat is an agreement between a lessee and a lessor
in the nature of a counterpart of a lease, and that an instrument of this
character must, for the purposes of the Registration Act, he treated as a
lease.
Held also that a provision in the bkMekliat that the kssee might after
six months remain in occupation at a monthly rent, till the lessor ca1led
upon him to vacate, did not extend the term for which the lease was
granted, as at the condusion of that term the lessee wo11!1l be only a
monthly tenant of the lessor.

CASE referred for the decision of the High Court., by

Bh~skar Dlmoclhar, Judge of the Small Cause Court
at Ahmednagar, under Act XI. of 1865, Sec. 22 :-
" In the above suit the plaintiff seeks to recover from the
defendants the sum of Rs. 13, under an unregistel·ed blifuJe-
khat (agreement to pay rent), which was passed to him by
them on Vaishakh Vadya 7th, Shake 1789, corresponding
with 25th May 1867.
" The defendants stated in the bhadekhat that they agreed
to pay a rent of Rs. 5 a month for a ;oom, and o{a (veranda
in front of the room) hired from the plaintiff; that the room
and ota had been. hired for a period of six months, but that
the defendants would pay rent at the same rate for any
period in excess thereof for which the plaintiff might allow
them the use of the room and ota. ""' ~ -~.,...
" Th';;-~ntiff'shtt~-;th";t"the. defendants had the uso of the
room and ota for seven months and a half; that they ~ave
paid rent for the five months ; and that the rent for two
months and a half is still due.
" The defendant has not appeared, and the Court has to
pass an ea: parte judgment. The case is a very simple one,
but there are two questions of law on which I beg to be
favoured wi~h the decision of Her Majesty's High Court of
Judicature.

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 APPELLATE CIVIL JURISDICTION, 93

"The questions are-(1) Whether or not a bhatlel.11cit 1808.

should, under the Registration Act, No. XX. of 1866, ·be re- 1\
garded as a lease ; and (2) whether a lease of immoveable
property for au indefinite pe~d should he rPgarded as a
lease for a term exceeding one year, and as such requiring
to be regist;red under Se2I 1 of :A.et No. XX. of 1866.
"A bhaclekhat is passed by a person to whom property
is let, to the person who lets the property, and the person
signing it agrees to occupy ancl pay rent for the property
on the conditions therein stated. This document remains
with the person who lets the property. 'fhe latter does not
pass any document to the otl1er party binding himself to
fulfil his part of the con tract.
'' In Sec. 2 of Act No. XX. of 1866, it is stated that a
' Lease includes a counterpart, a kalllllayat, an undertaking
to cultivate or occupy, and an agreement to lease.' Thei:;e
words appear to me to be intended to include documents of
the nature of bhcidekl111te, which contain an agreement, by
the person to who~ property is let, to occupy and pay rent
for the property -'>11 certain conditions.
" By Sec. 3 of Schedule A of the Stamp Act, No. X. of
1862, any 'agreement, or minute or memorandum for a lease,
or of the terms and conditions on which any land, house, or
other real property is let, held, or occupied,' is made liable
to the same stamp as for a lease of the same property
on the same terms and conditions. A bhfuleklwt is, there-
fore, subject to the same stamp duty as a ·lease, whether or
not it be treated as a lease or a counterpart of a lease.
Under the Registration Act, however, the necessity for re-
gistering a bh(ulekliat would arise only in the event of its
being regarded 'as a lease, under the definition of .that term
above quoted. It is, therefore, important to decide this ques-
tion authoritatively.
"With respect to the second question, it may be observed
that a lease for an undefined period cannot strictly be called
a lease for a term exceeding one year; though, if it pleased
the parties concerned, it woulc! admit of the property leased
being held on the terms of the lease for any number of

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 94 BOMBAY HIGH COURT REPORTS,

_1868. _ years. In the Stamp Act, No. X. of 1862, there is a special

MoRO VriHAL
•11 prov1s10n
• • (Sched ule A, Sec. 41) mak'mg a 1ease 1or L' an m-
•

TuKA'R,A'x
M definite term liable to the same stamp duty as a lease for a
ALHA RJI
et al. period exceeding one year; but there is no correspondiug
provision in the Registration Act, and I am, therefore, of
opinion that a lease for an undefined period should not bo
treated as one requiring to be registered under Sec. 17 of
Act No. XX. of 1866. I, however, consider that an un-
registered lease for an undefined period would cease to have
any effect after the expiration of one year, and that no claim
to rent for any period in excess of one year can. be supported
by such a lease.
" In the case to which this reference relat.es, the bluideMta.t,
though purporting to be one for six mont.hs, contains a
provision which virtually makes it one for an undefined
period. As, however, the contract therein made terminated
before the expiration of a year, I would use it as evidence,
and allow the plaintiff's claim, in the event of the opinion
above expressed being concurred in by the Honorable the
i Judges ofthe High Court."
PER CuRIAM (NEWTON and TocKER, JJ.) :-We concur with
the Judge of the Ahmednagar Court of Small Causes that
the instrument ~ ~-fe.r emi·-~l'Ott'Sffi~raiion, namely, 11
bha<jeldtat, is an agreement between a lessee and 11 lessor in
\! the nature of a counterpart of a lease, and that an instru-
ment of thia"'°ch~racter mus·u, fo; the purposes of the Regis-
tration Act, be treated as a lease.
We are, further, of opinion that as this particular instru-
ment docs uo.t . biiul the lessor to continue . the lessee in
. ..,. -..---........
occupation for a longer period than six months, it must be
.. held to be a lease for that term only, and consequently does
not require to be registered under Sec. 17 of Act XX. of
1866. The provision, that the lessee may remain in occupa-
tion at a monthly rent till the lessor calls upon him to va-
cate, does not, in our opinion, extend the term fo~ ~hi~ the
lease was granted, as at the conclusion of that term the
lessee would be a mere monthly teuant of the lessor, and
have no larger lease.

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 APPELLATE CIVIL JURISDICTION. 95

Civil Petition. 186fl.

July 2.
GANGA1DHAR RAGHUNA 1TH ..................... Petitioner.
0HIMNA 1JI KEsHAV DA'MLE ••••••••••.•••• ••• Opponent.

Minor-Hindu Law-Execution of Decree-Reg. V. of ltl2i,

Ser.. VII ., cl. 3.
Held that a Hindu of the age of seventeen years was competent to ap-
ply for the execution of a decree obtained by a deceased person of whom
he was the representative.
Reg. V. of 1827, Sec. VII,, cl. 3, does not prevent a Hindu leas thRn
eighteen years of age from suing, but restricts him to a particular
period after which he is no longer a minor.

THIS was an application to the High Court in the exercise

of ita extraordinary jurisdiction, under cl. 2 of Sec. v.
of Reg. II. of 1827.
One La.khshmibai, the widow and representative of Raghu-
n~th Trimbak Sane, filed a. suit against Chimi;iaji Keshav
Damle for the redemption ot' a. house, and finally obtained
a decree in the High Court (in Special Appeal No. 32 of
1866, decided on the 25th of June 1866) to the effect that
she (the plaintiff) should, on payment of Rs. 222, recover
possession of the house in dispute, and that in default of
payment of the said sum of Rs. 222 within six months
from the date of the decree, the mortgage should be fore-
closed. Lakhshmibai having died, the petitioner, Ganga-
dhar, alleging that he was her adopted son, applied for
possession of the house on payment of the sum decreed for
redemption. The defendant, Chimi;i(tji, opposed this applica-
tion, on the ground that the petitioner was a minor, and
that, therefore, a guardian, holding a certificate under Act
XX. of 1864, alone could sue out execution. The Munsif,
however, on the 24th of December 1866, overruled the objec-
tion, on the ground that tho petitioner was seventeen years
of age, and was capable of managing his own affairs, and that,
there~ore, no certificate of guardianship was required in the
case, He accordingly made the order prayed for. From
this order the defendant, Chimi;if1ji, appealed to A. L. Spens,
Acting Judge at 'l'ha1;111, who recorded his judgment as
follows:- ·

D1g1tized by Google
 96 BOMBAY HIGH COURT .REPORTS.

1868. "I find that the Munsifhas erred ( l) in allowing execution

GANGA'DHAI!.
RAGHUNA'·rn on the application of a minor; (2) that he has erred in
CHx:~A'Ji allowing execution until the applicant had procured a cer-
KEsHAv tificate from the District Court, seeing that it is not abso-
DA'MLE,
lutely certain that the applicant is the legal representative
of the deceased decree-holder. Sec. 208 of Act VIII. of '
1859 does not make it essential that a certificate should in
every instance be obtained by a representative before he can
be allowed to apply for execution : Rajah Gopal Singh Deb
v. Gopal Olrnnder Ohiicke'l'butty and another (a) ; but Sec.
208 does require that the Court should satisfy itself that the
applicant is what he professes to be."
It was further contended, in appeal, that the Munsif had
ordered possession of property which was not mentioned in
the decree of the High Court; and, as regarded this head of
appeal, the Acting Judge postponed the inquiry until a ·
copy of the decree passed by the High Court should be
produced.
rrhe appeal was subsequently called on for hearing before
R. H. Pinhey, District Judge at ThaI].a, who, on the 23rd
of November 1867, reversed the Munsif's order, observing
that the appeal was virtually disposed of by the late Acting
Judge, when he determined that the Munsif had erred in
al!owing the execution on the application of a minor.
10th March 1868. Shf.mtarani Narayati obtained a Rule
nt'.si to set aside the order of the District Judge.
Dhirajlal Mathuradas now showed cause :-The applicant
is only seventeen years of age, and is, therefore, a minor, and
incapable of executing the decree. This Court has ruled that
for the purposes of limitation the age of a claimant must be
construed according to the law of the party in the case, and
that Act XX. of 1864 makes no difference in that respect:
Hari Maltaclafi Joshi v. T'asuclcv ]forcsln:a1· Joshi (b); but,
though by Hindu Law the age is different, eighteen years is
fixed as the period of minority under cl. 3, Sec. vu. of Reg.
V. of 1827. If a man is minor for bringing a suit, he
(a) 7 Cale. W. Rep., Civ. R. 393. (b) 2 Bom H. C. Rep. 348.

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 APPELLATE CIVIL JURISDICTION, 97

cannot ajo,l'fiori make an application for the execution of a. __1_868_._

GANO.\'DHAR
decree. lt.\oHl'NA'TH

PER CuRIAM (NEWTON and •rucKER, JJ.) :-Under the gen- i·. ,
0 HDIN.\ JI
eral Hindu law, the applicant, having attained the ngo of Kr.AK.\v
D.\' llr.11:.
seventeen years, was competent to institute nny legal pro-
ceedings for the purpose of enforcing his rights. Cl. 3, Sec.
VII., Reg. V. of 1827 fixes a i-pecial perioll of limitation in
cases of minority, nnd merely prescribes the age of eighteen
years ns the time nt which the minor's <lisnbility is to
cease. Except for this particular purpose, it <loes not alter
the general law. ,v
e, therefore, reverse the order of the
District Judge made on the 23rd of November 1867, and
direct that he proceed with the further consiclerntion of the
opposite party's nppenl. Costs of this npplicntion to be borne
by Chin11.1{tji KeshnY.

.Tuly 14.

JIT)LU, valad B.rnmwoA's ............ ..... ;Plai11tW,

R.\,~ff'HA~l)R:\ ,alad J.\GTIFP ft al. . ...... .. Defendants.

Small Cause Co11rt-OrdM" rejecting 11lai11t-Power ot set aside.

Held that it is not competent to the Jutlge of a Small Cause Court in
the )fofussil to set asi1le au ort!er whi<·h be has mat!e rejecting a plaint .

. CASE referred for the decision of the High Court, under

Sec. 22 of Act XI. of 18G,j, by Bhaskar Damodhar,
Judge of the Small Cause Conrt nt Ahmecluagnr.
"The aboveuamed plaintiff presented bis plaint on the 20th
of March last, and it wns set down for disposal on tl1e 10th
of April. It was, however, found on that day that the
pln.int did not clearly describe the cause of action. The
plaint was, therefore, rejected, in accordance with Sec. 2U of
the Code of Civil Procedure, the provisions of wl1ich have,
by Sec. 47 of Act XI. of 1865, been extended to all suits
and proceedings under that Act, so far as the same may be
applicable.
"On the 16th of April, the plaintiff presented nn applica-
tion praying that the order rejecting the plaint might hP
V.-13A C

D1g1tized by Google
 !)8 BOMBAY HIGH 1'.'0URT REPORTS,

1868. set aside, antl permission granted to amend the plaint.

Jl'fllAL
Notice of the application having been given to the defend-
R~HIR.\YDA's

' 11 •
RAMCHANDRA
ants, they have appeared by vald,l, and the plaintiff is also
.J.rnRur present.
et al.
" The first question which arise3 in connection with the
plaintiff's application, is whether or not it is competent to
this court t.o set aside its order rejecting the plaint. Sec. 21
of Act XL of 1865 runs as follows : -
'In suits tried under this Act, all decisions and orders of the Court shall
he final : provided that in any c1tse in whirh a- decree shall be passed
l'X parte against a defendant, he may, within thirty days after any process
for enforcing the decree has been executed, give notice to the Court by
which the decree was passed, of his intention to apply to the Court at its
next sitting for an. order to set it aside : and if, on the application being
made to the Court at its next sitting, it shall be proved to the satisfaction
of the Court that the summons was not duly served, or that the defendsnt
was prevented by any sufficient cause from appearing when the suit was
he1trd, the Court sha11 pass an order setting aside the decree, mul shal1
appoint _R day for proreecling "·ith the suit, upon s1wh terms as to costs 01·
otherwise as shall to the Court seem proper : provided also that it shall
be competent to the Court, if it shall think fit, in any case not fallin~
within the proviso last aforesaid, to grant a new trial, if notice of the in-
tention to apply for the same at the next sitting of the Court be gi,·cn to
the Court within the period of seven dnys from the date of the decision,
and if the same be applied for at the next sitting of the Court; but no such
new trial shall be granted where the party applying for the same is the
defendant, or one of the defendants, 1mless he shall, with his notice of
application, deposit in Court the amount for which a decree shall have
been passed against him, including the costs (if any) of the opposite pai·ty.

"Under the above-quoted section, all decisions and orders

of this Court are final. It has, however, been provided that
r:e pm·te decrees may be set aside, on .the application of the
defendants, under certain circumstances; and that in other
cases ' a new trial' may be granted, if notice of the intention
to apply for the same be given to_ the Court within the
period of seven days from the date of the 'decision,' aml
where the party applying for a new trial is tlie defPn<l::rnt,
if lie deposit· in court, with his notice of application, 'tlw
amount for which u decree Rlrnll h:we heen passed against
him, inelncling the costs (if any) of the opposite party.' 'J'hi~
provision does not seem to be applicable to orders other
than decisions or decrees. In order, however, to remove
r,Jl donhts on the subject, I beg to refer, for the decision

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 APPELLATE CIVIL Jt.:ltlSIJll:'l'lON,

of the Honorable tho High Court, the following question, -- l~~

namely :- J n.1Lu,
B .\111 R .\\'DA 't;

" Arc all orders, not being 1focrccs nnd decisions, issued BA',,1;11;·,xu&.\
under A.et XI. of 186.3, final, under Sec. 21 thereof; 01· can h 1t;R,i P
C 0. •
they be set aside under circumstances similar to those under
which decrees and decisions can be set aside?
"I am of opinion that orders, not being decrees or deci-
sions, issued under A.et XI. of 1865, are final, If, however,
the Honorable the Judges of the High Court rule othorwh.e,
I shall dispose of the application, which has given rise tu
this reference, accordingly."
Pim CuRIAM (CoucH, C.J., and NEWTON, J. ):-'l1he Com·t is
of opinion that it is not competent to the Jndge to set aside
the order rejecting tho plaint, and that this case cannot be
brought within the power, which may be possessed by a
Small Cause Court, to correct, on review, an evident error or
0Ull8S10n,

Rcfc1"1'cd Case. July U,

ltA'ICHAXD ]\fa~GAL, •••.•••••.•••••.••.••.••••.•• Plaint ff/.

ABDULLA' AMRGDDIX KorvA'L ............... ... Defenda11t.

"}mall Cause Court-Military Code.

Held that _the rules and orders in the Military Code are not bimliug 011
a Small Cause Court.

CA.SE referred for the decision of ~he High Court, under

Sec. 22 of Act XI. of 1865, by Gopalrav Hari Desh-
mukh, Judge of the Small Cause Court at A.hmedabud.
Question-" ·whether or nQt, iu a suit against a camp
follower, the Civil Court, established by Act XI. of 1865, will
be bound by the rules and orders in J ameson's Code of
:Military Regulations."
"The law to be followed by Civil Courts in adjudicating
upon claims is described in Sec. 26 of Reg. IV. of 1827 : -
' The law to be observed in the trial of suits shall be Acts
of Parliament and Regulations of Government applicable to

Digitized by Google
 100 llOll.DAY IU(HI COl.iRT REPORTS,

__l.=--8_68_._ the case; in the absence of such Acts and Regulations, the
RA'ICHAND
MANGAL usage of the country in which the suit arose ; if none such
Auoi~u, appears, the law of the defendant, and in the absence of
AllauoorN specific law and usage, justice, equity, and good conscience
KOTVA'L,
alone.' I am, therefore, of opinion that the rules and
orders in the Military Code will not be binding upon Small
Cause Courts, or any other Civil Court.
"The circumstances of the case are as follows :-The
plaintiff has sued upon an account purporting to be signcu
by the defendant. 'fhe defendant denies his signature, and
pleads that, as a public follower of the camp in the receipt
of Rs. 25 per mensem as .his pay, he was not entitled to cre-
dit for so large an amount as is alleged by the plaintiff to
have been lent. In support of his plea, he produces para.
176, Sec. VII., Bazar, in the 2nd Appendix to Jameson's
Code. The paragraph belongs to a General Order issued
by His Excellency the Commander-in-Chief, under date
the 28th of August 1852. It runs thus:-' No credit beyond
one calendar month shall be given to sepoys or public
followers, and no award will be passed, unless the claim be
filed within one month subsequent to the issue of pay next
after the debt has been incurred, in accordance with Art. 33,
pp. 77 and 43, p. 78, Sec. VII., Jameson's Code; and such
credit shall only be allowed upon the authority of a written
document, distinctly specifying to what ertent it is to be
give1:1, and shall not c;eccc,l half the mte of the debto,·'s pay,
except in special cases, when the reasons for allowing in-
creased credit shall be clearly set forth in the document; but
in this case such aclclitional cl'edit shall not r.;ccced one-fom·th
(If the rate of the debtor's pay. These documents shall be
signed by officers commanding troops, companies, or in
charge of departments.'
·" Whether or not the account was signed by the defend-
ant is a question of fact, but I have thought it proper to
refer the other question, which, in my opinion, is one of law.
"Major G. Cooper, Assistant Judge '.Advocate General,
N. D. A., and Colonel W. L. Cahusac, Assistant Adjutant
General, N. D. A., who have been examined on behalf of the

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 •

Al'r.t,;LI,ATJ:. CIVIL JGR1SD1("1'1UX. 101

defendant, state that they both were the Cantonme~t Magis- ~ ~ - ·_

trates at .Ahmedabad, and that the rule was fully carried out ~~~:~:u
as respects the Court of Request in the camp (Acts XI. of Au~~LLA'
1841 and XII. of 18i2), and that it has been publicly and All~t·ou1s
Kcn,·.1.'L.
repeatedly notified to the camp traders."
PER CuRIAK (CoucH, C.J., and NEWTON, J.) :-The Court
is of opinion that the rules and orders in the 'Military
Code a.re not binding on the Small C~usc Court.

July 14,,
Rf'fi'1Tcil Ciril Case.
Cnor.\'LAL A1tRITLAL ........................ ... Plaintijj'.
Bo:..rnAY, B.rnoD.\, & CEXT.UAL hmA Rur.-
\VAY Co. . .. .................... . ......... ... Dt'}cndanls.
Stamp-Descriptio11 of Document-Cir. Proc. Code, Ser. 40.
Held that the tlescription of a dornmcut tleli\"ercd to the Court under
Sec. 40 of the C0tlc of Ch·il Procetlnre is neither a petition nor an applica-
tion, liable to duty within the meaning of the Stamp Al't.

CASE rcfo1Ted for the dechiion of the High Court by Go-

palrav Hari Deshmukh, Judge of tha Small Com-t. at
Ahmedabad, under Sec. 22 of Act XI. of 1865 :-
Question-" Whether the description of a document re-
quired by the plaintiff from the defendant, under Sec. 40 of
Act VIII. of 1859, delivered to the Court that the same may
be called for from the defendant, under Sec. 43 of the same
Act, should be considered the first application for the sum-
mons of a. witness to produce a document which is exempted
from stamp duty by Act XXVI. of 1867, Sec. 6, Art. 10."
The Judge was of opinion that the description should not
be considered the first application for the summons of a
witness to produce a document, or ' in respect of the pro-
duction or filing of any exhibit' which is exempted from
stamp duty by the Act above quoted. The exemption should,
he thought, apply to the first application made subsequent
to the description, which is always given with the plaint.
PER CuRIAM (CoucH, C.J., and NEWTON, J.) :-The Court
is of opinion that the description of the document given

D1g1tized by Google
 10:! llO}lBA.Y HIGII COUUl' REPORTS.

1868. under f:;ec. 40 of the Code of Civil Procedure, is neither

-G,101':\ 1.~
1
AM,mLA'L a. petition nor an application, liable to duty within the mean-
t•, ing of the Stamp Act, and the question whether the exemp-
B. B. & C. I.
RAIL, Co. tion applies to it does not arise. If the description were to
be regarded as an application for a summons to the de-
fendant, under Sec. 43, to produce tho document, then it
would necessarily be the firr:,t application within the meaning
of the exemption.

Miscclla11eo111J Iwgnlat Appeal N<1. 2 of 1868.

MAKUND:\.' valad R\ LA CHA RYA •••••••••••• Appellant.
1 0

SrTA'IiA'M and N1Lo ....................... . ... Respondents.

!.,imitation-Old Decrees-Act XIV. of 1859, Sees. 20 a11d 21.
Sec. 21 of Act XIV. of 1859 is to be read as an independent section, and
distinct from Sec. 20 of that Act.
Bai U'dekui,ar v. Mu.lji Naran (3 Bom. H . C, Rep., .\.C .J. 17i)
followed. ·
Where the holder·of a decree which was in force when Act XIY. of
1~59 cam.e into operation apl'lied for execution on the 5th of December
1864, but allowed that application to drop, and again applied for execu-
tion on the 28th of March 1866 it was held that he was, barred by the
law of limitation.
THIS was a Miscellaneous Appeal from an order made by
· R.H. Pinhey, District Judge at Tha!)a, under date tho
:Bud of November 1867, in the matte;. of the execution of a
decree.
'rhe appellant, having obtained an arbitration award in his
favour on the 9th of February 1857, which was then filed in
court under Reg. VII. of 1827, presented, on the 5th of De-
cember 1864, an application for its execution as a decree of
court under cl. 1, Sec. IX. of the said Regulation; but, as he
did not appear to prosecute ~t, no proceeding was taken on
the application, and it was dismissed on the 18th of January
1866. Subsequently the applicant made another application
for execution on the 28th of March 1866, but the Judge re-
jected it, making the following order :-
,, I reject this application under Sec. 21 of Act XIV.
of 1859. The decree, which the plaintiff seeks to execute,

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 APPELLATE CIVIL JURISDICTION, 103

was pasBed on the 9th of February 1857. (It is not actually __ 1s~~-
• M .u .nrn.\'
a decree, bnt an award by arbitrators under the old law of B.\'L.\'cHA'nu
1827.) It was, therefore, a decree or order in force at sn::aA'M
the time of the passing of .A.et XIV. of 18.j9, Therefore, by et nl.
the provision of Sec. 21 of that Act, the provisions of Sec.
20 ~f the .A.et do not apply to the plaintiff's decree. In
this case, I follow the rnlin~ of the Bombay Higl1 Court in
the case of Bai U'tlddwar v. Mulji Nata?i, datcJ_l2th Decem-
ber 1866. The plaintiff's pleader hns brought to my notice a
Calcutta High Court ruling {per Kemp and Jackson, JJ.), on
the 1st of February 186G, in the case of Ga,qpel' Gl'egnry
( decree-holder), appellant, v. J11y2mt Ok1111dN· Ba111Jee, judg-
ment debtor (respondent): Cale. W. Rep., Vol. V., Misc.
A pp., p, 17; but no reasons are given by the learned Judge11
in the Cnlcntta Court for the words used in their jndgment,
that " on the next an<l snbseqnent npplicatiQus the C'onrt.
woultl hnYe to be guided by the rnle in Sec. 20," and I con-
fess tlm.t. I do not see how to reconcile these wnnls with
t.hc ,·cry plain lnngnngc of Sec. 21."
From this order an appeal was prefer-red to the High
Court.
The case was heard this dny, before Coucu, C. J., nml
NEWTON, J.
8lifmtad1m Nal'ayau, for the appe_llant :-'l'he Judge hns
followed the decision of this Court in the cnse of Bai
lI'(lekttl'fti' (a) ; but certain decisions of the Calcutta High
Court do not appear to have been adYerted to when that
decision was come to, particularly the case of Mohaliee;·
I'e1'sctd v. l1[111Jsa11utt Pranpntf,,e Koe,· (b) by a Full Bencl1,
There Sir Barnes Peacock has put an interpretation npon
Rees. 20 and 21 of Act XIV. of 1859 which is warranted
by the language of the L<'gislatnrc>, nrnl cloes not kad
to any nnrem;onahle rf'snlhi, As ruled in that ca~c>, the
proper construction of the two sect.ions (:!0 and 21 of
the Limitation Act., XIV. of 18;'",fl) tnkc>n toget11c>r is thnt,

(a) 3 Born. II. C. Rep., A.C.J . 1i"7.

(b) i Cale. W. Rep., Civ. R. 515, tle<'itlf'<I J;ith Mnr<'h l~lii, sub-
sequently to the rase of Bui U'dektirar "· JI11lji 1\'1ira11,

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 104 BOMBAY HIGH COURT REPORTS,

1868. the words coming after the word 'but' in Sec. 21 are
~A~uNo,--1.'r·
B ALACHAR •
to be read as a proviso to Sec. 20. . By this construction
ti. nll difficulties are got rid of. The two sections thus read
SITA'llA'lt
et.al. together will be to the effect that no process of execution
shall issue upon any judgment more than three years o.ld,
unless some proceeding shall have been taken to enforco
or keep it in force within three Jears next preceding the
application for execution; provided that process of execution
iu respect of a decree obtained before the passing of Act XIV.
of 1859 may be issued,. either within the time limited by
law, or within three years next after the passing of the Act,
whichever shall first expire, even though no proceeding
shall have been taken to enforce it or to keep it in force
within three years next preceding the application for execu-
tion. Sir Barnes Peacock, whose opinion on this subject, as
he wn,s a member of the Legislative Council when the Act
was passed, is entitled to great weight, observes:" Rending
the two sections together, it appears to us that the above
construction is a reasonable one, from which no injury can
arise to any one, _and which will carry out the real inten-
tions of the Legislature." [CoucH, C. J. :-Then no effect ~s
given to the first clause in Sec. 21, but it is ·to be entirely
omitted from the section. Vve cannot leave out a clause
inserted by the Legislature, but must give it some effect.]
It will have effect. Sec. 20 contains a restriction that no
. process of execution shall issue, unless some proceeding
shall have been taken within three years previously, and
the first clause in Sec. 21 evidently refers to this restric-
tion and says that in respect of decrees in force at the pass-
ing of Act XIV. of 1859 nothing of the preceding section,
20, i. r'., nothing of the restrictions in that section, shall apply.
[NEW'l'ON, J, :-If the first part of Sec. 21 simply means
what you say, then what would be the use and meaning of
the second part, commencing with" but;" it would mean the
same thing . . We must give the first part some meaning that
· is not borne by the second.] 'l'he Court is bound to construe
the whole of the language of the Legislature, and to put an
interpretation upon it which is reasonable. The Court can-
not overlook the consequences which are likely to ensue from

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 APPELLATE CIVIL JURISDICTION.

so strict a. construction as that put upon the section in Bai ~ - ·_

. den.uvar
U'. 7 , '
s case. There mus t b e numerous old d ecrees t o B.\MAKU'.\'D.\'
'L.\'cHA'Ra

which Sec. 21 so construed coultl not apply at all, or, if SIT 1\•• R.\ 1 1 .\(

applied, would be prod•1ctivo of the most serious harm. et al.

Decrees payable by periodical instalments, for instance, 01·
for the entire fulfilment of which a period has been prescribed
which goes beyond the period of three years limited in See.
21, it would be impossible to execute. [CoucH, C.J. :-Such
clecrees can hardly be conf:idered to be 1'11 /01·,·1' at the time of
the passing of the Act in respect of instalments which ha.cl
not become duo nt that time.] Then there is anoth<'r more
serious incom·euicncc. Under the olcl Regulations, as well
as under the CiYil Procedure Code, a practice has existed
almost uniformly throughout the ·western Presidency to
receive an application for execution; to take some steps upon
it, and, whether any satisfaction has been obtained upon it
or not; to put it by "as disposed of" (nil.:al), as soon as the
period of the warrant issued upon it has expired. If the judg-
ment-creditor should desire further execution, he must present
n. fresh application, when a fresh warrant will issue. This
prn.ctice has existed in almost all the courts from tlie earliest
time, and there must be a large number of applications for
execution which have been laid by as " disposed of," in pur-
suance of this system, within the three years after the passing
of the Act; thus, by the act of the Court, if the interpreta-
tion contended for is to prevail, all these decree-holders, who
have been dilige:at enough to make applications for execution
within the time, have to suffer. [CoucH, C.J. :-The point
does not arise in this case, as the first application for execu.
tion was made after the lapse of three years from the passing
of the Act, and we are not called upon to decide it ; but Sec.
21 appears to require only that process of execution should
be issued: and if this is done, I think the decree-holder satis-
fies the law, and I do not see anything in the law that pre-
vents the same warrant from remaining in force, the period
being enlarged from time to time, or the issuing of a second
and a third warrant upon one application for execution until
it is fully satisfied.]
Nf:rnabhai Ha1'i(lu-~ for the rel'lponclent.
y.-14 AC

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 1011 IIOMllAY HIGI1 counT r.ErOr.T.::.

1Sfl8. Coucn, C. J. :-The award or the decree sought to be

l\f.\KUXDA'
BA'LA'nIA'RYA execu t eo,
1 l
1m,ng· been ma de on th e 9th of F eb ruary 18~7 v .
1' ·
SnA'RA'.11
was in force at the time of the passing of the Limitation Act.
et al. The first application for execution was made on the 5th of
December 1864, which was more than three yea't's after the
passing of the Act, and was, therefore, of no avail (c). A
second application was made on tha 28th of March 1866, and
it was rejected as barred by the law oflimitation. The con-
tention is that the provisions of Sec. 20, as well as those of
Sec. 21, applied to the case; but in the case of Bai U'dckui-m·
we have ruled that Sec. 20 does not apply to such cases.
,vith reference to this, we are referred to a Full Bench
decision of the Calcutta High Court, which rules that Sec.
21 is to be taken as a proviso of Sec. 20. Notwithstanding
the great respect I have for the Chief Justice :mcl other
Judges of that court, I must say that I cannot concur in
that decision. In the recent case of Fnentos v, Montis (cl) two
eminent Judges have expressed themselves in language which
is very applicable here. Mr. Justice Willes says (p. 2S3) : -
,, I am at all times anxious to give full effect to the intention
of the Legislature as expressed in the language they have
used. But ! do not feel myself at liberty, from any notions
of expediency which I may entertain, to go beyond tlmt
which I find written. I, therefore, feel compelled to deal
with the Acts of Parliament in question according to tlrn
expressions I find there." Mr. Justice Montague Smith
says (p. 285) :-" I should have been glad to have given a
construction to the Factors Acts wide enough to include this
case, because I certainly think that that which has occurred
here falls within the very mischief against which, in some
instances at least, the Legislature meant to provide; but I
am bound to construe the Acts according to the language
which the Legislatui·e have used, and I do not feel myself at
liberty to insert words which are not found in those Acts."
Nor do I feel myself at liberty to omit the words which I
'
(c) See 3 Bom. II . C. Rep., A. C. J. li5, which m·errules the 1leei·
sion in l Bom. II. C. Rep. !)-1.
cl) Lnw Rep. 3 C. P. 2G8.

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 ,\l'l'J::LLA'fE ClnL JUI:1:-!DlcTluX. 107

find iu Sec. 21 of Act XIV. o( l 8G\1, uamcly, "nu thing in _ _!.!:~~-·_'_

•
• sha 11 app 1y to any Jll
. section
the prccccl mg • dgmeut, c} ecrce, llA'u'rn.~'in.\
J\I.\Ji.t:XUA'

or urder iu force at the timo of the passing of this Ad,·" S1TA'R.\')I "'·
and, tlicl'cforc, I must n<lhere ·to um· former dcci:sion that et ul.
~cc. ~O doc:, not apply to olJ decrees. I, accordiugly, reject
the appeal,
NE\'v~roy, J. :-I fully concur.

Special All'l1ccil No. :118 of 18137. hly :H.

J\lAKHA~ N.u'Kr'N, daughter of ALLA·

lL\KHI ...........•..• •.••.••....•..•...••••••• , • J4.1)jJella.nt.
J\h'Nl'IBSD LADIIA 1 IllL\ 1I, deceased, his
heir his brother NAHA 1LCllA~D, et al .... Responclents.
Appeal-Time fol' Appealillg-Ralcillg up old Claims.
Au appeal will not be allowed, after the time for appealing has expire<l,
merely because a jmlgment altering the view of the law which prernile1\
at the time of the tleeision of the original suit has subsequently been
gi\'en by the High Court.

THIS was a Special Appeal from the decision of F. Lloyd,

.Judge of the District of Pm.ta, in Appeal No. 3M) of
18135, confirming the decree of the Muusif of Pm}a,
'!'he original suit was instituted by Manchand, on the 24th
o( August 1860, to recover possession of a house mortgaged
to him, on the ground that he had, according to the terms
of the mortgage bond, become a proprietor of the house, as
the money was not repaid within the stipulated time.
The Munsif awarded the claim on the 19th of January
1861. Against this decision the defendant, Makhan, pre-
ferred an appeal in Jonna p cmpcris, but the Judge, on the
10th of April 1861, refused to admit it ou the file. Sub-
sequently, on the 10th of August 1865, the defendant filed a
duly stamped regular appeal. The Judge, F. Lloyd, however,
confirmed the Munsif's decree, for the following reas'ons : -
" The present appeal was not filed till the 10th of Augnst
1865. Iu the lllcan time, namely, ou the 2Z>th of SeptemLer

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 108 llO.MD.\Y li!Gll COURT l,J::l'Ol(TS •

• 1868_:_ _ 1861, the house in dispute had been made over to the plain-
1\I.uuu;,i
N,u'Ki';,i t 111s.
·1r The dec1s10n
· · of t h e M•uns1'f was m
· con1orn11
i.' ·ty w1'th
· thc
v.
)1.\'NC:H .\ND
view then generally held of the law, namely, that a bon<l
LADHA'a11.1.'1 like the one on which this claim is founded, confers on the
et al.
mortgagee an absolute right to property in the event of the
mortgage-money not being paid off within the time limited
in the mortgage instrument ; but it is now sought to get
the l\Iunsif's decree amended, on the strength of the High
Court's decision in S. A. No. 299 dated the 31st of August
1864.
"I am of opinion, however, that to apply this ruling to
the present case would be very unjust ; and as in the decision
quoted the High Court further laid down that in cases of
this kind ' the determination must be left in a great measure
to depend on an equitable consideration of all the circum-
stances attending it,' I decline to interfere."
'rhe case was heard this day, before Coi.;rn, C.J., and
NEWTON, J.

Dhimjlal Matlrnrada::; for the appellant.

PanrJ,urang Baliblwd1·a for the respondent.
CoucH, C. J. :-'fhe application to appeal in fun,tii pall•
pcris was rejected in 1861, which was three years before. the
<lecision in Ramji v. Chinto (a). 'l'he appellant, with a view
to take advantage of the decision in that case, filed an appeal
on the 10th of August 1865, which was a year after the de-
c1s1on. But we cannot allow advantage to be taken in this
way of a new ruling·. "\Vo mu:;t; therefore, confirm the
lower court's decree with costs.
N1::wToN, J., concurred.

La) l llom. ll. <.:. Rep. 1(19.

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 Al'l'ELL.\TJ:: Cl\"lL Jt.:l:ltilHCT!ON, 109

1868.
8pc1_·ial Appeal Nv. 70 of 18(38. July:?~.
ih:-;c1Lu,~1u' AsHPAxna'rur ............... Appellu II f.
K,UHW~ISA' Bi::t:AM .. , .............. , ......... llc~pull(lrnl.

P<frsi Law-Morlgage-lmprovt1ne11t-Repairs-By-al- W11fa-

Reg. IV. of l~:.?i, Sec. :.?6.

In a suit brought by a Muhammadan to 1·edecm from the defeml11nt, who

was a Parsi, certain property that had been eonYeyed by the ancestor of
the former to the ancestor of the latter by a by-al-wafa (deed of con-
ditional sale) :
Held that the law to be applie«l was, un«ler 8ec. :.?6 of Reg. IV. of li<:.:!i,
that of the defendant. That, in the absence of any specific law for Parsis
in the Mofussil, the rule of justice, equity, and good conscience should be
obserYed, and the Court shou !tl follow with certain necessary modifications
the practice of the Courts of }:quity in England.
That the by-al-wafa amountc1l io effect to a mortgage of the property,
and that, according to the practice of t4e Courts of Equity, a mortgagee
• in J>Ossession ought to be allowed for proper and necessary repairs to the
estate .
Where portion of the mortgaged 111·c111iscs was a('cidentally burned, an«I
portion of them tell clown, 11ml the mortgagee rebuilt them, it was held
that the mortgagor was not entitled to redeem, unless upon payment of the
sum so expende«l by the mortgagee, though such sum amounted to more
than double the price for which the premises had been conditionally sol«l
to the mortgagee.

'fHIS was a Special Appeal from the <leci:;ion of C. G.

Kemball, District Judge of S(1rat, in Appeal Suit No.
273 of 1866, amending the decree of the Principal f;ladr
Amin ofS(1ra,t.
The plaintiff, a~ daughter and heir of one Mirzii Muham-
mad Raji, sued to redeem four-fifth:; of a house, alleging
that it had been mortgaged by the said Mirza to the de-
fendant's grandfather by deed (" by-al, wcifi.i").
'l'he defendant rested hi:; defence on the ground that the
house had been sold to him, and not mortgaged ; that thcru
was no condition in the bond by which the sale could be can-
celled by Mirza':; heir after hi:; death; that he had expendc<l
many thousand rupees in repairing parts of the house, which
had been burnt·or had fallen; and that it was fifteen years
since Mirza died, so that the suit was barred by the pro-
vi:;ions of A.et XIV. of 18M, a:; the hou:;e had l>ccn in hi:;,
the defendant's, po:;session for more than twelve years.

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 110 llO)IIJAY HIGH COUR'l' REPORTS,

18GB. The Principal ~adr Amin decreed for the defendant, on

JIL\NCl!.\REHA'
AsIIPAx- t h e groun d t h a t t h e d ee d [Jy-a l -wa,ja
' was a a· ce d of sale, ancl
JJIA'nJt not of mortgage; but the District Judge, in Appeal No. 280
t'.
K.Drn1.:x18.\' of 1865, held that the promise in the deed to reconvoy the
BEG.\.\!,
house to the vendor on payment of the purchase-money gave
the trarn,action the character of a pledge, and that, there-
fore, the property so pledged was redeemable within sixty
years. The District Judge, therefore, remanded the case to
the Principal ~adr .Amin, to determine what sum of money the
defendant was entitled to for expenses fairly incurred in
repairs, &c. according to the conditi,n{ of the deed. The
Principal ~adr Amin, on the 27th of November 1867, decreed
tha~ the plaintiff should recover possession of the house on
payment to the mortgagee of the sum of Rs. 4,000, being the
original sum borrowed, together with Rs. 9,862-G-7 expended •
in repairin_g and preserving the mortgaged property. The
District Judge in appeal delivered a judgment, amending
the decree of the Principal ~adr Amin, from which the fol-
lowing is an extract:-

"Before proceeding to consider the question now before

me, namely, whether the pledgee is entitled to recover in
respect of the ameliorations and improvements alleged to
have been made by him on the pledged property, and allowed
by the original court, I think some remarks are necessary iu
support of the finding that this, to all appearances, absolute
bona fide sale and conveyance, with a collateral agreement
attached, is in reality a pledge, or, in more gu~rded language,
a pi'.gmis. ***
" It appears to me unnecessary to at•gue further that a
sale by way of by-al-n·afti created on_ly a special property iu
the thing sold, £. c., the purchaser held possession of such·
thing subject to the claim of the seller to resume possession
on repayment of the amount of purchase-money. ·whether
the purchasel.!' could use such property is a qaestion foreign
to the present inquiry; but it i;i clear that he had simply a.
right to possess and retain it until the charge attachirg on
it, namely, the amount of purchusc•money, was paid. 'l'his

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 APPELLATE CWIL JrRI:3DICTION, 111

transaction, therefore, is in all respects a pledge, the right 1868.

being in the pledgor to take back the property, on the pay- M.1l~:;~ 1~~1.\·

ment of a certain sum expressly stipulated; it is not a mort- mA'nJ1

t'.
gnge, for it is not a. conditional transfer or conveyance with K.rnauxrsA'
this consequence, that if the condition be not duly performed, BF.G.ur.
the whole title rests absolutely in the mortgagee. Where no
time is fixed for the repayment of the purchase-money, the
pleclgor or his representative has the power to redeem at
:my time, subject, I nssume, to the right of the ple<lgee to call
upon him to redeem; nnd it is in these respects I umlerstnrnl
property sold by way of liy-111-icaj,i to be rcdeemn.lJlc, like
ol'llinary mortgages, anu sul,ject to foreclosure. I <lo not my-
self understand on wlint ground the plc1lgee can demand from
tl1e pleclgor, as a conclition prcceclent to the restitution of
• tlw propC'rty, any mo1wy that he has expemlNl in rC'pair;;;
tl10 whole legal title 110ver pns;;cd to him; he distinctly cove-
nanted to restore it on payment of a stipulntecl sum; and •
the debt cannot, according to 1.Iuhammadan Law, reccfre any
accession. He cannot be regarded in the light of ~n in-
nocent person who has expended sums of money on the
property supposing himself to be the absolute owner; for
the deecl under which he hPld showed clearly that he hail
merely a special property in the house, and there was :i dis-
tinct agreement that the pletlgor, ancl not the pledgce, was
to execute the repairs, the former ]wing responsibh·, accord-
ing to custom, for any loss or ilijury from accident. It is
not p1•etcrnled that the pledgor refused to execute repairs;
yet the pleclgee now comes forward and makes a demand,
which by the way appears to me founded on rnry imperfect
evidence, for repairs amounting to more than double the
valne of the hou~e. I con,:icler that wl1ereas the plaintiff
is entitled by express agreement to recover the propC'riy
pledged on payment of the amount of pnrchase-monoy, no
ground, on the other hand, has been shown for the eqnitahle
interference of the Court on hehalf of the defendant .
•
"Assuming that the defendant did repair the houf!e in
question, as he alleges, he has had all these years the bene-
fits arising from his possession of the property. I consider,

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 112 BOMBAY HIGH COURT REPORTS,

1868. in conclusion, that the lower court should have decreed re-
MANCBAnsH.\'
AsBPAX· st oration
. on payment of t he purehase-money, an d that t 110
nu'nJI
v;
defendant should have been saddled with costs. To this
KH!RUNIS.\ 1 extent, therefore, I amend the Principal f?adr Amin's decree,
BEG.\:lf,
with costs on the respondent."

The deed alluded to in the ahove judgment wns in the

following terms :-
The cause of these lines heing writ.ten is as follows :-1, namely, Yal-
lablulas the son of Shankardas the son of Shh·das, of the Bania caste,
and an inhabitant of the auspicious seaport town of S(1rnt, make n legal
mul trustworthy 1le<'larntion while heing absolute ngE'nt, R<'C'ortling to the
power of attorney, regarding the things h(·rein mentioned, 011 behalf of
.Mirza l\fohammatl Reza, the son of the 1\eN·nsed Mirza Alawutltlin Husen,
the son of the pardoned Mirza Abdul Baki Shllza<la Shafifa, (the <le<'lara-
tion is) attested by l\falikchaml the sou of Malik Kazim the son of
Malik fliznl, all(\ Dost l\fohammnd the son of Shek A1Jtlul KMnr the •
son of Shek Omar, (and is) to the following effect; that I, the declarant,
as an agent, soltl all antl entire four pa1-ts out of the five parts of a large
Iioweli (or mansion) calletl Lati, which is rentetl hy Sarkar. (The pre-
mises) consist of lantl and teakwood, and pillars and beams, anti n
coveretl balcony and a compound, antl halls, antl substantial brick walls,
situated in l\fodar(1 Street, witliin the wall of the abovementioued seaport
town. The boundaries and measurement thereof are known, and it is as
tlescrihed by me. The same is owned am\ belongs as a heritage to the
hereinmentionetl, my constituent, which he inherited from his father, and
which he possessecl by way of ownership up to the time of this sale, without
any joint partner. No one has any claim against it, and there is nothing to
prevent its sale. The whole, with all its boundary-walls and watercomses
and legal rights, and with all the proprietorship that is in it or connected with
it, is soltl for the sum of genuine four thousand rupees of full weight, (anti)
of the present currency, coinetl at Sf1rat, the half of which is two thousancl
rupees. (The same were received) from the hand of Ashpandi(1rji the
son of Kamsji the son of Beheramji, .of the Parsi community, residing in
the abovementioned seaport town. And I the abovementioned Ashpan-
diarji make a legal declaration (as follows :-) that I purchased from the
abovementioned seller for my said sum four parts ont of the five parts of
the entire abo,·ementioned mansion <'allecl Lati. According to law the
pUl'chasc is mli<l, being effectetl with mutual consent. Nothing shall
annul or invalidate the purchase. And I the abovementioned seller ha,·e
received the whole and full of the abovementionetl sum from the herein-
mentionetl purchaser, and, having recei,·ed it, have gh·en the same to my
constituent, (and) have given the property sohl into the possession of the
herein-mentioned purchaser. And I, the hereinmentioaecl purcl1aser, after
the sale was effected, am\ (after) the assembly was clissolved, agreed with
tlie hereinmentioued seller to fulfil my promise, which is to the effect that
whenever the hereinmentionetl selier, either as agent 01· through his
constituent, shall rl'pay the ahovementionetl sum in full anti whole, I
shall annul this deetl of sale and return (the property). And I, the here-

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 APPELLATE CIVII. .TURIBDICTION, 113

inmentione,l seller, have agreed to thi11 promise through my agent. And 1808.
this (deed) of sale was agreed to and was elfected according to law. And MANCHAll&HA'
there does not remain any balance, even a pie, due to me or to my con- AsHPA.\"·
DIA'BJI
stituent again~t the purchaser. And my constituent is responsible for all t•.
(these, namely) the repairs of dilapidations and calamitie, coming from KAxux,sA'
Heaven. And the hereinmentioned sum, which I haYe receh·ed, is or the J:~:o.u,1
'Surat currency, (anil) at the time of redemption my constituent will pay
him money of the S11rat currenry. 'fherefol't', these few words, having
been written by way of a deed ofsale, are given. Dated the twenty-fourth
day of the month of Rabioouani l:!:!".? (one thousand two hundred twent)·-
tll'o) of the Hijra year (ht Juf)· H~07).
•
The case was hear<l this dny before CoucH, C. J., nnd
NEWTOY, J.

Pigot ( with him 8/iantaram Nara!Jn~,), for the appellant :-

The construction of the deed is the real point for decision.
It is dated the 1st. of Jnly 1807, and says the house is sold
• for 4,000 rupees. ,vhen the cnse was first before the Judge,
he treated the transaction as one of mortgage, and now he
ho.s applied the strict Muhammadan Law to it. \Vhatever
may have been the original :Muhammadan law on this subject,
that is not the law now prevniling even amongst Muhamma-
dans themselves; but here the defendant is a Parsi. The
Judge, in treating this transaction as a pledge, and not a
mortgage, and in disallowing all sums for repairs, &c., is, I
submit, in error. If the plaintiff is, after nearly sixty years,
entitled to anything, it is to redeem the property on payment
of a.11 sums expended upon it by the defendant, and all !'!ums
due to him on the original loan.
3lar,·iott and Nanabliai Han'das, confra :-The point for
consideration is whether, according to the intentions of
the parties, the transaction was one of pledge or mort.gage ;
and the Judge has found that it was only a pledge. By
a clause in the deed the plaintiff is responsible for " repairs
and heavenly calamity;" so the appellant was not nuder
any obligation to incur any expenses. [CoucH, C.J. :-Yon
must not assume that. That is the very proposition you haye
· to establish.] 'rhere was no express agreement for repairs.
[CoucH, C.J. :-You must make out that there was no
implied agreement.] We had no notice of the rebuilding,
and there is no evidence to show what amount was actually
v.-};jA C

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 114 BOMBAY HIOR COURT REPORTS,

1868. expended. If repairs are to be allowed for, they should

:llAXCH.\R~H \'
AsHPAN · , e proper t y,
b c sue11 on 1y as arc nece:-tsary t o preserve th

~·.
DIA'RJI arid should not be such as to oyer-improve it, so as to pre-
KnrRuN1sA' vent the mortgagor from redeeming: Sandon v. Hoope1· (a).
Brr..ur. [CoucH, C. J. :-The Executive Engineer shows what wns_
bnrnt and what fell, and there is nothing in this case to show
over-improvement.] Rs. 4,000 only were paid as the price
of the house, and the expenses are said to be more than
• <lonble that amount. This is certainly an over-improvement.
[CoucH, C.J. :-If the parties meant it to be a mortgage, the
value does not necessarily correspond with t11e amount of
the mortgage-money.]
Pigot in reply :-A mortgagee in possession in this country
is in the position of a trustee, and is bound to trent ·the mort-
gaged premises as liable to become again the property of tl1e •
mortgagor. He must, therefore, not do any act to dimiuisl1
the security upon which the money was lent: Jogenclrmwth
!Jlullidt v. Raj Narain Palooye (b).

CoucH, C..J. :-This was a contract entered into between

the Hindu agent of a Muhammadan on the one part, and a
Parsi on the other part. The Judge, in :.n elaborate jnclg-
ment, has treated the question according to the Muham-
madan Law, but there is no authority for his doing this.
According to Sec. 26 of Reg. IV. of 1827, this case is to be
governed by the law of the defendant, who is a Parsi. There
is no law generally applicable to Parsis in India, but the
law applicable to them within the jurisdiction of the High
Court on its Original side is that which is applied to British-
born subjects, and in the absence of any specific law for the
Parsis in the Mofussil, the rule of justice, equity, and good
conscience should be observed; and in such cases we should
follow, with certain necessary modifications, tl1e practice of
the Com;ts of Equity in England .

It is expressly stated in the deed that th; borrower is to·

he liable for rPpnirs of dilapi<lntion and heavenly calamities ;

(n) 12 L. J. Ch, :'309 . (b ) 9 ('111. W, R., C'h·. R. 488.

Ill D1g1tized by Google

 APl'ELLA.1'E ClVlL JURISIJICTIOK,

and, looking to what equity would require, the mortgagor 1861:1.

l\lA NCHARSHA
should not be allo,ved to recover the property on payment AsHPAX·
only of the principal advanced, since it woulcl be clearly ""~~Jr
inequitable to say that a mortgagee who has rebuilt and Kn1R1.:!'iisA'
lir;OA)l.
repaired the premises must have no allowance made to him.
The rn!e laid down in Fisher on Mortgages, p. 887, 2nd eel.,
i::; the result of all the authorities on the subject, and it fully
:mpports the cla.im of the mortgagee to a proper allowance.
The passage to which I refer is-" 'fhe mortgagee in pos-
session will be allowed for proper and necessary repairs
to the estate ; and if buildings become ruinous, so as to be
unfit for use, he may pull them down and rebuild* * *·
And the rebuilding, or repairing, may be done in an
improved manner, and more substatttially than before, so
that the work be done providently, and that no new or
expensive buildings be erected for purposes different from
those for which the former buildings were used." The
Principal ~dr Amin, acting upon sufficient materials, has
found that Rs. 9,862-5-7 ought to be allowed as a fair re-
muneration to the mortgagee. We feel reluctant to prolong
litigation, unless it is absolutely necessary to do so. In this
case there is no reason to believe that the Principal l?aclr
Amin has fallen into any error in estimating the amount, so
a remand is not necessary. As the defendant is fairly and
properly entitled to the amount awarded by the Principal
~adr Amin for what he did in regard to the property, we
hold that the Judge's decree is manifestly wl'ong, and, ac-
cordingly, reverse it, and direct that the costs of both ap-
peal:. be pa.id by the respondent.
NEWTON, J. :-I fully concur.
Decree ef Dililricl Judyt· rct·t·rtJC'd.

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 116 BOllBAY lflGH COURT RENRl'S.

18!18. Special Appeal No. 399 of 1868.

Sept. 22.
RA'GHO BA'GAJI. ............................. ••• Appellant.
ANA'JI ~fA'KA'JI PA'TI'L .................. ... Respondent.

Mortgaged Property-Repafrs.
When iu a redemption suit the lower courts refused to allow to the
mortgagee the expenses of repairs made by him on the mort~ged pro•
pcrty (there being no provision as to repairs contained in the mortgage
deed), the case was remanded by the High Court, that it might be deter-
mined what sums had been expended by the mortgagee in the proper
and necessary repairs of the mortgaged property, and that the mortgagee
might be allowed in the decree such sums with inte1·est.

TIIIS was a Special~Appeal from the decision of N. Daniell,

Assistant Judge at Pm;ia, in Appeal No. 47 of 1866,
confirming the degree of the ~adr Am~n of Pu:i;ia.
The suit was filed by Anaji to redeem a house from the
defendant mortgagee. Both the ~adr Amin and the Assist-
ant Judge made a decree for redemption, disallowing, how.
ever, the expenses of repairs made by the defendant.
The following is an extract from the judgment of tho
Assistant Judge on the question of repairs:-
er The bond contains no clause respecting repairs. The
house being in the apl)ellant's (mortgagee's) possession, it
was obviously his interest to prevent its falling into ruin,
and no grounds are shown for saddling the respondent (mort-
gagor) with an outlay for the appellant's benefit, Any-
thing beyond neceMsary repairs the appellant had no right to
perform, or if he did perform them it would be at the risk
of the mortgagor ultimately requiring him to restore tho
house to its former condition. I rule that the claim for
repairs will not stand."
The case was heard on the 16th day of September 1868,
before CouCH, C.J., and NEWTON, J.
8hantaram Naraya?,, for the appellant, l'elied upou Jogen·
donath Mullick v. Raj Nctmin Pcilooyo (et), Coote on Mort•
gages, p. 344, and Macpherson on :Mortgages, p. 85.
There was no appearance for the respondent.
Cui·. adv. 1.:ull.
(a) 9 Cale, W. Rep,, Cir. R. 488,

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,....,..
E,7.,ih 1:r1sr', ,T Ti' !lsforr,jii
APPELLATE CIVIL JURISDICTION,
Bar-at -i.A.1,w i 117
Lahore.
PER Cua1AM :-The Court, concurring in the decision of __,1==-8..,,68_.__
BA'OHO
the Calcutta High Court, reverses the decree of the lower B.t.'o,m
court, and remands the case for the lower court to inquire AN::J 1
and determine what sums have been expended by the de- :lh'N.t.'Jt
P.t.'tl'L,
fendant in the proper and necessary repairs of the mortgaged
property, and to pass 11, new decree allowing the same to the
defendant with interest thereon at the same rate as upon the
mortgage money, viz., two per cent. per meuscm. Costs to
follow the final decision.

Cfril Petition. Aug.13.

GANESH SADA' surv .............................. PeUt-ioner.

Plaint-Date of Prertntation of Plaint-District Court-Limitation.

Where a plaintiff presented a plaint to the District Court, the Munsif's
Court, in which he ought to ha,·e presented it, being then temporarily
closed, it was htld that the date on which the plaint ,ras presented to the
District Judge should be considered as the date of presentation to the
proper Court.

THIS was an application for the exercise of the extraordi-

nary jurisdiction of the Court, under Reg. II. of 1827,
Sec. 5, cl. 2.
The petitioner desired to file a plaint in the Court of the
Munsif of Alibag. The period of limitation within which it
was necessary for him to commence the suit was to expire on
the Hth of March 1868. Previously to that day, however,
the Munsif of Alibag, in the KonkaQ, District, in whose court
the suit should have been instituted, being absent on leave,
his court was closed by order of the Judge. The petitioner
thereupon presented the plaint, on the 13th of March 1868,
to R. H. Pinhey, District Judge of ThaQ,a, who made the
following order :- •
"I cannot receive this plaiut. The applicant should not
have postponed suing till only two or three days were left
him to sue in."
On a reference being made to the Acting Judge of Th1h;ui,
A. Bosanquet, he reported that during the Munsif'e absence

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 118 BOMBAY man COUR'f REPORTS.

__I_s_o_s.__ his court was not placed under the charge of any other
In1·c
GA!{EsH Munsif for the purpose of receiving plaints.
l:I.\P.l'ijl!JV.
Pi,;1t CumAM {NEWTON and 'fucnm, JJ.) :-The Court of
the Munsif having been closed by order of the Judge, and
the Judge of no other court having been put in charge of
ihe said Alibiig Court for the purpose of receiving such
plaints as might be presented, the date of the presentation
of the plaint to the District Judge by the applicant must
be considered as the date of presentation to the proper
court; and the District Judge's order is, therefore, reversed,
and he is directed to 1·eceive the plaint, and forward it to
the Alibag Court, which should treat it as presented to that
court on the date on which it was first presented to the
D~strict Court.
District Jucl9e's order reversed.
f.\.-
r I .

·1
\ ' Aug.l!J. Special Apprnl No. 30.J, of 18GB.

SHEK AnA's valad SHEK DA'uo ......... ... Appellant.

lBRA'HrnJI valad HASANJI ............... ... Respondent.
Practice-Batta. Allowance-Notice-Act XXIII. of 1861, Sec. 5.

I f
Whe1·e the Coul't of first instance ordered a co-defendant to be joined
in the suit, but the plaintiff failed to pay the allowance necessary f,,l' the
purpose of causing a notice to be served 011 such co-defendant, ~,·h~ ac-
cordingly di1\_11ot appear at the-hearing:- · ·· ·
; Held that the proper course for the Court to have. ad~pted wa~ to .di.:..;
/ qits.s tl~ ~llit. under Sec. 5 of Act XXIII. of 1861.
j Where the Court did not adopt that course, but proceeded with the
suit, and passed a decree from which tl1e original de(end11!1t appea.l~!L.Pn
the merits to the Assistant Juclge; without tal;.ing .t he objection that the
suit ought to have been dismissed; it was held that he could !1ot 1:aisc t~i:.
objection for the first time in special appeal.
Semble-Thc provisions contRined in the first portion of Sec. 5 ·of Act
XXIII. of 1861 are imperatiYc. ~

THIS was a Special Appeal from the decisiou of J. R.

Naylor, Acting Senior Assistant Judge at Ra.tnagid, iu
<Jross Appeals Nos. 502 and 519 of 1867, amending the de-
cree of the f?adr Amin of Ratuagiri.

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 APPELLATE CIVIL JURISDICTION, 119

The facts appeal' from the following extracts from the 1868.
SHEK AB.\'s
judgment of the Acting Assistant Judge:- v.
TBR'-'lll :VJ I
" The plaintiff (Ibruhimji) brought this suit to reco\"er H.\SASJI.

possession of two pieces of lnnd, which he allPgecl tl1e dPfend-

nnt, 8hek Ahas, had wrongfully got possession of by nu e.t- .
JJ<tl'ie claim in the :Miimlntdiir's Court. Rs. 2 were songl1t
as damages for fruit-trees alleged to hnve been destro~·ed.
"Shek Abiis answered thnt tl1e lnnd was his, and thnt he
had twice hrought successful plaints against Jbrahimji for
interfering with his possession.
"Ragho Lakshun~a1~ ~g111,he was joined hy the Court ns
co-defend~nt. He allegecl (1) thnt the land wns his, and
thnt he hnd let it to Biipn 1\Ionghar, who Wnf; den<l, hut his
brother, Aga Monghnl', was nli,·c; (2) that the defendant cul-
tivated the land, but that he did not know who had planted
tl.1e trees. Th~ ~adr Amin also ordered the_ n?ovc Aga l\fon-
gliar ~Joined as n defendant, but., as the plaintiff did
not pay tl1e necessary batla, ~o notice was issu.ed to him.
"The ~adr Amin found that the plaintiff had not est ah-
lished that the land belonged to him,~~ he hnd foiled to cause
the notice to b~ s.ervecl on Agii Monghar, but that the trees
were shown to be his; and, therefore, threw out the clnim
for the land, and allowed it for the trees only. The claim
for damages W!tS thrown out for want of proof. Shek A bas
appeals, urging that the plaintiff's claim to the land being
thrown ont, he had no right to the trees. The plaintiff
appeab, urging that tl1e trees ancl land go together, antl
that he had possession for a time exceelling the period of
limitation.
" It seems from the evidence that the land in dispute ap-
pertains to the.<lhams of Ragho Lakshumal) Ag[1she, whom
the lower court has joined as defendant, but the land has been
in the enjoyment of the plaintiff for n, very long term of
yenrs, and the trees have been plnntecl and reared by him.
'fhe ~aclr Amin has awnrded only the portion of the claim
that refers to tl1e trees-apparently for the reason thnt tl1e
plaintiff did not pay h1to conrt the Mttli necessttry to cnm:e

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 120 BOMBAY BIGH COURT REPORTS,

-c-_1_868~.-,-- a notice to be served upon Aga Monghar, whom the Conrt

SHEJ. AB4'B
v. had ordered to be joined as a defendant.
1Bll4'Blllll
H.uANJ1. "It is not very clear upon what authority he proceeds,
but, looking at Sec. 148 of the .Civil Procedure Code, which
I think is the .only section applicable to such a state of cir-
cumstances, all that the ~adr Amin could do when the plain-
tiff failed to pay the batta was to ' proceed to a decision of
the suit on the record, notwithstanding such default.' Had
be done this, he must, I think, have found upon the evidence
that the plaintiff was en tit.led to possession of the land."
The case was heard before CoucH, C.J., and GIBBS, J.
Sltantaram Na1·aya!t, for the appellant, Shek Ahas :-The
plaintiff having failed to pay costs of process, the suit ought
to have been dismissed under Sec. 5 of Act XXIII. ofl861 ;
and the court of first instance having substantially done
this, the lower appellate court had no power. to modify his
decision. It has been ruled that, :no. appeal E~EL. from __!!:11
order dismiss~ng a suit under Sec. 5 of Act XXIII. of 1861-
a fresh suit under Sec. 7, or moving the Court to ~ssue a
fresh s~inmons by satisfying it within thirty days as to the .
default, being the only remedies : 3luflltoosoodun Ghosal v.
Beckwith (a).
Gatipatrav ,Bltaska,r, for the respondent :-This point can-
not now be raised, it not having been ta.ken in the court
below. When the plaintiff did not pay the costs of serving
the process on Aga Monghar,jt. was _discretionary with
the i:;adr Amin either tQ.. dismiss the suit .<..>r to P~'?.~~ed
with it. The decree does not affect the right of the party
who was not before the court. [GIBBS, J. :-How can the
Court proceed to hear the suit if one of the defenda.,11ts is not
f' served with a notice ? The suit is incomplete, and the law
I says it shoulq be dismissed. Though the word 1nay occurs
!
in the 5th section, can the Court do a~ything but disn1i8fl
the suit.]
I [CoucH, C. J. :-The 5th section equally applies to a case
where there ig only one defendant. How can it thPn _be

(a) Wym. Rep. 155.

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 APPELLATE C'IVI L JURISDIC'TIOX, 121

discretionary with the Court to proceed with a snit in whic~--1~

. SHEK Au.i's
the on].Ldof on<l nut 11a~ n_ever __b een ~~rve d, owmg to n. defn11 lt 1.

on the Pl!!'.L2.f t_h~ p]nintiff?J That p~int, I snhmit, <'nnno 1

1
1 :ia ~t~~~
now be takPu, _
Coc;cn, C.J. :-H:igho lrnving onswerPil hPfor<' tllC' f3n<h·
Amfo that the lan<l iu clispnte wn-. i11 ti1c poss<'ssion of
Ag11 )fonghar, t h<' ~n1lr Amfo) thought it right to mnkP
AgfL.!!.S..9::.!lefcu<la.tit ; _hut as the plnintift' cliil not pay tlw
costs for ser\·ing the no_tice on Ag(1 l\fonghar, he could not
be made a party to the suit. The proper course for the ~ad1·
Amfn to have alloptcd was to dismiss the suit, under See. ,,
of Act XXIII. of 18G l, 1~;,~G1:~ tli0· plaii1tifi~ if he harl omitted
to pay the costs hy nc~iclent, &,c., to apply to the court fo1·

-------
a fre:-;h snmm~-fo file-·n: i1ew snit under ~kc. 7 of thnt·
Act. I can concei,:_e no other ~\:ay -. of enforcing ohNli<'ncc>
t~~~-?~1~1:· Ti1T."'- co·urse was not adopt0d, hut a ck-
V

cree was pnssC'cl. From that decree an appeal was preferred,

and although Shek Ahiis was the appellant below, he did not
raisJ the objection that the suit should h<tvo been dismis,-ell
nltogethrr. I am of opinion that the -~bj'~cti~n should not,
ni-rrttowed now, Lecause had it been taken below and been
decided in favour of the appellant, the plaintiff coulc1 ha,e
applied to the court or filed a new suit., and the time taken
np in spPcial appenl would have been saved. Here the appel-
lant tried to get a decree in his favom· _in the court below,
and having failed then•, he now turns round and says that
the suit should have been dismissed. 'l'he lower court lrns
awarded the plaintiff possession of the land, finding that tlw
land had belonged to Riigho, but that the plaintiff had been in
possession for many years. Riigho does not appeal, but Shek
Ah11s does, and says that the decree is wrong, becam,e the
occupier is not a pr1,rty to the suit. '1.'hc present appellant
cannot take the oLjection, as it does not affect the merits of
the case, since the previous claim of tenancy is not affecte<l
by the decision, which is not binding on Ag[l Monghar.
GrnBs, J. :-I quite agree. I atfirst doubted whether we
were not bound by Sec. 5 of Act XXIII. of 18Gl; but it
has been pointed out to us that the point was not taken be-
v.-16 A(: I
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 122 BOMBAY HJGII COURT REPORTS.

1868. low, and, therefore, it is not desirable to allow it to be raised

SazK Au.\'s
v. now: and moreover, when we look into the case, we find that
Iuu'unm\
HASANJJ.
the appellant, Shek Ahas, h:1.s received no injury by the non-
dismissal of the suit ; and the man who was not served with
a notice has hi:,i rights undisturbed.
Dec/'1:e co11fii'ii1P1l with rMf.~•

.Aug. 24. 0 h-il Petition.

Vl'rrronA' bin Kr.sHA VSHF.'l' .............. , ••. Petit iollfi'.

Srr.~'nA'JmA'v and A~AND.RA'v ............ Op1io11f·11l8.

Jurisdiction-Mortgage-Assessment paid by Mortgagee--Mofussil Law.

A snit by a mortgagee to compel a mortg11gor to repay him the amount

of Government assessment, which he hns been comprlletl to pn~· whrn iu
o~cnpation of the mortgngctl property, is in the l\Jofnssil nu obligation iu
Equity to repa~·, and is not rognisahle by n Court of Small Causes.

THE petitione"i· hehl certain land in mortgag0, arnl while

the mortgage was.in existence the revenue authorities
obliged him to pay the assessment due on the land. The
mortgagor afterwards sued the mortgage€', and obtained a
decree for redemption, under which he was pnt in pof-session
of the land. But the amou_n t which the mortgagee had paid
on account of the assessment was not charged to the mort-
gagor. 'l'he mortgagee, therefore, sought to recover the snm<:>
by a suit which he filed in the Court of the Principal $adr
Amfo at Pui:ift. The Principal ~adr Am'iu refused to recE>irn
the plaint, on the ground that the suit was cognisable by
the Court of Small Causes. The Judge of the latter, how-
ever, was of opinion that the suit was not cognisable by him,
but hy the Principal $adr Amin. The petitioner thereupon
petitioned the Judge of the District, F. Lloyd, who con-
curred in opinion with the Principal $adr Ami:n.
As nP.ither the Principal ~adr Amsn, nor the Judge of the
Small Cause Court, would receive the plaint, the pe>titioner
made the present application to the High Court.
It was henrcl before CoucH, c ..J., and NEWTON, J.
SMlilfaram 11·uraym.1 for t1H' petitioner.

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....
APPELLATE CIVIL lURISDlCTIUX, 1-.:>
'>"

CoucH, C. J. :-The subject-matter of this suit is nn obli- 1868.

VITHOR.\'-·
gt1.tion in equity on tho mortgagor to repay what another KEsHA\'sHET
has been obliged to pay for him, and this suit should, there- 8 HA ,B.\v;JIRA ,V
fore, be kied by the Principal f?adr Amin: Rtrnibu,c Chiflangco et al.
v. Motlhoo3ootlun P. O!tromlhry ancl oilH'l'S (,i), which ii:; a
Full Bench Ruling of the Calcutta High ~'ourt.
~i,.;wroN, J. :-I concur.
Pim Ct:IUAM :-The Principal f:iaclr Amin to be ordered to
receive and rC'gii:;tcr the plaint.
(11) i Cale. w. Rep., CiL R. J7i.

Aug. 25.
#

n ...•1. '1 KH~'D.·'

D ~ '-
1
••• ••••••••••••••••••••••••••••••
A1·,11cllanl
J.l. •

DA'su SA'LE et nl. .. ...................... ... Re,<ipundenls.

llhag<lari Ten11re--C11stom-Right of Fe111ales lo succeed to a Bhug.

The custom iu the Bl'oach District of male first cou~ins succeeding to

Jll'operty hehl un the bhagdari tennl'e in preference tu daughters or sisters,
upheltl in a case in which the bhagdars were lluhammadans.

THIS was a Special Appeal from the deci:;ion of 8. H.

Phillpotts, Acting Senior Assistant Judge at Broach,
in Appeal Suit No. 1134 of 1867, reversing the decree of the
)Iumdf of Broach.
The plaintiff~ the daughter of a Bohrii l,!tagd(il', sued the
defendants, her cousins, 1.o recover tcn-twclfthi; of certain
landi:; which had been held on the vltaydan: tenure by her
brother Abr11m Siile up to the time of his death, and i;inee
had been wrongfully taken poi:;sessiou of by the dcfendanb:;.
The defendants, by their written i:;tatements, answered
that though the plaintiff, as sister of the dccca.sed, might in
other cases he entitled to a i:;hare, according to the Muham-
madan Law, she was not so entitled in this particular case,
in consequence of a, usage prevailing in the bl1agdal'i villages
which debarred females from inheriting, and which usage
was, by Soc. 26 of Reg. IV. of 1827, to be preferred to the
'law of the parties.

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 124 BOMBAY HIGH COURT Rl,l'OR'l'S.

_ 1868. 'l'lic 1\Iun8if of Broach gave a decree for the plaintiff, in

.BA'! KHEDA'
,,. accordauce wit . . 1es of t h e general .M
. lI t lie prmc1p h l
~ u aruwac an
DA'su f:h'u: Law
et al. •
Iu appeal the Acting Senior As:sistaut Judge held, iule1·
rdia, " that according to Reg. IV. of 182 7, Sec. 26, aud
~pccial Appeal No, 228 of 1863, the usage of the district in
which a suit may arise takes precedence over the law of
the defendant, and that according to blia:1 custom the first
cousins or sons of paternal uncles inherit in preference to
daughters or sisters. This he said was proved by witnesses
Nos. 2,t to 31, and that such was the custom was also
proved by :Monier Williams' book on Baroche, page 33, which
was admitted as an authority in the ~adr Adalat in Special
Appeal No. 3405, and under Act II. of 1855, Sec. 36, the
Court was at liberty to refer to books of autho1:ity. The
custom referred to has only been disturbed twice, and .on
both of those occai;ions through the decrees the appellant
has cited, Special Appeals 3405 and 3652, but in the former
this question did not arise, and in the second case it was
not bliag, but inam and khata land."
The appeal was heard before rrucKER and WAlWBN, JJ .
.:.\ra11abliai H1iridas, for the appellant :-'rhis ii; apparently
a case of custom against Muhammadan Law ; but it is really
not so. '!'here is here no recognised custom. A custom
entitled to receive the :;auction of' a court of law must be
proved to have existed from time whereof the memory of mau
ruuncth not to the contrary, ancl to have been not iuju-
1'ious to the public interests, and not conflicting with any
c.x press law of the ruling power (ride Perry':,; Or. Ca. 121).·
'l'hc alleged custom in this case was held to be establishc<l
iu one case and not established in another. 'fhe decision
of the then Assistant Judge, Mr. Hebbert (Rciglm11ath v .
.:.Yamn, November 1858) ruling that bhags do not descend to
females, was between two Hindus, and founded on the au-
thority of' a passage at page 33 <,f Colonel Monier .Williams'
)lemoirs of Haroche, wherP. the author was speaking of a
Hiudu bl1ag. Ju the present case the parties are Bohri1:::,
a division of the l\Iuhammadan cowmunitr, l\fr. Hcbbcrt'e

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 Al'l'ELLA'l'J:: Cl VlL JU Rl::;JJJl)TION,

deci8iou has heen supersede<l, and virtually set aside, by __ 1_8~

. , , 11 J , BA'I K1ti,;l)A'
anothel' more recent one of equal authority ( Va11·,rnt v. 1t')a, t·.

:!;Jrd March 1867), per Naylor, As:;istant Judge, whero the DA·:~ ~{LE
alleged custom of females not inheriting iu the tihek di•;,i.
sion of the :Muhammadan community was held not proved.

Dhirajlul Mailmrud~, for the respondent :-Mr. Hebbcrt's

decision that bhag,~ do not descend to females i:; prior, and,
being based on the usugc of the country, should be followed.
Iu the cuse decided by ~fr. Naylor no is:,me as to custom
was specifically raised, and, therefore, any decision on that
point was a mere dicturu.

Pi:;1t CuRIAM :-\Vc consider that iu this case the 8enior

.Assistant Judge has found on the evidence that it is proved
ihat there is a custom with reference to lands held in the
Broach Di:;trict on the l,l,a']clari tenure that first cousim,
sous of paternal uncles, inherit such lands in preference to
<laughters and sisters. 'l'he existence of such a cmitom is
asserted in Colonel Monier Williams' Report on the Zilla of
Baroche, p. ;3;3 (A. D. 1820). 'fhere was a decision by Mr. H.
llehbert, when Senior Assistant Judge of Broach, in 18t>8,
uvhol<liug the custom. There was au opposite deci:siou
by Mr. Naylor, another Assistant Judge, in 1867, who held
that in the particular case before him no custom had been
estu.l>lishecl which would justify his not applying the ordi-
nary Muhammadan law of inheritance to bltagdari lands. 'l'he
tieuior Assistant Judge was not bound to follow this last
decision, there having heen a previous decision of the samo
court to the contrary, aud we can find no e1Tor in law iu
the conclusion he has arrived at. If' there be any such
usage as has been described in the district, it would,
uu<ler Se<.:. 20, Reg. IV. of 1827, take precedence of the
'Muhammadan law. 'l'wo decrees of the High Court have
been cited as opposed to the Senior Assistant Judge's view,
but on referring to them we find that they clo not de-
cide any question of usage with reference to bhagdari lands.
In the present case the witnesses on hoth sides appear to
have deposed to the existence of the usage, which the Senior

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 12~ BOMBAY HWH CQl:R'l' REPORTS,

1868. Assistant Judge has found to be established, and we see no

BA'lKHEl>A'
i•. reason to interfere with his decision, which would seem to be
DA'tit: th'LE. just, as well as legal.
Decree a,ffermecl.·

Sept. 1. Special Avpeal No. 267 of 1868.

DA'DA 1 BHA1I NA1ts1 ........................... ... Appellauf.
SALLEMA'N DAssu ,,, ..•..................•.• ••• Respondent.
A9reement for Sale of Goods-Place of Delivery.

In the v.bsencc of any ngrecment as to delivery, goods agreed to be sold

are to be delivered at the place at which they are at the time of the agree-
ment for sale, or, if not then in existence, at the place at which they are
.to be produced.
Distinction between an ordinary contract for sale of goods and a con•
trnct to pay an existing debt in specific articles pointed out.

THU, was a Special 'Appeal from the decision of S. H.

Phillpotts, Acting Senior Assistant Judge at Broach, in
Appeal Suit No. 101 of 1867, confirming the decree of the
:Munsif of Jambusar.
This suit was instituted by the plaintiff, Dadubhai Nar!:ii,
on an agreement dated 27th December 186i',, whereby the
defendant agreed to deliver to the plaintiff 2 \ blta,· of cotton
on the 3rd of March 1866, or· in default to forfeit Rs. 60
per blufr, and repay with interest the sum of Rs. 300 ad-
vanced on the agreement. He alleged that, the defendant
having failed to fulfil his part of the contract, he was entitled
to recover the principal sum of Rs. 300, together with dam-
ages and interest.
The defendant admitted the execution of the bond, but
stated that on account of the depression in the price of
cotton the plaintiff refused to receive it, though repeatedly
a8ked to do so ; that he had kept the cotton on the plain-
tiff's account, and always had been ready and willing to de-
liver it.
The :M:unsif, Jamiyatr{1m Himo.yatram, rejected the plaiu-
tifPs claim, on the ground that the plaintiff had failed' to take
delivery of the cotton at the place where it was deliverable.

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 APPELLATE CIVIL JURISDICTION, 127
The issues raised on appeal were-(1) On whom does the _ _!__808_:___
onus JJl'Obandi rest ; (2) Has ho on whom the onus 2wobamli D.1.t~=~·\'I
rests proved his point. On the first issue the Acting Senior S .\LLF.1,u's
11'

Assistant Judge recorded the following finding:- D\s1·.

"The onus proband i rests on the plaintiff, for he does not

seek to recover money pnid alone, but also seeks to recover
liquidnted damngt's for breach of contract; so he must show
he clid what he was honncl to do. The chief dispute be-
tween the parties is whether the mH:lennecl cotton should be
delivered in Broach or in Clmnclffel, which is eighteen miles
from Broach; in Broach are the plaintiff's warehouse nnd
residence, in Chauchvel arc the clefemlnnt's fields and re-
sidence; and it was nllcgecl hy the rcspomlent's 'l:al.·!l, and not
denied by the appellant's, that this contract was made in
Chanchvcl. In this contract there is only written tliat 'I
(i.e., the defendant) will on Pal goon Vud 2 deliver uncleancd
cotton'-where it is ddiverable, is not written; the appellant
urges that the meaning is that it was deliverable in Broacl1,
and the re~pondent urges that the meaning is that it was
deliverable in his own village; and my opinion is that tl1e re-
spondent is right: for if it was determined thn.t the condition
was delivery in Broach, then the Court would be introdncing
n new condition into the contract, which the parties did not
make; and as the cotton was deliverable in Chancll\'el, the
plaintiff is of course obliged to show that he did go and
ask for the cotton, for he seeks to recover damages for tl1e
defendant's non-delivery. So if he did not go to get the
cotton, he has no right to sue, else he would be taking acl -
vantage of his own wrong; moreover I do not think that the
cotton was deliverable in Broach, for if it lind been, there
would have been a stipulation to the effect that it was de-
livrrable at his warehouse, 01· at a certain gin, of which
there is no stipulation : so I am of opinion that the onus
1n·obancli is on the plaintiff'.''

The finding on the second issue was to the effect that the
plaintiff had failed to prove that he 11ad gone to t,he defend-
ant'1s residence to take delivery oft.he cotton, and, thereforP,

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 128 BOMBAY HIGH COURT REPORT~.

1868. he had not pel'formed his part of the contract. The decree
DA'DA'nu.1.'1
NARSI of the Munsif was, therefore, confirmed,
'II.
SULElH'N The plain ~iff thereupon preferred a special appeal, on the
D.\SSl'.
ground that the ·lower court was wrong (1) in throwing tl1e
omts vtobandi npon t.lie plaintiff, and (2) in rejecting the
plaintiff's claim not only with respect to the damages, hnt
also with respect to the amount advauc-Nl as the stipulatPil
purchase-money fo1~ t,h e cotton sold.
The appeal was heard before CoucH, C.J., and G1irns, .J.
Nanabhai Haridus for the appellant.
There was no appearance for the respondent.
OoucH, C.J. :-A contract of sale differs from a confra<'t
to pay an existing debt in~~cific articles, a distinction which
does not seen to be noticed by Mr. Addison in his work on
Contracts. In the latter " if the condition of a bond hf' to
tleliver twenty quarters of wheat or twenty loads of timbe1·,
the obligor is not bound to carry the same about and sep);:
the obligee, but the obligor, before the day, must go to tl1e
obligee, and know where he will appoint to receive it, and
there it must be deliYered :" Addison on Contracts, 1042.
But in the formei< " if no place be designated by tl1e
contract, the general rule is that the articles sold are to be
delivered at the place where they are at the time of the sale"
(2 Kent, Comm. 505). And "in a contract of sale, if no place
of deliYery be agreed upon, the goods must be delivered
at the place where they are at the time of the sale, unle:-s
some other place be designated by usage.** But where
goods are to be delivered in payment of a previous debt, awl
no place is specially appointed, or is to be inferred from tho
usage of trade, or the nature of the thing, it is the t'inty
of the debtor, first, to request the creditor to appoint a place,
whereupon the creditor must appoint a place which is rea-
sonable; if he do not, the debtor himself ma,y name a rea-
sonable place, giving notice to his creditor, and a tende1·
of the property at that place will be good. So, also, where
t]io time of delivery is fixed, although the place is not, tl1e
same rule applies:" Story on Contract~, 881.

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 APPELLATE CIVIL JURISDICTION, 129
';rhere does not appear to be any express decision of the ~-~~
1868.
English courts on a contract of sale, but there can be no doubt DA'i>A'unA't
N.\RSI
whnt would be if the point were directly raised. i•.
S.\LU:'lolA'.'i
The Senior Assistant Judge has decided that the place of Dml'.
abode of the seller is the place of delivery in this case, and,
that being the place where the cotton was nt the time of the
sale, his decision is correct; and as it has been found as a
matter of fact that the plaintiff did not go to the defendant's
place to take delivery, and the plnintiff thns failed to perform
his duty, the decree of the lower court must be confirmed
with costs.
Grnns J. :-I roncur.
Dt'r1·ee Mnfi;·med.

Civil Pefi'fio11.
Sept. 3.
VA'suDEV VISHNU, a Minor, by his Guardian
Bhaskar Vas~tdev, <'l al . .................. Petitioners.
NA'RA'YA~ JAGAN~A'TH D1'KsHI'T .. , ......... Opponent.

Arbitration Award-E:ucution-Appeal-Cfo. Prol'. Code, Sec. 32i.

An appeal \jes from an ortler made in exe!'ntion of an arbitration nwar,l
filed untler the pro\"isions of Se!'. 3:!i of the Cil'. Proc. Colle.
QN the 28th of August 18G7 an arbitration award wns
made whereby Naraya~ Dikshlt ob~ained certain rights
against the petitioner Vasudev, and, at the instance of
Naruyai;i, it was filed in the Court of the Principal f;\aclr
Amfo of Khandesh on the 25th of November 1867. After
this an application for the execution of the award was pre-
sented by the said Naraya~, and the Principal f?adr Amin
ordered the award to be executed as prayed for. Upon tllis
the petitioner V11sudev presented a petition ofappeal to the
Judge, the Honorahle G. A. Hobart, who, nuder date the
2nd of March 18G8, mad~ the following order:-
" Without entering into the merits of the order appealed
against, I refuse the appeal, because, though it is laid clown
in Sec. 327 of Act VIII. of 1859, that awards of the nature
of that with reference to the execution of which the appeal
is made, shall be enforced as awards made under the provi-
v,-17 AC

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 1:30 BOMBAY HIGH COURT REPORTS,

1808. sions of Ch. VI. of the said Act, and by Sec. 325 decrees on
VA'st:UEV
v,snxu such awards are to be carried into execution as other decrees
et al. of court, and appeals lie under Sec. 11 of Act XXIII. of 1861
NA'RA\AN J. in the matter of execution of decrees, yet this latter pro-
D1'1-sH1'-r
· vision does not appear to me to make an appeal legal in the
matter of execution of awards on which a decree has not
followed."
4'-gainst this order the petitioner having presented an ap-
plication to the High Court, it was heard before NEWTON and
'fUCKER, JJ.

Sltantadwi Narayati for the .petitioners.

Vishmuath Narayati MancJ,lik for the opponent.
PER CuRIAM :-The Court is of opinion that an a.ppenl
will lie from an order made in execution of an arbitration
a.ward .filed under the provisions of Sec. 32 7 of the Civil Pro-
cedure Code. The Judge's order is reversed, and he should
hear the appeal. We make no order for costs.
Ordc1· rei,ci·sed,

Sc;pt. t.._ Special .Appeal No, 311 of 1868.

'J.1rn.11rA'rPA' BHAT et al . .................. ... Appellants.,
P,\R~TESHRTA.llLMA; et al. .. ................... Re.'!JJondent.~.
Maintenance-Br1,tl1e1''s 'Widow-Limitation-Charge-Act XJV. of
1S59, Sec. 1., cl. 13-Separate lJfaintenance.
Held that a Hindu widow is entitled to maintenance from her hus-
band's bl'other, whether separated or not, notwithstanding the non-receipt
by the latter of her husbantl's assets.
In a suit for maintenance the cause of action ordinarily ariseR at the
time when the maintenance, having become necessary, is refnsed hy the
party from whom it is claimed.
Act XIV. of 1859, Sec. 1., cl. 13, does not apply to all suits for the re -
covery of maintenance brought by a Ilinclu widow against her husband's
family, but only to suits in which the plaintiff seeks to have her mainte.
nance made a charge on a particular estate•.
There is nothing in the Hindu Law to prevent the Court, in its discre-
tion, awarding a widow separate maintenance.
l~om1er decisions commented on.

THIS was a special appeal from the decision of R. W ~st,

Acting Judge of the District of North C11narii, in Ap-

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 Al'l'ELL.\'rE CIVIL :JURI8D1C'£I0N, 131

peal No. 10:! of 1867, rever:siug the decree of tho I\lun:sif-=-_1_868~.~

'l't)lMA PPA' 1

of Honore. BHAT
dctl.
The suit was brought in the court of tir:;t instance by two i·.

Hiudt'1 women to recover maintenance, with arrear,; for tivc PAain:~ 11 •

NI .I \DIA'
years, oue of them being the wi<low of the defendant's bro- et ol.
ther, and the other the widow of his sou.
The Munsif found that, as the plaintiff Parme!:!hriamm11
had been expelled twenty-four years before, an<l as it was not
pro,·ed that her sou was dead, who had sued ineffectually for
a division of property, neither of the plaintiff::; had now a
right of suit again:st the dufendant:s. He, therefore, threw
• out their claim .
The Actiug Judge revcrse<l the Munsif's <lcc1·ee, and
awarded separate maintenance to each of the plaiutiffa.
The defendants thereupon preferred a special appeal,
which was heard before vVARDEN and GIBBS, JJ.
8/iantiuam Na,·aya?t, fur the special appellants :-A Hiu-
d(1 wi<low has no right to claim maintenance from her hus- ·
baud'::; brother if he has not received assets of her hus-
band. In hi:; Manual of Hind11 Law, Mr. Justice Strange
la~·s down (p. u-t, para. 208) that "whoever takes the
estate of the deceased must maintain those whom he was
bound to maintain." 'rhi:; show,; that the obligation to
maintain is on those only who take the estate of the deceased,
except such as are mentioned by .him in para. 200, where he
observes, on the authority of the Mitakshart1, that " where
there may be no property but what has been' self-acquired,
the only parties whose maiuteuance out of such property is
imperative are aged parent!:!, wife, and minor children ;" and
in para. 210 he lays down a distinct proposition exactly
bearing on th::i present case. He says, "thus where there is
no ancestral property, a :widow is not entitled to look for
maintenance from her husband's brother ; and cites for his
authority the judgment of the Madras ~adr Adalat in Spe-
cial Appeal No. 142 of 1859.* Virbltaclracltri v. Kuppcunmal t
is to the same effect. [WARDEN, J.:-The Madras cases only
* l\lad. S. D. Rep. for \859, p. 272,
' t Ibid •. p. 265,.

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 132 BOMBAY HIG.lt COURT lrnl'ORTil.

-=-18_68_._~ go to the length of holding that the widow is not entitled to

Tni:u.\'PPA' a sl'LJarnte maintenance. I' remark that the Madras Judges
BHAT
et al. have not quoted any authority for their decision.] [GIBBS, J.:-
Pu!~ij}[. Every Hind{t widow, whether her husband was divided from
1t1AlU1A' the family or not, is entitled, when in needy circumstances,
et al.
to clajm from her husband's relatives.] I am not aware
of a single case where it was held that the widow of a di-
vided brother was entitled to maintenance. [GIBBS, J, :-
Cltandrabhayabai V. Kashinath (a) lays down that doctrine
distinctly. Bai Lahhmz v. Lakh11iiclas (b) is also to the point.
The whole policy of the Hindu Law is not to allow even a
distantly related widow to starve.]
•
I now g_o to the point of limitation. The theory of the
Hind{t Law is that maintenance is a chcmJe on ancestral
property. The word" charge," used in cl. 13, Sec. I. of Act
XIV. of 1859, is taken from the Hindu Law. The plaint
states that the e:;tate of Parmeshriamma's husband is in the
hands of the def~udants; and it is upon this basis that
ishe asks for maintenance. She evidently seeks to clia1'ge her
tnaintenance on that estate. The limitation of twelve years,
therefore, applies, under cl. 13. [GrnBs, J.:-I do not think
so. In Gangabai v. Eadaskiv (c) it was held that in a suit
for maintenance the cause of action would ordinarily arise at
the time when maintenance, having become necessary, was
refused by the party from whom it was claimed; Act XIV.
of 1859, Sec. 1., cl. 13, does.not apply to every suit for the
recovery of maintenance brought by a Hindi', widow against
her deceased husband's family, but 01ily to suits in which
the plaintiff sought to have her maintenance made a charge
on a particular estate. The consequence of holding the
present action barred would be to compel every widow,
whatever her present means, to file a suit within twelve
years from her husband's death to meet the future continM
gency of her becoming poor.]

My third point is that separate maintenance should not

(a) 2 Born. H. C. Rep. 341. (b) 1 Bom. H. C. Rep. 13.

(c) :S. A. No. 1041 of 1864, decided on 28th June 1865 by Forbes and
Warden, JJ.

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 APPELLATE ClVIL JURISDICTION, 183

be awarded. [GIBBS, J.:-It was ruled (d) so far back as 1858 ____l~ ,-
.
t hat t h ere ,vas noth mg . t he H"md,u Law t o preven t the
m. TrnllA PPA
BHAT

court, at its discretion, awardiug a. widow a separate ma1u- et al,

'II,
tenance. PAnKEBH•
Rl,\lUI.\'
There was no appearance for the respondents. et al.

PER CumAM :-The Court confirms the decree of the Court

below with co:;ts.
Deaec confirmed.
(cl) ,llula v. Gird4arlal, S. A. Xo. ::J9:!i, decided on 6th July 1858
by Frere, Larken, and Harrison, JJ.

Sep.8.'
Speci<il Appeal No. 305 o/ 1868.
GovIND RA'McHANDnA GoKHLE ............ ... Appellaut.
SHEK AaMED et al . ........................ ... Respondent11.
Variance between Plaint and Proof-Admission of Ecidence-Discretion
of Judge-t:,'pecial Appeal.
The plaintiff sued upon a written agreement to recover rent from an
allege1l tenant aml bis two sureties.
The lower appellate court, hol«ling t~e agreement not provctl, threw out
the claim, declining to con,si<ler, in 11.roof of the alleged tenancy, payment
of rent &e. in previous years.
Held ·that this was a matter iu the «liscretion of the Judge; and; as there
was no e1Tor of law in his proceedings, the High Court in special appeal
refused to interfe1-e.
THIS was a special appeal from the decision of J. R .
. Naylor, Acting 8enior As:;istant Judge at Ratnagiri, in
Cross Appeals No:;. 486 and 487 of 1867, revcr:;iog the de-
cree of Daji Govind, the l:;iadr Amfo of Ratnagiri.
The plaintiff, Govind Ramchandra, sued Shek Ahmed and
his sureties, Balaji Mahadcv and Abdul Rahiman, to recover
Rs. 29-12-0 as rent due for a piece of land and trees under
a written agreement.
Shek Ahmed and Abdul Rahimun answered that the agree·
ment was false, and had never been passed by them.
Bal11ji Mahadev did not defend the suit.
Bhikaji Ramchandra wa:; joined by the Court as a de- ·
fendant, as he alleged that he was the owner of the land,
and alone was entitled to rent.

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 134 BOMBAY HIGH COURT REPORTS,

1868. 'fhe :;;adr Amin considered the genuiness of the agreement

GovlND R
GoKHU: doubtful, but from other evidence in the case he came to the
i ·.
SuEK A,n11m
conclusion that the land had been rented to the defendants
d ,ii. by the plaintiff. He, 'therefore, awarded the claim against
the principal and his sureties for the rent of the land, but
threw out the claim for the rent of the trees, as not proved.

In appeal, the Acting Senior Assistant Judge, holding the

ugreement not proved, reversed the ~adr .Amfo's decree, on
the ground that, the suit being to recover rent according to
a written agreement, the ~adr Amin i;hould have confined
the investigation to the scope of the suit, and that, when he
found the agreement not proveu, he should not have awarded
the claim on other evidence, such as payment of rent in past
years, &c.
'fhe appeal was argued before CoucH, C. J., anu NEWTON, J.
8/ta,itaram Nadty<i!l for the appellant.
D!tirajlal Mathudulas for the r~spondcnts.
UoucH, C.J. :-In this case the original suit was brought
by the owner of the land to· 1:ecover rent from the alleged
tenant and his two sureties under a written agreement. 'fhe
lower Court, holding the agreement not proved, threw out
the claim, declining to consider payments of. rent &c. in the
previous years.
It is here urged that the evidence of payment of rent by
the alleged tenant should have been given effe~t to. I do
not say that t~ere may not be cases where the plaintiff who
fails to prove a lease should not be allowed to recover if his
right otherwise is proved, but in this case the lower Court
thought it right not to allow it. It might, however, have
been ju:,;tified in making a decree against the tenant alone,
and not against his sureties, on the evidence of payment of
rent iu past years. I agree with Sir Barnes Peacock, that
"it is a general rule that a plaintiff must prove his case as laid
in his plaint or written statement. If there is a variance be-
. tweeu his statement and his proofs, arising from inadvertence
or mistake, the Court may allow the issues to be amended ;
but that is e~tirely at the discretion of the Court : and we

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"fF"'
··.

APPELLATE CIVIL .JURISDICTION, l 3iJ

think that it would not be the exercise of a sound discretion 1808.

GonND R
to allow a party who relies upon a document to set up a GoK~LE •
fresh case, when an issue as to the execution of snch 8 IIEK Ai•.IIJIIED
document is found against him, and there are good.grounds et a.I.
for believing that the document is a forgery" (Vide Marshall's
Reports, p. 71). But there was no forgery in this case, and,
therefore, it might hnve been that the Senior Assistant
Judge would not hnve clone wrong in making a decree
against the principal. But that was a matter in hiB discre-
tion, and, as there is no error in law, we must confirm hi:-1
decree with costs.
Nr.wTON, J,, concurred.

81>er111l Apprnl No. 2!'l3 of I 8118. __

Se~

HART DH.\"'.\r..rn et al . ......... ""'."" ...... Appellants.

BIRU DARRU et al, .. , ... , .... , ............... R1\'9JOll(le.1ds.
Thirty Years' Rule-Ancient Documents.
The rule regarding the proof of documents more than thirty years olil is
that they neetl uot be proved, provided they have beeu so a<'ted upon, or
brought from su<'h a place as to offer a reasonable presumption that they
were honestly and fairly obtainc1l and preserfed for we, and are free
from suspicion of dishonesty.

THIS was a Special Appeal from the decir;ion of A. ('.

·watt, Acting Assistant ,Jndge of the DiRtrif't of SMurii,
in Appeal No. 3G8 of 186G, reypri;ing the deer<'<' of Yi<lyu-
1lhar C'hint:'11110,1~, l\Cnnsif of Kar111J.

The plaint.iffs snecl to C'stnhlislt t.ht>ir right to perform

divine service at a temple, antl to recon'r some propC'rty at-
tached to it.
The clefendants denied the plaintiff\' right.
The Mnnsif decreed for the defendants.

The Assistant ,Jndge, on appeal, held tlmt exhibit Xo. 8,

which purportC'd to contain an admission in t,he plaintiffs'
fornur hy perRons from wl10111 the clefendnnts derived tllC\ir

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 136 BOMBAY HIGH COURT REPORTS.

1868. title, was a document coming from proper custody, and

HARi
DHANOAR more than thirty years old, and, therefore, proved itself,
et al. He, therefore, upon the strength of this and another docu-
v.
B1;au DAnu. ment, reversed the Munsif'a decree and awarded the plain-
et al- tiff's claim.
The Special Appeal was heard before '\VARDEN and GrnBs,
JJ.
Shanfaram Nfll'a!Jati for the appellants.
Bhafravanafh "!tfang<'sh for the respondenti::,
PER CuRIAM :-The Court find that the Assistant Judge
was in error in holding that the exhibit No. 8 proved itself,
owing to its being"more than thirty years old, and coming
from proper custody. This is not sufficient: ride S. A. No.
966 of 1864 in which the rule laid down with regard to
ancient documents of more than thirty years is that they
need not be proved, provided that they have been so acted
upon, or brought from ~uch a place as to offer a reasonable
presumption that they were honestly and fairly obtained
and preserved for use, and are free from suspicion of dis-
honesty (ri). The decree of the lower appellate court is,
therefore, reversed, and the case remanded for the District.
,Judge to determine, upon the evidepce already recorded in
the case, whether exhibit No. 8. is admissible in evidence,
and on whom it is binding, and to pass a new decree,
awarding costs.
Dec1'cc rci•crscd a.ncl case rernancled.

(a) 2 Phillipps on E\'idence, p. 246.

NoTE.-S. A. No. 9(i(i of 1864 was decide<l by Couch ancl Warden, JJ.,
on 26th June 18(i4. In S. A. No. 229 of 1868, decided on the ith of
October 1868, Conch, C. J., and Newton, J., followed the ruling in the
abore ca~e (S. A. No. l!!l:i).

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 APP>LLATE Cl= JURISDICTl:46 f
Special Appeal No. 228 of 1868.
~:z
'
1868.
Sept. 10.

'fEMULJl Rus1'AMJI , .. . .... . .......... , ..... Appellctnl.

FARDUNJI KA'VASJI et al .................... Respondents. \ I'

J
Jurisdiction-Remand-Power of Lower Appellate Court on remand to
raise the question of Jurisdiction.

When the High Court bas remanded a suit for re-trial 011 the tilerib
the lower appellate court bas no a1,1thority to rai9e a T!t:stion _o f_j~ris• (
diction for the first time. - -

THIS was a Special Appeal from the decision of H. Phi!!-

potts, Acting Senior Assistant.Judge of' Surat at Bl'oach.,
in Appeal No. 48 of 1868, annulling the decree of A'z:1m
Bhikaji Ramchandra, Mamlatdnr of Broach. •
The plaintiff sued the defendants to compel them to allow
him the use of a roadway through their fields to his own.
The defendants denied the right of way set up by the
plaintiff.
The Mamlatdur gave a decree in favour of the defendants,
which was reversed, on appeal, by the Acting Senior Assistant
Judge. In special appeal, the High Court considered that,
as only one witness deposed in support of the plaintiff's
claim, and as he was disbelieved by the court of first instance,
the Acting Senior Assistant Judge ought not to have re-
versed the deci'ee of that Court without examining the
further evidence tendered in exhibit No. 45 by the defend-
ants. The High Court, therefore, remanded the case to the

f,/ ·'
lower appellate court, in order that the wanting evidence
might be taken, and 11, new decree passed on the merits. On
re-trial, the Acting Senior AssistantJ~dge, however, finding
for the first time that, the suit not having been referred in
the first instance by the Collector to the Mamlatdur, as re-
quired by Reg. VI. of 1830, the latter officer had acted
without jurisdiction; and annulled the Mamlatdar's decree. I
The Special Appeal was heard before WARDEN and Grnns,
JJ.
Nanabltai Haridas, for the special appellanf:-This case
having been remanded to enable the defendants to pro-
v.-18 AC

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 138 BOMBAY HIGH COUR'f REl'OR'l'S,

~~1_86_8_._ duce the evidence prayed for in exhibit No. 45, and they
TEYULJ!
RusuMJI having failed to prove the lease therein mentioned, the Acting
FAR:~NJI Senior Assistant Judge ought to have passed the same de·
K.~'v.m1 cision as before, especially when he had no reason to alter
et ai.
his opinion as to the evidence of witnesses. The High Court
having remanded the case for a particular purpose, he ought
not to have for the first time taken an objection not hised
by either party ; that this objection referred to a question of
jurisdiction is immaterial. In Ga?ipatrav v. Bechar ancl othe1·s
(S. A. No. 100 of1868, decided on the 15th of June 1868 by
Coucn, C.J., and NEWTON, J.) the technical objection as to
jurisdiction, taken by the respondent for the first time in
special appeal, was disallowed. Here there is in addition a
tl'emand. [GrnBs, J. :-That case should not be quoted as
·determining such a wide proposition. When the objection
was taken before the High Court for the first time, that the
suit had not been referred for trial by the Collector to the •
:Mamlatdar, the learned Judges remarked that the question
whether it had been refe1Ted or not was a question off~t
I
which had not been found, and they would not, at that late
f stage of the case, send it down for such a purpose.]
At all events, when the Acting Senior AssisW:nt Judge
found that the court which originally tried the case had no
jurisdiction, he ought to have referred it for re-trial by a
court which had jurisdiction.
Dhfrajlal Matlmradas, for the special respondents : -The
point of jurisdiction can .be raised at any stage: Blzai v.
Tomn (,i); Motilal v. Jarnnadas (S. A. No. 812 of 1864,
decided by CoucH, NEWTON, and WARDEN, JJ., on the 2nd of
February 1865) ; Temiilji v. Ichhalal (S. A. No, 604 of 1867,
decided by WARDEN and GrnBs, JJ., on the 21st of November
1867).
PER CuRIAM :-The Court arc of opinion that, as the case
was remanded by them for re-trial on its merits, the Acting
Senior Assist.ant Judge had no authority to look into the
V' question of jurisdiction, which was then raised before him for
the first time. He was also in .error in not issuing sum-
(a) 2 Bom. II. C. Rep. 200.

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 APPELLATE CIVIL JURISDICTION, 189
monses for the appearance of the witnesses to the lease, if he __1_8_68_._
required them, calling on the party in whose favour they a'1~!:~!~~
were to testify to pay the batta. 'l'he Court also observe that t•.
FUARDANJI
the lease was only produced from the Senior Assistant KA'vASII

I
et al.
Judge's records on the very day that the decree was p~ssed,
so that the defendants had no time or opportunity to pro-
duce the witnesses thereto. We are, therefore, constrained
to remand the case again for this purpose ; and the decree of
the Senior Assistant Judge is accordingly reversed, and the
case remanded for re-trial on its merits.
Decrf!c 1'et·ei·sed ancl case i·emam1cr1,

Special Appeal No. 752 of 1867. • Sept. 15.

LA'LClHAND AMBA'mA's, heir of AM:iiA'rnA's

NA'GANDA's ••••.•••••••••••••••••••••••••••• ••• Appellan.t.
SAKHARA'M valad CHANDRA'nrrA'r etal••••..• Responclents.
Limitation-Sale fo Execution of Decree-Suit to reco11er possession
of Lands sold-Act XIV. of 1859, Sec. 1., cl. 3 <t 12-Civ. Proc. Codt,
Sees. 246 and 269. ·

The plaintiff's tenant having been ejected from certain immoveable

property of the plaintiff under an auction sale in execution against a third
party, the plaintiff made no a11plication to the Court, under Sec. 246 or
269 of the Civ. Proc. Code, to pre,·ent or set aside the sale.
Held that he was uot bouncl to do so, but that he was entitled to
file a regular suit to establish his title agd recover possession at any
time within tweh·e years from the tlate of the <lispossession, under. cl. lZ,
Sec. r., Act XIV. of 1859.
Krish,:iaji V. Joshi v. ll!ukund Chimanshe! (2 Bom. H. C. Rep. 18)
overruled.

THIS was a Special Appeal from the decision of A. Bosan-

quet, Acting Judge of the District of Ahmednagar, in
Appeal Suit No. 251 of 18G7, modifying the decree of the
·Mnnsif of S'angamner.
The appeal was argued before CoucH C.J., and NEWTON, J.
Slil.intaram Naraya,ti for the appellant.
Nanabhai Haridas for the respondents.
The facts of the case fully appear from the following jndg-
ment, delivered by

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 140 BOMBAY HIGH COURT REPORTS,

1868. CoucH, C. J. :-This suit was brought by the special ap-

L.i.'LcHAND
AxBA.'in.i.'s N.
11
pe an t to obtam • possession
• of a sh op a t .A..Kol'a, wh"1ch h e
v.
SAKBA'n.i.':u
alleged Lakshuma:r;t and RavJ'i had, by two deeds in the
CHANDRA· years Shake 1775 and 1776 (A.D, 1853 and 1854), mort-
llHA'1
et al. gaged to Mangalji Bhiiichand for Rs. 365-4-0 ; and Mangalji
had, by a deed dated Chaitra Vadya 7, Shake 1779 (16th
April 1857) sold the mortgage to the plaintiff's father, .A.m-
baidas, for Rs. 449; and the plaint stated that Hukam-
chand Kisandas, had obtained a decree against Talakchand,
the brother o_f Mangalji, and, in pursuance thereof, attached
and sold Talakchand's mortgage right in the house; that the
· defendant, .Sakharftm, bought that mortgage right, and the
plaintiff's tenant, Ramdas, was ejected from the shop, and it
was made over to Sakharam; but Mangalji and Talakchand
were divided in estate, and Talakchand had no right in the
shop,
Sakhar&m's defence was that the action was barred by
lapse of time, it not having been brought within one year
from the sale of the shop ; that Ravji had mortgaged the
shop to Mangalji and Talakchand, who never divided the
family estate.
The defence of Ramd11s was that the plaintiff had let the
!!hop to him; that the house had been subsequently attached;
and that on the 2nd of March 1863 he was ~jected from the
shop, and it was made over to Sakharam.

The Munsif of Sangamner decreed for the defendants,

on the ground that the suit was virtually a suit to set aside
a sale of property sold under an execution of n, decree of a
Civil Court, and, therefore, barred by cl. 3, Sec. I. of Act
XIV. of 1859, it not having been instituted within one
year from the date of the sale;· and he found tbJi,t, Mn.ngalji
and Talakchand being divided in estate, Mangalji had
· bought the mortgage on the house, and had sold it to the
plaintiff's father, .A.mbaidas, and when the shop was attached
it was occupied by the plaintiff's tenant, Ramdas .
.Against this decree the plaintiff appealed to the Dist.rict
Court, which hekl that the suit was not barred by the law of

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 APPELLA.Til CIVIL .JURISDICTION. 141

limitation; and-finding tha.t :Mangalji and Talakchand were 1868.

no t di 'd d . t
v1 e m es ate ; th t "ll' I"
a .JYJ.anga Jl so Id h' t LA'LCHAND
1s mor gage AKBA'IDA's N.
to the plaintiff's father, .A.mbaidas; and that, when the shop su;~'J1A'x
was attached, it was occupied by Ramdus as the plaintiff's CHANDRA•
BH.\'I
tenant-modified the Munsif's decl.'(;le, by ordering that on 6 t al.

the plaintiff paying to Talakchand's legal representative,

Sakhurum, Rs. 224-8-0, the value of Talakchand's share in
the mortgage, as estimated in the. mortgage-bond to Am-
. baidns, the defendant Sakhurum should make· over the shop
to the plaintiff.
Against this decision there is a special appeal, on the
grounds that the Court has made an award in favour of the
representatives of Talakchand, who, it was not proved, had
any interest in the original mortgage ; and, it not being fo1md
that Mangalji was acting on behalf and for the benefit of
Talakchand, his representatives could not be allowed to take
advantage of it. At the hearing of the appeal it was ob-
jected for the respondent Sakhnram that the suit was barred
by the law of limitation ; and this is the first que~tion which
we have to consider.

In Special Appeal No. 773 of 1864, K1'islu;iaji V. Joshi v.

J,,lulmn<l Ohi'.manshet (a), the plaintiff had purchased land at
an auction sale held by the Court on the 27th of March 1858,
and had taken posseRsion ofit. The defendant subsequently
purchased the same land at another auction sale, held through
the Court, and took forcible possession of it. The Assistant
Judge of the Konkal). held, reversing the decree of the
Munsif, that a suit by the plaintiff to recover possession of
the land was ban·ed by the law of limitation, and this Court,
on special appeal, confirmed his decree; and in Special
Appeal No. 526 of 1866, heard on the 29th of January 1867,
in which the plaint stated that the plaintiff was a mortgagee;
that the money was due to him on the mortgage, and that
the land had been sold by auction and he had been dis-
possessed; and sought that he should be put in possession
as before, this Court, following previous decision, held that

(a) 2 Born. H. C. Rep. 18.

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 142 BOMBAY HIGH COURT REPORTS,

1868. the claim was barred. On that occasion the case of Rcirn
LA'LCHAND G .
Gopal Roy v. Nundo opal R01J (b) was quoted, where it
AMBA'm,1,'sN.

su:~'nA'M was held by Trevor and G. Campbell, JJ., that a man

CHANDRA· dispossessed by the Court in execution of an auction sale
BHAI 1

et al. must sue within one year to reverse the sale proceedings ;
but if he is dispossessed by the purchaser otherwise than
through the Court, he can sue within twelve years of his
cause of action.
The plaint in the present suit must be construed as al-
leging. that the plaintiff's tenant was ejected from the shop
through the Court in execution of the 1tuction sale, and the
question is, whether a suit to recover the possession is within
cl. 3 of Sec. 1. of Act XIV. of 1859.
Sec. 246 of the Civil Procedure Code provides, in the
event of a claim being preferred to, or an objection offered
against, the sale of attached property as not liable to be sold
in execution of a decree against the defendant, for an investi-
gation by the Court of the question whether the property
attached was in the possession of the party against whom
execution is sought as his own property, and not on account
of any other person, or was in the possession of some other
person in trust for him, or in the occupancy of 1·ayats or
cultivators or other persons paying rent to him, at the time
when the property was attached; and the order passed by
the Court 'is not to be subject to appeal, but the party
against whom it may be given is at liberty to bring a suit
and establish his right within one year from the date of the
order. Where a claim is made, or an objection offered to
the sale, and an investigation follows under the section, it
is clear that the party making the chim or objection, if un-
successful, must sue within one year frotn the date of the
order, if he seeks to establish a right to possession. The
order of the Court has the same effect as if he had been
originally made a defendant in the suit, and is binding like
any other judgment, only that, instead of being subject to
appeal, it may be set aside by a suit, and the property de-
clare_d not to have been liable to be sold. If a suit were sub-
(h) 4 Cale. W. Rep., Civ. R.42.

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 APPELLATE CIVIL JURit!DICTlON, 143
sequently brought, between the same parties, it would not be 1868.
necessary for the defendant to rely on the law of limitation A1;:~~~!~~0N.
Sec. 2 of .A.et VIII. of 18ti9 would be a.n answer to it. • S,uts.i.'a.&'x
11•

CH.ANDIU,•
Sec. 269 enables the Court, on the complaint of any per- .JIHA!'
et al,
son claiming as proprietor, mortgagee, lessee, or under any
other title, who shall be dispossessed, to inquire into the
matter of the complaint, and pass such order as may be
proper, which order is not subject to appeal, but the party
against whom it is given may bring a suit to establish his
right at any time within one year from its date.
But suppose a. person, as he may do (8 Cal. W. Rep.,
Civ. R. 358), abstains from preferring a claim, or objecting
to the sale, or not knowing of the sale, is dispossessed
after it has been completed and makes no complaint under
Sec. 269: within what time must he bring a suit? Its
object is to render the sale void and totally inoperative as
regards the property in question. Though not in form to
set a.side the sale, it is virtually a suit to do so ; and in
Special Appeal No. 773 of 186'1·, we were of opinion that, as
it was a suit to enforce the same right which would be
enforced by the suit referred to in Sec. 246 and Sec.
269 of .A.et VIII. of 1859, it ought to come within cl. 3 of
Sec. 1 of .A.et XIV. of 1859 ; and this agrees with the
opinion of the High Court at Calcutta in the case before
quoted. But, as there are contrary decisions in that Court
we have thought it right to ·reconsider our opinion. The
principal of these are reported in 7 Cal. W. Rep. 253 and
256, and were by a Full Benclr. Cl. 3 of Sec 1. of .A.et
XIV. of 1859 is in terms applicable only to suits to set
aside the sale, and the concluding words s.ppear to show
that it is to be construed strictly. They are-" the period
of one year from the date at which such sale was confirmed,
or would otherwise have become final and conclusive, if
no such suit had been brought." These words are inap-
plicable to a suit where the dispossession is the cause of
action, and it may not have taken place till some time after
the sale was confirmed. They seem to refer to a suit by a
party to the suit in which the execution issued or by the

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 144 BOMBAY HIGH COURT REPORTS,

L ; 868• purchaser, who are bound by the confirmation of' the sale, and
Al,CHAND
AMBA'rn.t.s N. not to a suit by a person not bound by it ; and. although
SAKu:~a,1.'H looking at Sees. 256 and 257 of .A.et VIII. of 1859, suits of
' 0 u;:i~~- the former description are likely to be rarely brought, they
el ed. may sometimes occur. When we decided Special Appeal
No, 773 of 1864, we thought it was not the intention of the
Legislature to provide for these cases by cl. 3 of 8ec. 1. of
.A.et XIV. of 1859, and that suits to recover property, the
title of the defendant to which rested upon a sale in execu-
tion of a decree, and where the sale, though not in form
sought to be set aside, was sought to be rendered totally
inoperative, were contemplated; and in coming to this con-
clusion we were influenced by a consideration of the means
afforded by .A.et VIII. of 1859 for determining whether the
property was liable to be sold in execution of the decree, and
of the diminution of price which must arise from the uncer-
tainty of the title, and the possibility of the property being
claimed by a third person at any time within twelve years
from the taking possession under the sale. We are now,
however, of opinion that this conclusion cannot be' supported,
and that the decision must be considered as overruled.

The District Judge then having rightly held that the

suit was not barred by the law of limitation, it is necessary
to consider the other grounds of appeal. He has found that
:Mangalji and Talakchand were undivided, and consequently
that the money secured by the mortgage to Manga.lji was
their joint property, and that Sakharam, by his purchase at
the sale in execution of the llecree against Talakcha.nd, was
entitled to stand in his place. This would have been cor-
rect if there had been no sale by Mangalji ; but it may be
that Mangalji was the manager, and that the sale was made
under such circumstances as to render it valid against Talak-
chand or any one claiming under him, or that the money
advanced to Lakshumal}. and Ravji was the self-acquired
property of Mangalji, and- the entire interest in the mort-
gage security belongs to the plaintiff. The suit must, there-
fore, be remanded for re-trial: the costs to follow the final
decision.

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 Al'PELLATE CIVlL JURISDICTION, U5

Special AJ>L>ecil No. 398 of 1868. 1868.

Sop. 16.
JA.NA '1mHAN PA'NDURA.NG .................. ... Appellant.
GoPA'L and V..\:::;uoEv PA'N~URANU ... .. . ... Respondents.

Hindu Law-Leprosy-Disqualification/or Inheritance,

It is only when leprosy assumes a virulent anti aggravatetl tyJ>e that it
i,i by Hindu law made a grouutl for disqualification for inheritance.

THIS was u. Special Appaal from the decision of R. H;

Pinhey, District Judge at ThaQa, in Appeal Suit No.
451 of 1867, confirming the dccr~o of the Munsif of Panvel.
Janardhan sued his two brothers, Gopal and Vasudev, to
recover possession of a third-share ~f the moveable and im-
moveable property of his family. The defoncc wns that the
plaintiff was incompetent by Hindu Law to claim a share in
the family property, as he was suffering from leprosy, The
l\Iunsif, Vithal Vusudov, rejected the claim, holding that the
plaintiff was incompetent to claim a share of the family
property, by reason of his being an incurable leper. 'The
District Judge confirmed this Jecision. The following is an
extract from his judgment :-
" That the plaintiff is a leper is proved by his own witness
No. 18, as well as by the defendant's witness No. 19; and I
think it is clear from all the text-books that according to
Hindu Law a man cannot claim his share of family property
while he is suffering from leprosy. It is urged for the plain-
tiff that the leprosy with which he is affiicted must be proved
to be incurable before it can be considered as disqualifyiug
the plaintiff from maintaining this suit; but this argument
is not, in my own opinion, a sound one. The Hindu Law
contemplates the case of a man recovering from leprosy, and
declares that to a man so recovered his right to claim a share
of family property revives. This shows that leprosy, though
• not incurable, disqualifies the leper from inheriting until he
is cleansed from his leprosy."
The case was heard before CoucH, C.J., and NEWTON, J.
Pa11r/,1tl'an9 Bal ibltadra (with him Shim ta ram Naraya?i), for
the appellant :-It is only when leprosy assumes a virulent
V,-1!} A. C

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 146 BOMBAY HIGH COURT REPORTS.

__
1s_68_.__ and aggravated type that it is regarded by Hind(1 Law as a
JANA 1 RDHAN
PA'NoURANu disqualification entailing forf'eiture of inheritance:. Madras
Gov;A'L f;ladr Court Rep. for 1860, p. 239 ; but there is no finding
PA'N»URANa by the Judge as to the nature of tho disease in this case.
et a.i.
"One incurably diseased" is included among those who
are disqualified: Grady on Hindoo Law of Inheritance, p. 98,
where the authorities are collected. " Ulcerous leprosy" is
described to be a disease of an obstinate or agonising
nature: vi{le Strange's Manual, p. 56, para 218. According
to the Mitakshara (Ch. II., Sec. 10), persons "afflicted with
an incurable disease" are excluded from inheritance, and those
who are so afflicted aro described to be persons "affected by
an irremediable distemper, such as marasmus or the like."
Again it is laid down that persons afflicted with a long and
painful disease are excluded from inheritance ; and "long" is
explained to be from the peri~d of birth, and " painful" is
explained to be leprosy, &c.: vide Stokes' Hindu Law Books,
p. 500. It is also. laid down that the disease that disables
(an obstinate or an agonising one) must be ascertained to be
the sign of an atrocious crime, or it has not the effect of
excluding; it being not the disease, but the sin, that is the
cause ~f the disability; and hence it may be removed by
penance : Strange's Hindu Law, p. 156; Thompson on
Hindu Law, p. 65. All the authorities go to show that the
type of the disease to exclude must be virulent, which is
not the case in this instance.
Vislwanath Naraya?i Man<;llil,, for the respondent :-The
moment a party becomes afflicted with leprosy he loses his
natural tight of inheritance : Madras S. D. A. Rep. for 1857,
p. 210; but if he recover from or is cured of his leprosy,
he will not be debarre·d from making a claim: Elberling
on Hindu and other Laws, p. 88; Vyavahara May(1kha,
Ch. IV., Sec. xr., para. 2.
CoucH, C.J. :-It appears to us that the law on the •
point now before us was correctly laid down by the Judges
of the late f;ladr Court at Madra~, as reported at p. 238 of the
Reports for 1860. Here it was observed that " it is a fact
well-known in medical science that the disease of leprosy

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 APPELLATE CIVIL .JURISDICTION, 147

assumes in some cases a mild and curable form, while in __1_868_._

. appears in
oth ers it . a viru
. Ient an d aggravate d t ype. The pJANA'RDHAN
A'NDURANn

$adr Court find, on consulting the best authorities on the ,:.

GOPA'L
subject., that it is in the latter case only thattlie disease is re- PANnllRANu
ga.rded by Hindu Law as a disqualification entailing forfei- et al.
ture of inheritance.'' This appears from the Mitakhsharn and
Vyavahara. May(1kha to be the correct view of the law. We,
therefore, reverse the decree of the Court below, and remand
the case that it may be determined whether the plaintiff was
suffering from leprosy of a virulent and aggravated type, so
as to be disqualified by Hind(1 Law from inheriting.
.'
'
• ):'
·.
'
''
Special .Appeal No, 353 of 1868. Sep.23.

KA'Nu KHANDU ...•..••••.•.•.........•••••.• ••. Appellant.

Kmsn~A· BHULA'JI SHE~' .................. ... Respondent.

Registratio11-Unregisttred Mo:-tgnge-Decree-Priority.

An unregiAeretl mortgage without possession U)Jaa..:n:lli~lu1_d~<'ree has

been ohtained bnt~t exe<'uted, has not, by Yirtue of such dc<'ree, piiority
oyer a subsequent deed of sale which is registered.

THIS was a Special Appeal from the decision of A. Lyon,

Assistant Judge ~t Thal},u, in Appeal Suit No. 269 of
1867, reversing tho decr~e of the Munsif of Alibag.
One B{tln Hassiu, on the~9th of April 181:,8, mortgaged a
house to the second defendant, Natha, ON.the 21st of Octo-
ber 1859 a d~cree was ~tainecl thereon by N{1thu, but tl1iR
decree was not executed till the 14th of January 1867, on
which date the house was b~iija-"iit"a'Court'R
sale under the decree of the 2Jst 9.[ Q_~tob~F 1~~9. Meanwhile,
snbs!'lqneutly to t,bat decre,e, but prior tQjhe 9S?u.rt's sale in
1867, the house was sold to one K.h~mji at a.DOther Court's
sale on the 24th of March 1862, and Khemji was put in
possession on the 12th of May 1862. Khemji sold the
house to the plaintiff, who continued in possession until he
was dispossessed in execution of the decree against Bul{,
Hassia •
.___ ---.--"""

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 148 BOMBAY HIGH COURT REPORTS,

1868. The plaintiff applied for the removal of the attachment,

--KA'N-i;--
KHANDU but his application was rejected, not having been presented
v 1,.·
H
.,..RJS NA
, B
•
at the proper time.
•
He, therefore, filed the present suit to
SttET. establish his right to the property. The first issue raised
was " whether the sale to Khemji was made cmn onere of the
decree passed on the mortgage deed in 1859." The Munsif
I held that the sale was not subject to the claim on the mort-
I gage, on the authority of the decision in Special Appeal No. 23
f
of 1861 (a), in which it was held that a sale with possession
I _.________
rendered a prior mortgage without
............ ·- ·-
p_ossession
- - invalid.
The Assistant Judge was of opinion that this ruling would
have applied to the case if the mortgage had been a simple •
mortgage and no more, but that it did not apply, as a decree
had been obtained on the mortg~g~ :prior t<> the sale. He

I
{
considered that the decree obtained on- the mortgage cured
the incompleteness of the mortgage caused by the absence of
possession, and made the purchasE3 su!?~~q-geµt_ to the ~-~2!:ee
n purchase subject to the decree on the mortgage.
\
The case was heard before CoucH, C.J., and NEWTON, J .
•
Dh-irajlal Mathm·adas, for the appellant :-The Munsif
was right in holding that the ruling in Special Appeal No.
23 of 1861 (.mzwa) applied to this case. The same ruling
was followed in Special Appeal No. 971 of1864.

8/iantoA:rni Na1·ayct?i, for the respondent :-According to

a recent ruling of this Court, registration cures the defect of
want of possession, and makes the mortgage yalid : U'111ftji
mlacl Ufwaj1'. Pa!fl v. Hari Ramchanclra Knlkai·?ii (b); and by
analogy a decree declaring a specific lien on the property
will bind the property-the mortgage, in fact, merges in the
clecree.

CoucH C. J. :-The Assistant Judge finds that, a decree

having been obtained upon an unregistered mortgage, the
mortgage has, by virtnf;) _of t~e decree, priority over a sub-
sequent deed of sale which was registered, and that tlie
decisions of the High Court as to unregistered mortgages
(a) 8 Harrington 189. (b) 4 Dom. H. C. Rep. , A.C.J. 143.

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 APPELLATE CIVIL .TURISDICTION,
! 149.
do not apply where a decree has been obtained on such
mortgage; but he quotes no authorit,y for his decision.
118~~~
KRAXDU

"'· B.
The decree was one of the ordinary decrees in suits upon KRtSRllA.'
SIIF.T.
mortgage bonds, and was J2,r the recovery of the ~oney
from the mortgaged property. in the first; instence, and fail-
ing that from the mortgagor and his sureties personally (vide
exhibit No. 26 in the cnse ). It is contended for the responi;l-
ent that the mor!.s'nge is u~C'rgecl in the. d~cree, and the de-
cree must he consider~ <:_quivalcnt to possession under the
mortgage. we have helJ i~- tlie cnse of lliruchmHl Bu.lJai v.
Bhllskw· A'bal,lwt 87temJ.e (,:) that n, mortgagee in posses-
sion, who also became the purchaser of the property for the
amount secured by the mortgage under a deed of snle which
was neither stampc:d nor registered, can fall back upou •
his. mortgage, and recover ~oll:nt _t_h ereof in preference
to a subsequent purchaser of. the same_ property whose deed
of sale was both sta~ed and registered. Now that holding
is quite inconsistTnt with what is urged here in regard to
the merging of the _£10rtgage in the decree. By the Hindu
Law a mortgagee must have possession, and a declaratiop of
right to get possession is not possession .. ·we cannot, there-
fore, consider the decree as having the same effect as posses-
sion. The practice of this court, as far as I can remember
it, is to look not at the d~te of the decret>, but at the date
of the mortgage which is the foundation of the decree. The
mere obtaining a decree declaring that the mortgaged pro-
perty is liable cannot have the effect of possession until the
decree ili executed, because no publicity or notoriety is
caused by obtaining a decree if it is not . executed. We,
therefore, reverse the decree of the Assistant Judge, and tte
consequence will be that the decree of the Munsif will stand.
NEWTON, J., concurred.

Decree of Disfrict Omtd rr1·rrsP11,

(c) 2 Born. 11.C. Rep. 20i.

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150 BOMBAY HIGH COURT REPORTS,

1868. Referred Oase.

Sept. 30.

GANPATRA'v bin RA'MJI ..................... ... Plaintfff.

MANNO' bin MoHANJI ....................... , •.. Defendant.

Word" Month," used in Native Jn,truments-Mode of Computing-

Natfoe Calendar.

JVhere a promissory note executed by a Native bore a Native date only,

and was made payable in a certain number of months from such date :
It was held that these months shoultl be calculatetl according to theNative,
not.. the British Caif'ndar.

THE following case was submitted by Janardhan Vasu-

devji, Judge of the Court of Small Causes at Pm1(1, for
the decision of the High Court :-
" One Ga11patrav bin Riimji Malle has presented a plaint
to this Court, suing one Mann(1 bin Moha.nji for the payment
of Rs. 123 on a promissory note dated the 4th of Chaitra
Shudhya, Shake 1787, corresponding with the 30th of March
1865. The note stipulates payment in four months, and if
those months be taken to be Native calendar months the
note becomes payable on the 4th ofShrftval} Shudhya, Shake
1787, corresponding with the 26th of July 1865, and the claim
is barred at the date of the presentation of the plaint; but if
the stipulated period of payment be taken to be four English
calendar months, then the debt becomes due on the 30th
of July 1865, and the claim is within the limitation. The
question, therefore, for decision is whether, when an instru-
ment bears a Native date, and is made payable within a
given number of months, those months should be construed
to.be the Native or the English calendar months ..
"The note in question gives no corresponding English
date, and it is, therefore, clear that the months therein used
to represent the period of payment were intended by the
parties to be the Native, and not the English, calendar
months. I am, therefore, of opinion that when a. Nat.ive, and
not an English, date is borne by an instrument, and the
debt is made payable within a certain number of months,
those months must be taken to be the Native months, and the
period of limitation reckoned by the English year, from the

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 APPELLATE CIVIL JURISDICTION, 151

English date which may correspond with the Native date on __1-'-868_._
,
which the stipulated period of payment, calculated a.ccordmg
0.t.NPATRA'V
RA'HH

to Native months, may expire." MA:Nu

:MollANJI,
Pim CuRIA.M (Coucn, C. J., and NEWTON, J.) :-'11he Court
concurs with the Judge of the Small Cause Court in opinion
that in this case months must be calculated according to the
Native calendar. The parties, having used only Native
dates, must be presumed to have contracted with reference
to the Native, and not the English calendar.
NoTB.-See S. A. No. 23li, Bellasis, Rep., p. 90; S. A. No. 2818,
Morris, Rep., Part I. p. 115; Letter No. 23i6 of 2ith September 1866
to the Judge of Khanc.lesh (upon a reference made by him under Sec. 28
of Act XXII(. of 1861) stating that, under the present law of limitation,
the time must be computed according to the English calendar year.
~

Special Appeal No. 386 of 1868. Oct. 1.

SAMSUDDIN SuLTA N et al. . ................ . Appellants.

1

RA'MJI Banu' et al. . ...................... . Respondents.

Agreement to aupply Colton-Adoance-Stamp-Act X. o/ 1862, Sch. A,
Arts. 4 and 15.
An agreement to supply cotton in consideration of a sum of money
received should be stamped under Art. 4, and not under Art. 15, Sch. A,
Act X. of 1862.

THIS was a Special Appeal from the decision of the Honor-

able G. A. Hobart, Judge of the District of Khnndesh,
in Appeal Suit No. 45 of 1867, confirming the decree of
A'ppaji Lakshumal}, Munsif of Nandurbnr.
The plaintiffs sued as heirs of one Akhbar Alli to recover
a sum of money alleged to be due on an agreement in which
the defendants, in consideration of an advance made to them,
undertook to supply a certain quality of cotton at a fixed
rate.
The defendants, though duly served with summonses, did
not appear to defend the suit.
The Munsif considered that the agreement sued on should
be stamped at the rate laid down in Art. 12, Sch. A, Act X.
of 1862, and, as the stamp of one rupee affixed to that agree.

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 152 BOMBAY HIGH COURT BEPOR'.CS,

__1_8_68_._ ment was, in his opinion, insufficient, rejected the plaintiff's

SAMSUDDIN
SUL1'A 1N claim.
et al.
v. In appeal, the plaintiffs urged that it had been decided by
::;~:~ the High Court, in S. A. No. 534 of 1866, thu.t a stamp of
et al. one rupee was sufficient for an instrument of the nature
of that sued on ; but the Judge recorded the following
finding:-

" The precedent quoted does not appear among the High
Court's reported cases; but it appears in a compilation of
decisions by the High Court in Marathi. I do not look
upon this as a book published by authority, and no certified
copy of the decision is produced. I feel myself at liberty to
follow my own view of the law, therefore, unfettered by
precedent; and in my opinion the .instrument sued on is an
obligation given as security for the delivery of a thing
capable of being valued, and comes within the description
of an instrument given in Art. 15 of Sch. A, of Act X.
of 1862. The orie-rupee stamp is insufficient for Ruch an
instrument.
The Special Appeal was heard before vVARDEN and GrnBs,
JJ.
Vislwanatlt Naraya?i Mandlik, for the special appellants :-
The Judge has wrongly disregarded the precedent cited be
fore him. Art. 15, Sch. A, Act X. of 1862 does not apply
to an agreement to supply cotton in consideration of a sum
of money; Art. 4 does. The stamp of one rupee; which is
the highest amount prescribed by that article is sufficient.
[GIBBS, J. :-The District Judge should have taken notice of
the report so far as to direct the party interested to obtain
and furnish an authenticated copy.]
No one appeared for the respondents.
PER CuRIAM :-The Court considers phat the Munsif and
District Judge have erred in holding that the agreement on
which the claim is founded comes under Art. 15 of . Sch.
A, Act X. of 1862. The Court is of opinion that, in ac-
cordance with the precedent, S. A. No. 534 of 1866, decided
on the 30th of January 1867, an agreement of this nature

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 4PPELLATE CIVIL JURISDrCTION. 153
requires a stamp of the '\"alue specified in Art. 4 of that 1868.
. h est rate of which being one rupee, the
sc hed u1e, t l10 h1g -S.u,suDDJli
Svtn':-i
agreement is properly stamped. The decree of the District et a.I.
t•.
Judge is, therefore, reversed, and the cause remanded for RA'MJI
BBIIU;
re-trial on the merits. et al.

.
Deaee ·1·ei·ey11ed a11tl suit remanded,

Special Appeal ]Ito. :309 of 1868. Oct. 7.

NANDRA'.M SuNDARJI NA'IK ............... ... Appellant.

BA'LA'JI VI;HAL et al ........................ Respondents.
Stamp-Redemption S11it-Valuation of Claim-Act X. of 1862, Sch.
B, Art, lJ, note (c)-Act XXVI. of 18(i7, Sch. B, Art. II, note (a),
Special R11le (l )for the Bombay Presiclency.

The stamp duty pay'ablr, under Sch. B of Act X. of 1862, onn suit
to redeem mortgaged laud paying revenue to Gorernment, should be
calculated on the sum for which tbc land is mortgaged, and not on the
market value of such laud.
Semble that an error iu the valuation of the plaintiff's claim, on account
or which error the defendant is compelled to pay more costs than he would
otherwise have to pay, is not in general a ground of special appeal.

THIS was a Special Appeal from the decision of N. Daniell,

Assistant Judge of the District of Pm;a, in Appeal Suit
No. 3:3:3 of 1865, confirming the decree of A'rdesir Khar-
setji, M:uusif of Pm,1a.
~ Tho plaintiff, in 1864, sued to redeem a piece of land
paying revenue to Government, mortgaged by him to the
defendant in 1861 for Rs. 1,100. He calculated the value
of the instjtntion fee at the amount of the mortgage money,
which, according to the scale given in Art. 11, Sch. B,
Act X. of 1862, the Act in force at the time of suit brought,
amounted to Rs. 50.
The defendant admitted the mortgage, stated that the
period fixed for redemption in the instrument of mortgage
had expired, and objected to the valuation of the suit, which
he urged should have be.en valued under note (c), Art. 11,
Sch. B, Act X. of 1862, at the amount of the annual assess-
ment of the land sought to be redeemed.
v ......20 A. c;

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 154 BOMBAY HIGH COURT REPORTS,

1868. The Mnnsif decreed redemption, with costs calculated on

NANDRA.'MS.
NA'Ilt the sum for which the land had been mortgaged.
V,
BA'LA.111 On appeal, the Assistant Judge delivered the following
VITHA.L
et al, judgment:-
"Under .A.et X. of 1862, Sch. B, Sec. 11, note (c), the
value of the property should be calculated at the amount of
the annual assessment; but I d~ not think this sufficient
ground for disturbing the award of costs. The respondent
(Dhere) argues that proprietary right has never passed from
him ; and it appears to me that as he seeks to recover by
satisfying the mortgage on the land, he is at liberty to lay
his claim at the amount of the mortgage. He seeks to re-
cover whatever element in the property has passed from
him by reason of the mortgage : the actual land, he says, has
· never gone from him, although it.is in the appellant's hands.
I do not think that the abovenamed rule of the Stamp Law
is of necessity applicable." The Assistant Judge upheld the
Munsif's decree.
The Special Appeal was heard this day, before a Full
Bench consisting of CoucH, C. J., NEWTON, Tuc:irER, WARDEN,
GrnBs, and SARGENT, JJ.
Bha,iravanath l,fangesh, for the appellant :-This suit was
filed in 1864, so that its valuation is governed by .A.et X.
of 1862. .A.rt. 11 of Sch. B appended to that Act pro-
scribes the stamp duty on a suit to obtain possession of any
interest &c. if the same is not otherwise provided for ; but
note (c) to the same article contains a special p~ovision for
the vaiuation of claims to lands paying assessment to Gov.
ernment, and according to it the annual assessm~nt in such
cases is the amount at which the claim ought to be valued.
[SARGENT, J. :-The property claimed here t'> the mortgagee's
interest.] [CoucH, C.J. :-Yes. The claim is that the pro-
perty should be freed from the charge : so the right of the
mortgagee is in dispute; but the words in note (c) are" suits
Jo,· land." This does not include a mortgage, but providea
for cases where the title to land is disputed.]
Nci.nablui.i Ha1idas, for the respondent :-It was the prac-
tice in the times of the late Sa9r Court to value redemp-

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 APPELL.ATE C'I'VIL Jt:RISDIC:TION, 15~

tion suits at the amount of the mortgage money. Reg. __1_so_s_._

NANDRA'K S.
XII. of 1830 provided that suits for lands paying revenue to NA'IK

Government should be valued at the amount of the annual BA'LA'JI i1,

assessment. [Grnns,J.:-Sec. 3 of Reg. IV. of 1827 also V1T1uL

et ai.
provided that when the property in dispute consisted of
a periodical income, the suit for it should be valued at the
rate of ten years' purchase.] 'l'he law under the Regula-
tions was, therefore, similar to that which prevailed when
Art. 11, Sch. B, and note (c) were in force. When the first
Stamp A.et, XXXVI. of 1860, was passed, the provisions of
Reg. XII. of 1830 were embodied in it: see note (c) to Art.
6 of Sch. B appended to the Act ; and in the present Stamp
Act, X. of 1862, tho same provision is preserved.
CoucH, C. J. :-This question was expressly decided by
the High Court in Special .Appeal No. 127 of 1863, decided
on the 14th of September 1863 by Erskine, Newton, and
Westropp, JJ., and that· decision was followed in 1866 by
all the Judge,:; in a reference from the Judge of Canara: vidc
High Court's letter No. 2510 dated 3rd October 1866.
W o consider that this settles the point, as we all agree
that the decision of the three Judges in the special appeal
referred to was a correct decision, and we are, therefore, of
opinion that the ground of appeal fails.
I must say for myself that, considering the importance of
having this question settled, I was unwilling to allow it to
be discussed whether a special appeal could lie on the point
raised. I must, however, not be supposed to assent to the
proposition that where a party, by an error in the valuation
of a claim, is made to pay more costs than he otherwise
would have to pay, that alone can generally be made a.
ground for a special appeal.
We must confirm the decree of the lower Court with costs.
Decree confirmed,

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156 DOMBAY HIGH COURT REPORTS,

18G8. Beferl'ed Case.

Oct. 7.

SADA1SH1V MoRESHVAR ••••••••••••••••••••• ••• Plaintfff.

HANSO bin SHRA,VAN ........................ ... Defendant.

Perishable Articles-Execution.
Articles of such a perishable nature that they cannot be kept for fifteert
days and sold, according to the Civil Procedure Code, ought not to be
taken in execution.

Under .A.et X. of 1867, .Janardhan Vasudev, Judge of the

Small Cause Court at Pui;ia, submitted for the consideration
of the High Court the question "whether green fruits, green
vegetables, milk, fish, meat, and other articles of a like per-
ishable nature should be attached in execution of a decree."
The following was his opinion on the point : -
" They have not been exempted from attachment by Sec,
205 of the Civil Procedure Code; f>ut as they cannot be sold,
under Sec. 249, until after the expiration of at least fifteen
days from the publication of the notification of sale, and as
they will become rotten before the expiration of such period,
nothing will be gained from the attachment, which in effect
will be a nullity, while it will cause a~ unnecessary loss of
property to the defendant. I am, therefore, of opinion that
until the present law, which forbids the sale of any property
taken in execution before the expiration of fifteen days from
the notification of sale, is modified, perishable articles of the
nature above alluded to should not be attached.
" It is held by some ,Judges that such perishable articles
can be sold simultaneously with the attachment,' under
Sec. 250 of the Code. I am, however, not of that opinion.
According to my reading of that section, the process for
sale may be issued simultaneously with the process for
attachment, but in no case can such process order the sale to
be made instantaneously, or at a shorter notice than fifteen
days. The section in question merely provides for a simul-
taneous issue of the two processe,9 in certain cases at the dis-
cretion of the Court, and not for a simultaneous attachment
and sale. It gives no discretion to the Court as to the time

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 .APPELLATE CIVIL JURISDICTION, 157

within which the property taken in execution may ho ordered 1868.

BADASHIV
to be sold after attachment, that point being provided for by Mo11EsHTAR

Sec. 249, which directs that in the case of moveable pro- HANS~·· SHRA·

perty 'the sale sltall not tal.c place until after the expiration VAN.

of at least fifteen days,' &c."

PER CuRIAM (CoucH, C. J., NEWTON and GrnBs, JJ.) :-
Articles of such a perishable nature that they cannot be kept
for fifteen days, and sold according to the Code of Civil Proce-
dure ought not to be taken in execution. The Court concur
in the remarks of the Judge upon Sec. 250 of the Code.
--OOO--

8pedal Appeal No. 384 ef 1868. Oct. 8.

NA'RA1YANbin BA'BA1JI et al . ......... ...... Appellants.

GA~GA'niM bin KmsH~A 'JI .................. Respondent.

Jfortgage-Iiiterest-Rule of Hindu Law.

The rule of Hindu Law, which declares that interes~ exceeding in amount
the principal sum cannot he recovered at any one time, i1 not applicable
to mortgage transactions.
THIS was a Special Appeal from the decision of A. C.
Watt, Assistant J udgo of the District of Sa tar ii, in Ap-
peal No. 444 of 1867, confirming the decree of Raghvendra
Ramaji, Munsifof Wai. ·
The plaintiff sued to redeem a house on payment of the
mortgage money. 'l'he defendants cont.ended that, by the
conditions of the mortgage bond, the house had become their
absolute property.
The Muns if found that the principal sum due on the
mortgage was fifty rupees, but as the defendants had, on
the faith of decisions previous to Ramji v. Okinto, rnade
additions, he considered eighty rupees was also due to them
on that account. With regard to interest, the Munsif l'e-
stricted it to the amount of principal. His decree accord-
ingly was for one hundred and eighty rupees.
The Assistant Judge, on appeal, concurred in the Mun-
sif's view, and confirmed his decree. ·
The Special Appeal was argued before WARDEN and GIBBS,
JJ.

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 158 BOMBAY HIGH COURT REPORTS.

1868. Shanta,·am Narayati for the special appelhu1t.

NA'R.\.'YAN
BA'B.l'JI Dhirajlal Mathm·adas for the special respondent.
v.
0ANGA 1RA'M PER CuRIA1rI :-The Court considers that the lower courts
KRISHNA'JI
et al. were in error in applying the Hindu Law of "Damdupat"
to mortgages, this Court having held on several occasions
that it did not apply to mortgages. The decree of the
Acting Assistant Judge is, therefore, reversed, and the case
remanded for an account to be taken of the principal sum
due under the mortgage bond No. 12, and also of interest
according to the~ terms of the said mortgage bond, to the
date of the filing of the suit, on the sum agreed on; and
further of interest, at the same rate, on the whole of the
principal, from the date of filing the suit to that of taking
the account; and that an acco~nt be taken of the rents and
profits fron:i the date of possession being given of the mort-
gage proper~y to that of taking the account.
If a balance be found due by the plaintiff to the defendant,
the lower appellate court will pass a decree directing the
plaintiff to pay the same within six months from the date of
decree, with interest at the rate of nine per cent. per annum,
to be for ever foreclosed ; if no balance be found due by the
plaintiff, the Court is to direct that the property be forthwith
returned to him.
Decree reversed, and suit i·cmanded.
~

Oct. s. Refei-rcd Case.

BAJI DEV .. , ...•........................... , ... , Pla-t1it,(O:
SAnA'smv BHA ISHANKAR .................. ••. Defendant.
1

Jlamlatdar-Power to break open doors-Act V. of 1864 (Bombay).

A Court authorised under Act V. of 1864 (Bombay) to give immediate
possession of lands an<l. premises has tl1e power to direct the breaking
open of a door when necessary to give effect to its decree.

I N trict,
this case the Mamlatdiir of Ahmod, in the Surat Dis-
having ordered that immediate possession of cer-
tain property should be giYen to the applicant, under Bom-
bay Act V. of 1864, carried out the decision by deputing a
person forcibly to break open the door of the house in dis•

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 APPELLATE CIVIL JURISDICTION, 159

pute. The Magistrate of the District, T. C. Hope, having 1868,

BA'! DEV
doubted the legality of the Mamlatdar's procedure, referrecl i,.
the case fol' the consideration of the High Court. B S~»A'smv
HA ISH.\NKAB,
PER CuRWI (NEWTON and TuCKER, JJ.) :-The Court is
of opinion that a Court authorised, under Bombay Act V. of
1864, to give immediate possession of lands and premises,
has the power to direct the bl'eaking open of a door of a.
house, when it may be necessary fo1· the purpose of giving
effect to its order.

Special Appeal No. 622 of 1867,

BA'LA1JI NA'RJ1 ... ..•..••.....••..........••• •.. Appellan,t.

BA'nu DEVLI • ••.•....•.....•••.......•••..... . Resportdent.

Mortgage-Redemption Suit-Failure to prot1e Sale-Proof-Presumption.

In a suit for redemption, in the absence of any proof of a mortgage by
the plaintiff, the existence of such a transaction between the parties cannot
be assumed, in consequence of the failure of the defendant to establish an
alleged sale.
Very slight primo facie proof on the part of the plaintiff would suffice
to shift the entire burden of proof on the defendant, but in its absence a
plaintiff seeking to redeem cannot be relieved of the burden.

THIS was a Special Appeal from the decision of C. B.

Izon, Joint Judge of the Konkal). at Ra.tnngir1, in Ap-
peal No. 615 of 1866, reversing the decree of the Munsif of
Vengurla.
The Special Appeal was heard before TucKER and WARDEN,
JJ.
Gat1.esh Hari Paf vm·dhan and Visltvat1ath Goi•ind Cholkm·
for the special appellant.
Dhirajl.al Mathw·adas for the special respondent.
The facts sufficiently appear from the following judgment
of the Court, delivered by
TucKER, J. :-This was a suit by the plaintiff fur the re-
demption of a particular field, which it was aJleged had been
mortgaged by the father of the plaintiff to the defendant for
Rs, 5 in the year 1848,

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 160 DOllBAY HIGH COURT REPORTS,

1868. The defendant pleaded that the field had been absolutely
B.!tLA'Ji
~' A.BJ!
sold to him by the plaintiff's father in 1847-48 for Rs.
11. 15-8-0, but that the deed of sale had been stolen.
BA'BU DEVI,l,

The Munsif held that, as there was no proof of the sale,

the mortgage must be presumed, although there was no
proof of it; and he decreed that the plaintiff should redeem
on payment of Rs. 15-8.0.
The Joint Judge considered that there was no proof of
either sale or mortgage, but that it was shown that the
defendant had been in possession of the field between twenty
11nd thirty years. He held, however, that the mortgage
could not be presumed in the absence of any proof of it ;
and he, therefore, reversed the Munsif's de~ree, and award-
ed in favour of the defendant, . throwing all costs on the
plaintiff.
In special· appeal it has been urged that, under the cir-
cumstances, the Joint Judge should have presumed the mol·t-
gage ; and it was pointed out to us that in a similar caae
WARDEN and GrnBs, JJ., had ruled to· this effect (vide S, A,
241 of 1867).
We may remark, with respect to the precedent which has
been cited, that the Judges who made that decision have
reviewed the judgment which they first delivered in the
cause, and have come to the same conclusion which we have
arrived at in the present case, namely, that in a suit for
' redemption, in the absence of any proof of a mortgage
by a plaintiff, the existence of such a transaction between
the parties cannot be assumed in consequence of the failure
of a defendant to establish an alleged sale, It being the
ordinary custom in this part of India that deeds creating
mortgages should remain in the custody of the mortgagee
alone, no counterpart being taken by the mortgagor, very
slight p1'ima jacie proof that a mortgage had been originally
made would serve to shift the entire burden of proof on the
defendant in cases of this character; but this 1wima facie
proof must be forthcoming, and in its absence a plaintiff
seeking redemption cannot be relieved of tho burden, which

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 .,PPELLATF. CTYlL JlTRJSDICTION. 161

is imposed on all plaintiff.o.:, of est.11.hlishing the fact or facts 1868.

• • • . • ]h'LA1JI N \'R-
out of which then· clium to relief ar1sos. 'l'he lower courts JI
having found there was no proof of a mortgage, in this BA, 0 ;·DEvt1.
instance, the Joint Judge's clecreo must be affirmed, with
costs on the special appellant.
DeCi'ee affirmed._
~~

Rer,ula.,· .IJijicrd No. 15 nf 1867. Oct. 12.

BrrUJAXC:RA'r bin D.\V.\T..\TLL\'r GHom',\DE,

and AKNA' SA'Hirn bin D.\ \'AL.\TR..\.\-
GaoRPADE .............................. ... Appella11ta.
.
MA'LOJITIA'V bin DAYALA'rnA',- G11011PADB ... He8pondent .

Hi11d1i Law-Fumity Custom-Ja.hagir-Partihility of Jaha.gir-Primo-

geiiiture-Rights of the Children n.f diffP1'e11t Wivrs of fl,e same Caste to
inherit Ancestral PropM'fy.
W'here there is a plurality of wives equal in caste, the sons of each wife
( not being the first 11ife) take precedence according to the dates of their
re1pecti\·e births, and without referl'nrr to the dates of the marriages of
their respecti\'c mothers.
Succession in consequence of primogeniture nmongst Ilindud iu hulia
seems to be the rule only in the case of lar~e zaminda1·is, and estates
whicl1 partake of the nature of principnlities.
In estates to which the ordinary Hindu Law of iuheritance administered
in Western India applies, it is not competent to a father to dispose of
their anrl'stral property to one son to thr prejmlire of the others.

THIS appeal from the deci:;ion of Arthur Bosanquet,

wa:-; au
Acting ,Tudge of the District of Kaliidgi, in Original
Suit No. 2 of 1866.

The plaint,iff, Bhujaugrav, sued his half-brother, l\Ialojirav,

for possession of the jahagi1· of GajendragacJ and certain
moveable property left by their father, Davalatrav Ghor-
pa<Je, who died on the 24th of July 18G4, on the ground that
he, as the eldest-born son of his father, was entitled by
Hindu Law, and the custom both of the country :md tho
family, to succeed to the "gadi."
'l'he defendant, l\Ialojirav, answered that, his mother having
been married earlier than the mother of the plaintiff, he should
V,-•2l AC

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 162 DOMBAY HIGH COURT REPORTS,

1868. be considered as the eldest son, and was actually so con-

i.H'c;~::::~: sidercd by their father, Davalatrav, and appointed by him
et al. as his successor. He further stated that the plaintiff, by
llA't~·;IRA'v accepting an allowance assigned to him by Davalatrav, ac-
D. GHORPADE. qmesce
• dm• the appom• t men t. ma dc b y h'1m, an d was, there.
fore, estopped from bringing this suit,.
The plaintiff Bhujangrav's brother, AQQ{t Saheb, was sub-
sequently joined as a plaintiff by order of the Court, under
Sec. 73 of the Code of Civil Procedure.
The Acting Judge held that the whole property in dispute
except the personal property was impartible, and that, ac-
cording to the Hindu law, the plaintiff was entitled to it,
but that although the defendant had failed to prove the
family custom set up by him, yet that Davalatrav had ap-
pointed him as his successor, and that the plaintiff acqui-
esced in the arrangement by accepting an annual allowance.
The Acting Judge, therefore, rejected the plaintiff's claim,
except as to two-thirds of the personal property.
The appeal was argued before TUCKER and WARDEN, JJ.
Marriott and Green (with them Dhirajlal Jfothm·adas), for
the appellants :-The plaintiff, Bhujangrav, is admittedly
the eldest-born of the parties. The Hind(1 Law may re-
cognise a distinction between the sons of the first-married
wife and those of subsequently married ones ; but the latter
as between themselves st.and on an equal footing : and,
therefore, although the marriage of Malojirav's mother took
place prior to that of Bhujangrav's mother, yet Bhujangrav,
being born first, is the eldest son: Sivanananja P. Seth11.
rayar v. Muttti R. Sethurliym· and others ( a.).

This judgment is founded on Manu, the highest authority

in Hindu Law, who, after treating of the privileged position
of the fh·st-born son, lays down that "as between sons born
of wives equal in their class, and without any other distinc-
tion, there can be no seniority in right of the mother, but
the seniority ordained by law is according to the birth (b)."

(a) 3 Mad. H. C. Rep, 75. (b) Manu, Ch. IX., Sec. l06.

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 APPELLATE CIVIL JURISDICTION• 163

Next comes the question, what is Bhujangruv entitled to 1868.

. succeed to, as the eldest son of his father ? The history of ~BG~~~::~~
the course of inheritance, from the time of Malojiruv, tho et al.
. ~

founder of the family, downward!!, ahows that the bulk of .M.\'Loniu'v

D. GHORPADIC.
t hc property descended to the eldest son, the younger ones
receiving 11c111~111k.~ or allowances merely. [TUCKER, J. : -
,vill the family custom, which you are trying to prove, over.
ride Hindu Law?] Primogeniture prevails in Bengal and
Madras (,·). [TUCKER, J. :-The large r.rnni1ula1'L/I iu those
presidencies are estates of n. peculiar nature. It is ilifficult
to say whether the customs regarding Z<tmfodaris are ap-
plicable to minor chieftainships in Western India. J Thero
does not seem to be nny rtulicul difference between the
wmfodal'is of Bengal and the chioftainships of Bombay: sec
Steele ou the Law and Cm;tom of Hindu Uastos, p. 228,
para. 71. A will of the father is set up, which, I submit,
is not proved to be genuine; Lut assuming it to be so, a
Hindu father cannot disiuherit his son of ancestral property
by grant yr will (Mituk., Ch. I., Sec. 1., cl. 27 ; Macnaghten's
Hiudti Law, p. 2; 3 Hom. H. C. Rep., A.C.J. 6; 4 Born.
H. C. Rep., O.C.J. 150; 8 Moo. Ind. App. 66; 9 Moo. Ind.
App. 609; 8 Cale. W. Rep., Civ. R. 455.
Lastly, I colllc to the quostiou whether the plaintiff re•
ceived any allowance, and, if i;o, whether the receipt is bind-
ing upon him. The Slllall allowauce assigned to the plain-
tiff was not for his support, Lut for his personal expenses.
Supposing, however, that was not the case, yet auy receipt
of an allowance by him during his father' lifetime would
not be binding upon him, unless it was shown that ho had
received it in lieu of his share: R-un9ama v. Atchw1w (d).
White ( with him Shlrntarfon Na,·ayaii), for the respond-
ent :-The first question is whether the Judge was right
in holding that the jaliagir was impartible. This depends,
firstly, upon a question of fact, whether, having regard to
the evidence, the jahagir has been shown to be impartible,
and forms an exception to the general rule of Hindu Law ;
(c) 1 Mor. Dig. N. S. l87, 188; 5 Moo. Ind. App. 169.
(d) 4 Moo. Ind. App. 1.

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 164 BOMBAY HIGH COURT RI<.:POHTS.

1868. • and, secondly, upon a question of law, to what extent the

BHUJANGRA'V
D. GHORPADE
Court would eniorce
I!
t he I!1am1·1y custom aga1ns
. t the ru·1e o f
et al.
i,. Hindu Law as to equal shares. On this question much evi-
MA'LoJ1a.t'v deuce has not been taken. It will be admitted that im-
D. Gll()RPADE, • •
partib1lity of immoveable property would be an except1011 to
the general rule of Hindu Law. '!'here have been decisions
in Bengal and Madras with regard to certain estates in
those presidencies; but I have not been able to discover any
precedent to show that a jaluigir was held to be impartible
either there or in the presidency of Bombay.

lt appears that the law of primogeniture, where it does

prevail in India, is founded on Manu, Ch. IX., Sec. 323. This
passage has reference to estates of the nature cf regalities
or principalities. The cases quoted from Morley's Digest are
all cases of raj ; those in Moore are cases of rnmfodarz'.s,
which are ca:,;es of peculiarity of tenure. They do not pro-
ceed upon the usage of the country. [TUCKER, J. :-Is not
a }farath{1 sa;nstlufo somewhat of the nature of a raj ?] I
submit not; the reference to Steele is not to minor sa:ritsthans
or chieftainships, like that in dispute in the present suit, but
to the reigning families of Sat{ira, imch as the Bhonslas,
the Chowhans, and the Nimbalkars. 'l'his is a mere alleged
family custom, not a custom of the country, and such the
courts will not recognise.

The case of the defendant re:;its upon the settlement made

by Davalatrav. A. father can nominate a person out of the
order of succession as his successor. Muhammadan sover-
eigns frequently exercised that right. The nomination was
notified to the Collector and the officers of the jaliagir vil-
lages. It is not necessary that this nomination should be
i:µade by a will. Au arrangement by word of mouth would
be quite sufficient : 8udunmul Moluipattur v. Soorjo Monce
De!Jcc (t'). The power of the father to appoint the defendant
as his successor depends upon the position the latter, as the
son of the elder wife, occupied in the family. According to
Hindu Law, a man takes a wife in fulfilment of a religious
(e) 8 Cale. W. R., Civ. R. 455,

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 APPELLATE CIVIL JURISDICTION, 165

duty. [TucKEB, J. :-ls uot that duty accomplished as soon 1868..

. d a .first wt1e
as he has ma1T1e ·~ "]
r
No; uot· b·11 a son 1s
. l,oru BHUUNORA'T
D. GaollrADE
to him capable of saving him from pat: 2 Colebrooke's ett1·
Digest, 567, 568. ~IA'LoJrn.1.'v
D. GHORPA.'DI!!,
In the absence of express ·authority in Hindu Law, and in
the absence of a valid usage or custom, Davalatrav, I sub.
mit, acted iu nccordauce with the law wheu he 9.ppointed
the son by the elder wife as bis successor: Bellasis' Selected
Rep., Pt. I., p. 13.
C11t. adc. vult.

The judgmeut of the Uourt was deliv~red by

TUCKER, J. :-This action was instituted by Bhujaugr11v,
one of the three sons of Davalatra~ bin Rhujangrav Ghor-
pa1e, against his half-brother, Mulojirav, to recover from him
possession of the jaluigil' of Gajendraga~, comprising twenty-
six villages, 011 the ground that he, Bhujaugrav, as the
eldest-born son, had a right to succeed to his father'8 lauded
estate in preference to Malojiray, He also claimed a half-
share of certain moveable property valued at Rs. 81,985,
which, he alleged, had belonged to his father, and had been
appropriated by the defendant.
Malojirav answered, that as the sou of an elder wife, he
was entitled to succeed to his father, and that his father had
during his lifetime selected him for his successor, and had
assigned to the plaintiff~ Bhujangrav, a particular allowance,
which Bhujangrav had accepted, and _he had now no ful'ther
claim,
Afterwards, by order of the Court, the plaintiff's utet-ine
brother, A1)1Ju Saheb, a minor, was made a co-plaintiff in
the suit, the plaintiff representing him as his brother and
guardian.
The District Judge of Kaladgi found that according to
the custom of the family the landed estate was impartible,
and that, according to the Hindu law, the plaintiff, Bhu.
jangrav, was entitled to succeed to it. That no usage had
been established which gave to the later-born son of an
elder ,vife p1•ecedence over the earlier-born son of a younger

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 166 BOMB.A.Y HIGH COURT REPORTS,

1868. wife ; but that it was proved that the father of the plain-
BauuN01tA'v
D. GuonrADE
• • d h
tiffs and the defendant had nommate t e defendant to be
ct/
1• his successor, and that it was competent to him to make
M.1.'LoJrn.1.'v this selection, and any disposition of the property which he
1). GHOltP.\'DE. } d
p ease .

That the moveable prope1·ty was divisible, and it was not

proved to have exceeded Rs. 4,000 in value. The District
Judge, therefore, decreed for the defendant with respect to
the lands, but awarded to each plaintiff Rs. 1,333-5-4 as
their respective thfrd.shares of the personalty, with costs in
proportion.

Each party has acquiesced in the decree of the District

Judge so far as it affects the moveable property, but both
are dissatisfied with his decision regarding the jahagir.
The plaintiff, Bhujangrav, contends that if the Hindu law or
any recognised usage gave him a right to succeed, his fa.
ther could not deprive him of that right, either by a settle-
ment inter vii•os to which he {plaintiff) was no party, or by
a will. That with regard to ancestral property, a Hindu
father could make no disposition of that property opposed
to the general law; and that in the present case the al-
leged selection and appointment of the defendant by his
father was not established, as the documents produced were
of a suspicious character, and, considering the custody they
came from, and the evidence by which they were sup-
ported, were altoge thl:)r untrustworthy. That there was no
proof whatsoever that he had acquiesced in any proceedings
of his father in favour of the defendant, or any reason why
the general rule of succession in families in which primogeni.
ture regulated the descent of property should not be oL-
served in the present instance.
'fhe defendant, on the other hand, urges that the evidence
adduced established that there was not only a custom in the
family, but also a usage in the district, that the son of an
elder wife takes precedence over an earlier-born son of a
younger wife. 'l'hat the truth of the defendant's nomination
by his father was scarcely disputed in the lower court, and
'

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 APPELLATE CIVIL JURISDICTION. 167

was amply proved. That in a car,:e of this kind it was com- _I~S. __
~ l
pe t ent to t.l1e iat ier t o d es1gna
. t e lus
. snccessor, an d , nn1ess BHUJ.\~GR.\'\'
D. Gtto&PAD!i:
good grounds were r,:hown against it, the Court would uphold et 1~1.
the selection. That the Judge was wrong in declaring that lh'LOJ1u'v
~ d ant 1iad a dnutte
t he cl eien . d th a t the p Iamtt
. "ft', BhUJangrav,
. , D. GHORPADF..
was born before the defendant, and this fact had not been
established.
The appeal ha::1 been ably argued by Messrs. Green,
Marriott, and Dhirajlal for the appellants, and by Messrs.
White and Shnntur1hn for the respondent.

Before we enter upon the questions of law which are

involved in this litigation, it is necessary that we should
clearly ascertain what facts are admitt.ed, and what facts are
disputed.
It is admitted on both sides that the deoeased Da.valatrav
was a Hind11 jahagirda1' in the Southern Mariit~a Country,
who died on the 24th of July 1864. 'fhat he had three
wives:-
1. Kamaljabai, who died without issue, date unknown,
2. Takvabai, mother of Malojirav, defendant. This lady
is now alive.
3. JayavantHbni, mother of the plaintiff.c,, who is also
living.
That the landed property claimed was ancestral, and de-
scended to Davalatrav by way of' inheritance from his pro-
genitors. It is also admitted that of Davalatr(w's sons the
plaintiff, Bhujangrav, is the elder-born. The defendant in
appeal has denied that he had admitted that Bhujangray
was his senior in age, but in his deposition, No. 7, he de-
scribed himself as twenty-one years of age, and declared
that the plaintiff, Bhujangrav, was twenty-two or twenty.
three. Upo:tt this state of facts the plaintiff would, under
the ordinary Hind(1 law, be entitled to the privileges which,
under any law or usage, belong to an eldest son, On thiR
point we concur with the District Judge, and in the decision
of the Madras High Court in the case of Sii,anananja Setlturn-

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 168 BOMBAY HIGH COURT REPORTS,

1868. yct1' v. Jbttt1t R. Sethumyar (supl'a), which he has followed,

BHUJANGRA.'v
o. GaoaPADE name1y, t 11at among H'm d'us where t here 1s . a p1ural'1ty of
et al.
v.
wives, equal in caste, the sons of each wife, not being the
llA'LoJ1u'v first wife, take precedence according to the dates of their birth,
D, GHORPADE, • •
and without reference to the dates of mal'r1age of their re-
spective mothers ; and we think that the defendant has failed
to show that there was any usage of the district which
is opposed to this rule, or that it has ever been a custom
in this family that the younger son of a second wife should
take precedence over the elder son of a third wife. Iu
the particular instance in which he alleges such a ,mper.
session occurred, it may have been that the son who
succeeded, if he were junior iu age, which is not satisfao·
torily proved, was the offspring of a first wife, If, then, the
descent of immoveable property in the family was excep.
tional, aud followed a law of primogeniture, it is the plain.
tiff, Bhujangrav, who is the heir to his father, and not the
defendant,

'l'his custom of succession by reason of primogeniture has

hithe1•to, so far as we are aware, been recognised in other
parts of India as applicable only to large zamindaris, and
other estates which are considered to partake of the nature
of principalities. Mr. Steele, in his work on the Cust-0m
of the Hindus, states at p. 228 that such a custom is
to be found among several of the chief M11rarha families,
and also among Deshmukhs and Deshpiin<}es. ,vith regard
to the great Miirath11 houses which acquired sway over
kingdoms and principalities Mr. Steele'!" statement is with.
out doubt correct ; but amongst the lesser chieftains and
district officers no uniform custom of this character has
prevailed, and generally when such a custom has been set up
in our courts it has not been established. The question,
then, which we have to det~rmiue, is whether such a custom
existed in tl1is particular family. At first sight it would
seem that there could be but one answer to this quest.ion, as
both the plaintiff, Bhnjangriiv, and the defendant, Malojirav,
assert that there is such a custom, and each desires to l1ave
the benefit of it. .But there are other interests to be conRi-

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!fr" -
I
..
:f C'-:,ii.

APPELLATE CIVIL JURISDICTION.

dered, besides those of the two elder brothers, and as the JIIB't.
.
mmor, A Qr;tu~ s~h b has beenJome
a e ,
. . dm. the swt,
. 1t
. 1s
. necessary D.
}$aUJA.NGllA ....
GaoaPAn•
for us to see whether the alleged custom has been proved et ai.
independently of the assertions of the two sons who each lh'L;;.u.,,..
claim to be head of the family. It must be remembered that, D. Gaolll'4 H·
owing to the conclusion at which we have arrived with re-
spect to the relative rights of the two elder brothers, it will
now be more beneficial to the plaintiff, Bhujangrav, than to
the defendant, that this custom should be established, and
consequently, in the turn which matters have taken, it will
be necessary to examine more particularly the statements of
his witnesses. Looking at all the evidence which has been
brought forward on either side, and more especially at the
depositions of witnesses 45 and 46, who are both blood re-
lations of the parties to the suit, and whom the plaintiff,
Bhujangrav, declares to be the only reliable witnesses, we
think thu.t it is shown that the lands of the family have been
always treated as partibll, though in somA instances, when
division has been made, a larger share has been assigned to
the head of the family, to defray the expenses which would
devolve upon him in that ea.pa.city. It would seem from the
statements of those witnesses that the founder of the family
was one Malojirav Ghorpage, who died about a hundred and
fifty years ago. He, according to witness No. 45, possessed
the jahagfrs of Kapsi and Datvad, besides the jahagirs of
Gajendragag, Songur, Galga.le, Nirgand, and Sangvad, and
on his death equal partition was made between his three
sons, ea.eh receiving lands which yielded a yearly income
of about a lakh of rupees, or £10,000. The eldest received
Ka.psi, and the youngest Datvad, and the second (Ba.hirji-
rav), from whom the plaintiffs and the defendant are de-
scended, Gajendragag and the other smaller jahagirs. The
grandsons of this Bahirjirav, again, divided the landed pro-
perty of the family; and afterwards, a generation later, there
was another partition amongst the sons of one of these grand-
sons, one of whom was the grandfather of the plaintiffs and
the defendant, and another the witness Anandrav, No. 45.
This last partition was unequal, the elder son receiving lands
yielding Rs. 10,000 yearly, and each of the younger lands
V.-22 AC

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 170 :BOMBAY HIGH COURT REPORTS.

1868. which returned an annual income of Rs. 4,000 respectively.

BIIUlAl'fOIU.V
D. GaoaP.a.»i:According to th e d epos1't'10n of witness
. No. 45, property
et11~i. yielding an additional income pf six thousand rupees was
lfA'LoJru'v allowed to the eldest member of the family at this last par-
D. G110:auoi:. t' . '-' t he expense ofk eepmg
· 1t1on 1or . up arme d retamers
. '-' ~he
1or
fort of Gajendragag, and for the improvement of that vil-
lage, which was the chief i;eat of this branch of the Ghorpa<Je
family, and also to enable him to distribute on ceremonial
occasions the customary presents to the junior members of
the family. We are unable, therefore, to concur in the
view of the District Judge, that it is proved that the lands
of this family were indivisible. On the contrary, we con-
sider that the opposite allegation is established, and that it
has been proved that such lands are divisible, the eldest son
being entitled, as head of the family, to a somewhat larger
share than his brothers.

There being no exceptional law of descent in this family,

the remaining objections of the defendant are easily dis-
posed of. No case has been cited to us which shows that
in estates, where a law of primogeniture prevails, an incum-
bent can disinherit his eldest son, and appoint a younger
Bon to be his successor; and certainly in estates to which
the ordinary law of inheritance applies, as it does in the
present instance, it is not competent to a father to dispose
of his ancestral property to one son to the prejudice of the
others. It is, therefore, of no importance whether the
father in this instance nominated the defendant to be his
successor, as alleged; but we may state that we do not
concur with the District Judge in considering that there is
eatis.factory evidence that any such nomination was made.
The defendant has produced two writings, one of which
(exhibit No. 15) purports to be the record of an arrange-
ment made for the management of the estate in A.D. 1849.
This document is not signed, and is stated by one witness,
No. 68, a clerk of the defendant, to have been prepared by
order of Davalatrav, the father of the plaintiffs and the
defendant, who affixed his seal to it and wrote the words
" Shri Submmanya!' on the top in token of execution. The

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 APPELLAT.11: CIVIL JURISDICTION. 171

second writing is a. letter which purports to have been 1Sfl8.

wr1·tten to th
. e d e1en
I.' d ant ten years }a.ter b y h.1s 1at
I.' h . BHUJANOB.A'T
er, m D. GHo1tu.»•
which he is informed that he is to succeed to the jaliagir. et al.
•..
The only evidence that the father ea.used this letter to be lllA'Lo.1,uv
. al so th e witness
wn'tt.en 1s . N o. 68 , and 1t
' 1s a
' onl y seale , an d D. Ga:ou.i.n..
not signed. Considering that the father's seals have been
in the custody of the defendant since the father's death, and
that the only witness who can speak to the execution of these
deeds is the defendant's clerk, they cannot be said to be free
from suspicion, the more especially as the arrangement made
in No. 15 is not shown to have been carried out. The other
persons who speak to the appointment of the defendant by
the father are witnesses Nos. 71, 72, and 73. No. 71 is the
Patil of Gajendraga<}., and he states that Davalatrav, two
days before his death, which took place on the 24th of July
1864, sent for him and said " I am ill now, and hat·e not
my wits about me; till I recover possession of them, perform
your work through Malojirav (the defendant);" and Nos. 72
and 73, who depose that fifteen days before Davala.trav's death
he said, in the presence of many persons, "I have given the
seals to Baba Saheb," i.e., the defendant, Malojirav. Nothing
further is said of the state of mind of Davalatrav at the time
he made these declarations, nor is it mentioned by whom he
was surrounded, and certainly if it had been competent to
him to make a. devise of his property to one of his sons, we
should not, on such evidence alone, have held that a devise
had been made. We hold also that it is not proved that the
plaintiff ever acquiesced in the settlement alleged to have
been made by the writing No. 15. We think, therefore, that
the defendant has failed to establish any of the pleas he has
set up, and that the plaintiffs have made out a claim to par-
tition.
We, therefore, amend the decree of the District Judge,
and declare-
lst-That the plaintiff, Bhujangrav, is the present head
of this family.
2rully-That the plaintiffs and the defendant are each
entitled to equal one-third shares in the landed property

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 172 BOMBAY HIGH COURT REPORTS,

1868; , mentioned in the plaint, after due provision has been made
.BHUJANGRA V • •
D. GaoRP.u>E for the ladies and other members of the family who are en-
et at. titled to maintenance out of this estate, and after an assign-
~-
M.1.'Lo11u.'v ment has been made to the plaintiff, Bhujangrav, as head of
D. GBOIIJ'.1.Dll:. '
the family, for the expenses and duties which may devolve
upon him in virtue of his position. This assignment should
not exceed a quarter-share, and will depend on the services
and consequent expenses which a.re, at the present time, re-
quired from the head of the family, and must be determin6d
by the court of first instance in execution of the decrei:,.
Srdly-That the plaintiffs are entitled to recover from
the defendant mesne profits without interest on account of
their individual shares, exclusive of the elder son's portion,
from the 24th of July 1864, the date of their father's death,
till the date when they shall receive possession of their re-
spective shares, after deducting from the sums which may
be found due on this account the , s~ms actually drawn by
them from the family estate since their father's decease. The
amount to be recovered as mesne profits, after making the
above deductions, is to be determined by the Court executing
the decree.
4thly-The defendant is to pay three- fourths of the plain-
tiffs' costs, and the plaintiffs one-fourth of the defendant's
costs.

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 APPELLATE CIVIL JURISDICTION. l 78

Si1ecial Appeal No. 150 of 1867. 1868.

Sept. 8.
VYASRA'v BA'LA 1JI ..................... ... Appellant.
SuBHA'JI NA'RA'YAN et al. .. ....... ...... Respondents.

Cause of Action heard and determined-Omiuion to sue for Portion oJ

Claim-Civ. Proc. Code, Sec,. 2 and 7,

A. B. instituted a suit against V. B. to recover possession of one-half

ofa field. S. N. and B. N., on their application, were made plaintift'a in
that suit, but no alteration in the amount either of stamp or claim was
made in the plaint.
The Principal Sadr Amin awarded to A. B. one-fourth of the field, and
to S. N. and B. N. conjointly be awarded one-fourth, but as to the re-
maining one-half he passed no decree, as it had not been claimed in the
plaint.
S. N. and B. N. thereupon filed a fresh suit to recover possession of
their remaining one-fourth of the field, and the Principal Sadr Amin pasaed
a decree in their favour. This decree was confirmed by the Joint Judge.
Held that the decrees of the lower courts were el'!'oneous, and that the
claim of the plaintiffs was barred by the provisions of Sec. 2 of the Civil
Procedure Code, but leave was granted to them to apply to the court below
for a review of the decree passed in the former auit.

THIS was a special appeal from the decree ofW. Sandwith,

Joint Judge of the District of Dharwar, in Appeal Suit
No. 369 of 1865, confirming the decree of the Principal ~adr
Am.in of Dharwar.
Anaji Balaji brought a suit (No. 588 of 1860), in the
Court of the Principal ~adr Amin of Dharwar, against Vyas-
rav Balaji, to recover possession of one-half of a field (No.
38). Subhaji NarayaJ?. and Raghvendra NarayaJ?. applied to
be made plaintiffs in that suit. The Principal ~adr Amin
granted their application, and by his decree awarded one-
fourth of the field to Anaji, and one-fourth of it to Subhaji
and Raghvendra conjointly. He did not make any award
in respect of the other half of the field, on the ground that
the original claim, as laid by Anaji, was only for one-half of
the field, and that he could not make any award in respect
of that which had not been claimed in the plaint.
Upon this decree being passed, Subhaji and Raghvendra
filed the present suit against Vyasrav Balaji, to recover
their remaining one-fourth share in the same field, alleging

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 174 BOMBAY HIGH COURT REPORTS,

1868. that they and Vyasrav were related, and that they had a.
t ~::,~;v
--==------,,--
right to one-half of the field, of which one-fourth had a1-
t•. ready been awarded to them by the Principal f?adr Amin
SUBBA'JI
NA'ILl.'YA.N in the former suit.
etai.
The defendant answered that there had been a division,
in the family about fifty or sixty years ago, and that the
plaintiffs were not entitled .to the field.
On a remand, the Principal f?adr Amfo awarded the
claim of the plaintiffs, for the reasons given in his decision
in the former suit (No. 588 of 1860).
The defendant, Vyasrav, appealed, on the ground that the
decision of the Principal ~adr Amin was contrary to law,
inasmuch as s decree regarding the field in dispute having
been once given in Suit No. 588 of1860, another suit for
the same field between the same parties was inadmissible.
The following is an extract from the finding of the Joint
Judge:-
"The technical objections raised under Sees. 2 and 7 of
the Civil Procedure Code should not, I think, be any bar to
the present claim, inasmuch as it does not appear that the
respondents relinquished, or omitted to sue for, the remain-
ing portion of the field. They appear to have been under
the impression that they could obtain their whole share in
the suit originally instituted by Anaji ; and they were not
told to increase the value of that suit to the total amount
of their interest in the field, or to file a , separate action.
Since they were made izarties to the other suit, proper care
should have been taken by the Principal f?adr Amin, and
as this does not appear to have been the case, the respond-
ents should not suffer for any omission of a technical nature,
which there is no reason to suppose they would have refused
to remedy had they been told to do so."
With reference to the merits of the case, the Joint Judge
found that the division -asserted by the defendant had not
been proved. He, therefore, confirmed the decree of the
Principal ~adr .A.m,n.

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 APP:&LLATII CIVIL JUBISDICTION. 175
Thereupon the defendant, Vyasrav, preferred a special ap- ...,,,,._18_68_._ _
peal to the High Court, on the ground that the decision of 1r:~:~i
the Joint Judge WSB contrary to law, in that he had, in de. 11•
8UBHJ.'ll
termining the suit, contravened the provisions of Sees. 2 and N.t.'aA'uN
7 of the Code of Civil Procedure. ,tat
The case was heard before NEWTON and WARDEN, JJ.
Dhirajlal Mathuradas for the appellant.
Pan4urang Balibhadra for the respondents.
NEWTON, J . :-We are reluctantly compelled to differ from
the Court below with respect to this case. It appears that
one Anaji instituted a previous suit against the special ap-
pellant, Vyasrav, to recover the half of a field, and the re-
spondents in this special appeal applied to be made plaintiff's,
alleging their title to half the field, but not increasing the
value of the stamp on which the plaint was drawn up. The
Principal f?adr Amin gave judgment in favour of Anaji for
one-fourth of the field, and awarded one-fourth to the pre-
sent respondents, holding himself barred from decreeing any
larger share to them in that suit. They then filed this action,
and the same Principal f?adr Amin awarded to them the re-
maining one-fourth, which they origina1ly claimed. When the
special appeal was first brought on, we allowed the respon-
dents a delay of several months, in order that they might
ascertain whether they could obtain a remedy by applying
for a review of the Principal ~adr Amin's judgment in
the former case, but, as they have neglected to take any
steps for this purpose up to the present time, we must no
longer defer the decision of the case.
Sec. 7 of Act VIII. of 1859 does not need consideration
in the case. The respondents did not in the previous action
relinquish or omit to sue for any portion of their claim,
or in any way fail to bring the whole of the claim before
the Court, except by their neglect to increase the stamp on
which the suit was brought np to the amount which would
have been necessary to cover the increased share of the field
respecting which they desired the Court to adjudicate. But
Sec. 2 of the Code seems to us to be decidedly against the

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 176 :BOXBAY HIGH COURT REPORTS.

--==-1_868---,.,---. present action, by providing that the Civil Courts shall not
VYA.SRA'V
BA'LA'Ji take cognisance of any suit, brought on a cause of action,
v. which shall have been heard and determined by a court of
8UBHA 1.ll
NA'u'uN competent jurisdiction in a former suit between the same
et al.
parties. That the cause of action on which the present suit
was brought was heard and determined in the former action
is unquestionable, and it is sufficiently evident from the cir- ·
cumstance that the Principal f?adr Amfo considered his decree
in the previous suit to furnish sufficient ground for the de-
cree now appealed against, and the language of the section re-
ferred to is too absolute to permit of any exception being
made on the grounds which have been pleaded, that the
Principal ~adr Amin admitted in the first suit the right of
the respondents to the full share claimed, and that they then
failed to obtain a decree for it only through a mistake as
to the ste.mp, which they would have corrected had it been
pointed out to them by the Court.
The decrees of the courts below are reversed, and the re-
spondents must bear all costs throughout.
WARDEN, J,, concurred.

1867.
-~-
Special Appeal No. 505 of 1867.
Dao. 2.

AHILOJI valad KHANDOJI ..................... Appellant.

DoNGAR HARICHAND GuJAR ••••••••••••••••• •Respondent.

Mortgage Deed-Secondary Evidence-Acknowledgment of Title-Act

XIV. of 1859, Sec. 1., cl. 15.
Where the defendant denied a mortgage to bis father set up by the
plaintiff, the latter was held at liberty to give secondary evidence of its
execution and contents.
Held that an acknowledgment of title, under cl. 15, Sec. 1. of Act
XIV. of 1859, need not be made to the mortgagor, or bis representatives.

THIS was a Special Appeal frcm the decision of A. C.

Watt, Acting Assistant Judge of Put;ia, in Appeal Suit
No. 360 of 1865, confirming the decree of the Munsif of
J6nnar.

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 APPELLATE CIVIL JURISDICTION, 177

The plaintiff sued to redeem certain mortgaged properties _-o--I_s_r.7_._

alleged to have been mortgaged by his grandfather to the x~!~:~r
defendant's father, the .Iast of which mortgages he stated was v.
DONG.la
made in A.. D. 1835. . H. GUIAR.
The defendant admitted two mortgages, dated respect-
ively A. D. 1785 and A. D. 1792, but denied the mortgage of
1835, and so pleaded that the suit was barred by the Law of
Limitation.
The Munsif held that the suit was barred.
In appeal, tho Acting Assistant Judge, being of a similar
opinion, confirmed the Munsif's decree .
Bhairar,anath Mangesh for the special appellant.
Dhirajlal Mathm·adas for the special respondent.
The following points were raised and argued in the spe-
cial appeal : -
(1) That the appellant's claim was not barred by the Law
of Limitation ;
(2) That the respondent's father having acknowledged in
writing the title of tho mortgagor and his right of redemp-
tion, in exhibit No. 42 (a deposition made by him before a
Mahalkari), the Assistant Judge should have counted the pe-
riod of limitation from the date of that acknowledgment, ac-
cording to cl. 15, Sec. I. of Act XIV. of 1859;
(3) That, the respondent having denied the mortgage of
1835, the Assistant Judge erred in holding that the appel-
lant was not competent to adduce secondary evidence of its
existence and contents ;
(4) That the respondent was estopped from denying or
disputing the mortgage of 1835 by his own admission con-
tained in the depesition No. 42; and
(5) That the Assistant Judge should have determined
whether No. 42 was genuine.
The authorities cited in the argument were Dm· Gopal
Singh v. Kasheeram Panday, 3 Cale. W. Rep., Civ. R. 3, and
Ba.tchelor v. Middl,eton, 6 Hare 75.
' V.-23 AC

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 BOMBAY HIGH COURT REPORTS,

1867. Coucu, C. J. :-The plaintiff sues to redeem several mort-

AHILOJI
KHANDOJI gages alleged to have been made by his grandfather to the
v. defendant's father. He stated that the latest was made in
DONGAR
H. GUJAR. the year 1835, and was of such a nature that it operated as
an acknowledgment of the previous mortgages.

The defendant admitted two mortgages only, which were

beyond the period of limitation, and in effect denied the mort-
gage of 1835.
The Assistant Judge says" what the appellant's (plain-
tiff's) pleader wants to show is, that exhibits Nos. 12 and
13 {the two mortgages admitted by the defendants) are ex-
tended, as it were, as regards their limitation, by No. 44,
which is dated A.D. 1835, and which, if true, would establish
the plaintiff's claim. Whether it is true or not need scarcely
occupy much time in considering. In the first place it is a
copy, and the absence of the original is not accounted for;
and even had the original been present, it would have been
required to have been proved by the writer of it and a wit-
ness. A copy, I hold, under such circumstances, that is,
when a claim to immoveable property is founded on the ori-
ginal, could never be receivable." But he seems to have
overlooked that an unsatisfied mortgage-deed would not or-
dinarily be in the possession of the mortgagor. It is the
defendant, the mortgagee, in whose custody it would be ex-
pected to be found, and, under the circumstances, he was in
error in holding that secondary evidence was not receivable.
It is further contended by the special appellant that the
mortgagee having, in his deposition before the Mahalkari,
exhibit No. 42, acknowledged the mortgagor's title and
his right of redemption, the period of limitation should be
counted from the date of this acknowledgment, under cl.
15, Sec. 1. of Act XIV. of 1859. Considering that the
word "given" is used in this clause, there might be a
question whether the acknowledgment required is not an ac-
knowledgment to the mortgagor. But without express words
of the Legislature to that effect I do not feel bound to put
that strict construction upon the clause. I think the words

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 APPELLATE CIVIL JURISDICTION. 179

"given in writing" are equivalent to " made in writing," ______,,-1s_tr1_._~

and that any acknowledgment whatever, if in writing and 1:~~~
1 l"~:
signed by the mortgagee, is sufficient. I am fortified in 11.
DON GAB
this opinion by the ruling of the Calcutta High Court, H. Gum,.
in S. A. No. 118 of 1865, reported in 3 Cale. W. Rep.
Civ. R. 3, 4, and the judgment of the Vice-Chancellor in
!Jatchelor v. Middleton (ubi sup,·a). The decree of the
Assistant Judge must, therefore, be reversed, and the case
remanded for re-trial with reference to the foregoing obser-
vations.
GrnBs, J ., concurred.
Decl'ee revel'sed and suit remanded.

Special Appeal No. 332 of 1868. 1868.

Sept, 17.
BA'I GANGA', daughter of Lala Kuvarji ... Appellant.
DuLLABH PARA' o •..•.•• ; .•••..•. ~ ••.••.•••••.. Respondent.

Ejectment-Admission of Tenancy-Presumpticn of Perpetual Lease-

Tenant from year to year-Reg. V. of 1827, Sec. 1.
Although a person is admitted to have been in possession as a tenant for
more than thirty years, yet the presumption of law is that he is only a
tenant from year to year, and such tenant may be ousted by the proprie-
tor, unless here is evidence or strong counter-presumption of his right to
hold on a perpetual lease.
Reg. V. of 1827, Sec. 1, does not apply to auch cases.

THIS was a Special Appeal from the decision of George

Ayerst, Acting Assistant Judge of the District of Surat,
in Appeal Suit No. 282 of 1867, confirming the decree of the
Munsif of Balsag.
The plaintiff brought a suit to eject the defendant from a
piece of land.
Th.e defendant stated that he had been in possession for
more than thirty years, and that there being no lease or agree-
ment to show the nature of the original tenancy, he could not
be ousted so long as he paid rent,
The Munsi£ gave a decree for the defendant, which was
confirmed on appeal.

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 180 BOMBAY HIGH COURT REPORTS,

1868. The Special .Appeal was heard before WARDEN and GIBBS,
1:h'I GANGA'
r. JJ.
Dur,LABH
PA1u.'o. Dhirajlal Mathuradas,for the special appellant:-The lower
courts would seem to have applied the law of prescription to
this case ; but it is inapplicable, as the tenancy is admitted.
In the absence of evidence on the part of the defendant
that he held the land on a perpetual lease, a decree should
have been given in favour of the plaintiff, the presumption
of law, under these circumstances, being that the tenancy
was from year to year.
Nanabhai Haridas, for the special respondent :-The ques-
tion to be determined is, whether a person who had been in
possession as a tenant for more than thirty years without
any lease or agreement in writing could be ousted. If, as
has been held, the law presumes perpetual tenancy in favour
of a tenant who is in poss~ssion for ninety years, there is no
reason why it should not do so in favour of one w\}£> has been
in possession for the lesser period of thirty years. Where is
the line to be drawn, and upon what principle ?
Dhirajlal Matliumdas in reply.
PER CoRIAM :-The Court considers that the Acting .As-
sistant Judge was in error in throwing out the claim, on
the ground that the defendant had occupied as tenant for
more than thirty years, for Reg. V. of 1827, Sec. 1, by which
he appears to have been guided, is not applicable to such
cases. The presumption of law is that a. tenant is a. tenant
from year to year, and, therefore, unless there is evidence or
strong counter-presumption of a perpetual leas£l, the pro-
prietor can oust. The decree of the .Acting .Assistant Judge
is accordingly reversed, and the case remanded for re-trial
with reference to the above exposition of the law.
Decree reversed and cau,e remanded.

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 APPELLATE CTYJL .JURTi'lDTCTTON. 181

Regula,· A.1>Jl11.d Nu. 17 uf 1867. 18)8,

Aug. 26.
RAKH.MA'nA'I .......................... . Appellant.
RA'DHA 1 BA'I ..........•......•... . ........ Uespondenf.

Adoption-Hindu Law-JVidow's Power lo adopt-Elder Widow's Power

to adopt without the Consent of a Younger l·Vidow.
In the Mara!ha Country a Ilindu widow mny, without the permissiou
of her husband, and without the rousent of his kiutlreJ, adopt a son to him
if the act is done by her in the 1,roper autl bo11u fide performance of a re.
ligious duty, and neither capriciously nor from n corrupt motive.
An elder Hindu widow bas the power to adopt n sou to her dercnse,1
husband without the consent of a younger widow.

THIS an appeal from the decision of C. F. H. Shaw,

Wll.S
Jutlge of the District of Dharwur, in Original Suit No.
28 of 1864.
The facts appear fully in the jmlgmeut of the Court.
The appeal was argued before Coucn, C. J., awl NEW'l'ON
and W..umEN, JJ., on the 4th, 11th, and 18th of December
1867, and on the 8th and Uith of January 1868.
lVl,ite (with him Vishmnath Naraya~i Mancllik and Ga~1-
1mtrav Bhaskal') for the appellant. .
Pigot and Green (with them Dltil'ajhtl Mathurarlas) for the
respondent.
The following authorities were cited in the course ·of the
arguments : -
J<,or the appellant-Rajn Ila-imnn Ohull Sing v. Koome1·
G1.-,1sheam Sing (a), Born. S. D. Select Cases, 24, 30; Vfrlm-
drn IIm·1·ylmdrn v. Bacc Ranee an,] otlicr1~ (b) ; Sree Br,jbhoo-
ku11jce !Jluharaj v. Sree Gokoolootsaojeo Mulw,raj (c); Ifoebnt
Rav !Jfonlmr v. Goviud Rav Bul11,•tml Rav Mankur (d); Col~
lector of Madura v. Srimatn Mtdln S'Jtlwpati (e); Papammal
v. Ramaswami Ohelt·i (f); Raman Ammal v. S11bhan Anna-
vi (g) ; Mahal'q,jah Ju.ggunalh Salww y, Mukhun Koo11wur
(h}; S. A. No. 86!) of 1865, decided September 28th, 1865;
(a) 2 Knnpp, P . C. C. 203, 221. (b) Morris, Selected Decisions, Pt. II., p. 1.
(c) l Borr. 181, 183, 201. (d) 2 Ilorr. 75.
(r) 2 Mail. H. C. Rep. 206. (/J Ibid. 36.5. (ft) Ibid. !J!J.
(h) 3 Cale, W. Rep., Ci,·. R. 21.
Y.-21 A C

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 182 BOMBAY IUGH COURT REPORTS.

~_IB_r.s~·-,- S. A. No. 165 of 1865, decided August 28th, 1865 ; R. A .

. RAKH:&IA'UA'I N
No. 15 of 1866, decided September 4th, 1867; S. A, o.
"·
R,'ouA'nA'i. 323 of 1867, decided September 11th, 1867; S. A. No. 507
of 186.J, decided October 13th, 1864; S. A. No. 153 decided
Sept~bor 1st, 1831 ; R1.1,ngamr.i v. Atchama (i); Mussu-
mitt GoCtob Koonwiw v. Oollect01· of Benares (j) ; Hura<lhun
Mookurjia .v. M1dhoranath Mookurjia (k); Dhi1,rm Das
Pandey v. Mfi.Biltfttuit Shama Soondri (l); Soondur Koomaree
Debreea v. Gudalmr ~Pershad Tewan·ee (m); Bamundas
Mukerjea v. Mussamut Tarinee In); Abajee Dinkur v. Gunga-
dlmr W. Gosavee (o); 1 Morley's bfe\ 15, 26, 27, 38, 39;
Vyavahara Mayukha, c. IV., Sec. v., pp . .J 6, 17, 18; Dattaka
M1mansa, Sec. v., pp. 40-42; Steel, Hindu ~a~tos, p. 32 et
passim.
~
:.~
For the rospondent-Mitak., Ch. I., Sec. XI., p. 9; ~rr.
93; 2 Strange, Hindu Law, 90, 91, 93, 96, 105,115; ...41'Und~
Ammal v. Kuppamal (p); S. A. No. 3G9 of1865, 1 Borr. 190. \
~

Our. adv. vult. \

Aug. 26. CoucH, C.J. :-The appellant and respondent in
this appeal are the widows of Murarav Desai of NipaJ}.i, the
adopted son of Shidojirav, late Chief of that place and Sar
Lashkar of the Peshva, who died childless on the 23rd
of June 1864. The appellant was the first married, but
both she and the respondent were wives by lagna, and are
of tho same caste as their late husband, namely, Shudra.
The suit was brought by the resJ>ondent, Radhabai, who
claimed to bo joint hoir witb the appellant of the estate .of
the deceased, and alleged that the appellant had set up a
claim to the entire estate on the ground that she was
the eldest widow and that she had sold ornaments to
the value of Rs. 82,000. Rakhmabai, by way of defence,
stated that she was the eldest widow, and, according to
Hindu Law, she had authority to adopt, and on the 21st of
December 1864 she adopted Rav Saheb, the grandson of
(i) 4 Moo. Ind. App. 1.
(j) Ibid. 246. (k) lllid. 414. (l) 3 Moo. Ind. App. 242.
(m) 7 Moo. Ind. App. 64. (n) Ibid. 184. (o) 3 Morris S, D., Rrp. 120.
(p) 3 Mad. H. C. Rep. 283.

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 ArPELLATE CIVIL JURISDIC1'10N. 183

Vitha.Irav, tho brother of her husband's father, Shidojirav; 1868.

, ,
and he, therefore, was tho lawful heir to the entire estate.
BA&HIU.'BA'l
11•

The plaint was filed on the 19th of December 1864, and be- RA'nu'BA'r.

fore the date of the alleged adoption. Ra.khmabai further

stated in her defence that sho had not in her possession the
property as stated in the plaint, and that the claim was
needlessly overestimated. The suit was tried by the Judge
of the District Court of Dhurwar, who decided that, unless
it could be shown that Radhabai bad forfeited her right to
share in her deceased husband's estate by misconduct, or
had been deprived of it by the act of her late husband in a
manner legally binding on her, she was entitled to a half-
share of his estate ; that the eldest widow had a right to
adopt, and failing hor the other widows according to prior-
ity of marriage ; that a son duly adopted at once inherited
the property of the deceased; that Ra.khmabai must be con-
sidered the elder widow ; and that Rav Saheb, the gi·andson
of Vi~halrav, had not been properly adopted. The District
Judge finds distinctly that the adoption was not authorised
by Murarav, but the part of his judgment which follows this
finding appears to us to be somewhat vague, and wo have
a difficulty in determining upon what precise ground he
ea.me to the conclusion that the adoption, which he does not
appear to doubt was made on the 24th of December 1864,
was invalid. He then found that the property left by
Murarav was a.a correctly stated in the plaint a& waf;i pos-
sible under the circumstances ; that the claim was properly
valued; and that Radhabai was entitled to the share sued for.
Against this decree Ra.khmabai has appealed.
The first question which we have to determine is whether
Rav Saheb was in fact adopted by Ra.khm!ibai. Upon this
question there is a considerable body of evidence. [His
Lordship here reviewed the evidence upon which the Court
came to the conclusion that the adoption did in fact take
place, and proceeded.]
It being then, in our opinion, proved that there was an
adoption by Rakhmabai, it becomes necessary to consider
whether it was valid, either by reason of its having been

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 184 BOMBAY HIGH COURT REPORTS.

~~ made by the authority of the deceased Murarav, or by virtue

RAKlBIA'llA'!
v. or t he power wh'1ch Rakh ma'b" ai h a d b y the n·m d'
u L aw, b y
Ra'DHA.JlA/ 1. which these parties were governed. Upon the first of these
questions there are eight witnesses, Nos. 177, 188, 190, 191,
194, 196, 197, and 199, who depose that the decea,sed di-
rected Rakhmabai to make the adoption; and, if they are to
be believed, there was an express authority. These witnesses
also all depose to the fact of the adoption, but,although they
may be speaking the truth as to that, it does not follow that
they are to be believed with regard to the other matter.
There are circumstances in the case which it is necessary to
consider in determining this question. The delay in making
the adoption is accounted for by Appaji Sitdashiv, No. 177,
by saying that the next month after the death of -Murarav
was Ashad, in which the ceremony could not be performed;
the next month Rakhmabai fell sick ; the next month was
Bhadrapad, in which also the ceremony was forbidden; and
the next, in consequence of the Shukrasta, was also unfa-
vorable. Krishl)abhat Govindbhah No. 191, gives the same
reasons. It may be that the delay is satisfactorily accounted
for : and certainly, if there had been no other circumstances,
it could not have been of any weight against the direct
testimony. But v.either of the exhibits Nos. 126 and 189
(the former being the instrument of gift by Murarav to
Rakhmabai of his son in adoption, and the latter the instru-
ment of acceptance by her) although they allude to the de-
ceased, make any mention of the directions to Rakhmabai
to adopt, and 189 contains the expression" of my own
accord."

Considering.the particularity of narrative which is g~ncr-

ally found in Native documents, the above omission, if there
was a direction to adopt, is remarkable. The inference,
that the direction was not mentioned because it had not
been given, is supported by the facts that in the written
statement of Rakhmabai there is no allusion to any authority
to adopt having been given to her by the deceased; nor is
• there, in her letter to the Judge, exhibit No. 120, or in the
statement made by her vakil on the 3rd of January 1865, or

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 APPELLATE CIVIL JURISDICTION, 185
in tho statement, exhibit 20, made by her in October 1865, ~~
and verified . The first mention of the authority to adopt
RAKHl!A'BA ' l
v.
appears to have been made at the hearing on the 11th of RA'oiu'aA'l.
December 1866, when the witnesses were examined. In the
issues laid down by the Court on the 24th of October 1866
there is no reference to it. It appears to us that the case ~f
a direction to adopt was an afterthought, and the state-
ments a.bout it were ma.do by the witnesses with the view of
strengthening their evidence as to the fact of adoption. It
may be also remarked that there is not satisfactory evidence
of the state of Muraruv during his last illness. It does not
appear that his death was so sudden, or that h~ was in such
a state, that he might not himself have made the adoption;
or, if that could not have been done, that having about him,
as ho undoubtedly had, persons capable of preparing it, he
could not have executed a written instrument giving Rakh~
mabai authority to adopt. Nor does it seem probable that
if he had intended an adoption to be made, he would havo
left the younger widow without any provision. These cir-
cumstances have led us, notwithstanding the direct testi-
mony, to the conclusion that there was no direction by the
deceased to adopt, and it becomes necessary to consider whe-
ther the adoption without it was a valid one.

Tho Mitukshara is silent on the point in question ; and it

is necessary for us to resort to the May(1kha, which in tho
part of India to which these parties belonged must bo re-
garded as the next authority. In the Vyavahara Mayukha,
l
Ch. IV., Sec. v., Art. 17, it is said-" Therefore, if thero
,!
I
must be an order from the husband, it is for a married
woman only, as above shown; but for a widow, even without
I
I •
I
it, [adoption] may be made, with the permission of her
\
father, or, on failure of him, of the relations [Nyati] under
this precept : 'lot a female be taken care of, by her father C)
whilo a child, by her husband when married, and by her \
\
sons in her old ago. If none of those exist, let her other '
relations [Nyati] take care of her. A woman is never fit for
independence.' 'fhis has boon declared by Y[ijnavalkya
only with reference to difference of age, and the circum-

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 186 BOMBAY HIGH COURT REPORTS.

_ _1_868_._ stances of a woman, being under the power of her husband.

RAKHlllA'BA'l h
11, In case of his being dead, or [unable] from old ago, or ot er
RA'oiu'B.t.'i. [disqualification], or from helplessness, then [she is] indeed
under the power of her sons or other relatives." And Art.
18 is "By Katyayana also it has been said-' If a woman,
without the orders of her father, husband, or son, should
perform obsequies, such obsequies are of doubtful validity.'
What is here said of the orders of her father, husband, &c.
relates only to the difference of age. Obsequies here means
rites performed for the other world; wherefore, at whatever
age a married woman may [require to] receive the command ·
of her husb~nd, that very command is in the case of a widow
not required, since the command of any other pers6n, not
here mentioned, is nowhere declared requisite. Therefore,
the right of adoption, even without the order of her [late]
husband, does pertain to a widow.''

Sir W. H. Macnaghten (Principles of Hindu Law, 2nd ed.,

68, note) says-"A.ccording to the Vyavahara Koustabha
and May(1kha, authorities of the highest repute among the
Mahrattas, which in this respect follow the doctrine of the
Dattaka Chandrika, the sanction of the husband is not re-
quisite; but in this respect the authorities above cited differ
from most others." The text of the Dattaka Chandrika thus
alluded to appears to be the following section, 1., Arts. 81,
32:-

" But by a woman the gift may be made with her husband's
sanction if he be alive ; or even without it, if he be dead,
have emigra~d, or entered a religious order.-Accordingly
Vasishtha: 'Let not a woman either give or receive a son
unless with the assent of her husband:" Art 81. "Now,
if there be no prohibition even there is assent : on account of
the maxim, ' The intention of another, not prohibited, is
sanctioned.' Yajnavalkya suggests the independency of the
woman : ' He whom his father or mother gives is a son
given.' Also, in another place : ' deserted by his father and
mother, or either of them :" A.rt 82. This work, according
to Colcbrooke, is considered one <>f the sources of the Hindu

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 APPELi.ATE CIVIL JURISDICTION. 187

Law on this side of India, and the above passages may assist -.-.--1_868---,-.-,-
us in ascertaining the meaning of the Vyavahara Mayukha. RAK:'.~A'BA't

In Srcc B1·ijblwoku11jcc Maharaj v. S1·cc Gookoolootsaoje6

Mahamj, reported in I Borr. 181 (ed. 1825), which appears
to have been a caso of great importance, au adoption by
a widow made without the express consent of her relations,
which had been confirmed by the Emperor of Delhi and
the local authorities of Sui:at, was held to be valid. In
answers to questions put by thp provincial court of appeal to
their Law Officers, the Shastris said that" a widow, notwith-
standing she has no written permission from her husband,
may, if sho be desirous of adopting a son, do so legally, by
obtaining tho sanction of the caste, and informing the rul-
ing authorities. This law is written in the Mayukha, and cor-
responds with the custom of the country.;"-that "it is laid •
down in the Mayukha that a widow ought, in adopting a son,
to obtain consent of the caste ;"-that "it is written in the
Mayukha that it is necessary that the person to be adopted
be of a virtuous disposition, learned, belove!1 by him who
adopts him, and also be the nearest of kin to him.'' The
provincial court of appeal decreed that, although the whole
of the conditions prescribed by the Vedas and Shastra for
the adoption of a son had not been satisfied in that case, yet,
as many of the omissions appeared to have been involuntary
and unavoidable, and as it had not been made to appear how
an adoption, completed with the ceremonies read and per-
formed as laid down in the Vedas and Shastra, and after-
wards confirmed by the local authorities of the Nawab and
English Chief at Surat, and finally ratified by the Emperor
of Delhi, can be set aside, the decree of the Zilla Judge was
affirmed. The $adr Adalat having laid the opinions of the
Panqits of the Zilla Court and those delivered by the Panqits
of the Provincial Court separately before their Law Officer,
demanded his opinion of their being according to the Shas-
tra or not. Ho stated his opinion that they were perfectly
correct and according to the Shastra, and the decisions of
the lower courts were affirmed. Another case on this point
is Hw:but Rao Manh,ir v. Goi•intJ.rao Bulwunl Rao Mankm·,

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 188 BOMBAY HIGH COURT REPORTS.

_ _1_s_68~·- 2 Borr. 75, where an adoption by a widow of the son of

RAKHMA'BA'1
'!,'. her husband's brother was held to be valid without proof of
RA'DHA'BA'l. th e consent of any of 1ier re Jations
• except t h e f:ath er of t l1e
person adopted. The answer of the Shastris of the f?adr
Adalat was: "A widow can by her husband's injunction
adopt a son, but not without it; but the prohibition is meant
against her taking any other person when the son of her
husband's brother exists, whom she may adopt even without
such injunction; for from the. words ( of Manu, Oh. IX., v.
182, quoted by the Zilla Shastris) found in the Mitakshara,
Book II., leaf 55, page 1, line 3, it appears that, even without
the injunction of her husband, a widow may adopt the son
either of her husband's eldest or youngest brother.'' Sub-
joined to the report of this case are the officially recorded
opinions of nine Shiistris of Pmpi, some of them, it is said,
being considered to rank among the highest living autho-
rities on Hind{1 Law on this side of India. The question put
to them was: " Can a woman adopt a son after her husband's
death without his order for the purpose, given on his death-
bed?" Ono merely said that authors differed on the point,
somo saying that a widow might, and others that she might
not; all the remaining eight said that she might, and only
one referred to the consent of relations, saying, " It may be
done, and it is the best way, by tho consent of the father
and other relations within tho seventh degree, and of the
caste. It is also done without any order or consent at all."
In 2 Borr. 4,rn (q) there is another case in which the
Shastris quoted from the Dattak DarpaJJ (or Mirror of Adop-
tion) : " a husband's commands to adopt are required for a
married woman; but for a widow to adopt without such com-
mand, tho permission of her father, or if he be not alive,
then of the caste (Nyati), must ho obtained." The Shastris
have here construed Nyati as caste, and not relations.
In the Selected Decisions of the f?adr Dival).i Adalat, Bom-
bay, reported by Mr. Morris, there is a caso, Part II., page
1 (r), in which whcrea Hind(1 woman of the Nagal'Brahman
(q) 'l'hukoo Baec Bllidc v. Rmna Baec Bhidc.
(r) J'irbudnc H1,rr!1hudrn \'. Brrcc Ranee.

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 APPELUTE CJVrL JURISDICTION, 189

caste had aclopted a son, it was held that it was not essential __! ~
• RAKHlU.'HA.'l
that she should have obtamed the autho1•ity of her husband · ;.,
to make the adoption valid. In this case no authority from R.~'»aA'eA'T,
Government for the adoption had boon obtained. The Shas-
tri of the Court in answer to the question : " Can a widow
of the N{1gar Bruh man caste adopt n. son without having ob-
tained the permission of her husbaml ?" replied : "If the
husband forbade the adoption of a son, the widow could not
adopt; but if he did not prohibit it, it must he understood
that he assented to it. For it is commanded · in the Shustr
that a peri!on who has no male issue must adopt a son; and
if the widow adopted under such circumstances, in the way
required by the Shnstr, her act would he Yalitl. Some law.
books deny this right. to the widow, hut the greater number
allow it. To give publicity to the adoption, it should be made
known to the ruler, though if this was not done the adop.
tion would not be invalid, if otherwise in accordance with
the Sh11str." And this view was adopted by a full Court,
reversing the decree of the Zilla Judge.

In t,he case of Abajee Din lea;· v. G1rn9ad/w;· Fasdeo Gosaree,

in the same Court, reported in 3 Morris S. D. Rep. ,J,20, an
adoption by a widow without the consent of her husband was
upheld; and one of the Judges said that the restriction in the
answers of the Shastris in Huebnt rao Jlankur v. Govindrao
lfanlm;· of the power of the wi<low to adopt, without her
husband's injunction, to .the son of her husband's eldest or
younger brother, appeared to him a very strained deduction
from any part of the chapter of Manu upon which it was
said to be founded, and was, moreover, opposed to the later
dicta of the Slu:st.ris, who agreed that, even if it was not
strictly according to the Shustris, the Mayukha and books
of the 1\far11th11 Pan1its had established it. Another case
on this subject is Bha.skel' Bncliajce v. Nal'1'0 lf.ugoonath,
Bombay Selected Cases 25. There a widow, after having
repeatedly applied to her husband's brother and his rela-
tions to give her a son to adopt, and been refused, adopted
the appellant. The Collector of Pu~a, before whom the suit
was first instituted, threw ont the claim, on the groun<l that
Y.-25 AC

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 190 BOMBAY HIGH COURT REPORTS,

1868: , _ the adoption took place without the consent of the relations,
RAKH)!A llA I
1.•. wh.1ch decree was affi rme d on appea1 by t h e S •. a dr D'1va~1
' .
B.-1.'on,1'e.\', . ..A.dalat. On a motion for a revision of this decree, Mr.
Sutherland, the sitting Judge before whom it was heard,
recorded his opinion, that "it has not been established by
sufficient proof that the custom in the Dakhat) prevents an
adopted son, such as the present, from inheriting in as full
and complete a manner as he could do in any otlrnr part of
India under Hindu law or custom ;" and recommended a
revision of the judgment. The Court, after referring to its
Law Officers, finally reversed the former decree, and decreed
in favour of the appellant. 'rhis was in 182G, and previously
to the decision of the last two cases, which were decided in
184,7 and 185G. More recently, in Special Appeal No. 3G9
of 18G5, an adoption by a widow with the consent of one of
the kinsmen was held by two of the Judges of this court
(Mr. Justice Newton and Mr. Justice Janardhan) to be valid.
Since the present case was argued before us, we luwe
received a copy of the judgment of the Judicial Committee of
the Privy Council in the case of The Oollccfo1· of lifodura Y.
1lfoftn Ramalinga 8atthwpathy (s), on appeal from the High
Court at Madras, which was delivered on the 21st of May
i
! last. In that case their Lordships say they haye excluued
' from their consideration what is the positive law ofDraya(Ja,
I
I the peculiarly Marafha treatises (the May(1kha and Kaus-
I tabha), aed the judgment does not determine what is the
law in this part of India. But the following passage in their
( judgment applies forcibly to the opinions of the Shustris
i which we have quoted :-" The evidence that the doctrine
for which the respondents contend has been :::auctioned by
usage in the south of India, consists partly of the opinion~
of· Panc:1-its ancl partly of decided cases. Their Lordsllips
cannot but t,hink that the former have been too summarily
dealt with by the ,Judges of the High Court. These opi-
nions, at one time enjoined to be followed, and long directed
to be taken by t,he courts, were official, and could not be
shaken without weakening the foundation of much that is
now received as the Hind(, Law in various parts of British
(s) 10 Calr. W. R., P. C. 17,

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 API'ELLA'fB CIVIL JURISDICTION, 191
ln<lia. Upon such materials the earlier works of' Efopoan __ 1868.
wri·t ers on thc H'm d'II la w, an d t he earlier dec1s1ons
. . of our RAKH.\U'B.\'I
i•.
courts, were mainly founded. 'l'he opinion of a Pan<Jit RA'ouA's.,'i.
which is found to be in conflict with the translated works of
authority may reasonably be rejected ; but those which aro
consistent with such works should bo accepted as evidence
that the doctrine which they embody has not become ob.
solcte, but is still reccive<l as part of' the customary law of
the country." Their Lordships held that there was enough
of positive authority to warrant the proposition that accord.
ing to the law prevalent in the Dravaga. country, and parti-
cularly in that part of it wherein the property in dispute was
situate, a Hind(1 wi<low, not having her husband's permis-
sion, might, if duly authorised by his kindred, adopt a son
for ]1im, and tl1at th~rc shou]d be such evidence of the assent
of' kinsmen as sufficed to show that the act was done by the
widow in the proper and bo11rt .fide performance of' a religious
duty, and neither capriciously nor fr~m a corrupt motive.
Upon the review which we have made of the authorities
applicable in this part of India, we arc of opinion that iu the
l\Iaratha country, wherein the property in question in this
suit is situate, a Hiud11 .widow may, without the permission
of her husband, au<l withont the consent of his kindred,
adopt a sou to him, if the act is done by her in the proper
and bona fitlc performance of' a religious duty, and neither
capriciously nor from a corrupt motive. In this case tho
boy adopted is the person who, on the death of the widows,
would succeed to the property if then living. The assent of
one of the kinsmen, the father of the boy, was given, and
there is uo evidence to warrant the supposition that the. act
was <lone either capriciously or from a corrupt motive. If
the elder of two widows has power to adopt without tho
consent of the other, we think the adoption must be held to
be valid. •
It remains, therefore, to consider the authorities on this
point. In the case in Strange's HincH1 Law, Appx, 83,
where the answer is, that if the widows cannot agree to
adopt, tho estate is divisible between t.hem, the question

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 192 BOMBAY HIGH COURT REPORTS,

1868. ~hetM~ the elder could adopt without the consent of the
R.&KH!U' BA.'I
'II. other was not put. T~e same remark applies to the case at
R.\ 'otu ·sA'I. p. 90. The Chief Justice of the Supreme Court here, on the
22nd of June 1861, after consideration, and obtaining answers
from the Shastris of the ~adr Adalat and at Put}», held
"that if there be more than one widow, each of them is
entitled to an equal share of the property," following the
Mayukha, Ch. IV., Sec. 1v., Art. 19, and this was also held
by the High Court in the case In the Goods of Dadoo !lania,
Ind. Jur. October 25th, 1862, p. 59. It would seem to be
unjust to allow the elder widow to defeat the interest of the
younger by an adoption against her wish. . But, on the other
hand, if the adoption is regarded as the performance of a
reigious duty and a meritorious act, to which the assent of
the husband is to be implied wherever he has not forbidden
it, it would seem that the younger widow is bound to give
her consent, being entitled to a due provision for her main-
tenance ; and if she refuses, the elder widow may adopt with-
out it.
In West and Btihler's Digest of Hindu Law of Inheritance ;
8!), there is the answer of a Shastri, dated Puna, March 31st,
1852, that where a deceased man has left two widows, the
right of adoption belongs to the elder, quoting as authorities
Mit.; Vyav., p. 137, l, 5; and Sari.1Skara Kaustubha,
In Steele's Summary of the Law and Custom of Hindu
Castes in the DakhaQ, published by the authority of the
Government of Bombay in 1827, it is said, p. 37, para. 14: "Of
several wives being of the Brahman caste, the one first mar-
ried enjoys the precedence ; if they are of different castes
the Brahmani is considered the elder. The elder wife sits
by her husband at marriages and other religious ceremonies
(see Yadn. C. Dig. 2, 405), is head of the family, and entitled
to adopt a son on her husband's death." And at page 54 :
"If there be two widows, the~ ought to adopt by mutual
consent ; otherwise the elder should have the preference in
point of right." The precedence of the eldest wife in acts
of religion is supported by the texts in the Digest, Book IV.,
Ch. 1., Sec. 2, xlviii, xlix., I.; and it would seem that the

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 Al'PELLA'ft CI\'lL ,JLIJ(l::lVICTION. ltl3

opinion of the PancJits givcu in :::iteele ii:; supported by au- _ 1868. _ _

. t lie act of a d option
tb on'ty. Cons1'd ermg . as t he per1ormancc
I! RAKHllA'llA'I
t·.

of a religious duty, we think these a~tl10rities arc sufficient R.\'DJu'nA'i,

to justify us in holding that Rakhmiib[ti, the elder of the
two widows, had the right to adopt. In the judgment of
tho Privy Council their Lordships say that " in the case of
an 1individc<l family, if there be no father of the husband
living, the consent of all the brothers, who, in default of
adoption, would take the husband's share, would probably
be required, since it would be unjust to allow the widow
to defeat their interest by introducing a new coparcencr
against their will." The interest of the younger of two
wiaows cannot, we think, be regarded in the same light as
that of a member of an undivided family, and probably their
Lordships would not consider the remark applicable in cases
where, by the law which governs them, DO Consent of kins-
men is required.
••
,ve must not omit to notice the judgmcnt of Mr. Justice 1
' I
() , . ,·. I .
. f(_ . i: ~- ,,
V

Westropp in Rcgu~~ppcal No. JJ of 18G;J, which wa::i

cited by the respondent's counsel. 'l'lrnt judgnieut wq;s not a
fry i-~ d c.
written one, and we have no report of it, but we nnd~rstand
that the opinion giv'e u-by-the learucd Judge was.· that a
J ~-:_l
widow had no power to adopt 11, son to her husband \'\'here he
had expressly, or by his conduct impliedly, forbidden her to
do so. In this we quite concur, and the Judicial Committee
have so held in the judgment we have referred to. There
is no question of prohibition by the husband in this case.
The result of our opinion is, that the decree of the Dis-
trict Judge in favour of the plaintiff is wrong, and' must be
reversed ; but, as she is entitled to maiutcuancc, before a
final decree can be passed, it mu::it be referred to the lower
court, to inquire and determine what, having regard to the
rank of the deceased and the property left hy him, is a
proper sum to be allowed for her maintenance, and the
lower court will return its finding to this court ; and we think
that each party should pay her own Costs of this appeal, and
of the proceedings in the lower courts. •
Decree rei:e1·t1ed and Buit t·cmandecl.

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 llO}llJAY IIIGH COl'&T m,;ro1ns .

. ": \
I
Specirtl Appeal No. 422 of 1868.
.'
', 1 . 1'11.iS•R. s. vVAIGAKKAR .... : .......... ............... Appellant.
N,w. 8.
--- -· .. --B. B. "'\VA'?EKAn ........................ ...... Respondent.
Mortgagl'e-Attachment-Suit by Jlortgagee lo raise Attachme11l-
Adcerse 'Finding on facts in Court of First l11stan.ce-Omisrion to file
Jle111ora11dum of Objection to Finding of fact-Cic. Proc. Codi', Sec. 848.
A mortgagee claiming title otherwise than from the execution debtor is
competent, on behalf of himself and his mortgagor, to sue to raise au
attachment .on the property of which he is mortgagee.
'fhe court of first instance found against the defendant on a matter of
J ract, hut decreed in his favour on a point of law ; and, on appeal hy the
plaintiff, the defendant omitted to file a memorandum of objections to the
adverse finding of fact of the court of first instance. The appellate court,
i
I \\'ithout going iuto the question of fact, confirmed the decree of the court
of first instance on the point of law.
Held that the High Court, in special appeal, coultl, under these cir-
I
") ' \ cumstances, giYe jmlgment in favour of the plaintiff without a remand.

' ·I
J
THISDistrict
was a.Special .Appeal from the deci:,;ion of F. Lloyd,
Judge of Pu1,u'i, in Appeal 8uit No. 56 of 186li,
confirming the decree of Krish1.1uji Vish1,rn Limaye, Principal
~adr Amfo of PmJu.
The plaintiff, R . S. W aigankar, in his plaint alleged that
a certain house in the City of P111.1u belonged to one . S. 1-'.
Waidya, who mortgaged it to him in 1831 for Rs. 1,101;
that it had been in his possession ever ~incc the date of the
mortgage; that the defendant, B. B. vVa~lekar, in execution
of a decree obtained by one G. S. Mo<Jak against one R. 'l'.
Pha~lke (who was in no way connected with S. P. Waidya.,
the mortgagor of the plaintiff) attached the said house. 'l'hc
plaintiff prayed that the attachment might be raised.
The defendant contended that the plaintiff's mortgagor,
S. P. \Vuidya, was a Kiirkun of his vendor's judgment
debtor, R. 'l'. Phagke, and had acted as Pha<Jke's agent m
the mortgage transaction with the plaintiff.
The Principal f;ladr Amin found that the house did not
belong to Pha<Jke, but to S. P. Waidya in his own right; as,
however, ho considered that, under the various rulings of the
• f;ladr and High Courts, a mortgagee could not sue to raise an
attachment, ho rejected the plaintiff's claim.

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 APPELLATE CIVIi. JURISDICTION.

The Jn<lge in appeal upheld tl1e Principal ~adr Amfo's JROS,

decision, that the suit did not lie, nnsl upon thnt view of the R. s. W.\I•
U.\NK.\11
law confirmed hiR dC'cree. i•.
B. B. WA'DF.•
The Special Appeal was argncd before WARDF.N and Grnas, KAie •

.JJ.
8Mufar,fm Nuraya?L for tl1e appellant.
(fo?i,,.~1i Uari Pn[rardl,ail iu1u 1·ii;/,iia11utl1 (lvl'i/l(l Olwllmr
for the respondent.
Grnns, J. :-In this case the lower courts have decidecl
against the original plaintiff, on tl1e ground that he is only
a mortgagee in possession, and that, therefo1·e, under tl1e
rulings of the late ~adr Divii1li AdMnt nud the present High V
Court, ho could not sue to misc the attachment. "\Vc con.
sider that the lower courts erred in their application of the
rulings aboye alluded to to the present case. The earliest
case is S. A. No. 2813, Morris's Selected Decisions, Pt. I.,
p. 59, in whicl1 the point for deci:sion was, wlwther a mort.
gngee's right to a field mortgaged to him was subject to tl1c
right of another creditor of the mortgagor; and the Court,
decided that the attachment did not affect the mortgagee, and
would not interfere. This case was subsequently qnoten in
Morrii'>, Pt. I., p. 33, S. A. No. 3833, to show that a mort•
gagee could not sue to raise an attachment on the mort· //
I/
gaged property in hi8 possession, and has snbsequent.Jy been
adopted in many other cases, hut in all of them the question
has rested between a mortgagee and one of his own mortga.
gor's jndgment creditors, and not, as in this case, between
the mortgagee of a third party, seeking in his mortgagor's
interest to raise the attachment, placed under an application
by a person who attaches the property, as being that of some
person other than the plaintiff's mortgagor. The precedents
quoted do not apply, and cquit,y requires a different ruling
nuder such circumstances, otherwise the property of tlw
absent mortgagors might be improperly made away with, if
their mortgagees could not come into court to protect it.

In this case the Principal f?ad1• Amfo found as a fact that

the 11011,:0 in dispnte was n·;t the p1·operty of the jndgment

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 19G BOMBAY HIGH CO'C'RT REPORTS,

_1~~·- debtor, against whom the decree sought to be executed was

R;•.~~~:·~ passed, but, by misapplying the decision of the ~adr Adalat,
1-

r. refused to give the owner's representatives any remedy, and

B. B. W.\DE-
li.\K, Jthe District Judge has apparently fallen into the same mis-
-, } take. There was no appeal by the ~ondent to the District
. .. $fudge as to the ownm].1ip, and so we can dispose of the case
without a remand: and, therefore, reverse the decrees of the
Principal f?adr Am111 and the District Judge, and give a
decree in the pl:tint.iff's fa.rnur as prayed for, removing the
\ .' h.ttachment, with al1 costs.
Dec;·ces reversed.

Special Appeal No. 2[,9 of 1868.

~ov. 11. NATHUBHA1 I PA'NA 1CHAND ...... , ........... ... Appellant.

Mur.cHAND HrnA'CHAND et al. . ....•....•• ... Respo11denfs.
Hindu Law-Inte"rest erceeding Amount of Principal-Jl,[01·tgage-
'!t1ortgagee in Possession.
The 1•ule of Hindu Law that interest beyond the amount of the princi-
pal sum cannot be recm·erecl at any one time applies as well to mortgage
transactions as to other loans.
But where the mortgagee enters into possession of the mortgagetl
property, and in taking the accounts between the mortgagor and mortgagt>e
credit is given to the fatter fur the rents and profits received by him as
against the principal ancl interest due, the aborn mle cannot equitably be
applied.

THIS was a Special Appeal from the decision of F. D.

Melvill, in Appeal Suh No. 4 of1860•
.,· The plaintiff, Nathubhai, filed a suit in 1856, against the
defendants, Mnlchand and others, to recover possession of
certain mortgaged property, on the ground that the property
had passed to him under the terms of the bond, as default
had been made in payment of the mortgage debt at tlie
stipulated time.
After several remancl8, the suit was finally sent down by
the High Court to the lower court, to determine what was
due to the plaintiff as mortgagee. Three shops hncl origin-
ally been mortgaged to the plaintiff, and he was pnt in
possession of one of them, •

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 APPltL!'rl CML i'll'Bt8i>IO':t101'.
•
The following is an extract from the judgment of the
Acting Judge, F. D. Melvill, on the question of interest due
on the mortgage bond :-
l&ell.

Km:;..uro
::,=
B11u.'cR.1.Na
"The appellant (mortgagee) urges that he is entitled to ,tell.
receive compound interest, and that the sum is a.bout ten
thousand rupees; whereas the respondent (mortgagor) urges
that by Hindli Law the rule as to damdupat has force, and
that a snm only equal to the principal is recoverable.
" I am of opinion that in a suit of this nature, where the
mortgagor is allowed the right to redeem hie property, not-
withstanding the agreement in the deed that in default the
ownership was to pass, it would not be equita.ble to apply
the rule of Hindu Law. The appellant has been in posses-
sion of one of the shops, and led to consider it as his property,
and he has not looked to have his mortgage pa.id off, or that
he had a claim for interest. I decide, therefore, that the
appellant is to receive from the respondent simple interest
from the date of the bond up to this date."
'.rhe Judge found the a.mount due to be-
Principal .••.•.•.....•...•.••.. Rs. 798 0 0
Interest .. ......••..••.••••.•••• ,, 2,121 2 4

Rs. 2,919 2 4
Deduct on account of House-rent •• ,, 81 9 7
Rs, 2,837 8 9

The appeal was heard before CoucH, O.J., and NEwroN, J.

DhiraflalM«Jhurada,, forthe appellant (the mortgagee):--
The interest is calculated at twelve per cent. per annum,
according to the terms of the mortgage bond, but simple
interest only is awarded. Under the peculiar circumstances
of this case, we are entitled to compound interest.
It has been decided by this Court that the rule of Hindu
Law, limiting the a.mount of interest recoverable to the
a.mount of the principal, doef not apply to casas of mort-
gage: Special Appeal No. 279 of 1868 (decided on the 10th of
v.-26 AC

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 198 BOMBAY HIGH COURT REPORTS •

• 1868. August 1868) by Warden and Sargent, JJ., S. A. No. 384 of

NA.THUBHA.'I
PA.'NA.'CHA.ND 1868: Narayaf!, Babaji v. Gangaram Krishf!-0,ji (a)
11,
llULCHA.ND
Huu 'CHA.ND Nanabhai Haridas, for the respondent (the mortgagor) :-
st aZ, Interest beyond the amount of the principal cannot be a-
warded, as has been ruled by this Court, Special Appeal No.
663 of 1864, decided on the 25th of January 1865 by Couch
and Warden, JJ., and No. 825 of 1864, decided on the 8th
of June 1865 by Forbes and Warden, JJ.

CoucH, C.J. :-In Special Appeal No. 663 of 1864 the

suit was upon a mortgage bond, to recover the amount due
by sale of the property, &c.; and there we held, upon the
authority of the decision of the late Chief Justice, Sir
Matthew Sausse, that interest beyond the amount of the
principal could not be awarded (b). In the other case (No.
825 of 1864) the suit was to redeem, but the account taken
was only of principal and interest, and not also of rents
and profits; and, therefore, the interest was properly limited
to the amount of the principal according to the Hindu
Law. Where there is no account on both sides, and no
charge for rents and pro:fi:t~~ ~ . do . :110t see why the
rule of Hindu Law s~~uld_ not. be observed. In Special
Appeal No. 279 of 1868 the suit was for redemption, and
principal and interest were charged on one side, and rents
and profits on the other. It would in such a case be in-
equitable that the interest should cease when it amounts to
the same sum as the principal, if the rents and profits con-
tin1,1e to be charged.

The other case, No. 384 of 1868 (ubi supra) contemplates

that the rule of Hindu Law does not apply to mortgages. It
was held there that the lower court was in error in applying
the Hindu Law of damdupat to mortgages ; but I do not
concur in this part of the decision. However, in that case
the account taken was of principal and interest on one side,
and rents and profits on the other, so that in substance the
(a) Suprd, A. C. J., p. 157.
(b) See Dhonif.u Jagannath v. N6rayan Ramchandra, 1 Born. H. C.
Rep. 47. .

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 •
APPELLATE cmL JURISDICTION. 199
decision did not go further than that in No. 279 of 1868. 1868.
NA.THUBHA '1
The account taken in the present case is also the same, PA.'NA.'csA. ND
that is, principal and interest on the one side, and rents .w.Ut.CHA.ND
u 11•

and profits on the other ; and ~~_the mortgagee is to be! Hnu'cHA.ND

charged with rents and profits it would not be just to stop \ et aZ.
his interest, and consequently the rule of Hindu Law cannot 1
be applied.
The appellant, the mortgagee, has, it appears, only been
charged with the rent of the shop from October 1865; but
it is stated in the plaint that he took possession of the
shop when the mortgagor did not pay according to the con-
tract. He should have been charged with rent for the shop
from the time he took possession of it. We, therefore,
remand the case for the court below to retake the account,
according to the view above expressed.
The appellant has failed entirely, and the respondent has
failed in the point he took : therefore, each party should pay
his own costs of this special appeal.
NEWTON, J., concurred. r ·

Special Appeal No . 376 of 1868.

MoRo BA'LKRISHNA MuLE ............... ... Appellant. Nov.17.

SHEK SA'HEB val~d BADRUDDIN KA'MBLE ••• Respondent.

Suit to raise Attachment-Estoppel-R.es judicata-Judgment inter

partes and in rem-Privity.
The plaintiff' sued to raise an attachment placed upon a certain house,
but failed in the lower court, and the decision of the lower court was
confirmed upon appeal. The house was then sold. The plaintiff' sued the
t
I
purchaser to recover possession of it.
I
Held that be was not estopped from suing by the decision in the former I
suit refusing to raise the at~acbment, and that such decision could not be
given in evidence in the latter suit.
( ,'I
THIS was a Special Appeal from the decision of A. Bosan-
quet, Acting Judge of the District of That;ia, in Appeal
Suit No. 178 of 1867, reversing the decree of the Munsif of
Kalyar;,..

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 200
•
BOMBAY HIGH COURT UPOBTS.

~ - ·_ The suit was filed by Shek Saheb, to recover possession

ll:i~H!!'L· of a. house sold to him by Dagq.u Lalu and Khimi Telli,
MuL• and of which he had ~en dispossessed at the instance of
11. '
8Hn SA'HBB the defendant, Moro Balkrishl}.a Mule, who had purchased
BADRUDDIN . ea1e, h eld by t he c·1vil court m
KA'HBLII. t he h ouse at an auction . e:x:e-
cution of a. ~!.~..o~~~e~..agai:i_s t J?a.Kgu _!,alu E1
one Dada
valad Sidik.
The defendant answered that the plaintiff was estopped
from maintaining his present suit, under Sec. 2 of Act VIII.
of 1859, because the !~!e .of the house ~ -Ehe .Pl-'pitiff was
declared fraudulent and void, in a regnla.r suit brought by
the plaintiff to raise the attachment placed by Dada valad
Sidik on the said house in execution· of his decree ; tha.t the
house was declared liable to meet Dada's claim; that as the
defendant purchased it at an auction sale held to satisfy
Dada's claim, his title to hold possession of the house was
superior to that of the plaintiff.
The Munsif, Gopal Govind PhaP'k, rejected the claim,
but the Judge awarded it, for the following reasons:-
" The suit, in which the decree, exhibit No. 38, was
passed, was a suit in which this plaintiff sought the remoTal
of an attachment pla.ced Qn this house by Dada, pleading
this purchase from Daggu ; but I the f:,adr Divai;ii Adala.t
confirmed this attachment. Neither this defendant nor

, .. ·y
,, ~aggu WSI:! _ ~.PBrlY.. ~9. that suit, and as ihia' -plaintiffcould
not have adduced this decree as evidence~it had l?~.in
bis pover, so neither can this defendant avail himself of it
'•.
' against the plaintiff.
\/

"The d ~ n t !iJ! l>oug'!:it Dag<Ju's inter~st, and etands

in his place, but the plaintiff, in a suit instituted by him
against Dagq.u &c., obtained from the Munsif of Kalyal]. the
decision, No. 34, to the effect tha.t t~e sale of the house by
Dagq.u's guardians to Shek Sllheb was for necessary pur•
poses, and for the benefit of the infant Dagq.u, and that it
was executed for valuable consideration, and for a fully
adequate price. This decree was confirmed in appeal by
the Judge (exhibit No. 45).

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 APPBLUU cmL JUBlBDIC'l'ION, 201
"The defendant, therefore, in buying Dagg.u's right m ~-18_68~·~-
Koao B.t.'L·
the house, took nothing by his purchase; for Dag4u had, IUU8B114
at that time, no right in the house, it having been bought MuLJ:
'II,
by the plaintiff. San S.i.'HH
B..t.DRUDDll'I
"With regard to the bond fide character of the plaintiff's K..t.'KBH.
purchase I concur with the Munsif. I, therefore, reverse
the Munsif's decree, and admit the claim with costs."
The Appeal was argued, on the 30th of September 1868,
before CoucH, C.J., and NEWTON, J.
Vishvanath Naraya'T), for the appellant :-The defendant
purchased this property after the attachQient placed on it
was confirmed by the ~adr Court. The Calcutta High Court
have ruled that property sold in execution of a decree passes
to the purchaser, although the decree under which the sale
took place be reversed subsequently to the sale: Ohunder
Kant Surmah Taloukdar v. Bissesur Surrnah Chuckerbutty
(a); and this judgment was followed in Jan A.li v. Jan A.li
Ohowdhry (b). In this case the propriety of the attachment
was once decided, and, therefore, it is good against those at
least who first contested it. [UoucH, C. J.:-The plaintiff, I
I
i
fail!ng against the judg~~~t~~tor, now t~~ ~.<?. ~e.-~. as~<l,e
the attachment as again~J the p~r~lulser.]
Shantarli.m Naraya'!- for the respondent.
I
Vishvanath Na ray a'!- Maw!lik in ~eply.
Our. adv. vult.
November 17. CoucH,C.J. :-In this case the appellantwas
a purchaser at an auction sale. The respondent claimed to
remove the attachment, but he failed, and the E;;adr Court
confirmed the attachment. It is contended that the decision
of the f?a.dr Court operated as an estoppal in this case. The
parties to the attachment suit were the respondent and Dada.
The appellant was no party to it, but he purchased the pro-
perty after the attachment was confirmed. It is urged that,
· although the appellant was no party to the suit, he ought Y
to have the benefit of the decision as claiming under the
attaching ereditor; but the decree can be used as a judg-
(a) 7 Cale. W. Rep., Civ. R. 312. (b) 10 Cale. W. Rep., Civ. R. 154.

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 BOMBAY HIGH COURT REPORTS.

1868. ment binding upon the respondent only, as the appellant

MORO BA'L•
KRISHNA was not in any way a privy to Dada. There are three
MuLE
11.
kinds of privity, namely, by blood, law, and by estate. If
SHEK SA'HEB there is in tbis.~e an;r privity by estate, it is with the
BADRUDDIN • - - - · · · - ··· · ·- , - - - - - : - - - - - - - -
KA'HBLE. ~~~!.i!,~~P?r, and the execution creditor had no estate,

since he merely attached and sold the property, and his

obtaining the proceeds of the sale did not make him a.
privy. One might suppose that,. under other modes of pro-
cedure, authorities might be found on the subject; but the
absence of authorities is accounted for by the fact that the
) judgment debtor was not ma~~.l?.art7. The debtor should
have been made ·~ party to the f01•mer suit, but the suit was
not so framed. The judgment, therefore, is not an estoppel
at all, nor is it admissible in this case as evidence. The
question then is, can it have any other effect? Mr. Justice
Holloway, of the Madras High Court, has treated of judg-
ments in rem in the case of Yarakalamma Anakala v.
Naramma (c), and we concur in the opinion he has there
expressed. The result, therefore, is that neither as a judg-
ment inter partes, nor as a judgment in rem, is the former
decision of use in this suit. The appellant thus fails on the
point he has taken; and we must, therefore, confirm the
decree of the lower Court with costs.
Decree confirmed.

Regular .Appeal No. 8 of 1868.

.
Nov. 25. THE GOVERNMENT OF BOMBAY ............... Appellant.
DA'MODHAR PARMA1NANDA's et al. . .... ; ... Respondents.
Service Watan-Resumption-Right of Females to hold Service Watans
-Jurisdiction-Act (Bombay) VII. of 1863.
The payment of a hak in respect of a majumdari watan, though charged
on villages, is not " a share of the revenues thereof," within the meaning
of Sec. 32 of (Bombay) Act VII. of 1863.
Government has no power to resume majumdari watans where it
dispenses with the performance of services in respect of them, if the
holders of such watans are ready and willing to perform such services.

(c) 2 Mad. H. C. Rep. ~76.

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 APPELLATE CIVIL JURISDICTION, 208
The law in the Bombay Presidency recognises the right of females to 1868.
hold majumdari watans, males being appointed by them to perform the THB Govsu.
service,. KIUIT OP
BOXBAT
'II,
THIS was a Regular Appeal from the decision of C. G. DA'KODBU
PABllA'NAN•
Kemball, District Judge of Surat, in Original Suit No. DA'S 6t aZ.
2 of 1867.
The action was instituted by Damodhar Parmanandas and
others to compel the Government of Bombay to centinue
to the plaintiffs two majumdari watans in the Broach and
Waghra talukas, in the Surat district, which watans were
formerly held by their maternal grandfather, Narandas Ra-
sikdas, and resumed by Government on the death of Bai
Lakshmi, his widow. The plaintiffs also claimed arrears
from the date of resumption.
For the defence it was pleaded-lst, that the suit was
barred by the law of limitation; 2ndly, that :majumdier Na-
randas and Bai Lakshmi having died without male issue,
the watans lapsed to Government, and the plaintiffs had con-
sequently no right of action; and 3rdly, thRt the plaintiffs
had no right of action against Government.
The Distdct Judge delivered the following judgment :-
" The issues for determination are-whether (1) this action
is barred under the law of limitation; (2) Narandas and his
wife, Bai Lakshmi, having died without male issue, it is not
compet~nt to the plaintiffs to demand the continuance of the
watans in question to themselves; and (3) this action is
maintainable against Government,
"On all three issues I find in favour of the plaintiffs. No
other issue was raised by either party.
" Though little evidence is offered as to the nature of the
hak in dispute, it is well known that a majumdar is an
hereditary officer of a parga'l},O, whose duty, whatever it now
may be, was formerly to keep all the accounts of the tawfis,
and to frame from them the general accounts of the parga'l},O,
his emoluments coming from fees on the villages, though now
they are paid direct from the treasury. From the Bombay

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 904 BOXUY ]ll<l:S: OotJliT REPORTS.

1868. Printed ~venue Selections it is learnt that the office has

TB•KENT
GoVEaN-
ol!' b een h ered'1tary smce
. th e t·1me of R'" I one or
aJa T owi.rma,
.J_

~.
Boxsu
DA'IIODHAB.
the vazfrs of the great Mogul .A'kbar.
PAID[A 'NAN• " It appears that the watan, the subject of this action,
J>AB et <Ji.
was latterly held by one Narandas, the son of Rasikdas, who
died in A.D. 1826, leaving a widow, Lakshmi, and three
daughters, Bais Neva, Dahi, and Kuvar; of these daughters
Bais !>ahi and Kuvar are dead, Dahi dying in 1846, and
predeceasing her mother, Lakshmi, who died in 1855. Dahi,
however, left a son, Damodhardas, one of the claimants; of
the other two daughters Bai Neva is childless, and Bai
Kuvar has left two sons, Narbheram and Bhagtidas. On
her husband's death Lakshmi succeeded to the emoluments
of the watan; but, as there were no male children to
Narandas, the watan was, on her death, resumed by the or-
ders of the Government, the surviving daughters receiving
a small money pension in lieu during their lives. The sons
of Kuvar and Dahi sue to compel the continuance of the
watan; and to this action it is replied, on behalf of Govern-
ment, that the claim is without the law of limitations; that
the watan lapsed to Government through failure of male
issue to Narandas; and that, by .Act VII. of1863 (Bombay),
an· action of this kind against Government cannot be main-
tained in the Civil Courts.
"The main question submitted for adjudication is, whe-
ther the fact of Narandas having died without male issue
warranted the resumption ot the watan belonging to him ;
but it is necessary, before proceeding to its discussion, to
dispose of the technical objections raised to the court's juris-
diction. *** *
"With regaro to the objection raised as to the incompe-
tency of the Civil Courts to adjudicate upon such a cause, it
appears to me that the Bombay .Act No. VII. of 1863 is in-
applicable to this claim. 1st, the preamble shows clearly
that the .Act has no application to resumption; and 2ndly,
a majumdari watan can in no sense, I think, be termed
1 lands' within the contemplation of para. ( b) of Sec. xxxn.

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 APPET,LATE CITII, JURISDICTION. 205

I, therefore, consider tho objection to the jurisdiction of the . lb6R.__

• 'fRE Gon:ax.
court 1s untenable. KENT oi·
BOK BAY

" I now come to the main question, whether or no the re- "·
DA'MODBAlt
PARHA 1NAN'·
sumption of the watan was justified by tho failure of male D.l'S et al.
issue to Narandus: in other words, whether, either by law or
custom of the country, descendants of the grantee in the
female line arc debarred from succeeding to a niajmndari
w1tla11. Th<'re is no question about plaintiff.,;; being co-heirs
of N urauda~, so that it will be needless for me to go into
that point, the sole question for consideration being whether
by the failur<' of mnlo issue there is a consequent determina-
tion of th<' 10tita11. Neither party has placed before me any
evidence showing that it has bef'11 th<' inntriable custom in
G-ujarut, either for ·11:atans, in default of male issue, to re-
1mlt back to the State, or for females to 1sncceed in the
natural <'Om·so of thing!! to service 1l'a.ta n11 : so that I must
determine as best I can whether there is anything in the
nature of the wata.11, or in the rela.tionship of the holders of
t,he Stnte, wl11ch l'('nders the succe~sion of f<'males impossible.

" It was pleaded for Govel'llment, in answer to this action,

that the watnn, on the failure of male issue, lapsed as n.
matter of course to Government ; and it has been argued
before me that it is customary to exclude descendants in
the fema]e line from such offices ; but though, in my opinion,
the onus of proving the right of escheat was on the party
pleading it, there is not a particle of evidence offered on
behalf of Government to show either that at the time of the
grant any restriction was imposed on the right of succes-
sion, or that it has been the invariable custom for only tho
male descendants to succeed. All I can learn is that the
office of 1na;f11mcla1·i waR intended, and has continued, to be
hereditary. I observe it has been assumed on behalf of
Government (i:idc the letter of the Revenue Commissioner
for Alienations No. 1822 of1858, exhibit No.'23) that district
hereditary offices do lapse to Government through failure of
male issue, but in what consists the right of escheat in such
cases I am unable to discover. As I have before observed,
V,-27 AC

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 206 BOMBAY HJGH COURT JlEPORTf:,

1868. no 111w inconsistent with the right of fema.le8 to succeed has

TBE GoVERN•
MENT oY
been shown to rno, nor b as 1t• b een
· proved to }mve been the
lloMun
11,
custom of the State to resume watans of hereditary officers
DA'KoDBAR in default of' male issue. It is mentioned in the letter
PAJUlA 'NAN•
DA's et al. above referred to, that t,he Peshwa's records prove that his
Government considered such watans to have lapsed: from
which it is meant to be inferred, I presume, that prior
t-0 the British rnle females never did succeed; but, 1 imagine
that if it had been possible to establish this point ns apply.
ing to Gujarat, some pains would have been taken to pro.
duce these records here. The question before mo is not as
to the expediency of continuing such watrrn11 to fema.les,
but whether Government has legal competence to resume a
wafan on failure of issue in male lineage from the original
gr&ntee : and in the absence of all opposing evidence I con-
sider that the provisions of Sec. 11 of Act XI. of 184:l
afford conclusive proof that the Bi·itish Government were
prepared to, and did at one time, recognise the right of
females to succeed to hereditary offices ; and this appears
to have been the view taken by the ~aclr Adalat and by the
Legislature: vide · Art. No. III., headed 'Females are en.
titled, under Act XI. of 1843, to an Hereditary District and
Village Office,' page 593 of the Government Revenue Circular
Orders. 'rhe first witness for the plaintiffs, Pra1:ishankar
Raghunathrai, Mamlatdar of Ulpar, mentions two instances
of women succeeding to such hereditary offices, and he states
that the Alienation Commission was appointed in 1855-56,
and after that no daughter or daughter's son received such
a watan; from which latter statement the only logical in-
ference is that before the year 1855-56 it was customary
for females to succeed. O~jection has been made to the in-
stitution of this action by reason of Neva's name not having
been joined ; but I do not consider that the non.joindet·
affects the plaintiffs' right of action.

"As a matter of right I find that whereas the officC'

of ],faju1ncla1· is clearly hereditary, no attempt has been
shown to establish the right pf escheat in the sovcrf'ign
proprietor, either prior or subsC'quent to tlw British rnl<•, on

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 .\l'l'tLLATt Cl VIL JU lW:WWTlON. 207

failure of m11.lc isimo; ar,d, therefore, hold that tho plaintiffs _ 1868.__
·· ..J good their
have mll,Ue · r1gl1t
· ·
to the coutmuance Gon:ux.
to them of 'fin:lli,;s-r 01• •

the hereditary office, together with six years' arrears. Costs lio:»"r
on the defendant." D.\'iwnH.rn
P.\ll)IA 1 X .L\•
U.\'s et al.
'L'he case was heard on the 11th of November 1868, before
Coucu, C.J., and NEWTON, J .

White (with him Dhimjlal Mathurada11), for the appel-

lant :-The only question is whether the watans in this caso
come under the definition of " land" as given in Bombay Act
VII. of 186:J, 8ec. xxx11., cl. (b), of the Act says "land"
means infer alfo, 1:1hares of the revenue of villages. Here the
tVtdans are charges ou revenues, which are paid out of the trea-
sury. lf, therefore, the -w<iian is land within the meaning of
the Act, the Civil Courts will have no jurisdiction, under cl.
1, of Sec. 11. of the Act; but if the Act does not apply, the
tl'tdans will be cash allowances, and then a different law
will apply. 'l'he ·ir<ifa11.1 are attached to the office, the duty
of which is to keep accounts, but the service is now dis-
continued. 'fhere is nothiug in the nature of a gmnt for
past services or anterior rights, and, therefore, the pay-
ment should cea::;c with the service. 'L'he ivatans being for
service to bo reudered, only the male descendants of the
grantee can succeed to them, since females cannot perform
the service: Act XI. of 1840. 'l1he deceas1:.d Nurandas
left three daughters. Two of ~hem are dead, ancl oue is
imrviving, a.nd the plaintiff.., are the so1w of one daughter.
~o they can claim a. ~hare only, and not the whole tl)alcw, in-
cluding the share of the other daughter, Neva, who is sur·
viving.

Pigot (with him Shantan'ini Narayati) for the respondcnts:-

The hak was charged on the revenues of the talukas; but the
British Government paid it out of their treaiittry. It is not a
share of revenues under Act (Bombay)VII. ofl863, since we
notice that the Legislature has taken care to exclude from the
Act the expression "immoveable property." So long as we
are willing and ready to perform the service, Government is

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 208 llOMBAY HIG11 COURT REPOR'l'S,

1~68. entitled to discontinue the payment : Beema 8hunker Bal-

T11E GOVERN• , 1 7 •s1riaporJee
• and otM rs (a ) . . W c have pro-
JtENT o•· crismia v. c1arnasJee
Bol!BAY
t,,
duced evidence of custom to show that haks have descended
DA'MonnAR through females. As regards the share of Neva, she has
PARMA'NAN•
»A's ctal. relinquished it in our favour; and as the objection is only
now taken, we should be allowed. au opportunity to make her
a party.
Our. ad. ·1:1tlt.
Couc11, C. J. :-Iu this case three questions have been
raised by the appellants, viz., (1) whether Act VII. of 1863
applied to the case : if so, the Court would ·not have jurisdic-
tion ; (2) whether the Government is entitled to iliscontinuc
the payment of the haks on the ground that no services arc
performed; and (3) whether this was a watan limited to
male descendants of the original grantee.
The determination of the first question depends upon the
construction to be put on Sec. xxxn. of (Bombay) .ict
VII. of 1863, which provides that "lands" shall bo under-
stood to include " vill:iges, portions of villages, shares of the
revenue thereof~ and landed estate of every description."
We are of opinioq that the payment in this ease, though
charged on the villages, is not a share of the revenues of the
villages, and that, therefore, the Act does not apply, and
consequently the Civil Courts b.ad jurisdiction to try the suit.
As regards the 1:1econd question, the answer is that it not
only appears on the evidence that there are some services to
be rendered, but that the plaintiffs are ready and willing
to perform them. That being so, the Government cannot
resume the haks, and even if the Government chooses to
dispense with the services, that will not deprive the parties
of their hal,s if' they are willing to perform the i;ervice.
·with reference to the third question, we have to observe
that the law in this Presidency recognises that females can
hold watans, males being appointed to perform the service,
and that it is, therefore, incumbent upon the Government to
show that this is a special case. But it is not shown in any
(a) 2 Moo. Ind. App. 23.

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 .\l'PEI.LATJ: 01VIL JUHJ:sDIC'l'IO"K,

way that the u·afnn.~ iu di:;pute were granted in a peculiar .. _ ~8~.

• '1'1rn Hon,;n:,..
manuer, aucl that the condition was t.hai they uught be re- itJ,;N'f or
BUlll!,\Y
surned on failure of male heir::;. ·t·.
JJ.\ ..l!ODII.\R
Xow as to the share to which the plaiutiffs a1•0 cutitled, l'.\101\'~ I\·
they rcpreseut pcr1mm; outitled to a lmlf-shurc. 'l'hc Judge 0_\ 1 S d ed.

wa:,;, therefore, wrong in !\warding to the plaiutiffi:! the whoJc

of the 1i:nftrnt, At fir:;t :;ight two-third,- would appear to be
the proper share of the plaintiff.-;, but iu fact they arc entitled
to only half of the wata11.~. We accordingly amend the de-
cree of the lower court by awarding half of the 1!:atans, antl
half of the arrcar::; claimed. The costs of this appeal to be
paid by the uppelluut:,;.

Nu,·. ~5.
BA'1 PRE~LKU 1 \'.\li. ........................... ... Appellant.
BHIK.\.1 KALLIA1.NJI •.••••..••... . .......•.• •.• Be.sponcleul.

Hindu Law-Suit for liestitutio11 of Co11j119ul Rights-Leprosy.

To a suit brought hy a Ili1ulu huslmn<l llbrainst his nifc fol' tlic 1·ebtitu-
tion of conjugal rights, the fact that he is, at the time of such sttit, suffn-
ing from a loathsome disease, such as leprosy, i~ a goo1l defem·c.

THI8 was a 8pecial Appeal from the decision ol' C. G,

Kcmball, Judge of the District of Surat, iu 1~ppeal
:-:iuit No. 61 of 1868, revcrsiug the decree of Kavasji Edalji,
)[uu,;if of ~11rat.
The original ,mit was instituted uy llhika to compel hit1
wife, Biti l'rewki'1rnr, to go aud live with him in his how,e as
hi,; wife.
The defence wa:,; that the plaiutiff for two years had bceu,
aud still was, sutfcri1{g from virulent leprosy awl syphilis.
The }Iuusif threw out the claim, on the ground that it
would, uu<ler the circurnstances, be cruel to compel thl:l wife
1.o live with her hu:,;bau<l.
'l'he District Judge rever~ed the decree of the Munsif, and
remanded the ease for re-trial, for the reasons stated in his
judgment : -

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 :HO BOMBAY HIGH COURT REPORTS.

1868 . " The point for determination ii,;, ·whether the deci:-;ion of
.B.\'I PR}:,1-
KU'VAR the lo,ver court is in accordance with Hindu law and with
?.'.
HIIIK,\'
tho evidence.
K.\LLu':,;J1.
"There seem8 to be no doubt whatever that the plaintiff
is afflicted ,vith leprosy and syphili8-iudeed he doe8 not at•
tempt to deny the fact : so that the only issue to which the
Muusif l:lhould have addressed his consideration was, whe-
ther the diseased state of a husband (Hindu) justifies his
w~fe in refusing to reside with him. 'l'he Munsif appears to
have considered that, under the circumstances, it would be
cruel to order the female defendant to return to her husband,
and, therefore, threw out .the suit ; but this does not appear
to me to be a proper way of adjudicating upon the claim.
'fhe plaintiff is entitled to have it tried on it8 merits, apart
from u.ny question of expediency ; and this can only be douc
by the Court'::! determining the que:,tion whether by the
Hindu law', or the custom of the caste of the parties, a
husband diseased, as the plaintiff is, is debarred from de-
manding that hi:, wife shall live with him. I observe that
the plaintiff prays that his wife may be compelled to ha,·e
connection with him ; but it is beyond the power o( the
Court to grant such a prayer. It may compel a ruan and
wife to live under the same roof, bnt it cannot constrain them
to have intercourse with each other, nor to live together 011
terms of conjugal affection, for reasons which arc obvious."

'fhe defendant preferred a ~pecial Appeal.

'l'hc Appeal was argued before Cot:cH, C.J., aud N.1::\VTON, ,T.
Nanab!tai Hii1·idas, for the appellant :-1'he dcci;-;iou of the
lowei· court is opposed to Hind(1 law : 1 Sti;auge, Hindu
Law, 47; 2 ibi<l. 52, 53, Colebrookc;s remarks; 2 Colebrooke's
Digest 470, Bk. IV., v. 151; Grady 011 ltindu Law 12; and
Manu, Ch. IX.; sl. 78, 79.

D/11'.rajlal J1atlm1'iidas, for tltc i·c:;pond.ent :-The Hindu

ia,v provides for a husLaud leaving his wife, but uot for a
husband being left by hct·: 2 ColclJrooh\ Digest 114, Bk.
IV.; v. 62, and ibid. 426 Bk. IV."· 86.

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 Al'PELLATB CIVIi. JURISDICTION, 211
Coucu, C. J. :-The effect of the plaint being t.o compel _1sr~-.
the defendo.nt to go o.nd live with the plaintiff as his wifC', BA'i Pmoi-
Kc'\·A1c.
the suit is what is ordinarily called for the restitution of i·.
BHIK.\ 1

conjugal rights. It is found, as a matter of fact, that the K.\tr.11'1m.

plaintiff is suffering from leprosy and syphilis, and this is
again found to ho a disease of such a character that the de-
fendant could not live with tho plaintiff without very great
dangC'r to her health. In this casci the parties are Hindus,
and leprosy is regarded by thom 08 most loathsome. The
Judg<' sn~·s : "'l'he Munsif nppears to consider that, undel'
tho circumstances, it would bo cruel to order the fen~ale tle.
fondant to return to lwr husband, and, therefore, threw out
the suit ; but this lloes not appear to me to be a proper way
of acljndicating upon the claim." But we are of opinion that
tho '?vfnm,if took n very sensible view of the matter, since
where thero is crnelty the Court onght not to interfere.
lu tl1<' present case it is clearly admitted that the plaintiff is
afflicted with leprosy, and there is no authority for a suit
being maintained under such circumstances ; and we are of
opinion that it ought not to be allowed. The Judge remanded
the case, drawing a distinction between living as a wifo and
going and living in the house of the husband ; but we think
there is no difference. If a wife goes at all to her husband,
she must go in her position of wife, and uot in that of a
servant in her husband's house. The Judge need not ha1e
gone beyond the plaint, and awarded what was not claimed,
v~., that the wife should go to her husband as a servant.
We, therefore, reverse the decree of the lower appellate
court, and confirm that of the court of first instance, with
cost8. The appellant to hav<' the costs of this appeal,
N r.wTON .• J ., concurred,

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 IlOMBA Y HIGH COURT I:EPORTi..
2~2
I

, -/
,v 1
; .'/
18
Deo.Ms.. KHAXDU MoRESHVAR •.•.••..•......•••.••..• Plai'.nt~ff:
~ SarvJi bin Uomrn.n ...... : ...... ........... ... Dqfenclant.
Wunt of J11risdiction-Plai11t-Ret11r,1 of Plaillt.
Wlwr<· then' is II w1111t of jurisdiction in the court to wbich a plaint iM
r J'l'<'!eutctl to try t~1c .c~nsc of action mrntionell i1~:.,~l!_~,l1_l .~in~~e
'
J
~ --~--........---
1•tt11rned to the plamt1ft.

CASE stated for the opinion of the High Court, by Janar-

·

d1ian Vasudev,ii, ,Judge of the Con1·t of Small Causes at

Pm:iii ;.:-
" The plaintiff sues the defendant for tlw payment of
Rs. 'i4 on a note of hanrl dated the 5th of August :t8G5.
'' 'fhe defendant, who is a Kulambi, a,p pears in person
and pleads payment. HP pnts in no other plea.
"On reading the note at the trial, it appears to han! been
passed, not for any loan, but for arrears of rent of land
which was leased by the plaintiff to the defendant. The
claim, therefore, is one of a class which, under an iute1•pre-
tation by Government on Sec. xxx1., cl. a, of Reg. XVII. of
1827, dated the 26th of Pehmar,v 1829, was, until the passing
of the Bomlmy Act II. of 18HG, cog-nisable h,\' tho :H.evenu<>
Conl't.
"By the Act just referred to, the Civil jurisdiction of the
Revenue Courts bas been transferred to the ordinary Civil
Comts; but as the provision in Sec. G of Act XI. of 1SG;:;,
which excludes suits for rent of land, and other revenue
suits,from the jurisdiction of the Small Cause Courts, has not
been rescinded by that Act, and as the jurisdiction of these
courts does not, extend to all claims of a ch-il nature, but is
limited to certain classf's of claims, this court cannot take
cognisancP of th0 suit in question. It rnni::t. therefore, he
f-truck off the file.
"'l'he plaintiff~ howeyer, asks the plaint, back, in order
that it may be presented in the pl'oper 1·om·t. .\ cj1wsrio11,
thcrPfore, nrise;.:, whet]1er a plaint, afti'l' it h11:-: 0111 ·t• lwo11
arlmitterl on thP rPgi:-:tel', cnn h1• rt'tm·nNl h> iJ11, pa1·ir. '1'111,

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 APPELLATE CIVIL JURISDICTION, 213

plaintiff, in support of his application, cites the case of --;;-1_86_8_._

KHANDU
Oawasji Framji v. Wallace, reported at page 113 of the 1st Mou:savu
tl,
volume of the High Court's Reports. In that case the cause BH!VJI
was struck out for want of jurisdiction, and the plaint was GoR&OJI.
ordered to be returned to the plaintiff. The authority, on
which the order was based, is, however, not given in the
report of the case. Nor do I find any provision in the Civil
Procedure Code authorising such a. procedure. The pro-
vision in that behalf contained in Sec. 14 of Act VIII.
of 1859 is not of general application, but is restricted
to suits for land situate on the borders of the court's local
jurisdiction. That being so, it follows that it is not the I/
intention of the Legislature that in other cases the plaint I/
should be returned to the party, when the cause is struck
out for want of jurisdiction. I am, therefore, of opinion
that in the suit in question the plaint cannot be returned to
the plaintiff."
The case was considered by CoucH, C.J., and GmBs, J.
PER CuRIAM :-The Court is of opinion that it appears to

I
have been the intention of the Legislature that whenever
there is a want of jurisdiction the plaint should be returned,
and in the present case the plaint ought to have been
returned.

V.-28 AC

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214 BOMBAY HIGH COURT REPORTS.

1868. Civil Petition.

Sept.S.
BA'PURA'v KRISHNA •••••••••••••••••••••••• ••• Petitioner.
MA'DHAVRA'v RA'.MRA~v-et al. •........ .• : ... Opponents.
E:ucution of Decree-Limitation-A.et XIV. of 1859, Sees. 19 and 20.
M. and others obtained a decree in the Court of the Agent for the
Sardars. This decree was, in special appeal, confirmed by the High Court.
Held that the period of limitation for the execution of the decree com~
menced to run from the date of the decree (in special appeal) in the High
Court, and not from the date of the decree in the court below.
A decree of the High Court in its appellate jurisdiction, as a decree
made by a court established by Royal Charter, falls under Sec. 19, and
not under Sec. 20, of Act XIV. of 1859, and is, therefore, subject to the
twelve years' limitation.

JN this case Madhavrav Ramrav and others obtained a

decree against the petitioner, Bapurav Krish~a, in the
Court of the A.gent for Sardars in the Dakha~, on the 10th
of July 1863.
This decree was confirmed by the High Court, in Special
Appeal No; 127 of 1864, on the 12th of July 1864.
On the 11th of July 1867 the plaintiffs applied for the
execution of the Agent's decree, but the Acting A.ssi$tant
A.gent, J. Jardine, refused the application, on the ground
that it was barred by the law of limitation. The A.gent, F.
Lloyd, however, ordered the decree to be executed, stating
that the application for execution was within three years
from the date of the High Court's decree, and that · it had
been repeatedly ruled by the High Court at Calcutta that
the period of three years' limitation (A.et XIV. of 1859, Sec.
20) dated from the final judgment: Huree Bu.ngslw Banner-
jee v. Ramessur Bannerjee (a), which in this case was the
High Court's decree of the 12th of July 1864; and that, even
if the application were not presented within three years
from the date of the High Court's decree, the execution
would not be barred, as it had been ruled that decrees passed
by the High Court on the Appellate side were not affected by
A.et XIV. of 1859, Sec. 20, inasmuch as, under Sec. 19 of
that A.et, such decrees could be executed at any time within
(a) G Cale., W. Rep., Mis. R. 38,

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 APPELLATE Cl'\llL JURISDICTION. 215

twelve years from the date thereof: Kishen Kinkur Gliose 1868.
•• .:1 h B od V
anu, ot ers v. ur a .n.ant Roy and anotlwr (b). Thereupon KRISHNA BA'PUJ&A"V

Bapurav
.
presented a petition to the High Court pra.Vlng
,I -
that .111,\
" ,DHA.VRA'V
ti.

the Agent's order should be set a.side, on the grounds (1) that BA'KR.t.'v
he (the Agent) had ordered the execution of a time-expired et al.
decree; (2) that he had confounded the periods of limitation
applicable to the execution of decrees of the High Court and
of the subordinate courts; and (3) that the execution sought
was the execution of the Agent's decree, and not that of the
High Court.
The case was heard this day before NEWTON and TucKER,
JJ.
Vislwanath Naraya'J, Maru;llik for the petitioner.
Dhirajlal Mathu·rad.as for the opponents.
NEWTON, J. :-If the operative part of the High Court's
decree is sought to be executed, the twelve years' limitation
will apply to it, under Sec. 19 of Act XIV. of 1859; and I am
of opinion that when we confirm the lower court's decree, it
is embodied in ours. In this case I hold that the applica-
tion was substantially to execute the substantial part of the
High Court's decree. I agree with the rulings of the High
Court of Calcutta, as stated by the Agent, and would not,
therefore, interfere.
TucoR, J. :-I concur.
Petition re;jected.
(b) 8 Cale. W. Rep., Civ. R. 470.

Oivil Petition.
NA'GA'PP.A.' bin HuLOAPPA' ••• ............ Applicant. Nov. l!.
Practice-E:ctraordinary A.pplicationB-Copy of Orders passed
by Lower Courts.
All applications to the High Court in the exercise of its extraordinary
Civil Jurisdiction should be accompanied by a copy or the orders of the
lower courts made in respect of the matter of such application, and should
be presented within the time allowed for the presentation of special ap-
peals.

I N this case the petitioner applied to the Munsif of Mude-

bihal, in the Ka.ladghi District, to obtain a division of

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 216 BOMBAY HIGH COURT REPOR'l'S,

-~1~868_._ certain lands in execution of a decree, but his application

In re
NA'oA.'PPA' was refused, on the ground that the Collector objected to the
HULOAPPA', division sought.
In appeal the Judge, A. R. Grant, confirmed the Munsif's
decree.
Thereupon the petitioner presented the present applica-
tion to the High Court for the exercise of its extraordinary
jurisdiction, under cl. 2, Sec. v. of Reg. II. of 1827. The
application was not accompanied. by a copy of the orders
passed by the lower courts, but only by a translation of the
Judge's order; the Registrar, therefore, objected to receive it.
It was brought before the Court (NEWTON and TucKER, JJ.).
Nanabhai Haridas for the petitioner.
NEW'l'ON, J. :-Sec. 38 of Act XXIII. of 1861 requires that
the procedure prescribed by Act VIII. of 1859 should be
followed in all miscellaneous cases and proceedings. Vve,
therefore, hold that all applications for the exercise of the
Court's extraordinary jurisdiction should be accompanied by
a copy of the orders of the lower courts, and also that such
applications should be presented within the same period in
which special appeals are required to be presented. In the
present case a copy of the Munsif's order is not produced,
nor is a copy of the order, which the Judge is required to
record in English, produced, but only a translation in Cana.-
rese of the latter order; a translation of such an order, how-
ever, cannot be received as an accompaniment required by
the Code of Civil Procedure.
At the request of the petitioner's vakil, we allow the ap-
plication to be withdrawn, in order that he may present it
again with the necessary accompaniments.

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 APPELLATE CIVIL JUB.JSDICTION. 217

Special Appeal No. 650 of 18G7.

1868.
JAGANN.A.'TH VITHAL ........................ Appellant. Oct. 12.
ArA'JI VISHNU: .......................... ••• Respondent.

Hiiidu Law-Widow-Immoveable Property-Mortgage-Gift of the

Equity of Redemption-Donee-Third Parties-Reg. XVIII. of 1827,
Sec. xiv., cl. 1.
Jn a suit for the redemption of immoveable property brought by the
plaintiff, as donee from a Hindu widow of the equity of redemption, the
plaintiff's right to the property as reversioner cannot be inquired into, not-
withstanding an allegation in the plaint that he was a near relative of the
husband of the donor.
A donee of the grantor is a third party within the meaning of Reg-
XVIII. of 1827, Sec. 14, cl. l, and, therefore, as against him a deed of
sale of the property given in gift is only Yalid from the date on which it
was stamped.
Precedents on this point questioned but followed.
Where a Hindu widow mortgaged immoveable property to one person,
and afterwards gave it in gift to another :
Held that the deed of gift did not convey to the donee the widow's
equity of reilemption.

THIS was a Special Appeal from the decision of J. R.

Naylor, Acting Senior Assistant Judge at Ratnagir1, in
Appeal Suit No. 203 of 1867, confirming the decree of Amrit
Shripat, Munsif of Dapuli.
The Special Appeal was argued before TucKER and GrnBs,
JJ.
Dhirajlal Mathuritdits for the special appellant.
Slu'mtitram, Naritya'f}, for the special respondent.
The facts sufficiently_ appear from the following judg-
ments :-
TUCKER, J. :-This suit was brought by the plaintiff to
Eject the defendant from the possession of a piece of land,
and of a stone platform raised upon it, on the ground that
the said land and the superincumbent building had been
conveyed to him by a deed of gift from its former owner,
the widow of his cousin, Vasudev Hari, on the understand-
ing that he should perform her funeral ceremonies.

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 218 BOMBAY HIGH COUR'l' REPORTS,

1868. The defendant answered that the said widow had first
JAGANNKTH
VtTH.A.L mortgaged and then sold to him the property in dispute;
APA'J;·visH- and that ahe could not, therefore, alienate it to any one else.
NU.
The Munsif held that the plaintiff could have acquired no
legal right under the alleged deed of gift to him, as a Hindu
widow was not competent to alienate immoveable property.
He cited as authority Special Appeal No. 303 of 1863, 1
Bom. H. C. Rep, 56 (a).
The Senior Assistant Judge at Ratnagiri affirmed the
Munsif's decree.
In special appeal it has been contended by Mr. Dhirajlal
that the widow being alive could assign away her life.
interest in the property, and that the assignee of her equity
of redemption could sue to redeem any mortgage which she
might have previously made of her life-interest. That the
assignment by the widow to the plaintiff in this instance was
valid, and made for an object, namely, the performance of
her funeral ceremonies, which would make the conveyance
a good one by Hindu Law. Further, that the plaintiff, be-
ing reversioner, could sue to set aside the illegal sale by the
widow to the defendant, and that, the plaintiff being a third
party, the deed of sale to the defendant would only be valid
against the plaintiff, under Reg. XVIII. of 1827, Sec. 14,
from the date when it was stamped, which was subsequent
to the deed of gift to the plaintiff.

Mr. Shantaram, for the special respondent, has argued, on

the other hand, that, allowing that the deed to the defend-
ant was a conveyance of the widow's life-interest only, and
that it would not be binding against the reversioners, yet
that it was a sufficient answer to the plaintiff's claim under
the subsequent deed of gift : for the widow, having conveyed
all her interest to the defendant, had nothing left which she
could convey to the plaintiff, and consequently the deed, on
which alone the plaintiff set up a right, was altogether
nugatory.
(a) Bcchar Bha!Jf'an v. Bai Lak,hmi.

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 APPELLATE CIVIL JURISDICTION, .210

The facts in this ca.se may be stated very shortly. On a -=---1868_.,._

date which corresponds with the 9th of Janua'l'V "J
A.D. 1841, JAoANNA'TH
VITHA.L
the widow executed a deed of mortgage to the defendant v.
APA' JI VIS.'I·
(exhibit No. 7) with a provision of conditional sale, if the Nu.
debt with interest were not liquidated within twenty-five
years, the term fixed for the duration of the mortgage. Under
this deed, in conformity with the decision of this Court in
the case of R&mji v. Ohinto (b), she would be at liberty
to redeem, even though the term fixed for the payment of
the debt had expired. She afterwards, on a date corre-
sponding with the 11 th of April 1854, executed an absolute
deed of sale in favour of the defendant, the consideration
for which, as stated in the deed (exhibit No. 8), was an ad-
ditional advance of two hundred rupees for religious pur-
poses. This deed was not stamped on the date of execution,
but the requisite stamp was subsequently affixed, on the 4th
of December 1865. On the 28th of October 1865, she made
over the same property in gift to the plaintiff, on condition
that he should perform her funeral ceremonies.
Three questions then arise for determination in this spe-
cial appeal :-
fat-Can the plaintiff's alleged title as reversioner be
inquired into in this suit ?
2ndly-From what date did the deed of sale, on which the
defendant relies, bel}ome operative against the plaintiff?
3rdly-Can the deed of gift, on which the plaintiff has sued,
be treated as a conveyance to him of the .widow's equity of
redemption.
On the first question I consider that the Court cannot
now inquire whether th~ plaintiff possesses, independently of
tho widow, any reversionary rights in the land· in dispute.
In the plaint he set up no such right, though he said he
was a near relative of the widow's deceased husband, nor
did he claim to have the deed of sale to the defendant set
aside, on the ground that it was prejudicial to his interest
as next heir. If he be, in reality, the heir to the land, on
(b) 1 Bom. 11. C. Rep. 199.

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 220 BOMBAY man COURT REPORTS.

~-1_86_8_._ the widow's decease, it wouid have been competent to him

JAGANNA1TH '
VITHAL to have instituted a suit during the widow's lifetime for a
ArA'JtVisH· declaration of his rights, and to get the alienation set aside;
Nu, but his present action is not of this character, bnt is only a
suit to redeem in consequence of the deed of gift executed
to him by the widow. I am of opinion, therefore, that in
the present special appeal no decision can be come to as to
his reversionary rights.
The solution of the second question depends on the inter-
pretation which is to be placed on Reg. XVIII. of 1827,
Sec. xiv., cl. 1, which is to the effect that" a bond or other ~
writing stamped after its original date, if executed within
the zillas subordinate to the Presidency of Bombay, shall,
so far as it is affected by the stamp, become valid against
the grantor from its original date, but as to the rights of
third pa1·ties the date of its being stamped shall be held to
be its real date." The term "third parties" was for a long
series of years held by the late Court of f;iadr Adalat to in-
clude the heirs and representatives, as well as the assignees
of a grantor of a written instrument which was stamped
after the date of its execution. In the case of Rughia v.
Dhurma Jhuttoo (c) the· former decisions with respect to
heirs and legal representatives were overruled, and persons
who stood in that relation to the grantor of a post-stamped
document were held by the High Court of Bombay to stand
in the same position as the grantor himself, and to be bound
by tho instrument from the original date of execution.
Since that decision, however, there have been several unre-
ported rulings of this Court which declare that " donees,"
'' vendees," and other " assignees" of the granter of a post-
stamped writing, come within the expression" third parties,"
as used in the Regulation. These decisions are S. A.No. 619
of 1863, by Arnould, Acting C. J., and Newton, J., on the
8th of July 1864; S. A. No. 367 of 1865, by Newton and
Janardhan, JJ., on the 4th of October 1865; S. A. No. 439
of 1867, by Couch, C.J., and Newton, J., on the 18th of
September 1867; and they must be held to have determined

(c) 1 Bom. H. C. Rep. 52.

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 APPELLATE CTVIL JURISDIC'TJON, 221
the point. If the matter had been "1·c.i infrgm," I Ahonld 1808.
-J.\-GANN.\'n,-
have entertained doubts whether the Legisluturo had in- VnK.\L

tended to include within the designation "third parties" the 1••

APA'Jf VtBK·
subsequent assignees, either by law or deed, of the grantor su.
of a post-stamped writing : for I can hardly suppose> that
where it was declared that a deed of thiR description was to
be binding against the gtantor from its original date, it was
intended to give him n.n opportunity of escaping from this
liability by a snbseqnent assignment of tJw rights previously
conveyed invay. 'l'his would lmvP- been 11. direct encourago-
mont to fraud, which I cannot suppose to have been within
the conwmplntion of the framers of the Regulation ; and I
should, therefore, have consi!lered it reasonable to conclude
that by the ex:pression " third parties" persons wholly dis.
tinct from the grantor wero meant, :i.nd not persons whoso
rights originakd in nets of his subsequent to the original
uato of execution of 11. post-stamped document. It is, how-
ever, now too la.to to raiso the question. The construction
of this particular clause of tlrn Stamp Regulation of 1827
must he treated as settled, and, under the rulings I ha,e
cited, the deed of sale• by the widow to the c1efendant
would only be va.lid against the plaintiff from the date of the
stamp, i.e., from tlw 4th of' December 186.j, and conse-
quently on tho 28th of October 1865, the date of the alleged
dc>ed of gift to the plaintiff, the widow had an equity of
redemption, which she could have enforced during her life.
time, ancl which she coulcl have conveyed to tho plaintiff.
Can the deed of gift (exhibit No. 10) be treated by this
Court as a. mere conveyance of the widow's equity of re-
demption to the plaintiff? I think that it cannot. It pur-
ports to convey the land 11.bsolutely to the plaintiff, and not
to bo an assignment of any limited interest which vested in
the widow. By the Hind{1 law a widow is prohihited from
alienating immoveable property inheriteci from her hushand,
except for special purposes, and with the consent of his noxt
heirs; and it appears to me that it would he productive of
mischief, if «leech, which are made in defiance of tl10 law~
were hc>hl to.be gooil for any pmposc whatsoever. Tn the
Y.-2!1 AC

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 HOllJUY HlcJH COCRT REPOl:T:;.

__ !.._868. ____ case cited by the Munsif (Bcchar Bhagcan v. Bai La.f.sltm{,
J,~~:;;-r,~rn 8. A. No. 303 of 1863) (d), a deed of gift executed by a
:·· ..
, \ PAJI , !SIi•
widow, of immoveable and moveable property inherited frolll
~r. her husband, was set aside so far as it affected to deal with
the immoveable property, without any reservation; and I
· think that this precedent should be followed in the present
case also. I would, therefore, affirm the decrees of the lo,ver
courts, and direct that the special appellant -bear all the
costs of the special appeal.
GIBBS, J. -:I concur in the conclusion at which my
brother Tucker has arrived. We adjourned this case mainly
to consider whether or not the plaintiff, the donee under
the gift of the 28t11 of October 1865, is a" third party"
within the meaning of Reg. XVIII. of 1827, Sec. xiv., cl. 1,
and ·as regards the previous sale by the widow on the 11 th
of April 1854, which was executed on plain paper, but sub-
sequently stamped on the 4th of December 1865, i.e., after
the date on which the deed of gift was executed. 1Iy
learned colleague having some doubts whether a "donee" did
come within the class of persons whom the Regulation in-
tends should be considered "third parties," has led me to
consider the mattm· very carefully, and, after a very full con-
sideration of the point, I see no reason for holding ditlerently
to the present Chief Justice and Newton, J., in S. A. No.
439 of 1867, in which they held a "donee" to come within
the term " third party."
The words of the Regulation are of the broadest nature.
After laying down that a post-stamped bond "becomes valid"
from the original date a;; against the grantor, it goes on to
say, "but as to the rights of third parties the date of its
being stamped shall be held to be its real date."
It is to bu noticed that the only parties alluded to m
the Regulation arc the actual parties to the document, and
"third parties" making it a matter of little doubt as to
whom the latter phrase applies, namely, that it must be read
in. its natural and usual sense, and so include all persou:1
(d) 1 Bom. ll. C. Rep. 56.

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 .\Pl'ELLA'n! CIVIL JURlSDJC'l'JON, 223

not parties to tho deed; aud i;uch tho late ~idr DivaiJi ___1~_:_
. . J \O!.SX\''fH
Adalat always held, eveu to the extent that the personal ' vr;H;L
heir of the deceased gra.ntor of the deed is a third party. ArA'Jtvi~H·

This scrie::i of ruliugs of the ~aclr Divar)i Adulat was

broken through in the caso of RwJhin v. Dhurina, in which
a. full Court, compoi,;ed of Forbes, Erskine, Newton, and
W estropp, JJ ., held that "persoual representative::;, or other
persous claiming as kindred of a dccea::;ed, occupy, for the
purposes of the Regulation, tho same position which the
deceased would have occupied, hn.d he bocu alive," i.e., thai
such arc 1,ut "third parties." But it has beeu upheld in the
following uureported cases :-8. A. No. li10 of 181:io, in which
Arnoul<l, Acting U. J., and Newton, J., held that" vcndce:;''
arc "third parties;" H. A. No. :J(;7 of lSti;,, in which New-
ton and Janurdhan, JJ., held that mortgagees are "third
parties," an<l in the cai,ie quoted above (ti. A. Ku. tJ9 of
1867). llut in uone of these three last-l{uotcd cases were
any rcasom; recorded for the judgment.
The opiuion I have formed, therefore, is in accordance
with the rulings of the High Court, but I will add 111y own
reasons for coming to this conclusion. As above stated, t4c
words of the Regulation are sufficiently wide to admit the
ruling; and I see no ground on which to suppoM the framc1's
intended any restricted meaning to the words "thi1•d pai'-
ties." The main argument for a restriction is the door to
fraud. I admit that this is to i,;ome extent plausible. A and
B contract to sell and buy an estate, but, to save stamp duty,
execute the conveyance on plain paper: both know their lia-
bility, their want of title under such a conveyance, and both
must be considered as agreeing to run any risks arising from
such an illegal transfer. A soon after.gives or sells the estate
to C by a regularly executed deed on stamped paper ; in
doing this he may commit a fraud on B; but B, by having
infringed tho law in taking his conveyance on unstamped
paper, cannot complain as against C, who may be an entirely
innocent party. The amount of the penalty, namely, twenty
times the original stamp, appears to have been fixed at so
high a rate to· deter people from infringing the law; and

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 224 DOMUAY HIGH COURT REPORTS.

~-18_68_.-,-- nlthough it permits the deed so post-stamped to be good

J AGANNA''l'H
VnHAL
I!.
against the grantor 1rom t he d ate of its
• •
execution, it seems
v. ·
AP..l'HVISH·
to me that all B can do is to try and get back, as against
NG. A, either the property sold or his purchase-money. Bruns
all these risks by consenting, in the first place, to infringe the
law; and I think he is very properly left fo his remedy, be
it what it may, against A alone. The Civil Courts are Courts
of Equity, and it seems to me that in asking equity a!'I
against C, B does not come into court with clean hands, and
roust not he allowed to succeed.
But there is another question arising in this case, and on
which I think the decision must rest, and that is whether
under the plaintiff's deed of gift the equity of redemption
belonging to the widow can pass. 'l'he lower courts have
hel<l that a widow cannot alienate immoveable property,
and undoubtedly she, having only a life estate in it, cnn-
not alienate it in perpetuity; but it has been held that
the widow can dispose of her life-interest in immoveablP
prop<.>rty; nnd such an effect has been given, I tlrink, to
deeds which purported to pass the entire estate, and it is
therefore, a question whether, under this deed of gift, th£'
equity of redemption, which the widow undoubtedly pos-
sessed, might .not be allowed to pass; but, after a careful
considel·ation of the matter, I lmve arrived at the conclusion
that it should not. By this Court's rulings, whatever may
have been the view of the mortgagee in this qase, the widow's
mortgage can only be held to bo a mortgage of her Jife-
interest, antl the equity of redemption is limited to that also.
I see, therefore, only a very small interest involved in this
suit, and a vast amount of litigation in store if we decide
this last point in the plaintiff's favour. I sec no reason,
therefore, why in this case the Hind(, law should not pre-
vail in its integrity, but, on the contrary, very many reasons
why it should. Under these circumstances, I agree to affirm
the decree of the court below.
Del'f'ee a;firmed.

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 CllOWN CASES
DECIDED IN THE

ORIGINAL AND APPELLATE JURISDICTIONS

ol' THE

HIGH COURT OF BOMBAY·

REa. v. NA'RA'YAN SuNDAR. 1808.

J'an. 10.
Competent Witne,a-Eoidence-Gaming-Search Warrant-
4ct Ill. of 1866 (Bombay).
A penon apprehended by the Police and brought before the Magistrate
with the accused i1, though not discharged by the Magistrate, a competent
witness against the accused, provided he be not charged along with the
accused.
Conviction of keeping a common gaming-house upheld, where portion
of the evidence against the accused consisted of instruments of gaming
found in such house, which had been entered in pursuance of a search
warrant illegally issued, there being sufficient evidence aliunde to justify
the conviction.
THE accused was convicted, by Hasan Muhammad Farid,
Magistrate F. P. in the Thana District, of having kept
a common gaming-house an°d of gaming, and sentenced,
under Sees. 3 and 4 of Act III. of 1866 (Bombay), to pay a
fine of Rs. 50.
The caso was referred by R. H. Pinhey, Session Judge of
Thana, under Sec. 434 of the Criminal Procedure Code, for
the following reasons : -
" The next objection taken for the applicant is that the
Magistrate issued his search warrant in this case, ':"ithout
having any sworn information before him. This objection
appears to be fatal. * * *
" The Magistrate issued his search warrant on receiving a
written report only from the Chief Constable at Thana.
* * * " Another objection has been raised again;t the
Magistrate's proceedings, namely, that he admitted illegal
evidence for the prosecution in examining Bhaskar Sundm·
V,-1 CC

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 2 BOMBAY HIGH COURT REPORTS,

-~1~8_68_._ (No. 2) as a witness. Bhaskar Sundar was, as appears

R!~· from his deposition, and from the note on the back of the
NA'JU.'YAN
SUNDAJI.,
Macnstrat.e's
o-
warrant, one of the persons apprehended and
brought before the Magistrate for trial. He was not dis-
charged, for the Magistrate at the end of the proceedings
directed his prosecution ; and, having been brought up as an
accused person before the Magistrate, was not competent as
a witness. Sec. 9 of Bombay Act Ill. of 1866 does not
apply to him."
PER Cu&IAM: (CoucH,C.J.,andNEWTON, J.):-With regard
to the second objection, we hold that the witness, Bhaskar
Sundar, was not, at the time he was examined, charged with
the accused and upon his trial, although he had been ap-
prehended, and that he was by law a competent witness.

With regard to the first objection, we observe that al-

though, under Sec. 5 of Act Ill. of 1866, a complaint
on oath was necessary in order to authorise the issuing of
the warrant, yet that the evidence of Bhaskar Sundar, if
believed (and there was evidence in ~orroboration of it), was
sufficient evidence from which the Magistrate might find the
accused guilty of the offence charged, It was not necessary
to make use of the finding of the instruments of gaming
in the house as evidence that the house was used as a com-
mon gaming-house, and that the persons were present
there for the purpose of gaming. If it had been necessary
to resort to Sec. 6, the objection taken might have been well
founded; but that not being the case, the want of a com-
plaint on oath before the issuing of the search warrant does
not vitiate the conviction.
NOTE.-" Every person who shall have been concerned in any gaming
contrary to this Act, and who shall be examined as a witness by or
before a Magistrate on the trial of any charge against the owner, keeper,
or occupier, or other person having the care or management, of any
common ~ming-house, touching such gaming, and who upon such ex-
amination shall make true and faithful discovery, to the best of his
ftnowledge, of all things as to which he shall be so examined, and who
shall thereupon receive from the said_}fagistrate a certificate in writing
to that eff'ect, shall be freed from all prosecutions under this Act forany-
thing tlonc before that time in respect of ~ucb gaming." Sec. 9 of Act
Ill of lfl66 (Bombay).

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 CROWN CASES. 3

Rr.a. v. MunA'R TRIKAM. 1868.

Session Ji,dgt-Power to q11nsh Stnlence of A.ssiJtant Session J11,dgt- _J_n._n·- 2-0-· -
Cognate Offt!tlct.
Held that a Session Judge has no power to quash a sentence passed
by on Assistant Session Judge an1l by him submitted for confirmation,
and direct new sentences to be passed, even supposing the sentence of
the Assistant Seeaion Judge to be illegal.
Held, also, when more than one offence is proved, it is not proper to
convict only of one and t! ncquit of the other, although the offences may
be cognate.
Rtg. v. Vinugak Trimbal: (2 Bom. H. C. Rep. 414) followed.

THE prisoner was convicted, by S. H. Phillpotts, Acting

Senior Assistant Session Judge nt Broach, of the of-
fences of (1) cheating by personation, under Sec. 419; (2)
forgery for the purpose of cheating, under Sec. 468; and (3)
using as genuine a forged document knowing it to be such :
under Sec. 471 of the Indian Penal Code; and sentenced (in
one aggregate sentence) to rigorous imprisonment for five
yenrs, subject to the confirmation of the Session Judge of
Surat.
The case having been sent up for confirmation, the Session
Judge, C. G. Kembn.11, on the 30th of October, recorded the
following judgrnent : - •
"I observe that the Assistant Session Judge has con-
victed the prisoner of the three offences with which he was
separately charged, and has then passed one sentence in
respect of all three convictions. The finding not being al.
ternative, such a sentence was manifestly illegal. I, there-
fore, without going into the merits of the case, quash the
sentence submitted for confirmation, and direct the lower
court to pass legal sentences. I further direct that if, after
this order has been carried out, no one sentence exceeds the
term of three years, these proceedings be re-submitted to
this court for the purpose of review.''
Upon this the Acting Senior Assistant Session Judge
passed the following sentences on the prisoner:-
I. Under Sec. 419, rigorous imprisonment for three
years.

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4 BOMBAY HIGH COURT REPORTS.

18GB. II. Under Sec. 468, rigorous imprisonment for one yeaI',
J:lEO,
v. to commence at the expiration of the above.
:MunA'R
TRIKAlf, III. Under Sec. 4 71, rigorous imprisonment for one year,
to commence at the expiration of the above,
In review [on the 12th of December 1867] the Session
Judge at Surat considered that the case should be referred for
the orders of the High Court, for the following reasons : -
•
" The charges appear to me to be so vague as to be really
unintelligible. From the evidence for the prosecution, it
appears that the complainant was a partner in a firm at
Broach, with which firm certain money& belonging to two
persons, Virchand Devchand_and Dipchand Tarachand, were
lodged, and these moneys, at several different times in dif-
ferent sums, the accused succeeded in getting possession of,
by producing forged letters. The prisoner, Murar, in doing
so, personated some other person. On these facts two courses
were open to the committing Magistrate, or afterwards to
the Sessions Court-either to take each separate item of
money obtained by fraud, and to frame thereon a distinct
charge or a distinct set of alternative charges, or to select
one ~m for the purpose of prosecuting the accused and
abandon all the rest. But it appears to me wrong, where
the evidence disclosed the commission, on different dates,
· of offences which might or might not be made the subject
of alternative charges, to charge the accused generally with
having committed a number of offences distinctly provided
for in the Code.
" It is difficult to understand the course pursued, but I ap-
prehend the meaning of the Senior Assistant Session Judge
to be this-that, ta.king all the distinct acts of forgery as
one forgery, and so on, if a man fraudulently uses a document
which he has forged, and, in order to the fraudulent use, per-
sonates some third person, he has committed three distinct
offences, and should be convicted of them. With regard to
the incorrectness of the manner of charging the accused I
have nothing to do, but the point with which I have to deal,
and in re~pect of which I deem a referenC'e to the High

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 CROWN CAS'ES.

Court necessary, relates to the rreparn.te convictions recorded -~1=8fo8_,_._

by the Senior Assistant Session Judge, which, in my opinion, R~.~·
were wrong. In my opinion, n man who offends ns above MirKA'K
TRIKA:11,
supposed docs not commit three offences, for each of which
ho is liable to punishment, but one entire offence. The fraud
of using the forged instrument could not be perpetrated
without first committing the forgery, and the cheating by
personation was, after all, only pa.rt of the other offences.
It seems to me that the offences arc cognate, and that the
only course was, if all these were held proved, to convict of
the most serious offence, and to acquit of the others."

PER CuRIAll (Coucrr, C.J., and NEWTON, J.) :-The Court

is of opinion that tho order of the Session Judge of the
30th of October 1867 must be annulled. As the punishment
was not in excess of that which might have been awarded
under one of the heads of the charge upon which the ac-
cused was found guilty, and was within the powers of
the Acting Senior Assistant Session Judge, the sentence
originally passed by him was not illegal, and ought not to
lia.vo been quashed (see Reg. v. Vinayal. T1·imbak (a); nor
had the Session Judge, in the opinion of the High Court,
power to quash the sentence, and direct the lower court to
pass new sentences, even supposing such sentence to have
been illegal.
The Court considers it necessary further to observe, upon
the proceedings of the Session Judge of the 12th of Decem-
ber 1867, that, where more than one offence is proved, it is
not proper to convict of one only, and to acquit of the other,
although the offences may be cognate.
Sessum Judge's order a.mwlled.
(a) 2 Born. H. C. Rep. 414.

.
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 6 BOMBAY HIGH COURT REPORTS,

1868. REG, v. KA'sAMJI valad HrnINJI MHASKAR,

Jan. 28.
jurisdiction-Act XIX. of 1838, Sec. 13-&gistry.

Held that a M~trate F. P. alone has jurisdiction to convict of

an olfence under Sec, 13 of Act XIX. of 1838.

THE accused in this case was convicted, by a Subordinate

Magistrate of the 2nd Class at Ratnagiri, "of using a
boat without number and certificate of registry," and :was
sentenced, under Sec. 13 of Act XIX. of 1838, to pay a fine
of Rs. 10, to be recovered, in default of payment, by the sale
of the boat and its contents.
Upon a review of the Monthly Criminal Return of the
Magistrate of the Ra.tnagiri District for the month of August
1867, the High Court sent for the papers and proceedings
to determine whether the Subordinate Magistrate had juris- .
diction to try the case.
PER CuRIAlt: (Coucn, C. J., and NEWTON, J.): -A Full
Power Magistrate alone has jurisdiction in such cases, since
the fines, under Sec. 13 of Act XIX. of 1838, a.re to be re-
covered on conviction before any Ma9ist1·af,e, Justice of the
Peace, or person el1m'cising the powers of a Magi..'ltmte, as pro-
"vided in the said section; and Sec. 4 of Act II. of 1839, since
repealed, provided that the term "Magistrate" should extend
to all "pe1·sons lawfully ea:ercising the powers of a Magis-
trale." The trying Magistrate in this case, who had merely
the powers of a Subordinate Magistrate of the 2nd Class,
had, therefore, no jurisdiction to try the case; and, conse-
quently, we must annul the conviction and sentence.
OonvieUon and sentence annull.ed .

•
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 CROWN CAl!ES. 7

REG. v. RAVLOJIRA'v bin HANMANTRA'v. 1868.

Jan. 80.
Committal to the Court of Ses,ion-lndian Registration A.et, 1866, .
sec,. 91 and 9o-.4ct VII. of 1854, Sec. 54.

Held that the committal of the accused to the Court of Session by a

Magistrate for trial on a charge under Sec. 91 of the Indian Registration
Act (XX. of 1866) wu legal.
The Session Court wu accordingly directed to try the accused.

CASE referred for the orders of the High Court by C. F.

Ehaw, Session Juage ofDharwar,with thefollowing re-
marks:-
" The Court has perused the proceedings of the Magis-
trate F. P. in the case of Ravlojirav bin Hanmantrav, com-
mitted for trial before the Court of Sessions on a charge
preferred under Sec. 91 of Act XX. ofl866 ; and it is of opin-
ion that the commitment to the Sessions Court is illegal.
"Sec. 95 of the Registration Act rnns-'All prosecutions
under this Act shall be instituted before a person exer-
cising the powers of a Magistrate, or Subordinate Magis-
trate of the 1st Class;' and the case of Moroba Narayaf!, (a),
charged with embezzlement under the Post Office Act, No.
XVII. of 1854, Sec. 54, is an authority for the Court of
Sessions not interfering in charges of this description.
"The Honorable the Judges in Moroba's case ruled that
'there was no Act or Regulation which prevents the Magis-
trate's jurisdiction being extended;' and since judgment
was delivered in that case, Act XXV. of 1861, Sec. 22, has
extended the jurisdiction of the Magistrate; and, therefore,
there is no reason why a Magistrate should not exercise the
powers authorised by Sec. 91 of Act XX. of 1866.
"The Court cannot but think that the alteration of the
procedure in relation to false statements before Registration
Officers, as laid down by Sec. 70 of Act XVI. of 1864, was.
deliberately effected ; and tho different course prescribed by
Sec. 95 of Act XX. of 1866 must, therefore, be followed.
(a) 7 Morris 251-258.

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 8 BOMBAY HIGH COURT REPORTS.

1868. "It is true that Sec. 54 of Act XVII. of 1854 uses the·
R!.
0• words ' punished on conviction;' but then Sec. 46 of the
HRAvLoJrn.1.'y Parsi Matrimonial Act (XV. of 1865) limits the powers of a
ANMANTRA V.
Magistrate ; and if it had been the intention of the ;Legisla-
ture to authorise the committal of offenders to the Court of
Sessions for trial for offences under the Registration Act,
there was no reason why such intention should not have
been expressed in Sec. 95 of Act XX. of 1866.
"For which reasons, the proceedings of the Magistrate
F. P. will be submitted to the High Court, under Sec. 434 of
the Code of Criminal Procedure, in order that the commit-
ment of Ravlojirav may be quashed, and the Magistrate F.P.
be directed to dispose of the case according to law."
PER CuRIAM (Coucn, C.J., and NEWTON, J.) :-The words
in Sec. 95 of A.et XX. of 1866 are "prosecutions shall be
instituted;" whereas the words in Sec. 54 of Act XVII. of
1854 are " conviction before a Magistrate :" and the case
quoted by the Session Judge is not applicable. The com-
mitment of the case appears to us legal, and the Session
Judge should try the case.

Feb. 4.
REG. v. UMTHA' RuGNA'TH.

Appeal-,'Wagistrate of District-Magistrate F. P.-Broach.

Held that the power conferred upon the Magistrate F. P. at Broa.<'h to

hear appeals does not exclude the jurisdiction which the Magistrate. of
the District has by law, and that the proceedings in any case, in which
a prisoner has appealed from the decision of a Subordinate Magistrate
to the District Magistrate, must be forwarded to the latter.

JN this case the prisoner was convicted and sentenced to

two months' rigorous imprisonment by U'medram Ran-
cho<Jdas, 1st Class Subordinate Magistrate at Broach.
The prisoner preferred an appeal to T. C. Hope, Magis-
trate of the District, who called upon the Magistrate F. P.
(C. M. Hogg) at Broach to forward the proceedings to him;
but the Magistrate F. P. objected to flll'nish the original

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 CROWN CASES.

proceedings, on the ground that he (the Magistrate F. P.) _..,,,1888-·__

was duly invested with the power to hear appeals. 6
• R:.
Una•'
The papers and correspondence in this case were referred Rua1u 'Ta.
for the orders of the High Court.
PER Cu&IA.1[ (CoucH, C. J., and NEWTON, J.) :-The power
conferred upon the Magistrate F. P. at Broach to hear
appeals, does not exclude the jurisdiction which the Magis-
trate of the District has by law. The proceedings in any
case, in which the appeal is made to the Magistrate of the
District from the decision of a Magistrate subordinate to
him, must be forwarded to him.

REG. v. SHEK ALI' valad FAKI'R MUHAMMAD • Feb,"·

.ifltn'ation of Charge qftn' Vn'dict-Trial by J1'ry-Crim. Proc. Code,

&c. 244.

On a trial by jury the Session Judge hu no power to alter the charge

after the delivery of the verdict.

THE prisoner was tried by jury before F. Lloyd, Session

Judge at Puna, on a charge, framed under Sec. 240 of
the Indian Penal Code, of "delivering counterfeit Queen's
coin possessed with the knowledge that it was counterfeit."
The jury returned a verdict of Not Guilty.
The Session Judge then caus~d a charge, under Sec. 241
of the Indian Penal Code, to be framed. The accused's
vakH objected to this being done, on the ground that, after
the delivery of the verdict of the jury, it was not competent
to the Court to call on the accused to plead to a fresh charge.
The assessors found the accused guilty under Sec. 241,
and the Court, concurring with them, sentenced the accused
to six months' rigorous imprisonment and a fine of Rs. 100,
or, in default of payment, to further rigorous imprisonment
for one month.
The case was referred by the Judge to the High Court,
with a view to ascertain whether the above procedure was
inegal, and whether, under Sec. 244 of the Criminal Proce•
y.-2 CC

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 BOMBAY HIGH COURT REPORTS.
10
1868 dure Code, be had power to alter the ·charge after the de-
--=--·
Rzo.
- livery of the verdict.
11,
San A:Lf. PER Cua1AM (Coucu, C.J., and NEWTON, J.) :-The Court
reverses the conviction and sentence, on the ground that on a
rial by jury the Session Judge has no power to alter the
charge after the delivery of the verdict.
Conviction and sentence reversed.
NoTE.-Sec. 244 :-" It shall be competent to any Court before which
a trial is held, at any s~e of the trial, to ameml or alter the charge."

. REG. v. MA'VJJ DAYA1 L.

Feb. 4.
REG. v. KA'LJDAS KEVAL.

Municipal Commissioners-Jurisdiction-Act XXVI. of 1850.

The Managing Committee of Municipal Commissioners appointed under
Act XXVI. of 1850 have no power to try and convict persona for alleged
breaches of rules made in pursuance of that Act.
The power to inflict fines for such offences is, by Sec. 10, vested in the
Magistrate.

THE first case was submitted for the orders of the High
Court by C. G. Kemball, Session Judge of Surat, on a
review of the monthly returns of the Magistrate's proceed-
ings, with the following remarks :-
" The accused was charged with, and convicted of, wan-
tonly or cruelly beating or torturing an animal, in breach of
Cl. 15, Sec. xxxvm. of the Surat Municipai Rules. He
was a horsekeeper in the employment of a gentleman resid-
ing within the city walls, and the offence was said to have
taken place in the stable while he was cleaning bis master's
horse. The case was a trivial one, and the punishment
inflicted small, bnt the conviction appears .to me so mani-
festly unjust, that I feel I have no alternative but to send up
the proceedings for the orders of the High Court; The only
evidence in the case most clearly disproves the charge based
on the aforesaid Cl. 15; and how the Magistrate F. P.
could, in the face of it, record a conviction, is beyond
conjecture."

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 CROWN CASES. 11
September 26, 186'i'. Upon a. review of the whole proceed- _1=868_ : _
ings, the Court (CoucH, C.J., and NEWTON, J.) reversed the ~a.
conviction a.nd sentence, on the ground that there wa.s no D.t.T.t.'r..
M.t.'vn
evidence of a.ny offence having been committed.
BJCG.
11.
The Court, considering such a. conviction very discredit- K.t.'LIDA8
able to the Magistrate F . P., directed the Session Judge to Kn..t.r..
call upon the Magistrate F. P. to forward the memoran-
dum of the substance of the evidence required under Se·c.
267 of the Code of Criminal Procedure, or to explain ita
absence.
The Magistrate F. P. stated in reply-" At Ahmedabad
cases of nuiaa.nces under the Municipal rules are disposed
of by the Ma.na.ging Committee under Chap. VIII. of the
Rules, and the only record kept by them is a. register con-
taining the name of the offender, the nature of the nuisance
committed by him, the penalty imposed on him, &c. After
my transfer to Sura.t, the case of Mavji Dayal was the first
I ~ to dispose of under Chap. VI. of the Municipal
RuIK, a.nd on inquiry I found that in cases of this kind dis-
posed ofbyyou (Mr. Hope), only the depositions of witnesses
and the offender's statement were ta.ken down in the ver-
nacular, and an order pa.seed in the case. Accordingly, no
memorandum of the su bat.a.nee of the evidence recorded in
the case wa.s kept."
Upon this a precept was issued to the Magistrate of
Ahmedabad to inquire whether the above allegation was
correct, and, if correct, to forward the record and proceed-
ings in the last case disposed of by the Managing Com-
mittee at Ahmedabad.

The Acting Magistrate, A. A. Borradaile, confirmed the

allegation of the Full Power Magistrate of Surat, and ac-
cordingly forwarded the record and proceedings in the last
case disposed of by the Ahmedabad Municipal Committee,
namely, !leg. v. Ka/id& Keval.
The accused was charged with committing nuisance, by
throwing on the public road dirty water consisting of the

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 •
12 BOMBAY HIGH COURT REPORTS.

1868. urine of bullocks, &c., and was fined in the sum of eight
.---=;u.=-11:-&.--
1', annas.
MA'Vll
DATA'L. PER CuRliM (CoucH, C.J., and NEWTON, J.) :-The Court
RIIG.
annuls the conviction and sentence, on the ground that the
11. Managing Committee of the Municipal Commission of the
L'LIDAS
KIIVAL, City of Ahmedabad had no power by law to try and convict
the accused of the offence, as Sees. 6 and 7 of Act XXVI.
of 1850 do not authorise the giving to the Managing Com-
mittee the power of adjudicating in cases of alleged breach
of any rules therein referred to, and Sec. 10 of the same Act
has provided for the recovery of fines by Magistrates.

Feb. 6. REG. v. RA'MJI valad DA'Jr.

Crim. Proc. Code, Sec. 270-Amends.
Amends, under Sec. 270 of the Code of Criminal Procedure, are award-
able only in cases triable by the Magistrate in which a summons on com-
plaint l!hall ordinarily issue.

G F. SHEPPARD, Acting Magistrate of the Dist36t of

'Khandesh, wrote, under No.110, a letter, dated the 22nd
of January 1868, to the Court's Registrar as follows:-
" I have the honour, under Sec. 434 of Act XXV. of 1861
(Criminal Procedure Code), to forward, for the orders of the
Honorable the Judges of the High Court, a case tried by
A'zam Vish1;m Hari Vihid, Second Class Subordinate
Magistrate of the Lohara Taluka, wherein that officer has,
under Sec. 2 70 of the Criminal Procedure Code, awarded
amends for an offence coming under Chap. XIV. of the Act,
namely, a charge under Sec. 504 of the Indian Penal Code.
· " I have the honour to request the instructions of their
Lordships the Judges thereon."
PER CuRIAM (CoucH, C.J., and NEWTO;, J.) :-As Sec. 270
of the Code of Criminal Procedure forms part ofCh. XV., the
said section could operate only in cases triable by the Ma-
gistrate in which a summons on complaint shall ordinarily
issue. We, therefore, annul so much of the order as awards
amends to the accused in this case.

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 CBOWN CASES, 13

REG. v. GANGA' kom MHAsu. 1868.

Feb. lll.

Trespus by Cattle--Jvrisdictio1t-Act Ill. of 1857, Sec. 18.

By virtue of Sec. 21 of the Crim. Proc. Code, a Subordinate Magistrate

of the 1st Claas has juristlirtion to try an off"ence under Sec. 18 of Act Ill.
of 185i (Cattle Trespass Act), there being no provision in that Act as to
the authorities by which off"ences committed under it are to be tried.

THE accused was convicted, by the First Class Subordinate

Magistrate of Ka.rug, in the Sutura District, under Sec.
18 ofthe Cattle Trespass Act (III. of 1857), and sentenced
to pay a fine of two rupees," for allowing his pigs to ea.use
damage to certain trees be!onging to the complainant."
It having appeared to the District Magistrate, J. R.
Arthur, that a Subordinate Magistrate had no jurisdiction
under the Act in question, he referred the case for the orders
of the High Court, under Sec. 434 of the Code of Criminal
Procedure.
Pn CuRiill (Coucu, C. J., and NEWTON, J.) :-It appears
to us that, as no special provision is made in Act III. of
1857 a.s to the authority by which offences under Sec. 18
of that Act are to be tried, Sec. 21 of the Code of Criminal
Procedure gives jurisdiction to the First Class Subordinate
Magistrate; and this ruling is in accordance with the rulings
of the late f?adr Court in 1861-62.

REG. v. VITHAL LAKSHUMAN. Feb. 13.

Illegal Order-Transit Dvties-Holkar's GOfJtrnment.

Held that it was beyond the power of a Collector to issue an order

prohibiting the receioing of transit duties for the Holkar's Government in
British territory.

THE accused was charged with " disobeying an order of

a. public servant in levying transit duties for the Holkar's
Government in British territory, contrary to the order of the
Magistrate," and was convicted and sentenced by the

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 BOMBAY HIGH COURT REPORTS,

--=1=-"868_._Magistrat.e F. P. in the Khandesh District to pay a fine of

~~G. Rs. 40, the same to be levied by distraint if necessary.
VlTRAL
LAuuuxAN. The record and proceedings were called for, on a review of
the monthly calendar of caseA disposed of by the Magis-
trate F. P. in the Khandesh District.
The Magistrate stated that the order refe1Ted to in this
case was issued by the Collector, in his ca}Jacity of chief
revenue officer, it having been brought to his knowledge
that transit duti~s on wood were being levied by certain
agents of His Highness the Holkar within the limits of the
collectorate.
PER CuRIAH (Couca,. C.J., and NEWTON, J.) :-The Court
. annuls the conviction and sentence, as it appears that no-
thing was done by the accused within British territory to
compel the payment, but that it was a voluntary one, the
person making it having sought the accused in order to do
so ; and the Court is of opinion that the order, so far as it
may be construed as prohibiting any person from receiving a
payment so made, was beyond the power of the Collector.

Feb.13. REG. v. TuNGA' Tu.KA'.

Subordinate Magistrate-Jurisdiction-A.et XXII. qf 1855.

The word " Magistrate" in Sec., 62 of Act XXII. of 1855 includes a

Subordinate Magistrate : such Magistrate has, therefore, power to try the
muter of a vessel for an offence committed against Sec. 46 of that Act.

THE accused was charged with breach of Port Rules,

in omitting to report to the Conservator of the Port the
arrival of his vessel within twenty-four hours of her arrival
(under Sec~ 46 of .A.et XXII. of 1855). He was convict.ed
and sentenced by the Second Class Subordinate Magistrate of
U'ra:r;t to pay a fine of five rupees.
The record and proceedings in the case were called for,
under Sec. 404 of the Code of Criminal Procedure, · in order
to determine whether the Subordinate Magistrate had juris-
diction to try the case. • ·

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·· ·-·--·--~
 CROWN CASES, 15

PER Cuau111 (CoucH, C.J., and NEWTON, J.) :-The Magis- 1868.
trate is to be informed that the words in Sec. 62 of the Act R:~·
may be construed as including a Subordinate Magistrate, TuNo•' Tuu.'.
who, therefore, has jurisdiction.
NoTs.-Sec. 46 : " Within twenty-four houn after the arrival within
the limits of any such port of any vessel liable to the payment of port
dues, under this or any subsequent Act, the master of auch vessel shall
report such arrival to the Conservator of such port ; and if any muter of
a vessel shall, without lawful excuse, fail to make auch report within the
time aforesaid, be sha11 be liable to a penalty not exceeding one hundred
rupees for every auch off'ence."
Sec. 62 :-" The word 'Magistrate' in this Aet ahall include a Justice
of the Peace, • • • • a Joint Magistrate, and any person lawfully exer-
cising the powers of a Magistrate, and also any Deputy or Assiatant
Magistrate to the extent of the powers of such Deputy or Alsiatant
Magistrate."

REo. v. GoVINDA' bin BA'BA'JI. Peb. lS,

Se,Bion Covrt.:.._J"risdiction-P0tcw to q1'fllh proceeding,.

The order of a Senion Judge to quash procee<lings held before a

Magistrate F. P., annulled as having been made without jurisdiction.
Comments by a Magistrate F.'P. on the proceedings of the Session
Court, disapproved of. ·

THIS case was referred by R. F. Ma.ctier, Session Judge

of Sntara, under Sec. 434 of the Criminal Procedure
Code, for the orders ·of the High Court.
" Govindn bin Babaji appeals against a sentence of one
year's rigorous imprisonment, and a. fine of Rs. 300, or in
default three months' further rigorous imprisonment, passed
on him by E. H. Little, Magistrate F. P., for 'voluntarily
causing hurt,' under Sec. 323 of the Indian Penal Code.
" Prisoner admits that he gave his wife 'two blows on
the fa.ce ;' and this would be sufficient to justify his convic-
tion for ' causing hurt ;' but the matter is a... far more
serious one. The evidence would seem to show, and the
Magistrate F. P., in his finding, remarks, that 'there can be
no doubt that accused gave deceased a severe beating,
and that she died from its effects, although it is not proved
in what way death was immediately caused.'

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10' BOMBAY HIGH COURT REPORTS.

1868. "My opinion i·s that in a case where it was clear that his
REG.
'f:.
wife had been killed, whether intentionally or not, the case
GovINDA' was one for the Session Court.
BA'BA'll.
"And further I think that when the Magistrate F. P., as
above remarked, admits that he '.thought that the accused
caused his wife's death, such an opinion would not justify a.
conviction for ' causing hurt' alone.
" The 320th section of the Penal Code, in the 8th defini-
tion of what is ' grievous hurt,' says "that ' grievous hurt' is
'any hurt which endangers life ;' here lif'=' was not only en-
dangered by the hurt, but destroyed ; and surely this alone
would make the offence more than ' causing hurt.' At any
rate, the case seems to be pne which should have come be-
fore the Session Court. It is clear that life was taken, and
through violence ; and the case should have been committed
on the various charges, if necessary, of ' murder,' ' culpa-
ble homicide not amounting to murder,' and 'grievous
hurt.'
"I must, therefore, decide to quash the proceedings of the.
Magistrate F. P. in this case, ~nd return the papers with a
request that the accused, Govinda bin Babaji, may be com-
mitted to the Session Court on the several charges above
specified.''
The Magistrate F. P. made some observations, under the
name of "supplemental finding," commenting on the pro-
ceedings of the Session Court, and in order to avoid sending
a case to the Session Court.
PER CuRIAM (CoucH, C. J., and NEWTON, J.) :-The Uourt
annuls the order of the Session Judge, as made without any
jurisdiction. The Magistrate F. P. is to be informed that he
ought not, under the name of " supplemental finding," to
have commented on the proceedings of the Session Court,
and that his observations in favour of Magistrates'. convicting
of a lesser offence than that which has been proved, in order
to avoid sending a case to the Session Court, are disap-
proved of.
Order of Ses11ion Judge annuUed.

- - -- -- - __ ___
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 CROWN CASES. 17

REc:. v. MANOHAR RA'm. 1868.

Fob. 22.
Ad11ltery~Remarriage-Na.tra.

Where a prisoner accused of adultery sets up in defence a Natra, con•

tracted 'with the woman with whom he is alleged to have committed a<lultery,
in accordance with the custom of his caste, the question the Court has to
determine is, whether or not the accused honestly believed, at the time of
contracting the- Ndtr6, that the woman was the wife of another man.

THE prisoner was convicted, on the 5th of November 1867,

under Sec. 497 of the Indian Penn.I Code, of the offence
of adultery, and sentenced to rigorous imprisonment for one
month and one day. Tho facts of the case, and the grounds
of the conviction, appear from the judgment recorded by
S. H. Phillpotts, Acting Senior Assistant Judge of Broach:-
" In this case the accused is charged with adultery, in
that, in the lifetime of Bechar, B~i Lakshmi's husband, he,
well knowing that Bai Lakshmi's husband was alive, and
that he did· not connive or consent to it, had sexual inter-
course with Bui Lakshmi.
"That Bechar did not connive at it, appears plain, be-
cause this present complaint has been instituted, and because
he has twice complained in the Civil Courts, and once in_
the Criminal Court, before instituting these proceedings.
The accused, however, contended that he consented, and
said that he took money for his wife in lieu of a decree.
The circumstances were these :-
" Bechar sued in tl?-e Munsif's Court of Jambusar to re-
cover possession of his wife; but as, with the exception of the
Mahomcdans, no other people's wives can be given into their
possession, his wife was not given him, hut Rs. 240 were
awarded to him as damages, From this decision he did
not appeal ; but from that it cannot be saiq. that his marriage
was annulled. Ho did all that was in his power to do.
"On the part of the defendant the sexual intercourse, and
the knowledge that the woman, Lakshm1, had been married
to Bechar, are admitted. The accused only urges that he
imagined t,hat the marriage had been annulled by Bechar's
v.-3 CC

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 18 DOMBAY HIGH COU~T REPORTS,

__ 18~- taking the money; but this is a mistake of law, by which no

R:. 0
• man can be held excused (Act XLV. of 1800, Sec. 76),
MANoH.rn though it may be a reason for mitigation of punishment.
RA'IJI.

" The remaining defence of the accused is that he acted

according to the universal custom of his caste (Leowa
Kunbi) ; but I do not consider this custom sufficiently
proved. The only evidence that has been given is that the
married females of that caste are in the habit of eloping
with other men, and that s'ometimes their husbands condone
the bigamy. Even if the custom contended for were
proved, this Court is bound by the decision of the High
Court in. the cases of Reg. v. Bai Rupa and Reg. Y. Karsan
Goja (a), in which, though a similar custom was proved to
exist among the Talapda Kolis, the High Court decided
that, as the custom was a vicious one, and entirely opposed
t.o the Hind{1 law, it was only a reason fo1· mitigation of
punishment, and that a person who was otherwise guilty
under Sec. 497 could not be relieved by it..
'' As the accused has already paid the amount of the decree,
and as there is no strict rule among this people, as amongst
the Brahma,~s and Ranias, I give him as lenient a sentence
a.swill not deprive him of the right of appeal."
l!,rom the conviction and sent.encc of the Session Court
the prisoner appealed.
The appeal was argued before CoucH, C.J., and NEWTON, .T.
Nfmabluii Hcwiclas, for the prisoner :-The intent of the
prisoner, which in this, as in almost all other ociminal cases,
must be proved, dcpendfi on whether· at the time of con-
tracting natra with Lakshmi he believed he was doing right
or wrong. The inference which any jury would draw from
the facts hero is, that he believed he had a right to contract,
1111tra with LakshmL In the case relied upon by the Judge,
a different conclusion might ho drawn.
[Coucrr, C.J. :-The report of Karsan Goja's case misle<l
the Judge who tried this case. The first question sent down
for trial there was, whether the accused honestly believed th&t
(a) 2 Bom. H. C. Rep. 124.

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 CROWN CASBS. 19

the woman was not, at tho time of the remarriage, the wife 1808.
Rxo.
of another man; and this was found against him.] t•.
MANOIIAR
Reid (Amicus Ow·iro) mentioncrd the cases of Reg. v. Bal,, R.\'JJI.

Baglu, (b) and Reg. v. Ha.~an Snlcmfm (c).

D/1irajlal Mtiflturad,as, for tho prosecution :-The suit
filed by the prosecutor was decided in 1861. 'l'hat was to
recovor his wife, or obtain damages for her detention. 'l'ho
natr<t was contracted in 1862, but the money was not paid
under the decree until 1866 ; consequently at tho time of
the n1i.tra the pril:loner could not have considered that
Lakshmt was in a position to remarry.
PEtt CuRtAM :-After the decree had given an option to tho
woman to return to her husband or to pay him money, she
remarried. It cannot, therefore, be held that the accused
and the woman did not believe that the latter was at liberty
to remarry. "re cannot uphold tho conviction of adultery. •
'l'he Senior .Assistant Session Judge was, as already ob-
served, misled by the report of the case of Karsan Goja (d).
Conviction and sentence reversed,
(b) Coram CoucH, J. (2nd Criminal Sessions, 1863.)
Reid for the prosecution.
Bartoll for the prisoner.
The prisoner ,ras t'harged with having t'ommitted adultery with Laksh.-
mi, the wife of Gangara.m Krishnappa..
On the part of the prisoner it ,,·as pro,·ecl that he had t'ontraete1l natrd
with Lakshm£, an1l though she had not obtainell a divorce from her
husband, yet be bad refused to receiYe her into his house at the inter-
cession of the caste.
The natra was subsequently llerformell in the presence of several mem-
bers of her caste.
Reid contended that the caste had no right to dissolve the first mar-
riage.
One of the questions. put to the jury by the learned Judge was, whe-
ther the accused believed that the woman at the remarriage still continued
to be the l'tife of her former husband.
The jury aequittell the prisoner.
(c) Coram Coucu, J. (2nd Criminal Sessions, 1865.)
Reid for the prisoner, who was charged with adultery, and who had
contracte1l nika, with Amunabib£, the wife of the prosecutor•
. The question there left to the jury wu, "did tl1e prisoner in good faith
believe that be was at liberty to marry Amunabib£."
Verdict-Not Guilty.
(d) Vide corrected report of that case, 2 Bom. H. C. Rep.117 (2nd Ed.).

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 20 BOMBAY HIGH COURT REPORT!:!,

1868. REG. v. KARSANLA'L DA'NATRA'M.

Feb. 22.
Summons-Service of Summons-Crim. Proc. Code, Sees. 186 a,1d 187,
The mere showing to a witness of a summons issued under Sec. 186 of
the Crim. Proc. Code is not sufficient service. Either the original should
be left with the witness, or should be exhibited to him and a copy of it
deliyered or tendered.

THE accused was convicted, by W. Woodward, Magistrate

F. P. in the .Ahmedabad District, under Sec. 174 of the
Indian Penal Code, of disobeying a summons of the said
Magistrate F. P. calling upon him to attend his court as a
witness on the 20th of December 1867 at ten A.M., and
sentenced to pay a fine of Rs. 50, which in default of pay-
ment was ordered to be recovered by distress and sale of the
moveable property of the accused.
The case was referred for the orders of the High Court,
under Sec. 434 of the Code of Criminal Procedure, by Baron
Arthur J. de H. Larpent, Acting Session Judge of .Ahmeda-
bad, with the following remarks :-
" The appellant and four others each moved the Court to
call for the proceedings of the Magistrate F. P. of Khega in
cases where they had each been fined for not having attended
punctually to the time mentioned in certain summonses.
"They urged that the summonses had not been legally
served on them.
"Having called for the proceedings, and subsequently
for a report from the Magistrate, it appears that the parties
were not given a copy of the summons, but that they were
only shown the summonses and told to sign them, which
they appear to have done.
" The time of attendance stated in the summons is ten A, M,
on the 20th of December 1867, and the appellants say that
they did attend on that day, but not at the exact hour, and
they accounted for their unpunctuality to the Magistrate
by stating that they had been at a breakfast party.
" I am of opinion that in none of the cases has the sum-
mons been legally served. I think that the inference to be

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 '
CROWN CASES, 21

dro.wn from Sec. 187 is that every s~~m?n~~u~~-b_cJ~-dut·f6!1·_~-

plicate, and that a copy 1 ~ ~ V . i_~h the party on ~.~·
whom the service is made. ········· · · ··---- KARsANLA.'L
- -- DA.'NA.TRA.'ll,

"It appears to me but just towards the parties, who are

liable to such heavy fines for not being punctual to time,
that they should havo loft with them o. summons which in-
dicates the day and hour:-and which thoy can refer -to~-
" The Magistrate states that tho mode of service in theso
cases is tho same as obtains in every zilhi, and I am informed
that, as regards the Ahmedubud zillu, thil:l is so."
PER CumAM (CoucH, C.J., and NEWTON, J.) :-The Court
is of opinion that the mc:.rc showing the suJIJmons_ ~9__t}ic ~c-
cused was not sufficient service. Either the original sum-
mons should havo bec~ft with the a;cused,·~~..sh~uld h~;~
been exhibited to them and a copy delivered or tendered.
We, therefore, reverse the conviction and sentence.
Conviction ancl sentence ·1·evc1'8ed.

March 10.

Mu111latdar-Illegal Order-Act V. of 1864 (Bombay).

Conviction anti sentence for disobeying an order made by a Mamlat..lar,
un,ler Bombay Act V. of 186-t, directing the accused to keep a gateway
open, revened, as the Mamlatdar wa~ not empowered under that Act to
make the order.

JN this case one Bnpu Sakharam having complained to the

Mamlatd11r of the City of Puna that the accused was pre-
venting his right of way through his (the accused's) own
compound gateway, the Mamlatdar made an inquiry under
Act V. of 18G4 (Bombay), and, finding the complainant's
right of way proved, ordered the accused not to obstruct
the complainant in going and coming by his gateway, and
to keep it open. Th0 accused disobeyed this order, by keep..
ing the gate still locked.
E.T. Richardson, Magistrate F. P. at Puna, thereupon
convicted the accused under Sec, 188 of the Penal Coue1

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 22 DOMDAY HIGH COURT REPORTS.

_I~~-- and sentenced 4im to pay a fine of ten rupees, or m default

R!~· of payment to undergo simple imprisonment for fifteen days.
KnANDOJI
TA'.tu'JI. The case was referred for the orders of the High Court,
nnder Sec. 434 of the Code of Criminal Procedure, by F.
Lloyd, Session Judge of Puna, with a remark that it did not
appear to him that under the said Act the Mamlatdar was
lawfully empowered to promulgate the order, and that di:,;-
obedience to the order was, consequently, not an offence
under Sec. 188 of the Penal Code.
PER CumAM (CoucH, C.J., and NEWTON, J.) :-'l'he Court
reverse the order of the Magistrate F. P., and direct that
the fine he 'refunded to the accused.
Cu11victi.on and sonfonco 1·c1:ersod.

March 10. REG. v.. JoAO THOMESIT, DOMINGOS 'fHOllfESI'r, and

ANTONIO LOUREN~O DIAS,

Conviction, Alteration of-Amendment of Sent~nce-Re-trial-

Crim. Proc. Code, Sec. 22.

Held that an 01·der of a Session Judge by which he aitered a conviction

by the Assistant Session Judge, of " dacoity " to one of "robbel'y," was
illegal, not being an amendment of a sentence or or<ler within the mean-
ing of Sec. 22 of the Crinr. Pl'oc. Code.
Held further that if the accuseil were, in the opinion of the Session
ludge, improperly conYicted of" dacoity," he ought to have declined to
confirm the sentence, aml to have left them to be chargeil with and tried
for'" robbery."

ALL three accused in this case were convicted, by A. Lyon,

Assistant Session Judge of the Konkai;i. at 'l'hana, on
the 6th of December 1867, of dacoity, "in having on the
high road attacked, with the assistance of about ten men,
some pedlars, and carried away their property," and were
sentenced, under Sec. 395 of the Penal Code, each to be
transported for seven y~ars, subject to confirmation by the
Session Judge.
The Session Judge, R. H. Pinhey, was of opinion that the
conviction of dacoity must be altered to one of robbery

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 CROWN CASES, 23
{under Sec. 392 of the Penal Code) against the accused Nos. 1868.
REo.
1 and 2, it appearing to him that these two men committed t•.
robbery-most probably while under the influence of liquor. THol!ESIT
et <tl.
Ho accordingly altered tho conviction of dacoity to one of
robbery, and directed that each of the accused Nos. 1 and 2
be rigorously imprisoned for one year. As he was not satis-
fied that tho third accused was really concerned in the crime,
ho ncquitte<l. ,him nnd ordered his discharge.

'rho High Court,, on n review of the monthly return,

noticed the cnso, nnd requested tho Session Judge to state
the provision of law under which he considered himself
nnthorised to nlkr the conviction. Ho wns of opinion that
the !Jrd clause of 8(•c. 22 of the Code of Criminal Procedure
authorised the nltc-ratiou by him of the convictions and
sentences recorded by the Assistant Session Judge, and
that by the said clause he had power to review the proceed-
ings of his Assistants as well as to hear appeals against them,
nnd to amend their sentences and orders as well as to
confirm or reverse them.
Pim CuRJAM (Coucn, C. J., and NEWTON, J.) :-The Court
reverses the order of the Session Judge by which he altered
the conviction of the accused Noa. 1 and 2, and passed re-
duced sentences upon t.hem, and refer~ the case back to him
for reconsideration.
The Court is of opinion that this was not an amendment
of a sentence or order within the meaning of Sec. 22 of the
Code of Criminal Procedure, and that the Session Judge
has not the powers which are gi,•en to the High Court as a
court of revision by Ch. xxrx. Sec. 43t is in accordance
with this construction.
If the Session Judge thought that the parties had been
improperly convicted of clacoity, ho should have declined to
confirm the sentence, and have left them to be charged with,
and tried for, robbery.
Orclel' 1·eversed.

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 24 BOMllAY HIGH COURT REPORTS,

1868.
March 10.
REG. v. MuLIYA' NA'NA' et al.

Mitigation of Sentence-Appeal.

Held that a Session Judge has no power to mitigate a sentence Jlassed

upon a prisoner who bas not appealed to him.

JN this case both the accused were, under Sec. 379 of the
Penal Code, convicted, on the 4th of November 1867,
by George Ayerst, Acting Assistant Session Judge of S(1rat,
of theft, " in having dishonestly taken seven ducks out of
the possession of one Pestanji Dosabhai without his con-
sent," -and were sentenced (No. 1 Muliya) to suffer rigorous
imprisonment for two years and to re;eive two dozen lashes,
and also to pay a fine of Rs. 10, to be levied by distress
and sale of his moveable property, under Sec. 61 of tho
Code of Criminal Procedure, and (No. 2, Bhaglo, alias
Bhagvan) to one month's rigoroµs imprisonment and to
receive one dozen lashes.
The accused No. 1, Mu}iya, having appealed, the Session
Judge, C. G. Kemball, recorded the following judgment,
under date the 21st of November 1867 :-
" The Assistant Session Judge and the Assessors being of
ono mind, the appellate court sees no reason for disturbing
the conviction. * * * In the case, however, of the second
prisoner, it does not appear that he was ever previously
convicted of any offence which rendered him amenable to
the punishment of whipping in addition to other prescribed
punishments. The sentence of the Assistant Session Judge
was, therefore, illegal, and must be quashed. This prisoner,
a mere child, appears to have been in jail for upwards of
fifteen days, and has, therefore, in my opinion, suffered
sufficient punishment. The whipping is not to be inflicted,
and the prisoner Bhaglo is, therefore, discharged."

Upon review of the Register of Criminal Appeals disposed

of by the Session Court during the month of November

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 CROWN CASER. 25

1867, the High Court sent for the papers and proceedings _ 1_~ ~
REG .
in this case. 11.
Muuu.'
PER Cua1.uc (CoucH, C.J., and NEWTON, J.) :-The order NA'l'IA'
et al.
of the Session Judge in the , case of the accused No. 2,
Bhag!o Nana, is annulled; and we now, having the record
and proceedings before us, annul the sentence of whipping
passed by the Assistant Session Judge. The sentence of
•
imprisonment passed on the said Dha.glo Nani must be car-
ried into effect.
Order annulled.

REo. v. GoPA'L LAKSHU'MAN and GANPAT BA'BAJI. March 10,

J•mdictio'll-llkgal Ordtr-Stnion Judgt!-Crim. Proc. Code,

Sec. 4.35.
Where the Senion Judge on appeal reversed a conviction passed by a
Magistrate F. P. of an off'ence under Sec. 182 of the Penal Code (which
the Magistrate F. P. was competent to try), and directed the Magistrate
F. P. to institute proceedings against the accused under Sec. 211, consider-
ing that, on the complaint which had been made to him, the Magistrate
F. P. was bound to institute proceedings under the latter section :-
The High Court reversed that part of the order of tlie Session Judge
which directed the Magistrate F. P. to instituteproceedings,as the case did
not fall within Sec. 435 of the Criminal Procedure Code, and there waM
no provision of law giving the Judge jurisdiction to make such an order.

JN this case the accused were convicted by Ramcha.ndra

Amrut Dugal, Magistrate F. P. at Ratnagiri," of giving
false information to a public servant, in order to cause him
to use his lawful power to the injury of and annoyance to
a person;" and were sentenced, under Sec. 182 of tho
Penal Code, to undergo three months' rigorous imprison-
ment and to pay a fine of Rs. 100, or in default to suffer
additional rigorous imprisonment for six weeks.
One of the prisoners, Gopal Lakshumai:t, appealed to R. II.
Pinhey, Session Judge at Th{u;ia, who reverse_d the conviction
and sentence as against him, and as regarded the other pri-
soner, who bad not appealed, referred the case for the orders
of the High Court, under Sec. 434 of the Code of Criminal
Procedure. The Session Judge reversed tho conviction of
Gopal LakBhumai;i, on the ground that the act of the accnsed,
V .- 4 CC

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 26 BOMBAY HIGH COURT REPORTS.

-~18_68_._ in having stated to the Fouzdar that they had suspected the
RE11~· complainant of theft, did not constitute an offence punishable
GoPA'L under Sec. 182 of the Penal Code, as it was not alle-g ed that
LAKS1IU 1MAN
et aZ. the accused knew or believed that the information which
they gave was false.
I

Dec. 5, 1867. The case came before the Court (Couell,

C. J ., and NEWTON, J.), when the conviction and sentence
passed upon GaQpat Babaji were reversed, on th3 ground
that the charge and finding did not show an offence.
While reversing the conviction of GaQpat, the Court
noticed an irregularity in the proceedings of the Session
Judge while reverf;!ing the conviction of Gopal Lakshumal}.
These proceedings were as follows :-
On the 13th of .August 1867 the accused No. J, Gopa1,
preferred an accusation to the Fouzdar at Ratnagiri against
the complainant, Ravji Hari, whom he charged with having
stolen from the verandah of his (Gopal's) house a brass lamp,
valued at Rs. If, the property of a lodger, the accused No. 2,
GaQpat. The Fouzdar inquired into the complaint, and
holding it to be a false one reported to that effect, on the
15th of .August 1867, to the Subordinate Magistrate, who
directed the complaint to be struck off, and sanctioned the
prosecution of both the accused, Gopal and Gal}.pat, for an
offence punishable under Sec. 211 of the Penal Code . . The
Session Judge, being of opinion that the Subordinate
Magistrate had rightly directed the prosecution under Sec.
211, considered that, on receiving the complaint of Ravji
Hari together with a copy of the sanction given by the
Subordinate Magistrate, the Magistrate F . P. was bound to
proceed against the accused under Sec. 211 of the Indian
Penal Code, and that the Magistrate F. P. was not legally
competent finally to dispose of the case, but was bound, if
the evidence for the prosecution was sufficient, to send it
for trial before the Court of Session, the false charge made
by the accused being of an offence punishable under Sec.
380 of the Indian Penal Code, with imprisonment for seven
years. The Session Judge, therefore, directed the Magis-
trate F. P . t0 proceed according to law to dispose o.f the com-

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 CROWN CASES, 27
plaint of Ravji Hari dated September 9th, 186'7. This corn- __1_808_._
plaint stated that the Subordinate Magistrate had accorded li:~·
his sanction t.o both the accused being pr~secuted for pre- GoPA'L
LAKBHU' KJ.N
ferring a false charge of theft against him, the compla.inani, et al.
and prayed that proceedings might ho taken against them
accordingly. ,
The Session Judge considered that (under Sec. 427) ho
was competent to direct tho Magistrate· to dispose of the
complaint dated the 9th of September 1867, booause it had
not yet beon disposed of; and he thought that that the faet
of the Magistmte F. P. being directly subordinate to him,
clothed him with the power of directing the Magistrate to
proceed to dispose of the pending complaint after he (the
Session Judge) had, in the exercise of his appellate juri51-
dictio:u., reversed the final order which. the Magistrate had
once ma.de on that complaint.
PER C11a1uc (CoucH, C. J., and NEWTON, J.) :-The Court
reverses that part of the order of the Session Judge which
directs the Magistrate to dispose of the complaint of Ravji
Hari Mulgundkar, dated 9th September 1867, as the case
was not one falling within Sec. 435 of the Code of Criminal
Procedure., and there is no provision of the law which gives
the Session Judge jurisdiction to make such an order.
The Magistrate is to be at liberty to take such proceedings
as he may think right.

REG.
-~-
v. RA'MLO JERl()I. Jan. 14.

Adaltery-Withdrawal of C!UJrge-Hu.sbana.

Where the husband of a woman, with whom the accused was alleged to
have committed adultery, professed himself unwilling to proceed with the
prosecution, and the Assistant Session Jndge thereupon ordered the ac-
cused to be discharged : -
The Conrt, in the exercise of its discretion, declined to interfere.

JN this case the accused was charged with adultery with

one Daili, wife of Ratno, and was committed to take his
trial before the Session Court at Surat. The husband of

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 28 BOMBAY HIGH COURT REPORTS,

1868. ' the woman with whom the accused was alleged to have com-
R!~· mitted adultery stated, when he was about td be examined, at
R.\'MLO JERIO, the COmmencement Of the trial, as a Witness for the prOSeCU-

tion, that, as his wife had returned to him, he was unwilling

to proceed further in the matter. Upon this the Assistant
Session Judge ordered the accused to be discharged with
the following remarks : -
" Witness is the party whom the pr\lsent offence most
concerns, and, if he be willing to overlook the same, I am of
opinion that no benefit would accrue to society by ordering
him to depose to the facts· of the case, as far as he , may
know them, and by continuing the prosecution."
.
On a review of the Criminal Return of the Session Court,
the High Court sent for the papers and proceedings, to deter-
mine whether a prosecutor could withdraw a charge after
·· the case had been committed to a Court of Session, and
whether the accused in this case should not have been ac-
quitted, instead of being discharged, by the Session Court.
PER Cu1t1AM (CoucH, C.J., and NEWTON, J.) :-In the exer-
cise or our discretion, we do not think it right to interfere
in the matter, and direct the record and proceedings to be
returned. In doing so, we follow the decision In re Jamni
and Pa.rshotum (a).
(a) In this case, on appeal, ARNOULD, Acting C. J., and TUCKER J.,
reversed a convictiorl and sentence of adultery recorded by the Session
Court of Ahmeda.bad, on the ground that the husband ·had desired to with-
draw the charge at the trial before the Session Court, and had .not been
permitted to do so. The Court held that it was competent to the
husband to withdraw from the prosecution, there being nothing to show
collusion.-19/h June 1864.

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- -----=- -
 CROWN CASES, 29

REG. v. SADA'smvA'PPA' PA'NDURANGA1PPA'. 181l8.

March 11.

S11mmons-Complai1t1 upon Oath-Voluntary Apptaranct-Jumdic-

tion-Crim. Proc. Codt, .Sec,. 66, 179, 248, and 257,

Where an accused penon appears voluntarily before a Magistrate to

answer a charge, the want of a complaint on oath, necessary for the issu-
ing of a 1ummons or warrant (Sees. 66 and 43 Crim. Proc. Code) becomes
immaierial.
Snnbk-A Magistrate taking a complaint and issuing a summons there-
on, acts not ministerially, but judicially.
Conditions under which a Magistrate may proceed with an investiga-
tion or trial without a complaint upon oath considered, and cases bearing
cm the question reviewed and explained:

THE record in this case was sent for by the Court, under
Sec. 405 of the Code of Criminal Procedure, on an appli-
cation from the Acting Magistrate of the District of Canara.
The facts of the case were these :-
The Magistrate F. P. of the Karwar Taluka received in-
timation, through an anonymous petition, that a village
accountant in his district had received a gratification other
than legal remuneration, he being a public servant. The
rayats, who were alleged to have given this gratification,
were sent for, and, in the presence of the accused, who ap-
peared voluntarily before the Magistrate, no summons or
warrant having been issued, deposed to the circumstance
mentioned in the petition, and the Magistrate convicted
the village accountant on their evidence, and sentenced him
to six months' rigorous imprisonment and to pay a fine of
Rs. 300, and in default of payment to suffer three months'
further rigorous imprisonment.
The Acting Session Judge of Canara, R. West, on appeal,
annulled the conviction and sentence, on the ground that
without a complaint the Magistrate had not jurisdiction.
PER CuRIAll (CoucH, C.J., and NEWTON, J.):-The Court is
of opinion that when the accused appears voluntarily to
answer the charge, as he is in this case stated by the Ses-
sion Judge to have done, the want of a summons, or of a

D1g1tized by Google
 3() BOMBAY HIGH COURT REPORTS.

1868. complaint in order to the issuing of a ·summons (Sec. 66 of

R:. 0
• Crim. Proc. Code), becomes immaterial: Paley on Convic-
A'~!:,t:~;;·u- tions, cap. 2, s. 4 (3rd Ed.), and the cases there cited, and
11AN0.~'PPA'. also Turner v. The Post Master. General (a).
The Session Judge has misapprehended the decisions of
the High Court in the cases which he has quoted. In the
first of these, that of Dipchand ~ushal (b), the case having
been sent by the Munsif to the Magistrate of the District,
it was tried by; another Magistrate, without any complaint
having been made to him, and it was not suggested that the
accused appeared voluntarily. In the second, the- case of
Bagu valad Owsari (c), no coml?laint was made to the Magis-
trate who tried the case, and it had been illegally referred
by a Subordinate Magistrate to a Magistrate with F~
Powers.
In the third case (d), described by; the Session Judge as
one in which the High Court held the trial before tne Session
Court to be good, although no complaint had been preferred,
under Sec. 179, to the Magistrate who made the committal,
the High Court expressly stated,. as the ground of its deci-
sion, that, in order to give the Session Court jurisdictio'u, it
was only necessary, under Sec. 35,9 of the Code of Criminal
Procedure, that there should be a charge preferred by a
Magistrate, or other officer specially empowered to make
commitments to such court. The Court was not called upon
to 'determine what would have been the effect of the want of
a complaint, if the validity of the commitment had · been
questioned in the High Court before the trial had been com-
pleted in the Session Court, which could not itself treat a
commitment so made as a nullity. The Session Judge is
entirely wrong in inferring the decision of the Court to have
been that Sec. 179 of the Code of Criminal Procedure does
not, equally with Sec. 248, require a complaint.
The Court does not concur in the opinion of the Session
Judge, that the taking a complaint and issuing a summons
(a) 34 Law J. Mag. Ca. 10.
(b) 4 Bom. H. C. Rep., Cr. Ca. 30. (c) lbid. 34.
(d) Reg. v. Rancho~das Natltubkai, Ibid. 35.

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 CROWN CASES. 31

thereon are ministerial acts. In cases not referred to by the __1_8 ~

Session Judge, the court has held that when a case is sent 0
• u:.
under Sec. 168, 169, or 170, and the Maaistro.te,
o·
to whom .BAD'AP's~iv-
A PPA A NDU•
the case is sent by the court, himself investigates it, no 11uNoA'l'PA'.
complaint is necessary, nor is it necessary when the court
itself holds an investigation, nor where the accused is ]aw-
fully apprehended by the Police without a warrant, and duly
brought before the Magistrate. The Court, the refore, re-
verses the order of the Session Judge, and directs him to
hear the appeal on its merits.
Order of the Session Judge rei:c1·sed.

March 19.
REG. v. SumrYA' valad DHA'KU.

Detention of Accused by tlae Police-Remand-Crim. Proc.

Code, Sec. 224.

Held that the order of a Magistrate sanctioning the detention by the

Police of an accusecl person for an indefinite pcriocl is illegal. At the
expiration of twenty-four hours from the time of arrest, the accused
mvst be brought before a Magistrate, who can then remand for a period
not exeeecling fifteen days, under Sec. 224 of the Crim. Proc. Code.
No remand without a bearing can last for a longer period.

JN this case the accused was apprehended by the Police,

on a charge of theft, on the 4th of August 1867. He
was not forwarded to the Magistrate by the Police until the
4th of Septemb~r 1867.
On reviewing the Monthly Criminal Return of the Magis-
trate of the ThaQa District, the Session Judge, R.H. Pinhcy,
noting this detention of the accused by the Police, forwarded
the case to the High Court, who sent for a report from the
Magistrate of the District, and, after considering it, directed
the Magistrate to intimate to the Subordinate Magistrate of
Bassein that he had acted improperly in according sanction
to the Police for the detention of the accused for so long a
period.
Upon this the Magistrate of' the District addressed, under
date the 24th of February 1868, the following letter to the
Registrar of the High Court:-

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32 BOMBAY HIGH COURT REPORTS,

1868. "With reference to your letter No. 216 of the 6th

REG,
'II, instant, inforrning me that the Subordinate :Magistrate of
SuRKYA.'
DHA.'KU,
Bassein acted improperly in according sanction to the Police
for the detention of Surkya · bin Dhaku 'for so long a
period,' I have the honour to observe that it is the. practice
in this zilla (and I believe a like practice exists in other
zillas) for a :Magistrate to accord his sanction for· the de-
tention of an accused person beyond twenty-four hours, in
accordance with the i'!Uleji,nite terms of the Code : as should
the evidence, for obtaining which detention has been ac-
corded, turn out such as is likely to ,lead to a conviction, the
case probably is one which has to be submitted by the Police
to some other Magistrate, possessing higher jurisdiction than
the one who accorded his sanction to the detention of the
accused. He, consequently, has no ostensible means of know-
ing how long a period his order once given may be made
to cover ; and if he had, there is not definite authority in
the Code empowering him, once he has given his authority
for the detention of an accused person, to annul such order,
or to define the period of detention.
"This was the plea put forward by the Subordinate Magis-
trate in the case above noted, and has been disallowed by
the Honorable the Judges of Her Majesty's High Court of
Judicature. I would, therefore, beg respectfully to be in-
formed whether it is Jmplied that Magistrates are not to ac-
cord sanction. in the indefinite terms of the Code. If so, in the
unsatisfactory and undefined state of the law, as interpreted
by Magistrates and the Police, the latter are to be required
to specify in each case the pe1'iod for which they desire
detention to be accorded ; and :Magistrates to require satis-
faction that persons are not detained longer than for the
period for which sanction has·been given, even though the
case may be submitted to another court for final disposal."
PER Cu&Iill (NEWTON, Acting C. J., and TUCKER, J.) :-We
must refer the Magistrate to our Circular No. 248 (a) dated
(a) NoTE.-Cl. 2ofthe circular referred to is as follows:-
" 2. Some Magistrates include in their Returns the prisoners in tbc
custod~· of Police Foujdars. This is unnecessary. No Police Office·r can

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 CB0"1f CASIS,

the 22nd of February 1866, and Seo. 224 of the Code of Ori- -..,,,;IMJ.~._
minal Procedure, from which he should have learnt that the .B.a.
t/,
terms of the Code are not, as he supposes, indefinite, but Buu.n.'
Da.i'11.v,
fixed. Fifteen days is the longest period for whioh an acoased
person can be remanded by order of a Magistrate.
The Magistrate should be requested to see that the cir-
cular above referred to is fully carried out in the Tha.9a
collectora.te.

REo. v.
-~·
PuRSHOTA.M
•

VA'LJI. April 16.

Clainila of Mllflicipal COfMliuiotwr• appoi'attd -'er det XXVI. qf

18W-P..61ic &n,a,,t-Irul. Peraal Code, Sec. 174,

The Ohairman of Municipal Commiaiotaera apPcrintld under Aet XXVI.

of 1850, although a public eervant, i8 not legally competent aa such to iuue
an order for attendance before him.
Held, accordingly, that disobedience of mch an order waa not an oft'ence
within Sec. 174 of the Indian Penal Code.

THE prisoner was convicted on the 26th of November 1867,

by the Second Class Subordinate Magistrate of Bassein,
in the Tha~a District, of non-attendance in obedience to a.
summons from a. public servant, and sentenced, under Sec.
174 of the Indian Penal Code, to pay a fine of one rupee, or
in default to suffer simple imprisonment far two days.
The record and proceedings were referred for the orders
of the Court, under Sec. 434 of the Crimirui.l Procedur& CodEt,
by J. W. Robertson,•.A.ctmg Magistrate of the District, with
the following remarks : -
" On examination of the records a.nd exhibits in the case,
it appe&rs that the summons disobeyed by the t.oonsed was
issued by the Chairman of the Bassein Municipality, requiring
him to attend on e. certain date before him,·to e.ft'ord explana-
tion in respect to certain excavations made by him in a. oer•
legally detain a priaoner in custody for more than twenty-four hours with-
out an express authority from a Magistrate, and this anould not be ex-
tended beyond fifteen days without a hearing and a remand by an otBcef
of competent jurisdiction. Priaonen in custody under such a remand
should, of coune, be enumerated in the Return under the head of the
Magisterial Officers concern~d.''
V,-5 CC

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 BOMBAY IDGH COURT REPORTS.

__1=-868_._ tain Municipal road. The Chairman of a Municipality is not,

R:.o, I consider, a public servant, as contemplated by Sec. 174 of
PuasuOTA)(
1
.V A Lll,
the Indian Penal Code, competent to issue a summons, or
an order for attendance. The summons issued by him,
directing the appearance of the accused under the· section
referred to, was not, it appears to me, legally binding, and
the sentence passed is, therefore, c-0ntrary to law."
PER CuRIAK (NEWTON, Acting C.J., and Tucx::n, J.) :-The
Court considers that the Chairman of the Commissioners ap-
pointed, under Act XXVI. of 1850, for the Town of Bassein,
is a public servant. But ·the accused has not been shown
to be guilty of non-attendance in obedience to any order
issued by a public servant, which the Chairman, as such
public servant, was legally competent to issue. The Court,
therefore, reverses the conviction and sentence.
Conviction and sentence reversed.

April 15, REG. v. KA'LYA 1

bin F AKI'R.
Sennce of SumffllJM-R.ef,ual to rign a SumffllJfts-ltul. Pffl. Cock,
Stt. 173.
Refusing to sign a summons by an accused person does not constitute
the offence or intentionally preventing the service or a summons on him-
self, under Sec. 173 or the Indian Penal Code.

THE records and proceedings in this case were called for,

under Sec. 404 of the Code of C~al Procedure.
The facts were as follow :-
A summons was issued requiring the accused to appear in
person, on the 14th of December 1867, in the Magistrate's
Court at Tha:r;ia, to answer a complaint preferred against him.
The sum~ons was.taken to the house of the accused, and was
read over and explained to him, and he was asked to ae-
knowledge service by signing the summons, but he declined
to do so. For this he was convicted by I. Dracup, Magis-
trate F:· P. at ',!-'ha:r;ia, " of having intentionally refused to
sign, and so prevented the service on himself of the sum-
mons," and sentenced, on the 16th of December J 867, under

D1g1tized by Google
 CROWN CASIS,

Sec. 173 of the Indian Penal Code, to pay a fine of ten 1868.
Pe~- RaG.
ffl ~
L'LTJ.' F.ut1'a.
Pu CuRIA.l( (NEWToN, Acting C.J., and Tucua, J.) : -
Refusing to sign a summons by an accused person does not
constitute the offence of intentionally preventing the service
of a summons on himself. The Court, therefore, reverses the
conviction and sentence, and directs the fine, if paid, to be
restored.
Conviction and sentence reversed.

REG. v. KA'sYA' bin RA'VJI et al. May 20.

lfld. Pm. Code, Sec. 95-Theft-Valqeless Produce.

Conviction and sentence by a Magistrate reversed, u the act of which
the accllled were convicted-talr,.ing pods (almost valueless) from a tree
atanding upon Government wute ground-came within the meaning of
Sec. 95 of the Ind. Pen. Code, and did not, therefore, amount to an
olrence.
THIS case was referred for the orders of the High Court by
J. Elphinston, Acting Magistrate of Canara, under Sec.
434 of the Code of Criminal Procedure.
The accused were sentenced by A'zam Mangesh Shripat,
Subordinate Magistrate, Second Class, at Yellapur, to seven
days' imprisonment, for picking pods (value three pies) oft' a
Moringa. tree standing in a. wa.ste piece of Government
ground in the villa.ge of Yellapur. The Magistrate of the
District observed that it seemed exceedingly doubtful whe-
ther, in taking such valueless produce, any theft was com-
mitted, and that it was quite certain that the punishment
inflicted was excessive.
PER CuRIA.M {NEWTON, Acting C.J., and TucKER, J.) :-As
the pods were taken from a tree on Government ground, and
were of no value to Government, not being made use of, the
Court considers that the case comes within Sec. 95 of the
Indian Penal Code, and reverses the conviction and sentence.
The Court considers the conviction and sentence very dis-
creditable to the Second Class Subordinate Magistrate who
tried the case.
Conviction and sentence reversed.

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 =
36 BOXBA.Y BI4ll CO'IJBT ltEPORTS.

1808.
llay IO.
REG. v. VITHU bin MA'LLU.
Po,t Offic, 4ct-Juri,cfiction-8ubordinate MCl!Ji,trate•
.A. Subordinate Magistrate has jurisdiction to try a prisoner for an of-
fence under Sec. 47 of the Indian Poat Office Act (Act XIV. ofl866).

THEfor record and proceedings in this case were referred

the orders of the Court by J. R . Arthur, Magistrate of
the District of Satara, under Sec. 434 of the Code of Crim-
inal Procedure.
The accused was convicted and sentenced to pay a fine,
under S_ec. 47 of the Indian Post Office Act (XIV. of ~866),
by the Secoxicl Class Subordinate Magistrate at Tasgam.
The Magistrate of the District was of opinion that offences
under the above Ac~ were not cognisable by a Subordinate
Magistrate, ti,nd that, therefore, the trial of this case was
illegal.
PER CURLUC (NEWTON, Acting C.J., and TucKER, J.) : -
Under the provisions of Sec. 58 of Act XIV. of 1866, with
the interpretation given in Sec. 2 of that Act, the Court
considers that a Subordinate Magistrate is competent to
convict of an offence under Soo. 47.

May !O. REG. v. SAKYA' valad KA'vJI et al.

Sentne-Amalgamation of Sentenc-'l'ransportation-Ind. Pen.
• Cork, Sec. 75.
Sentence of transportation for fourteen years under Sec. 392 of the Ind.
Pen. Code annulled, as the offence for which 11uch sentence was puaed wa1
not committed ,uhsequently to any conviction; and Sec. 75 had, therefore,
been improperly applied.
Semble, that a Seasion Judge cannot (under Sec. 75 of the Ind. Pen.
Code, or otherwise), by amalgamating a sentence which he is competent
to pus upon a prisoner with a sentence under which such prisoner is,
already undergoing imprisonment, anti commuting the latter sentence,
condemn such prisoner to a longer period of transportation than he ia liable
to suffer for the crime of which he has last been convicted.

THE record and proceedings in this case were sent for by

the High Court on a review of the Criminal Return of
the hiQ.U J~dge of 4311).~.

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 CBOWB CAIi&. a,
The accused were oonvioted by A. Bosanquet, Acting 1888.
Session Judge, of robbery, under Seo. 892 of the lndia.n ~-
Penal Code," in having, in the month of May 1867, caused 11.u:u' lu'vn
. d~
wrongful restramt to one Ganga, wife of Bhau, and dis-
honestly and without her consent taken from her ornaments
of the value of Rs. 7 or thereabouts." The following is an
extract from the finding of the Session Judge:-
" The accused No. 1 is now undergoing a sentence of
five years' rigorous imprisonment for ·robbery, and f\CCused
No. 2 has been sentenced for robbery to two terms of five
years' rigorous imprisonment, the second to begin after the
expiration of the first.
"According to a ruling of the Calcutta High Court (to be
found at page 1, Vol. II., Ca.le. W. Rep., Cr. R.), 'to bring
Sec. 59 of the Penal Code into operation, the pllllishment
awarded for one offence a.lone must be seven years' imprison-
ment, and cannot be made up by adding two sentences
together and then commuting the amalgamated period to
transportation.' This ruling is not by a Full Bench, nor
does it quote a Full Bench ruling on the subject. The con-
sequences of this ruling would be, in my opinion, very in-
convenient, and such as cannot have been intended by the
Legislature.
"Assuming it, however, to be coJ;'l'ect, I think that Sec. 75
of the Indian Penal Code empowers me to pass sentences of
transportation on the accused Nos. 1 and 2, to commence
from this day, and to include the unexpired portions of the
previous sentences passed on them.
" The Court-concurring with the assessors in the case of
accused No. 1, Sakya, son of Kavji, and differing from them
in the case of accused No. 2, Dhon9i, son of Ramji-finds
that accused No. 1, Sakya, son of Kavji, and accused No. 2,
Dhongi, son of Ramji, are guilty of the offence stated in the
charge, namely, of robbery, an offence punishable under
Sec. 892 of the Indian Penal Code ; and the Court, under
Sees. 892 and 75 of the Indian Penal Code, directs that
accused No. 1, Sakya, son of Kavji, be transported for ten
yea.ra, to begin from this day, and. to include the ll».~xpired

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 38 BOKBAY IDGH COURT REPORTS.

1868. portion of the sentence passed on him in case No. 57 of the

R:~· , General Calendar for 1867, which sentence is hereby com-
S.u:.u' K.A.'m muted· and that accused No. 2 Dhondi soil of Ramii be
et al. · ' ' • ' " '
transported for fourteen years, to begin from this day, and
to include the , unexpired portions of the sentences passed
on him in cases No. 47 and 57 of the General Calendar for
1867, which sentences are hereby commuted."
PER CuRIAM {NEWTON, Acting C.J., and TucKER, J.) :-Sec.
75 of the Indian Penal Code has been improperly applied
to the case of Dhon<Ji, and a longer term of transportation
awarded than can be given under Sec. 392 of the Indian
Penal Code, inasmuch as the offence for which sentence of
transportation was passed was not committed subsequently
to any conviction. The Court, therefore, annuls the sen-
tence, ·and directs that a legal sentence be passed.
In the case of Sakya, Sec. 75 of the Indian Penal Code
has been improperly and unnecessarily applied, as the sen-
tence of transportation was a legal one under Sec. 392 of
the Indi~ Penal Code ; and the Court, therefore, does not
interfere.

April I. REG. v. GANu bin TA'TIA' SELAR.

Complaint-Sanction-Crim. Proc. Code, Sec. 168.

Prosecution for non-attendance in obedience to a summons was enter-
tained without the sanction or complaint required by Sec. 168 of the
Criminal Procedure Code :-Held that there was an implied sanction for
the prosecution, as the conviction was by the same Magistrate whose
summons was treated with contempt.

THE accused was convicted by the Second Class Subordi-

nate Magistrate of Karanja, in the ThaQa District, under
Sec, 174 of the Indian Penal Code, or"" non-attendance in
obedience to a. summons from a public servant," and sen-
tenced to pay a fine of eight annas, or in default to suffer
simple imprisonment for one day.
The case was referred for the orders of the Court, under
Sec. 434 of the Code of Criminal Procedure, by J, W.

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 CROWN CASES. 39
Robertson, Acting Magistrate of'the District, who remarked 1868.
that the prosecution in the case was entertained without ~e :S:·
sanction or complaint required by Sec. 168 of the Code of TA'T?:.:u.a.
Criminal Procedure.
PER CURI.UC (NEWTON, Acting C. J., and TucKER, J.) :-
Although the proceedings would have been more regular if
express sanction had been given for the prosecution, still
as the charge was tried before the ea.me Magistrate whose
summons was 'treated with contempt, his ea.notion for the
prosecution must be implied, and under such circumstances
no complaint was necessary.
No order.

May!O.

Slffllffl0u-Ncnt-atttllda11ct i11 olndi~t to nmmot11--~enue cu-Rtg.

XVJI. of 1827, Stc,. 26 alld 29.

Htld that a conviction under Sec. 174 of the Indian Penal Code for
" having intentionally omitted to attend the Mahalkari'11 Katchm to give
evidence in a revenue case, under Sees. 26 and 29 of Reg. XVII. of 1827,
though the summons wued wu duly served upon the accused," wu not
illegal.

THIS case was referred for the orders of the Court by J. .

Elphinston, Acting Magistrate of the District of Canara,
under Sec. 434 of the Code of Criminal Procedure.
The accused was convicted by the Subordinate Magistrate
of the Second Class at A'nkola, under Sec. 174 of the Indian
Pena.I Code, of having intentionally omitted to attend the
Ma.halkari's Katcheri to give evidence in a revenue case,
under Sees. 26 and 29 of Reg. XVII. of 1827, though the
summons issued for his appearance was duly served on and
signed by him. The Acting Magistrate of the District, how-
ever, was of opinion that the said Regulation did not authorise
the issue of summons for the attendance of witnesses to be
examined under its provisions, and that, therefore, the accused
was not liable, under .Sec. 174 of the Indian Penal Code.
PER CuRIAM (NEWTON, Acting C.J., and TuoKER, J.):-
'fhe Court does not consider the conviction illegal, and will
not, therefore, interfere.

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 BOMBAY HIGH COURT R.EPOBTS.

1888. REG. v. KABHA'I RAVA 1 BHA1I et al.

May to.
Charge, omisrion to prepare a charge-Crim. Proc. Code, Sec. 250.

Hdd that the omission to prepare a charge did not vitiate the pro-
ceedings ; and conviction upheld.

CASE referred for the orders of the Court by G. W. Elliot,

Acting Magistrate of the District of K.he<J.a, under Sec.
434 of the Code of CriU1inal Procedure.
Damodhardas Goka.ldas, Subordinate Magistrate of tho
Second Class at Matar, convicted the accused, under Sec.
504 of the Indian Penal Code, of " intentional insult with
intent to provoke a breach of the peace," and sentenced him
to pay a fine, without having prepared a charge in writing,
as prescribed by Sec. 250 of the Code of Criminal Prooedure.
The matter having come to the knowledge of the Acting
Magistrate of the District, he called for an explanation from
the Subordinate Magistrate, who thereupon, on the 23rd
ofMarch.1868, preparedacharge in writing, dating it the
30th of January 1868, and filed it among the proceedings.
PER Cu&IAH (NEWTON, Acting C.J., and TucKER, J.) :-The
irregularity complained of, though very great, cannot be said
to have occasioned a failure of justice ; and it, therefore,
forms no proper ground for setting aside tho trial or re-
~ersing the judgment (Sec. 439 of the Criminal Procedure
Code.) The proceeding of the Subordinate Magistrate in
preparing and antedating a charge after explanation was
called for was highly improper.
No order.

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 CROWN CABJCB. 41

REG. v. YEssA'PPA' bin NINGA'PPA'. 1868.

HayZO•
.4,,.~ in cue, of'I'M/t-FiM-&coi,ery o/StoltnProptrty.
Where loss is occasioned to a person whose property has been stolen,
it is not illegal for the trying Magistrate to award portion of the fine in-
flicted on the accused as amends to the owner of such property, although
the stolen property is recovered and restored to the owner.

THIS case was referred for the orders of the Court by J.

Elphinston, Acting Magistrate of the District of Canara,
under Sec. 484 of the Code of Criminal Procedure.
The accused was convicted of having cut and removed
from the Government jangala a.t Ambadghey, without per-
mission, three teak poles, worth eight anna.s, by the Subordi-
nate Magistrate of the Second Class a.t Ha.llial, who a.warded
a. sum of one rupee to be. credited to the Forest Depart-
ment from the :fine levied from the accused, and ordered
the wood thus stolen to be returned to Government.
· The Magistrate of the District was of opinion that, as the
stolen property was recovered, it was unnecessary to direct
any portion of the fine to be credited to the Forest Depart-
ment, and observed that the a.mount a.warded was in excess
of the injury alleged to have been committed.
PER .CuRUM (NEWTON, Acting C.J., and Tue.KER, J.) :-As
the trying officer considered that loss had been occasioned
to the Forest Department, the award of the fine was not
illegal, and the Court cannot interfere.
No ordB'r.

REG. V. PA'NDURAllG MAYRA1L AND RA'MKRISHNA HARI. June 10.

lni,estigation by Magistrate-Discharge--:Crim. Proc. Code, Sec. 171.

Where, under Sec. 171 of the Criminal Procedure Code, a case is sent
up for investigation by a Magistrate, it is competent for such Magistrate
to discharge the accused, under Sec. 225, if, in his opinion, the evidence
against the accused is not sufficient to warrant their committal to the
Session Court.
THIS case was referred for the orders of the High Court
by F. Lloyd, Session Judge at Pu9a, under Sec. 484 of
the Code of Criminal Procedure.
V,-6 CC

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 BOMBAY HIGH COURT REPORTS.

1868. Pangurang, accused No. l, filed a suit against Ramkrish1,1a,

·R=~· accused No. 2, in the Court of the Principal ~adr Amin at
P~~:~:G Pu[.la. In that suit a. document, purporting to be an ancient
et al. deed of sale of a house the subject of the suit, was put in
by the plaintiff together with two rent-notes. The Principal
f;!adr Amfo having come to the conclusion that the deed of
sale had in reality been but recently executed, and was a
forgery, as were also the rent-notes, and that they were
put in by the plaintiff in collusion with the d~fendant, for
the purpose of causing injury to the complainants, Govind
Lakshuinat}. and his brothers, to whom the house in question
had been mortgaged by the defendants, sent both the ac-
cused, plaintiff and defendant, in custody before a Magis-
trate, nnder the provisions of Sec. 171 of the Criminal Pro-
oednre Code, charging them with having, for the purpose
of causing injury to the c~plainant and his brothers, fabri-
cated false documents and used the same as genuine, know-
ing them to be forgeries. He relied upon Sees. 196, ~99,
200, 209,463, and 471 of the Indian Penal Code, as the
clauses under which the acqused should be tried. The
case
ha,.ving, accordingly, come before E.T. Richardson, Magis-
trate F ..P. at Pm;ta, he, after making certain preliminary
inquiries into the matter, was of opinion that there was no
!lufficient evidence to warrant his placing the accused on
their trial, and framing a charge against them, and, therefore,
dismissed the case.

The Session Judge, however,.,thought that, as the case

had been referred to the Magistrate by the Principal f;!adr
Amin under Sec. 171 of the Code of Criminal Procedure, th~
Magistrate was bound to dispose of it by the acquittal, con-
viction, or commitment of the accused.
The case was heard this day, before NEWTON, Actin:g C.J.,
and TucKE:&, J.
PER Cu&IAM :-The Court is of opinion that, as the
charges, for the hivestigation of which the accused were fo1-
warded by the Principal E;ladr Amin to the Magistrate, were,
with the exception of that under Seo. 209 of the Indiait

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 CROWN CAsES.

Penal Code, triable only by the Session Court, it was com- _ _,1=-868_._
petent to the Magistrate to discharge the accused, under B!~·
Sec. 225 of the Code of Criminal Procedure, if he held that P..1.'NDUBANG
M..1.ru'i;;
thei:e were not sufficient grounds to warrant the committal; et ai.
and it would not have been within his competency to acquit
the accused of the principal charges, as suggested by the
Session Judge.
Although the Magistrate has not quoted the section under
which he has discharged the accused, he must be considered
to have acted under Sec. 225 of the Code of Criminal Proce-
dure. Under Sec. 435 of that Code, the Session Judge ha"'
power, should he see fit, to order the case to be committed
to the Court of Session.
No order.

J1U1e 11.

lmprisonmtnt i11 tkfaull of payment offine-A.et (Bombay) VII.

qf 1867, Sec. 31.

Imprisonment in default of payment of a fine inflicted under Act·

(Bombay) VII. of 1867, Sec. 31, ought to be 1iµiple, npt rigorous.

'fHE Subordinate Magistrate of the Second Class at Matar,

Harichand Pan~urang, convicted the accused, under Sec.
31, Cl. 3, of Act VII. ofl867 (Bombay), "of depositing dirt,
filth, or rubbish, except in appointed places," and sentenced
him to pay a fine of four anna.s, or in default of payment
thereof to suffer one day's rigorous imprisonment.
The Acting Magistrate of Khe~a, G. W. Elliott, being of
opinion that the sentence of rigorous imprisonment in de.
fault of payment of the fine was illegal, under Sec. · 31,
referred-the case for the orders of the High Court, u:ndel'
Sec. 434 of the Criminal Procedure Code.
PER CuRIAM (NEWTON, Acting C.J., and TucKER, J.) :-:-
The Court reverses so much of the senteµ.ce as order~ thai
irnprisonment shall be rigorous.

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 .BOMBAY HIGH COURT REPORTS.

1868.
June 17.
REG. v. CHENA1 PPA' valad NA'GA'PPA'.

lmpmonment in default of payment ofjine-Licence-A.ots XXI. and

XXIX. of 1867.
Where a Magistrate sentenced a person, who had neglected to take out
a licence, under Act XXI. of 1867, Sec. 15, and Act XXIX. of 1867, Sec. 3,
to pay a fine of ten rupees, and in default of payment to suffer seven
days' simple imprisonment, the High Court reversed so much of the sen-
tence as awarded imprisonment, as the trying Magistrate had, under the
Act, no power to make such an order.

I N notice
this case the accused was convicted of disobeying a
caused to be served upon him by the Special
Officer for the collection of the License Tax at Solapur, re-
quiring the accused to take out a licence and pay for the
same within the time mentioned in the said notice, and was
sentenced·by J. R. Middleton, Subordinate Magistrate pf
the First Class, to pay a fine of ten rupees, or in default to
suffer seven days' simple imprisonment, under Sees. 15 and
17 of Act XXI. of 1867, and Sec. 3 of Act XXIX. of 1867.
A. C. Jervoise, Magistrate F. P. of the Solapur Sub-
Collectorate, submitted to the High Court the Monthly Crim-
inal Return with the following remarks upon this case:-
" I beg to state that I have entered no observations in
column 19 respecting that part of the sentence which awards
imprisonment in default of payment of the fine imposed : for
it appears to me that, although Sec. 17 of Act XXI. of
1867, which prescribes the mode of recovering penalties, sets
forth that 'all penalties imposed under this Act may be
recovered *** in the manner prescribed by the Code of
Criminal Procedure,' it does not positively state 'shall be
recovered ;' neither do I understand that the law laid down
in Sec. 64 of the Indian Penal Code, which provides that 'in
every case in which an offender is sentenced to a fine, it shall
be competent to the Court which sentences such offender to
direct by the sentence that in default of payment of the fine
the offender shall suffer imprisonment,' &c., is applicable
in this instance."
PER CuRiill (NEWTON and TucoR, JJ.) :-The Court re•

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 ·, . .
.i!. r..i•.ri,.//.( ..·.,"u :/., Jt .'1,
siom:1-::
"
Bar· at .. Law;
CROWN CASES. Lahore. 45

verses so much of the sentence as awards seven days' impri- --=1868=--·-

sonment in default of payment of the fine, as the Court holds R!~·
that, under the Act, the trying Magistrate had no authority ~:~::/:::,:
to make such order.

REG. v. SANTU bin LAKHA1PPA 1 Ko&E. June 17.

Imprisonment-Ind. Pen. Code, Sec. 290-Public Nuisance.

The sentence of imprisonment passed in default of the payment of a
fine inflicted under Sec. 290 of the Indian Penal Code (for committing a
public nuisance) should be one of simple, not rigorous, imprisonment.

THIS case was called for by the High Court on a review of

the Criminal Return of the Magistrate of the District of
Satara for the month of September 1867.
The accused was convicted by Mahadaji Vishvanath, Sub-
ordinate Magistrate of the First Class, of committing a pub-
lic nuisance, in ha.ving allowed dirty water to run into the
street at U'rai;,., and sentenced, under Sec. 290 of the Indian
Penal Code, to pay a fine of five rupees, or in default of pay-
ment to suffer rigorous imprisonment for five days.
On an examination of the Subordinate Magistrate's
Monthly Return, the Magistrate F. P., G. H . D. Wilson, re-
marked that the sentence of imprisonment awarded in defaul,
of payment of the fine should have been simple, and not
rigorous, and that, although Sec. 67 of the Penal Code was
not clear on this point, still on reading Sec. 291 it did not
appear to him proper to award the sentence of rigorous im-
prisonment in cases coming under Sec. 290. The Magistrate
of the District said that, as the law was silent, no order re ..
garding it could be issued.
PER CURI.Al[ (CoucH, C.J., and NEWTON, J.) :-The Court
amends the sentence by substituting "simple" for" rigorous"
imprisonment.

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 -~-

BO:HBAY ~Glf CQJJ&T RlilPOR'.fS.

18Qi.
Jaue l7, RF.a. v. KRISHNA 1 SHET bin NA 1RA1 YANSHET.

Mdmlatdar-.Act V. o/ 1864 (Bombay}-Po,,ession-Rigkt of Way.

Held that an order passed by a Mamlatdar under Act V. of 1864 (Bom-

bay) directing the accused to keep open a right of way to a privy, being in
reality an injunction to refrain from disturbing the possession of the par-
ties, wu, therefore, within the jurisdiction of the Mamlatdar.

CASE referred for the orders of the High Court by F.

Lloyd, Session Judge of PuQa, under Sec. 434 of the
Code of Criminal Procedure.
There was a. privy used by the whole of the people re-
siding in Jambeka.r's 'IJaq_a, the way to which the accused
had blocked up, by fixing a new doorway in the passage
leading to it. The people obstructed thereby complained
t<;> the ¥amla.tdar of the City of Puna, who made an. order,
up.qer Bombay .A.et V. of 1864, directing th~ accm1ed to
allow t'µe complainant a right of way as befC>re, a,nd not;
tp keep the dpor a.cross the · way close<l or locked. Th~
~cuaed qisobeyed this order, for which he was convicted by
E.T. Richardson, Magistrate F. P. at Pul}a, un!ler Seo. 188-
of the Indian Penal Code, and. sentenced to pay a ~e
of twenty rupees, or in default of payment to q.ndergp ~mi
days' simple imprisonment ..
The Session Judge remarked that it did not appear that,
under Bombay .A.et V. of 1864, the Mamlatdar was empowered
ro pass the or.der regarding "right of way,'' which the ac-
cused was found guilty of having disobeyed.
PtR CuRuM (CoucH, C.J., and NEwToN,J.):-The offence,
although described in the finding and sentence as disobe-
dience of an order directing the accused to keep open a
right of way to a privy, was in reality disobedience of an
injunotion to refrain from disturbing the possession of- the
parties, and, therefore, within the jurisdiction of the Mam.
la.tdar.
No orcler.

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 CJWWN CASES.

186A.
June 17.
REG. v. BHA'ou bin SHA'BA'JI.

Crim. Proc. Cork, Stt. 276--Magiatrate l". P. atA pOflJtr to Aear

"PPtal8.

Held that a Magistrate F. P., though empowered to hear appealil, i• not

th4;reby placed in the position of the Magistrate of the District, and that,
therefore, Subordinate Magistrates should not refer cases, under Sec. 276
of the Code of Criminal Procedure, to such Magistrate, but to the Magis-
trate of the District, to whom alone they are subordinate.

THIS case was referred for the orders of the High Court
by R. W. Hunter, Acting Session Judge of Satara,
under Sec. 434 of the Code of Criminal Procedure, with the
following remarks : -
" It appears from the Magistrate's Criminal Return for
April (1868) that this case was first sent to the Subordinate
Magistrate, Second Class, of Taluka Wai, on a charge under
Sec. 379 of the Indian Penal Code, but the Magistrate, con-
sidering the offence to come under Sees. 379 and 411 of the
Indian Penal Code, sent it up to the Magistrate F. P., under
Sec. 276 of the Code of Criminal Procedure. I think the
Subordinate Magistrate should have sent it to the District
Magistrate. I mmit, therefore, refer the case for the orders
of the High Court. I should at the same time state that
the F. P. Magistrate in this instance is empowered to hear
appeals from the Subordinate Magistrate, and, therefore,
the question may, perhaps, still a.rise, whether the Subor-
dinate ~agistra.te was not right in what he did."
PER CuRIAll (CoucH, C.J., and NEWTON, J.) :-The Court
annuls all the proceedings of the Magistrate F. P., and
directs the Subordinate Magistrate to refer the case to the
Magistrate of the District, to whom a.lone he is subordinate.

NoTl!:.-With reference to the word" subordinate" used in the elat11e

" he shall stay proceedings, and shall submit the case to the Magistrate to
whom he is subordinate," occurring in Sec. 276 of the Code of Crimiiiilt
Procedure, the Magistrate of Karwar, M. J, Shaw Stewart, asked to
whom the different grades of Magistrates were subordinate, when the
judges of the High Court directed the following reply to he given t(!
liiblr.......

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48 BOMBAY HIGH COURT REPORTS.

1868. " All Magistrates are Subordinate Magistrates except those who are
Rso. authorised to exerhise the ndl powers of a Magistrate. Subordinate Magis-
11,
BBA1GU
trates are subordinate to the Magistrate of the District or Division of a
8BA1BA'II, District only. It bas been held that where the Government confers upon
8 Magistrate with Full Powers the power to hear appeals under Sec. 412,
that does not make the other Magistrates subordinate to him in the sense
of Sec. 434 of the Code of Criminal Procedure."-Vwe High Court's letter
No. 210 dated the 8th of March 1864.

J'nne 18. REG. V. BA'I DIVA'LI.

Irregular Procedur-Stamp Act, Sees. 3 and52-Complaint-Colkctor'•
Sanction.
Conviction and ~ntence under Sec. 3 of Act X. of ;s62 (Stamp Act)
reversed, because no complaint had been made before the trying Magis-
trate.
A memorandum, under the signature of the Collector, sanctioning the
prosecution, cannot be accepted in the place of a complaint so as to au-
thorise the issuing of a summons.

THE accused was convicted by M. H. Scott, Magistrate

F. P. in the Khega Division, under Sec. 3 of the Stamp
Act (X. of 1862), of being party (grantee) to a deed of gift
on insufficiently stamped paper, and sentenced to pay a fine
of forty-two rupees.
The Acting Session Judge at Ahmedabad, A. L. Spens,
referred the case for the orders of the High Court, under
Sec. 434 of the Criminal Procedure Code, with the following
remarks:-
" I sent for this case to see whether the prosecution had
been commenced by the Collector'ofthe District, as required
by Sec. 52 of Act X. of 1862. I find on the record a. mere
sanction for the prosecution of the accused under the signa-
ture of the Collector, and that the Collector did nothing
more than forward this sanction, with the deed which called
it forth, to the Magistrate.
"The Magistrate apparently acted on this sanction only,
and, without having any sworn complaint before him, issued
his summons to the accused.
" This case is nearly similar to one published at page 34
of the Bombay High Court Reports, Vol. III., and I am of

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 CROWN CASES, 49

opinion that the conviction recorded in this case against Bai 1808.
Divali cannot be uphold. R!~·
. • • BA'x DxvA'tr.
" The quest10n for dec1s1on appears to me to be, whether
the procedure above described constitutes a 'prosecution
commenced' by the Collector, according to the requiremen~s
of Sec. 52 of .A.et X. of 1862, or not; or, in other words,
whether the Collector is bound, like other individuals, to
make a complaint in person, or through a pleader or agent.
" I am of opinion that the Collector is bound to pro-
ceed by formal complaint laid either by himself or through a
pleader or agent. .A.s, however, this ruling is against the
established practice of this district, and as it would occasion
some inconvenience to the Collector's department, I think it
advisable that a. direct decision should be passed on this
point by their Lordships the Judges of the High Court."
PER CuRI.ot: (CoucH C.J., and NEWTON, J.) :-The Court
annuls the conviction, because no complaint, as required by
SPO. 66 of the Code of Criminal Procedure, was made before
the trying Magistrate, either by the Collector ~,r any person
~ duly authorised in his behalf. A memorandum under .the
signature of the Collector cannot be accepted in the place of
a complaint so as to authorise the issuing of a summons.
Conviction reversed.

REG. v. GA'NOJI bin PA'NDJI, June 25.

False Evidence-Contradictory Statements-Alternative Charge-Ind.

Pen. Code, Sec. 193.

Where a person makes two contradictory statements in the course of a

judicial proceeding, he may be tried and convicted of giving false evidence
on a single charge, if there is evidence to show which statement is false.

THE accused was, on the 7th of April 1868, convicted,

under Sec. 193 of the Indian Penal Code, of intention-
ally giving false evidence in a stage of a judicial proceeding,
and was sentenced by .A.. Bosanquet, Acting Session Judge
of the Konkal). at ~al].a, to suffer rigorous imprisonment for
two years.
V,-7 CC+-+-
.
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 50 BOMBAY HIGH COURT REPORTS,

l868. The accused denied, before the Munsif of Mahad, having

R.Eo.
tl. executed a bond on which a suit had been filed against him.
GANO.Tl
PA'NOH.
He afterwards deposed, before the same Munsif, that he
had executed the bond, and he adhered to the latter state-
ment. He was charged on his first statement made before
the Munsif, which on the trial was proved to have been false.
The accused having appealed to the High Court, the
case came on for hearing this day, before CoucH, C.J., and
NEWTON, J.
Shantaram Naraya~, for the prisoner, relied upon the case
of In re No9r Khan Mojum Khan, mentioned in a note to Sec.
193 of the Indian Penal Code in West's Acts and Regula-
tions, where it is laid down that two contradictory statements
will not support a conviction of perjury* (1st April 1863).
Dhirajlal Mathuradas for the pros~cntion.
CoucH, C.J. :-I regret that Mr. West's note is imperfect.,
and gives an erroneous impression of the decision of the late
Chief Justice. In that case there was no alternative charge,
nor was there evidence to show that the statement on which
the accused was charged was false. In this case, though
there is no alternative charge, there is evidence to show
which statement is false, and, therefore, the question does not
arise. The second statement made by the accused was true,
and, seeing that he then stated the truth, we mitigate the
sentence to one year's rigorous imprisonment. Where a.
party states the truth first, and then' tells a falsehood, the
punishment given to him should gener&lly be a severe one.
* NoTE.-Vide 6 Cale. W.R. Cr. R. 65; 8 Ibid. 79; 9 Ibid. 52; and 4
Mad. H. C. Rep. 51. Qutere whether Mr. West's remarks in his introduc.
tory note to Act II. of 1855, with reference to the case of Noorkhan
Mojum Khan, can be aupported.-Eo.

..
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 CROWN C.UEB. l>t
1868.
REo. v. BHAGTIDA's BHAGVA'NnA's. July],

Obltn1ction of Public &n,anta-Jfld. Ptn. Code, Sec. 186-Prit,ate

Hovsu-San,ey-Act I . qf 1865 (Bombay).

Conviction and sentence under Sec. 186 of the Indian Penal Code re-
versed, as the conduct of the accused-refusing to accompany a measuring
clerk employed under Act I. of 1865 (Bombay) to hia (the accueed'a) houee
and permit it to be measured-did not constitute the o6ence of obstructing
a public servant in discharging hia public functions.
QUt2re-Whether Sec. 11 of Act I. of 1865 (Bombay) justifies surveyotl
in entering private houses for the purpose of measuring them.

THIS was an application to the High Court, in the exercise

of its extra.ordinary jurisdiction, under Sec. 404 of the
Criminal Procedure Code.
The Tacts were stated to be as follows :-A measuring
clerk employed in the Revenue Survey Department went to
measure the house of the petitioner at Broach. He found
the house open, and some women in it. They told him to
go to the owner of the house, who was at his shop, and
obtain his permission to enter the house to measure it. He
accordingly went to the shop, where he saw the petitioner,
whom he desired to accompany him to the house and permit
it to be measured. The petitioner replied that he was busy;
that there was no gumasta to leave the shop in charge of;
that he himself did not wish his house to be measured, but
that if the clerk went there the next day, when he, the pe-
titioner, was at leisure, he would allow the house to be mea-
sured. Upon this, the me13,suring clerk lodged a complaint
against the petitioner, in. the Court of the Sub?rdina.te Ma-
gistrate of the First Class at Broach, stating that Act I. of
1865 (Bombay) had been ex.tended to the City of Broach by
a Government notification* ; that, under Sec. 11 of that
.Act, he had a right to enter the accused's house ; that he
wanted to measure the house internally under that .A.et; that
* The Notification, published in the GofJernment Gazette of the 19th of
July 1866, p. 176, is as follows : -
" Under the provisions of Sec. 4 of (Bombay) Act I. of 1865, His Excel•
lency the Governor in Council is pleased to sanction the extension of the
Revenue Survey to the Towns of Surat, Broach, and Bulsar, in the Surat
Colleciorate."

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 -·~-
-:.:: ...

52 BOMBAY HIGH COURT RJ:PORTS.

1868'. the accused did not permit him to do so ; and that, therefore,
R!~· he charged him, under Sec. 186 of the Indian Penal Code,
Riuo~D.a.'?
B n.a.ov.a. .110.a.11.
with the offence of obstrncting a public servant in the dis-
charge of his public functions.
The Magistrate recorded the following finding:-
" The accused, Bhagtidas Bhagvandas, stands charged
with obstrnctin~ a public servant in discharging his public
functions, in ~ot having permitted the complainant, who is
employed in making survey and measurement of houses
in the City of Broach, to measure his house. The complainant
says that when he requested the accused to allow him to
measure his house, he replied that there was no necessity
for taking the measurement. The statement; of the com-
plainant is corroborated by the evidence of his witnesses
Nos. 2 and 3.
"The accused states that he did not make any obstruction,
and that, as he was busy, and there being no gumasta in
his shop, he told the complainant to come on the following
morning. The accused produces two witnesses to support
his statement. These witnesses (Nos. 5 and 6) depose in
favour of the accused. But witness No. 6 says that there
were four or five pa!Us present in the shop at the time the
accused gave the answer to the complainant. Neither the
accused nor his witness No. 5, D~dabhai Narsi, have stated
anything about the presence of these p<Jtils in the shop. The
Court, therefore, does not believe the evidence of the wit-
nesses on the part of the accused. His answer to the com-
plainant, telling him to..come on the following day to take
measurement of the house, is in itself sufficient evidence to
show that he did not allow the work to be done, and thereby
obstructed the Karkun in his duties.
"The work of taking measurement of houses in the City
is distasteful and unpleasant to the people ; and the Court
believes that the accused must have purposely obstructed the
complainant in his work.
" The Court accordingly finds that Bhagtidas Bhagvandas
is guilty of the offence charged, namely, obstructing a pub-
lic servant in the discharge of his public functions, and that

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 CROWN C.ASES, 58

he has thereby committed an offence punishable under Sec. _ _,,18=--68_._ _

166 of the Indian Penal Code; and the Court directs that B:~·
Bhagtidas Bhagvandas pay a fine of t.en rupees, or in default BHAOT,IDA'B
BHAGVA NDA'·s
of payment suffer one week's simple imprisonment."
The case was heard this day, before NEWTON and
TUCKER, JJ.
Nanabhai Hariilas, in support of the petition :-Act No. I.
of 1865 is an " Act to provide for the survey, demarca-
tion, assessment, and administration of lands hel,d under
Government," and not of houses owned by private individuals.
Neither in the preaml:fle of the Act, nor in the body of
it, is the word "houses" anywhere mentioned; and look-
ing to the various provisions of the Act itself, and to those
of Reg. XVII. of 1827, of which it is to be read and construed
as a part, the Legislature does not seem to have int.ended it
to apply to houses. The absence of any provision in it with
regard to giving notice to owners and occupiers of houses,
similar to that in Sec. 62 of the Bombay Municipal Act
--11.n Act intended to apply to houses in Bombay-and the
fact that in the latter Act the Legislature has expressly, in
Sec. 2, defined the term "land" as used therein to include
houses, and not so in the former, strongly support this view.
If this is the proper.construction of the Act, the Governor
in Council could not, by a proclamation in the Government
Gazette, extend its operation, under Sec. 4, to houses; and con-
sequently the measurement of houses in cities is not a part of
• the public functions of a survey officer under that Act. If,
therefore, in doing that he is really obst1'UCted, it is not an
offence under Sec. 186 of the Indian Penal Code. But in
this case there was in fact no obstruction.
Dhirajlal Mathuradas, for the prosecution :-Sec. 4 of Act
I. of 1865 defines what the Revenue Survey is, and what is
its object. It is to preserve record of title over the soil, and,
therefore, the Survey was extended to the Town of Broach.
Sec. 11 shows that it is compet.ent to the Government to
order the survey of any land, and Sec. 2 (d) includes land
under houses. Taking Act I. of 1865 to be part of Reg.
XVII. of 1827, Sec. 2, Cl. 2, of the said Regulation includes

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 BOl!BAY BIQH OOtJ&T REPORTS.

1888. e,ll land, and, therefore, lands under houses are n.ot exempt.
~~- The Municipal Act cannot in any way vary the meaning of
B!=!!!:,a. the word" land," which is to be gathered from the words and
general scope of the Act itself in which the word occurs.

The act of the accused was penal. The complainant was ob-
structed; he could not enter the premises in the absence of
the accused from the house, where there were females alone.
The accused refused to give permission.
NEWTON, J. :-It is not necessary to go into the first two
points raised by Mr. Nanabhai. For myself, and for my
brother Tucker also, I may say that we have grave doubts
whether the Legislature intended to justify surveyors in en-
tering private houses for the purpose of measuring them.
It may be questioned whether the scope of Reg. XVII. of 1827
is such as to include village building sites ; and it is to be
remarked that in Sec. 62 of the Bombay Municipal Act, No.
II. of 1865, provision is made for forty-eight hours' notice
being given before a private house can be entered for the
purposes of that Act, whereas no similar provision is made in
the Bombay Survey Act, No. I. of 1865, passed only a few
months previously. We do not, however, decide this point
now. It is not necessary for us to do so in this case.
On the facts before the Magistrate, we are clearly of opinion
that he was not justified in convicting the accused, and that
he committed an error in law in holding that there was any
obstruction caused to the complainant in the discharge of his'
public functions. The complainant says that when he went
to the house of the accused on the 25th of February last, he
found it open, and that there were some women in it, who
told him that the owner of the house wa.s at his shop, ,i.nd
that he should obtain his permi~sion before entering. He
found the accused at his shop, engaged in counting money,
and desired him to accompany him to the house that it might
be measured. The alleged obstruction, according to the
complaulant ood his two witnesses, consisted in the accused
replying that he did not wish his house to be measured, in
his not accompanying the complaina~t, as de~d by him,

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 CROWN CASES,

and in telling him that he would have it measured when he 1868.

had leisure. This was certainly no obstruction, within the R,,~ 0 •
meaning of Sec. 186 of the Indian Penal Code; and we, BBn1.o·1:1D1.'s
HJ.GVJ.'NDA'S,
therefore, reverse the conviction and sentence complained of.
· TucKER, J., concurred.
Conviction and sentence reversed.
--<:«>-

REG. v. BHAVA1 NISHANKAR HARIBHA'I and two others. July 1.

FalBe Evideace-Joiat Trial-Procetlare.

A person aceused of giving false evidence in a stage of a judicial pro-
ceeding is entitled to have the specific charge made against him tried
independently of a like charge against another person.

THE accused were charged with having given false evi-

dence in a. trial before the Acting Senior Assistant
Session Judge at Broach. Bhavanisha.nkar Haribhai and
Ra.ghunath Bhaidas were said to have falsely stated that a
Bheel of the name of Joga did test certain rupees, and that
Valla.bh Vishvanath, accused No. 3, was present at the time.
The false statement alleged to have been ma.de by Vallabh,
was that he was present when the rupees were given to the
Bheel. In the preliminary investigation before the Magistrate,
and in the trial before the Assistant Se11sion Judge, all three
accused were tried jointly, and each of them, being convicted,
was sentenced to undergo three years' rigorous imprison-
ment.
From the convictions and sentences the prisoners appealed.
The Appeal was heard before WARDEN and GmBs, JJ.
Dunbar (with him Shanta.ram Naraya~) contended that
each of the accu<Jed was entitled to have the specific charge
made against him tried quite independently of the like charge
against the others; that a joint trial deprived him of the
benefit of the evidence of his fellow-prisoners; and that, this
irregularity being such as effected the merits of the case,
the convictions should be quashed. He cited Mayne's Penal
Code, p. 313 (3rd ed.), and The Queen v. Khoab Lall and
others (a).
(a) 9 Cale. W. Rep., Cr. R. 66.

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 56 BOMBAY HIGH COURT REPORTS.

1808. PER CuRIAM :-The Court considers that the Acting Senior
REG.
i·. Assistant Judge, in trying all the three accused jointly on
BHAVA'Nl•
SH.\NKAJt
a charge of intentionally giving false evidence, was guilty
liUJBHA'l of great irregularity. Each of the accused was entitled to
et al.
have the specific charge made against him tried quite in-
dependently of a like charge against another person. The
Court would have been prepared to annul the proceedings,
and order a fresh trial; but upon a review of the evidence it
appears so extremely doubtful that a conviction could bo
arrived at, that they consider the ends of justice will be
best met by reversing the conviction and sentence.
Convictions and sentences reve1·sed.

July 22.
REG. v. NA'ao GoPA'L.
FfJrgery-Copy of a Document-Ind. Pen. Code, Sec. 467.

The forging of a document which purports on the face of it to he a

copy only, and which, even if a genuine copy, would not authorise the
delivery of moveable property, is not punishable under Sec. 467 of the
Indian Penal Code.
The High Court will not alter a conviction by a Session Court aided
by a jury, on a charge only triable by a jury, to one of a nature not
triable by such a tribunal, but will annul the proceedings, and leave
the prosecution to take fresh proceedings against the prisoner on any
other charge it may be advised. ·

THE accused was charged, before the Session Judge of the

District of Pul].a and a jury, with having forged a docu-
ment purporting to give authority for the delivery of move-
able property, and also with having used as genuine the said
forged document.
'.rh.e jury having returned a verdict of guilty on both
these charges, the Session Judge passed a sentence of three
years' rigorous imprisonment on each. From the convic-
tion and sentence the prisoner appealed.
The Appeal was argued before WARDEN and GrnBs, JJ.
White (with him PanrJurang Balibhadra), for the peti-
tioner :-The document, which the accused is said to have
forged and used as genuine, bears on the face 'of it the word

I
t
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~ ---
 CROWN CASES. 57
"copy." The first portion of it purports to be a copy of a 18fl8.
r~port made by the Pa!H of the village of Ambe to the R!~·
Mamlatdar of Barsi, in which the former brings to the notice N.A.'IIOGou'L.
of the latter a certain dispute between two of the rayats of
that village for a share in the crops of a field, and solicits
instructions in the matter. At the end of this first portion
of the document there occurs the name of the Patil. After
this comes the order of the Mamlatdar containing instruc-
tions for the disposal of the matter referred to him, and,
last of all, his name, and the designation of his office. The
whole of the document, from beginning to end, including the
alleged signatures, is said to be in the same handwriting, and
has been treated as such by the Session Judge. Now it has
been proved in the case by the Mimlatdar that he never
wrote an order of the kind. The paper alleged to be forged,
therefore, purports to be a copy of a document which had no
existence. The ma.king of such a paper is, I submit, no forgery
within the meaning of Sec. 467 of the Indian Penal Code.
It is only a copy of such a document as is contemplated in
that section. All the sections of the Penal Code on the
· subject of documents, and the illustrations given by the Le-
gislature, refer to originals. [Gums, J. :-Is not the defini-
tion of the word" document" given in the Pana! Code com-
prehensive enough to take in a document of this nature 7
although I see there is no illustration regarding a copy. The
sections and illustrations all refer to originals, s.nd Russell
-apparently only notices the cases of copies of decrees of court
and of Government records, which are punisqa.ble under
special statutes. ] Even the definition in the Code refers to
originals. At best, the accused may be said to have con-
cocted a document; but every concoction of a document is
not forgery. Supposing A says to B he has got a promis-
sory note from B, and threatens to sue him if he does not
pay the money due upon it. B finds that the document in
possession of A purports to be a copy ·of a promissory note
by B. · If B had never given a promissory note, A cannot be
convicted of forgery or of uttering a forged document, but of
cheating he may be. I, therefore, submit that the conviction
and sentence should be annulled.
V.-8 CC

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 58 BOllBAY BIOH COURT REPORTS.

1-.
Ba
Dhirajlal, contra :-Looking to the definition given in
._ Sec. 464 of the Penal Code, the document appears to be
ll1.• Q-...,'L. an original; at all events it has the effect of an originaJ..
[WABDEN,J. :-We are of opinion that it is a copy, and hM
not the effect of an original document.] [GmBs, J. :-Th~
document, if a genuine copy, is not such a document as that
moveable property could be transferred under it. It does not
purport to be an attested copy, and no Government officer
would act on such a paper. It purports to be an unauthen-
ticated copy of an order supposed to have been given by the
Mamlatdar of Barsi, but which in fact was never given.] If
that be the opinion of the Court, I beg that an order may be
made for a. re-tria.l of the accused on an appropriate charge.
White, in reply :-Unless the Code expressly gives power
to the Court to order a new trial, it must be left to the
prosecution whether the accused should be proceeded with
under some other charge. The Code nowhere gives such
power, and the Court, therefore, cannot interfere. [WARDEN,
J. :-The Court has frequently given such directions, but
never in a case tried with the aid of a jury, because as yet
in no instance has it been found ne"essary to annul the pro-
ceedings in a case so tried.]
PER Cu&IilC :-The accused has been convicted, under
Sec. 46 7, of having forged a document purporting to give
authority for the delivery of moveable property, and, under
Sec. 471, of having used as genuine a forged document.
The document which is alleged to have been forged purports
to be a copy of an order which is supposed to have been
given by the Mamlatda:r, and it has, aH throughout the pro-
ceedings of the Magistrate and Session Judge, been trf',ated as .
_such, and the Session Judge, in his summing up to the jury,
~poke of it as " a copy." This being the case, we consider that
the conviction of the accused under Sec. 467 will not hold
good; for this forged paper, being only a copy and unauthen-
F~ted, would not, if genuine, be a document which coultl.
~veauthority to deliver moveable property. As the convic-
tion under Sec. 467 falls to the ground, the conviction under
Sec. 4 71 must likewise fall to the ground ; for " ~ I

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 dtoWN C1A8E8,

use of e. forged document " is not one of those offences 1•

which of themselves are trie.ble by a.jury, unless the document B~G,
used is of a nature the forging of which is punishable with Ni.'JI& Gon.'L.
ten years' imprisonment, which we hold the document in this
case not to be. Under these circumstances, we annul the
conviction e.nd sentence, e.s well as the proceedings of the
Session Judge, leaving it to the Magistrate, if so advised, to
put the accused on his trial on some other charge.
Conviction and sentence annulled.

.July 18.

Caurinu to be takffl an un10Jaolesome thing with intfflt to infer-Crim-

inal Intention-Ind. Pen. Code, Sees. 81 and 328.
Held that a person who placed in bis toddy-pots juice oftbe milk-bush,
knowing that if taken by a human being it would cause injury, and with
the intention of thereby detecting an unknown thief who was in the habit
of stealing the toddy from such pots, and which toddy was drunk by, and
caused injury to, certain soldiers who purchased it from an unknown
vendor, was rightly convicted, under Sec. 328 of the Penal Code, of
"causing to be taken an unwholesome thing with intent to injure;" and
that Sec. 81, which says that "if an act be done without any criminal
intention to cause.harm, it is not an offence," did not apply to the case.

THIS was an appeal to the High Court from a conviction

and sentence passed upon the accused by C. G. Kemball,
Session Judge of Surat.
TJ>.e facts of the case appear sufficiently from the following
extracts from the finding recorded by the Session Judge :.......
" The accused owns some date-trees at Tithal, from whioh
the toddy was being constantly stolen; and he, as he says,
to detect the thief, put into certain of the pots some of the
juice of the milk-bush.
"On the night of the 21st ultimo some soldiers belong•
ing to the Tithe.I Sanitarium sent out, as they say, to buy
some toddy. The wardboy who was despatched went to :th'.~
trees belonging to the accused, where he bought, he alleges,
not from the accused, but from some third person, some
toddy. At all events, he brought from those trees a pot full
of toddy, and delivered it to the gunner Filloley, who drank
ll<nne and handed it on to certain of his comrades and the

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 60. BODAY HIGH COURT REPORTS•

1868,-'-.- - wardboy,
__ who all drank thereof. Shortly after they were all
a:. 0
•. seized with vomiting and purging, and a burning sensation
D~~~, in the throat; the Staff Assistant Surgeon w.as sent for,
who at once applied the stomach-pump. All recovered soon
from the effects of the liquor, with the exception of one
man, in a more dehcate state of health, who was confined to
his bed for a time. The Assistant Surgeon deposes that he
took the pot in which the remains of the toddy were, and
the following day gave a portion to a fowl, which died.
" That some unwholesome thing was put by the accused
into the pot or pots of which he expected to be robbed of
, the contents, and that certain soldiers and the 'wardboy par-
took of the liquor thus drugged and dosed, is perfectly clear.
The only questions which remain for consideration are-
whether, first, the accused can be said to have administered or
caused to be taken the noxious thing; and, secondly, whether
the accused knew that it would be likely that he would cause
hurt.
"Upon the first, I think, there is sufficient evidence of
the administering or ea.using to be taken. The act of the
accused was not that of an innocent person placing poison
or other unwholesome thing in a place where he could not
reasonably suppose that it' would fall into the hands of some
person ignorant of its nature. He admits, on the contrary,
that he expected his pots would be robbed again of tp.eir
contents, as they had been so often before, and he put the
unwholesome drug in with the intention that it should be
ta.ken by the thief. * * *
"I next come to the intention j;o injure. The assessors
have thought that, because the accused was engaged in the
laudable endeavour to detect the thief' of his property, he
cannot be held to have intended to cause injury; but the
accused says himself that he knew the milk.bush he put in
would ea.use purging. * * *
" The Court, differing from the assessors, ·finds that
Dha.nia Daji is guilty of the offence specified in the charge,
namely, that Dhania. has committed the offence of causing to
be taken an unwholesome thing with intent to injure, and

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 CROWN CASES. ~t
has thereby committed an offence punishable under Sec. 328 _ __,1::-868.
__
of the Indian Penal Code ; and the Court directs that the 0• B:.
said Dhania suffer simple imprisonment for two months." Du.un.A.'
D.t.'n. .
The case was heard this day before NEWTON and Tucox,
JJ.
Nanabhai Haridas for the petitioner.
Dliirajlal Mat!turadas for the prosecution.
PER Cu&IAH :-We are of opinion that Sec. 328 of the
Indian Penal Code applies to this case. It says that whoever
ea.uses to be taken by any person any poison &c. knowing
it to be likely that he will thereby cause hurt, shall be pun-
ished, &c. In order to meet this definition it' is not neces-
sary that the hurt should be caused to any particular person
intended, or that the person injured or likely to be injured
should have been previously known. The accused, with the
object of punishing or detecting the stealers of his toddy,
mixed a poisonous drug with it, supposing that they might
drink it, and he must have known it to be likely that it
might be drunk by others, and that they would suffer in con-
sequence. We consider, therefore, that he "caused it to qe
taken," within the meaning of the section. The case does
not come within the provisions of Sec. 81 of the Indian
Penal Code, which applies cnly to acts done without any
criminal intention to caust, harm.
We must reject the petition.
Petition rejected.

REo. v. V ITHOBA' bin S01u'. July 80.

lmprwonmfflt in default of paymfflt offin-Ind. Pen. Code, Sec,. 40
and 65-Crim. Proc. Code, ~ec. 45-Salt Bl!1'enue Act (XXXI. of 1850),
Sec. 3.
Sec. 45 of the Criminal Procedure Code makes applicable the provisions
of Sec. 65 of the Indian Penal Code not only to offences falling under ·
that Code as defined in its 40th section, but to every case in which a
Magistrate has jurisdiction under Sec. 21 of the Criminal Procedure Code,
Imprisonment for one month awarded in default of payment of a fine
under Sec. 3 of the Salt Revenue Act {XXXI. of 1850) was accordingly
reduced to three weeks' simple imprisonment.
THIS was a case referred for the orders of the High Court
by J. Elphinston, Acting Magistrate of the District of
Canara, with the following remarks : - .

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 BO:MBA.Y HiGH COURT 'REPORTS.

1868. "In a case disposed of by the 1st Class Subordinate :Mit:.

'.B.BG.
11. gistrate at Karwar in this collectorate, in the month of .A.pri1
V'ITHOB.A.' 1868, the accused was found guilty under Sec. 3 of .A.et XXXI.
so1u:.
of 1850, and sentenced to pay a fine of ten rupees, or in de-
fault of payment to suffer one month's' simple imprisonment.
"The punishment prescribed for the offence of which the
accused was convicted by the Subordinate Magistrat.e under
the above section is three months' imp~isonment, and the
award of one month's imprisonment in default of payment of
the fine ordered is apparently contrary to the provisions of
Sec. 65 of th~ Indian Penal Code, being in excess of one-
fourth of the term of imprisonment prescribed for the of-
fence.
"The Subordinate Magistrate was, therefore, called upon
to state how it was that the provision~ of Sec. 65 of the Indian
Penal Code were not attended to by him, in respect to this
case, and he replies 'that the provisions of Sec. 65 of the In-
dian Penal Code are applicable only to offences falling under
that Code, as defined in its 40th section; that the present case
is not one which falls under the Penal Code, and _that, there-
fore, he was guided by the provisions of Sec. 45 of the Code
of Criminal Procedure in deciding the punishment in default
of the payment of the fine, under the authority contained in
Sees. 21 and 444 of the Criminal Procedure Code.'
"I do not agree with the views of the Sub-Magistrate in
thinking that the provisions of Sec. 65 of the Indian Penal
Code are not applicable to the case under notice, my reason
being that this section is also quoted as a guide to procedure
in Sec. 45 of the Criminal Procedure Code, which 'the Sub-
ordinate Magistrate states that he .followed in disposing of
this case."
PER CuRIAlt: (NEWTON ·and TucKER, JJ.) :-The Court is of
opinion that Sec. 45 of the Code of Criminal Procedure makes
applicable the provisions of Sec. 65 of the Indian Pena.I Code
to every case in which a Magistrate has jurisdiction under
Sec. ·21 of the Code of Criminal Proceednre.
The Court reduces the imprisoninent awarded in default of
payment of fine to three weeks' simple imprisonment.

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 Ol!O~ CASJ;~.

REG. v. LALLU KA'RwA'R.

Fin-Immoveable Property- Ind. Pen. Code, Sec. 70-Crim. Proc.

Code, .Sec. 61.

On a reference as to whether the restriction for the recovery of fines to

moveable property (Crim. Proc. Code, See. 61) applied only during the
lifetime of the offender, and whether the fine could after h~ death b4;
recovered, under Sec. 70 of the Indian Penal Code, from his immoveable
property, the Court was of opinion that the law had only provided for
the distreaa and sale of moveable property, and that there was no way in
which immoveable property could be made liable.

· THIS was a case referred for the orders of the Court by

G. W. Elliot, Acting Magistrate of the Khega District,
to whom the following reference had been made by M. H.
Scott, Magistrate F. P., under date the 17th of April 1868 : -
" One Lallu Karwar was fined twenty rupees, on the 11 th
of December 1865, by G. H. Johns, Magistrate F. P., and
a. warrant was issued under Sec. 61 of the Criminal Procedutev
Code. The individual died a short time since, leaving some
immoveable but no moveable property. A portion only of
the fine has been paid.
"By Sec. 70 of the Indian Penal Code, the death of an
offender does not discharge his property from liability ; but
Sec. 61 of the Criminal Procedure Code points only to move-
able property, while the wording of Sec. 70 of the Indian
Penal Code is ' any property.'
"The Calcutta High Court has ruled that the restriction
a.ato moveable property applies only during the lifetime of
the offender, but that after his death within six years from
the passing of the sentence, the fine may, under Sec. 70 of
the Penal Code, be recovered from any property which may
be legally liable for his debts (a). ·
" Should you have on record any decision on this point,
I shall feel obliged by your communicating it to me ; if n.ot,
I have the honour to request that this matter may be re-
ferred to Government, with a view to a decision on the
point."
(a) Vule Primep'• notes to Sec, 61 of the Code of C ~ P~Ul'e,

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64 l301CBAT HIGH COURT REPORTS.

1868. PEtt CURIAM (NEWTON and TUCKER, JJ.) :-The law has pro-
V, vided for the tlistress' and sale of moveable prop1rty only,
LALLU
KA':&WA'L
and the Court ca.nnot point out any way by which the
immoveable property may be made liable to pay the fine.
Under these circumstances, the Court considers that the
immoveable property should not be proceeded against after
the death of the offender.

·J.1ily 80. REG, v. LALLUBHA1 I JASSUBHA 1I,

Dispensing with Personal Attendance of Accused-Recognisance Bond-

.Agent-Crim. Proc. Code, Sees. 182,258, and 26L

Hlld, that where the personal attendance of an accused i.a. dispensed

with, a recognisance bond, if such is deemed necessary, should be taken
from ltim, and not from his agent, binding him (the accused) to appear,
either in person or by an agent ; and that a Magistrate has no legal
authority to secure the attendance of an agent by such a bond.

•THE papers and proceedings in this case were sent for by

the Court, under Sec. 404 of the Code of Criminal Pro-
cedure.
The facts of the case are these :-Ahmad Alli Imam Haidar- ·
ba.khsh and others were accused of breaking the padlock of
a cha1tra and taking possession of the same, together with
that of the village oflssanpur. The petitioner, Lallabhai, pre-
sented a petition to the trying Magistrate, Kuvarji Kavasji,
praying that the personal attendance of the accused Ahmad
Alli might be dispensed with, and he, the petitioner, allowed
to r.epresent, and answer the complaint preferred against,
the accused. The application was granted under Sec. 182
of the Code of Criminal Procedure; and, in order to ensure
his attendance during the inquiry into the complaint, a re-
cognisance bond in the sum of Rs. 100 was taken from him,
in the same manner as one would have been taken, under
Sec. 258 of the Code of Criminal Procedure, from the ac-
cused Ahmad Alli. The petitioner, however, having failed to
appear at the hearing of the case, the Magistrate ordered the
recognisa.nce bond to be enforced. Upon this the petitioner
presented a petition to A. L. Spena, Session Judge of Ah-
medabad, but he rejected it with the following remarks:-

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 CROWN C.AS.t:S, 65

"I see no illegality in the Magistrate's proceedings in --=lSa--68_._

this ca:,;e. The petitioner himself passed the recognise.nee n:. 0 •
bond to be present as occasion might require, and it was JASSUBHA'I.
LAttuBHA'I

clearly his duty to be present when the case was called on by

tho Magistrate. The petitioner has failed to show any satis.:
factory grounds for action on my part under Sec. 434 of
the Criminal Procedure Code. As this is not an appeal, I
am not called on to seo whether the petitioner has been pro-
perly fined or not."
The case was heard this day, before NEWTON and TUCKER,
JJ.
Pa·ruf.iwang Balibhculra for the petitioner.
Dhirajlal Mathurai.las for the prosecution.
PER CuRI.A.:r.t: :-In a case where the personal attendance of
an accused is dispensed with, a .recognise.nee bond, if deemed
necessary, should be taken from him, and not from his agent,
the accused being bound, under the terms of such recogni-
sancc, to appear, either in person or by an agent, and if the
agent neglected to attend when the case was called on, the
recognisance bond might be held forfeited, and the accused
made liable for the payment of the penalty. We hold that
the Magistrate had no legal authority to secure the attend-
ance of the agent by a bond of this description, and ac-
cordingly annul the Magistrate's order directing the en-
forcement of the recognisance bond taken from the agent.
01·,ler annulled.

REG. v. CIIA.NVERA'YA' bin CnANBA.SAYA'. July 30.

Offence not triable by Subordinate ~Iagistrate-Power of District Magis-

trate to annul conviction-Crim. Proc. Code, Sees. 427 and 434.
Where, on appeal from a conviction by a Subordinate Magistrate, the
Magistrate of the District is of opinion that the offence which the evi-
dence brings home to the prisoner is one not triable by a Magistrate, and
that nn illegality has been committed, he should refer the matter for the
orders of the High Court, under Sec. 434 of the Criminal Procedure Code;
such Magistrate cannot himself, under Sec. 427, annul the conviction,
and direct the committal of the prisoner to the Court of Session upon
the proper charge, ·

THIS was a reference made for the orders of the High

Court by J. Elphinston, Acting Magistrate of the Dis-
v.-9 CC

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 '

BOMBAY HIGH COU&T REPORTS,

--=18=--68_._ trict of Canara, unde1• date the 2nd of July 1868, with the
,,,
REa. following remarks :-
CHANVERA'YA'
011ANBABA'u'. " The facts deposed to by the witnesses for the prosecution

appear to me sufficient, if proved, to establish a charge of at-

tempt to commit rape ; but the Subordinate Magistrate tried
the case himself, under.Sees. 354 and 457 of the Indian Penal
Code, and sentenced the accused to three months' imprison-
ment and to pay a fine of twenty-five rupees, or in default of
payment to suffer one mo1:1-th's rigorous imprisonment.
"As the evidence for the prosecution did not appear to
tne worthy of belief, I reversed the judgment of the lower
court;
" I wish, however,· to be favoured with the instructions of
the High Court in what way to dispose of a case, in which
the fault committed and brought home to the accused before
a Subordinate Magistrate of the First Class is one not tri-
able by a Magistrate at all. Is it competent to me, as laid ·
down in Sec. 427 of the Code of Criminal Procedure, to
annul the conviction and sentence, and to direct the com-
mittal of the accused before the Court of Session ?
"It may be held that Sec. 427 gives this authority only to
a Court of Session, and the decision in the case of J{aliclas
Lcildas, 21st March 1864,noticed under Sec.427in Mr. West's
edition of the Criminal Procedure Code, throws some doubt
on my view of the case (expressed in my judgment in ap-
peal), but in the case quoted, the qualifying words "in gene-
ral" occur, and I am of opinion that the objection made in
the case of Kalidas Laldas could not occur in a caso like tha.t
under reference, where the facts, if proved, undoubtedly in-
dicate an offence demanding a far heavier penalty than it is
within the power of a Subordinate Magistrate to inflict."
PER CuRIAM (NEWTON and TUCKER, JJ.) :-Any case of the
character reported by the Magistrate in which he shall be
of opinion that an illegality has been committed, should be
referred to the High Court, under Sec. 434 of the Code of
Criminal Procedure. He is not competent himself, under
Sec. 427, to annul the conviction and sentence.

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 CROWN C'ASES, 67

1868.
Aug. 6,
Injury by Fire-Ind. Pm. Codt, St!c, 285.
•
Ht!ld that the wor,l "injury" (rashly caused by fire &c.) in Sec. 285 of
the Intlian Penal Code includes any harm illegally caused to the property
of any other person, and is not confine,l to injury to the person only.

THIS case was referred for the orders of the High Court by
T. C. Hope, Magistrate of the District of S(1rat, under
Sec. ~4, of the Code of Criminal Procedure.
'fhe facts aro these :-V\Thile a marriage proceRRion was
going on, the accused, who was one of the procession, used
fireworks on the road, which burnt two bundles of the
straw with wl1ich a man4va belonging to the complainant
was thatched, thereby causing him an injury. For this act
the accused was convicted under Sec. 285 of the Indian Penal
Code, and sentenced to pay a fine of ten rupees by the Sub-
ordinate Magistrate of the Second Class at Hansot. The ·
l\fogistrato of the District, however, was of opinion that the
· act charged was attended simply with injury to propert.y,
and that as such it did not come within the scope of Sec.
285 of the Indian Penal Code, which, in the opinion of the
District Magistrate, only contemplated personal injury.
PER CuRIAM (NEWTON and Tucx:ER, JJ.) :-Considering
the definition of the word " injury" given in Sec. 44 of the
Indian Penal.Code, and the general declaration contained in
Sec. 7 of the said Code, the Court is of opinion that any
harm illegally caused to the property of any person comes
within the term " injury" as used in Sec. 285 of the Indian
Penal Code. The conviction and sentence appear, therefore,
to have been legal.

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68 BOMBAY IUOH COURT REPORTS.

1868.
Ang. 13.
Rrm. v. DA'MODHAR RA'McrrANDRA KutKARNI.

False Evidence-Ind. Pen. Code, Sees. 191 and 192.

To constitute the offence of giving false evidence under Sec. 191 of the
Indian Penal Code, it is not necessary that the false evidence given
11hould be material to the case in which it is given. .Aliter under Sec. 192,
Where the Senior Assistant Session Judge without taking evidence
acquitted the accused after calling upon him to plead, the prosecutor being
unable to say that the alleged false statements of the accused were material
to the trial on which they were made, the High Court reversed the order
of acquittal, and directed the trial to be proceeded with. ·

THIS was a case submitted by A. Clarke Jervoise, Magis-.

trate F. P. in charge of the Solapur District, for the
orders of the High Court.
The accused was committed for trial to the Senior Assist-
ant Session Judge's Court for committing an offence, as de-
fined in Sec. 191 of the Indian Penal Code, namely, giving
false evidence .. N. Daniell, Acting Senior Assistant Session
J"udge, pointed out to the Government Prosecutor that it
must be shown that the alleged false statements were material
to the case in which they were made. The Government-Pro-
secutor being unprepared to do so, the Senior Assistant Ses-
sion Judge acquitted and discharged the accused, after only
calling on him to plead.
In submitting the case to the High Court, the Magistrate
observed :-" Sec. 192 of the Indian Penal Code requires
that fabricated false evidence should affect a 'point material
to the result' of the proceeding in which it appears; but this
provision is omitted (apparently purposely) in Sec. 191 of
the Indian Penal Code, which defines the offence of giving
false evidence, and nowhere lays down the above restrictive
proviso."
PER CuRI.A.M (NEWTON and TUCKER, JJ.) :-The Senior As-
sistant Session Judge, instead of proceeding with the trial o_f
the accused, who was legally committed for trial before him,
acquitted him after only calling on him to plead, having
erroneously held .that it was necessary that the false state-
ments with which he was charged should be material to the
trial in which they were made, and that they were not mate-

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 CROWN CASES, 69

rial. The Court, therefore., reverses the order of acquittal __1~

made under these circumstances by the Senior Assistant Ses- REo.
11.
sion Judge, ancl directs that the trial be proceeded with. DA'Mo»H AR
R. KULKARNI.
Onler of acquittal roversecl.

REG. v. KRISHNA' PAnAsrrn.A'M et al. Aug. 26.

District Magistrate-Full Power 1,[agistrate-Subordinate Magistrat~

Crim> Proc. Code, Ck. xn., and Sees. 14, 273, and 434.
Held that the Magistrate of a District before whom a criminal case is
brought, either on complaint preferred directly to such Magistrate, or on
the report of ,a Police Officer, cannot, under Sec. 273 of the Criminal
Procedure Code, refer such case to a Magistrate F. P.
A Magistrate 1''. P., though executively inferior to the Magistrate of
the District, is not a " Subordinate Magistrate" within the meaning
of Ch. xvi. of the Criminal Procedure Code, nor is he "immediately
subordinate" to the District Magistrate, within the meaning of Sec. 434
of the same Code.

THIS case was referred for the orders of the High Court,
under Sec. 434 of the Criminal Procedure Code, by T.
C. Hope, Magistrate of the District of Surat.
The facts appear from the judgments.
The case was argued before a Full Bench (CoucH, C.J..,
NEWTON, WESTROPP, TucKER, WARDEN, and Grnas, JJ.) on
the 5th of .August 1868.
White (with him Dhfrajlal Matlmraclas, Government
Pleader) for the Crown.
Our. adv. v11lt.
Coucn, C.J. :-In this case a complaint was made to the
Magistrate of the District of S.urat of .voluntarily causing
hurt, and he referred the case to a Magistrate F.P., who
refused to hear it ; and the question we have to deter-
mine is whether he was right in his refusal. The opinion ,
that a Magistrate with full powers is not subordinate to
the Magistrate of the District in the sense in which that
word is used in the Code of Crimin~l Procedure, and that
the Magistrate of the District has not power to refer a case
to him, was, I understand, held by the late Chief Justice
and Mr. Justice Hebbert and Mr. Justice Forbes; and this

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 70 BOMBAY HIGH COURT REPORTS,

-~l";<°S6__s_._ Court has, from the time of its establi.shment, acted upon that
REo.
'II,
view of the law. But the col'l'ectness of this opinion has
KRISHNA' lately been questioned, appar_ently in consequence of the
l'ARASHRA'M
et al. circular of the High Court at Calcutta,* as to the meaning of
the term "immediately subordinate" in Sec. 434 of the Code
of Criminal Procedure ; and we, therefore, thought it_ right
that the matter should be argued before a Full Court.
In the case of Dipchand Khitshal (a) it might seem that
the point was decided by this Court, as the Session Judge
had broadly laid down tho proposition that the Magistrate
.of the District has no power to refer a cii,se to a Magistrate
F. P., and the Court reversed the conviction. But there the
case had not been brought before the Magistrate of the
District either on a complaint preferred directly to him, .or _
on the rep.ort of a Police Officer, to which cases only Sec. 273
of the Code of Criminal Procedure is applicable ; but the case
was sent by a Munsif for investigation under Sec. 16 of
Act XXIII. of 1861. If it is to be contended that the
Magistrate of the District has power to refer such a case to
another Magistrate, some other provision of the law than
Sec. 273 must be relied on. It would not be right to treat
tl1e case of Dipchancl Khushal as deciding generally that the
Magistrate of the District has no power to refer any case
to a Magistrate F. P.
In the present case, where a complaint was preferred di-
rectly to the Magistrate of the District, the determination of
the question depends upon the construction which is to be
put upon Sec. 273. It is the first of a series of sections
forming Ch. xvi. of the Code of Criminal Procedure. It com-
mences thus _:·-" Criminal cases brought before the Magis-
trate of the District, or a Magistrate in charge of a Division
of a District, either on complaint preferred directly to such
Magistrate, or on the report of a Police Officer, may be re-
ferred by such Magistrt1.te to any Magistrate subordinate to
him." Now the words" any Magistrate," by the i~terpreta-
tion clause, Sec. 15, include Magistrates with fu.11 powers as
* No. 2 (7 Cale. W. Rep., Cri. Cir. Orders, p. l).
(a) 4 Bom. H. C. Rep., Cr. Ca. 30.

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 CROWN CA.SES, 71
well as persons exercising less than the full powers of a Ma- -...,1~86:..:8~._
gistrate; and the words "subordinate to him" may mean ~ 0•
either that the Magistrate is subject to have his decision ap· KR1iluN..1.'
PARABRRA .ll 1

pealed against, or revised by the Magistrate of the District, or et a.Z.

simply that he is what is called executively subordinate to
him. In order to ascertain the intention of the Legislature,
it is necessary to look at the whole of the section. It pro-
ceeds-" The reference shall be for inquiry, or for trial if the
offence be triable by such Subordinate Magistrate, or with
a view to commitment to the Court of Session, or with a
view to commitment to the Supreme Court of Judicature if
such Subordinate Magistrate is competent to commit to such
Supreme Court. Provided that nothing in this section shall
prevent any Subordinate Magistrate from entertaining, .
either on complaint preferred directly to such Magistrate, or
on the report of a Police Officer (in cases in which the Sub-
ordinate Magistrate is authorised to receive such report),
any case that such Magistrate is, by any law for the time
being in force, competent to entertain." I think the intro-
duction of the word "subordinate" before " Magistrate" in
this part of the section, which describes the nature of the
referenee, shows the intention of the Legislature to be, that
the section was to be applicable to the class of Magistrates
known in the Code as Subordinate Magistrates. Otherwise
it would have been enough, wherever the word is used in
this section, to have said merely " such Magistrate." If
we look at other parts of the Code to ascertain what is
meant by a subordinate Magistrate, we find in Sec. 22 cer-
tain officers so called, whose powers are defined. What is
called executive subordination is nowhere defined, and, ex-
cept in Sec. 14, is not alluded to. 'J.1hen in the other sections
in Ch. xn. we find the same use made or'the word" sub-
ordinate," and the provisions of Sec. 277 cannot be appli-
cable to Magistrates with full powers.

Further, if the words of the section admit of any reason-

able doubt, tho title of the chapter may be looked to. This
is allowable with regard to the title of an Act of Parliament;
and the heading of a chapter is more specific, and likely

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 72 BOMBAY HIGH COURT REPORTS.

__1_s_6s_._ more accurately to express the intention. In Marriage v.

REG.
t•.
The Eastem Counties Railwa,y Company (b), the heading of
• KRrnHN;\' a set of sections of the Lands Clauses Consolidation Act, 1845,
PARA.BHRA'.11
et al. _ was referred to in order to interpret one of the sections. Now
the heading of Oh. xvi. is " Of inquiries and trials before
the subordinate Magistrates," and who are " the subordinate
Magistrates" here intended? Not, I think, Magistrates
with full powers, to whom the provisions in Oh. xu., xm.,
xiv., and xv. are applicable, but the Subordinate Magistrates
mentioned in the previous part of the Code. Collecting then,
as I must do, the intention of the Legislature from the
language it has used, I am of opinion that Magistrates with
full powers do not come within Sec. 273, and that the
Magistrate of the District has not power under that section
to refer cases to them.
If I thought the meaning of the section doubtful, and that
it was allowable to me to consider the consequences of this
construction, I am unable to see that any inconvenience to
the public will be caused by requiring the Magistrate of the
District, when the case brought before him is beyond the
jurisdiction of a Subordinate Magistrate of the First Class,
to dispose of it himself, and to exercise the powers which
the law has conferred upon him, ancl which it may reason-
ably be presumed were conferred by the Legislature ,vith a
view to their being exercised. The circular of the High
Ccurt at Calcutta as to the interpretation of Sec. 434 does
not alter my opinion. Indeed, notwithstanding my great
respect for the Chief Justice of that court, who appears to
have been present at the issuing of i~, I doubt whether Sec.
434 is correctly interpreted in it. The section appears to
intend that the Magistrate who calls for and examines the
record, and the Magistrate who refers the proceedings for the
orders of the High Court, shall be one and the same person,
aud the direction that the Magistrate of the District shall
forward the proceedings of a Fnll Power Magistrate through
the Sessions Judge, does not seem to me to be' consi:;tent
with the terms of the section. I think, therefore, that the
(b) 9 , Lo. Ca. 32.

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 CROWN CASES. 78

reference in this case was not authorised by law, and the _ _,1=-868..;..c.;.._
Magistrate to whom it was made was justified in declining to R:G·
receive it. The order of reference must be annulled,· · and PARABHRA
KRISHNA'
.I( 1

the Magistrate of the District may refer the case to a Sub- et "'·
ordinate Magistrate, it being one which a Subordinate Magis-
trat&is competent to entertain.
My brother W estropp, who is not able to attend at this
side of the court to-day, has seen my judgment, and has
expressed bis concurrence in it. It should, therefore, be
considered the judgment of both of us.
NEWTON, J.:-It is enacted in Sec. 2.73 of the Code of
Criminal Procodw·e that " criminal cases brought before the
Magistrate of the District, or a Magistrate in charge of a
Division of a District, either on complaint preferred directly
to such Magistrate, or on the report of a Police Offi~er, may
be referred by such Magistrate to any Magistrate subor-
dinate to him;" and we are called on to decide whether,
within the meaning of the concluding words of this clause, a
Magistrate with full powers is subordinate to the Magistrate
of the District •
.. Several considerations lead me to the conclusion that he
is not.
I entirely concur with the learned Chief Justice that this
is to be deduced from the position which has been assigned
to Sec. 273 in a chapter headed "Of inquiries and trials
before the subordinate Magistrates." The arrangement by
chapters, containing groups of provisions having reference
to the same subject, is a fee.ture of th~ Code of which, in
my opinion, we are bound to take cognisance, inasmuch
as it is frequently recognised in the Code itself, as, for
instance, in the two sections immediately preceding that
under consideration (Sees. 271 and 272), and also because
this principle of the Code is otherwise clearly to be inferred
from several of its provisions, as for instance from those
which are specially made applicable to trials under Ch~ XIV.
and xv. ; certain of the provisions laid down in another
chapter respecting the issuing of process, the examination
of witnesses, and other matters, of which examples will be
V,-10 CC

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 74 BOMBAY HIGlI COURT REPORTS,

--=1-86_8._ found in Sees. 249, 250, 254, 256, 264, and 268; the separa-
:a:.0· tion and distinction of chapters being one of such . funda-
P::;;:::. mental import and significance, as may be gleaned from
et al. these and other parts of the Code, that it was considered
necessary to re-enact for the purpose of one chapter provi-
sions which had already been laid down in another. hi. the
recognition of this principle, too, the Court has held that a
particular provision, as Sec. 270, which is found in one
chapter (xv.), is not applicable to cases falling under another
chapter (Ch. XIV.), although there is nothing in the express
langnage of the section which necessitates such a restriction.
I conclude, therefore, that the division into chapters is an
organic feature of the Code, and that all the sections falling
under Ch. XVI., and among them Sec. 273, must be inter-
preted as having reference exclusively to "the Subordinate
Magistrates," that is, the two classes so designated in Sec.
22 of the Code, and there distinguished from Magistrates
authorised to exercise full powers.
If this argument needed support, indications leading to•
wards the same conclusion might be noticed in the succes..
sion of the group of sections which form Ch. XVI. to thote
which constitute Ch. XII., XIV., and xv., and also in the cir-
cumstance that while all the provisions which are found in
Ch. XVI, are applicable to those classes of Magistrates which
the Code designates as " Subordinate Magistrates," the pro-
visions contained in one of these sections (Sec. 277) do not
apply to any others.
To look, however, beyond the evidence derivable from the
chapter, I am of opinion that the term "subordinate" with
reference to a Magistrate is not shown·to be used in two dif-
ferent senses in the Code. In the sections before referred to,
in which the different grades of Magistrates are enumerated,
and their powers defined, one division is expressly desig-
nated " Subordinate Magistrates," and these are arranged
under two classes. I do not see anything in any part of the
Code to lead me to the inference that the term " subordinate"
is anywhere intended to inclnde any other Magistrates than
these two classes. If it is necessary to go beyond the

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 CROWN CASES, 75

designation, these two classes alone are subordinate to the _ _,I=-8_68_._

Magistrate of the District, by virtue of his power to hear :S:~·
•
appeals from their decision ; while the Mao-istrates
r,
with full p A:U.BB
Xiusmu.'
11.A.'J(
powers are subordin!l.te in this respect to the Sessions C::>urt ,t "'1,
only, and so far on a par with the Magistrate of the Distriot,
whose decisions are appealable to the same authority. Sub.
ordination, as contemplated in the Code, can be argued, it
seems to me, only from the use of the designation, or from
the relation towards the Court of appeal. The Full Power
Magistrate, instead of being subordinate to the Magistrate of
the District, is classed with him in Sec. 22 as his equal in
penal jurisdiction, and no subordination of the former to the
latter is stated in any part of the Code. The Magistrate of
the District is indeed defined as the " Chief Officer charged
with the executive administration of a District in criminal
matters," and this he becomes by appointment by Govern-
ment, all other officers being in this respect necessarily
inferior to him; but inferiority does not involve subordina-
tion, and the Magistrate of the District, though superior,
cannot be held to be vested by the Code with any particular
powers over other Magistrates, unless they are expressly
given to him.

Language similar to that in Sec. 273 is used in Sec. 434 of

the Code, where it is provided that "it shall be at all times
lawful fOi' a Court of Session and for a Magistrate to call
for and examine tho record of any Court immediately sub-
ordinate to such Court or Magistrate, for the purpose of
satisfying themselves as to the legality of any sentence or
order passed, and as to regularity of the proceeding of such
subordinate Court;" and it is then enacted that " if the
Court of Session or Magistrate shall be of opinion that
the sentence or order is contrary to law, the Court or Magis-
trate shall refer the proceedings for the orders of the Sudder
Court." But if the Magistrate with full powers, who is
now held to be immediately subordinate to the Court of
Session, be held to be subordinate to the Magistrate of the
District also, the result of this double subordination in con-
nection with this section will be that, when the :Magistrate

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 •
76 BOMBAY HIGH COURT REPORTS,

__1~868_._ sees cause to call for any record of a Magistrate F. P. to

~~ 0 • consider any apparent illegality, he may find. that the case
KaisHNA.' has been ~lready sent to the Sessions Court, or the Sessions ..
p A.ILI.SHltA.'H
et al. Court similarly may find that a case which it requires
bas been sent to the High Court by the Magistrate ; or a
Magistrate F. P. may on the same day receive precepts
respecting the same case from the Court of Session and the
Magistrate of the District, and, being held to be subordi-
nate to both, be in doubt which to · obey. I cannot read
Sec. 434 as authorising an order by the High Court, that
the Magistrate, who is there empowered • to refer certain
cases to the High Court, should, in order to avoid some of
the inconvenient results above pointed out, submit them
through the Sessions Court.
The learned counsel has argued that the Magi strata of a
District may be held to have power in his executive capacity
to refer a case to any other Magistrate, and that he may in the
same capacity withdraw a case from a Magistrate with full
powers, under Sec. 36 of the Code,· though the said Magis-
trates are not judicially subordinate to him. But the power
under which the Magistrate of the District may at any stage
of a trial ta,ke a case from the Magistrate who is trying it,
appears to me t.o be one which cannot rightly be described
as executive. A circular of the High Court of Calcutta has
also been relied on as stating this view, but no ruling of
that Court, or of the Madras High Court, is quoted in opposi-
tion to the consistent rulings of this Court that Magistrates
with fnll powera are not subordinate to the Magistrate of
the District.
The procedure prevailing before the new Code came
into operation has been adverted to, but does not give
any support to the view which is suggested .. The Zilla
Magistrate had powe1·, indeed, to refer cases to all other
Magistrates in the Zilla, but none of these Magistrates
could ordinarily pass a sentence of more than three months'
imprisonment without his sanction, and if the full powers of
a Magistrate were specially granted to any officer, it was
expressly enacted that his decisions remained open to the

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 CROWN CASES, 77
revision of the Magistrate, who had power to mitigate or _...,l=-86_8_._
annul. The Joint Magistrate of the Regulations was an R!~·
officer much more analogous to the present Magistrate F. P., P~:!:!:!;M
and Government have recognised this by substituting for et ai.
the former a Magistrate with full powers specially author~
ised to hear appeals. But the Zilla Magistrate had no juris.
diction over the Joint Magistrate.

I notice that in the draft Acts-both that for the Bombay

Presidency, published in 1857, and the general one, pub-
lished in 1859-the distinction between the Magistrate and
subordinate courts was in some respects even more marked.
In both the Bills, in the provision which occupied the place
of our present Sec. 434, ' officers exercising the powers of a
Magistrate" are mentionl3d as empowered equally with the
Magistrate [of the District] to call for and examine the re-
cords of any court immediately subordil:ate to them. The
executive power which I understand the Magistrate of the
District to possess as the chief executive officer in criminal
matters, may be illustrated by his power under Government
to allot to the other Magistrates the portions of his district
of which they are to take charge, the submission of all re-
turns and correspondence through him, functions in connec-
tion with the police, and the like.

It is not necessary here to resort to the ai·gwmentnm ·ab

inconvonienU, or I might remark that while it might be
very proper that a Magistrate of a District should have the
power, possessed by no other Magistrate, to refer some of the
trifling cases that may frequently come before him to one or
other of the many stationary Subordinate Magistrates in bis
district, some of whom will always be within a short distance
from him, the accusetl person or persons and the witnesses in
the few more serious cases would ordinarily be subjected
to great hardship, if the Magistrate of the District, instead of
trying such cases himself, as he may reasonably be expected
to do, were to send them over his district, often for . many
miles, to be disposed ofby one of the few mid widely-scattered
F. P. Magistrates, who are, moreover, usually on the move,
,

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 78 BOMBAY WGH COURT REPORTS,

--=18c-68.
__ and whom it might be further necessary for all the parties to
R:. 0• follow about from place to place.
K1usHNA'
PARAsHRA'K TUCKER, J. :-I concur in the judgmtmt which has been
et ,ii. pronounced by the Chief Justice, and in the reasons which
he has given for the opinion which he has expressed.
As neither Mr. Justice Warden nor Mr. Justice Gibbs is
able to attend the Court to-day, they both have asked me
to read their judgments, which they have handed over to me
for that purpose, and I proceed to comply with their request.
WARDEN, J. :-The Chief Justice and the Honorable Mr.
Justice Newton have so fully discussed the legal grounds on
which the decision we have come to is based, that it is
quite needless for me to say anything more on the subject ;
I will, therefore, merely allude to the question of conveni-
ence, which really is the sole reason why the Magistrate
seeks to make out that he has the authority to refer criminal
cases for trial to a Magistrate F. P. For my part I cannot
see that he has anything to go upon; for the cases which
in the course of the year come before any District Magistrate,
and which are beyond the ju.risdiction of a Subordinate
Magistrate, are so few, that he can easily, without taxing
himself too much, and without neglecting his other duties
(magist~rial and revenue), dispose of the cases himself; the
little extra labour which their disposal would entail on him
is literally nothing in comparison with the inconvenience,
fatigue, and loss of time which witnesses and accused persons
· suffer by a case ooing referred by the District Magistrate to
the Magistrate F . P. The loss of valuable time to the agri-
culturists at certain seasons is apparent to every one. There
are usually not more than two or three Magistrates with
full powers in a district, each of whom has a very large extent
of country under his charge, and is so constantly on the
move, that even the Dietrict Magistrate frequently does not
know where he is to be found, and must have recourse to
conjecture as to his probable whereabouts. The witnesses
and the accused in the referred cases have, therefore, re-
gularly to track him up, and, when found, have probably to
travel with him for miles until he is able to dispose of the

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 CROWN CASES, 79
case. What I have described occurs also in cases which are 1868.
sent direct by the police to the Magistrate with full powers. n:~·
This must, however, be borne with until the number of our PKR1enN.a.'
• • , • ARASHRA'.H
Magistrates with full powers 1s greatly mcreased, and only a, et al.
small portion of a district is allotted to each ; but this is no
reason why the mischief should be aggravated by referring
cases to a Magistrate with full powers which can be easily
disposed of by the Magistrate 9f the District. I will, in con-
clusion, just mention, in support of what I have stated, a. mat-
ter that occurred only a few days ago. The Magistrate of a.
District, on being called on to explain the delay that took
place in forwarding to the Session Court the proceedings of e.
:Magistrate with full powers, against whose decision an appeal
had been preferred, represented that the delay was owing io
the Magistrate with full powers being on the move, and the
writ of the Sessions Court consequently taking some days to
reach him. The difficulties which I have above mentioned
do· not arise in cases referred by the District _Magistrate to
the Subordinate :Magistrates, for they are thickly scattered
over the country, and a.re for the most part stationary.
GIBBS, J, :-As I shall not be in court when judgment is
given in this case, I beg to record my entire concurrence in
the judgment of the learned Chief Justice, which I have read,
as also in that of my brother Newton. I think that suffi-
cient has been said on the construction of the Criminal Code
of Procedure, and that any further remarks of mine on that
point would be mere surplusage. But I wish to make a few
observations on the circular of the Calcutta High Court,
and also on the practice, which the learned counsel who has
so ably argued the case wishes us to uphold.
With regard to the former, it seems to me to fail in the
object it is intended to carry out, if that be anything more
than to give the Magistrate of the District power to call for
and examine cases tried by Full Power Magistrates for other
than judicial purposes. The circular makes the Full Power
:Magistrate subordinate to the Magistrate of the Distri_ct, but
not entirely or in any way judicially, as it appears to me,
The subordination is of a most limited nature J the last

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 80 .BOMBAY HIG8 COURT REPORTS.

_ _,,,18_68_._ paragraph distinctly lays down that the Magistrate of the

RKo.
V,
Dis
_ · trict is not competent to comment on the proceedings, or
KR1sHNA.' to point out errors in law, or other irregularities. It seems
p A.RA.SHB.A.1)(
et ai. to me, therefore, that while declaring the Full Power Magis-
trate to be .subordinate, it does not contemplate any ~uch
subordination as the counsel for the applicant would wish
us to determine.
I quite agree that the Magistrate of the District, as being
!' the Chief Officer charged with the execut,ive administration
of a District in criminal matters," which of course includes
the police, should be able to ask any Magistrate exercising
full powers within his district for such cases as may be re-
<3.uired by him for any administrative purpose, i .e., to.check or
assist the police in the execution of their duties; but further
than this I cannot see that he should be allowed to interfere.
I notice in the proposed Bill for amending the Criminal
Code of Procedure, published in the Government Gazette
of the 2nd of May last, a provision has been made in the
following words (vide Sec. 437, corresponding with Sec. 434
of the present Code) :-" The local Government shall decide
what Courts are subordinate to the Courts of Session, and
what Courts are subordinate to the Magistrates, for the pur-
poses of this section."
This is intended to enable Government to place any Full
Power Magistrate under the Magistrate of the District; but
I am not sure that this will be beneficial. The appeal will
still lie to the Session Judge, and if while this is the case
the Magistrate of the District can call for cases, for .the
purpose of handing them up for review, the confusion al-
luded to by my brother Newton will only be confirmed._ If
this proposed amendment be only for administrative pur-
poses, the power should be more clearly described, and the
Magistrate of the District should not be allowed to call for
the case until the period for a})peal has elapsed.
But in a case like the present, even were the meaning of
the Code less clear, and we were obliged to notice the
argumentiim ab inconvenienti, I cannot help expressing my
opinion that such a ruling as Mr. White seeks for would

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 CROWN CASES. 81
not be desirable. In no district have Government ap- --=1,-86_8_._
pointed more than five Full Power Magistrates-in some there R!~·
are only three; and I have noticed, when reviewing the Ka,sHNA'
PARASHRA'M.
monthly Criminal Returns, that very few Magistrates of the et al.
District try a single case if they can avoid it. I feel sure
that if the ruling asked for were given, the Magistrates of
Districts would be able to get rid of every case, and, con-
sidering the distances at which the camps of the Full
Power Magistrates generally are from that of the Magistrate
of the District, such power would only result in much
additional trouble and fatigue to all concerned, prisoners,
witnesses, and police. The police send a case up to the
Magistrate of the District; this will often involve a journey
of some few miles : if then this officer, instead of at once
disposing of the case, refers it for trial to the nearest Pull
Power Magistrate, existing circumstances will ensure there-
by many miles' additional travel to the parties concerned,
and form an additional reason for prosecutors refraining from
putting the law into force. I think, therefore, that, not only
on legal grounds, but also on the ground of convenience, the
ruling applied for should be refused, and the order of the
District Magistrate of Surat cancelled.
Order annulled.

REG, v. THAKU' bin IRA'. Sept. 10.

Maintenance-Judicial Proceeding-Appeal-Crim. Proc. Code,

Sees. 316, 404, and 409.

An order of maintenance, under Sec. 316 of the Criminal Procedure

Code, is a "judicial proceeding of a Criminal Court" within the meaning
of Sec. 404 of that Code, but no appeal lies against such order under
Sec. 409.

QNE Sanku, wife of Pe~u, the son of the petitioner, '.rhak(1,

having petitioned for maintenance, the Acting Magis-
trate of the District ofKarwar, J. Elphinston, ordered, under
Sec. 316 of the Code of Criminal Procedure, an allowance of
eighteen rupees per annum to be made to her by her hus-
band and father-in-law jointly. No pRyment was made as
v .-J} CC

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 82 BO!i!BA.Y HIGH COURT REPORTS.

-~1-86_8_._ directed, and the property of the petitioner, father-in-law of

R!t· Sanko, was seized and sold for payment of the maintenance.
T;aAtu' Thereupon the petitioner presented a petition to R. West,
Acting Session Judge, who, b~ing of opinion that the peti-
tioner was not liable for Sank(1's maintenance, forwarded
the case for the orders of the High Court with the following
remarks:-
" It does not appear that strictly this court had jurisdic-
tion to call for the proceedings in this case. It was ruled
in the case of Bassappa bin Bhrama (26th April 1865) that
such a power does not exist, and a Magistrate ordering pay-
ment of an [!,llowance for subsistence does not seem to be a
court subordinate to the Court of Session, which is a purely
criminal court. Neither does the High Court appear to have
jurisdiction, under Sec. 404, to review such a case, which is
not a criminal trial or a "judicial proceeding of a Criminal
Court," as defined in Sec. 11 of the Code. But neither, on
the other hand, does a Magistrate acting under Ch. xx. of
the Code of Criminal Procedure appear to be a court ; yet
the interference of the Court of Session to prevent acts of
apparent illegality under that chapter has been sanctioned by
Her Majesty's High Court; and here it would appear that the
High Court may proceed in the exercise of the function of
superintendence given to it by Sec. 15 of the High Courts
Act (a)." ·

PER Cu&IAM (CoucH, C.J., and NEWTON, J.) :-An order of

maintenance, unde-r Sec. 316 of the Code of Criminal Proce-
dure, is a judicial proceeding of a Criminal Court within Sec.
404 of the said Code; but no appeal lies against it under
Sec. 409.
The Court reverses the order of the Acting Magistrate of
the District so far as it extends to the father-in-law, Thaku.
Order reverse(l,
(11) 24 & 25 Viet., r. 104.

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 C.ROWN CASES, 83

REG. v. GENU bin A'Ku. 1868.

Sept. 16.
Housebreaking in order to commit Theft-Theft-Separate Sentences-
Whipping A.et ( VI. of 1864).
Where a prisoner convicted of "housebreaking in order to commit
theft," and of" theft," both offences being portions of one continuous
criminal act, was sentenced, on the first head of charge, to one year's
rigorous imprisonment, under Sec. 457 of the Indian Penal Code, and
on the second head of charge to receive twenty stripes, under See. 2 of
the W11ipping Act (VI. of 1864); the separate sentences (though not
illegal) were disapproved of, as contrary to the spirit and intention of the
Whipping Act.

JN this case the accused was charged (I) with having

. broken into the house of the complainant in order to
commit theft, and (2) with having committed theft in the
house of the said complainant; and,'being convicted, was sen-
tenced by Dr. Alexander Garden Fraser, Magistrate F.P. in
the PuQa District, on the first count to one year's rigorous
imprisonment under Sec. 457 of the Indian Penal Code,
and on the second to receive twenty stripes across his bare
shoulders with the cat-o' -nine-tails, under Act VI. of 1864,
Sees. 10 and 11 (sic), and it was directed that the whipping
be inflicted at the beginning of the imprisonment awarded
on the first head of the charge.
On an examination of the Magistrate's Criminal Return,
the Session Judge, F. Lloyd, sent for the proceedings, and
forwarded them, under Sec. 434 of the Code of Criminal
Procedure, to the High C,1urt, with the following remarks :-
" This sentence appears to be an illegal one. In the first
place the Magistrate should have passed only one sentence, .
and that should have been under Sec. 380 of the Indian
Penal Code, and as, under Sec. 2 of the Whipping Act, the
punishment of whipping is only awardabfo under Sec. 380
in lieu of other punishment, the sentence is in this instance
illegal, because it is combined with imprisonment.
"The sections of Act VI. of 1864 under which the punish-
ment of whipping was awarded have been misquoted."
The case having come on for bearing this day, before
Coucn, C.J., and NEWTON, J., t.he Court,, aftet· referring to the

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 8-t BOMBAY HIGH COURT REPORTS.

--c1=-so_s_._ decisions in Reg. v. Vinayak Trimuak (a), Reg. v. Murar

R:. 0• Trikatn (b), and Reg. v. Rama valad Shivappa (c), made the
GE:-;u A'Ku. following order : -
PER CuRIAM :-Though the passing of the separate sen-
tences in this case was not illegal, yet it was, in the opinion
of the High Court, contrary to the spirit and intention of the
Whipping .A.et, and ought not to be repeated.
(a) 2 Bom. H. C. Rep. 414. (b) 5 Bom. H. C. Rep., Cr. Ca. 3
(c) NoTE.-ln this case the accused, Rama, was charged (l) with
housebreaking, under Sec. 44.5 of the Indian Penal Code, in having
broken into the house of the complainant, and (2) with theft in a dwell-
ing house, under Sees. 378 and 380 of the same Code, in having stolen
from the said complainant's house property of the value of Rs. 421-12-0;
and was sentenced by J. F. Armstrong, Magistrate of the Distri\,t of
Kalladghi, on the first count to one year's rigorous imprisonment, under
Sec. 453, and on the second count to eight months' rigorous imprison- -
ment, under Sec. 380 of the Indian Penal Code.
On the examination of the Magistrate's Return for the month of March
1867, A. Ilosanquet, Acting Session Judge, remarked: "The act com-
mitted by the prisoner formed a single offedce, and he should have been
convicted of theft under Sec. 454 of the Indian Penal Code.''
He cited in support of his remarks 2 Cale. W . Rep., Cr. R. 63, and
6 Cale. W. Rep., Cr. R. 39, and contended that in a case of housebreak-
ing by night accompanied with theft the lesser crime was merged in the
greater; that the accused should be punished only for the greater crime;
that, therefore, he should be charged only with the greater crime, and
that the act of theft committed by him was simply a matter of evidence
to prove the greater crime.
In reply, the following letter was addressed by the Registrar of the High
Court to the Session Judge (No. 930 of 1867, dated the 24th of June
1867):-
" There would appear to have been conflicting decisions by the Cal-
cutta High Court on the point to which your question refers (vide note
to Prinsep's edition of the Code of Criminal Procedure, Sec. 46), and
there is a difference in the conclusions which have been arrived at in
Calcutta and Bombay on this subject.
" It is a peculiarity of the Indian Penal Code, that it bas in several
places declared portions of one continuous criminal act to be distinct and
separate offences. For instance, a single criminal transaction may com-
bine two offences under the Indian Penal Code, namely, housebreaking
with intent to commit theft, and theft. The Bombay High Court has
held that a person guilty of a complex criminal act of this character may
be charged and convicted of the distinct offences which he has committed,
but that, under such circumstances, the punishment to be inflicted for
these offences in the aggregate must not exceed the maximum punish-
ment awardable for the offence which is the most grave in the estimation
of the law, or the limit of imprisonment which the trying authority is
competent to impose for a single offence. No objection would be taken
to the conviction and punishment of the offender for one offence only,
that is, for the most serious of the several offences committed, which is
the practice directed to be observed by the Calcutta High Court ; but the
Bombay High Court has not declared it to be illegal to convict and
punish for each of the several offences, and consequently your instruc-
tions to tbe Magistrate were not approved of." ·

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 CROWN CASES, 85
•
REG. v. FATTECHAND VAsTA'CHA~D et al. 1868.
Sept.!.
Trial by Jury-Summing up of Judge-Setting aside Verdict-Accom-
plice-Pardon-Complainant-Crim. Proc. Code, Sec. 360.
(

On a trial by jury the Session Judge in summing up ~hould give a

full and detailed statement of the evidence on both sides ; be should point
out the legal bearing of it, and what weight the jury ought to attach to
its several parts. His omission to do so, if the accused is thereby preju-
diced, amounts to such an error in law as would justify a court of appeal
in setting aside the verdict.
No general rule can be laid down as to when a prisoner is prejudiced
by a defective summing up, but in general if the finding of the jury in
aucb a case is one that an appeal court would set aside, if the trial had
taken place with the aid of assessors, the Court will interfere and set the
verdict aside. ·
In capital cases, and all cases of a serious or complicated nature, the
Judge ought to read over the evidence in e:rtenso to the jury.
The Judge ought, if requested, to allow the accused an opportunity of
cross-examining all witnesses whose depositions have been taken for the
prosecution by the committing Magistrate but whose evidence is dispensed
with by the prosecutor at the trial. His refusal to do so is, however, not
an error in law.
Where the Magistrate erroneously treated a witness as an accomplice,
and granted him a conditional pardon :
Held that his evidence did not require corroboration.
Where a person gave information to a Magistrate and the police of a
murder having been committed, and subsequently, on the charge having
been dismissed, petitioned the Session Judge to have the matter re-
investigated :-
Held that he was not a complainant within the meaning of Sec. 360 of
the Crim. Proc. Code.

THE accused were tried by jury on a charge of murder be-

fore F. Lloyd, Session Judge at Pul).a, and, having been
convicted, were each sentenced to transportation for life.
From the above conviction the prisoners preferred an ap-
peal to the High Court.
The A.ppeal was heard before WARDEN and SARGENT, JJ.
White and Macpherson for the prisoners.
Dhirajlal Mathuradas (Government Pleader) for the pro-
secution.
The facts of the case appear from the following judg-
ments :-
v.-12cc

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 86 .BOMBAY HIGH COUR.T REPORTS .

1868. WARDEN, J. :-The four accused have 1'een tried by a jury

R:. 0
for the murder of one Babya, and, having been convicted,
•

~~'!::~~:~~ have been sentenced to transportation for life by the Session

et al. Judge of PuQa; consequently, under Sec. 408 of the Code
of Criminal Procedure, there can only be an appeal to this
court on a matter of law.
The accused Nos. 3 and 4 are the sons of Balachand, the
owner of the house in which Ba.bys was found with his
throat cut. The accused No. 2 is the daughter of Balachand,
and the wife of the accused No. 1.
Messrs. White and Macpherson have raised several objec-
tions to the summing up of the Session Judge, and urge
that there was a misdirection to the jury; that the Session
Judge did not, in the exercise of a sound discretion, give
proper advice to the jury, and summed up in a very imper-
fect manner.
A$ this court, when entertaining an appeal in a case tried
by a jury, can only go into matters of law, it is needless for
me to dwell in detail on all the evidence recorded in the
case. I will, therefore, only allude to such facts as require
to be considered in order to arrive at a proper decision as
to whether there has been a misdirection to the jury, or such
a defective summing up by the Session Judge as to have
led to a failure of justice.

The first objection raised by the learned counsel is with

regard to the evidence of the witness No. 11 (NarayaJ?.), that,
although consistent with the defence, it was not brought
to the notice of the jury as worthy of their considera-
tion; I consider that the story of the deceased, Babya,
having entered the house for the purpose of committing a
theft, and, on detection, committing suicide with a razor
which he had in his possession at the time, is too absurd to
be believed. I have never before, in the whole course of
my experience, heard of a thief, no matter what his caste,
committing or attempting to commit suicide when he found
himself detected in the commission of a burglary ; and it is
even still more absurd to suppose that the accused, and one

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 CROWN CASES. 87
of them a female of high caste, would have la.id hold of a 1868.
thief and struggled with him to prevent his cutting·his own R!.G.
throat if he felt so disposed. I, therefore, think that the VFATI'B;BAND
ASTACBAND
Session Judge very properly refrained from requiring the jury et al.
to take this story into their consideration. I am of opinion,
with regard to the next objection of counsel, that the Session
Judge was quite right in holding that the witness Naraya~
was not an acccomplice, and that his evidence did not re·
quire corroboration. If, however, corroboration had been
needed, there was ample in this case : the four accused
were bespattered with blood on their persons and clothes,
and the accused female had a fresh cut on her finger, and,
what is more, this cut was so slight that the quantity of
blood on her a<UJi could not have issued from the cut alone.
When the police got admission into the house (which, how-
ever, was not without a little delay), they found the deceased,
Babya, lying dead with his throat cut, and they very properly
took into custody every one whom they found in the house
-amongst them was the witness N arayai;i ; there being no
proof of his having had anything to do with the murder, he
was released, and he then disclosed what he had seen : his
reticence in the first instance, when he found himself taken
into custody on suspicion of having been concerned in a
murder, was very natural, and nothing more than what any
other nati~e in his place would have done. Mr. Jervoise,
Magistrate F . P., in granting a pardon to this witness, com-
mitted a grave error, for the man was not in any way an
accomplice; the Session Judge also erred in not having
intimated to this witness, before proceeding to take his evi-
dence, that he was not to consider himself a pardoned ac-
complice, and that the Magistrate F. P. had gone out of his
way to grant him a pardon, for he had committed no of-
ence.
The Session Judge's remark that the evidence of the
Civil Surgeon was unsatisfactory merely amounts to this,
that it was not of such a decided nature as he could have
wished it to have been ; the jury, however, formed their own
opinion ofit: therefore, no further comment is needed.

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 88 BOMBAY HIGH COURT REPORTS.

1868. I next oome to the omission on the part of the Session

REG.
v. Judge to examine Jayappa. The counsel have urged that, as
FATrECHAND he was the complainant in the case, the Session Judge was
VASTA'CHAND
et al. bound, wider Sec. 360, to take his evidence, and the omis·
sion to do so has prejudiced the accused. But in my opinion
he was not a complainant; the Session Judge was, there-
fore, not bound to take his evidence ; he was merely an
informer, and as such telegraphed to the Subordinate Magis-
trate, Mr. Middleton, and to the Assistant Superintendent
of Police, Mr. Codrington, that a murder had been com-
mitted, and that the body should not be buried without
being properly examined; and when Mr. Middleton dis-
missed the case for want of proof, he petitioned the Session
Judge to call for the proceedings and order further inquiry.
If this man could have given any evidence that would have
been of ~dvantage to the accused, there was nothing to pre-
vent their calling him as witness for the defence.
The next objection raised by the counsel for the accused
is an important one, namely, the omission of the Session
Judge to read over ?'.n extenso to the jury the evidence of
all the witnesses. .Although the Criminal Procedure Code
is perfectly silent on the subject, the Session Judge was very
wrong in not doing so, and the more so as the trial had
occupied two days and a half, and the memory of the jury
may have stood in need of being refreshed. In every case
of a serious nature, the evidence of the principal, if not of
all the witnesses, should be read over to the jury when the
Session Judge is summing up. Had any of the jury wished
to have the evidence of any particular witnesses read over
to them, I have no doubt the Session Judge would willing-
ly have read the depositions over to them. Mr. Macpherson,
who appeared as counsel for the accused in the Session
Court, in his address to the jury, appears to have made up
for the omissions of the Session Judge, by reminding the
jury of all that was in any way favorable to the accused : so
tha.t I do not consider that by this omission .of the. Session
Judge there has been any failure of justice, or that the ac-
cused have been prejudiced.

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 CROWN CASES. 89

The Session Judge also erred in not complying with the 1868.
REG.
request of Mr. Macpherson to be allowed to cross-examine 11.
• ~
t h e witnesses ,or t he prosecution,
• wh o h adb een examme
• d by FATTECRAND
VABTA'cBAND

·the Magistrate, but whom the Public Prosecutor thought it et aZ.

unnecessary to call before the Session Court ; for although
such a practice does not prevail in the Mofussil Courts, owing
to the accused persons not understanding the advantage
which might possibly be gained thereby, yet being the prac-
tice of the Courts in England, it should have been allowed.
Mr. Macpherson has not, however, been able to show that
nny failure of justice has occurred in consequence, or that
his clients have been really prejudiced by this refusal.

Next is the discrepancy in the evidence of the witness

Narayal_l. In the Session Court the counsel for the accused
merely asked the witness whether before the Magistrate
F . P . he had told the same story as he had told before the
Session Court, but did not in any way particularise the
discrepancy he alluded to, nor did he ask the Session Judge
to record the evidence which the witness had given before
the Magistrate F. P. ; the Session Judge ought,however, of his
own accord to have done so. But here again the counsel for
the accuseJ, in his address to the jury, rectified the omission
of the Session Judge; after commenting on Narayar;i.'s evi-
dence before the Session Court, he reverted to the witness's
deposition before the Magistrate, and the jury judged for
themselves as to the degree of credibility to be placed on
the witness's statement, and there is nothing to suppose that
they did not remember that the witness had deposed that
it was dark at the time the struggle was going on.
I will now refer to what Mr. White, the counsel for the
accused, laid great stress on, namely, the absence of all
motive for the perpetration of the deed, and what he desig-
nated as the ridiculous story of witness No. 19, LakshumaI,1;
but this story is not so absurd as it appears at first view.
The Session Judge apparently did not understand what the
witness alluded to ; he, therefore, in his summing up, passed
it over with the remark that the jury must judge for them-
~elves what weight should be given to it; whether the

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 .·=
90 BOMBAY HIGH COURT REPORTS,

1868. jury understood what the witness alluded to, and whether
REG.
v. t hey attached any weight to it or not, it is impossible to
t=:,~:~! say, but, as three of them were Brahmans, they probably
et ed. understood what was meant. The Session Judge ought to
have elicited from the witness Lakshumar.t what was meant
·by the expression which he had overheard the accused No. 2
make use of to her husband, the accused No. 1, namely," In
my father's house at Marah ( the village in which her father
resided) there is treasure: take a servant and kill him ;'
and if the witness had been unable to explain it (but he
evidently understood it, for he absconded), the · Session
Judge should have sifted the matter thoroughly to ascer-
tain what the killing of a servant could have to do with
the fact of there being treasure in the house of the father
of the accused No. 2. My brother Gibbs, who sat with
me to hear the application of Mr. White for us to call
for the papers and proceedings in the case, said that some
time ago, during the investigation of a murder case, it had
come out that there was a superstition prevailing amongst
a certain class of Hindus that if a human being was _sacri-
ficed, his or her blood would flow in the direction where
hidden treasur~ was supposed to be buried ; if such a super-
stition does exist, then the motive of the accused in killing
the deceased is apparent. Ther«! is nothing very startling
in the circumstance that those who have the greatest
aversion to taking the life of any creature might be led
on by superstition, and by the sordid desire to acquire
wealth, to offer up human sacrifice. Old treasure is be-
lieved t-0 be presided over by a spirit or fiend, and to
propitiate this spirit the offering of the blood of animals
is considered necessary : this sacrifice is made before the
digging for the treasure commences, and there is a belief
that the spirit appears in a dream and sometimes demands
human sacrifice. As an instance of the extent to which
superstition may be carried, I will just allude to a super-
stition connected with human sacrifices. It is well known
that numbers of human beings were in former days buried
alive at the time of laying the foundation of fortresses
which it was wished to render impregnable, and in one in-

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 CROWN CASES. 91

stance, when one of the emperors was building the fortress 1868.
of Bedar, in the Da.kha.~, he offered a grant of land to the 0•R:.
family of any person who would allow himself to be buried VFATT11:~a.urn
Af1rA CHAND
a.live under the foundation, so as to ensure the fortress being et ai.
impregnable, and a. Hindu actually offered himself as the
victim, and I believe that even to this day his family are
enjoying the land which was so dear]y purchased by the
head of the family. I have merely referred to this just to
show how far people may be carried away by their super-
stition.
It was also urged by counsel that there was no proof that
the deceased was decoyed into the house. True, but there
is proof that the deceased was seen in company with ac-
cused No. 4 within twenty~:6.ve or thirty cubits of the house
in which he was found about two hours afterwards with his
throat cut. And with reference to the razor found lying
near the corpse, I will merely remark that there is proof
that it was not the one which the deceased had borrowed
a.bout a week before to shave his father with. There is
also the very great improbability that if the deceased had
determined to commit suicide if he was detected in the
burglary, he would have gone provided with such a clumsy
weapon as a razor, instead of a knife or dagger. The
counsel for the accused rely on the rulings of the Calcutta
High Court, Vol. V., Cr. R., p. 80, and Vol. X., Cr. R., p. 7.
The Calcutta. Courts have held that improper advice given
by a Judge to the jury upon a question of fact, or the omis-
sion of the Judge to give that advice which a Judge, in the
exercise of a sound judicial discretion, ought to give the
jury upon questions of facts, amounts to such an error in
law in summing up as to justify the High Court, on appeal
or revision, in setting aside a verdict of guilty, provided the
accused person has been prejudiced by the error or defect,
or that a failure of justice has been occasioned thereby.
After a very careful consideration of all the circumstances
of this case, I have come to the conclusion that in the
Session Judge's summing up to the jury there was no
misdirection-merely a defective summing up, but not to

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 92 BOMBAY HIGH COURT REPORTS.

1868. such an ex:tent as to amount to au error in law, the accused

R:. 0• not having, according to my opinion, been prejudiced ; nor
FATrECHAND has there been any failure of justice. The trial by jury
V ASTA'CHAND
et al. having been introduced by the Legislature into the Mofussil
(whetherrightly or wrongly, it is unnecessary for me now
to say anything on the subject), we cannot be too care-
ful before we consent to set aside t~e verdict of a jury, for
we shall, as Mr. Prinsep has very properly observed, be
jeopardising the administration of the Criminal Law of this
country, and opening a door for the escape of criminals.
In this case I should have had no hesitation in upholding
the conviction, if the trial had been before a Judge and
assessors. I, therefore, am of opinion that the petition of
the accused must be rejected. •
SARGENT, J. :-The appellants m this case were tried on
the charge of murder before the Sessions Judge of Pu:r;ia and
a jury. A verdict of guilty was returned by the jury, and
a sentence of transportation for life passed on all four ap-
pellants.
The grounds of appeal from this convi.ction are -
(1) That the Judge, in summing up, did not state cor-
rectly_ the evidence of the surgeon, Dr. Ogilvie.
(2) '!"hat he should have told the witness Naraya1.1, be-
fore he gave his evidence, that he was not under the ban
of the Sarkar, or at least that he should have pointed out
to the jury that, owing to the circumstances under which
the witness was giving his evidence, it was to be received
with great caution.
(3) That the summing up was generally defective and
insufficient.
(4) That Jayappa, who petitioned the Session Court for
a reinvestigation, should have been examined as complainant,
under Sec. 360.
( 5) That the Judge refused to allow certain witnesses sub-
prenaed by the prosecution to be placed in the witness-
box for cross-examination.

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 CROWN CASES. 93

(6) That he should have told the jury there was no con- 1868.
nection between the evidence of Lakshwnal}. and the charge. B!~·
, FA.Tl'ECHU1D
(7) That the Judge throughout unduly showed the m- VAm'cu.a.ND
c mat'10n of h'1s own opm10n.
l . . . et al.

It was urged by the Government Prosecutor, as a preli-

minary objection, that the Code of Criminal Procedure pro-
vides that if a person be convicted on a trial by jury, the
appeal shall be admissible only upon a matter of law; and .
that the grounds of the present appeal do not amount to an
error in law. The question what defect in the Judge's sum-
ming up to the jury is proper ground of appeal has been
much considered in the High Court of Calcutta, trial by jury
having been in force within the appellate jurisdiction of
that court for some considerable time ; and the conclusion
arrived at by a full Court, consisting of Sir Barnes Peacock,
Mr. Justice Kemp, Mr. Justice Seton Karr, Mr. Justice
Louis Jackson, and Mr. Justice Phea.r, is expressed in the
case of Elahee Buksh, reported in 5 W. Rep., Cr. R. 80, by
the Chief Justice in the following terms:-" There can be no
doubt that Sec. 379 requires the Judge to sum up properly,
and there would be very great danger in holding that there is
no remedy by appeal against a verdict of guilty, if it appear
clearly to the High Court that a failure of justice has been
caused by improper advi~e upon a question of fact, or by an
omission to give that. advice which a Judge, in the exercise
of a sound judicial discretion, ought to give upon questions
· of fact, or as to the degree of credit to be given to parti-
cular witnesses. It appears to me that it amounts to an error
in law in the summing up, which, on appeal, is a ground for
setting aside the verdict, subject to the limitation provided
by the Code of Criminal Procedure in Sees. 439 and 426,
viz., that the appellate court is satisfied that the accused per-
son has been prejudiced by the error or defect, and that a
failure of justice has been occasioned thereby ;" and fur-
ther on, after noticing that there are errors of omission as
well as errors of commission, such as omitting to call the
attention of the jury to the evidence in favour of the ac-
cused, condudes "that it certainly is not against the prin-
A.-13 CC

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 DOllBA.Y HIGH COURT REPORTS.

1868: oiple or even the letter of the Code, that the Court should
R;o, have power to set aside a verdict of guilty for an insufficient
FATrE~HAND or defective summing up of the evidence in a. case in which,
V ASTA CHA.ND ·
et <1Z. in their judgment, the verdict is not warranted by the evi-
dence." I entirely concur in this exposition of the ~w.
Sec. 379 enacts that the Judge shall sum up the evidence
an both sides, and the jury shall then deliver their verdict
upon the charge; and that a statement of the Judge's di-
rection to the jury shall form pa.rt of the record. The
summing up contemplated by this section cannot mean any
statement of the evidence which a Judge may, in his ca-
price, think proper to make to the jury, but a. "proper''
summing up, by which is to be understood a. full and dis-
tinct statement of the evidence on both sides, with such
advice as to the legal bearing of that evidence, and the
weight which properly attaches to the several parts of it, a.s
a sound judicial discretion would suggest. · And in so far
as the Judge has not summed up "properly," I think
an error · in matter of law has been committed within the
meaning of the Criminal Procedure Act. If, however, every
defect in a. summing up were to be regarded as ground
for setting aside a verdict of guilty, it is clear that the
door of escape would be opened wide to criminals. This
danger is, however, guarded against py Sec. 426, which en-
acts that no sentence shall be reversed on account of any
error or defect either in the charge or proceedings, unless
in the judgment of the appellate court the accused person
shall have been prejudiced by such error or defect. There
is doubtless some difficulty in saying when a prisoner has
been prejudiced ; and I am inclined to agree with Mr. Justice
L. Jackson that it would not be safe to lay down any rule,
although probably in most cases the ends of justice would
be satisfied by considering whether if the caae had been
tried by a judge and assessors the Cou~t would set aside the
finding.

In the present case the offence was the most serious one
with which a prisoner can be charged, and the evidence
was purely circumstantial; it wasJ thereforeJ more than ordi-

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 CROWN CASIS. 95

narily important that the summing up should not only con. 1868.
tain a .full and detailed statement of the evidence, but in- 1!,~ 0
•

telligent advice as to the bearinoo !:'I

of the several parts of VFAnE,cIIAND
ASTA CHAND
the evidence upon the guilt or innocence of the accused, or a ell.
any of them : and I think, therefore, that the Judge com-
mitted an ,error in confining himself to so very brief a sum-
mary of the evidence, and in not giving a more careful
analysis of that evidence. It does not appear that anything
more was said to the jury than is contained in th,e statement
of the summing up, or that this statement was supplemented
by reading the depositions of the most important witnesses-
a practice universally adopted by English Judges in serious
cases, and which precludes the possibility of the jury com-
ing to a decision without hn.ving all the facts fresh in their
memory. The omission to do this has resulted, in the pre-
sent case, in the recollection of the jury not being refreshed
on some material parts of the evidence. The first objection
relates to an omission of this nature, the Judge having neg-
lected to tell the jury that the surgeon said " he could not
state positively as to the wound whether it was self-inflicted
or not." This relates to the appearance of the wound,
and was material, as showing that there was nothing in
the appearance of the wound which negatived the possi-
bility of its having been self-inflicted. The only statement
of the witness which the Judge alludes to in his summing
up refers exclusively to the possibility of the wound being
self-inflicted with the instrument before the Court. There
was no objection to the Judge expressing his opinion that
the evidence of this witness was unsatisfactory, but he should
have been careful to omit no material part of it, if he under-
took to give the jury the substance of it and express an
opinion on it.
The same remark applies to the evidence of the most
important witness, NarayaI].. The Judge confined his re-
marks to the statement of the witness that he saw the four
accused struggling with some one, but omitted to make any
reference to the witness's statement on cross-examination
that it was dark, that there were other people in the room,

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 96 BO»:BAY HIGH COURT REPORTS.

1863. that the prisoners were nearer to him than the other persons,
~a. and it was sufficiently light for him to identify them ; and,
FATrE,cHAND
V ASTA CHAND
lastly, that he saw nothing in the accused's hands. ' This
et ai. evidence was most materiRl, both for, the defence and the
prosecution, more especially as regards prisoners Nos. 1 and
2, in determining the weight to be attached to witness's
statement that he could distinguish the prisoners as the
persons struggling with the deceased. The prisoners were
further entitled to the benefit of the statement that he saw
nothing in their hands at the time of the struggle.
With regard to the second objection, that the Judge gave
insufficient, if not wrong, advice to the jury as to the evidence
of NarayaQ, I think that the Judge was right in holding
that the evidence of this witness did not, strictly speaking, re-
quire corroboration. But although not an accomplice, he was
treated as such up to the moment of entering the witness-
box, and his evidence was given under almost the same
moral conditions as an actual accomplice; and the Judge
should, I think, have drawn the attention of the jury more
closely than he did to the position in which the witness
stood, and to the peculiar circumstances which rendered his
evidence less trustworthy than it would otherwise have been.
As to the fourth objection, I do not think thatJayappa was a. ·
complainant within the meaning of Sec. 360 ; the complain-
ant there intended must, I think, be a person who makes a
complaint before a Magistrate in order to the issuing of a
summons or warrant against any person. Jayappa merely
presented a petition to the Session Judge suggesting the
propriety of a second investigation. In any case there is
nothing to show that the prisoners were prejudiced by this
omission, if it were one.
With respect to the fifth objection, there is no provision
in the Criminal Procedure, analogous to English practice, en-
titling the prisoner to have a witness for the prosecution,
who is not called, put in the box for cross-examination; and
the Judge, therefore, committed no error in disallowing it.
The counsel for the defence might have applied to have the
witnesses examined under Sec. 375, or might have com-

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 CROWN CASES, 97

mented on the circ~mstance of thei~ not being examined by --=1=-86_8_._

the prosecution or tendered for cross-examination. R!~·
FATrECHAND
With respect to the objection that the Judge should have VAsTA'cHAND
·
told the Jury · b etween t h e fiacts de-
t h ere was no connex10n etal.

posed to by LakshumaJ}. and the offence with which the pri-

soners were charged, the Judge would, in my opinion, have
acted very wrongly had he done otherwise than leave it to
the consideration of the jury, who, from their knowledge
of the popular superstitions, could best determine what that
evidence was worth.
As to the last objection, that the Judge summed up under
a bias, it may be that he allowed the jury to know the in-
clination of his own opinion. But, as said by Chief Justice
Tindal in Davidson v. Stan:ley, 2 M. & G., 721 : "It is no
objection that a Judge lets the jury know the impressions
which the evidence has made on his own mind. At all
events the party objecting to such a course should show that
the impression entertained by the Judge was not justified
by the evidence." In the present case the remarks of
the Judge are, in my opinion, throughout characterised by
great fairness and impartiality, and indicate no undue bias ;
but he committed, I think, the error of stating the evidence
of both sides somewhat too summarily, and thus omitted
to draw the attention of the jury to some material parts of
that evidence. It remains to consider whether the prisoners,
or any of them, have been prejudiced by those omissions
in the summing up, or by the remarks the learned Judge
addressed to the jury respecting Narayal).'s evidence.
Applying the rule suggested by Sir Barnes Peacock,
namely, would the Court set aside the finding had the case
been tried by a Judge and Assessors, I can entertain no
doubt that we ought not to interfere with this conviction.
Even if it were right that Narayal). should be regarded as an
accomplice, his evidence as to having seen the prisoners en-
gaged in a struggle with a man is amply corroborated as to
a struggle having taken place, by the blood on the walls,
door, and floor, deposed to by the chief constable Shrinivas,
and witness No. 14; and as to the four prisoners being the

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 98 DOMBAY HIGH COURT REPORTS,

1868. persons engaged in the struggle, by tlie blood upon their

R:. 0• clothes and persons, as deposed to by witnesses Nos. 14 and
FATIECHAND 15, who arrived at the house immediately after the occur-
VAsTA'cHAN» • • • , • •
et al. rence. The evidence given by Narayai;t m cross-examina-
tion, and which the Judge omitted to refer to in his summing
1.tp, although it shows indeed that it was dark, contains a
distinct statement that it was light enough for him to iden-
tify the prisoners, as they vre!'e closer to him, being near
the door, than the other persons in the .room. But the
possibility that the witness might be mistaken in the iden-
tity of the prisoners is entirely displaced by the state in which
the prisoners were found. Indeed if the witnesses 14 and
15 are believed, they were almost found "red-handed." .A.s
to the surgeon's deposition, the remark that he could not
tell from the appearance of the wound whether it was self-
inflicted or no, although a. material one, would only have
added to the impression which the Judge's remarks must
have left on the jury, that the surgeon's evidence decided no-
thing as to whether it was a case of suicide or murder. Lastly,
the statement of NarayaIJ. that he saw no instruments in the
hands of the accused during the struggle is not to be won-
dered at, when it is remembered that it was too dark for the
witness to see distinctly, and that the instrument would have
been in the hands of only one out of.five persons engaged in
the struggle. The evidence that a man was seen struggling
in the room with the four prisoners, that he was found very
shortly afterwards with his throat cut from ear to ear close
to where the struggle took place, and the prisoners in the
same or adjoining room with blood on their clothes and per-
sons, if accepted as true, is conclusive, unless the incredible
supposition be adopted that the man cut his own throat
during the struggle; and the circumstance that Narayai;t did
not see the weapon in the hands of the prisoners cannot
reasonably affect the weight of the above evidence. I can,
therefore, entertain no doubt that this verdict is not con-
trary to the evidence, and further that the evidence which
was omitted from the Judge's summing up could not reason•
ably have led the jury; to return any other verdict than that
of guilty. The appeal must, therefore, be dismissed.

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 CROWN CASES. 99

REG. v. MAHIPYA' valad BoMYA' MAnA'R. 1868.

Sept. 24.

Thtft-Report of Policeman-Complaint-Crim. Proc. Codt, Sees. 43,

109, and 248.
Where a policeman in whose sight a theft was committed arrested the
thief, and, being himself unable to take or send the accused to a Magis-
trate, sent a report, on which the Magistrate issued a warrant:
Htld that, under these circumstances, the accused was legally brought
before the Magistrate.

JN tbis case the accused was convicted by the Subordinate

Magistrate of the Second Class at Nasik, in the .Alimed-
nagar District, of theft, under Sec. 379 of the Indian Penal
Code, in having cut and removed a. log of teak from the
Government forests without a permit, and was sentenced
to pay a fine of three rupees, or undergo seven days' rigor-
ous imprisonment. The Magistrate of the District, H. N. B.
Erskine, was of opinion that the proceedings of the Subor-
dinate Magistrate were irregular, inasmuch as he had issued
his warrant to arrest the accused without having had any
complaint made to him. He, therefore, under Sec. 434 of
the Crim. Proc. Code, submitted the case for the orders of
the High Court.
PER Cu:&Iill (NEWTON and TucKER, JJ.) :-It appears that
the accused was seen committing an offence for which the
police were authorised to arrest without a warrant, namely,
theft, and that the policeman in whose sight the offence was
committed arrested him, and, having been unable to take
or send the accused to the Magistrate, in accordance with
the provisions of Sec. 109 of the Code of Criminal Pro-
cedure, sent a. report, on which the Magistrate issued a
warrant. Under these circumstances, the Court considers
that the accused was legally brought before the Magistrate.
The record and proceedings to be returned.

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100 BOMBAY HIGH COURT REPORTS.

1868.
Nov. 13.
REG. v. KERU bin RA'MSHET et al.
Act (Bombay) VII. of 1867, Sec. 31-Resident Magistrate-Notification
by Government.

Bombay Act VII. of 1867, Sec. 31, became at once operative in all
places where a Magistrate was resident, without having been specifically
extended thereto by Govemtnent by Notification.

I N this case the accused were convicted by the Subordinate

Magistrate of the Second Class at Nagotna, in the Kulaba
Sub-Collectorate of the ThaQ.a District, under Sec. 31 of
(Bombay) Act VII. of 1867; and were sentenced each to
pay a fine of eight annas or in default to suffer simple im-
prisonment for two days, in that they threw a mass of filth
or refuse close to a public road in the said town of Nagotna.
The Acting Magistrate of the District, J. W. _Robertson,
was of opinion that the operation of Sec. 31 to any town,
place, or road required to be specially extended by Govern-
ment by notification, which had not been done in respect of
any part of the Thal).a District, and that, therefore, the con-
viction and sent~nce passed in the case ware null and void.
PER CuRIAM (NEWTON and TucKER, JJ.) :-The record and
proceedings to be returned, inasmuch as Sec ..31 of (Bombay)
Act VII. of 1867 became. at once operative at Nagotna,
without being specially extended to that town by Govern-
ment by notification, ~s there was a Magistrate resident at
that place.

Nov.19.
REG. v. DHONDU RA'MCHANDRA,

Complaint-Conviction of Offence other than that stated in Complaint

-Crim. Proc. Code, Sec. 250.
Where a complaint laid before a Magistrate F. P. by certain Govern-
ment employes accused the prisoner of criminal breach of trust of their
wages, but from tl1e evidence adduced it appeared that the offence of
which the prisoner was guilty was criminal breach of trust of Govern-
ment money: It was held that the Magistrate F. P. had power to frame
a charge against, and convict, the prisoner of the latter off'ence with-
out a fresh complaint being made to him.
THIS was a case submitted for the orders of the High
Court by the Honorable G. A. Hobart, Session Judge

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 CltoWN CASF.S. 101

of Khandesh, under Sec. 434 of the Code of Criminal Pro· -RW:--

1868.
ccclure, with the following remarks : - 11,
DHOND\J
RA'llCHAl'i.
"A Magistrate F. P. not being Magistrate of the District DllA,
or of o. division of the District, on a complaint made by
certain persons that 'money due to them as wages had been
witheld from them by a person whose business it was, on
behalf of their employers (Government), to pay them their
wages,' framed a charge of criminal breach of trust against
the person so accused, and convicted him of the same, and
sentenced him. The convict appealed to the Sessions Court.
I was of opinion, on hearing the appeal, that though there
might be proof of the convict having committed criminal
breach of' trust in respect of Government money, as he
nppeRred to have embezzled money which he charged to
Government as part of the cmployes' wages (he charged the
,vages at a higher rate than the cmployes had a right to),
yet he had not withheld from the complaining employes any-
thing due to them, nor was there, to my satisfaction, proof
that he had triod to do so. I was, therefore, prepared to
reverse the conviction and sentence if it had proceeded
wholly on the ground of the accused having been proved to
have withheld the employes' wages. The Magistrate, how-
ever, convicted the accused of having in certain instances
committed criminal breach of trust in respect of Govern-
ment money. I was of opinion that the Magistrate F. P.
had not authority to do this, as it was travelling beyond the
complaint, and that he was not a ' Criminal Court' for this
purpose. By Sec. 11 of the Criminal Procedure Code, a Cri-
minal Court denotes a' Magistrate lawfully exercising juris-
diction in criminal cases.' But no other Magistrate than
the Magistrate of the District, or of a division of the District,
lias jurisdiction to take cognisance of any offence (unless
committed in his presep) except on a complaint duly made
to him. To travel beyond a complaint, and to charge a
person with an offence he is not accused of by a complainant,
even though proceeding on evidence taken consequent on a
complaint i-o mnde, is, in my opinion, equivalent to taking
cognisance of an offence without a complain, having been
v.-14 CC

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 102 BOMBAY HIGH COURT REPORTS,

1868. made. Therefore, though not overlooking Sees. 426 and

--=---
REG.
v. 439 of the Criminal Procedure Code, I reversed the con-
DHo:irou viction and sentence, and directed the release of the convict
RA'MCH.\N•
DRA. appellant.
" I have reason to believe that my view of the law, as
above expressed, is not concurred in by ·the Magistrate of
the District. I, therefore, have thought it advisable, under
Sec. 434 of the Criminal Procedure Code, to report the case
for the information of the High Court."
In a subsequent communication the Session Judge wrote:
" It has come to my knowledge that the Magistrate who
presided at the trial of Dhonq.u Ramchandra is of opinion
that, under Sec. 250 of the Criminal Procedure Code, he was
bound to charge the accused with any offence which he
should find apparently proved agaim-1t him, and that it was
only in case he should find that apparently no offence was
proved against him that he had power to discharge him."
NEWTON, J. :-We are of opinion that a Magistrate, when
a proper complaint has been made to him, if on the evidence
he fmds that an offence different from the one expressly
charged had been committed, has power to inquire and pro-
ceed against the accused with regard to the other offence.
As the Session Judge, therefore, has committed an error in
law, in reversi~g the convict.ion of the ·Magistrate F. P., on
account of his having convicted the accused of an offence.
different from that stated in the complaint, we must reverse
the order of acquittal passed by the Session Judge, and
direct that the accused be committed to prison to undergo
the remainder of his sentence, unless the Session Judge
should see fit to alter or reverse the sentence on further
hearing the appeal, which he should now proceed to dis-
pose of.
TucnR, J,, concurred.

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 CROWN CASES. 103

REG. V. JAGANNA1THBHAT bin A'PPA 1BHAT. 1868.

Dec. 3.

Disobedience of Order made by Municipal Commissioners-Illegal

Sentence-Act XXVJ. of 1850.

Where accused was convicted, under Act XXVI. of 1850, of dis-

obedience of an order made by the Municipal Commissioners of Puna,
he- .
and was sentenced to P."Y a fine of twenty rupees, and (eight days' time
ing allowed him within which to comply with the order) a further fine of
two rupees for each day during which he should continue wilfully to dis-
obey such order, the latter part of the sentence was reversed by the High
Court, as being illegal.

JN this case the accused was convicted of disobedience

to the mandato of the Municipal Commissioners of the
City of Pu~a, in not having stopped using, and in not having
removed, his privy, situated on the bank of the river, as
•
required by a Commissioner's notice, .and was sentenced by
E.T. Richardson, Magistrate F. P., under Act XXVI. of
1850, and Sec. vn., cl. 1, of the Municipal Rules sanctioned
,by Government, to pay a fine of twenty rupees. The accused
was allowed eight days within which to comply with the
order, but failing to do so, a fine of two rupees was imposed
upon him for each day during which such disobedience
should be wilfully continued.
The Session Judge, F. Lloyd, forwarded the case, under
Sec. 434 of the Code of Criminal Procedure, for the orders
of the High Court, as he was of opinion that the Magistrate
had exceeded his power in the penalty imposed. The rea-
sons assigned by the Session Judge were-
" In cl. 5, Sec. vn. of Act XXVI. of 1850 it is enacted
that a breach of any of the rules made by the Commissioners
shall be punished by a penalty not exceeding fifty rupees,
or, in the case of continuing nuisance, not exceeding five
rupees for every day that such nuisance is continued.
"In cl. 1, Sec. VII. of the rules themselves it is declared,
that disobedience of the mandates of the Commissioners
shall be punished by a fine not exceeding the limit pre-
scribed by the Municipal Act, ancl, in the case of continued
disobedience by a fine not exceeding five rupees for every
day during which such disobedience shall be wilfully con-

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 104 BOMBAY HIGH COGRT REPORTS,

1868. tinued, thereby sanctioning a higher penalty than that

R!~· provided by the Act ; but this is illegal. The Commis-
J AoA~~A''fll· sioners had no power to frame rules authorising a higher
BHAT
A'rrA'»HAT. penalty than that provided by cl. 5, Sec. vu. of Act XXVI.
of 1850.''
PER CuRIAM (NEWTON and TucKER, JJ.) :-The Court re-
verses as illegal that part of the Magistra.te's order which
purports to award a fine of two rupees a day in case of any
future disobedience of the mandate of the Commissioners. .

1868.
Dec.17, REG. v. SAJJAN valad .
VITnu.

Stamp-Complaint by Cfoil Court-Crim. Proc. Code, Sec. 168.

A complaint preferred by a Munsif under Sec. 168 of the Crim. Proc.
Code need not, though it do not bear the seal of the Munsif's Court, be
on stamped paper.

THIS was a case referred for the orders of the High Court,
by the Honorable G. A. Hobart, Session Judge of Khan-
desh, under Sec. 404 of the Code of Criminal Procedure.
The accused not having attended the Civil Court in obe-
dience to a summons issued by the Civil Ccurt and served
on him, the Munsif of Maligaih sent a" yadi," in the usual
official form, to the Subordinate Magistrate, 2nd Class, com-
plaining of such contempt of his lawful authority, and re-
questing that the Magistrate would institute inquiry into
the matter. The Magistrate was of opinion that the com-
plaint should have been on stamped paper, and declined to
entertain it on the Munsif's unstamped official "yadi."
C. B. Pritchard, Magistrate F . P., coincided in opinion with
the Subordinate Magistrate, and nothing was done in the
matter.
The Session Judge remarked-
" It seems to me that a complaint la.id by ' yadi' by a
Munsif is a 'writing made by a court,' which is exempt
from a stamp, under the general exemptions clause at the
end of Schedule A of the Stamp Act; that if not so, it is an
information laid before a Criminal Court, which the Magis-

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 CROWN CASl!lS, 105

trate, in the exercise of his judicial discretion, should exempt 1861',.

REG.
from stamp duty-a discretion he can exercise under the pro- v.
SAJJAN
visions of the exemption clause of Art. 10 of Sch. B of tho Vm1 r .
Stamp Act (substituted, under Act XXVI. of 18U7, for the
former Sch. B of the Stamp Act).
"The short way of looking at the case appears to be,
that the ' yadi' was a complaint by the Civil Court, and
though not sealed with the official seal of the Munsif, yet
a. complaint of such court notwithstanding, for there is
nothing in the Criminal Procedure Code by which such
complaint is required to be scaled. If the Magistrate was,
therefore, unable to take judicial notice of the Munsif's sig-
nature (as he was unable), ho should have required proof
of it. It might have been better if the ' yadi' l1ad been
sealed with his official seal."
PER CuRIAM (NEWTON and TucKER, . JJ.): We are of
opinion that the Magistrate wus in error in requiring the
Munsif to prefer a complaint on stamped paper. Under
Sec. 168 of the Code of Criminal Procedure, the sanction of
the Civil Court was all that was necessary, and, under Sec,
171, on the Munsif sending the case to the Magistrate, ho
was required to proceed therenpon according to law.

REG. v. DALPATRA 1M PEMA1DHA1I. Dec. 17.

Becognisa11ce Bond-Security to keep the Peace-Legal Evidence--Crim.
Proc. Code, Sec6. 282, 288, and 307
Orcler of District Magistrate, requiring certain persons to enter intu
recognisance and find security to keep the peace, re,·erse<l, as such ol'der
appeared to have been ma<le without any legal evidence having been taken
and recorded, as required by Sec. 307 of the Crim. Proc. Code.
CASE referred, for the orders of the High Conrt, by N. M.
W. Daniell, Acting Session Judge of Surat, under Sec.
434 of the Code of Criminal Procedure.
The facts of the case sufficiently appear from the follow-
ing extracts from the judgment of the Session Judge:-
it." The facts, as stated before this Court, are that Dalpat-
tAm was accused, before the Subordinate Magistrate, by
Dulba Devla and Devla Dial, of committing assaulti

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 106 BOMBAY HIGH COURT REPORTS.
I

1868, " The Subordinate Magistrate dismissed the complaint,

~~ no evidence being adduced ; but he considered that a breach
DALPATR.\' le of the peace was likely to occur, and, therefore, sent up the
PEl!A'BnA't.
case to the Magistrate of the District (Mr. Mulock, Magis-
trate F. P. in charge) with a report recommending that
recognisance and security should be taken from the com-
plainants (Dulba Devla and Devla Dial). . The District
Magistrate, on the proceedings submitted by the Subordi-
nate Magistrate on the oral examination (rubru bolavi tapas
karta) of the complainants and the other party, Dalpatram,
required both Dalpatram and Dulba Devla to enter into
recognisance and find security. He demanded nothing from
Devla Dial.
"It is now argued that the Magistrate's proceedings were
irregular, and that his order must be reversed.
"The recognisances and security must have been taken
under Sec, 288 of the Criminal Procedure Code.
"No section is quoted by the Magistrate; but, as there
hae been no conviction, Sec. 280 was not applicable.
"On the first point raised by the pl~ader, I consider that
tlrn papers before the Magistrate, and the investigation made
by him, are sufficient information, under Sec. 282, against
Dalpatram, although the Subordinate Magistrate did not
settd up the case with the object of bail being required from
him ; and that the Magistrate of the District could at once
proceed against him, under Sec. 288.
"On the second point, namely, the proceedings of the
Magistrate under that section, I consider that the proceed.
ings have been irregularly conducted, and that the order of
the Magistrate of the District should be reversed.
"In a recent case adjudicated on by the High Court of
Calcutta, Nursingh Nara-in, p1·isoner {a), the proper course
to be followed by the Magistrate is laid down. It is ruled
that there must be a judicial adjudication under Sec. 288,
attd that it must be based on legal evidence and be duly
recorded.
· (a) 10 Cal. W. Rep., Cr. R. l.

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 CROWN CASES. 107

"There is no record in this case of a judicial investign.- 1868.

tion beyond the words' rulm, bolavi tap&s ka1·ta.' No evi- ~.0 •
dence before the District Magistrate is recorded, nor have DPAt.u;ru.'~
El!A BRA I.
the provisions of Sec. 429 of the Criminal Procedure Code /
been complied with."
PER CuRIAM (NEWTON and TucKER, JJ.) :-The Court re-
verses the order of the Magistrate, as it would appear to
have been ma.de without any legal evidence having been
taken and recorded, as required by Sec. 307 of the Criminal
Procedure Code. The Magistrate should be referred to the
judgmeut of the Calcutta High Court (in which the Court
concurs) in the case of Nmwi?19h Namin.

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Digitized by Google
 fJ l/_ ,n/L
A P J) E N D I X A.

1861.
October.

l
,
THE P.ENINSCLAR AND Oau:N1'AL STEAM NAVIGATlO:S
'
CoMPANY , •• , . , ., • •• • •••••• • •••••••••••••• • ••••• ,Plaintiffs.
Tm~ SECRETARY OF STATE FOR INDIA ••••••••••••• ,Deftndant. -; ·
/ :'
I
S~retary of State-Neglige11ce of Servanfd-Liabilitu,

I
The Sec1"etal'y of Stato in Council of India is liable for the dan1agcs occa-
sioned by the negligence of servants in the serYice of Government if the
negligence ii:1 such a.s would render an ordinary employer liable.

T HIS case was 1-eferred by A. G. i\Iacphe1·son, First Judge of the Cal-

cutta Court of Small Causes, for the opinion of the Supreme Court,
under See. 55 of Act IX of1850.

CASE.-" The plaintiffis seek in this action to 1-ecover Company's Rupees

350, the damages sustaine1l by them by reasou of injuries caused to a
horse of the plaintiffs, through the negligeuce , of certaiu serrnntll of the
defendant. The following are the facts, as found by me :-
" A servant of the plaintiffs was proceeiliug from Gai·den Reach to Cal-
cutta in a carriage drawn by a pair of horses belonging to the plaintiff's,
an1l drh•en by a coachman iu their employ. The accident, which is the
subject of this suit, oceurl'ed iu passing the Kidderpore Dockyard, which
is a Goverument 1lockyard, of which the Superintendent of )larine is the
head, an<l which is superiutended antl managed wholly by persons in the
service of GoYemment. The dockyard's works are situated partly on the
one side of the road, aud partly on the other. Ou the day iu question,
ce1tain workmen in Govemment employ, who had been engaged in rh-et-
tiug a piece of h·on funnel casing, weighing about three huudredweight,
and beiug eight or niue feet long and about two feet bigh, were desired
to carry the work, which they bad finished, on board a steamer which
was lyiug iu the river. The casiug had been rivetted in tbat portion of
the works lying to the side of the roatl which is furthest from the river ;
and in order to put it on board the steamer, it was necessary that it
should he carried along the public road for about a hundred yards, and
that it should be cai·1i.ed across the road at somc point of those huudred
yards. When the plaiutiffs' carriage _drove up, the coacl1mau, while he
,vag still so far off that be might easily have pulled up entirely if he ba<l
chosen to do so, found eight men (rivetters) carrying the iron along the
road. It was slung on a pole, four men bearing the pole in front, a11d four
bearing it behind. And the men were walking in the very centre of th_c
road, although there WM a conijiderable vacant place on either si1le of
v-1 a

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 2 DOMBAY HIGH courcr REPOR'l'S.

1861. the regular carriage way, which they might have used, 'l'hey were not
P. & 0. S. N. Oo. crossing the roacl; they were simply walking along in the very middle of
v. S it. The coachman ancl syces called out, before they came up, to warn the
SECY. 01" UTE
l'OR INDIA. men wbo were carrymg . t he uon,
. and t l1e coac}nnan went s1ow ly, an d h ad
his horses in hand, tl1ough he diet not stop. . The men attempted to get ·
out of the way ; but those in front tried to go to tl1e one side, and those
behind tried to go to the other. The consequence of this was a loss
of time, · which brought the cafl'iage close up upon them, before
they bad left the centre of the l'Oad. EventuallY4they were in fact just
beginning to move to a side, and the carriage would have gone clear of
them, had they continued so to mo..-e. But they got alarmed at the
proximity of the carriage and horses, and suddenly dropped tl1e iron ancl
ran away. The iron fell with a great noise, which sta1-tled the plaintiffs'
horses, which thereupon rushed forwards violently and fell on the iron,
damaging one horse to the extent of Rs. 350. The iron was dropped in
tlle very centre of the carriage way. No accident at all need have .
happened, if the plaintiffs' coachman had stopped.altogether, as he might
have done. But I found that it was not unreasonable or improper in the
coachman to try to pass as he did, and that the carriage and horses
would actually have gone clear of the iron nnd the men carrying it, if they
bad only continued to move as they bad begun to do when they lost their
presence of mind ancl dropped their load. I further found that the men
had a right to carry the iron along the road, but that they had no right to
ca1·ry it in the very centre of the carriage way.
" It was proved that there was no one in attendance superintending
those who were carrying the iron, 01· ready to give them notice of the
approach of carriages or other vehicles.
"I was of opinion that the defendant's servants were wrong-cloe1·s in
carrying the iron in the centre of the road ; and, that being so, they
were liable for tlie consequences of what occurred, although they did drop
their load in consequence of being pressed more than "·as absolutely
necessary by the plaintiffs' coachman. But I considered that, under the
circumstances, the defendant, the Secretary of State for Incia, was not
. liable. Having some doubts in the matter, I gave a judgment for the
1lefendant, subject to the opinion of the Judges of the Supreme Court.
If the Judges of the Supreme Court should be of opinion that tl1e judg-
ment shoultl be for the plaintiffs, the damages will be assessed at the
amount sued for, less ten rupees, as I find that the plaintiffs sustained
damages to the am0tmt of Rs. 350, but subsequently realised ten rupees
by the sale of the injured animal."
The judgment of the Court* was delivered by
PEACOCK, C.J. :-This is a case stated for the opinion of the Judges
of the Supreme Court, by A1-thur G. Macphel'Son, First Judge of the
Calcutta Court of'Small Causes.
The plaintiffs seek to rec°'·er damages, Rs. 350, on nccount of injtiry
caused to a horse of the plaintiffs through the negligence of certain serr-
• PE.lCOCK, C.J., JACKSON nnd WELLS, JJ.

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 APPENDIX, 3
ants of the Go,·ernment. The cnse was stated under Sec. 55 of Act IX. 1861.
of 1850, which authorises the Judges of the Courts of Small Causes to P. & 0, S. N. Co.
reserve any question of lnw, upon which they entertain doubt, for the 8 11 '
. . ECY, OF 8 TATE
opm1on of the Jmlges of the Supreme Court. The point of law intended FOR INDIA.
to be reserved is not so clearly an,l explicitly 1,used as it might be. At
first sight the case appeared to raise n mixed question of law aud fact ;
and it seemed doubtful whether the lcnrnecl Judge of the Small Cause
Court intenclecl to raise the general question whether, undel' the circum-
stances, the plalntitli! were entitled to maintain an nction for the damnges
sustained, or merely the question whethc1· the Secretary· of State was
liable to be sued for them ; for, after stating the facts, he says : " I was
of opinion thnt the defendant's servants were wrong-doers, for carrying
the iron in the centre of the road ; and, that being so, they were liable for
the consequences of whnt orcurrecl, although they did drop their load in
consequence of being pressed more than was absolutely necessary by the
plaintitfs' coachmnn. But I considered that, under the circumstnnces, the
defendant, the Secretary of State for India, was not liable. Having some
,loubts in the matter, I gave a judgmeut for the defendant, subject to the
opinion oftbe Judges of the Supreme Co11rt."

In stating a rnse for the opinion of the Court, the Jnclges of the Small
Cnuse Court shouhl always be C'areful to state di~tinetly the questions of
law o, equity intrnde<l to he rese1Ted, and not to allow them to be in any
way mixed np with mntters of fact, of whieh they are the sole judges.
This Court was, nt one time, disposed to send the case bnck to be amend-
ed, hnt having reference to those pnrts of the case in which it is stated
thnt it was not nnrcasonahle or improper in the coachman to try to pnss
as he tlitl, and that, in the opinion of the J uclge who stated the case, the
Govcmment scrrnnts were liable for the consequences of what occurred,
we thought that it 1rns his intention to reserve only one question, name-
ly, whether the Secretary of State was liable for the damages occasioned
by the ncgligenee of serrn~ts in the service of Govemment, assuming
them to have been guilty of such negligence ns wonld have rendered rut
ortlinary e:nplo:·er liablr. The learned Advocate General, on the part of
the llcfellllant, acqniescccl in that vie1Y, ancl the case was argue,l upon that
question alone.
It was pointed ont by the Advocate General that the action was brought
ngainst the Secretary of State, and not against the Secretary of State in
Council. It was quite clear that an action coultl not be maintained
against the Secretary of State, ant! that, if it coulcl be maintained at all,
it ought to ha1·e heen brought against the Secretary of State in Council. \; t
Bnt the Advocate General very properly declined to avail himself of
such a technical point, anti it wr,s agreed to treat the case as one against ·
the Secretary of State in Conncil, in order that the main question might
he fairly raised and argued.
The proviso contnined in Se<'. 25 of the Small Cause Court Act : -
" All suit3 where the debt or damage claimed, or :alue of the property in
dispute, is not more than Rs. 500, whether on balance of account or other-
wise, may he hrought in the Court of Small Causes ; and all such suits

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 BOMBAY HIGH COUR'f REPORTS.

_ _..;.l_S0..;.1;...._ _ brought in the said Coul't shall be -hear<l and determined in a summ1u·y
P. & 0. S. N. Co. way, and e,·ery defence which would be deemed good in the Supreme
11,
Court sittiug as a Conrt of Equity shall be a good bar to any legal de-
S1:cr. o:r STATE
roit IsDIA, mand in the Court of Small Causes. Provided nlwayirthat the Court shall
not have jurisdiction in any matter concerning the revenue, or concerning
any act ordere1l or done by the Governo1·, or Governor General, or any
member of the Council of India, or of any Presidency, in his public capa-
' city, or done by any person by order of the Governor General or Gov-
ernor in Council, or concerning any act ordered or done by any Judge or
Judicial Officer in the execution of bis office, or by any person in
pursuance of any judgment or order of any Court, or any such Judge or
Judicial Officer, or in any snit for libel or slander," was also referred
to in the argument of the learne1l cotmsel for the plaintiffs, but the
jurisdiction of the Smnll Canse Court was not disputed on the part of the •
defendant. It appears to us that this case does not fall within the pro-
viso above mentioned. It is not, in our opinion, a case concerning the
revenue, notwithstanding any damages re~overed woul,l have to be
satisfietl out of the revenue; if it were a case concerning the revenue,
because the damages would harn to be paid out of the revenue of lniua,
the Supreme Court must have exeeeded its jurisdiction in everj' ease
brought against the East India Company since the :3rll & 4th Wm.
IV., c. 85, and cannot take cognisance of any action against the
Secretary of State in Council, although the 21 st & 22nd \'ict., c. 106,
expressly rendel'S the Secretary of State in Council liable to be sued ns
well in India as in England. Nor does the case, in our opinion, fall with-
in that part of the proviso which relates to actions brought for anytlung
done by order of the Governor Gcneml, or Governor in Council. That
part of the proviso does not apply to every action brought against a servant
of Government, but only to actions for acts done under some express
order of the Governor General'or Governor in Council ordering or author-
ising the particulai· act complained of. But it is not ,necessary to lleter~
mine this question, as it is not reserved for our opinion. It was afterwards
very properly admitted, though the fact was not stated in the case, and
probably was not proved on the trial, that the piece of iron funnel whicl1
was being carried was for the pm1>ose of repairing one of the river steam-
ers belonging to Government. The question now fairly rnised by tl1e
admission of the Ad,•oeate General is one of ,·ery considerable importance
and of some difficulty. It has been argued with great ability on both
sides, and we have given it the best consideration iu our power, mul will
now proceed to state the decision at which we have 'arrh·ed, allll the
grounds upon which our opinion is founded.
The question as to the liability of the Secretary of State in Council to
be sued depends upon the Act 21st & 22nd Viet., c. 106, fo1· the better
government of India, and turns principally upon the conijti·uction of
the 65th section. '£he main object of that section was to tmnsfer to Her
Majesty the possession and government of the British territories in India,
which were then vested in the East India Companv in trust for the
Crown, but it does not ippear to ha\'C been the intention of the Legisla•
ture tQ alter the nature or extellt of liabilitie~ with which the revenue

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 APPENDIX, 5
of India should be chargeable; and accordingly we find it expressly 1861.
,-=,--,,,,...-,,~
enacted by the 42nd section that "the dividends on the capital stock P. & 0. S. N. Oo.
of t~e said Comp~ny secured by the Act of the 3rd & 4th Wm. IV., c. 85, SECT.~~ STAn
until the redemption thereof, and nil the boml, debenture, and othel' debt l'oR INDIA.
of the said Company in Great Britain, and all the territorial debt, and all
other debts of the said Company, and all sums of money, costs, charges, and
expenses, which, if this Act had not been passed, would, after the time ap-
pointed for the commencement thereof, have been payable by the said
Company out of the 1-e,·enues of India, in respect Ol' hy reason of any trea-
ties, covenants, contracts, grnnts, or linhilities then existing, nnd all ex-
penses, debts, nnd liabilities which after the commencement of this Act shall
be lawfully contrncte1l and incurred on nccount of the GoYemment of India
and iill payments under this Act, shall he charged and chargeable upon the
revenues of India alone, as the same woultl have been if this Act had
not been passed, aml surh expenses, debts, liabilities,' and payments as
last aforesaid, had been expenses, debts, and liabilities lawfnlly contracted
nnd incurred by the saitl Company; and such re,•enues shall not be
applied to any other purpose whatsoe,·er; and all other monies vested in,
or arising or accruing from, property or rights Yested in Hel' Majesty
under this Act, or to be received or disposed of by the Council under
thi~ Act, shnll be applied in aid of snch revenues." Rut as the Queen
coultl not he sued, as the East Imlia Company coultl ham heen, in her
own Court, it wns necessary to prO\·itle for the morle of enforcing such.
liabilities ; and therefore, after proYiding by See. 6-l, "thnt all Acts and
provisions then iu force, 1,y charter 01· otherwise, concerning lllllia,
shoulll, subject to the pro\'isions of the Act, continue in force, and he
construetl as l'eforring to the Secretal'y of State in Council in the place of
the said Company, and the Court of Directors nllll Court of Pl'opl'ietol's
thereof," it was ennctetl hy Sec. G5 thnt "the Secretary of State in Coun-
cil shoultl allll might sue aml be sued as a Body Corporate, and that all
persons might ha,·e and take the same remedies and pl'oceedings, legal
aml equitable, against the Sec!'etary of State in Council as they could
have done against the .East India Company, and that the property anrl
effects thcrehy vested iu Her Majesty for the purroses of the Govern-
ment of India, or acquired for the saitl purposes, should be subject and
liable to the same judgments and executions ,,s they would, while vested
in the Company, ha\'e been liable to, in respect of debts ~nd liabilities
lawfully contracted and incurred hy the saitl Company." Sees. 6G, 67,
and Gl:l pl'ovide as follows :-~ec. G6 :-" The Secl'etal'y of State in Council
shall, with respect to all actions, suits, and all }>l'Ocee<lings by or against
the said Company pending at the time of the commencement of this Act,
come in the 11lace of the said Company, and that without the necessity
of substituting the name of the Secretary of State in Council for that of
the said Company." Sec. Gi :-" All treaties made by the said Com-
pany shall be liin<ling on Her Majesty, and all contracts, covenants,
liabilities, and engagements of the said Company made, incurred, or
entered into before the commencemc:nt of this Act, mny be enforced by
arnl against the Secretary of State in Council, in like manner and in the
same Cou1-ts as they might lu.we been by and against the saicl Company

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 6 BOMBAY HIGH COURT REPORTfl,

1861. if this Act hnd not been passed." Sec. 68 :-" Neither the Secretary of
-P-.-&~0-.-S-.-N-.-C-o-. State nor nnv member of the Council shall be personally liable in respect
i,. of anv such· contract, coveunnt, or engagement. of the said Company
SECY, OF STA1'E • h '
I
ron NDI,1. as aforesaid, or in respect of any contract, entered into under the nut or1ty
of this Act, or other liability of the said Secretary of State, or Secretary
of State in Council in their official capacity; but all such liabilities, and all
costs and damages in respect thereof, shall be satisfie<l and paid out of the
revem1e3 of Inclia."
The question then arises, woultl the East India Company have been
liable, in the present action, if the 21st & 2Zncl Viet., c. 106, bail not
been p.isse1l. The origin nml progress of the East India Company
are too well known to require any ,letail for the pmpose of the present
case. It is sufficient to state that after the passing of the 3nl & 4th
\Vm. IV., c. 85, they not only excrciseLl powers of government, but
also carrie,l on trade as merchants, By the 53rll Geo. III., c. 155, it
was declared that the British tei'l'itories in India, 1Yhich were then in
the possession and nncler the gol'ernment of the East India Company,
together with the revenues thereof, should remain nntl continue in the
possession and under the goYemment of the s:iitl Company. The Com-
pany also J'etaine<l the exclusive right of tr?.ding into arnl from the clomi-
nions of the Emperor of China; the exclusirn right to trade in tea within
the limits of their charter; and a right to trade in all other goods and
• commodities within the sam~ limits in common "·ith other British subjects.
It is true, no doubt, that they were directeil to keep books in such a
• manner as to exhibit the accounts of the territorial nn,l political depart-
ments separately and distinctly from snch as relate,l to the commercial
branch of their affairs ; antl that provisions were mn<le as to the apprc~
priation of the commercial profits aml receipts in Great Britain, and also
of rents, re,·enues, and profits arising from their territorial acquisitions in
fodia, after defraying the expenses of collecting tl1e same (Sees. 55 to G6).
It is not necessary to enter into a minute examination of those sections;
it is sufficient to say that the :East Imlia Company were directly interested
in their territorial 1·evenues; for such re,·enues were applicable, after
defraying certain cl1nrges particularly specified in the .\.et, to the pay-
ment of the civil and commercial establishments of the Company at their
several settlements in India; nnd it was also declared that, in the eyent of
the commercial profits at home hl'ing iusn/Heient in any year fully to
defray the dividend of £ 10 10s. per cent. upon the capital stock of
the Company, it shonlLl be hmful to make gooll any sucl1 ilefkiency out
of any smplus revenue that migl1t lrnn· al'isen in the preceding year of the
account out of the territorial reYenues nfter th e payment of its charges, iu-
te1·est of debt iuclmlcd.
No express provision appears to have been macle hy that Act as to
the application of the capital stock, goods, and commercial assets of the
Company, nor as to the application of the commercial profits and receipts
in India, unless sucl1 commercial profits and receipts in Imlia were in-
cluded under the words of the 59th section of the Act. However that may
be, it seems clear that the capital stock aud commercial assets of the Com-

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 APl'li:NDIX. 7
pany were liahlc to satisfy any jmlgU1eut that might he obtained against 1801.
them, aud that they had a direct interest in a one-sixth pa1't of the surplus P. & o; S. N. Co.
J>roeeeds of the tei:ritorial revenues which might remain after pro,·itling for Si,;cr. ~~- St'ATE
the payments mentioned in the 5!)th section of the Act, and the puyment :roR INDIA.
into the Exchequer of a sum of twclrn millions ofpoumls sterling thereout,
as a funJ for securing to the said Company their capital stock, and a divi-
dend of£ l O I Os. per cent. per annum thereon. Even as regards that twelve
millions, they had a (lircct interest in it, for it was to be deposited as a
· fund for seeming their capital stock nn,l a tfo·i,leud of£ 10 IOs. per cent,
per annum.
The Govemment of India an,l the pri,•ilcgcs of the East India Com-
pany continue,! to be regnlaktl by the 53rd Geo. III., c. 155, up to
the time of the passing of the al'll & ,Jth Wm. IV., c. 85. By that
Act the East India Company were directed to close their commercial'
business, and ceased to have any interest in the territorial acquisitions in
India or in the revenues thereof, allll it was euactcd that the , aicl territories
should contmue umle1· the go,·crnment of the Eust lmlia Company until
the 30th of April 185-l, an(l that all the lands and hcreditameuts, revenues,
1·cnts, aucl profits of the said Company, aml all tl1e stores, me1·chaudise,
chattels, moneys, debts, and real and personal estate whatsoever, except
the islautl of St. Helena, and the stores and property tl1ereon, subject to
the debts nml liabilitics then affecting the same, aml benefit of all cou-
trncts, covenants, nml engngemcuts, and nll rights to fines, penalties, and
forfeitures, and other emoluments whatsoe,·cr, which the said Company
shoultl be seiscd or possessed of, or entitled to, on the 22nd of April 1S34, .
shoulcl remain aud be vcstc<l in ·the said Company, and be held, received,
and exercisell hy them in trust for the Crown, for the ,service of the Gov-
ernment of India, discharged of all claims of the Company to any pro•
tit or admntage therefrom for their own use, except the dividend on the
capital stock secured .to them ns thereinafter mentioned. By See. 2 it
was enacted "that all nrnl singular the priYileges, franchises, abilities,
capacities, powers, authorities, whether military or ci\'il, rights, remedies,
methods of suit, penalties, forfeitures, disabilities, prm·isions, matters, and
things whatsoever, granted to or continued in the saicl Unite1l Company by
the said Act of the fifty-thircl ~ear of King George the Thir<l, for and dur-
ing the term limited by the said Act, and all other the enactments, pro-
visions, matters, ancl things containcil in the said .Act, or in any other Act
or Acts whatsoeYCr, which are limited, or may be construed to be limited,
to continue for and during the term grantetl to the said Company by
the said Act of the fifty-third year of King George the 'fhird, so far as
the same or any of them are in force, and not repealed by or repugnant
to tl1e enactments hereinafter contained, and all powers of alienation and
disposition, rights, franchises, and immunities, which the said Unitecl
Company now have, shall continue and be in force, and may be exercised
and cnjoye,l, as against all pz1·sons whomsoever, subject to the superin-
tendence, direction, aud control hereinbefore mentioned, until the thir-
tieth clay of April one thousa1ul eight hundred and fifty-four." It is clear
that there was no intention on the part of the Legislature to alter the
nature or extent of the liabilities to which the 1·cvenuc of India shoul<l be

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 8 DuMBAY HIGU COURT REPORTS,

1861. subject, for it wns exp1·essly cuacte(l by See. 9 " that from and after the
P. & 0. S. N. Co. sai(l twenty-second day of April one thousand eight hundred aml thi~ty-
1'- four, all the bond deht of the said Company in Great Britain, and all the
SECY, OF STA'fE
'FOR !Nnu. ten-itorial debt of the said Company in India, and all other debts which
shall on that day be owing by the said Company, and all sums of money,
costs, charges, and expenses which after the saicl twenty-second day of
April one thousand eight hundred and thirty-four may become payable by
the said Company in respect or by reason of any covenants, contracts, or
. liabilities then existing, am\ all debts, expenses, and liabilities whate,·er
which after the same daj· shall be lawfully contracted and incurred on ac-
count of the govemment of the said territories, and all payments by this
Act directed to be made, shall be charged and chargeable upon the 1·evenues
of the said territories; and that neither any stock or effects whic~ the said
Company may hereafter have to their own use, nor the dividend by this
Act secured to them, nor the Directors 01· Proprietors of the said Com-
pany, shall be liable to or chargeable with any of the said debts, pay-
ments, or liabilities."
No distinction was made by that section between the nature of the lia-
bilities tl1en existing and the nature of those wl1ieh might thereafter be
incurred, but the revenues were charged without distinction with the lia-
bilities then existing, as well as with those thereafter to be incuned. Sec.
10 provided " that so long as the 1iossession and government of the said
territories shall be continued to the said Company, all person~ and bodies
politic shall and may haYe and take the same suits, remedies, and proceed-
ings, legal and equitable, ag'linst the said Company, iu respect of such
debts and liabilities as aforesaid; aml the prope1'ty vested in the said Com-
pany in trust as aforesaid shall be subject and liable to the same judg-
ments and executions, in the same manner ancl form respectively as if the
said property were hereby continued to the said Company to their own
use." It was eontencled 011 the part of the defendant that a State cannot
be liable for damages oecasionecl hy the negligence of its officers, or of
persons employed in its service. This, as a general rule, is true, for it is
an attribute of sovereignty, and an universal law, that a State cannot be
sued in· its own Courts without its consent : see Kent's Comm., 6th Ed,
Vol. I., 297 note ;_Story on the Constitution of the United States, 2nd
Eel., p, 1675.
In England the Crown cannot be made liable for such damages, either
by petition of right or in auy other manner. This was decided by Lord
Lyndhurst, in a very elaborate judgmeut on the case of Viscount Ca11terb!try
,•• Tile Attorney Gene1'al (1 Phillips 32i), But the decision was found-
ed upon the principle that the King cannot be guilty of personal negli-
gence or misconcluct, and consequently c.annot be reponsible for the negli-
gence or misconduct of his serYants ; and the absence of all trace of I\
remedy against the Crown, by petition of right for damages occasioned by
the negligence of its servants, was held to afford a strong argument against
its liability. "It is admitted," saJ·s the Lorcl Chancellor, in delive1iug
judgment (p. 332), "that for the personal negligence of the sovereign,
neither this" (in speaking of the petition of right) "or any other remedy is
appliCRble." But if we are right in our construction of the 2ht & 22m\

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 APPENDIX. 9
Viet., c. 106, the Secretary of State in Council is thereby rendered sub- 1861.
ject to the same liabilities as those which previously attached to the East P. & O. S. N. Co.
India Company. The case of Lord Canterbury v. The Attorney General SECT,;; Suu
is not applicable to the present case, for if there is a liability, there is no ' ~a I1'DI.&..
necessity to -resort to a petition of right to enforce it, an action against
the Secretary of State in Council having been expressly given by the 55th
section of tlte Act, in lieu of that which formally existed agailllt the Eaat :;
l
India Company. ii
! •
;
In determining the question whether the East India Company would,
under the circumstances, have been liable to an action, the general prin-
ciples applicable to Sovereigns and States, and the reasoning deduced
from the ma.'(,jm of the English law that the King can do no wrong,
would have no force. We concur entirely in the opinion expressed by
Chief Justice Grey in the case of The Bank of Bengal v. The Eaat lnd,a
Company (Bignell, Rep., p. 120), which was cited in the argµment, that
the fact of the Company's having been invested with powers usually
called sovereign powers did not constitute them sovereigns. This is clear
(extract from p. 119) from the recital in the 53rd Geo. Ill., c. 155, by
which the territories then in the possession and under the government of
the East India Company, with the revenues thereof, were vested in them
for a further term, without prejudice to the undoubted sovereignty of the
Crown in and over the same, or to any claim of the said Company to any
rights, francfuses, or immunities.

Many cases were cited, in the course of the argument for the defendant,
to prove that public officers are not responsible for the negligence or
inisconduct of those who are employed under them : Nie/muon v.
Mouncey (15 East. 384); Lane v. Cotton (12 Mod. 472; S. C. Ld.
Raym. 650); Whitfield v. Ld. Dupenser (Cooper, Rep. 755), are cases -
of this description; they fully support the position for which they were·
cited, but they are clearly distinguishable from the present case. The
first was an action against the captain of a sloop of war for damage1
occasioned by the negligence of one of the subordinate officers under
him, in running down a vessel belonging to the plaintiffs, It was proved that
there was no negligence on the part of the defendant, nor any personal
interference by him. The grounds of that decision are clearly stated by
Lord Ellenborough. He says: "Captain Monncey, the defendant, is said
to be liable for the damages awarded in this case, by considering him in the
ordinary character of master of the vessel, by means of which the injury
was done to the plaintiff,.' property. But how was he master 1 He had
no power of appointing the officers or crew on board ; he had no power
to appoint even himself to the station which he filled on board ; he was
no volunteer in that particular station, merely by having entered origin-
ally into the naval service; but was compellable to take it when appointed
to it, and had no choice whether or not he would serve with the other
penons on board, but was obliged to take such as he found there, and
make the best of them ;_he had no power either of appointment or dia-
inissal over them. The case, therefore, is not at all like that of an owner
or maater, who, according to the principle laid down by Lord C.J. Eyre.
v,-2"

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 10 BOMBAY HIGH COURT REPORTS.

1861. Bush v. Steinman, is answerable for those whom he employs, ·for injuries
P. & O. S. N. Co. done by them to others within the scope of their employment."
'II.
B•cT. o:r Sun In Lane v. Cotton, and Whitfield v. Lord Despenser, it was held that
YOJ. lNJ>U.. the Postmaster General, in a case in which there was no personal
neglect on his part, was not liable for the loss of a letter owing to the
negligence or dishonesty of a servant employed in the Post Office. These
cases carry the principle further than that of Nicholson v. Jfouncey: for it
appeared that the Postmaster appointed the inferior officers; the latter,
• however, gave security to the Crown, and were treated as public officers,
and were required to take the oaths usually taken by such officers. It
should be remarked that in each of the last two cases the plaintiff' sought
to render the defendant personally liable, and that if the action had suc-
ceeded against him, he must have paid the damages himself, without hav·
ing any fund to which he could resort for reimbursement, as observed by
Willes, J.,inMacbeath and Haldimand(l Term R. 172):" If the defendant
be liable, his person and property will be subjeci to an execution, and he
must afterwards apply to Government for a reimbursement, which will be
no satisfaction to him for the inconvenience he will be put to." In the
present case, however, if the action is maintainable against the Secretary of
State in Council, he will not be personally liable to make good the damages,
but the same, if at all, must, according to the 68th section of the Act, be
satisfied and paid out of the revenues of India. A distinction was made
by Lord Mansfield in Whitfield v. Lord Despenser between a personal
liability and a demand upon a fund. In that case he said "the Post Office,
aa Mr. Lee has truly said, was first erected during the Usurpation by an
ordinance of Cromwell, and afterwards more fully regulated by the Stat.
12 Charles II., c. 35. There never had been any action brought upon
that ordinance or upon the statute until Lane v. Cotton. But neither
by the draft of the declaration of the advisers of that action, nor in the
opinion of the Judges upon the question, does it appear to have entered
into the ima~nation of either that this was a demand upon the fund
(referring to the revenue derived from the Post Office), as it has been now
argued; for the form of action is not applicable to charge such a fund."
Here, however, there is no doubt that the action is in the proper form,
for if the fund (i. e.;the revenue of India) is liable, the proper mode of
getting at it is by action against the Secretary of State in Council. In
considering whether the fund is liable, or was so whilst the government
was vested in the East India Company, the remark of Powis, J., in Lane
v. Cotton (l Ld. Raym. 650), is important: for although he was of opinion
that the action would not lie against the Postmaster General, he thought
that, if the revenue had been farmed, the farmer would have been
liable for the negligence of servants employed by him. Originally the
revenues of India were in a nature farmed by the East India Com-
pany, for by the 7th Geo. III., c. 57, the first statute by which the
revenues were expressly granted to them, and which was puaed
almost immediately after they had obtained the Divani, the East India
Company were to have all the territorial acquisitions and revenue,
for two years, and were to pay into the Exchequer a sum of .£400,000
a 7t.ar for the use of the Crown. No provision was made as to the

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-~- -L
 APPENDIX. 11

11pplication of the revenues. It was enacted that if the Company l881.

Rhould be dispossessed of any part of the territories by foreign power, a P. .t 0. 8. N. Co.
proportional abatement was to be made. So, after the 53rd Geo. Ill., SscY. !; Su.a
c. 155, as appears by the 59th section, one-sixth of the ultimate ,oa lJfDu.
surplus proceeds arising from the revenues, after all appropriations
required by the Act, was to be retained by the Company for their own
uae, and the remainder was to be deemed the property and at the dis-
posal of Parliament. By the 9th Geo. III., c. 24, the period of two
years created by the ith Geo. III. was extended for a further term of
five years, and the East India Company were to continue to pay into
the Exchequer £400,000 per annum. The case of Gidly v. Lord Palmer-
ston (3 Brad. & Bingh. 2i5), and Macheath and Haldimand (1 Term
Rep. 1i2), though cited in argument, have no great bearing upon the
question under consideration. Neither of those cases involved any ques-
tion as to the liability of an employer for the negligence of his servants
or of a public officer for the acts of his subordinates. The point decided
in Gidly v. Lord Palmerston was simply this, that a retired clerk of the
War Office could not maintain aa action for his retired allowance against
the Secretary for War, notwithstanding the amount voted for and appro-
priated thereto by Parliament had been received by the Secretary. The
question was, whether, under the circumstances, there was a duty on the
part of the Secretary for War, arising from the receipt of the money, from
which a promise could be implied by law. It was held that there was no
privity between the plaintiff and the defendant ; that the latter was re-
sponsible to the Crown only for the due execution of the trust or duty com-
mitted to him, and that there was no duty from which a promise to the
plaintiff coultl be implied. It was very much like the ordinary case of an
agent who has received money from his principal to pay a third person,
and who is not responsible to the third person until he has made a pro-
mise, or done some act, from which an obligation on his part is created.
In Macheath and Haldimand it was held that the governor of a colony,
treating as an agi;nt for the public, was not liable to be sued upon con-
tracts made by him in that capacity. In that case, as well as in Gidly
v. Lord Palmerston, and the other cases commented upon, the question
waa whether the defendants were personally liable.
It should be observed that notwithstanding the Company were directed
by the 3rd and 4th Wm. IV., c. 85, to abstain from all commercial
business, an exception was made as to such as might be carried on for
the purpose of the government; thus they lawfully continued to carry
on a tra<le in opium au<l salt, which is still continued by Government
(Sec. 4).
In a country like India, the Government is obliged to engage in under-
takings partaking more of the character of private business than of affairs
of State, and this necessity existed in a stronger degree formerly than it
does at present, since the trade with India has been thrown open, and
capital has been attracted to it for enterprise.
The Bengal Marine and the Bullock Train, which were established by
the East India Company and are sli.11 kept up by Government, are used

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 12 BOJl[BAY HIGH COURT REPORTS.

1861. for conveyance by sea, by river, and by land, not merely or public officers
=-.,.....,,,.....,..-,:;-,:-
P . .t. O. 8 .. N. Co. and or Government stores, but also or private passengers and goods for
,v. hire. So also the Electric Telegraph is used for the conveyance of private
811CT. el' 8TA'l'S
l'Oll .lNDU. mesqges, and payments amounting annually to a large sum are made to
Government on that account.
It appears from the General Administration Reports for the yean1
1859-60 that the receipts on account of money of the River Steamers great-
ly exceeded the expenditure, and that the receipts arising from the Bullock
Train in the North-West Provinces alone exceeded the expenditure in that
year by upwards of four lakhs and a half.
Now if the East India Company were allowed, for the purpose of gov-
ernment, to engage in undertakings, such as the Bullock Train and the
conveyance of goods and passengers for hire, it was only reasonable that
they should do so, subject to the same liabilities as individuals. If, by
reason of their having been intrusted with the powers of government,
they were exempted from the ordinary liability of individuals in matters
of business, exercised either for their own benefit, as it was at one time,
or for the purposes of government, ·as it was at another, private indi-
viduals would have had to compete with them upon very disadvantageous
terms. A Government river steamer engaged in carrying Government
opium, or in carrying passengers and goods for hire, might come into
collision with a steamer belonging to an individual or to a private com-
pany. Suppose such an accident had occurred in the time of the East
India Company, entirely through the negligence of the captain or the
crew of the Government steamer, and that the accident had caused
the total loss of the private steamer, together with a valuable cargo of
indigo or silk the property of individuals, it can scarcely be supposed
that it could have been intended that the loss should fall entirely upon the
owners of the private steamer anti cargo, and that the East India. Company
should be exempt from liability, when, if the Government steamer l1ad
been sunk by the negligence of the crew of the private steamer, the
owners thereof would have been liable to make good the loss. If such
were the law, the East India Company could not have been made liable
even to the extent of the profit, if any, of the particular voyage of the
Government steamer, or to the extent of the value of the steamer itself.
Suppose the driver of one of the carts belonging to the Bullock Train
should, on a dark night, .leave it standing in the middle of the road, or
drive it on the wrong side, and in consequence of his negligence a pei;son
travelling along the road should be seriously injured : could it be said that
the Government would not be liable, even if it should be proved that the
clear profits derived from the Bullock Train on that part of the road, and
carried to the account of the revenues, exceeded four lakhs and a half
in the year? We may put a case which happened not many years ago.
A gentleman returning home on a dark evening was dragged backwards
out of the cqpveyance, in whit'h he was driving himself, by the wire of
the Electric Telegraph which crossed the public road, and which hung
loosely and so low that he was unable to pass under it : the gentleman
waa seriously injured, and lamed for life. Could it be said that, if the

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 APPENDIX. 13
accident had occurred at the time of the East India Company, they would 1861.
not have been liable, ifthe ac<'ident had been prdted to have been caused P. & 0. 8. N, Oo.
~olely by the negligenC( of their servants 1 It was argued that the per- SvcT. !~&r.a.n
sons injured have their remedy against those by whose negligence the :ro• bU>u.
damage is cause,l; but what compensation is it in a case in which the
damages sustained may amount to several lakhs, to be referred to a lascar
or to a bullock-driver, or even to the captain or mate of a Government
1teamer, for redress, if the accident was caused by his own personal negli-
gence. The captain or mate would not be liable, according to the prin-
ciple established in the cases of Nicholson v. Mouncey and StOfle v. Cart-
rigAt (6 Term Rep. 412).
We are of opinion that for accidents like this, if caused by the negli-
gence of servants employed· by Government, the East India Company
would have been liable, both before and after the 3rd & 4th Wm. IV.,
c. 85, a,µd that the same liability attaches to the Secretary of State in
Council, who is liable to be sued for the purpose of obtaining satisfaction
out of the revenues of India. We ,re of opinion thRt this is a liability,
not only within the words, but also within the SP.irit, of the 3rd & 4th
Wm. IV., c. 85, s. 9, and of the 21st & 22nd Viet., c. ]06, s. 65, and
that it would be inconsistent with common sense and justice to hold
otherwise.
It was contended in argument that the Secretary of State in Council,
as regards his liability to be sued, must be considered as the State, or as a
public officer employed by the State. But, in our opinion, his liability to
l,e 11ued depends upon an express enactment in the 21st & 22nd Viet.,
c. 106, by which he is constituted a mere nominal defendant for the
purp!>se of enforcing payment, out of the revenues of India, of the debts
and liabilities which hail been contracted or incurred by the East India
Company, or debts or liabilities of a similar nature ~hich might after-
wards be contracted or incurred by the Government of India. We are
further of opinion that the East India Company were not sovereigns, and,
therefore, coultl not claim all the exemption of a sovereign ; and that
they were not the public serrnnts of Government, and, therefore, did
not fall under the principle of the cases with regard to the liabilities of
such persons ; but they were a company to whom sovereign powers were
delegaterl, and who trader! 011 their own account and for their own
benefit, and were engaged in transactions partly for the purposes of
government, and partly on their own account, which, without any
delegation of sovereign rights, might be carried on by private indivi-
lluals. There is a great and clear distinction between acts done in the
exercise of what are usually termed sovereign powers," and acts done in
the conduct of undertakings which might be carried on by private indivi-
duals without having such powers delegated to them : Moodaley v. The
East India Company, ·and The same v. Morton (l Bro. C. C. 4G9). A Bill
was :filed against the East India CompRny, stating that a cowl or lease of
the permission to supply the inhabitants of Madras with tfbacco for ten
years had been granted to the plaintiffs, and si~ed by John Smith, a per-
son properly authorised by the Company ; that the plaintiffs as lessees had
covenanted to provide the settlement with tobacco at a reasonable price,

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 BOMBAY HIGH COURT REPORTS.

=--:---ca,..186-=-1...,.::---,a,---. and that tobacco, being considered in the East Indies as a necessary of
P. & 0 . B. N. Co. life, had from time imm';morial been supplied to the settlement of the East
81:cy, :~ BuTJ: India Company in that manner. It further stated that the East India
ro• INDIA , Company, before the expiration of the said term of ten years, had, by their
servants in India, dispossessed the plaintiffs, and granted another co111l to
other persons ; that the plaintiffs intended to bring an action against the
said Company, but could not support the same without the evidence
of persons resident in the East Indies, and they prayed for a commission
anti discovery. To this bill the defendants demurred. It was con-
tended on their part that the grant of the lease, and the removal of
the leSBees, were incident to their character as a sovereign power ; that it
was an exercise of their dominion as such ; and that no act of sovereignty
could be questioned in a bill in Equity or in a suit at law. But the
Master of the Rolls, afterwards Lord Kenyon, said : " I admit that no suit
will lie in this court against a sovereign power for anythin~ done in that
capacity, but I do not think the East India Company is within the rule.
They have rights as a sovereign power ; they have also duties as indi-
'fiduals. If they enter. into bonds in India, the sums secured may be re-
covered here : so in this case as a private company they have entered into
a private contract, to which they must be liable. Here i~ a prima facie
ground of action : the Company has put other persons in the way of
doing the plaintiffs an injury ;" and the demurrer was overruled.
But where an act is done, or a contract is entered into, in the exercise of
powers usually called sovereign powers, by which we mean powers which
eanngt be lawfully exercised except by a sovereign, or private individual
delegated by a sovereign to exercise them, no action will lie.
Thus in the ease of The Nabob of the Carnatic against The East India
Company (4 Bro. Rep. 179, and 2 Vesey, 56), it was held that a suit
could not be maintained upon a political treaty between a foreign state
and the East India Company, who were subjects of the Crown acting as an
independent state under powers granted by charter and Acts of Parliament.
The Lord Commissioner in that case said: "We are satisfied that the bill
must be dismissed. It is a case of mutual treaty between persons acting
in this instance as states independent of each other, and the circumstance
that the East India Company are mere subjects does not affect the
question. The treaty was entered into with them not as subjects, but as a
neighbouring independent state, and is the same as if it had been a treaty
between sovereigns: it consequently is not the subject of private mu-
nicipal jurisdiction." In the case of Mountstuart Elphinstone and an-
other v. Heerachund Bedreechund (1 Knapp P. C. C. 316), it was held
that an action would not lie for a seizure of property, when the proper
character of the transaction was that of a hostile seizure, made, if not
flagrante, yet nondum cessante hello. It may be difficult in some cases to
determine whether an act is done in .the exercise of powers usually called
sovereign powers, by intlividuals to whom such powers have been lawfully
delegated. It is clear that the East lmlia Company would not have been
...., liable for any act done by any of its officers or soldiers in carrying on
/ hostilities, or for the act of any of its naval officers in seizing as prize pro-
perty of a subject, under t~e supposition that it was the property of an

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 APPENDIX. 15
enemy, nor for any act done by a military or naval officer, or by any 1861.
soldier or sailor, whilst engaged in military or naval duty, nor for any acts P. & O. S. N. Co.
of any of its officers or servants in· the exercise of judicial functions. 8 v.
. . . ECT. OP 8 TATE
In many of such cases an action would not he even agamst the person who l'OJl INDIA.
actually committed the act : see Lecau:c v. Eden (Douglas Rep. 594). In
that case it was held that an action would not lie against a naval officer for
false imprisonment, where the imprisonment was the consequence of his
taking as prize a ship, which was afterwards restored upon the ground
that she was not liable to seizure; so also in Elphinstone and another v.
Bedreechund it was held that an action would not lie against the persons
who committed the act. But we think there can be no doubt that the
East India Company would have been liable for the negligence of their
servants or officers in navigating a river steamer, or in repairing the same,
or in doing any act preparatory to such repairs. Such an act could not by
any possibility be said to be done in the exercise of sovereign powers,
although it was an act which the East India Company were authorised to·
do by 3 & 4 Wm. IV., c. 85.

A distinction was taken in argument between a liability under a contract

and a liability arising out of a wrongful act; but we are of opinion that the
words "liabilities incurred" in 3 & 4 Wm. IV., c. 85, s. 9, and the same
words in 21 & 22 Viet., c. 106, ss. 42 and 65, are not necessarily limited
to liabilities arising out of contract ; for if so, there was no necessity to use
the word "incurred" at all. We think the words "expenses, debts, and
liabiliMLlawfully contracted and incurred" must be construed as " debta
lawfully contracted, and expenses or liabilities incurred." If this is not so,
the Government would have no power to apply the revenues in satisfaction
of any damages not arising out of contract: yet by 21 & 22 Viet., c. 106,
save as otherwise provided by the Act, the Secretary of State was author·
ised to exercise all the powers formerly exercised by the East India Company,
or by the Court of Directors or Court of Proprietors: and all acts and
provisions then in force. by charter or otherwise, were continued in force;
and there is no doubt that before that Act actions of ejectment in which
mesne profits were recoverable were mamtained against the East India
Company, in consequence of acts done by their officers in India, and costs
were recovered in actions defended by order of their officers.
Express provisions 'were also made by 53 Geo. III., c. 155, s. 128, and
by 55 Geo. Ill., c. 84, 88· 8 and 9, with reference to certain actions which
must have been actions of trespass if brought against the East India Com-
pany. If only liabilities arising out of contracts are included in the sec-
tions to which we haYe adverted, no action of ejectment can be main-
tained against the Secretary of State in Council, and all mesne profits,
and all coats iincurred, must be borne by the officers who actually take
possession of lands in the name of Government, or authorise actions which
fail to be brought or defended ; for it must be observed that the 42nd
section of 21 & 22 Viet., c. 106, contains these important words: "and
such revenues shall not be applied to any other purpose whatever." If the
words "liabilities incurred" are to be read in connection with the word
"lawfully," the sense is not materially altered: for liabilities could not be

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 16 BOMBAY HIGH COUR'l' REPORT:!.

-~~1_86~1=.,...,,,_. incurred by the East India Company or by Government by means of acts

P. & 0. S. N. Co. done by their officers or·servants,.unless such officers or servants were
Si:cr. ; ; STATE lawfully engaged in business; the words" liabilities lawfully incurred'~could
l'OR IN·Du.. not mean liabilities incurred by acts authorised by law, hut must mean lia-
bilities incurred by servants or agenti in the course of undertakings in which
they are lawfully engaged. For example, the Superintendent of Marine,
or some other officer of Government, was lawfully authorised to cause the
river steamer in question to be repaired, and to hire workmen to rivet the
piece of iron funnel and to carry it from the dockyard to the steamer : the
workmen were therefore lawfully employed to act in behalf of Govern-
ment, and, the business on which they were employed being an act of a
private nature, and not in the exercise of powers usually called sovereign
powen, or in the performance of an act of State, we think the Govern-
ment, by virtue of the Act to which we have advcrted, incurred a liability
by their negligence, and consequently that the revenues of India were
chargeable with the damages, and that the action well lay against the
Secretary of State in Council as the nominal defendant.
Many cases were cited in the course of the argument to show that
Commissioners and others employed in the execution of public works are
not liable for damages sustained by the negligence of their workmen; but
the principle upon which these cases were decided was, that the revenues
were specially appropriated to certain purposes, and that the Commis-
sioners, if they were liable to an action, would be personally liable to make
good the damages: see Hall v. Smith (2 Bing. 159). These principle!\ are
not applicable to the present case, if we are right in our opinion that the
revenues of India are li!lble to make good the _damage.~ ; and to the obser-
vation of the Chief Justice in Hall v. Smith with regard to the case of a
fund proving insufficient, the 68th section (21 & 22 Yict., c. 106) is a com-
plete answer, for it expressly declares that neither the Secretary of State
nor any Member of the Council shall be personally liable in respect of any
such contract, covenant, or engagement of the said Company as afo~said,
or in respect of any contract entered into under the authority of this Act,
or other liability of the Secretary of State, or the Secretary of State in
Council, in their official capacity ; but all such liabilities, and all costs and :
damages in respect thereof, shall be satisfied and paid out of the revenues
of India.
NoTE.-Tbis case is 1·epublished fro111 u report (believed to be u correct one)
\ that appeared in the E11gluih111au uewspuper of the 23rd of October lt61. A"
closely com~ected with the case in which it is cited by the Court ( The /:iecre-
\1 tary of State v. The Bombay Landing aml Shipping Co., supra, o.c..r. 45)
' as well as an earlier c•se iu this volum" (Laud v. Nurma11, supra, O.C,J. 1 ):
it is given here at lenb>"th, as it is believed that it has not hithe1to been published
in a form acceS11ible to the i,rofessiou.-ED.

D1g1tized by Google
 Kaiklwsru, J. RustornJi,
Bar-at-Law,
Lahore.
K,. ..;'. RUS1Qf\t1 r.·
AN INDEX ,~h
TO THE

PRINCIPAL MAT'f ERS.

ACCOMPLICE.-See SUMMING UP oF No. XIX. OF 1838, SEc. 13-

JUDGE. Held that a Magistrate F. P. alone
ACCOUNT STATED.-See LnuTA- has jurisdiction to convict of an
TION, 1. offence under Sec. 13 of Act XIX.
ACKNOWLEDGME~T IN WRIT- of 1838. Reg. v. Kuaamji valad
ING.-See LIMITATION, 2. Himinji Mhaakar ......... CR. CA. 6
No. 11. OF 1839, SEc. 4 ... cR. cA. 6
ACKNOWLEDGMENT OF DEBT- No. XI. OF 1841.. .......... A.c.J. 101
Where the plaintiff sued to recover No. XII. OF 1842 ......... A.C.J. 101
money lent, relying upon n.Stlmadaakat, No. XI. OF 1843 ............ A,c.J. 207
or acknowledgment of debt, given by SEc. 11. .................... A.c.J. 206
the defendant : No. I. OF 1845, SEc. 2G ... o.c.J. 49
Held that Sec. 9 of Reg. V. of 1827 No. VI. OF 1848 ............ o.c.J. 65
contaiued the rule of law applicable to Ko. V. OF 1850 ............... o.c.J. 65
the case, and that the onus lay on the No. IX. OF 1850-
defendant to prove that he had not re- SEc. 25.-See SMALL CAUSE
ceived full consideration for the acknow- COURT, I. .................. APPX. 3
ledgment of indebtedness which he had SEc. 55 ......... o.c.J. 1, 140, 145,
subscribed. Moti Kalianji v. Dipchand 147; APPX. l
-Yirchand ...................•.... A.c.J. 81 No. XXVI, OF 1850.-See MUNICI-
ACKNOWLEDGMENT OF TITLE. PAL CoMMISSIONER, 2. MuN1c1-
-See SECONDARY EvrnENCE. PALCOMM1ssmN1m, CHAIRMAN oF.
ACQUIESCIENCE.-See PARTITION, MUNICIPAL CoMMISSIONER, Dis-
EFFECT OF. OBEDIENCE OF ORDER MADE BY,
ACTIONABLE WRONG.-See PRI- No,XXXI. OF 1850, SEc. 3.-&e IM-
VACY, INVASION OF, BY OPENING PRISONMENT IN DEFAULT OF PAY-
DooRS AND WINDOWS. MENT OF FINE,
ACTS(GOVERNMENT OF INDIA)- No. VI. OF 1851. ............ o.c.J. 14
No. VII. OF 1836 ............ o.c.J, 49 No. XV. OF 1852-
SEc. 1. - See SMALL CAUSE SEc. 2.-See SEPARATE SENTENCES,
COURT, I. SEc. 6 ...................... o.c.J. 155n
No. IX.oF 1837- o.c.J, lS!l, 190, 195 No. VI. OF 1854, SEC. 2!J. o.c.J. 158
I IND

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2 INDEX,

No, XVII. OF 1854, SEC, 54.-See Bai U'delcuvar V, Mulji Nurar,i (3

INDIAN REGISTRATION ACT, 1866, Born. H. C. Rep., A.C.J. 177)
SEcs ..91 and 95, followed.
No. II. 01,· 1855, SEc. 36. A.c.J. 124 Where the holder of a decree which
No. XXII. oF 1855, SEc. 46- was in force when Act XIV. of 1859
The word "Magistl'ate" in Sec, 62 came into operation applied for
of Act XXII. of 185 5 includes a execution on the 5th of December
Subordinate Magistrate ; such Ma- 1864, but allowed that application
gistrate has, therefore, power to to drop, and again applied for exe-
try the master of a vessel for an cution on the 28th of March 1866,
offence committed against Sec. 46 it waa held that he was barred by
of that Act. Re9. V, Tunga Tuka. the law of limitation. Makunda
CR.CA. 14 valad Bulacharya V, Sit/mJ.tn and
No, III. oF 1857, SEc. 18.-See Nilo ........................ A,C,J. 102
CATTLE TRESPASS AcT. SEC, 24 ..................... Q,C,J. 20
No. VI. oF 1857- No. XXXII. oF 1860, SEcs. 185,
Sec. 4 ... o.c.J. 105, 106, 107, 108 188 ..................... 0,C.J, 28, 31
SEC. 8 ........... ..... ... .. o.c.J. 101 No. XXXVI. OF 1860 ...; ..A.C,J. 155
SEC. 24 ............... O.C.J. 106,112 No. XLV. oF 1860.-See INDIAN
SEc, 32.-See LAND REQUIRED PENAL CODE.
FOR PUBLIC PURPOSEi!. No. XXIII. OF 1861, SEc. 5-
SEc. 39 ..................... o.c.J. l 12 Where the Court of first instance or-
No. VIII. OF 1859 ....:....See CIVILPRo- dered a co-defendant to be joined
CEDURE CoDE. in the suit, but the plaintiff failed
No. XIV. OF 1859. o.c.1. 14; A.C.J. to pay the allowance necessary for
109 the purpose of causing a notice to
SEc. I.-See INSTALMENTS,
be served on such co-defendant,
--CL. 3.-See LIMITATION, 4.
who accordingly did not appear at
--CL. 8.-See LIMITATION, 3.
the hearing :
--CL. 9.-See LIMITATION, 1.
--CL. 13,-See LIMITATION, 2, Held that the proper course for the
4. MAINTENANCE. Court to have adopted was to dis-
--CL. 15,-See SECONDARY miss the suit, under Sec. 5 of Act
EvrnENCE ......... A.C,J. 53 XXIII. of 1861.
--CL, 16.-See LIMITATION, 1. Where the Court did not adopt that
SEC. 4.-See LIMITATION, 2. course, but proceeded with the suit,
SEcs. 19 and 20.-See LIMITA· and passed a decree, from which
TION, 5. the original defendant appealed on
SEcs. 20 and 21- the merits to the Assistant Judge,
SEc. 7........................A.c.J. 54 without · taking the objection that
SEc, 21 of Act XIV. of 1859 is to be the suit ought to have been dis-
read as an independent section, missed, it was held that he could
and distinct from Sec. 20 of that not raise this objection for the first
Act. time in special appeal.

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 INDEX. 3
Semble-The provisions contained in No. XIV. OF 18{JG. - See PosT
the first portion of Sec. 5 of Act OFFICE ACT,
XXIII, of 1861 are imperative ..
No. XX. OF 18GG ....... . .. .. . A.c.J. 91
Shek Abaa valad Shek Ddud V
SEC, 2- .. ..... .. .. ... .. .... .... A.C,J. 93
'Jbrahimji Mlad Ha,anji.A.C.J. 118
SEC, 17.,-See REGISTRATION, I.
SEc.i .. .. .. .... ... .. A.c.J. 120,121
SEcs, 91 and 95 .--See INDIAN
SEC, 11.-See MESNE Pao-
REGISTRATION AcT, 186G.
FITS .... .. .... .. ......... A.C.J. 130
SEC, 16 . .. .. ... .... ..... .CR. CA iO No. X. OF 1867, SEC. 1 ... A.C.J, 70,
SEC. 27.... ... .. .. ... .. .. A.C,J. 58 83, 90, 156
SEC. 28 ... . ..... .. .. .. A.C.J . 33, i4 No. XXI. OF 186i-
SEC, 38 .... ,. .. . ...... .. .. A.C.J. 216
Where .a Magistrate sentenced a per-
No. XXV. OF 18Gl.-See CRrnINAL
son, who had neglected to take
PROCEDURE CODE, out a licence, under Act XXI. of
No. X. OF 1862, SEcs. 3 and 52.- 1867, Sec. 15, a~d Act XXIX. of
See CoLLECTOR'os SANCTION TO 1857, Sec. 3, to pay a fine of ten
PROSECUTE, rupees, and in default of payment
Seu. A., ART · 4.-See STAMP, 3. to suffer seven days' simple impri-
--ART. 12 . .. .. .......A.C.J. 151 sonment, the High Court reversed
---ART. 15.-See STAMP, 3.
so much of the sentence as award·
---SEC. 2.-See STAMP, 1.
ed imprisonment, as the trying
---SEC. 3 ....... . ... ... .A.C.J, 93
Magistrate had, under the Act, no
--SEC. 41. .... ... .. .. A.C.J. 94
power to make such an order,
Sen. B., ART, 11, NoTE (c) .-See
Reg. v. Chendppd valad Nagdppa.
STAMP, 4.
CR. CA, 44
No. VI. OF 1864 (WmPPING).-See
SEPARATE SENTENCES. No. XXIV. OF 1867, SEc, 17.-See
No. XX. OF 18G4 .... ..... A.c.J. 95, 96 MORTGAGE, I.
No. XXVI. OF 18G4, SEC, 7. o.c.J. No. XXVI. oF 1867-
1, 140, 145, 147 SEc. 6, ART. 10 .. ....... A.c.J. 101
No. X. OF 18G5 ..... .. .. ... o.c,J. 201 Rcu. B, ART, 10 ...... CR· CA. 105
No. XI. OF 18G5 ... ...... A,C.J · 90, 99 --ART 11, NoTE (a), SPECIAL
SEC, 6 .... ... .. ... ...... A.C.J. 5t'I, 212 RULE FOR THE BOMBA\:° PRE·
SEcs. 19 aad 20,-See GROWING SIDENCY.-See STAMP, 4 ,
CROPS, - - NoTE (b).-See STA'MP, I.
SEc. 21.-See REVIEW OF JuDG· No. XXIX.oF 1867.-SeeAcTXXI.
MENT, 1, 2 ...... ... A,C,J, 98, 99 OF 1867.
SEC. 22. A,C,J, 35, 37, 87, 92, 97, No. I. OF 1868 ......... A,C,J. 41n, 91
99, 101
ACTS (BOMBAY)-
SEC· 4i .... ... . ....... ...... A,C.J, 9]
No. XXVIII. of 1865.-See ULT&A No . III. OF 1863.-See JuRISDIC·
VIRES .. ....... O,C,J. 154, 163, 165 TION,
No, X. OF 186G .-See INotAN CoM· No. VII, OF 1863, SEC. 32.-See
PANIEs' AcT. SERVICE WATAN.

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4 INDEX.

No.V. OF 1864- dent, without having been specifi-

1.Conviction and sentence for dis- cally extended thereto by Govern-
obeying an order made by a Mam- ment by Notification. Reg. v. Keru
Jatdar, under, Bombay Act V. of bin Ri.nishe/ et ol. ea. CA. 1!10
1864, directing the a?cused to keep ADJOURNMENT OF HEARING.-
a gateway open, reversed, as the See INDIAN INSOLVENT DEBToas'
Mamlatdar was not empowered AcT, SEcs. 47 and 50.
under that Act to make the order. ADJUSTMENT OF DECREE NOT
Reg. v. Khan<J,oji bin Tanaji. CERTIFIED TO COURT-
CR.CA. 21 H. sued B. to recover possession of a
2. Held that an order passed by a certain house.
Mamlatdar under Act V. of 1864 B. answered that the house was his
{Bombay), directing the accused to own; that H. having fraudulently
keep open a right of way to a privy, got possession of it, he, B., had
being in reality an injunction to filed a suit to recover possession ;
refrain from disturbing the posses- that a decree was passed in his fa-
sion of the parties, •was, therefore, vour in the lower court, which,
within the jurisdiction of the l\Hm- however, was reversed on appeal ;
lntdar. Reg. v. Kriahriashe! Mn that, pending a special appeal, a
Nlirayarishet .......••... CR. CA. 46. compromise had been entered into
See EXECUTION OF DECREE. between him and H., in pursuance
of which he, B., was put in posses-
No. I. OF 1865.-See OBSTRUCTION
OF PUBLIC SERVANT.
sion of the house.
The terms of this compromise were
No. II. OF 1865. SEcs. 4 and I I.-
not certified to the court, under
See MUNICIPAL COMMISSIONER, I.
Sec. 206 of the Civ. Proc. Code.
SEC. 62.-ca. CA. 53, 54
Held that this compromise, having
No. IV. OF 1865, SEC. 4. A.c.J. 84.
been effected after the decree in
SEc. 10.-SeP. SuasISTENCE Mo-
favour of B. had been reYersed, did
NEY· not come within the meaning of Sec.
No. II. OF 1866 ............ A.C.J. 212
206, and was, therefore, a good de-
No. III. OF 1866.-See EVIDENCE.
fence to the suit of H. Hari 8a-
No. IV. OF 1867.-See MuNICIPAL dll8hiv Dflcsl1it v. Bdpu Balvant.
COMMISSIONER.
A.C.J, 78
No. VII. OF 1867, Sxc. 31- ADMINISTRATOR GENERAL.-See
1. Imprisonment in default of pay- MORTGAGE, l.
ment of a fine inflicted under Act ADMIRALTY-
(Bombay) VII. of 1867, Sec. 31, Th!! Stat. 7 Geo. I., c. 21, Sec, 2
ought to be simple, not rigorous. (which declared void all contracts
Reg. v. Bechar Khushal. CR. CA. 43 by way of bottomry made by any
2. Bombay Act VII. of 1867, Sec. subject of His Majesty on any ship
31, became at once operative in all in the service of foreigners .bound,
places where a Magistrate Wall resi- or designed to trade, to the East,

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 INDEX, 5
nnd all contracts for loading or consent of his kindred, ndopt a son
supplying such ships with goods, to him if the act is done by her in
&c., or with any " provisions, the proper and bond. firle perform- J
stores, or necessaries," &c.), is re- ance of a religious duty, and neither
pealed by implication. capriciously nor from a corrupt
The Stat. 3 & 4 Viet., c. 65, Sec, 6, motive.
does not confer jurisdiction upon An elder Hindu widow has the power 1,/
the High Court of Bombay on its to adopt a son to her deceased
Admiralty side to entertain causes husband without the consent of a
for necessaries supplied to f01 !ign younger widow. Rakhmabdi v.
ships, that statute not extending to Radlidhdi ..................A.c.s. 181
India. ADOPTION OF ACTS OF GUAR-
The Stat. 24 Viet,, c. 10 (Admiralty DIAN .-See PARTITION, EFFECT OF.
Act of 1860), does not extend to
India. ADULTERY-
The jurisdiction of the High Court on I. Where a prisoner accused of
its Admiralty side is the same as adultery sets up in defence a Natra,
that exercised in the Court of Ad- contracted with the woman with
miralty in England prior to the whom he is alleged to have com-
passing of the above statutes, mitted adultery, in accordance with
The extent and nature of that juris- the custom of his caste, the ques-
diction considered and explained. tion the Court has to determine is,
When a suit is brought by material- whether or not the accused hone,tly
men for necessaries supplied to a belieoed, at the time of contracting
foreign ship against the surplus the Natra, that the womnn was the
proceeds of such ship lying in the wife of another man. Reg. v. Ma-
registry of the court, and there nobar Raiji ............... CR, CA, 17
is no opposition on the part of 2. Where the husband of a woman,
the owners of those proceeds, the with whom the accused was alleged
Court has a discretionary power to to have committed adultery, pro-
allow the claim of the material- fessed himself unwilling to proceed
men to be paid out of such un- with the prosecution, and the As-
claimed proceeds. The Proceeds of sistant Session Judge thereupon
"The ..4.aia" ............ o.c.s. 64 ordered the accused to be dis-
ADMISSION OF EVIDENCE.-See charged:
VARIANCE BETWEEN PLAINT AND The Court, in the exercise of its dis-
PROOF, cretion, declined to interfere. Reg.
ADMISSION OF TENANCY.-See v. Ramlo Jerio .........CR.CA. 27
YEARLY TENANCY. ADV ANCE.-See STAMP, 3.

I ADOPTION-
In the Maratha Country a Hindu
ADVERSE FINDING ON FACTS
IN COURT OF FIRST IN,
widow may, without the permission STANCE.-See MoRTGAGE, o.
of her husband, and without the AGENT.-See REcOGNISANCE BoND,

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 6 INDEX,

AGREEMENT. See CoNSIDERA· is that they need not be proved.,.

TION, provided they have been so acted
AGREEMENT TO AVOID LITI- upon, or brought from such a.
GATION- place as to offer a reasonable
A mutual agreement to avoid further presumption that they were hon-
litigation is not an agreement void estly and fairly obtained and pre-
of consideration. Bkima valad served for use, and are free from
Krish'!l,appci et al. v. Ningappa bin susp1c1on of dishonesty. Hari
Skidoppf.t Tuse ............ A,C,J, 75 Dkangar et al. v. Biru Daaru
AGREEMENT TO SUPPLY COT- et al. .. ...................A.C.J, 13&
TON.-See STAMP, 3. ANNUAL ALLOWANCE. :- See
ALTERATION OF A WRITING STAMP, I.
AFTER SIGNATURE.-See · Ac- ANNULLING OF CONVICTION
KNOWLEDGMENT OF DEBT, BY DISTRICT MAGISTRATE.-
ALTERNATIVE CHARGE. - See
See CRIM. Paoc. CODE, SEc. 427,
CONTRADICTORY STATEMENTS.
AMALGAMATION OF SENTENCE. APPEAL-
I. Held that a Senior Assistant
-See IND, PEN, CoDE, SEC. 75.
Judge is not competent to hear an
AMENDS- appeal from an order made in the
Amends, under Sec. 270 of the Code execution of a decree in a case in
of Criminal Procedure, are award- which he is not competent to hear
able only in cases triable by the an appeal from the decree itself.
Magistrate in which a summons on Narbherlim Kisandas et al. v. Nav-
complaint shall ordinarily issue. nidram Kashlrrim ......... A,C,J, 46
Reg.v, Ramjivalad Ddji. CR, CA. 12 2. An appeal will not be allowed,
AMENDS IN CASES OF THEFT - after the time for appealing has ex-
Where loss is ·occasioned to a person pired, merely because a judgment
whose property has been stolen, it altering the view of the law which
is not illegal for the trying Magis- prevailed at the time of the decision
trate to award portion of the fine of the original suit has subse-
inflicted on the accused, as amends, quently been given by the High
to the owner of such property, Court. Makkan Na.ikin, daughter
although the stolen property is of Allarllkki, v. M(,nckand Ladka-
recovered and restored to the bklii et al.. ................ A,C,J, 107.
owner. Reg. v. Yessuppa bin 3. An appeal lies from an order
Ningappa .. ................ CR,CA, 41 made in execution of an arbitration
AMENDMENT OF SENTENCE.- award filed under the provisions of
See CRIM. PRoc . CoDE, SEC, 22. Sec. 327 of the Civ. Proc. Code.
ANCESTRAL ESTATE.-See PARTI· Yd8Udev Vi&k'!!,U et al. v. Nuruya'!I,
TlON, EFFECT OF, Jagann&tk D{kskit....... A.C.J, 129
ANCIENT DOCUMENTS- See CRIM, PROC. ConE~ SEC, 276
The rule regarding the proof of docu- and SEC, 316. MAGISTRATE OF
ments more than thirty years old DISTRICT, MESNE PROFITS,

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 INDEX. 7
APPEAL IN INSOLVENCY.-See These goods, in accordance with a
INSOLVENCY. condition to that effect contained in
APPOINTMENT OF ARBITRA- the bill of lading, were transhipped
TORS.-See LAND REQUIRED FOR at Galle.
On their being landed in Bombay it
PUBLIC PURPOSES.
was found that all the packages
ARBITRATION AW ARD.-See AP-
were broken, and in a much more
PEAL, 3.
damaged condition than is usual in
ASSESS:\IENT PAID BY MORT. the case of such goods carried from
GA.GEE. - See SMALL CAus•: Hongkong to Bombay in similar
CouRT, 3. packages. The contents had, to a
ATTACIBIENT-See MoRTGAGE, 5. large extent, escaped from the
packages, but were otherwise unin-
ATTORNEY.-See CosTS.
jured.
llASSEN CEDED TO THE EN- Held that, under a bill of lading in
GLISH.-See CROWN DEBTS, the above form, the onus of proving
BATTA ALLOWANCE.-See AcT that the packRges were insufficient,
XXIII. of 1861, SEC. 5. and that the injury which they had
BHA'DEKHAT.- See REGISTRA· sustained was the consequeuce of
'IION, I. such insufficiency, lay upon the de-
fendants, but that when the result
BHA'GDA 1 RI TENURE- of the evidence on both sides was
The custom in the Broach District of to leave it in doubt whether the in-
mnlc first cousins succeeding to jury was caused by neglie;ence, or
property held on the blu1gd1:ri ten- was the consequence Qf the insuffi-
ure, in preference to daughters or cie~cy of the packages, the plaintiff
sisters, upheld in a case in which was not entitled to recover, The
the bltayd,:r1 were l\luhummadans. Peninsula and Oriental Stearn
Bai K.he!lu v. Dum Sale et al. Navigation Company v. Somaji
A,C,J, 123 Vishrum .. ........... . ....... o.C.J. 113
BILL OF LADING- BO:\fBAY CEDED 'l'O THE EN-
GLISH.-See HITussNEss Low.
The defendants, by a condition an-
. uexed to their bill of lading, stipu- BOND PAYABLE BY INSTAL-
lated that they shoul<l not be re- 1\IENTS.-See INSTALMENTS,
sponsible for " leakage or breakage BREACH OF TRUST BY DIREC-
or other consequences arising from 'l'ORS.-See ULTRA VIRES.
the insufficiency of the address or BRITISH CALENDAR MONTH.-
package." See MONTH.
The plaintiff shipped, for conveyance BROACH.-See MAGISTRATE OF D1s-
from Hongkong to Bombay, cer- TRICT.
tain goods on board a steamer of BROTHER'S WIDOW.-See MAIN·
the ddendants, in packages which TENANCE,
were proved to be insufficient. BY-AL-WAFA.-See MORTGAGE, 2.

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 8 INDEX,

CATTLE TRESPASS ACT- to S. N. and B. N. conjointly he

By virtue of Sec. 21 of the Crim. awarded one-fourth, but as to the
Proc. Code, a Subordinate Magis- remaining one-half he passed no
trate of the 1st Class has jurisdic- decree, as it had not been claimed
tion to try an offence under Sec. in the plaint.
18 of Act III. of 1857 (Cattle
S. N. and B. N. thereupon filed a
Trespass Act), there being no pro-
fresh suit to recover possession of
vision in that Act as to the author-
their remaining one-fourth of the
ities by which offences committed
field, and the Principal ~adr Amfn
under it are to be tried. Reg. v.
passed a decree in their favour.
Ganga kom Mha&u_ ......CR. CA. 13
This decree was confirmed by the
CA USE OF ACTION- Joint Judge.
The defendant at Parola agreed to
Held that the decrees of the lower
sell and deliver to the plaintiff cer- courts were erroneous, and that the
tain goods," for which the plaintiff claim of the plaintiffs was barred
then paid in advance. By the by the provisions of Sec. 2 of the
terms of the agreement, the goods Civil Procedure Code, but leave
were to be measured at Mazrod was granted to them to apply to
and delivered at Padsha. In de-
the court below for a review of the
fault of delivery it was stipulated
decree passed in the former suit.
that the value of the goods should Vyasrav Balaji r,. Subkaji NarayaTJ,
be paid for at the market rate at et al, A.C,J. 173
Parola.
CA.USING TO BE TAKEN AN UN-
The goods were not delivered in pur-
WHOLESOME THING WITH
suance of the ogreement.
INTENT TO INJURE-
. Held, in an action brought to recover
Held that a person who placed in his
their value at the market rate at
toddy-pots juice of the milk-bush,
Parola, that the cause of action
knowing that if taken by a human
arose at Padsha, where the goods
being it would cause injury, and
ought to have been delivered.
with the intention of thereby detect-
Ckunilal Maniltlalbkai v. M,ikipat-
ing an unknown thief, who was in
rav valad Kkan<!,u ...... A.C,J, 33
0

the habit of stealing the toddy from

CAUSE OF ACTION HEARD AND such pots, and which toddy·.wos
DETERMINED- drunk by, and caused injury to,
A. B. instituted a suit against V. B. certain soldiers who purchased it
to recover possession of one-half from an unknown vendor, was
of a field. S. N. and B. N., on rightly convicted, under Sec. 328
their application, were made plain- of the Penal Code, of " causing to
tiffs in that suit, but no alteration be taken an unwholesome thing
in the amount either of stamp or with intent to injure ;" and that
claim was made in the plaint. Sec. 81, which says that " if an act
The Principal ~adr Amfn awarded to be done without any criminal in-
A. B. one-fourth of the field, and tention to cause harm, it is not an

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 INDEX. 9

offence," did not apply to the case, CIVIL PROCEDURE CODE. A,c,1~
Reg. Y, DMnia Ddji. CR. CA. 59 90, 216
SEc, 2.-See CAUSE OF ACTION
CE~SION OF BOMBAY TO THE HEARD AND DETERMINED, A,C,J.
ENGLISH.-See PoRTUGUESE LAw. 143,200
CHARGE ON INHERITANCE.-See SEC. 7.-See CAUSE OF AcTION
MAINTENANCE, HEARD AND DETERMINED, PRO-
CHARGE.-See OMISSION TO PRE· CEDURE.................. A.C,l. 47
PARE A CHARGE. SEC. 14 ..................... A,C,l, 213
SEc. l 5.-See DECLARATORY DE-
CHARGE, ALTERATION OF, AF- CRF.E,
TER VERDICT- SEC. 29 ........................ A.C.J. 97
On a trial by jury the Session Judge SEC. 32 ........................ A.C.l. 61
has no power to alter the charge SEc. 40.-See STAMP, 2.
after the delivery of the verdict. SEC. 43 .................. A.C.l. 101,102
Reg. v. Slit!k .tl.li -calad Faktr .Mu- SEC. 97 ........................ A.C,l. 29
hammad .. . .. . . .. ... .. . .. . CR, CA, 9 SEC. 148 ..................... A.C•l, 120
CHARTER OF 1Ci68. o.c.1. 35 SEC. 203 ..................... A.C.J. 67
CHARTER OF THE SUPRK\1E SEC. 205 ..................... A,C,l. 156
COURT (dated 1823) ...... o.c.J. 12 SEC, 206.-See ADJUSTMENT OF DE
CREE NOT CERTIFIED TO COURT.
CHARTER, HIGH COURT, 26TH
SEC. 208 ..................... A,C,l. 96
JuNE, 26 V1cT. (1862), SEc. 18
SEc, 230.-See MONTH,
o.c.J. li7n
SEC. 246-
---28TH DECEMBER, 29 VICT.
1. Where the plaintiff filed a suit to
(1865), SEC, 19 ......... O.C,J, 177n
set aside a sale of land after he had
CHARTERS- been unsuccessful in an application
8 ANNE ......................... O,C.J. 37 made, under Sec. 246 of the Civil
43 ELIZ, ........................ O,C,J, 35 Procedure Code, to raise an attach-
7 J AC, I. ........................ O.C,J. 35 ment that had been laid on such
13 CAR, II ................ o.c.J, 35, I Sl land:
35 CAR, II ...................... O•C,J. 35 Held that the onus lay on the plaintiff
5 WM. & l\IARY. . ........... O.C.J, 35 to prove his title, and not on the
JO Wx. III. ..................... o.c.J. 36 purchaser to prove that of the judg-
13 GEo, I. ..................... o.c.1. 37 ment debtor. Nathu Sadashiv v.
I GEo. II ...................... o.c.J. 37 Ramehandra dnnaji. A.C.l, 76
13 GEo. II. •................. o.c.J, 182 2. In a suit, under the latter portion
26 GEo, II. ..................... o.c.J. 38 of Sec. 246 of the Civil Procedure
14 GEo. III. . ................. o.c.J. 38 Code, brought by the owner against
38 GEo. III. ..................... o.c.J. 39 the purchaser of property, which
41 GEo. III.. .................... o.c.J. 39 has wrongfully been attached and
4 GEo. IV ................... ... o.c.1. 39 sold in execution of a decree, the
CIVIL GAOL FUND-See Su»SIST· execution creditor is properly made
ENCE MONEY. a party, the object being to restore
2 IND

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10 INDEX.

all partie$ to the position which prosecution, cannot be accepted in

they occupied previo~ly to such the place of a complaint so as to
attachment and sale. authorise the issuing of a sum-
When a sale is set aside by reason of mons. Reg. v. Bai Divdli CR.CA, 48
the execution debtor having no COMITY OF COURTS.-See CoM-
interest in the property sold, the PANrns' Act:, 1862.
. purchaser of such property is en- COMMITTAL TO THE COURT OF
titled to receive back his. pur- SESSION .-See INDIAN REGIS·
chase-money, as on a considera, TRATION AcT, 1866, SEcs. 91 and
tion that has failed. Bank of Hin- 95 .
du8tan, China and Japan v. Prem-
cltand Raucltand et al . ..o.c.1. 83. COMPANIES' ACT, 1862-
See LIMITATION, 4. VA 1KI 1L. · A.c.1. · A suit may be brought in the Courts
58, 64. in India against a company that is
being wound up under " The Com-
SEcs. 249 and 250. A.c.1.156, l5i
panies' Act, 1862," without the
SEcs. 256 and 257. A•C.J . 144
leave of the Court of Chancery be-
SEc. 258.-See SEC. 2462.
ing first obtained.
SEC. 268 A.C.J . 64
SEc. 269.-See LIMITATION, 4. Semble-The High Court will, in the
SEcs. 303 and 304 A,C.J, 62 exercise of its general power, stay
SEcs. 305 and 306.-See PAUPER th~ proceedings in a suit against
SUIT, such a company where the circum-
.SEC, 325. .. ....... .. .... ...... A,C.J, 130 stances are such as to render it
SEc. 327.-See APPEAL, 3. proper to do so. Bank of HindU8-
tan, Cltina and Japan v. Prem•
SEC, 333 . . ........ .... ······ ·· A C,J. 40
SEC, 348.-See MORTGAGE, 5. cltand Raucltand et al . . . .o.c .J. 83,
SEC, 350.-See PROCEDURE· COMPETENT WITNESS.-See Ev1.
DENCE,
CHAP. VI. .... ....... ... .. .. A,C,J, 130
COMPLAINANT.-See SUMMING UP
COGNATE OFFENCES.-See SEPA·
OF JUDGE,
RATE S&NTENCEs.-SEssJON JuDGE,
POWER OF, COMPLAINT-
COLLECTOR.-See SMALL CAUSE I. Where a policeman in whose
COURT. sight a theft was committed arrest-
ed the. thief, and, being himself
COLLECTOR'S SANCTION TO
unable .to take or send the accused
PROSECUTE-
to a Magistrate, sent a report, on
Conviction and sentence under Sec. 3 which the Magistrate issued a
of Act X, of 1862 (Stamp Act) warrant:
reversed, because no complaint had Held that, under these circumstances,
been made before the trying Ma- the accused was legally brought
gistrate. before the Magistrate. Reg. v.
A memorandum, under the signature Makipyd tJalad Bomya Makar.
of the Collector, sanctioning the CR, CA. 99

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 INDEX. 11
2. Where a complaint laid before a CONSIDERATION-
Magistrate F. P. by certain Go-
By Muhammadan law an agreement
vernment ,mploy!, accused the
to pay an annuity, though signed
prisoner of criminal breach of trust .
nnd registered, has not the effect of
of their wages, but from the evi-
a deed in· English law, but requires
dence adduced it appeared that the
a consideration to support it.
offence of which the prisoner was
guilty was criminal breach of trust The relationship existing between
of GoYernment money : It wa, cousins is not a sufficient considera-
luld that the Magistrate F. P. had tion to support such an agreement.
power to frame a charge against, Paro} evidence is inadmissible to show
and convict, the prisoner of the that in an agreement to pay an an-
latter offence without a fresh com- nuity there was a consideration for
plaint being made to him, Reg. v. the granting of the annuity differ-
Dlion<Ju Ramchandra. CR· CA, 100 ent from that expressed in the
See COLLECTOR'S SANCTION. TO agreement, Ja.far Ali Nizam All
PROSECUTE SANCTION. V. Ahmed Ali Imam H aidarhak,h.
COMPLAINT BY CIVIL COURT.- A.c.J.37 ·
See STAMP, 5.
See AGREEMENT TO AVOID LITJGA·
COMPLAINT UPON OATH- TION,
Where an accused person appears
CONTRACT OF SALE...:_See SALE
voluntarily before a Magistrate to
OF Goons, AGREEMENT FOR.
answer a charge, the want of a
complaint on oath, necessary for CONTRADICTORY STATEi\lENTS-
the issuing of a summons or warrant a
Where person makes two contradic-
(Sees. 66 and 43, Crim. Proc. Code), tory statements in the course of a.
becomes immaterial. judicial proceeding, he may be tried
Semble-A Magistrate taking a com- and convicted of giving false evi-
plaint and issuing a summons there- dence on a single charge, if there
on, acts not ministerially, but judi- is evidence to show which state-
cially. ment is false. Reg. v. Ga?zoji hin
P11n,jji ....................... CR.CA, 49
Conditions under which a Magistrate
may proceed with an investigation CONVERSION OF ORNAMENTS
or trial with a complaint upon oath PLEDGED.-See l\lEAstJRE OF
considered, and case$ bearing on DAMAGES.
the question reviewed and explained. CONVICTION BY ASSISTANT SES-
Re!J, v. Sad1:8hivappa Pan<J,urang- SION JUDGE. ALTERATION OF,
uppu ......... ..... ....... CR. CA. 29 BY SESSION JUDGR-See CRIM.
COMPROMISE NOT CERTIFIED PRoc. ConE, SEc. 22.
TO COURT.-See ADJUSTMENT OF CONVICTION OF OFFENCE
DECREE NOT C~RTIFIED TO COURT, OTHER THAN THAT STATED
CONSEQUENTIAL RELIEF.-See IN C011PLAINT. - See CoM-
DECLARATORY DECREE, PLAINT, 2,

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 12 INDEX.
'I
I COPY OF A COPY- " dacoity" · to one of " robbery,"
A certified copy of a document de- was · illegal, not being an amend-
posited in a public office, which ment of a sentence or order within
document is itself a copy, is admis- the meaning of Sec. 22 of the
sible as secondary evidence where Crim. Proc. Code.
the absence of the original is duly Held further that if the accused were,
accounted for. Bkulabhdi Gulla· in the opinion of the SP.ssion Judge,
bkai et al. v. Modji Desalji et al. improperly convicted of" dacoity,"
A.C,J. 48 he ought to have declined to con-
COPY OF A DOCUMENT.-See firm the sentence, and to have left
FORGERY. them to be charged with and tried
for " robbery." Reg. v. Tkomesit
COPY OF ORDERS PASSED BY
et al ................ ....... .CR. CA. 22
LOWER COUR'l'S.-See ExTRAOR·
DINARY APPLICATIONS. See CR. cA. 71, 74, 75.
SE c. 36 ................ ... ...•.CR. CA. i6
COSTS-
SEc. 43.-See COMPLAINT UPON
The contract to be implied from the OATH. COMPLAINT, J.
employment, by the trnstees of an
insolvent, of an attorney to carry SEC. 45-See IMPRISONMENT IN DE-
on a suit already commenced ~y the FAULT OF PAYMENT OF FINE•
insolvent as plaintiff, and in which SEC. 61-
such attorney was retained for him, 0n a reference as to whether the re-
is a contract to pay all future costs, striction for the recovery of fines
but not the costs incurred prior to to moveable property (Crim. Proc.
such employment. Skamrav Pan- Code, Sec. 61) applied only during
ef,urang v. Trustees of Bkogvandaa the lifetime of the offender, and
Purshotamdas ............ o.c.J. 163 whether the fine could after his
death be recovered, under Sec. 70
COUNTERPART OF A LEASE.-
of the Indian Penal Code, from
See REGISTRATION, I.
his immoveable property, the Court
CRIMINAL PROCEDURE CODE- was of opinion that the law had
SEc:7 ......................... ca. cA. 67 only provided for the distress and
SEC. 11.. .... .. ......... .CR. CA. 70, 101 sale of moveable property, and
SEC. 14 . ...... ... ....... .. .. CR. CA. 71 that there was no way in which im-
SEC. 15 .. .. .... ... .. ...... . ....CR. CA. 70 moveable property could be made
SEc. 20 ........................ A.c.J. 4ln liable. Reg. v. Lallu lfarwar.
SEC. 2 l .-See IMPRISONMENT IN CR. CA. 63
DEFAULT OF PAYMENT OF FINE. See CR. CA. 24.
CR. CA. 13 SEc. 66.-See COMPLAINT UPON
SEC. 22- OATH.
Held that an order of'a Session Judge, SEC. 109.-See COMPLAINT, I.
by which he altered a convictiou by SEC. 168.-See SANCTION. STAMP, 5.
the Assistant Session Judge of CR. CA. 31

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 INDEX. 13
SECS, 169 and 170. CR, CA, 31 Held that a Magist;ate F. P., though
SEC, 171- empowered to hear appeals, is not
thereby placed in the position of
Where, under Sec. 171 of the
the Magistrate of the District, and
Criminal Procedure Code, a case is
that, therefore, Subordinate Ma-
sent up for investigation by a
gistrates should not refer cases, un-
Magistrate, it is competent for
der Sec. 276 of the Code of Crimi-
such Magistrate to di8charge the
nal Procedure, to such Magistrate,
accused, under Sec. 225, if, in his
but to the Magistrate of the Dis-
opinion, the evidence against the
trict, to whom alone they are sub-
accused is not sufficient to warrant
ordinate. Reg. v. Bhagu bin Sha-
their committal to the Session
buji .... ................. .. , CR.CA. 47
Court. Reg.-v. Pdn<!,urang Mayrdl
SEC· 277 ....... .... .......... CR.CA. 71
et al, ..................... CR, CA, 41
SEcs. 282, 288, and 307-
See CR, CA. 105.
Order of District Magistrate, requir-
SEC, 179 ..................... CR, CA, 30
ing certain persons to enter into re-
SEC. 182, - See RECOGNISANCE cognisance, and find security to keep
BOND,
the peace, reversed, as such order
SEcs, 186 and 187,-See SERVICE appeared to have been made with-
OF SUMMONS. out any legal evidence ha-iiug been
SEC, 224. - See DETENTION OF taken and recorded, as required
ACCUSED BY THE POLICE, by Sec, 307 of the Crim. Proc.
SEc. 225.-See SEC, 171. Code. Reg. v. Dalpatrum Pemlibhai.
SEC, 244.-See CHARGE, ALTERA· CR. CA, 105
TION OF, AFTER VERDICT. SEC, 316-
SEC, 248. - See COMPLAINT, I. An order of maintenance, under Sec.
CR. CA, 30 316 of the Criminal Procedure
SEC, 249 ...................... CR, CA. 74 Code, is a "judicial proceeding of a
Crixninal Court" within the mean-
SEC, 250.-See OMISSION To PRE·
ing of Sec. 404 of that Code, but
PARE A CHARGE, COMPLAINT, 2,
no appeal lies against such order,
CR. CA, 74
SECS. 254 and 256 ......... CR, CA. 74 under Sec. 409.-Reg. v. Tltaku
bin Ira .... . ............ , ... CR, CA. 81
SEcs. 258 and 261.-See REcoGNI-
SEc. 359 ......·.......... . .... ea. cA. 30
SANCE BOND,
SEc. 360.-See SUMMING UP OF
SEC. 264 .................. . .. CR, CA, 74 JUDGE,
SEc:267 ..................... CR, CA, 11 SEC, 375 ..................... CR, CA. 96
SEC, 268 ..... ................. CR, CA. 74 SEC, 379 ............... CR.CA. 93, 94
SEC, 270.-See AMENDS. SEC, 404.-See SEc. 316. CR, CA,
SECS. 271 and 272 ......... CR, CA, 73. 14, 34, 51, 64, 104
SEC, 273.-See REFERENCE BY DIS- SEC· 405 ........... .. ........ CR, CA, 29
TRICT MAGISTRATE TO MAGIS- .SEC, 408 ..................... CR, CA, 86
TRATE F. P. SEc. 409.-See SEC, 316. ·
SEC, 276- SEC, 426. CR. CA, 93, 94, 102

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14 INDEX,

SEC. 427- judgment debt in England, if

Where, on appeal from a conviction there be no special legislative pro-
by a Subordinate Magistrate, the vision affecting that right in the
Magistrate of the District is of particular case.
opinion that the offence which the Under similar circumsta11ces a judg-
evidence brings home to the pri- ment debt due to the Secretary of
soner is one not triable by a Ma- State in Council for India is in
gistrate, and that an illegality has Bombay entitled to the like prece-
been committed, he should refer dence, and the reason is that such
the matter for the orders of the debt is vested in the Crown, and
High Court, under Sec. 43-t of the when realised falls into the State
Criminal Procedure Code ; such Treasury.
Magistrate cannot himself, under The nature of the cause of action in
Sec. 427, annul the convictioni and respect of which the judgment was
direct the committal of the prisoner recovered does not affect the right
to the Court of Session upon the of the Crown, or of the Secretary of
proper charge. Reg. v. Chanveruya State in Council for India, to pri-
bin Ckan'basaya .•.. ..... CR. CA. 65 ority.
SEC. 434.-See SEc. 427. REFER·
As the Crown is not, either expressly
·or by implication, bound by the In-
ENCE BY DISTRICT MAGISTRATE TO
dian Companies' Act (X. of 1866),
MAGISTRATE F. P. CR. CA. 1, 12,
and as an order made under that
13, 15, 20, 22, 23, 25, 33, 35, 38,
Act for the winding up of a com-
39, 40, 41, 43, 46, 47, 48, 65, 67,
pany does not work any alteration
83, 99, 102; 105.
of property, such an order does not
SEC. 435.-See SESSION JUDGE, ILLE· enable the Court to stay the exe-
GAL ORDER BY ••••••.••••. CR, CA, 43 cution of a judgment debt due to
Sxc. 439 ......... .... cR. CA, 40, 93, 102 the Crown, or to the Secretary of
SEC. 444................ ..... CR. CA. 62 State in Council for India.
CHAPS. XII. and XIII .......cR. CA, 72 The cession of Bassein and its de-
CHAPS, XIV. and xv....CR, CA· 12, 73, pendencies (including Bombay and
74 Salsette) by Sultan Bahadur of
CHAP. XVI.-See REFERENCE BY D1s- Gujarat to the Portuguese, and the
TRICT MAGISTRATE TO MAGISTRATE treaty made thereupon, ineutiooed.
F.P. , It is a principle recognised by the
CHAP. XXIX, ........ ....... CR. CA· 23 laws of many countries that claims
CRIMINAL SENTENCE.-See IN- of the Crown or State are entitled
n1AN INSOLVENT DEBTORS' AcT, to precedence, e. !h the Hindu,
SECS• 47 and 50. Roman; and · French Codes; the
laws of Spain, the United States of
CROWN DEBTS- America, Scotland, and England.
A judgment debt due to the Crown The Secretary of State for India
is in Bombay entitled to the same v. The Bombay Landing and Ship-
prccedeuce in execution as a like ping Company .... ........ o,c.J. 23

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 INDEX, 15
CUSTOM.-See BnA1GDA'a1' TENURE, deeds before satisfaction of his
DAMAGES CAUSED BY NEGLI_ claim.
GENCE OF SERVANTS OF GO- Qu<Zrt wh~er before such satisfac-
VERNMENT.-See SECRETARY OF tion he was bound to produce even
STATE, LIABILITY OF, FOR ACTS his deed of mortgage.
OF SERVANTS, Held that J, D. not having made
DATE OF PRESENTATION' OF any attempt or taken any active
PLAINT.-See PLUNT. measures to enforce his lien, and
DEBTS PROVEABLE UNDER ACT no foundation having been laid by
XXVIII. OF 1865.-See ULTQ.A the plaintiffs upon which conse-
VIRES. quential relief could be granted by
DECLARATORY DECREE- the Court, the latter were not,
B. mortgaged by deed certain pre- under Sec. J 5 of the Civil Pro-
mises to J. D., and at the same cedure Code, entitled to a declara-
time delivered to him title-deeds tory decree. Beattie et al. v.
comprising the said premises, and Jetlia Dungarsi ............O,C,J. 152
also other ·immoveable property of DECREE.-See REGISTRATION, 2.
B. B. subsequently became em-
DESCRIPTION OF DOCUMENT.-
barrassed, and assigned all his im-
See STAMP, 2.
moveable estate to trustees for his
creditors. DETAINING CREDITOR. - See
INDIAN INSOLVENT DEBTORS' AcT,
The trustees sued J, D., and, alleging
S1:cs. 5 l and 52.
that he had refused to permit the
sale by them of the said immove- DETENTION OF ACCUSED BY
able property, including the mort- THE POLICE-
gaged premises ( they offering to
Held that the order of a M11gistrate
apply the proceeds of the latter in
sanctioning the detention by the
satisfaction of J. D.'s claim), and
Police . of an accused person for
to hand over to them the said title-
an indefinite period is illegal. At
deeds, prayed for a declaration that
the expiration of twenty-four hours
the said immoveable property other
from the time of arrest, the accused
th11n the mortgaged premises was
mu,t be brought before a Magis-
vested in them free from any lien
trate, who can then remand for a
of the defendant.
period not exceeding fifteen days,
J. D. in his written statement claimed under Sec. 224 of the Crim. Proc.
a lien on all the title-deeds, and, Code.
submitted that he was not bound
No remand without a hearing can last
(until his claim was satisfied) to
for a longer period. Reg. v. Sur-
hand them over to the plaintiffs,
lcya fJalad Dlwku . .... • CR.CA. 31
or to produce the same or his deed
of mortgage. DISCHARGE. - See CRIM, PRoc.
Semble, that, on the authorities, J. D. Coo&, SEc: 171.
was not bound to produce the title- DISCRETION.-See ADMIRALTY,

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16 INDEX,

DISCRETION OF JUDGE. - See ENGLISH LAW INTRODUCED

VARIANCE BETWEEN PLAINT AND INTO BOMBAY.-See PoRTUGUES:il:
PROOF. LA.W.

DISPENSING WITH PERSONAL EQUITY OF REDEMPTION, GIFT

ATTENDANCE OF ACCUSED.- OFTHE-
See RECOGNISANCE BOND, ln a suit for the redemption of im-
DISQUALIFICATION FOR INHER- moveable property brought by the
ITANCE.-See LEPROSY, I.. plaintiff, as donee from a Hindu
DISTRICT COURT.-See PLAINT. widow of the equity of redemption,
DISTRICT MAGISTRATE. - See the plaintiff's right to the property
MAGISTRATE OF DISTRICT. as reversioner cannot be inquired
DONEE.-See EQUITY OF REDEMP· into, notwithstanding an allegation
TION, GIFT OF THE, in the plaint that he was a near rela-
EARNEST-MONEY- tive of the hisbaud of the donor.
Where a contract for the sRle and A donee of the grantor is a third party
delivery of two thousand bart!s of within the meaning of Reg. x;VIII.
stone contained a provision that in of 1827, Sec. xiv., cl. 1, and, there-
case of breach by the pnr\:haser, fore, as against him a deed of sale
damages (liquidated) were to be of the property given in gifc is only
paid by him at the rate of one valid from the date on which it was
rupee per baras, and the purchaser stamped.
paid Rs, 1,000 earnest-money; but Precedents on this point questioned
made default in accepting the stone : but followed.
Held that, though in default of ac- Where a Hindu widow mortgaged im-
ceptance, the earnest-money, Rs •. moveable property inherited from
1,000, was forfeited, the vendor her husband to one person, and
could not retain the earnest-money afterwards gave it in gift to an
and sue for the whole amount Of other:
the liquidated damages (Rs. 2,000), Held that the deed of gift did not
but that his proper course was to convey to the donee the widow's
sue the purchaser for the difference equity of redemption. Jaganncitk
only, and, such difference amount- JTifhalv. Ap/ji JTish!lU. A.C.J. 217
ing to Rs. 1,000, that the suit was ERRORS WHICH DO NOT AFFECT
properly brought in the Small MERITS.-See PROCEDURE.
Cause Court. Mehervunji Man- ESTOPPEL-
charji v. Punja JTelji .. .o.c.1. 147 The plaintiff sued to raise an attach-
EJECTMENT. - See Crv. PRoc. ment placed upon a certain house,
CoDE, SEC, 246, I YEARLY TENAN but failed in the lower court, and
CY, the decision of the lower court was
ELDER WIDOW'S POWER TO confirmed upon appeal. The house
ADOPT WITHOUT THE CON- was then sold.· The plaintiff sued
SENT OF A YOUNGER WIDOW. the purchaser to recover possession
-See ADOPTION, of it.

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 INDEX. 17
Held that be was not estopped from EXECUTION SALE.-See C1v. Paoc.
l!uing by the decision in the former CoDE, SEE 246 2.
suit refusing to raise the attachment, EXTRAORDINARY APPLICA-
and that such decision could not be 'FIONS-
given in evidence in the latter suit.
All applications to the High Court
Moro Bdlkmh1}a Mule v. S!&ek
in the exercise of its extraordinary
Sa!&eb 1:alad Badn,,ddin Kam6le.
Civil jurisdiction should be accom-
A,C.J, 199
panied by a copy of the orders of the
EVIDENCE- lower courts made in respect of the
A person ·apprehended by the Police matter of such application, and
and brought b!lfore the Magistrate should be presented within the time
with the accused is, though not allowed for the presentation of spe-
discharged by the Magistrate, a cial appeals. In re Nagappa bin
competent witness against the Hulgdppa .............. .... A,C.J, 215
accused, provided he be not charged
EXTRI~SIC EVIDENCE-
along with the accused.
.Extrinsic evidence may be received to
Conviction of keeping a common identify the thing referred to in a
gaming-house upheld, where portion written agreement.
of the evidence against the accused Where there is a written agreement
consisted of instruments of gaming to deliver a quantity of gr&in
found in such house, which had (galla) at a particular time, parol
been entered in pursuance of a ·evidence is admissible under certain
search warrant illegally issued, limitations to show what kind of
there being sufficient evidence ali- grain the contracting parties had in
unde to justify the conviction. Reg. their contemplation at the time the
v. Nurl,.ya1} Sundar ...... CR, CA, l contract was made. Valla bin
See CoPY OF A COPY EXTRINSIC
Hataji v. Sidoji bin Kom;laji.
EVIDENCE, A.C.J. 87
FAILURE TO PROVE SALE.-See
EXECUTION. - See APPEAL, 3.
MORTGAGE, 4.
PERISHABLE ARTICLES.
FALSE EVIDENCE-
EXECUTION OF DECREE-
I. A person accused of giving false
A Ma~latdar's court, authorised, un-
evidence in a stage of a judicial pro-
der Act V. of 1864 (Bombny), to
ceeding is entitled to have the spe-
give immediate possession of lands
cific charge made against him tried
and premises, has the power to di-
independently of a like charge
rect the breaking open of a door
against another person. Reg. v.
when necessary to give effect to its
Bhar,/iniahankar HaribM.i et al.
decree. Baji Deu v. Sada,hir,
CR. CA, 55
Bhai8hanlcar ............... A,C,J. 158
2, To constitute the offence of giv·
See APPEAL, 1. LIMITATION, 5. ing false evidence under Sec. 191
MINOR. SALE UNDER DECREE, 2. of the Indian Penal Code, it is not
3 IND

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18 INDEX.

necessary that the false evide:ice by a jury, to one of a nature imt

given should be material to the case triahle by such a tribunal, but will
in which it is given. ,J.liter under annul the proceedings, and leave
Sec. 192. the prosecution to take fresh pro-
Where the Senior Assistant Session ceedings against the prisoner on any
Judge, without taking evidence, ac- other charge it may be advised.
quitted the accused after calling Reg. v. Naro Gopal .......•.CR.CA. 56
upon him to plead, the prosecutor GAMING.-See EvrnENCE.
being unable to say that the alleged
GAOL.-See SUBSISTENCE MoNEY.
false statements of the accused were
GIFT OF LAND-
material to the triai on which they
To make a gift .of land complete
were made, the High Court rewrsed
1mder the Hindu law, there must
the order of acquittal, and directed
be either possession or receipt of
the trial to be proceeded with.
rent by the -donee. The receipt of
Reg. v. Ddmorlhar Ramcltdndra
rent may be by an Agent; and, if
Kulkarni .................. CR.CA. 68
the transaction is bond ftde, it is
See CONTRADICTORY STATEMENTS- immaterial that such agent has, be-
FAMILY ARRANGE~1ENT--See fore the gift, received the rent for
PARTITION, EFFECT OF. the donor: Bank of Hindustan,
FAMILY CUST0~1S.-See PRIMO- Cltina, and Japan v. Premchand
GENITURE. R,lichand.
FELLOW-PRISONER.-See Ev1- GROWING CROPS-
DENCE. Held that crops, which have not been
FEMALES, RIGHT OF, TO HOLD severed from the ground, are not
SERVICE WA.TAN.-See SERVICE moveable property within the mean-
WATAN. ing of the term as used in Sec-
FINE.-See AMENDS IN CASES OF 19 of Act XI. of 1865. Muham-
THEFT. CRIM. Pnoc. CoDE, SEc. m,id Sileman valad Muhammad
61. Ishakbhai v. Satu valad Harji.
FOREIGN SHIP.-See ADMIRALTY. A.C.J. 90
FORFEITURE OF EARNEST-MO- GUARDIAN.-See PARTITION, EF-
FECT OF.
NEY.-See EARNEST-MONEY.
FORGERY- HINDU' LAW.-See AooPTION-
GIFT OF LAND, EQUITY OF RE-
The forging of a document which
purports on the fncc of it to be a DEMPTION, GIFT OF INTEREST
copy only, and which, even if a ge- EXCEEDING AMOUNT OF PiuNCIPAL.
nuine copy, would not authorise the I, 2. LEl'ROSY, I, 2- PARTITION,
delivery of moveable property, is EFFECT OF. . PRIMOGENITURE,
not punishable, under Sec. 467 of HINDU' LAW OF MINORITY.-See
the Indian Penal Code. MINOR.
The High Court will not alter a con- HINDU' WIDOW-See MAINTENANCE
viction by a Session Court aided by HINDU' WIDOW'S ESTATE.-&e
a jury, on a charge only triable PARTITION, EFFECT OF.

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 INDEX. 19
HINDU' WILL, CONSTRUCTION See AcTs XXI. · OF 1867. · AcT
OF-See PARTITION, EFFECT OF. (BOMBAY) VII. OF 1867, SEC 31,
HOLKAR'S GOVERNMENT.-See l. IND, PEN. CODE, SEC, 290.
TRANSIT DuTTES, PowER OF CoL- IMPROVEMENT.-See l\foRTGAGE, 2.
LECTOR TO FORBID.
HOUSEBREAKING IN ORDER TO INDIAN COMPANIES' ACT,-See
CROWN DEBTS.
COMMIT THEFT.-See SEPARATE
SENTENCES, INDIAN INSOLVENT DEBTORS'
ILLEGAL ORDER.-See TRANSIT ACT, SEcs. 47 and 50-
DUTIES, PowER OF CoLLBCTOR TO A Commissioner sitting in Insolvency,
FORBID. while sentencing an insolvent to
ILLEGAL ORDER BY MA'MLAT- imprisonment on the Criminal side
DA'R.-See AcT V. OF 1864 under Sec. iiO of the ln'solvent
. (BOMBAY). Debtors' Act, has power, in addi-
ILLEGAL SENTENCE.-See Mu- tion, to order that the further
N1c1PAL CoMM1ss10NER, Dis- hearing of the insolvent's petition
OBEDIENCE OF 0RDF.R MADE BY, be adjourned, with or without pro-
trction, under Sec. 47, beyond the
JMJ\IOVEABLE PROPERTY.-See
CRIM, PROC. CODE, SEC. 61. EQUITY expiration of such term of imprison-
OF REDEMPTION, GIFT OF THE· ment. In ,·e M,:'!likji Sltdpurji
Kal,ii ............... ..... o.c.J. GI
IMPLIED CONTRACT--See LIMIT-
ATION, 1. SEcs. 51 and 52-
IMPRISONMENT. - See INDIAN Where, under Sec. 51 of the Insolvent
INSOLVENT DEBTORS' ACT, SECS. Debtors' Act (I I & 12 Viet., c.
51 and 52. 21 ), it has been adjudged that an
IMPRISONMENT IN DEFAULT insoh-ent shall be forthwith dis-
OF PAYMENT OF FINE- charged from all his debts &c.,
Sec. 45 of the Criminal Procedure except as to certain specified debtti,
Code makes applicable the provi- and as to these that he shall be
sions of Sec. 65 of the Indian Penal discharged so soon as he shall have
Code not only to offences falling been in custody, at the suit of the
under that Cod~ as defined in its person or persons who shall be
40th section, but to every case in creditor or creditors for the same
which a Magistrate has jurisdiction respectively, for such period as the
under Sec. 21 of the Criminal Pro- Court shall direct :
cedure Code. Such an order of adjudication does
Imprisonment for one month awarded not in itself operate as an order for
in default of payment of a fine the imprisonment of the insolvent;
under Sec. 3 of the Salt Revenue but the detaining oreditor, if be
Act (XXXI. of 1850) was accord- wishes to arrest or detain the in-
ingly reduced to three weeks' simple solvent for such period, must (ifhe
imprisonment. Reg. v. Vi{lwba bin have not already done so) place
Som<i ....... ................. en . CA. 61 himself in a position to issne

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20 INDEX.

execution against the insolvent. In ground-came within the meaning

re Mancharji Hirji Btadymoney. of Sec. 95 of the Ind. Pen. Code, ·
o.c ..1. 55 and did not, therefore, amount to
an offence. Beg. v. K/Jaya bin
INDIAN PENAL CODE-
SEc. 22 ....•..•................ A.c.J. 91 R&vji et al .......•..... •. CR. CA. 35
SEc. 59........... .. . .. . . . . . CR.CA. 37 SEc. 173 -·See REFUSAL TO SIGN A
SUMMONS•
SEC. 65.-See IMPRISONMENT IN
DEFAULT OF PAYMENT OF FINE. SEC, !74.-See MUNICIPAL CoMMrs-
SJONl!IR, CHAIRMAN OF. REVENUE
SEC. 67.. .. . .. . .. . .. . .. . .. . . CR.CA. 45
CASE .................. CR.CA. 20, 38
SEc. 70.-See CRIM. PRoc. CoDE,
SEC. 61. SEc. 182.-See SESSION JUDGE, IL-
LEGAL ORDER BY.
SEC. 75-
SEC, 186.-See OBSTRUCTION OF
Sentence of transportation for fourteen
PUBLIC SERVANT.
year!', under Sec. 392 of the Ind.
SEC. 188 .................. CR.CA, 21, 46
Pen. Code, annulled, as the offence
SEcs. 19l and 192.-See FALSE
for which such sentence was passed
EVIDENCE, 2.
was not committed 1ub1e9.uently
SEc. 193,-See CONTRADICTORY
to any conviction ; and Sec. 75 had,
STATEMENTS·
therefore, been improperly applied.
SECS. 196,199,200, 209 .... CR.CA. 42
Semble, that a Session Judge cannot
SEc. 211.-See SESSION JUDGE,
(under Sec. 75 of the Ind. Pen.
Code, or otherwise), by amalgam- ILLEGAL ORDER BY.
ating a sentence which he is com- SECS, 240 and 241 ·· ··•···· CR.CA· 9
petent to pass upon a prisoner with SEC. 285-
sentence under which such pri- Heldthatthe word "injury" (rashly
soner is already undergoing impri- caused by fire, &c.) in Sec. 285 of
sonment, and commuting the latter the Indian Penal Code includes any
sentence, condemn such prisoner to a harm illegally caused to the pro-
longer period of transportation than perty of any other person, and is
he is liable to suffer ·for the crime not confined to injury to the per-
of which he has last been convicted. son only. Beg. v. Natha Lalla.
Reg. v. Sakya valad Kaiii et al. CR. CA, 67.
CR• CA, 36 Sxc. 290-
SEC, 76 ..................... CR, CA. 18 The sentence of imprisonment passed
SEc. 81.- See CAUSING TO BE in default of the payment of a
TAKEN AN UNWHOLESOME THING fine inflicted under Sec. 290 of
WITH INTENT TO INJURE• the Indian Penal Code (for com-
SEC. 95- mitting a public nuisance) should
Conviction and sentence by a Magis- be one of simple, not rigorous,
trate reversed, as the act of which imprisonment. Reg. v. Santu 6in
the accused were convicted-taking Lokhappa Kore ......... CR, CA. 45
pods (almost valueless) from a t~ee SEC, 291.. ................... CR· CA, 45
standing upon Government waste SEC, 320 ..................... CR. CA, 16

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 INDEX. 2l
SEC, 323 ..................... CR. CA. 15 matter of his petition, notes of the
SEC. 328,-See CAUSING TO BE evidence mu,t be taken at the hear-
TAKEN AN UNWHOLESOME THING ing by an Officer of the Court.
WITH INTENT TO INJURE, In the time allowed for appealing, the
SEC, 354 ........ .......... ... CR, CA, 66 vacation is to be computed, unless
SEc. 3i9 .................. ca. CA. 47,99 such time expire during the vaca-
SEC. 380 .................. CR, CA. 26,83 tion, in which case the petition of
SEC, 392. See SEc. 75 ... cR. CA, 23 appeal must be presented to the
SEC. 395 ........ ............. CR. CA. 22 Court or a Judge on the first day
SEC. 411. ...... .. ............ CR, CA. 47 after the vacation. In re Lakltmi-
SEC, 419 ........................ CR. CA. 3 d/I11 Han:r6j ............ O,C,.T, 63
SEC, 457.-See SEPARATE · SEN- See INDIAN INSOLVENT DEBTORS'
TENCES CR, CA,66 AcT, SEcs. 47 and 50.
SEC. 463 ..................... CR, CA, 42 INSOLVENT.-See INDIAN INseL-
SEC. 464 ................ ..... CR. CA· 58 VENT DEBTORS' AcT, SEcs. 51
SEC, 4G7.-See FORGERY. and 52.
SEC, 468 ................. .... CR. CA, 3, 4 INSTALMENTS-
SEC. 471.. ....... CR, CA, 3, 4, 42, 58 Suit upon a bond executed by the de-
S KC. 497 .-See ADULTERY, l. CR.CA. fendants to the plaintilf for the
17,18 payment of a sum of money by in-
SEC. 504...... . ........ CR, CA, 12, 40 stalments. The bond contained a
INDIAN · REGISTRATION ACT, proviso that on default being made
1866, SEcs. 91 and 95- in the p11yment of any one instal-
ment the whole amount should be-
Held that the committal of the ac-
come due.
cused to the Court of Sessions by a
Default was made in the payment of
Magistrate for trial on a charge un-
several instalments, but subse-
der Sec. 91 of the Indian Registra-
quently payments were made by the
tion Aet (XX. of 1866) was,Iegal.
defendants and accepted by the
The Session Court was ~cordingly plaintiff on account of the unpaid
directed to try the accused. Reg. instalments.
V, Rarlojiro.r, 6in Hanmo.11trar,. The defendants pleaded the law of
CR, CA, 7 limitation. The suit was brought
INJUNCTION TO RESTRAIN IN- more than three years after the first
VASION OF PRIVACY.-See default in payment of an instalment
PRIVACY, INVASION OF, BY OPENING had been made, but within three
DooRs AND WINDOWS. years from the time when, taking
INJURY TO PROPERTY.-See IND. into account the payments that had
PEN. CODE, SEC· 285. been made, the first instalment
claimed became due.
INQUIRY.-See PAUPER SuJT.
Held that these payments as re-
INSOLVENCY- gards both parties must be consi-
In order to enable an insolvent to ap- dered as if made at' the time, fixed ;
peal from an order passed in the that the defendants could not rely

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 22 INDEX,

upon the stipulation as making the JA'H'AG IR.-See PRIMOGENITURE.

whole debt due, and fixing the JOINT OWNERS.-See SALE UNDER
period from which the time of limi- DECREE, 1.
tation rim ; and that the first of JOINT TRIAL;-See FALSE En-
the instalments claimed having be- DENCE, l.
come due within three years, the
suit was not barred. Rumlcriskl)a JUDGMENT DEBTS DUE TO THE
Mali.udev v. Bayaji bin Santaji et CROWN.-See CROWN DEBTS.
al. ........................ Ac.J. 35 JUDGMENT DEBTS DUE TO THE
See Rnu:w OF JuDGMENT, 1. SECRETARY OF STATE 1N
INSUFFICIENCY OF PACKAGE.- ' COUNCIL FOR INDIA,-See
CROWN DEBTS.
See BILL OF LADING.
INTEREST EXCEEDING AMOUNT J~~G~~~~~;:! 0~:~:ES AND
OF PRINCIPAL-
1, The rule of Hindu law, which JUDICIAL PROCEEDING. - See
V declares that interest exceeding in
CRtM. PRoc. CoDE, SEc, 316.
amount the principal sum cannot JURISDICTION-
be recovered at any one time, is not A suit was instituted in a court, which
applicable to mortgage'transactions. at the date of the filing of such suit
I'
Norlya!i hin Babaji et al. v. Gan- was in a Non-Regulation District,
g&ram bin KriBk'l}aji ......A,C.J, 157 to recover possession of a piece of
2. The rule of Hindu Law, that in- land situate in a village then within
\· terest beyond the amount of the the jurisdiction of that court; when
principal sum cannot be recovered the Regulatious were introduced,
at any one time, applies as well to the Regulation Court, which suc-
mortgage transactions as to other ceeded the said court, was placed
loans, in a district different from that to
But where the mortgagee enters into which the said village was annexed.
possession of the mortgaged pro- Held that the village in which the suit
perty, and in taking the accounts arose having been transferred to a
between the mortgagor and mort- district different from that which
gagee credit is given to the latter included the court which had suc-
for the rents and profits received by ceeded the Non-Regulation Court,
him as against the principal and this last-named court had no juris-
interest due, the above rule cannot diction to try and determine the
equitably be applied. Natkubkai suit.
Plm6ckandv. Mulcltand Hiruckand Held, also, that an appeal to a Judge
et al. ....... . ......... .......A.c.J. 196 of one district from a decree of a
INVESTIGATION BY MAGIS- subordi~ate court in another dis-
TRATE.-See CtttM. PROC. CoDE, trict, when such an appeal was per-
SEC. 171. missible, was not an appeal which
IRREGULAR PROCEDURE.-See could be referred by the District
COLLECTOR'S SANCTION. Judge for trial to a Principal ~adr

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 INDEX.
, 23
Amin under Reg. XVIII. of 1831, Held that the burden of profing th11t
S~c. 3. a partition had been made Jay on the
Qui:ere-When a district, or particu- defendants; and that the mere distri-
lar portion of a district, is for the bution of lands 11nd tenants, such
first time brought under the Regu- as is usual in the South Konka1.1,
lations, c11n the Regulation Court while II khoti estate continues to
which is established in the territory be held in coparcenary, in no w11y
where a Non-Rt>gulation Court established a formal partition.
previously existed, continue the trial Btlbaahe! bin Go1Jindahe! et al. v.
of suits iustituted in the Non- Jirahe/ bin Yeaahej et al ... A. c. J ,
negul11tion Court, if no proYision 71
have been made in the Act by LACHES.-See LAND REQUIRED FOR
\Vhich the Regulations became PUBLIC PURPOSES.
operative in the s11id territory, for
LAND REQUIRED FOR PUBLIC
the continuance of the trial of
PURPOSES-
such suits by the said Regulation
By a Government notification of the
Court. Paylspp1~ bin Shesh6pp1i
3rd of June 1863, published in the
Nadni v. DhomJo Ntm:ya1}, Ddmle.
A,C,J. 26
Gazette, it w11s declared, under the
provisions of Act VI. of 1857, that
See AcT XIX. ofl838, SEc, 13. ACT a t'ertain strip of land passing by
XXII. OF 1855, SEc. 46.-AcT V. the mill of the defendants was re-
OF 1864 (llOMBA:Y) I, 2. ADMJ· quired for a public purpose, the
RALTY· APPEAL, 1. CATTLE B. B. and C. I. Railw11y, a plan of
TnESPAss AcT, CAUSE OF Ac- which land was to be seen in the
TJON. COMPLADIT UPON OATH Collector's office.
EARNEST-~foNEY. MUNfCIPAL
On the 4th of November following,
CoMMISSIONE R, 2. PosT OFFICE the Secretary of the defendants'
ACT. REMAND, SERVICE wA· company received a notice, signed
TAN• SESSfON COURT. SESSION by the Collector, requiring the
JUDGE, ILLEGAL ORDER BY. owner of the mill to call at the Col-
SMALL CAUSE COURT, 1, 3. lector's office to signify his accept-
JUSTICES OF THE PEACE.-See 11nce or otherwise of the compensa-
MUNICIPAL COMMISSIONER, l. tion for the land required.
KHOTI ESTATE- The Secretary went to the Collector's
Where the plaintiffs sued fur' the par· offict>, and there saw a plan, from
tition of a khoti estate, alleging that which it appeared that an adjoining
they and the defendants were joint well, from which the engine of the
proprit>tors thereof, and where the mill was supplied with water, was
defendants admitted that the estate intended to be taken, but no com-
was originally joint, but set up that pensation for the well or land re·
a partition had taken place more qnirecl was then agreed upon.
than a hundred and fifty years On the 28th of November a notice
ago:- was served upon the defendants,

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24 INDEX.

signed by the Collector, stRting LEAVE OF THE COURT OF CHAN-

that he'had appointed an arbitrator CERY.-&eCoMPAN1Es' AcT, 1862.
on behalf of Government, and re- LEGAL EVIDENCE.-See CaIM.
quiring the defendants to appoint Paoc. ConE. SEcs. 282, 288, and 307.
a second arbitrator to determine the LEGAL PRESUMPTIO~.-See PRE·
Rmount of compensRtion for the SCRIPTIVE TITLE.
lRnd (describing it) required by the
LEPROSY-
B. B. & and C. I. Railway Co.
I. It is only when leprosy Rssumes
The defendants' Secretary wrote in a virulent and aggra\·ated type that
reply that the defendants had ap- it is by Hindu lRW IDl\de a ground
pointed an arbitrator on their be. for disqualification for inheritance.
half to determine the amount of Jani:rdhan Pan<!,urang V, Gopal and
compensation for their land required Paaudev Pan<Jurang ...... A,C,.T. 145
for the B. B. & C. I. RailwRy Co. 2. 'l'o a suit brought by a Hindu hus-
Semble that a contract was entered band against his wife for the resti-
into by the last-mentioned notice tution of conjugal rights, the f11ct
and letter of reply to it, of which that he is, at the time of such suit,
specific performance could be en- suffering from a loathsome disease,
forced. such as leprosy, is a good defence.
Bai PremkuMr v. Bltika Kalli1inji.
Held that the defendants had, by Rp-
A,C,J, 209
pointing their arbitrator to deter-
mine the compensation for the land LIABILITY FOR COSTS.-See
required, waived any irregularity in CosTS.
the previous proceedings, and pre- LICENSE-See AcT XXI, OF 1867.
cluded themselves from claiming to LIMITATION-
have the whole nrnnufactory taken !. A suit to recover the balance of
under Sec. 32 of Act VI. of 1857, nn account 11djusted and signed by
though no proceedings were taken the defendant, may be brought at
in the arbitration for nearly twelve any time within six years from the
months subsequently, Rnd the de- date of the adjustment, the contract
fendants had shortly before such to pay the amount found due on
proceedings made such a claim. the adjustment being an implied
contract, and, therefore, falling un-
A well in a mill compound from der Cl. 16 of Sec. 1. of Act XIV.
which the mill's engine is, by of 1859, and not under Cl. 9, Sec. 1.
means of a pipe, supplied with of that Act.
water, is part of a manufactory
Semble, that the adjustment and sign-
within the meaning of Act VI. of
ing of an account by the defend-
1857, Sec. 32. Kharahedji Na-
ant is a sufficient contract in writ-
aarvanji Gama et al. V. The Secre-
ing to satisfy the requirements of
tary of State in Council of India.
Cl. 9 of Sec. 1. Dmedcliand Ruka1H-
O.C,J. 97
cliand et al. v. SM Bulukidaa Lal-
LEASE.-See REGISTRATION, 1. cliand et al ......... . ...... .. o.c.1. 16

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 INDEX. 25
2. An acknowledgment in writing, Krishf1/t.ji v. Joshi v. Muk1md Chi-
signed by the defendant, or the fflll'l}Bhe/ (2 Born. H. C. Rep. 18)
person through whom he claims, overruled. Lalchand .dmbaidas v.
of the right of the plaintiff to share Sakharam. valad ChandrahM.i
in a watan, is not sufficient to et al. ........................ A.C.J. 139
revive the period of limitation con- 5. M. and others obtained a decree
tained in Act XIV. of 1859, Sec. in the Court of the A gent for the
1., Cl. 13, so as to give a new Sirdars. This decree w1ts, in spe-
starting-point from the date of cial appeal, confirmed by the High
such acknowledgment ; under that Court.
clause, there must be a payment 011 lleld that the period of limitation for
account of the 11lleged share by the the execution of the decree com-
person in possession of, or having di.enced to run from the date of the
the management of, the watan : decree (in special appeal) in the
and Sec. IV, is not applicable to High Court, and not from the date
such a case. Llmritrifo bin Yesh- of the decree in the Court below.
wantr,fo Deshmukh v. Anyr:!Ju bin
A decree of the High Court in its ap-
AMji Deshmukh . ...... . . . A,C.J· 50
pellate jurisdiction, as a decree made
3. Where the existence of a tenancy by a court established by Royal
is proved, the fact of the tenant not Charter, falls under Sec. 19, and
having paid rent to his khot land- not under Sec. 20, of Act XIV. of
lord for twelve years prior to· the in- I 859, and is, therefore, subject to
stitution of the suit, is no bar to the twelve years' limitation. Bapu-
the ri~ht of the landlord to recover rav Krish'l}a v. Mlidha,m'iv Rtmrav
rent falling due within the period et al ..................... A.C.J. 214
of limitation, i.e., for three years
See AcT XIV. OF 1859, SEcs. 20
previous to suit brought. llari
and 21. INSTALMENTS, MAIN-
V asudev v. M,1Md,ji Ap&ji. TENANCE. PLAINT.
A.C.J. 58
LIQUIDATED DAMAGES. - See
4. The plaintiff's tenant having been EARNEST-MONEY,
ejected from certain immoveable
LONG ENJOYMENT.-See PRE·
property of the plaintiff under an
SCRIPTIVE 'l'ITLE.
auction sale in execution against a
third party, the plaintiff made no .MAGISTRATE F. P.-See MAms-
application to the Court, under Sec. 'l'RATE OF DISTRICT, REFERENCE
:l46 or 269 of the Civ. Proc. Code, BY DISTRICT MAGISTRATE TO MA-

to prevent or set aside the sale. GISTRATE F. P.

/Ield that he was not bound to do so, MAGISTRATE F. P. WITH POWER
but that he was entitled to file a TO HEAR APPEALS.-See CRIM.
regular suit to establish his title Paoc. ConE, SEC. 276.
and recover possession at any time MAGISTRATE OF DISTRIC'T-
within twelve years from the date Held that the power conferred upon
of the dispossession, under cl. 12, the Magistrate F. P. at Broach to
Sec. 1., :\.et XIV. of i859. hear appeals does not exclude the
4 IND

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 26 INDEX,

jurisdiction which the Magistrate of MAXIMS-

the District has by law, and that ARG'JMENTUM AD INCONVENIENT!
the proceedings in any case, in PLURIMUM VALET IN LEGE.
which a prisoner has appealed from CR. CA. 77, 80
the decision of a Subordinate Ma-
EXPRESSJO UNlUS EXCLUSIO ALTE·
gistrate to the District Magistrate,
RIUS ..................... o.c.J. 88, 180
must be forwarded to the latter.
FISCUS SEMPER HABET JUS PIGNORIS.
Reg. v. Umtha Rugnath .. .ea. CA, 8
o.c,J. 34
See CRIM. PRoc. CooE, SEc. 276.
NuLLUM TEMPUS OCCURRIT REGI.
REFERENCE BY DISTRICT MA-
GISTRATE TO MAGISTRATE F. P.
0°C .J, 49n

V MAINTENANCE- •
Held that a Hindu widow is entitled
PRIVILEGIUM FISCI EST INTER OM-
NES CREDITORES PRIMUM LOCUM
TEN ERE, .................... O.C,J, 34
to maintenRnce from her husb1md's
QUANDO .JUS DOMINI REGIS ET SUB•
brother, whether separated or not,
DITI CONCURRUNT, JUS REGIS
notwithstanding the non-receipt by
PR&FERRI DEBET ...... o.c.J. 48
the latter of her husband's assets.
In a suit for maintenance the cause of Qux SENTIT COMMODUM SENTIRE

action ordinarily arises at the time DEBET ET ONUS ......... O,C,J, 164
when the m11intenance, hnving he- RESPUBLICA CREQITRIX OMJ"<IBUS
come necessary, is refused by the CHIROGRAPHARUS CREDITORIBUS
party from whom it is claimed. PR&FERTUR ............... o.c J. 34
Act XIV. of 1859, Sec. 1., Cl. 13, S1c UTERE TUO UT ALIENUM NON
does not apply to all suits for the L&DAS................... •• A,C,J • 43
recovery of maintenance brou~ht MEASURE OF DAMAGES-
by a Hindu widow against her hus- In an action of damages for the de-
band's family, but only to suits in tention of ornaments pledged with
which the plaintiff seeks to have the defendant which the defendant
her maintenance made a charge ·on has wrongfully converted to his
a particular estate. own use, the measure of damages is
There is nothing in the Hindu law the value of the ornaments less the
to prevent the Court, in its discre- sum for which they have been
tion, awarding a widow separate pledged. Hasam Kaaam et al. v.
maintenance. Goma Jadavji et al. . .. O .C.J, 140
Former decisions commented on.
MESNE PROFITS-
Timmappu Bhol et al. v. Parmeah-
N. obtained a decree against A, for
riamrna et al. . ........... A. c .J. I 30
certain lands, and was put in posses-
See CRIM. Paoc. Com~, SEc. 316. sion of them in execution of the de-
MAJ.MUDA'lU WATAN.-See SER- cree.
v1cE WATAN.
On appeal, the decree against A. w11s
MA'MLA.TDA'R.-See AcTV. OF 1864 reversed, and the lands were accord-
(liOMBA'Y) 1, 2. EXECUTION OF ingly restored to him, but no pro-
DECREE. vision was made as to the meane

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 INDEX, 27

profit, received by N. when he sion, within which to prefer bis ap-

was in possession of the lands plication. Dadu f1alad Amar SIJ&el,
under the decree of the lower court. v. BtiJgoutf,d 6in Sltanltarappa.
In a suit brought by A. against N. A,C,J. 39.
to recover such me,ne profit,, it was " MONTHS," WORD USED IN
held th1Lt the suit would lie, and NATIVE INSTRUMENTS-
was not prohibited by Sec. 11 of Act
Where a promissory note executed by
XXIII. of 186I. Ahhram AIU v.
a Native bore a Native date only,
NutM Jullam ....... ......... A .C,J, 74
and was made payable in a certain
MILITARY CODE.-See SxALL number of months from such date,
CAUSE CouRT, 2.
it was held that these months
MINOR- should be calculated according to
Held that a Hindu of the age of the Native, not the British, Calen-
seventeen years was competent to dar. Ga'!',patrao 6in Ramji v.
apply for the execution of a decree Mannu bin Moltanji ......A.c.1. 150
obtained by a deceased person of
MORTGAGE-
whom he was the representatiYe.
I. In a suit, brought by a second
Reg. V. of 1827, Sec. vu., Cl. 3, does mortgagee against first mortgagees
not prevent a Hindi1 lesa than (admittedly overpaid), to compel the
eighteen years of age from euing, first mortgagees to convey to him
but restricts him to a particular the mortgaged premises, the heir
periorl, after which he is no longer or legal representative of the de-
a minor, Gangudltar Ragltun,Ult ceased mortgagor is, according to
v. Chimraji Keahav Dumle. A, c. J. the balance of authority, a neces-
95 sary party.
MITIGATION OF SENTENCE- Cases bearing 011 the above question
Held that a Session Judge has no collected and considered.
power to mitigate a sentence p11ssed Where it was uncertain who was the
upon a prisoner who has not ap- heir or legal representative of the
pealed to him. Reg. v. Muliya deceased mortgagor, .and the cir-
Nlnu et al. . .... .......... CR· CA· 24 cumstances attending the execution
MODE OF COMPUTING.-See of the second mortgage were not
" MONTHS," WORD UiED IN free from doubt, the cause was al-
NATIVIC INSTRUMENTS, lowed to stand over, for the purpose
MOFUSSIL LAW. - See SMALL of enabling the plaintiff' to apply
CAUSE COURT, 3. for an order to the Administrator
MONTH- General (under Sec. 17 of Act
The word " month" in Sec. 230 of XXIV. of 1867) directing him to
the Code of Civil Procedure means apply for letters of administration
a month according to the English to the estate and effects of the
calendar. An applicant under that mortgagor; and the plaintiff was
section h11s a clear calendar month, allowed (in the event of letters of
exclusive of the day of disposses- administration being granted to the

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 28 INDEX.
•
Administrator General) to amend price for which the premises had
his plaint by making the Adminis- been conditionally sold to the mort-
trator General a party to represent gagee. Manc!tarsha Asltpandiarji
the deceased mortgagor. The pl11in- v. Kamrunisa Begam ... A.C.J, 109
tiff was, however, ordered to give
3, When in a redemption suit the
security for the probable eosts of lower courts refused to ·allow to the
the Administrator General in the
mortgagee the expenses of repairs
rnit. Fi!hald,:s Narotamd,:s. v.
made by him on the mortgnged
Karsandas Keshai·dls et al.
property (there being no provision
0 C.J. 76
as to repairs contained in the mort-
2. In a suit brought by a Muham- gage deed), the case wns remanded
madan to redeem from the de- by the High Court, that it might
fendant, who was a Parsi, certain be determined what sums hnd been
property that had been conveyed expended by the mortgagee in the
by the ancestor of the former to the proper and necessary repairs of the
·-,- ancestor of the latter by a by-al- mortgaged property, and that the
wafa ( deed of conditional sale) : mortgagee might be allowed in the
Held that the law to be applied was, decree such sums with interest.
under Sec. 2'6 of Reg. IV. of 1827, Ragho Baglji V. Anliji Manaji
thnt of the defendant. That, in Pii.!{l ........................ A.C.J. 116
the absence of any specific law for 4, In a suit for redemption, in the
Parsis in the Mofussil, the rule . of absence of any proof of a mortgage
justice, equity, and good conscience by the plaintiff, the .existence of
should be observed, and the Court such a transaction between the
should follow, with certain necessary parties cannot be assumed, in con-
modifications, the practice of the sequence of the failure of the defend-
Courts_of Equity in England. ant to establish an alleged sale.
That the by-al-wafa amounted in Vcry slight primfl faci.e proof on the
effect to a mortgage of the property, part of the plaintiff would suffice to
and that, according to the practice shift the entire burden of proof on
of the Courts of Equity, a mort- the defendant, but in its absence a
gagee in possession ought to be plaintiff seeking to redeem cannot
allowed for .proper arid necessary be relieved of the burden. Bdlaji
repairs to_the estate. Narji v. B/J.bu Der,li ...... A.C.J. 159
Where portion of the mortgaged 5. A mortgagee claiming title other-
premises was accidentally burned, wise than from the execution debt-
and portion of them fell down, and or is competent, on behalf of him-
the mortgagee rebuilt them, it was self and his mortgagor, to sue to
held that the mortgagor was not raise an attachment on the pro-
entitled to redeem, unless upon perty of which he is mortgagee.
payment of the i.um so expended The court of first instance found
by the mortgagee, though such sum against the defendant on a matter
amounted to more than double the of fact, but drcreed in hi6 farnur

)
I

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 INDEX, 29
on a point of law ; and, on appeal 2. The Managing Committee of
by the plaintiff, the defendant Municipal Commissioners 11ppointed
omitted to file a memorandum of under Act XXVI. of 1850 have no
objections to the adverse finding of power to try and convict persons
fact, of the court of first instance. for alleged breaches of rules made
The 11ppellate court, without going in pursuance of that Act.
into the question of fact, confirmed
The power to inflict fines for such
the decree of the court of first in-
offences is, by Sec. 10, ,•ested in
stance on the point of law.
the Magistrate, Reg. v. Macji
Held that the High Court, in special
Daya; Re9. v. Kt.lida8 Keval.
appeal, could1 under these circum-
CR.CA. 10
stances, give judgment in favour of
the plaintiff without a remand. MUNICIPAL COMMISSIONERS,
R. S. Wai9ankar v. B. B. Wi:<J,ekar, CHAIRMAN OF-
A.C.J. 194 The Chairman of Municipal Commis-
See DECLARATORY DECREE. EQUI- sioners appointed under Act XXVI.
TY OF REDEMPTION, GIFT OF THE. of 1850, although a public servant,
INTEREST EXCEEDING AMOUNT is not legally competent as such to
OF PRINCIPAL, 1, 2. SMALL issue an order fot attendance before
CAUSE COURT, 3.
hilh.
MORTGAGE DEED.-See SECOND-
ARY EvIDENC E.
Held, accordingly, that disobedience
of such an order was not an offence
MORTGAGEE IN POSSESSION.-
within Sec. 17 4 of the Indian Penal
See INTrREST EXCEEDING AMOUNT
Code. Reg. V, Purahotam V ulji.
OF PRINCIPAL.
CR. CA, 33
MOVEABLE PROPERTY. - See
GROWING CROPS. MUNICIPAL COMMISSIONERS,
:\fUHAM:MADAN LA W.-See CoN- DISOBEDIENCE OF ORDER
s1DERAT10N. MADE BY-
l\lUNICll'AL COMMISSIONER- Where accused wns convictec!, ·under
!. No suit can be maintained against Act XXVI. of 1850, of disobe-
the Justices of the Peace of the dience of an order made by the
City of Bombay in respect of an Municipal Commissioners of Pul].a,
alleged wrongful distress for unpaid aud w11s sentenced to pay a fine of
rates levied hy the Municipal Com- twenty rupees, and (eight d11ys'
missioner of that City, either under time being allowed him within
the provisions of Act II. of 1865 which to comply with the order) a
(Bombay) or Act IV. of 1867 further fine of two rupees for each
(Bombay). In such a suit the day during which he should continue
Municipal Commissioner himself, or wilfully to disobey such order, the
the actual tortfeasor, is the proper latter part of the sentence was re-
defendant. Shivshankar Govindram versed by the High Court, as beiog
v. The Juatices of the Peace for illegal. Re9. v. Jagannatlt.bhat bin
the City of Bombay ...... o.c.1. 145. .tl.ppabkat ................. .CR. CA· I 03

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30 INDF.X.

NATIVE CALENDAR. - See Quan-e-Whether Sec. JI of Act I:

"MoNTHs," WoRD USED 1N NATIVE of 1865 (Bombay) justifies survey-
INSTRUMENTS, ors in entering private houses for
NA'TRA'.-See AnuLTERY, 1. the purpose of measuring them,
Reg. v. Bkagtidaa Bha!J1)1'.ndfis.
NECESSARIES.-See ADMIRALTY.
CR. CA. 51
NECESSARY PARTIES TO SUIT
OLD DECREES.-See ACT XIV. oF
FOR REDEMPTION.-See MoRT·
1859, SEcs. 20 and 21.
GAGE, 1.
OMISSION TO FILE MEMORA~-
NEGLECT TO PUT FORWARD
DUM OF OBJECTION TO FIND-
DEFENCE IN WRITTEN STATE-
ING OF FACTS-See MORTGAGE, 5.
MENT.-See LAND REQUIRED FOR
PUBLIC PURPOSES. OMISSION TO PREPARE A
CHARGE-
NEGLIGENCE.-See BILL OP LAD•
ING, Held that the omis@ion to prepare a
ch11rge did not vitiate the proceed-
NEGLIGENCE OF SERVANTS.-
ings; and conviction upheld. Beg.
See SECRETARY OP SrATE, LIABILITY
OF, FOR ACTS OF SERVANTS. v. KabMi RaufibMi et al. CR.CA. 40
NEW TRIAL.-See REVIEW OF JuDG· OMISSION TO SUE FOR PORTION
KENT, 2, OF CLAIM--See CAUSE OF ACTION
HEARD AND DETERMINED,
NON-ATTENDANCE IN OBEDI-
ENCE TO SUMMO~S.-See RB, ONUS PROBANDI.-See AcKNOW•
LEDGMENT OF DEBT, BILL OF LAD•
VENUE CASK.
ING, C1v. PRoc. CoDE, SEc. 246,1.
NOTES OF EVIDENCE.-See INsOL· KeoTI EsTATE.
VENCY,
PA'LKHI HAK.-See PRESCRIPTIVE"
NOTICE.-See AcT XXIII. OF 1861, TITLE.
SEC, 5.
PARDON, - See SUMMING UP OF
NOTIFICATION BY GOVERN. JUDGE,
MENT.-See AcT (BOMBAY) VII.
PAROL EVIDENCE.-See C0Ns1.
OF 1867, SEcs. 31, 2.
DERATION•
OBSTRUCTION OF PUBLIC SER- PA'RSI LAW.-See MoRTGAGE, 2.
VANTS-
PARTIBILITY OF J'AHA'GIR.-
Conviction and sentence under Sec.
See PRIMOGENITURE.
186 of the Indian Penal Code re-
versed, as the conduct of the ac, PARTITION.-See SALE UNDER DE-
CREE, 2.
cused-refusing to 11ccompany a ..... ,·
measuring-clerk employed under PARTITION, EFFECT OF- ·4
Act I. of1865 (Bombay) to his (the V., a Hindu, being possessed of pro-
accused's) house and permit it to perty, both moveable and immove-
be me11sured-did not constitute the able, which be bad acquired by
offence of obstructing a public ser- mRking partition with bis brother
vant in discharging his public func- of their joint ancestral estate, died
tions. in 1850, After making a Will in the

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 INDEX, 31

English language, by which, after allotted to him as portion of his

various bequests, he disposed of the share under the Will.
residue of his said property : one- In a suit brought by L., the widow of
third to his son V. absolutely; one- K., ag.ainst K.'s surviving brothers,
third to his son L. absolutelr ; "and and S., the widow of his brother
the remaining clear third-share to V., in which L. claimed to be ab-
my grandsons K., V., G., and N., solutely entitled, 11s heir of her hus-
the sons of my late son Moroba, band (and also as heir of her
deceased, their and each of their daughter, who died, after the hus-
respective heirs, executors, adminis- band's death, childless and unmar-
trators, and assigns, share and ried), to a fourth part of the third-
share alike." These residuary be- share of the estate allotted by the
quests were not to take effect until Award of 1855:
after the death of the testator's
widow, who was appointed executrix Held, that the surviving brothers of
and manager of the whole estate K. bad, by their conduct since at-
during her life. taining their majority, adopted the
acts of their mother and guardian,
The estate was divided by arbitrators and had agreed to treat the Will of
in 1855, after making provision for the testator as a valid Will, and
the testator's widow, in substantial were accordingly estopped from dis-
accordance with the Will, and V. puting its provisions.
and L. immediately entered into
possession of their respective third- Held, further, that the laoguaie of
shart>s ; the third-share allotted to the testator showed an intention
the four sons of M., who were then that his grandsons should take the
infants represented by their mother one•third between them in severalty,
and guardian, remained unappor- and as members of a divided family,
tioned until l 856, when, on a suit and ~hat the Will must be so con-
being filed, the greater part of the strued.
moveable property was apportioned- A Hindu widow succeeding to the im-\ /
The immoveable property continued v
moveable property of her deceased
unapportioned, the bill stating that husband, and also claiming as heir
it was not for the interest of the to her only daughter, who died
minors then to apportion it ; and after her fatht>r, childless and un-
the sons of M. continued to enjoy married, is only entitled during her
the rents and profits, living toge- life to a widow's estate. The
ther as an undivided Hindu family, doctrine laid down in the Division
the property being successively man- Court that ancestral property after
aged by the eldest surviving bro- partition can be disposed of bv
ther. In 1866 the then surviving Will, in the san:e way as self-a~-
sons of M., having attained their quired property, disapproved of, as
majority, joined with V., the son opposed to the authorities and ge-
of the testator, in conveying to· a neral spirit of Hindu Law. Lakah,..
purchaser a ban9lo. which had been mibai v. Ga7!pat Moroba et al.;

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32 INDEX.

Ga1,1,pat Moroha et al. v. Lak,hmi- PLEAD, POWER TO.-See VAKI'L.

biti . . ....• •........ . ...•.• ,O.C.J', 128 PORTUGUESE LAW-
PATENT AMBIGUITY.-See Ex- The Portuguese inhabitants of the
T&1Ns1c EVIDENCE, Town and Island of Bombay, not
PAUPER SUIT- having had their laws, and us~ges
When a pauper petition comes on for having the force of laws, prtserved
hearing, under Sec. 306 of the Code to them by the Treaty by which
of Civil Procedure, the Judge has Bombay was (A.D. 1661) ceded to
no power to inquire into any other the English, are subject to English
circumstance than the pauperism of law, so far as the same has betn
the petitioner. Dipsangji Jit,angji introduced into Bombay and has
v . Fatte,angji Ja,vat,angji. A.C.J .59 not 1t1ince been varied by legislation.
PERISHABLE ARTICLES- Where a Portuguese inhabitant of
Arlicles of such a perishable nature Bombay, being entitled to certain
that they cannot be kept for fifteen immoveable estate in perpetuity, died
days and sold, according to the intestRte before the 1st of January
Civil Procedure Code, ought not 1866 (on which day the Indian
to be taken in execution. Sad/uhio Succession Act, 1865, came into
Moreshvar v. Hanso bin ShrufJal}, force), leaving two nephews by a
A,C,J, 156 sister as his next of kin, it wRs held
PLACE OF DELIVERY.-See CAUSE that the tlder of them, as heir at
OF ACTION, SALE OF Goons, AGREE· law of the intestate, was entitled to
MENT FOR, succeed solely to such immoveable
estate. Lopes v. Lope11 ... o.c.1. 172
PLAINT-
Where a plaintiff presented a plaint POSSESSION.-See AcT V. OF 1864
to the District Court, the Munsif's (BOMBAY), 2.
Court, in which he oug.h t to have POST OFFICE ACT-
preaented it, being then tempo- A Subordinate Magistrate has juris-
rarily closed, it was held that the diction to try a prisoner for an of-
date on which the plaint was pre- fence under Sec. 47 of the Indian
sented to the District Judge should Post Office Act (A.et XIV. of 1866).
be considered as the date of pre- Reg. v. Vi/nu bin Mc:Uu. CR.CA, 36
sentation to the proper Court. In POWER OF SESSION JUDGE TO
re Ga1,1,e1h Sadu,hfo ...... A .C.J. 117 QUASH SENTENCE OF ASSIST-
See RETURN OF PLAINT. ANT SESSION JUDGE.-See SEs-
SION JUDGE, PowER OF.
PLAINT, OltDER REJECTING-
Held that it is not competent POWER TO BREAK OPEN DOORS.
to the Judge of a Small Cause -See EXECUTION OF DECREE,
Court in the Mofussil to set aside PRACTICE.-See AcT XXIII. OF
an order which he has made re- 1861, SEc. 5. EXTRAORDINARY AP-
jecting I\ plaint. Jitmal f)O[ad Bahi- PLICATION$, INSOLVENCY.
rafJdusv. Rt'.mchandra oalad Jagrup PRECEDENCE IN EXECUTION.-
et al ... .. .............. .. . .. A.c.J. 97 See CROWN DEBTS,

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 INDEX. 33
PRESCRlPTION- allowance had been acquired. De-
Where a charitable grant in connec- Btii Kalyanrdi Hukamatrtlya v.
tion with a temple was proved to Tlie Gov~nment ofBombay. A.c.1. I
have been enjoyed by the incum- PRESUMPTION--See MoaTGAGE, 4
bent, and those under whom he
PRESUMPTION OF HEREDITARY
held, in regular succession for more
GRANT.-See PRESCRIPTION·
than thirty years :
PRESUMPTION OF PERPETUAL
It was held that the grantee had ac-
LEASE.-See YEARLY TENANCY.
quired a right of property in it,
PRIMOGENITURE-
under Reg. V. of 1827, Sec. l.
Where there is a plurality of wives
By 117ardett, J ., independently of
equal in caste, the sons of each
the origin or nature of the grant.
wife ( not being the first wife) take
By Gibba, J., in the absence of it
precedence according to the dates
bring shown to have been a per-
of their respective births, and with-
!lonal grant, and by the conduct of
out reference to the dates of the
Government in paying it to several
marriages of their respective mo-
generations in succession. The
thers.
Collector of Khe<J,1 v. Hari:hankar
Succession in consequence of primo-
Tikam et al .................. A.c.J. 23
geniture amongst Hindus in India
PRESCRIPTIVE TITLE- seems to be the rule only in the
WhPre the plaintiff's ancestors had case of large zami11duris, and estates
enjoyed an allowance during four which partake of the nature of
snccessive generations for a period principalities.
edending over more than a century, In estates to which the ordinary
the legal presumption, in the absence Hindu law of inheritance adminis-
of the original grant, is that such tered in Western India applies, it
grant was heredituy.
is not competent to a father to dis-
The allowance having been continued pose of ancestral property to one
bv the British Government to the son to the prejudice of the others.
piaintiff's grandfather for the same Bhuja11,gr/,r, bin Davalatr1fo Ghor-
reasons for which a village (ndmit- pa<!,e et al. V. Malojirav bin Dat·a-
ted to be held on hereditary tenure) latr/.r, Ghorpa<!,e .••.••... A.C.J· 161
hRd been continued, and having
PRIMOGENITURE AMONG~T
been paid to the pl11intiff's grand-
PORTUGUESE INHABITANTS
father up to his decease, and after-
OF BOMBAY-See PoRTUGUESE
wRrds, as a matter of course, to the
LAW.
plaintiff's father, it was held that
PRIORITY .-See REGISTRATION, 2.
the enjoyment of the plaintiff's
grandfather and father was proprie- PRIVACY, INVASTON OF, BY.
tary enjoyment, and as this enjoy- OPENING DOORS AND WIN-
ment had continued uninterruptedly DOWS-
for more th1m thirty yeRrs, that, Held thRt, in accordance with the us-
under Reg. V. of l B27, Sec. I, a sta- age of Gujariit, an invasion of pri-
tutory and indefensible title to the vacy is nn actionable wrong, and
5 IND

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34 INDEX.

that a man may not open new instituted simultaneously, the error
doors or windows in his house, or in splitting up the claim against him
make any new apertures, or enlarge did 00t affect the merits ; and
old ones, in a way which will enable accordingly the decree was affirmed.
him to overlook those portions of Vi!hu et al., heira of Bc',pu KC:mble,
his neighbour's premises which are v. Naraya'I} Dtbhullcar ... A.C.J. 30
ordinarily secluded from observa- See FALSE EvrnENCE, I. SALE
tion, and so intrude upon his pri- UNDER DECREE, L
vacy. PUBLIC NUISANCE, - See !No.
Doctrine of English law, which has PEN. ConE, SEc. 290.
been followed by the High Court
PUBLIC SERVANT.-See MuNICI·
of Madras, different. Ma'l}ishanlcar
PAL COMMISSIONERS, CHAIRMAN
Hargovan v. 'll'rilc-im Narai et al.
A,C,J. 42 OF.
PURCHASE MONEY. - See C1v.
PRIVATE HOUSES.-See OBSTRUC-
Pitoc. CooE, SE c. 246, 2
TION OF PUBLIC SERVANT.
PURCHASE OF SHARES IN A
PRIVITY.-See ESToPPEL.
COMPANY BY DIRECTORS.-
PROCEDURE- See ULTRA VrnEs .
.A Hindu whose share in an ancestral RAKING UP OLD CLAIMS.-See
estate hacl been alienated by a co- APPEAL, 2 .
•proprietor, instituted simultaneous! y
RECEIPT OF RENT.-See Gin oF
three different actions against the
LAND,
co-proprietor, and the persons to
whom the alienations had respec- RECOGNISANCE BOND-
tively been made, to recover several Held that where the personal attend-
distinct parcels of land which con- ance of an accused is dispensed
stituted his 6hare. with, a recognisance bond, if such
Held that, as the plaintiff had but one is deemed necessary, should ' be
single cause of action against the t11ken from him, and not from bis
co-proprietor, be ought to have agmt, binding him (the accused) to
brought but one suit against him, appear, either in person or by an
and either included all the alienees agent,; and that a Magistrate bas
in this suit, or brought separate no leg11l aiithority to secure the
actions against the alienees for the attendance of an agent by such a
several pieces of land in their pos- bond. Reg. v. LalluhMi JatMuhMi.
session, and caused the proceedings CR. CA, 64

in these suits to be stayed till the See CRIM, Pnoc. ConE, SEcs. 282,
suit against the co-proprietor was 288, and 307.
determined. RECOVERY OF STOLEN PRO-
The course of procedure last indicated PERTY.-See AMENDS IN CASES OF
is the more correct course. THEFT.

Held, further, that, as the separate REDEMPTION SUIT.-See MORT•

suits against the co-proprietor were GAGE, 4. STAMP, 4.

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 INDEX, 35
REFERENCE BY DISTRICT MA- was granted, as at the conclusion
GISTRATE 1'0 MAGISTRATE of that ·term the lessee would be
F.P.- only a monthly tenant of the lessor.
Htld that the l\Iagisbrate of a District Moro P'i!hal v. Tuk6rli.m t,alad
before whom a criminal case is Malharji et al . ............. A.C,J, 92
brought, either on. complaint pre- 2. An unregistered mortgage with-
ferred directly to such Magistrate, out possession upon which a decree
or on the report of a Police Officer, has been obtained but not executed,
cannot, under Sec. 27 3 of the Cri- bas not, by virtue of such decree,
minal Procedure Code, refer such priority over a subsequent deed of
case to a Magistrate F. P, sale which is registered. K&nu
A Magistrate F. P., though execu· Khan<Ju v. Kri&h'IJI' BhuMji She!-
tively inferior to the Magistrate of A.C.J. 147
the District, is not a " Subordinate
REGISTRY.-&e AcT XIX. OF 1838.
Magistrate " within the meaning
SEC. 13.
of Ch. xvi. of the Criminal Proce-
dure Code, nor is he " immediately REGULATIONS (BENGAL)-
subordinate " to the District Magis. No. I. OF 1780, SEc. 27 ... o.c.J. 163,
trate, within the meaning of Sec. 186
434 of the eame Code. Reg. v. No. VL OF li81, SEc. 37, o.c.J. 183

Krillhl}a Partuhritm et al. CR, CA.69 No. I. OF li93 ............ o.c.J. 4911
No. II. OF li93, SEc, 37. o.c.J.. 4911
REFUSAL TO SIGN SUMMONS- Nos. XIV. and XLIV. OF 1793.
Refusing to sign a summons by an o.c.J. 49n
a-ccused person does not constitute
No. XLVII. OF 1803, SEc,5o.c ..r.49n
the offence of intention.ally prevent-
No. V. oP 181'2 ............ o.c,J. 49n
ing the service of a summons on
himself, under Sec. I 73 of the In- REGULATIONS (BOMB.-\Y)-
dian Penal Code. Beg. v. Kalya No. II. oF IS27-
bin Fak{r ............... CR.CA. 34 SEc. v., CL. 2 ... A.c.J. 59, 63, 6i,
95, 117,216
I\EGISTRATION- SEC. XXVIII., CL, 5 ... A.C •.T. 47
1. Held that a hhluj,t!khat is an agree- No. IV. oF 182i-
ment between a lessee and a lessor SEc. 26;-See .MORTGAGE, 2. A,C.J.
in the nature of a counterpart of a 99, 123, 124, 125
lease, and that an instrument of this
SEc. 69, CL. 2· ............ o.c.J. 49
character must, for the purposes of
the Registration Act, be· treated as No. V. OF 1827-

a lease. ~c. l.-See PRESCRIPTION. PRE-

Held also that a. provision in the SCRIPTIVE TITLE, YEARLY

bhluf,ekluit that the lessee might TENANCY,

after six months remain in occupa- SEC. 7 ........................ A.C,J. 54

tion at a monthly rent, till the lessor --CL, 3.- See M1NoR,
called upon him to vacate, did not SEc, 9. See ACKNOWLEDGMENT
extend the term for which the lease 1 OF DEBT.

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36 INDEX.

No. VII. OF 1~27, SEC, tx., CL· I. RESUMPTION.-&e SERVICE WA-

A.c ..1. 102 TAN,
No. XVII. OF 1827 .. . .CR.CA. 53, 54 RETAINER OF ATTORNEY BY
SEc. 5, CL. 3 ... ............ o.c ..1. 49 TRUSI'EES OF AN INSOLVENT.
SEc. 7 .. ... ..... ....... ....... o.c.J . 9 -See CoSTS.
SEcs. 12 and 13 .. ..... .. ... o.c.,. 49 RETURN OF PLAINT-
8.Ecs. 26 and 29.-See REVENUE
CASE. Where there is a want of jurisdiction
in the court to which a plaint is
8.Ec. 31, CL. 3 .... . ...... •. A.c.s. 212
presented to try the cause of action
No. XVIII. 01· 182i, SEc. XIV., mentioned in it, the plaint should
CL. I .-See EQUITY OF REDEMP- be returned to the plaintiff. Khan-
TION, G1Fr OF THE. du More8hrJar v. Sltir,ji bin ~or-
No. XIX. OF 1827 . .. . ... ..... o.c..1. 9 koji .................... _... . A.C.J. 212
Sze. 2.-See SMALL CAUSE CouRT REVENUE. - See SMALL CAUSE
SEcs. 3 and 4 . . ..... o. c. s. 49 COURT, 1.
SEC, 5 . .... ............ . o. c. s. 41
REVENUE CASE-
No. I. OF 1830, SEC. 4 . . .A. c . .J. 4i
Held that a conviction under Sec. 174
No. XII. oF 1830 .. .... A. c . .1. 155
of the Indian Penal Code for "hav-
No. XVIII. OF 1831.-See JuR1s·
ing intentionally omitted to attend
DICTION,
the Mahalkari's Katcheri to give
RELA.TIONSHIP.-See CoNSJDER- evidence in a revenue case, under
ATJON, Sees. 26 and 29 of Reg. XVII. of
REMAND- 1827, though the summons issued
was duly served upon the accused,"
When the High Court bas remanded
was not illegal. Beg. v. Narain-
a suit for re-trinl on the merits, the
lower appellate court has no autho-
appa Com/e ........ ..........CR·CA. 3!>
rity to raise a question of jurisdic- REVIEW OF JUDG.MENT-
tion for the first time. Temulji Held that it is not necessary for a
Rustar,yi v. Fardunji K6rJasji et al. defendant in a Small Cause Court
A,C.J. 137 to deposit the amount of the decree
See DETENTION OF AccusED BY THE in court, when applying for a review
Po LICE , of judgment for the purpose of
RE-MARRIAGE.-See ADULTERY, I. obtaining an order to pay by in-
RENT.-See LIMITATION, 3. stalments. Mulchand Je/Malw v.
Kik/J. V ardhvan ............ A. C,J. 70
REPAIRS.-See MORTGAGE, 2, 3.
2. If an application for a review of
REPORT OF POLICEMAN.-See judgment made by a defendant in
COMPLAINT, I.
a Small Cause Court be in the na-
RES JUDICATA.-See EsTOPPEL, ture of an application for a new trial,
RESIDENT MAGISTRATE. - See the amount of the decree, though
ACT (BOMBAY) VII. OF 1867, SEC. made payable by instalments, must
31, 2. be deposited in Court under Sec.

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 INDEX, 37
21 of Act XI. of 1865. Naoroji son in immovtable property which
Peatanji v. ManaukA Jayachand the execution creditor seeks to sell
A.C.J. 70 in extcution of his decree, the or-
RIGHT OF FEMALE TO SUCCEED dinary procedure for II court extcut-
TO A BHA'G.-&e BeA'GDA'a1 ing the decree to adopt is, to put
TENURE. up for sale the right, title, and in-
RIGHT OF MORTGAGEE TO terest of the judgment debtor in
WITHHOLD PRODUCTION OF his undirided ahare of the property
)lORTGAGE DEED OR TITLE- to be sold.
DEEDS. - See DECLARATORY DE- Where the court below adopted a dif-
CREE. ferent procedure, and, after parti-
RIGHT OF WAY.-See AcT V. OF tioning the property, put up for sale
1864 (BOMBAY), 2, the divided ahare of the extcution
debtor, the High Court, in the ex-
RIGHT TO SHARE IN A WATAN . ercise of its ext r11ordinary jurisdic-
See LIMITATION, 2. tion, iefused to interfere, in conse-
RIGHTS OF THE CHILDREN OF quence of the laches of the appli-
DIFFERENT WIVES OF THE cant in neglecting to avail himself
SAME CASTE TO INHERIT AN- of an opportuuit.y, which the lower
CESTRAL PROPERTY.-See Pai- appellate court had given him, of
MOGENITURE. showing that the partition which
SALE.-See Carn. Paoc. Co»E, SEC, bad been made was injurious to
246, 2. him. Mathurad,!a Govxrdhandaa o.
SALE IN EXECUTION OF DE- Fatmu Ulka Begam ......A.c.J. 63
CREE.-See LIMITATION, 4, 2. In execution of a decree which
merely declared that the right of a
SALE OF GOODS, AGREEMENT judgment debtor in certain property
FOR- extended to two-thirds of it, the
In the absence of any agreement as lowtr court divided the property
to delivery, goods agreed to be before selling the debtor's share : -
sold are to be delivered at the place Held, that-as the decree did not
at which they are at the time of specify that any particular portion
the agreement for sale, or, if not of the property belanged to the
then in existence, at the place at debtor as his share-his right, title,
which they are to be produced. and interest in the property could
Distinction between an ordinary con- only be sold, and that the deter-
tract for sale of goods and a con- mination of this right must be left
tract to pay an existing debt in for future adjudication between the
specific articles pointed out. Duda- purchaser and the co-sharer of the
6Mi Narai v. &Uleman Daa8U. debtor, unless an arrangement could
A.C.J, 126 be arrived at. ..dtmaram Kallian
SALE UNDER DECREE- daa v. Fatma Begam . ····· A.C.J. 67
1. Where an execution debtor is SA'MA'D ASKAT.-See AcKNOWLEDG-
jointly interested with another per- MENT OF DEBT,

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38 JNl>EX,

~ANCTION- SENIOR ASSISTANT JUDGE.-See

Prosecution for non-attendance in APPEAL, 1:.

obPdience to a summons was en- SENTENCE.-See INn. Y.11:N. CODE,

tertained without the sanction or SEC. 75.
complaint required by Sec. 168 of SEPARATE MAINTENANCE'.-See
the Criminal Procedure Code- MAJNTENANCE.
Held that there was 11n implied
SEPARATE SENTENCES-
, sanction for the prosecution, as the
Where a prisoner convicted of" house•
conviction was by the same Magis-
breaking in order to commit theft"
trate whose summons was treated
and of " theft," both offences being
with contempt, Reg. v. Ga?7,u bin
portions of one continuous criminal
T6tylt Selsr ............ CR. CA. 38
act, was sentenced, on the first
SEARCH WARRANT. -See Evi- head of charge, to ttne year's rigor-
DENCE, ous imprisonment, under Sec. 457
of the Indian Penal Code, and, on
SECONDARY EVIDENCE-
the second head of charge to re-
Where the defend11nt denied a mort- ceive twenty stripes, under Sec. 2
gage to his father set up by the of the Whipping Act (YI. ofl864) ;
plaintiff, the latter was held at li- the separate sentences (though not
berty to give secondary evidence of illegal) were disapproved of, as
its execution and contents. contrary to the spirit and intention
Held, that an acknowledgmeot of of the Whipping Act. Reg. v.
title, under cl. 15, .Sec. 1. OF Genu bin Aku ............CR,CA. 83
Act XIV. of 1859, need not be
made to the mortgagor, or his re- SERVICE OF SUMMONS-
The mere showing to a witness of a
presentatives. Ahiloji valad Khan-
summons issued under Sec. 186 of
</,oji v. Dongar Harichand Gujar.
the Crim. Proc. Code is not suf-
A.C.J. 176
ficient service. Either the original
SECRETARY OF STATE, LIABI- should be left with the witness, or
LITY OF, FOR ACT OF SER- should be exhibited to him and a
VANTS- copy of it delivered or tendered.
The Secretary of State in Council of Reg. v. Karaanlal D6ootrum
India is liable for the damages occa- CR.CA, 20
sioned by the negligence of servants See REFUSAL TO SmN A SUMMONS.
in the serrice of Government if the SERVICE WATAN-
negligence is such as would render The payment of a kak in respect of a
an ordinary employer liable. The majm6d6.ri wa,tan, though charged
Peninsular and Oriental Steam on villages, is not " a share of the
Navigation Company v. The Secre- revenues thereof," within the mean-
tary of State for India ... APPX, 1 ing of Sec. 32 of (Bombay) Act
SECURITY TO KEEP THE VII. of 1863.
PEACE.-See CRIM. PRoc. CODE, Government has no power to
SEcs. 282, 288, and 307. resume 1najmluluri watans where it

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 INDEX. 39
dispenses with the performance of Judge jurisdiction to made such ai:i
services in respect of them, if the order. Reg. v. Gopal Lakskuma'I}·
holders of such watan& are ready et al. CR.CA. 25
and willing to perform such services. SESSION JUDGE, NO POWER TO
The law in the Bombay Presidency MITIGATE SENT.ENCE OF PRI-
recognises the right of females to SONER NOT APPEALING.-See
iiiold majmlid(.ri watans, males being MITIGATION OF S.KNTENCE.

appointed by them to perform the SESSION JUDGE, POWER OF-

services. Tke Government of Bom- Held that a Session Judge has no
bay v. Damodkar Parmunand1ls power to quash a sentence passed
et al• •••.•...........•.....•. A.C.J. 202 by an Assistant Session Judge and
SESSION COURT- by him submitted for confirmation,
and direct new sentences to be
The order of a Session Court to quash
pnssed, even supposing the sentence
proceedings he\d before a Magis·
of the Assistant Session Judge to
trate F. P. ,mnulled, as having
be illegal.
been made without jmisdiction.
Held, also, · when more than one of-
Comments by a Magistrate F. P. on fence is proved, it is not proper to
the proceedings of the Session convict only of one and to acquit
Court, disapproved of. Reg. l". of the other, although the offences
Govind::l bin Bab,:_ji ...... CR.CA. 15 may be cognate.
SESSION JUDGE, ILLEGAL OR- Reg. v. Vin/,yl,k Trimbak (2 Born.
DER BY- H. C. Rep. 414) followed. Reg.
v. Mur1:r T,-ikam •..... CR. CA· 3
Where the Session Judge, on appeal,
reversfd a conviction passed by a SETTING ASIDE VERDICT.-See
SUMMING UP OF JUDGE.
MAgistrate F. P. of an offence
under Sec. 182 of the Penal Code SMALL CAUSE COURT-
(which the Magistrate F. P. was I. The Collector of Bombay, bonll
competent to try), and directed the fide believing that certain land upon
Magistrate F. P. to institute pro- which a quarry had been opened by
ceedings against the accused under the plaintiff was Government waste
Sec. 21 I, considering that, on the land, by his servants forcibly stop-
complaint which had been made to ped the quarrying operations of the
him, the Magistrate F. p. was plaintiff, "for the purpose" (the
bound to institute proceedings un- Collector stated in his evidence)
der the latter section : " of preserving the land for Govern-
The High Court reversed that part of ment, as land from which revenue
the order of the Session Judge might in future be collected."
which directed the Magistrate F. P. In an action of trespass brought
to institute proceedings, as the case agRinst him by the plaintiff, ,it was
did not fall within Sec. 435 of the held that this act of the Collector
Criminal Procedure Code, and there was not " a matter concerning re-
was no provision of law giving the venue" within the meaning of Sec.

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40 INDEX.

25 of Act IX. of 1850, andth at the parties, it was nece8sary for

the jurisdiction of the Small Cause the court of appeal iu the first in-
Court was, therefore, not excluded, etance to determine a question of
Held also, upon the fact8 stated in title to land (which had been raised
the case, that the possession of the by the Munsif): Held that a special
plaintiff of the land in question was appeal lay to the High Court,
sufficient to entitle him to main- though the court below had omitted
tain an action of trespnss against to determine such question of title.
the Collector. KiBandram i,alad Hirtckand v.
Je{kir6m 1Jalad Magnirtm. A.C.J. 57
'l'he Revenue Court, under Sec. 2 of
Reg. XIX. of 1827, had not exclu- See VARIANCE BETWEEN PLAINT
sive jurisdiction over the Collector AND PROOF.
of Bombay for all acts done by him SPLITTING UP OF CLAIMS.-See
in his official capacity. PROCEDURE.
Semble, Sec. l of Act VII. of 1836
STAMP-
w11s retrospective only in its opera-
I. In ll suit for a declaration of right
tion, 1md is now obsolete, N1:ra-
to an annuity (var8Msan), it was
ya1,1, Kri8li1,1,a Laud v. Gerard Nor-
held that the stamp for the petition
man, Collector of Bombay. o.c.J. 1
of special appeal should be regulated
2. Held that the rules and orders by the market value of the an-
in the Military Code are not bind- nuity ; and that "primufacie" ten
ing on II Small Cause Court. Rdi- times the amount oftheannuity may
cliand Mangal v. ~bdulla .Amruddin be assumed to be its ronrket value,
Kotvtil .. ....... .. ... ... ...... ,A,C.J. 99 as enacted for analogous agreements
3. A suit by a mortgagee to com- by Sec. 2, Sch. A, Act X. of 1862.
pel II mortgagor to repay him the Nar8fnvacliarya et al. v. S1J1;mi
amount of Government 11ssessment, Ray/,ch/.rya .................. A.c.J. 5{i
which he has been compelled to pay 2. Held that the description of a
when in occupation of the mort- document delivered to the Court
~aged property, is in the Mofussil under Sec. 40 of the Corle of Civil
an obligation in Equity to repay, Procedure is neither a pPtition nor
1md is not cognisnble by a Court an applic11tion liable to duty within
. of Small Causes. P'i{liob11, bin the meaning of the Stamp Act.
K esliavBlie! v. SMMjirav and .An- Ckott.Ul .Amritll,l · v. Bombay,
andr611 ....... .. ............ A.c.:,. 122 Baroda, and Central India Railway
See EARNEST-MONEY. PLAINT, OR- Company ..................A.C.J. 101
DER REJECflNG. REVIEW OF
3. An agreement to supply cotton
JUDGMENT, ), 2. SPECIAL
in consideration of a suin of money
• APPEAL,
received should be stamped under
SPECIAL APPEAL- Art. 4, and not under Art. I 5, Sch.
Where, in a suit cognisable by a Court A, Act X. of 1862. Sam8Uddin
of Small Causes, in order to deter- Sulttn et al. v. Ramji Bkika
mine the question at issue between et al ......................... A.c.J. 151

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 INDEX. 41
4. The stamp duty payable, under 33 GEO· III., c. 52, s. 36 .. .o.c.,. 39
Sch. B of Act X. of 1862, on a ------s. 62 .... . ....... o.c.,. 37
suit to redeem mortgaged land pay- ----s. i2 .... ........o.c.,. 38
ing revenue to Government, should 37 GEo. III., c. 142 .. .... o.c.J. 184
be calculated on the sum for which -----ss. 8, 10, 12 . . .o.c.J, 173
the land is mortgaged, and not on - - - - s . 13 ... . .. o.c.J.173, 188
the market ,·alue of such land. 39 & 40 GEo. III., c. 79, s. 13,
O.C.J. 173
Semble thRt an error in the valuation
53 GEo. 111.,c. P 155 . .. APX. 6, i, 9
of the pl11intiff's claim, on account
- - - - - S S. 55 to 66 ...... APPX, 6
of which error the dcfcnd11nt is
- - - - - s . 95 ............o.c.,. 35
compelled to pay more costs than
he would otherwise have to pay, is
-----ss. 98, 99 ...... o.c.,. 39
- - - s . 100 ... o.c.J. 12, 40, 41
not in general a ground of special
-----s. 105 ........ .o.c.,. 173
appeal. Nandr(.ni Sundarji J.Wik v.
- - - - s . lll ... o.c.J. 12, 24, 41
Bi:lt'iji Yi/hal et al . ....•. A.c.J. 153
-----S. 128 . •....... APPX. 15
5. A complaint preferred by a Mun- 54 GEo. III., c. 105 ...... o.c.,. 40
sifunderSec.Hi8.ofthe Crim. Proc. 54 GEo. III., c. 145 ...... o.c.,. 12
Code need not, though it do not 55 GEo. III., c. 84, ss. 8, 9. APPX. 15
bear the seal of the Munsifs Court, 4 GEo. IV., c. 71, s. 17 ... o.c.,. 189
be on stamped paper. Reg. v. 6 GEo. IV., c. 16 ..... .... o.c., . 171
Sajjan valad Vi!ftu .. .... CR. CA, 104 - - - S S . 33, 34 ..... .O•C.J• 15in
9 GEo. IV., c. i3 ..... .......o.c.,. 43
STATUTES- 3 & 4 WM. V., c. 85 ... o.c.,. 53;
33 HEN, VIII., c. 39 ...... o.c.J. 25 APPX. 4, 5, 6, 7, 11, 13, 15
7 JAc. 1:, c. 15 ..... ..........o.c.,. 52 - - - - - - s . 1 .. ....... O.C,J. 43
12 CAR. n., c. 35 ... . .. ...... APPx. 10 - - - - - - s s . 10,17 ... o.c.,. 43n
7 & 8 WM. III., c. 6 ...... o.c.J. 29 -----,s. 43 ......... o.c ..1. 24
9 & 10 WM. III., c. 44 ... o.c.,. 36 - - - ~ s . 76 ......... o.c.,. 38n
9 ANNE, c. 10, S. 30 ... O.C.J. 28, 29 - - - - - - s . 111.. ..... . . o.c.,. 38
7 GEo. I., c. 21, s, 2.-See ADMI- 3 & 4 WM. IV., c. 93, s. 2. o.c.1. 65
RALTY. 1 & 2 V1cT., c. 110, s. 86. o.c.1. 56
8 GEO, I ., c. 4 .... ....... ... .0.C,J. 45 3 &. 4 V1cT. c. 65, s. 6.-See ADMI·
3 GEo. II., c. 14, ss, i, 10 . ..o.c ..J. 38 RALTY.

17 .GEo. II., c. 17, s. 12 ... o.c.J. 38 11 & 12 VICT., c. 21.-See INDIAN

3 GEo. III., c. 117 ...... o.c.,. 65 lNS.OLVENT DEBTORS' ACT, l, 2.
7 GEO. III., c. 57 ......... APPX, 10 o.c.1. 43, 154
9 GEO. III., C· 2-l ......... APPX. 11 - - - - - s . 4 .... •.0.c.1. 157 n
13 GEo. III., c. 63 ...o.c.,. 173, 183 - - - - - - s . 40 .....• o.c.J. 67
- - - S S . 23, 24 ... . ... .. O,C.J. 38n - - - - s . 49 .. .. .. O,C,J. 60
19 GEo. III., c. 61, s. 6 ... o.c.,. 36 s. 62 ...... o.c.1. 24
20 GEo. III., c. 65, s. 6 . .. o.c.J. 36 -------s. 72 . •.... o.c.1. 61
18 GEo. III., c. iO.o.c.,. 173, 183,184 12 & 13 V1cT.,c. 106, s. 120. o.c.,.
·- - - - s . 17 ......... O,C.J , 188 l57n
6 IND

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42 INDEX.

14 & 15 V1cT. c. 42· ... .. .o.c.J, 29 SUBSISTENCE MONEY-

--
- ---SS, 29,30 ...... O.C.J, 29 Where the defendants were arrested
-----s. 31.. ....... O,C,.J, 28,29 through the Munsif's Court in ex-
14 & 15 V1cT., c. 99, s. 6. o.c.J. 155n ecution of a decree, but were re-
15 & 16 VICT., c. 86, s. 50, O,C,J, 158, leased at the 1·equest of the execu-
160 tion creditor before they had been
16 & 17 V1cT., c. 95, s. 7. o.c.J. 44 sent to the Civil Gaol:
18 & 19 VICT., c. 90 ...... 0,C,J, 31
It wns held that the execution credit-
21 & 22 VICT·, c. 106 ... o.c.J, 24, 46;
APPX, 9, 16 or was entitled to a refund of the
balance of subsistence money ad-
--s. }. ................. O.C.J, 44
vancrd by him, that remained in
2 .......... , .... O.C.J, 44, 53
the M unsif's hand at the time of his
---S, 9 .................. APPX, 8
debtors' release, Sec. 10 of Act IV.
---s. 39 .................. o.c.J, 44
of 1865 (Bombay) not being appli-
---s. 41 .................. o.c.J. 45n
cable to such a case. K,:ahin(.tl,.
- - - S , 42 ... O-C.J, 46; APPX, 5, 15
Baza Ok, Ex parte ...... A,C.J. 84
- - S S , 43, 44, 45, 49 .. , O,C,.T, 45n
- - s . 64 ..................... APPX. 5 SUIT BY SECOND MORTGAGEE
- - s . 65. o.c.J. 45n, 46; APPX, 4, TO REDEEM FIRST MORTGAGE.
5, 13, 15 See MORTGAGE, I.
- - s . 65 ...... o.c.J. 45; APPX. 5 SUIT BY MORTGAGEE TO RAISE
---s. 67 ..................... APPX, 5 ATTACHMENT,-See MoRTGAGE,
- - - S , 68 , .. O.C,J, 45; APPX. 5, 6
5.
22 & 23 VICT,, C, 41 ... O.C.J, 24, 46
24 V1cT., c, 10,-See .-\.oMmALTY. SUIT TO R.\ISE ATTACHMENT.-
24 & 25 V1cT., c. 67, s. 24. o.c.J. 24 See EsToPPEL,
24 & 25 V1CT., c, 134 ...... o.c.J, 157n SUIT TO RECOVER POSSESSION
. 25 & 26 VICT., c. 89, SS. 81 & 87.- OF LANDS SOLD,-See LrniTA-
See CoMPANIEs' AcT, 1862. TION, 4,
. 27 & 28 VICT., c. 57 ......... 0.C,J, 30
SUIT FOR PARTITION '7""'See KnoTI
28 & 29 V1cT., c. 124 ...... o.c.J. 30 ESTATE,
- - - - - s . l ......... o.c.J. 30
- -. - - s s . 3 & 4 ... o.c.J. 28, 30 SUIT FOR RESTITUTION OF CON-
JUGAL RIGHTS.-See LEPROSY, 2.
STAY OF EX~CUTION".-See CaowN
DEDTS. SUMMING UP OF JUDGE-
On a t;ial by jury, the Session Judge,
STAY OF PROCEEDINGS. - See
in summing up, should gh·e a full
CoMPANIEs' AcT, 1862.
and detailed statement of the evi-
SUBORDINATE MAGISTRATE.- dence on both sides ; he should
See AcT XXII. OF 1855, SEc. 46. point out the legal bearing of it,
CATTLE TRESPASS AcT, PosT OF- and what weight the jury ought to
FICE AcT. REFEUENCE BY D1s- attach to its several parts. His
TRICT MAGISTRATE TO MAGISTRATE omission to do so, if the accused is
F. P. tl1ereby prejudiced, amounts to such

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 INDEX, 43
1111 error in lnw as woul<l justify n SUMMONS.- See CoMl'LAINT UPON
court of appeal in setting aside the OATH, REVENUE CASE, SERVICE
verdict. OF SUMMONS.
No general rule can be laid down as SURPRISE.- See LAND REQUIRED
to when a prisoner is )rejudiced by FOR PUBLIC PuR1•osEs.
a defective summing up, but in gen- SURVEY.- See OBSTRUCTION OF
eral, if the finding of the jury in PunLIC SERVANT.
such a case is one that an appeal TEMPLE ALLOW.-\NCE.-See P1m-
court would set aside if the trial sca1PTION.
had takeR place with the aicl of as- TENANCY--See LIMITATION, 3.
sessors, the Court will interfere and TENANT FROM YEAlt 'l'O YEAR.
set the verdict aside.
See YEARLY TENANCY.
In capital cases, and all cases of a se- THEFT.-See COMPLAINT, }. lNQ.
rious or complicated nature, the PEN· CoDE, S.e:c. 95. SEPARATE S&N•
Judge onght to read over the evi- TENCES.
dence in ezten8<> to the jury. THIRD PARTIES.-See EQUITY OF
The Judge ought, if requested, to al- REDEMPTION, G1rr OF THE·
low the accused an opportunity of THIRTY YEARS' RULE.-See AN-
cross-examining all witnesses whose CIENT Docu JIIENTS.
depositions have been taken for TIME FOR APPEALING.-See AP•
the prosecution by the committing PEAL, 2, INSOLVENCY,
Magistrate, but whose evidence is TITLE TO LAND.-See SPECIAL AP-
dispensed with by the prosecutor at PEAL.
the trial. His refusal to d'o so is,
TRANSIT DUTIES, POWER OF
however, not an error in law.
COLLECTOR TO FORBID-
Where the :Magistrate erroneously Held that it was beyond the power ·
treated a witness as an accomplice, of a Collector to issue an order
and granted him a conditional prohibiting the ,·eceiving of transit
pardon: duties for the Holkar's Govern.
Jleld that his evidence did not require ment in British. territory. Reg. v.
corroboration. Pi!lial Lak8liumar ...... CR. CA. 13
Where a person gave inforJI1ation to TRANSPOR'l'ATON.-See IND. PEN.
9 Magistrate and the police of a CoDE, SEc. i 5.
murder having been committed, TREATY OF I 534 .••..•...o.c.J, 32, 33
and subsequently, on the charge - - - - 1 6 6 1 . . .... o.c.J. 33, Ii3
having been dismissed, petition~d TRIAL BY JURY.-See CHARGE,
the Session Judge to have the ALTERATION OF, AFTER VERDICT.
matter re-investigated : SUMMING UP OF JUDGE.
Held that he was not a complainant ULTRA VIRES-·-
within the meaning of Sec. 3'60 A claim against the Directors of a
of the Crim. Proc. Code. Reg. v. Joint Stock Company to make good
Fattecliand Yastachand. CR.CA. 85 funds of the company expended by

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44 INDEX.

them, on behalf of the company, in Held that this was a matter in the
transactions that the company was discretion of the Judge ; and, as
forbidden by its Articles of Associ- there was no error of law in his pro-
ation to engage in, is proveable ceedings, the High Court in special
under Act XXVIII, of 1865. The appeal refused to interfere. Gornnd
Liquidators of the Indian Penin- Ramchandra Chokhle v.Shek Ahmed
aula, London, and China Bank, et al. .. ................... A.c.1. 133
Limited, v. J. L. Scott ...o.c.s. 167 YARSHA'SAN.-See STAMP, I.
UNREGISTERED MORTGAGE.- YOLUNTARY APPEARANCE.-See
See REGISTRATION, 2. COMPLAINT UPON OATH.
USAGE OF GUJARA'T.-See PR1v- WAIVER.-See INSTALMENTS.
ACY, INVASION OF, BY OPENING WAIVER OF RIGHT TO HAVE EN-
DOORS AND WINDOWS. TIRE MANUFA.CTORY TAKEN-
VACATION'.-See INSOLVENCY.
See LAND REQUIRED FOR Pus•
VAKA'LATNA'MA'.-See VAKI 1L. LIC PURPOSES.
VAKl'L- WANT OF JURISDICTION.-See
The r,akll retained by the plaintiff' in RETURN OP' PLAINT.
a suit in which a decree has been WIDOW.-See EQUITY OF REDEMP-
given for the plaintiff' is competent TION, GIFT OF THE.
to plead for his client in answer to a WIDOW'S POWER TO ADOPT.-
claim advanced (under the first por- See ADOPTION,
tion of Sec. 2t6 of the Civil Proce•
WILL.-See PARTITION, EFFECT OF.
dure Code) to property attached in
WITHDRAWAL OF CHARGE.-See
execution of such decree, without
ADULTERY, 2.
the production of a fresh vakulat-
ntmC:. Gop11l Jayachand v. Har- WRIT OF SCIRE FACIAS...o.c.1.
govind KhusMl et al. ......A.c.J. 83 28, 51
VALUATION.-See STAMP, I. WRITTEN CONTRACT.-See Ex-
TR1Ns1c EVIDENCE,
VALUATION OF CLAIM:. - See
STAMP, 4. YEARLY TENANCY-
VALUELESS PRODUCE.-See !ND. Although a person is admitted to
PEN, CoDE, SEc. 95. have been in possession as a tenant
for more than thirty years, yet the
VARIANCE BETWEEN PLAINT
presumption of law is that he is
ANDPROOF- only a tenant from year to year, 11.nd
The plaintiff' sued upon a written such tenant mRy be ousted by the
agreement to recover rent from an proprietor, unless there is evidence
alleged tenant and his two sureties. or strong counter-presumption of
The lower appellate court, holding the his right to hold on a perpetual
agreement not proved, threw out lease.
the claim, declining to consider, in Reg. V; of 1827, Sec. I, does not
proof of the alleged tenancy, pay- apply to such cases. Bui Ganga v.
ment of rent &c. in pre'l'ious years. Dullabh Par,lg .... ....... .A,C,I , 197

Digitized by Google
 INDEX OF CASES Cl'fED..

A Page
P~ge Attorney General 11. Hallett. o.c.J, 52
Abnjee Dinkar "· Gungadhur W. Attorney General ;v. Kingston.
Gosavee ..................A.c.J.1[2,189 o.c.J. 52
Abdulla deceased, In the Goods of. Attorney General"· Poulden.o.c.J. 88
o.c.J.194n Attorney Generalv.Poultney, o.c,J. 52
Abraham"· Abraham .•..•..•.o.c.J, 173 Attorney General v. Stewart. o.c.J. 172
Adams v. Freroantle ......... o.c.J. 52 Attorney General v. Walmsley.
Addison v. Walker .........o.c.J.153,156 o.c.J. 25
Adventure, The .............. .o.c.J. 71 Audley v. Halsey ...............o.c.J. 27
Advocate General v. Amerchund. Austin v. The Manchester, Sheffield,
o.c.J.34n,42n and Lincolnshire Railway Com-
Advocate General "· Damother.
pany ...........................o.c.J. 11!)
o.c.J. 42n Avards v. Rhodes .........o.c.J. 143, 144
Advocate General"· Ranee Surno- Australia, The .................o.c.J, 66
moye Oossee.o,c.J; 24, 42n, 173, 183n
Ayyava Muppanar "· Niladatchi
Advocate General "· Richmond. • Ammal ........................o.c.J. 131
o.c.J. 24, 42n, 198
Advocate General "· Vishvanath
Atmaram .....................o.c.J. 42n B.
Afina Van Linge, 'fhe .........o.c.J, 74 Baboo Motee Lal"· Ranee, wife of
Alexander, The ...............o.c.J. 73 Maharaja Bhoop Sing Bahadoor.
Annugumbo.la Chetti v. KrishQ.a- O.C.J. 161
svami Nayakkao ............A,C.J. 38 Bai Jamna's Case ............... o.c.J. 133
Anonymous ...............o.c.J.155n, 172 Bai Lakhmi "· Lakhmidas ... A.c.J. 132
Ardaseer Cursetjee "· Perozebaee. Bai Udeku.var "· Mu.lji Nara!).,
o.c.J.190 A,C.J. 102, 103, 105, 106
Arunachelln "· Appava ......A.C.J. 79 Balch"· Symes .. .............o.c.J. 1.55n
Arundadi Ammal 11· Kuppamal. Bamundas Mukerjea a,. Mussi\mut
A.C.J. 182. Tarinee ........................A.C.J. 182
Ashby v. James ...............o.c.J. 18 Bank of Bengal v. The East India
Asher v. Whitlock ............o.c.J. 8 Company.................. .APPX. 9
Attorney General"· Brodie ... o.c.J, 42n Barbara, The ..................o.c.1. 71
Attorney General ti, Capel ... o.c.J. 27 Baron de Bode's Case ......... o.c.J. 24
Attorney General v. Dakin ... o.c.J. 25 Bartley v. Hodges ......... o.c.J. ·89, 95
Attorney General v. Donaldson. Batchelor v. Middleton ...A,C·J· 177, 179
o.c.J. 24 Beaumont's Case ............... o.c.J, 52

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 4G I?\DEX.

Pago Page
Bcavnn "· M'Donnell ......... O,C.J. 151 Chandrabhagabai "· Kashin.tth .
Beehar Bhag,an "· Bai Lnkshmi. A.C.J. 132
A,C..J. 218, 222 Chincry "· Viall .... .....o.c.J. 143, l ·U
Beema Shunker Balcrish1.111. "· Chunder Kant Surmah Talookdar
Jamasjec Shaporjee and others. "· Bissesur Surmah Chuckcr-
A.C.J. 208 butty ....... .... .. ...... . .. . .... A.c.J. 201
Beer Kishore Suhye Sing "· Hur Cole v. West London and Crystal
Bullub Narain Sing ..... ..•.o.c..1 . 131 Palace Railway Company. o.c.J. 104
Bentinck "· Willink ...... o .c.J. 31n, 156 Collector of Madura v. Srimntu
Beverley's Case ... . ... ...•... .o.c.J. 50 Muttu Sethupati .... . ... .. .. A.c.J. IS I
Bhai v. Tomu . ...... .. . ...• ....A.C.J. 138 Collector of Madura v. Muttu Ra-
Bharatsangji Mansangji "· Navanid- mnlinga Setthupathy ..... . A.c.J. 1!)0
haraya l\:lansukharam ..... .A.c.J. 86 Collector of Masulipatam v. Cavnly
Bhasker Buchajee v. Narro Rugoo- Vencata Narrainapah ... o.c.J. 24, 133
nath . ...... . ........ .. .... ... .. A.c.J. 189 Comtesse deFregeville, The. o .c .1. i2n
Blankard v. Galdy ...... o .c.J.li3, 181n Cotton v. Wood . ...... . ... .. ..o.c..1. 118
Bodh l\lal v. Gouree Sunkur o.c •.1. 134 Cox v. Bateman . ...... .. ...... o.c.J. 170
Bombay, The . ...•. . ...• : . . .. . w .c .J, 71 Creed v. Creed .. ... ............ .o.c ..J. 47
Breadman v. Coles ......... ... o.c.J. 52 Crisp i,. Platel .. .. ........o.c.J. 153, 156
Briggs"· Oliver . ...... ... .. .. .o.c.J. 1 i~ Cumming "· Forester . ........o .c.J. I 73
Brinder Dabee Chowdhrain v. Pea- Czech i,. The General Steam Navi-
ree Lall Chowdhry .........o .c.J. 161 gation Co ... o.c ..1. lli, 118, J 19, 120
Bristow v. Whitmore .. .. •..•.o.c.J. 161
Brojendur Roy Chowdhry v. Jugu- D
nath Roy ................ . ... .o .c.J. 90
Brojo Kishoree Dassee v. Srinath Dada Honaji "· Babaji Jagushet.
Bose ....... ... ..... ...... ..... o.c.J. 161 o.c ..1. 31n; A,C,J ,38
Brown"· Lockhart ...... o.c.J.153, 155 Dndoo Mania, In the Goods of.
Bush v. Steinman .. ............. APPX. 10 O.C.J. 192
Byam"· Byam .... . ... .. ....... .o .c.J. 162n Dakin v. London and N. W.
Byrne "· Boadle ....... . ... .. .. o.c •.1. 119 Railway Co...... ...... ..... ..o.c.J.103
Dalton, Re .. ................... o.c ..1. 4in
C Dalton v. Hnyter .. ..... . .. ... . .o.c , . 158
Davidson v. Stanley .... .. CR· CA. 97
Cnldccott,E:eparte ...... o .c.J.154, 157 Dean, Ea:parte ....... ........ o.c.J. 164
Calvin's Case . .... .. ..... . ... . .o.c.J. 172 De Monte v. Hussein Ilibi ...o.c ..1. 173
Campbell v. Hall .. . . ... . .. ..... o.c.J. 172 186, 19!)
Cnssinath Ilysack "; Hurroosoondry Dendy"· Cross . .. ........ ... .o .c.J. 15i
Dossee .......... .. .... ... .. .. .o .c.J. 140 Desiii Kalyanruya v. The Govern-
Cnwasjce Framji "· W11llace. A.C•.J. 213 ment of Ilombny ..... .. .. . .. A,C.J. 24
Cawthorne"· Campbell .. .o.c.J . 52, 53 DeSuuza v. Coles .... .. . ...... .. A.C.J . 35n
Cazee l\fuzhur Hossain i,. Dino- Dhakji Dn<lnji "· The E. I. Com-
bundoo Sen ... . ... ..... .... . .o c.J. 161 pany . ... ... ... . .. .... .... ... .. .o.C,.J, 46n

D1g1tized by Google
 lNDEX. 47
rage rage
DhoncJu JngRnnath "· Narayat;i Fletcher r,. Rogers ............o.c.s. 15S
Riimchandra ............... A.c.J. l!JSn Freeman v. Fairlie. o.c J, 173, 183n, 188
Dhomlu l\fathuradas tt. Rarnji valad Fuentes ". Montis ............ A.C.J, 106
lln;mmnta ............... o.c.J. 8i, 90 Fyffe v. Arbuthnot ............o.c.J. l.'i3
Dhurma Das Pandey 11. l\fossamut
's1111ma Soondri ............ A.c.J. 182 G
Dfkshft r. Dfksbft ............ A.c.J. 59
Gale v. Willinmson ............ A.c ..r. 39
Doe d. De Silveira. v. Texeira. o.c.J. 172,
Gangabni "· Sadashiv ...... A.C.J. 132
173, 177, 1S6, l!JO, 196, 198,
Gangubai kom Sidhappa v. Ra-
199, 200.
manna bin llhimnnna ...... O.C•J. 132
---Dornbji "· The Bishop of
GaI].pntruv "· Bechar and others.
Bombay ..................... o.c.J, 196n
---E: ·
I. Company "· Hirabai.
o.c.J. 9, 12, 15.
A,C.J, 138
Gardiner i,. Fell ......... o.c.J. 173, 188
Gardner "· The Charing. Cross Rail-
---Hampton"· Shotter ...o.c.J.199
way Compa.ny ............... o.c,J. 106
---Peeareemoney v. Bissonath
Gasper Gregory"· Juyput Chuncler
Bonnerjee .....................o.c.J. 14n
Bamjee........................ A,C,J. 103
---Rahimbhai Alubhai a.nd
Garlick"· Lawson ............ o.c.J 1 153
others "' The East ludia Com-
Gidly v. Lord Palmerston ... APPX. 11
pany ...........................o.c.J. 12n
Giles v. Grover ....... ........o.c.J. 24, 27
--Snvnge "· Tagore ...... o.c.J. 173
Gholam Quadir, In re ......... o.c.J. 38
Doorga Monce Dossee et al. "·
Gill v. Eyton .................. o.c.J. 157n
Doorga l\lohan Doss ......o.c.J. 17
Gobind Monee Dossce 11. Ram Lall
Doyle v. Allum Biswas ......o.c.J. lS Bysack ..................... o.c.J. lG2n
Doyle v. Khooseeal Khan ... o.c.J. lB Gopay Mohun Thakore v. Sebun
Drew v, O'Hara .........o.c.J, 153, 157
Gower ........................o.c.J. 80
Dudlev and West Bromwich Bank- Gosling v. Gosling ............ o.c.J. 161
ing ·company v. Spittle .. ...o.c.s. 169 Graham v. Peat.. ............. o.c.J. 8
Dur Gopal Singh v. Kasheeram Great Western Railway Company
Pandny .................. A.c.J, 177, 179 ofCana.dav. Fawcett ...... o.c.J. 119
Durrand, Ez parte ............o.c.J, 53 Greenwood v. Rothwell ...... o.c..r. 155n
E Greenwood r,. Sutherland......o.c.J, 153
Greesh Chunder Pottar v. Lookhoo-
Edwards v. Ronald. o.c.J. 87, 89, 91, 95 da Moyee Dabee ........... o.c.J. 89
Ella A. Clark, The ............ o.c.J. 73 Griffith v. Rickets ............o.c.J. 155n
Emin v. Emin ............o.c.J. 186, 188 Grill v. The General Steam Navi-
F gation Compa.ny............ o.c.J. 119
Grosvenor v. Hampstead Junction
Farmer v. Curtis ...............o.c ..r. 79 Railway Company ......... o.c.J. 103
Fecha, The .................. o.c.J. 73 Grove v. Alclridge ............o.c ..r. 24
Fell v. Brown ........... .......o.c.J. 78,,9 Grove v. Bastard ................ o.c.J. 160
Fcncott v. Clarke .......... .. ... o.c.J.15!in Gunga Uupu v. Bapoo Gungadhur.
Fisher II, Blight ........... .... O.C,J. 25 O,C.J, 2,1

Digitized by Google
48 INDEX.

H Paga
Page Jan Ali v. Jan Ali.Chowdbry, A,C,J, 201
Hall v. Smith APPX. 16 Jebb v. Lefevre ...o C,J, 173, 186, 188
Hammack v, White ...••.......o.c.J. 119 Jeffreys v. Dickson ............o.c.J. 158
Hari Mahadaji Joshi v, Vasudev Jehangir Rastamji Moqi r,, Shamji
Moreshvar Joshi ............A.C.J, 96 Ladha ..................o.C.J, 169, lil
Harjivan Anandram v. NaraJ]. Jenner v, Jenner ............o.c.J. 16'.?n
Haribhai .......••............o C,J, 88 Jephson v. Riera ............. ..o.c.1. 182
Harmonia, The .....••...........o.c.J. 71 Jogendronath Mullick v. Raj Na-
Harris v. Osbourn ......o.c.J. 164, Hi5 rain Palooye ............A.c.J. 114, 116
Hasam Kasam v. Goma J udavji. John, The .•........ .. o.c.J. 71, 72, i4
o.c.J. 151n Johnson v. Stear....•..•....... o.c.,.· 143
Heathfield v. Chilton .•.......o.c..J. I 73 Jones, Ex parte ............... o.c.J. 169
Heaton, Ex parte, re Moxon. o.c.J, 171 Jones v. Pugh ............... o.c.J. 15in
Heera Monee Dossia v. Promo- Joseph v. Ronald...............o.c.J. 173
thonath Ghose ...............o.c.J. 17
Henrietta, The ................•.o.c.J. 69 K
Henriquez v. The Admiral Moore
arid W. T. Bennett ......... o.c.J. 71 K,j,1 Tevara Das v. Richardson and
Hiruchand Babaji v. Bhaskar Aba- others........................ A,C.J. 54
bhat Shenq.e ..................A.c.J. 149 Kantoo Lall v, Greedharee Lall.
Hoogly Steam Tug Company v. o.c.J. 133
The Indian .............•....o.c.J. 68 Katama Natchiar v. The Rajah of
Hope v. Hope ............ ...... o.c.J.162n Shivagunga .................. o.c.J, 140
Huebut Rav Mankur v. Govind Keily "· Murphy .. .. ...........o.c.J, 47
Rav Bulwant Rav Mankur. A.c.J. Kenarnm Chuckerbutty "· Dina-
181, 187, 189 nath Panda .................. o.C.J. 161
Hughes V, Cook ............... o.c.J.l58n Khanoo Raoot Kulvekur v. Dhun-
Huradhun l\fookurjia v. Muthora- bajee Kan .....................o.c.J. 24
nath Mookurjia .. ..... : ....A.C.J. 182 Khisticoomar Moitre v. Issenchun-
Huree Bungsho Bannerjee v. Ra- der Moostofee ............... o.c.J. 49
messur Bannerjee............A.c.J. 214 King v. Cotton ...............o.c.J. 27
King"· Crump and Hnnbury.o.c.J. 27
I King t•, Wycombe ltail. Co ... o.c,J. 104
India, The ...................•.o.c.J. 65, 73 King in aid of Hughes v. Wilton.
Indian Chief, The............ o.c.J, 172 o.c.J. 28
Irving v. Veitch. o.c 1. 18, 20; A.c.J. 82n Kishen Kinkur Ghose and others
v. Buroda Kant Roy and another.
J A,C.J, 215
Komathi r,, Gunmada Pillai. A.C.J. 45
Jackson v. Turnley ...... o.c.J. 153,158 Konth Narain Singh. r,, Premlal
Jamiyntram v. Bai Jamna ...o.c.,. 130, Paurey ........................ o.c,J, 135
139, 140 Krishnaji V. Joshi v, Mukund
Jamni and Parshotam, In 1·e. CR· CA. 28 Chimai;tshe~ ............A,C,J. 139, HI

Digitized by Google
 INDEX. 49

L Page
Page Mohanund Holdar v. Akial Mehal-
Lacon v. Hooper ............... A.c.J. 41n dar ...........................o.c.J. 90
Lady Langdale" Briggs o.c.J. 153, 162 Moodaley "· The East India
Lning i,. Ingham ............ o.c.J. 24 Company ..................... APPX. 13
Lalla Mohabeer Pershad v. Mus• - - - - i , , Morton ............ APPX· 13
samut Kundun Koowar ... o.c.J. 133 Morrison "· l\lorrison ......... o.c.J. 131
Lalla Runseedhur "· Koonwar Rinde Motilal "· Jamnadas, ........... A.c.J. 138
Seree Duth Sing ............ o.c.J, 134 Mountstuart Elphinstone and
Lnmb v. Gunman ....•....•.....o.c.J. 52 another "· Heernchund Bedree-
Lane"· Cotton ............... APPX. 9, 10 chund ..................... APPX. 14, 15
Lnngley 1', Smith ................ o.c.J. 87 Mudhoosoodun Ghosal "· Beckwith
Latimer"· Neate .............•. o.c.J. 155 A.c.J, 120
Laud"· Norman ............... APPX· IGn Muhammed valad Abdul Mulna "·
Laycock v. Pickles ............ o.c.J. 18 Ibrahim valad Hasan and others.
Lecaux "· Eden ............... APPX, 15 A.c.J. 49
Leuw "· Dudgeon ............... o.c.J. 119 Mula"· Girdharlal ............ !,C-J,133n
Lewis v. DaYies .................. o.c.J.157n Murray v. Langford ......... o.c.J. 68
Lloyd v. The General Screw Collier Musleah "· Musleah. o.c.J. 173, 186, 188
Co. . ... ... ... . .. . .. ... . ... . o.c.J. 119 Mussumat Boobun Moyee Debai 11.
Lloyd"· Wait ............... o.c.J. 157n Ram Kishore Acharj Chowdhry.
o.c.J. 140
Mussumut Golab Koonwar i,.
M Collector of Benares ...... A.c.J. 182
Macbeath and Haldimand. APPX, 10,11 N
Maharajah Juggunath Sahaie "·
:i\Iukhun Koonwur ......... A•C.J. 181 Nabob of the Carnatic v. The East
Maitland, The ............... o.c.J. 72,74 India Company ............ APPX. 14
Maltnss "· Maltass ............ o.C,J, 173 Nagalinga Mudali "· Subbirama-
March"· Russell.. ............. o.c.J. 170 rpya Mudali .................. o.c.J. 135
Mark's Trust Deed, In re. o.c.J. 154,157 Nagalutchmee Ummal v. Gopoo
Marriage v. The Eastern Counties Nadaraja Chetty and others.
Railway Compauy ......... CR, CA. 72 o.c.J. 130, 132
Mason "· The Stokes Bay Pier and Nallappi Reddi "· Balammal. o.c.J. 131
Railway Company ......... o.c.J. 106 Naoroji Beramji v. Rogers ... o.c.J.
Marson i,. Polhill............ o.c.J. 164 25, 34, J 77, 178, 180, 181n, I8S,
l\foyor v. Davenport ......... o.c.J. 170 190, 195, 197n
Mayor of Lyons "· The East India N araya~ Babaji v. Gangaram Krish-
Company ......... o.c.J. 24, 31n, 172 ~aji ...••......................A.C.J. 198
McDonough v. Shewbridge. o,c.J, 158n Narottam Jngjivan v. Narsandas
Mersey Docks Case ............ o.c.J. 24 Harikisandas ... o.c,J. 130, 132, 136n
Mohabeer Persad v. Mussnmut Naylor v. Wynch ............ o.c.J. 138
Pranpnttee Koer ............ A.c.J. 103 Neptune, The ............... o.c.J. 72, 74
7 IND

Digitized by Google
50 INDEX,

Page Pago
New Eagle, The ............... o.c.J. 72 Peninsular and Oriental Stenm Nnvi-
Nicholson "· Mouncey ... APPX. 9, 10, 13 gation Company"· The Secretary
Nina, The ..................... o.c.J. 65n of State ........ ................ o.c .r. 45
Ningapa bin Rachapa "· Bhowray Perla, The ..................... o.c.J. 73
Punvutee ..................... A.c ..r. 77 Pewseboye "· Ardaseer Cursetjee
Nobin Chander Sahoo "· Suroop o.c.1. 198
Chunder Doss ............... o.c ..r. 18 Phillips "· Clark ............. o.c.J, ll 7
Nobin Chunder Chuckerbutty "· Phillips"· Edwar1fa: ............ o.c.1. 119
lssur Chunder Chuckerbutty. Phillips v. Evans ........... o.c.J. 155n
0,C,J, 140 PortseR, The.................. o,c.1. 71
Noboo Kristo·Bhunj "· Raj Bul- Prankinsin Paul Chowdry "· Mo-
lubh Bhunj .................. o.c ..r. 17 thooramohan Paul Chowdry.
Noone's Case .................. o.c ..r. 51 0-C,J, 134

Noor Khan Mojum Khan, In re. Praunkisson Mitter v. Sreemutty

CR, CA. 50 Ramsoondry Dossee ......... o.c.1. 133
Normnn "· Johnson ......... o.c.J. 162n Puree Jnn Khatoon "· Bykunt
Chunder Chuckerbutty ... o.c.J. Hi2
0
Q

Ocean, The ..................... o.c.1. 72n Quarrel"· Beckford ............ o.c.1. 81

Ohrloff "· Briscoll. o.c.1. 118, I 19, 120 Queen "· The London and South
Otway v. Ramsay ............ o.c ..r. 24 w est ern Rnil .Co............
O c J. 106 n
Owen"· Nickson ......... o.c.J. 155, 157
R
p
R. "· Bagu valad Owsari ... CR,CA, 30
P. Rachiraju "· Venkatappadu. R. r. Bai Rupa ............... CR.CA, 18
o.c.1. 133 R, V, Balu Baghu ............ CR.CA. 19
Pacific, The ..................... o.c.J. 72 R. v. Bayley ..................... o,c.1. 47
Palk v. Clinton .................. o.c 1. 78 R. v. Curtis .................... .o.c.1. 48
Palmer v. Temple ............... o.c J. 151 R. r. Dipchand Khushul. CR.CA. 30, 70
Papammlll "· Ramaswami Chetti. R. v. Elahee Buksh ............ CR.CA, 93
A.C.J. 181 R. "· Hasan Suleman ......... CR-CA, 19
Parker"· Tootal ............... o.c ..r. 164 R, "· Kalidas Keva} ......... CR,CA. 11
Partridge"· Smith ....... ..... o.c.1. 138 R. v. Kalidas Laldas ......... CR.CA. 66
Patch v. Ward ............ o.c,1. 155, 157 R. "· Karsan Goja ......... CR,CA, I~. I!)
Peacock"· l\fonk ............... A.c.J. 39 R. r. Khoab Lall and others. CR.CA. 55
Peitsch v. (The Uommercial Bank R. "· Moroba NarayBJ.1 ...... CR•CA. 7
Corporation ............... o.c.J. 87, 89 R. "· Murar Trikam ......... CR.CA. 84
Peninsular and Oriental Steam Na- R. "· Nursingh Narain ... CR.CA.106,107
vigntion Company v. Ma1.1ikji Na• R. v. Pixley .................... .o,c.1, 27
saminji Padsha. o.c.1. ll4, 117, 126 R. "· Ruma valad Shivappa ... CR.CA, 84

Digitized by Google
 INDEX. 51
Page s
R. r. Wright ................ o.c.J. 24 Page
Rndhanath Dutt t'· Gobind Chunder Sandon v. Hooper .. ........ ..A,C.J, 114
Chn.tterjee .................. o.c,.J. l 7 Savil 11. Bruce . .... ... ..........o.c.J.162n
Raghunath t'· Narar.i .......... ,A,C.J. 124 Scott f.' , The London Docks Com-
Raja Haimun Chull Sing r. Kor- pany ...........................o.c,J, 119
mer Gunsheam Sing ...... A.C,.J. 181 Secretary of State v. Kamachee
Rajah Gopal Singh Deb r. Gopal Boye Sahaba ............ o.c .J. 24, 34n
Chunder Chuckerbutty and an- Secretary of State v. The Bombay
other.............. .. ........ A.C.J, 96 and Shipping Company ...APPX, 16n
Rajah of Cochin, The ......... o-c.J. 66 Shaik Abdul Amlity v, Nasarvanji
llaja of Shivagunga's Case ... o.c.J. Cawasji ................ ........o.c.,. 13
130,132,135 Shaponessa Bibee v, Kaminee Bi-
Raja Ram Tewary v. Luchmun bee ........................... A,C.J. 61
Pershn.d........ ........ ... .. o.c.J, 134 Sheikh Amjud Ali r,. Syud Ali
Raman Ammal r. Subhan Annavi. Buksh .... .. .. .. .... .......... o.c.J. 17
A,C,J, 181 Sibchunder Doss !.'. Sibkissen Bon-
Rambux Chittangeo v. l\Iodhoo- nerjee .............. .... O,C ,J, 173, 190
soodun P. Chrowdhry and othe~s Sidaway r. Hay ............ o.c.J, 89, 91
A,C,J, 123 Simmonds 11. Great Eastern Rail-
Ramchund v. Class ............ o.c ..1. 8 way Company ............... o. c.J. 164
Ram Gopal Roy v. Nundo Gopal Sivanananja P. Sethurayar v. Mut-
Roy ...................... ... .. A,C,J. 142 tu R. Sethurayar and others.
Ramji "· Chinto ... A.C.J. 108, 157 219 A,C,J, 162, 167
Ram loll Thakoorseydass v. Soojam- Slave Grace, The ............ o.c.J. 173
nul Dhon<lmull ............ o ,c,J. 89 Smith v, Pilkington............o c.J. 81
Ramsbottom"· Wallis...... o.C.J, 80 Soomarkhan Mahomed and Co. v.
Rann r,, Hughes ............... o.c.J. 19 The Steamer Sir James Rivett-
Regular Appeal No. 17 of ·1863. Carnac ........................ o.c.J, 68
A.C.J. 193 Soondur Koomaree Debreea v. Gu-
- - - - - 1 5 ofl86G.A.c.J. 182 dltkur Pershad Tewarree .. .A.C.J, 182
Richardson, Ex parte, re Hodgson Sparrow "· Oxford and Wolver-
o.c.J. 171 hampton Rail. Co .......... o.c.J. 103
Rooke r,, Lord Kensington. o.c ..J. 153, Special Appeal No. 153 (Certified
160 List) .... .......................A.C.J. 182
Ruding l'. Smith ...............o .c.J. 173 - - - - - - N o , .142 of 1859
Rughia v. Dhurma Jhuttoo. A,C.J. 220, (Madras) .. ... ... ........ ... ..A.C,J, 131
223 Nos. 2317 and 2818
Rungama r,. Atchama ......... o.c.J. 131 (Certified List) . ... ........... A,C J.151n
A.C.J. 163, 182 ---2813 (CertifiedList)A.C,J, 195
Rutunbaee, wife of Framji Bomonji ----3405 ,, A.C.J. 124
Bhundari, v. BomonJi Manockji ----3652 ,, A,C,J, 124

....
Bhundari .... .... .. ... ........ o.c.J. 190 --3833 A.C,J. 195
Samuel v. Nettleship ..... .o.c.J. 57, 58 --3907 A,C,J, 133

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52 INDEX.

Page Pago
Special Appeal No. 23 of 1861 ...A.c.J. Stalkartt t•. Mackay .........o.c.J. 70
148 Stone v. Cartright ........ .... APPX. 13
----127 of 1863 .... ..... A.c.J. 155 Storm v. Homfray ..... ..... . . o.c.J. 190
----228 ,, ..... ... .A.c.J. 124 8trode v. Blackburne .........o.c.J. 155n
----278 ,, ........ .A.C.J. 44n Sudanund Mohapattur v. Soorjo
----,303 ,, ...A.C.J. 218, 222 Monee Debee ............... A.C.J. 1G4
----507 ,, . ........A•C.J. 182 Syed Ali Saib v. Sri Raja Saniya-
----619 ,, .. .A.C.J. 220, 223 siraj Pedda .... . ...........• . o.c J, 18
----211 of 1854 ...A.c.J,65, 67, 68
- - - -·663 ,, . ... ... ..A,C.J, 198 T
----773 ,, A.C.J. 141 143, 144 Tanfield v. Irvine ............... o.c.J. 81
----812 ,, .... .. .• A,C.J. 138 Tanner v. Smart ............... o c.J. 18
825 ,, .........A.C.J. 198 Temu]ji v. lchhalal. ........... A.C.J, 138
----956 " ·· ·· ..A.C.J, 136n Thukoo Bnee Bhide v. Rama Baee
----971 " ........ .A.r;.J. 148 Bhide ................. . .... A.c .J,188,i
----974 " ..........A,C.J. 148 Timmi Reddy v. Achamma ... o .c .J . 133
-.----1041 " ..... ... .A.C.J. 132n Trustees of Birkenhead Docks v.
----165 of 1865 .... ... ..A.C,J. 1~2 The Birkenhead Dock Company.
----367 ,, . ,A,C,J, 220, 223 O,C,J. 161
----.369 ,, A.c.J. 181, 182, 190 Turner i,, Blamire .......... . .o.c.J. 160
----526 of 1866 . .... .. :.A.C.J. 141 Turner v, The Post Master General.
----534 ,, .... . .. .. A.C.J. 152 CR.CA. 30
...___--241 of 1867 .... . ....A.c.J. 160 Turquand v. Marshall .. ... .o.c.J. 171
----323 ,, .... .....A.C.J. 182
----404 ,, ........ .A. C.J. 138 u
----439 ,, A.C.J. 220, 222, 223
----567 ,, .... . ....A.C·J, 21n Umaji valad Manaji PatH v. Hari
- ~ - 43 of 1868 ..... ....A.C.J. 80 Ramchandra Kullrnrl)i .. ... .A.C,J. 184
- - -- 229 ,, . ....... .A,C . .1.136n Unide R11jahu Bahadur v. Pemma-
- -- -279 A,C.J.197, 198, 199 samy Naidoo .... ... ........ A.C·J, 49
- - 3 8 4 ,, " .. .. ... ..A.C,J• 189 Unity, The . . ... ... .. ... ... .....o.c.J. 71
Spooner v. Hurkissondas o .c.J. 8, 14n Usher. Ex parte ........ .o.c.1.47, 50, 53
---v. Juddow ...o.c.J. 14, 41n, 53n
Spratt ii. Jeffery ....... ......•. o c.J. 151
V
SreeBrijbhookunjeeMuharaj v. Sree ·
Gookoolootsaojee Muharaj. A,C,J. Vakhat ii. Jaga .. .. ......... .. A.c.J. 125
181, 187 Vallinayagnm Pi!)ai "· Pachche.
Sreemutty Rabutty Dossee t'. Sib- o.c.1. 130
chander Mullick ............ o.c.J. 132 Vansandau 11. Brown . ........ o .c.J. 166
Sreemutty Soorjeemoney Dossee v. Varden Seth Sam v. Lnchputty
Denobundoo Mullick. o.c.J. 131, 132 Royjee Lallah .. .. .... .. .... .o.c.J. 3111
St. 'l'homas's Hospital v. Charing Venkata Rungay Pillay v. The
Cross Railway (;ompany ... o.c.J, 103 East India Company .. .. .. o,c.1. 11n

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 INDEX. 53
Pago Page
Yilliappcn Chctty 17, Nootoo. o .c.J. 18 Webb t:. Ilyng ................. o.c.J. Hil
Vinayek Anundrao 17, Luxumee- Wehbe 11. Lester ............ o,c.s 31n
baee ........................... o.c.J, 133 Wharton, The .................. o.c.J. 71
Vine, E:r parte, re Hooper ...,o,C,.J, lil Whitfield v. Lord Despenser. APPX, 9, 10
Virbhndrachri 17. Kuppammal. Wildes 17, The Attorney General of ·
A,C,.J, 131 'l'rinidnd ..................... o.c.J. 24
Virbudru llurrybudru 17, Baee William Herbert's Case ... o.c.J. 25,48
Ranee an<l others ...... A,C,.J .181, 188n Williams v. Jones ............ o.c.s. 22
Viscount Canterbury 17, The A ttor._ Williams 17, Williams ......... o.c.J. 138
ney General. o.c.J. 24 ; APPx. t!, 9 Wilson 17. lforryat ............ o.c.J. 173
Yishvarnith Gangaclhar 17, KrishQaji Wilson 17, The Natal Investment
GnQesh .................... .o.c.J. 131 Co ........ . .......... ........ .o.c.s. 87
Woodcock v. Mayne ....... :.o.c.J. 79

w y
Walker 17• The York and North Yarakalamma Anakala r. Naramma
Midland Rail. Co .......... o.c.J, 119 A,C,J. 202
Wallwyn 11. Len ............... o .c.J, 155n York"· Allen .................. o.c.s. 51n
Wardens of Nossa Senhora 11,
Bishop Hartmann ......... o.c.J. 42n
Watngtt, The ............... o.c.J 7'2n, 73
z
Watson, E:r parte .. ......... .o.c.J. 171 Zodiac, The ..................... o.c.s. 70

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 AN INDEX
OF

JURISTS, TEXTBOOKS; AND WORKS 0~, AUTHORITY

REFERRED TO.

A Page
Page Comyn, C. B ............. o.c.J. 27, 51
Abbott, Shipping..... ....... o.c.J. 70n --Digest ... o.c.J. 24, 25, 48n, 50, 51
Abinger, L ................ . . .. .. o.c.J, 20 Coote, Mortgages o.c.1.SOn; A.c.J. 116
Addison, Contracts ............ A.C.J, 128 Cottenham, L ............... :.o.c.J. 131n
Angell, Carriers . ..... ......... o.c.J. 121 Cumin's Civil Law . ........ o.c.J. 34,.
Austruther, Sir A. . ..... . .. o.c.J, 186,
18i, 188, 189, 190, 194, 195, 196, D
199, 201
B Daniell's Chancery Practice. o.c.J, 131
Dattaka ChandrikL ... ....... A·C.J· 186
Bacon's Abridgment ... o .c.J. 24, 25, 50, Dattaka Darpan ............... A.C.J. IS8
51
Dattaka Mimam:a .....•......... A.C.J. 182
Bell's Commentary ... . ........ o.c.J. 48n De Barros's Asia ......... o.c.J. 32.n, 33n
:Blackstone's Commentary. o.c.J. 20, 22 DeCouto's Asia . ... .. ... o.c.J. 32n, 33n
Bombay Government Records. A.C,J. 6 Del Rio and Rodriguez, Civil Law
:Bombay Revenue Selections. ,A.C.J, 2 of Spain .............. ......• o.c.J. 48n
Bramwell, B •.. .... .. ...... ... . o.C.J· 144 Digest ........................... o.c.J. 34
:Broom's Legal Maxims ...... o.c,J. 48n Domat's Civil Lnw by Cushing.
Bruce's Annals ......... o.c.J. Ii2, 178n o.c.J. 34n
Buller, J, .................... .. .. o.c.J, 189 Duff's (Grant) History of the
Burroughs and Gresson's Irish Marathas ..... .......... o.C,J. 33n, 49n
Equity Pleader ............... o.c.J. 80
Burton's Real Property ..... .o.c.1. li3
E
Byles, J ............... ..... . .... o.c.J. 143
Earle, C.J ........... . .......... o.c.J. 143
C
East, C.J ...................•.. o.c.J. 140
Campbell, L ................... o.c.J. 53n Elberling's Hindu Law ...... A.C.J. 146
Chitty, Contracts ... . ..... o.c.J. 19, 143 Eldon, L . .................. o.c.1. 80, 81
Clark's Rules and Cases .....•. o.c.J. 186n Ellenborough, L. . .. . ........... APPX. 9
---Colonial Law .........o.c.J. 182n Elphinstone's History of India.
Cockburn, C.J ................ o.c.J. 24 o.c.J. 33n, 49n
Code Napoleon .................. O•C,J, Z4 -----Report on the Territories
Coke, L . ........ ... ... ....... o.c.J. 48, 50 conquered from the Peshwas
-Littleton ............ o.c.J, 48, 104 O.C.J. 49n
Colvile, C.J.. .. ........ .o.C.J. 173n, 189 English Cyclopredia of Arts and
Compton, C.J . ..................o.c,J. 194 Sciences ..................... ·o.c.J. 12

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 INDEX. 55
Pr,ge L.
Erskine's Lives of Buber and Hu- Page
muyun .. .. . ......... ....... ... O,C . J, 32n Langdale, M. R . ..... ..... .. .. o.c.J. 157
Eyre, C.B. o.c.J . 52, 53, 54; APPX, 9 LeMessurier's .Report on the Foras
Lands ........... ..... ........ o.c.J. 14
F Lewin, Trusts .................. o.c.J. liO
Fisher, Mortgages ............ o.c.J. 155; Lindley, Partnership ....... .. o.c.J. 87
A,C.J, 115 Lushington, Dr. o.c.J ..65, 66, 67, i2, 74
Fryel''S Travels. o,C .J. 182n, 185, 191n, Lyndhurst, L .. ... . .. .......... . APPX. 8
192n
Furlong's landlord and LTenant. M.
o.c.1. li3
McCulloch's Commercial Diction-
G
ary ............. ...... ........ o.c.1. 124
Grady, Hindu Law of Inheritance. Mackeldeii Systerr,a .. ........ ..o.c.J. 34n
A,C ,J. 146, 210 Mackintosh, J .. . ........ . ... .o.c.J. 13, 14
Grant, J... .. .................... o.c .J. t 89 Macnaghten, Sir W. H., Hindu
Grant, M.R . ........ .... ...... o .c.J. 78 Law .. ... ... ... ... .. . .... ...... o.c.J. 131
Grey, C.J. .. ................. . .APPX, 9 A.C.J, )63,186
Macpherson, Mortgages . ..... A.C.J. I 16
H
Madox's History of the Etchequer
Hitrdwicke, L ... ...... .. ........ o.c.J. 24n o.c.J. 48
Hertslet ...... . .. .. ... .. ...... ..o.c.J. 65 l\faine's Ancient Law .. .... o.c.1. 178n
Hill, J .... .. .... ..... .. .......... .O,C,J. 155 Malkin, Sir B .. ....... ..... .. o.c.J. 194
J, Manners L. . .... ... ..... . . o.c.1. 47, 53
Mansfield, L. o.c.J. 173n; APPX. 10
Jackson, J ...... .o.c.J. 189,198,199; Manu o.c.J. 49n ; A.C.J. 162, 164, 188
CR, CA, 93, 94 ; APPX. 2n
210
Jagannath's Digest ...... ..... o . c .J. 49n Mayne's Commentary on the Indi-
A,C•J, 165, 192, 210.
an Penal Code .. ..... . .... CR. CA. .55
Jones, Sir Wm ..... ...... ..... o.c.J. 27n Mill's History of India . . . o.c.1. 49n

K Mitakshara.. ....o.c.1. 131,133,134,135

A.C. J .131, 146,147,163,182,185,188,192
Karr, J ......................... CR.CA. 93 Moore, Sir F ........ . .. ........ o.C.J. 51n
Kutyuyana ...... o.c.J. 49; A.C.J. 186 Morley's Digest o.c.J. 14n, 43n,
Keating, J ........ ............. . o .c.J. 143 49n, 67, 71n, 80, 91,133, 173,
Kemp, J. . ................ .... CR.CA. 93 177n, 183, 186n, 187n, 11:lSn
Kent's Commentary . ... ..o.c.1. 25, 48n; A.C.J . 163n, 164, 182
A. C.J . 128; APPX. 8
Kenyon, L ................. . .... APPX. 14 N.
Kindersley, V. C . ..... ..... .. o.c.J. 158
Kinderslt'y, ManuRl of the Law of Nichol, Sir J ... ... ...... .......... o . c .J.
Evidence ..... ....... ..... ..... A.c.J. 38 Norton, Evidence .. ..........A.c.J. 38,39
,2
King, L . . ............ ........... o.c.J . 155 Nottingham L . . . ....... . ... ..... o .c .J. 79

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 56 INDEX.

O. Page
Page Steele, Hindu Castes ... A.c.1. 163, 168,
O'Loglllen, M. R .. ........... o.c.1. 4i 182, 192

P. Stephen's Commentary .. . o.c.1. 22, 31,

Stokes' Hindu Law Books . • o.c.1. 130,
Paley, Convictions ............ CR.CA. 30 A,C,J, 146
Parker, C. B. .. .......o.c.1. 27, 48, 50 Story J.
-Report .. ..... ...... ..o.c.1. 24, 25 ---Contracts . ..............A.c.1. 128
Patteson, J ......... .. ........... o.c.1. 58 -Equity Jurisprudence ... A.C ,J . 65
Paulus, Julius .. .. ........_...... o.c.J. 34 --Constitution of the United States
Peacock C. J. o.c.1. 140, A.c.J. 134; APPX 8
CR.CA. 93, 97; APPX. 21 Stowe~!, L ....... o.c.1. 70, 71,74, l73n
Peel, C. J. o.c.J. 50, 69, I 73n, 189, 190 Strange, Sir T., Hindu Law . ....•.oc ..1.
Pepys, M. R ................... cLc.1. 80 133, 13-1,
Perry, J. . ......... .. o.c .J. 8, 196, 198 A.C,J. 146 182, 191, 210
Phear, J. o .c.J. 87, 161; CR.CA. 93, Strange, T.; L., Manual of Hindu Law
Phillimore's Roman Private Law A .C,J. 131, 146
O,C,J, 19
Ph1 'll'ps
1, E~,1·dence .... ........... Ac J 136n Stuart, V. E. . ...........o.c.:r. 155, 157
. J
P ow1s, Sugden, Sir G... ..... ....... .. .. o.c.J. 47
......... .. .... .. ........APPX. 10 p 199
P rideaux, J udgments ..... .. ..o.c.1. 24 - - -Vowers .... ............. .o.c.:r.
- -- d
en ors an d p h
urc asers ...o.c.J.
Prinsep's Criminal Procedure Code 15511
CR.CA. 63n

R. T.
4 Taylor, Evidence .. .. ... ..... A.C.J. 39, 89
Ras Maia........................ A.C.J.
Robinson, Sir C. o.c.J .72,74 Thudompson, Hin Law .... .. A.C,J. 146
Thurlow, L ..... .......... .. .. o.c.1.78,79
s. Tindal, C. J . o.c.1. 166 ; c:a.cA. 97
Tripier, Code, Civil. .... .. .....o.c.J. 48n
Samskara Kaustubha ......... A.c.1. 192 Turner, L.J • .........o.c.1. 79, II8, 130
Saunders Institutes of J ustinian
0,C,J. 34n v.
Sausse, C. J. o.c.J. 18, 22, 24, J.90, 198
Snvile ............. .......... ....o.c.:r. 51 Vasishthn ........................ A.c.1. 186
Seton,. J ........ .... ..... ..o.c.1. 188,189 Vyavahara Koustabha .. .A.C,J. 186, 190
Seton on Decrees .. .. ...... .....o.c.J. Sin Vyavaharn Mayukha ........ . o.c.1, 49n
A,C.J. 146, 147, 182, 185, 186,
Shadwell, V. C ..................o.c.1. 155
187, 190, 192
Shore, Sir J. .. ................... A.c.:r. 3
Shower, Sir Bartholomew.... .. o.c.1. 27 w.
Smith, J ........ .................A.c.1. 106
---Antiquities .. .. ... ..... .. .o.c.1 .34n Warden's Report on Land Tenures
---Grecian and Roman Biogra- O,C,J. 178n, 185n
phy. O . C .J'. 34n Wells, J . .... .......... .. ... .....APPX, 2n

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 INDEX. 57

Page. Page.
West, C. J ......................o.c.s. 27 Williams, J ...................... o.c.s. 143
--E1tents .................. o.c.s. 2!l, 27 Williams, Colonel Monier, Memoir
West and Buhler's Hindu Law of of the Zilla of Baroache A.c.J. 124,
Inheritance .................. o.c.s. 130 125
A,C.J, 192 Wood, V. C. . ................. o.c.J. 160
Westlake, International Law o.c.s. 89
Wigram, V. C .................. o.c.s. 156
Y.
Wilde, C. J.. ... .... .. ........ o.c.s. 24n
Willes, J .......A..C,.J. 106 ; APPX, 10 Yajnavalkya ...... . .............. o.c.J. 48
Williams, Executors o.c.s. 24, 25, 50, A.C.J. 185, 186, 192
199 Yardley, C. J .............o.c.J. 190, 196

8urn

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 Eaikhos-ru J. Rustomji
Bar··at-Law , ·1
Lahore.

Kaikhosru J. Rus!QmJi,,
Bar-at-Law,
Lahore.

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