'Li^hy (Hotmli Cam ^rtjnnl SItbratg Cornell University Library KF 2880.W39.3 1874 Full bench rulnas of the High Court at 3 1924 024 983 367 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024983367 FULL BENCH RULINGS. ^npfUmtttiM f olittnt U the §(»g»I ^m §«^dt;ti«. FULL BENCH RULINGS OF THE HIGH COURT AT FORT WILLIAM, FROM ITS INSTITUTION IN 1862 TO THE COMMENCEMENT OF THE BENGAL LAW KEPORTS. iStiitei iB L. A. GOODEVE, Middle Temple, AND J. V. WOODMAN, Middle Temple. 3Keporteir bg G. C. SCONCE, Inner Temple. GASPBE GREGORY, Innee Temple. C. P. HILL, Inner Temple. RAJENDRA MISSRY, Pleader, High Court. M. L. SANDEL, Pleader, High Court. CALCUTTA : §rmM ^ ipublishfid for ih len|al ^owndl oj f attr l^yojiting BY THACKER, SPINK & CO., 5, GOVERNMENT PLACE. Bombay : THACKER, VINING AND CO. London : W. THACKER AND CO., 87, NEWGATE STREET. 1874. CALCUTTA: rUINTED BY TIIACKEK, SPINK AKD CO. TABLE OF CASES REPORTED. Abdoor Ruhman v. Kisto Lall Ghose Abdul Haye v. Nawab Raj .... Abhay Gobind Chowdhry v. Rani Swarnamayi . Afzal Ali (Sheikh) v. Lala Gournarayau , Ajoodhia Persad v. Mussamut Emambandee Begum Ananda Chandra Majumdar v. Gobardhan Khan Ananda Mayi Dasi v. Patit Pabuni Dasi Anandamayi Dasi (Mussamut) v. Purna Chundra Roy . Annada Gobind Chowdhry v. Rani Swarnamayi . Anonymous case . . .... Asmut Kooer (Rani) v. Maharani Indurjeet Kooer Baboo Chintamun Sing v. Mussamut Uma Kanwar Baboo Kooldeep Narain Singh v. Mohadeo Singh Baboo Luchmipat Sing y. Mahomed Mooneer Banee Madhub Ghose v. Thakoor Doss Mundul Baroda Soondree Dassee, In the matter of the Petition of Bharat Chunder Dutt v. Dengar Gope . Bharat Chundra Mazumdar v. Ramgunga Sen . Bijoi Kesal Roy Bahadoor (Rowar) v. Samasundari Bindabun Chunder Sircar v. Roberts Bipro Doss Gossain ». Chunder Seekur Bhuttacharjee . Bissessur MuUick v. Maharaja Dhiraj Mahatab Chund Bahadoor Bissumbhur Shaha, In the matter of the Petition of Biswambhar Misser v. Ganpat Misser Brojender Coomer Roy, In the matter of the Petition of Chintamun Sing (Baboo) v. Mussamut Uma Kunwar Chunder Kant Bhuttacharjee, In the matter of the Petition of Chunder Madhub Chuckerbutty v. Ram Coomar Chowdry Collector of Pubna v. Romanath Tagore Collector of Rungpore, In the matter of the Petition of DaCosta, J., In the matter of the Petition of Been Dyal Saboo v. Radha Muddun Mohun Doss Digumburee Dabee, In the matter of the Petition of Dinanath Bose v. Kali Kumar Roy' Docowri Kazi, In the matter of the Petition of . Doorga Dass Dutt, In the matter of the Petition of Doyamoyee Chowdrainee v. Bholanath Ghose Page 598 911 7 519 725 457 18 506 7 886 1003 505 559 32 588 609 691 362 172 1004 note 718 967 484 5 728 505 App. 43 553 630 655 432 927 938 364 517 511 592 TABLE OF CASES REPORTED. Fakir Rawot v. Sheikh Emambaksh Farzhava Banu (Mussamut) v. Mussamut Azizunnissa Bibi Gaurhari Gui v. Peari Dasi Gholam Mohamed v. Asmut Ali Khan Chowdhry Girish Chandra Bose v. Kali Krishna Haldar Girishchundra Lahury v. Fakir Chand Gobind Chunder Bhuttacharjee v. Sreenath Mookerjee Gobind Chunder Mookerjee v. Kalla Gajee Gobind Koomar Chowdry, in the matter of the Petition of Gobindmani Dasi v. Shamlal Bysak Gobindo Mahapatro v. Gopeenath Pundit Gogaram v. Kartick Chunder Singh Gooroodoss Roy v. Bishtoo Churn Bhuttacharjee Gooroodoss Roy v. Ramnarain Mitter Gopal Chunder Roy v. Gooroo Doss Roy Gridhari Lai Roy v. Sundar Bibi Gumani Kaji v. Harihar Mookerjee Gungadhur Roy v. Wooma Soonderee Dassee Gunga Doss Dutt v. Ram Narain Ghose Gupinath Sing v. Sheo Sahay Sing Gurdi Misree v. Maharaja Maheswar Buksh Sing Gurdial Mundar v. Raja Teknarayan Sing Gurudas Akhuli v. Gobin Naik Hameedoodeen (Syed) v. Syed Moulvie Rayeooddeen Ahmed Hattee Lall Bhuggut u.TRadha Muddun Mohun Doss Heera Monee Dabee v. Koonj Behary Holdar Hurro Chunder Roy Chowdhry v. Sooradhonee Debia Hurronath Roy v. MaherooUah MoUah . Hurronath Roy v. R, W. Scott . Hurryhur Mookerjee v. Mohesh Chunder Banerjee Indrajit Koonwari (Maharani) v. Chokowari Saha Ismaid Kooer (Rani), in the matter of the Petition of Iswar Chundra Das v. Nittianand Daa Jan Ali Chowdhry v. Nittyenund Bose . Jankee BuUub Sen, In the matter of the Petition of Janoki Singh Roy v. Kaloo Mundul Jodoonath Chowdhry v. Radhomonee Dossee Jonardun Aoharjee v. Haradun Acharjee Joneep (Sheikh) v. Sheikh Noboo Joti Lai (Lala) v. Mussamut Durani Kower Joymungul Singh (Rajah) v. Bebee Saeedun Joynarain Pattur v. Russick Mohun Banexjee Kalikumar Chowdhry v. Ramdas Sbaha . Page 35 17.5 48 974 538 503 361 note 626 714 48 581 1022 628 628 714 note 496 15 672 625 72 13 166 492 351 927 App. 8 985 618 636 623 1 1007 490 972 716 889 643 1020 691 67 613 744 48 TABLE OF CASES REPORTED. Vll Kally Narain Eoy Chowdhry v. Sreemutty Sadrun Nessa Kliatoon Kangalee Chum Ghosal v. Bonomalee MuUick Kanhya Lall v. Kadha Churn .... Kanya Lall Pundit v. £,adha Muddun Mohiin Doss Kashi Nath Chatterjee v. Chandi Charan Banerjee Kattemonee Dossee v. Ranee Monmohinee Dabee Kearnes, D. H., v. Bhawani Charan Mitter Khaja Shurwar Hossein Khan, in the matter of the Petition of . Kirteebash Mayetee v. Ramdhun Khoria Komul Kissen Surkhul v. Bissonath Chuckerbutty Kooldeep Narain Singh v. Luckhun Singh Kooldeep Narain Singh (Baboo) v. Mohadeo Singh Kowar Bijoi Kesal Roy Bahadur v. Samasundari Lachmipat Sing v. Mahomed Mooneer . Laknarain Singh v. Mussamut Ranee Mankoer . Lai Kower (Mussamut) v. Baboo Jaikaran Lai . Lala Joti Lai v. Mussamut Durani Kower Lall Doss V. Jamal Ali ..... Lalmohun Holdar v. Mahadeb Katee Leake v. Daniel ...... Luchmee Purshad Doobey v. Mussamut Kallasoo Machooram Sen ». Gaurhari Gui .... Madhobee Dossee, In the matter of . . Madhusudan Sing v. The Collector of Midnapore Magistrate of Maldah v. Bebee Gobbunnessa Mahabeer Persad v. Mussamut Pranputty Koer Maharaja Maheswar Bax Sing Bahadur v. Bhikha Chowdry Maharanee Wuzuroonnessa v. Bebee Saeedun . Maharani Indrajit Koonwari v. Chokowari Saha . Maheswar Bax Sing Bahadur (Maharaja) v. Bhikha Chowdry Mahi Sahu v. A. J. Forbes .... Mahomed Akil v. Asadunnissa Bebee Mahomed Hossein v. Sheikh Afzul Ali . Maluk Chand Surma v. Karlu Chandra Surma . McDonald v. Munar Roy ..... Mirza Himmat Bahadijr, In the matter of the Petition of Misri Kooer v. Maharaja Maheswar Buksh Sing Modhoo Dyal Singh v. Kolbur Singh Mosoodun Lall v. Bekaree Sing .... Mudun Mohan Roy v. Gourmonee Goopto Murder Kooer v. Maharaja Maheswar Buksh Sing Mussamut Anandamaji Dasi v. Puma Chandra Boy Mussamut Farghara Banu v. Mussamut Azizunnissa Bibi Page 610 709 662 927 383 353 54 720 658 App. 5 917 559 172 32 633 67 67 901 909 970 620 48 587 199 630 709 403 613 1 403 500 774 App. 1 399 358 429 13 1008 602 31 13 506 175 VIU TABLE OF CASES REPORTED. Mussamut Lai Kower v. Baboo Jaikavan Lai Mussamut Velaety Begum v. Rugghonath Persad Muttylall Sen Gwyal v. Deshkar Roy Nasii-uddin Kban v. Indronarayan Chowdhry Nassir v. Chunder .... Nilmani Burnick v. Puddo Dochan Chuckerbutty Nobbo Kissen Singh v. Kaminee Dassee Nobin Chunder Chuckerbutty v. Guru Persad Doss Nund Kishore Doss Mohunt v. The Maharaja of Burdwan Parbati Charan Mookerjee v. Rajkishna Mookerjee Phillip V. Shibnath Moitro Piziruddin v. Madhusudan Pal Chowdhry Poulson, John, u. Madhusudan Pal Chowdhry Proso'nno' Coomar Paul Chowdhry v. Koylash Chunder Paul Chowdhry Prolab Chunder Chowdhry v. Brojololl Shaha Pulin Behari Sen v. Messrs. R. Watson . Purnima Chowdrain v. Nittanand Shah . Queen v. Boodhooa . . . . Queen v. Elahi Bax .... Queen v. Godai Raout .... Queen v. Gorachand Gope Queen v. Khyroolla . . . . _ Queen v. Lalchand Kowrah, Chowkeedar Queen v. Mussamut Zamiran Queen v. Ramoharan Kairi Queen ». Sheikh Bazu .... Radha Binode Chowdhry v. Digumburee Dossee Radha Binode Misser, In the matter of the Petition of Raghu Ram Biswas v. Ram Chandra Dobay Raja Ram Tewary v. Luchmun Persad . Rajah Joymungul Singh v. Bebee Saeedun Rajkissen Singh, In the matter of the Petition of Rajkristo Roy v. Dinobundo Surma Rambux Chittangeo v. Modoosoodhun Paul Chowdhry Ram Kanth Chowdhry v. Bhubun Mohun Biswas Ramnarayan Banerjee v. Jaya Krishna Mookerjee Kamprasad Hazra, In the matter of the Petition of Ram Sahai Sing v. Sheo Sahi Sing Ramsundar Poramanick v. Prasanna Kumar Bose Ram Tewary (Raja) v. Luchmun Persad Ranee Surnomoyee v. Luchmeeput Doogur Rani Asmut Kooer v. Maharani Indurjeet Kooer Rani Ismaid Kooer, In the matter of the Petition of Page 67, 747 774 367 951 379 349 1008 947 162 21 75 101 759 638 904 3 869 459 436 443 App. 11 417 521 488 750 947 730 34 731 613 605 360 675 25 70 426 492 382 731 694 1003 1007 TABLE OF CASES REPORTED. IX Page Sarifunnissa I'. Sheikh Inayat Uosseia . . . . .415 Shaboo Majee v. Noorai Moollah ..... 691 Shahabooddeen v. Futteh AH ..... . 645 Shama Chm-n Chuckerbutty.j). Bindabun Chunder Roy . . . 892 Sheikh Afzal Ali v. Gouvnarayan ...... 519 Sheikh Joiieep o. feheik Noboo ...... 691 Sitaram Sahu v. Mohan Mandav ..... 345 .Sonatan Ghose v. Moulvi Abdul Farar ..... 109 Soroop Chunder Hazra, In the matter of the Petition of . . 938 Soudaminee Dassee v. Moharaja Dheraj Mahatab Chand Bahadoor . 585 Sreenath Ghosal ». Bissonath Ghose . . .. . App. 10 Sreeputty Koy v. Loharam Roy ...... 687 Sriongo Kooer v. Maharaja Moheswar Buksh Sing . . .13 Subjan Ostagar, In the matter of the Petition of . . . 531 Surnomoyee (Ranee) v. Luchmeeput Doogur .... 694 Surwar Hossein Khan v. Shahzada Gholam Mahomed . . . 879 Syed Hameedoodeen v. Syed Moulvie Rayeooddeen Ahmed . . 351 Thakooranee Dossee v. Bisheshur Mookefjee .... 202 Thakoor Chunder Paramanick, In the matter of the Petition of . 595 Velaety Begum (Mussamut) v. Rugghonath Persad . . . 747 Watson, R., v. The Government . . . • .182 Wise, J. P., V. Rajkrisna Roy ...... 541 Wuzuroonnessa (Maharanee) v. Bebee Saeedun . . . .613 LIST OF CASES REPORTED IN THIS VOLUME AND REFERRED TO IN THE FIRST TWELVE VOLUMES OF THE BENGAL LAW REPORTS. Ajoodhia Persad v. Mussamut Emambandee Begum, 2 B. L. R., App., 38; 3 B. L. R., App., 36 ; 7 B. L. R., 154; 12 B. L. R., 84. Baboo CLintamun Sing v. Mussamut Uma Kunwar, 2 B. L. R., A. C, 250, 251 ; App., 21 ; SB. L. R., 317, 322, 330. Baboo Kooldeep Narain Singh v. Mahadeo Singh, 1 B. L. R., A. C, 124, 126; 2 B. L. R., A. C, 124; 5 B. L. R., 534, 542, 543, 544. Banee Madhub Ghose o. Thakoor Doss Mundul, 7 B. L. R., 722. Bipro Doss Gossain v. Chunder Seekur Bhuttacharjee, 3 B. L. R., App., 34; 4 B. L. B., F. B., 104; 7 B. L. R., 705; 10 B. L. R., 103, 104, 112, 362, 363. [App., 25. Bissessur Mullick v. Maharaja Dheraj Mahatab Chund Bahadur, 2 B. L. R., Biswambhar Misser v. Ganpat Misser, 4 B. L. R., F. B., 43, 45. Collector of Pubna v. Romanath Tagore, 11 B. L. R., 11. Digumburee Dabee, In the matter of the Petition of, 6 B. L. R., 638. Doorga Doss Dutt, In the matter of the Petition of, 11 B. L. R., 372. Gholam Mahomed v. Asmut Ali Khan Chowdhry, 2 B. L. R., A. C, 268 ; 3 B. L. R., A. C, 78, 81 ; 4 B. L. R., F. B., 60, 61 ; App., 90; 6 B. L. R,, App., 26. Girishchundra Lahury v. Fakir Chand, 11 B. L. R., 60. [150, 218. Gobind Koomar Ghowdry, In the matter of the Petition of, 1 B. L. R., A. G, Gobindmani Dasi v. Shamlal Bysack, 1 B. L. R., A. C., 28; 3 B. L. R., A. C, 197; 5 B. L. R., 513, 516, 518; 6 B. L. R., 748; 9 B. L. R., 27. Gooroodoss Roy v. Ramnarain Mitter, 3 B. L. R., App., 139; 9 B. L. R., 435, 438 note, 446, 451, 454. Gridhari Lai Roy v. Sundar Bibi, 8 B. L. R., 468. Gumani Kazi v. Harihar Mookerjee, 2 B. L. R., P. C., 26; 3 B. L. R., App., 32; 12 B. L. R., 60, 63. Gunga Doss Dutt v. Ram Narain Ghose, 12 B. L. R., 494, 497, 498. Gupinath Sing v. Sheo Sahai Sing, 2 B. L. R., A. C., 235; App., 7 ; 3 B. L. R., A. C., 2; App. 141 ; 11 B. L. R., 308, Gurdial Mundar v. Raja Teknarayan Sing, 10 B. L. R., 119. Heera Monee Dabee v. Koonj Behary Holdar, 8 B. L. R., 566, 577. Hurro Chunder Roy Chowdhry v. Sooradhonee Debia, 1 B. L. R., A. C, 149, 150, 151 ; 10 B. L. R., 291. Hurronath Roy v. MaherooUali Mollah, 3 B. L. E., App., 114. XU LIST OF CASES KEFEKEED TO Jan All Chowdhry v. Nittyenund Bose, 8 B. L. R., 539. [452. Jonardun Acliarjee v. Haradun Acbarjee, 11 B. L. R., 438 note, 439 note, Kangalee Churn Ghosal v. Bonomalee Mullick, 2 B. L. R., A. C, 197; 4 B. L. R., F. B., 85. Kanhya Lall v. Radha Churn, 1 B. L. R., A. C, 5; 11 B. L. R., 246, 247. Kashinath Chatterjee v. Chandi Charan Banerjee, 1 B. L. R., A. C, 41 ; Id. O. C, 30, 32 ; 3 B. L. R., A. C, 83, 84, 85 ; 4 B. L. R., F. B., 57 ; 8 B. L. R., 89, 91. Kooldeep Narain Singh v. Luckhun Singh, 11 B. L. R., 71. Lall Doss V. Jamal Ali, 10 B. L. R., 280. Lalmohun Holdar v. Mahadeb Katee, 10 B. L. R., 16. Leake v. Daniel, 5 B. L. R., 499. [197, 199. Maharaja Maheswar Bax Sing Bahadur v. Bhika Chowdry, 1 B. L. R., A. C, Mahomed Akil ». Asadunnissa Beebee | 3B.L.R., A.C.83; 5B.L.R, 654; 8B.L. Mutty Lall Sen Gwyal v. Deshkar Roy I R., 131, 323 ; App. 100 ; 10 B.L.R., 234. Modhoo Dyal Singh v. Kolbur Singh, 3 B. L. R., A. C, 22; 4 B. L. R., A. C, 18; 8 B. L. R., 358, 360, 361, 371. Modhoosoodun Lall v. Bekaree Singh, 1 B. L. R., A. C, 142, 148, 150; 3 B. L. R., App., 82; 4 B. L. R., F. B., 102, 123, 124; 6 B. L. R., App., 33, 143; 9 B. L. R., App., 22, 24, 25. Mndun Mohan Roy v. Gourmonee Goopto, 3 B. L. R., App., 35. Mussamut Anandmayi Dasi v. Purna Chandra Roy, 7 B. L. R., 719; 10 B. L. R., 101, 115. Mussamut Farzhara Banu v. Mussamut Azizunnissa Bibi, 8 B. L. R., 198, 199, 201. Nilmani Burniek v. Puddo Lochun Chuckerbutty, 1 B. L. R,, A. C, 85, 178, 179; 3B. L. R., A. C, 11, 12. Nobin Chunder Chuckerbutty u. Guru Persad Doss, 1 B. L. R., Short Notes of Cases, xiv; 2 B. L. R., A. C, 315; 3 B. L. R., A. C, 146, 150, 208, 210, 363, 364, 444, 445; 4 B. L. R., F. B., 8, 9; Id., A. C, 137, 138 ; 5 B. L. R., 593, 599; 7 B. L. R., 671, 672; 9 B. L. R., 315. Parbati Charan Mookerjee v. Rajkrishna Mookerjee, 8 B. L. R., 576. Phillip V. Shibnath Moitro, 2 B. L. R., A. C, 226; App., 36; 4 B. L. R., F. B., 43, 45. Poulson V. Madhusudan Pal Chowdhry, 6 B. L. R., App., 19. Prosonno Coomar Paul Chowdhry v. Koylash Chunder Paul Chowdhry, 2 B. L. R., A. C, 239, 243 ; 5 B. L. R., 235, 239, 241, 246 ; 11 B. L. R., 447, 450 ; App., 32. Pulin Behari Sen v. Watson, 1 B. L. R., A. C, 135, 137; 6 B. L. R., App., 124. Queen v. Elahi Bax, 3 B, L. R., A. C, 66 ; 6 B. L. R., App., 110, 112, 113 ; 9 B. L. R., 59 ; 10 B. L. R., App., 38 ; 12 B. L. R., 254. Queen v. Godai Raovit, 9 B. L. R., 346, 347. Queen v. Gorachand Gope, 3 B, L. R., F. B., 1 ; 10 B. L. R., 436 note. Qneen v. Sheikh Bazu, 3 B. L. R,, F. B., 2. IN THE BENGAL LAW EEPORTS. XIU lladlia Biiiode Chowdhry v. Digumburee Dossee, 8 B. h. R., 80. Kagbu Ram Biswas v. Ram Cbandra Dobay, 7 B. L. R., App., 41. Raja Ram Tewary v. Luchrami Persad, 2 B. L. R., A. C, 342; 3 B. L. R., A. C, 22; 4 B. L. R., A. C, 16, 123, 126; 5 B. L. R,, App., 15; 6 B. L. R., 556, 55 8 ; 8 B. L. R., 360 ; 9 B. L. R., 243, 244 ; 12 B. L. R., 374, 376. Rajkissen Singb, in the matter of the Petition of, 1 B. L. R., A. C, 150. Rajkristo Roy.w. Dinobundo Surma, 4 B. L. R., F. B,, 37 ; Id., A. C, 132, 133 6 B. L. R., 293, 294; 8 B. L. R., 25. Rambn.K Chittangeo v. Modhocsoodhun Paul Ohowdhry, 5 B. L. R., 342; 7 B. L R., App., 40. Ram Kauth Chowdhry v. Bhubun Mohun Biswas, 4 B. L. R., F. B., 61. Ram Saliai Singh v. Sheo Sahi Singh, 1 B. L. R., A. C, 63 ; 2 B. L. R., A. C. 195; App., 48; 4 B. L. R., F. B., 85; 5 B. L. R., 611, 613; 6 B. L. R., App., 146; lOB.L. R., 104; IIB.L. R., 27, 30; 12 B. L. R.,503, 505, 507. Ramsundar Poramanick v. Prasannakumar Bose,,8 B. L. R., 1. Rani Asniut Kooer v, Moharani Indurjeet Kooer, 3 B. L. LI., App., 30; 7 B. L. R., 176, 177, 178. Rani Surnomoyee v. Luchmeeput Doogur, 7 B. L. R., 734, 735. Shahabooddeen v. Futteh Ali, 6 B. L. R., App., 150; 10 B. L. R., 139, 141, 142, 149, 152, 153. Shamachurn Cliuckerbutty v. Bindabun Clrander Roy, 2 B. L. R., A. C, 185, 188; 3 B. L. R., A. C, 78, 80, 287, 288 ; 11 B. L. R., 265, 427 note, 430. Sheikh Afzal Ali v. Lala Gaurnarayan, 12 B. L. R., 488, 492. Sonatan Ghose v. Moulvi Abdul Farar, 8 B. L. R., 566, 567, 569, 576, 578 ; App., 86, 88. Soudamini Dossee v. Maliaraja Dheraj Mohatab Oband Bahadoor, 1 B. L. R., F. B., 2, 5. Sreeputty Roy v. Loharam Roy, 7 B. L. R., App., 40. Surwar Hosaein Khan v. Shahzada Gholam Mahomed, 9 B. L. R., 1 76 note, 1 77. Thakooranee Dossee v. Biseshur MuUick, 4 B. L. R., F. B., 61 ; 6 B. L. R., 358; App., 124; 8 B. L. R., 167, 178. Thakoor Chunder Paramanick, in the matter of the Petition of, 3 B. L. R., A. C, 269; 8 B. L. R., 242, 510, 515.. Watson V. Government, 8 B. L. R., App., 100. TABLE OF CASES CITED. Page Abdool Kurreem ». Ooghun Lall . . . . . 918,921 Adamson v. Jarvis ....... 690 Ahmed Alee Khan v. Raja Modhnarain Singh . 78, 80, 100, 776, 780, 789, 815, 833, 838, 840, 841 850, 851, 858, 864, 868 Ameerut Misser v. Dabee Persaud Auund Mohun Roy v. Chunder Moni Dossee Anundmoyee Chowdrain v. Ramkanth Sein . .176, Anundmoyee Dabee Chowdrain v. Hurrish Chunder Chowdhry Anundmoyee Debia v. Sreemutty Dassee Ashoory Akhoond's case ..... Azrawil Singh v. Balgovind Singh Baboo Kooldeepnarain Singh v. Mohunt Greedharee Doss Baboo Kustooree Singh v. Gokool Persad Baboo Modenariin Singh v. Mussamut Ameeroonissa Begum Baboo Purmessuree Pershad Narain Singh » Aghur Singh Bachoo Chowdree v. Ramnaraia Singh Bama Soonduree Debia v. Anundmoyee Debia . Bamun Doss Mookerjee, In re . Baroda Debia ii. Sreeram Chowdhry Beerchund Joobraj v. Ramcoomar Dhur' . Beharee Lall v. Mussamut Sookhun Beharee Lall v. Thakoor Doss Bessunnessooree Dabea v. Tarasoonderee Bhaminee Bharuth Singh v. Sadut Ali Bhoopnarain Sahoo v. Sheogolam Sahoo . Bhuggobutty Dabee v. Sama Churn Banerjee Bhyroo Chunder v. Hurwuttee Ram Bhyrub Chunder Chunder v. Shama Soonderee Debia Bebee Suboorun v. Sheikh Golam Nujee Bindabun Chunder Sircar v. Roberts Bipro Pershad Mytee v. Mussamut Kanye Deyee Birkenhead Dock's Trustees v. Birkenhead Dock Co. Bishenpria Munee v. Ranee Soogunda Biswambhar Misser v. Ganpat Misser . . 23, 120. Boido Nath Roy v. Brojo Kissore Chuckerbutty . Boijung Szuahaee v. Munraj Singh Bootan Singh v. Bhugwan Dutt . . 1018 . 1009 178, 179, 181 6, 7, 147, 721 . 142 App. 12 9 140 43 80, 83, 776, 788, 806, 837 1004, 1006 9 683, 688 . 747 . 968 . 603 . 392 . 1024 1004, 1006 . 968 . 3,4 . 353 42 . 715 639, 641 . 1004 . 633 104 67 147, 157, 158 . 948 42 912,919 XVI TABLE OF CASES CITED. Page Boydonntli v. Ramjoy Dey ...... 979 Boykunt Nath Bhooya v. Ram Natli Bbooya . . . 677, 686 Brand v. Hammersmith and City Railway Co. . . . 808, 8 1 8 Breen ». Balfour . . . . . . . .6)9 Brommoroop Goswamee v. Prannath Chowdliry . . . 677, 678, 688 Buldeo Doss v. Sreenauth Sein ...... 909 Buldu V. Gunga Singh . . . ^VP- 15, App. .30 Bijzur Beebee ». Jackson ....... 971 Bykuntnath Mnllick v. Joygopal Chatterjee . . . .971 Chedoo Lai ». Nund Coomar Lall . . . . .719 Chetti Gaundan v. Sundaram Pillai ..... 882 Chowdhry Junmenjoy MuUick «. Bissambhur Panjah . . .718 Chunder Churn Paul v. Ramnarain Sen ..... 909 Chunder Narain Chuckerbutty v. Mussamut Zumeer-o-Nis.sa . . 776 Chundernath Surma Lushkar, /ra ye . . , . 912,916 Chundrabullee Debia v. Luokhea Debia Chowdrain . . . 781 Chutterdharee Kower ». Ramdoolun Kower . . . 616,618 Clavering ». Westley ..... 760 Collector of Dacca v. Kumalakant Mookerjee . . . 496, 498 Collector of Masulipatam u. Cavaly Vencata Narrainapah . .1011 Collector of Rungpore, /n re . . . . . .7^5 Collector of West Burdwan c. Watson . . . . 185,190 Collychund Dutt v. Moore .... .52 Copis V. Middleton ..... . 944 Cossinauth Bysack v. Hurrosoondery Dossee .... 51, 52 Cowell V. Edwards . ..... 682 Craythorne v. Swinburne .... . 683, 684 Dabee Protab Narain Singh v. Monohur Doss . . . 732 DaCosta, In re . . . . . . . .715 Davidsim v. Stanley ....... 473 Degumber Mitter v. Ram Soonder Mitter . 143, 184, 197, 207, 320, 321 Dering v. Earl of Winchelsea . . . . _ ggo DeSarun v. Woma Churn Sett . . . . 59, 60, 62, 64 Dhurum Rawoot v. Ramnauth Sahoo . . . g21 Dinobundoo Nundee v. Keshub Chunder Ghose . . . 1004 Dinonath Bose Mullick v. Jnggessnr Mundu! . . 904 liooowri Kazi, In re . o3l, 532, 534 Doe d. Biiddeley v. Massey ... . . 197 Doe d. Bishop of Rochester v. Bridges . . . . 532 Doe d. Bonnerjea v. Bonnerjea , . . .50 Doe d. Colly Doss Bose 0. Debnarain Koberaj .... loil Doe d. Edney v. Benhara •....., 793 Doe d. Goluckmoney Dabee v. Diggumber Day , . , 1009, 1011 TABLE OF CASES CITED. XVll Page Doe V. Whitehead ....... 908 Dooleychand v. Hurdeo Suhai ...... 404 Doorga Doss Roy v. Ramjeebun Doss ... . . 388, 389 Doorga Money Dossee v. Doorga Mohun Doss .... 687 Doorgapersaud Roy Chowdry D. Tarapersaud Koy Chowdry . 11,998 Dost Mahomed Ehan Chowdhry v. Soolochana Dabia . . 672, 674 Dowbiggen v. Bourne ....... 943 Duchess of Kingston's Case . . . . > . 664, 669 Dudalee Khan v. Mussamut Woozeerun ..... 9 DuUoo Koonwar v. Bundhoo Koonwar . . . . . 36, 43 Durgungeer Sunnassee v. Gourmohnn Shah . . . . 73, 74 Durpnarain Roy v. Sreemutty Roy . . .321 Dusrutty Patnaik ». Muthundo Santra . . . . .24 DwarkaloU Mitter, In re . . . . . .890 Dwarkanath Doss v. Maniek Chundra Doss . . 647, 652 Dwarkanath Sing, in the Petition of . .16 East London Waterworks v. Mile End Old Town . . 105 Elkin V. Janson ........ 908 Eshan Chunder Roy v. Mahomed Noorbux . . . 25, 30 Fitzgerald v. Champneys . . .... 104 Fitzpatrick v. Gowan . ..... 973 Fletcher v. Gillespie ....... 393 Fordyce v. Bridges .... . . 865 Frith V. Chunder Monee Debia .... 57, 59, 62, 63 Fukeerooddeen v. Kalachund Sircar ..... 367 Girish Chandra Lahury v. Fakir Chand .... 763, 769 Gobind Chunder Bhuttacharjee w. Sreenath Mookerjee . . .361 Gobind Coomar Chowdhry, /a re . . . . .717 Gobind Foramanick v. Gooroochurn Dutt .... 596 Godye Mullungy's case ...... A pp. 12 Golam Ruhman v. Raja Radakanth . . . .16 Goluck Chunder v. Teluck Chunder . . . . .761 Goluckmonee Dabee v. Degumbur Dey . . • . . .51 Gooroo Churn Sircar's case . . . . . . 42, 45 Gooroodas Roy v. Ramnarain Mitter . , . . .1021 Gooroodoss v. Onotu Dhur ...... 490 Gooroo Pershad Fotedar v. Komlakant Bose .... 9 Goor Persad Roy v. Moulvi Abdool Ali . . . .185 Goorsoonder Chowdhry v. Meenoo Shaha ... 25, 29 Gopal Chunder Doss v. Ramcoomar Gliose .... 351 Gopal Chunder Roy v. Gooroo Doss Roy . . . 764, 770 Gopal Lai Thakoor 27. Kashee Chunder Roy . . .512 . Gopeenath Singh v. Anundmoyee Debea .... 766 TABLE OP CASES CITED. Government v. Brijosoondree Dassee Government v. Goreeb Feadah .... Government v. Khooman Government v. Maharaja Dheraj Mahatab Chund Bahadoor Government Vakeel v. Mussamut Kukha 420,421, App 12, App. 26, Govind and Bam Sahoo's case Greedharee Doss v. Nund Kisbore Dutt Mobunt Gumani Kazi v. Haribar Mookerjee Gunesh Deen Panda v. Bbola Singh Gunga Chundel's case .... Gungadbur Banerjee v. Satcowree Sircar Gnnganarain Boy v. Gonomonee Gunga Persbad Dutt, In re Gunnydansbama v. Smith Guruchurn Paramanik v. Odayenarain Mundal , 96, 776, 788, 806, Hakimoodeen Bhooya v. Zubroodeen Bhooya Hamatoolab Daffadar v. Gunga Gobind Boy Harbet's case ..... Harkimtb Sein v. KaUkishore Chowdree . Harris v. Eickett ..... Heeralall Buksbee v. Eajkishore Mozoomdar Heera Monee Dabee v. Koonj Bebaree Haldar . Hem Cbunder Cbatterjee v. Poorun Chunder Roy Hem Chund Mozoomdar v. Mussamut Taramunnee Hemp V. Garland Heralall v. Kutchfall Hethan Singh v. Lekraj Singh Hidayut Ali v. Prem Sing Hill V. Kbowaj Shaikh Mundle Hills V. Alum Cazee Hills V. Ishore Ghoae, 26, 206, 207, 223, 259, 261,. 264, Hollier v. Eyre Hookun Bebee v. Khajd Mahomed Moosa Khan Hukeem Abool Hossein v. Chutterdbaree Singh Hullodbur Bangal v. Administrator- General Hulodbur Sungiree v. Gunesh Santbal Hunooman Doss v. Koomeeroonnissa Begum Huree Bungsbee Banerjee v. Kamessur Banerjee Hureebur Mookerjee v. Abdool Huq Kazee Huree Mohun Das v. Prankisben Raee . Hurisb Chunder Sircar v. Azimooddeen Shaba Hurkanath Sein v. Kalikiahore Roy Chowdree Hvirkoo Dabey, In re . 630, 632 422, 425 . 422 185, 496 . 422 App. 29 . 634 28, 142 . 41, 46 App. 12 142, 144 898 912, 916 24 836, 839 36 28, 30 680 583 393 761, 765 582 776 52 619 404 599 388, 392 142 500 286, 293, 30], 302, 316, 320, 329, 330, 332, 342, 343 . 393 . 603 . 184 . 619 . 506 . 1004 . 719 496, 498 . 837 1023. 1025 140 363 TABLE OF CASES CITED. XIX Huv Lall Singh v. Jorawun Singh Huro Soonduree Debia v. Stevenson Hurrah's case . . , • • • -A-pp Hurree Mohun Das v. Pranklshen Eaee . Hurro Chunder Roy Chowdhry v. Soorodhonee Debia Hurromohun Mookerjee v. Thakoor Doss Mundul Hurronath Roy v. Anund Chunder Roy . Hurronath Roy v. Grooroodoss Biswas Hurry Doss Dutt v. Sreemutty Uppoornah Dossee Ishore Ghose v. HiUs, 26, 204, 207, 223, 259, 261, 264, 286, 293, 301, 302, 316, 320, 329, 330, 332, 342, 343 Iswar Chundra Das v. Nittanand Doss ..... 539 Page 564, 578 . 744 12, App. 15, App. 29 77, 78, 81, 83, 94 986, 991, 993 206, 207 636, 637 593, 594 51 Jackson v. Woolley Jadomoney Dabee v. Saroda Prosono Mookegee Jadub Chunder Haldar ». Ishru Lushkur Jadub Sirdar v. Kishenhuree Chatterjee . Jankee Ram Misser v. Ludhira Panday . Jankee Singh v. Bukhooree Singh Jaun Ali v. Jan Ali. Jogessur Singh v. Syed Lootf Ali Khan Jokee Lai v. Nursing Narain Singh Jossim Kazee v. Koylash Nath Holdar . Jowahir Lai v. Mirza Mogul Beg Joykishen Mookerjee v. Sheikh Cazee Golam Sufder Joymonee Dossee v. Hurronath Roy Joynarain Bose v. Madhub Chunder Sircar Joynarain Manjee v. Muddoosoodun Gorait Judoonath Sircar v. Bonomalee Mitter . Juggudumba Debea v. Muneeruth Mookerjee Jugo Moyee Chowdhraia v. Government Jummal Surma, Inre . Jungee Loll Mahajun v. Brijo Beharee Singh Ealee Churn v. Bishen Dyal Singh Kalee Coomar Nag v. Kashee Chunder Nag Kaleepershad Dutt v. Goureepershad Dutt Kali Pursad Singh v. Busunt Koomaree . Kandaree Joardar v. Manik Joardar Kanhya Lall v. Radha Churn Kanhye Doss v. Nobin Chunder Chowdhry Kartick Churn Singh v. Gogaram Kashee Pershad Roy v. Shib Chunder Deb Kashessurree Debia v. Chunderkanth Mozoomdar Kashinath Chatterjee v. Chandi Churna Banerjee 399, 221 51 207 386 627 597 978 16 382 610 43, 46 16 593, 594 207 676 859 371, 372 657 184 1024 43 1009 597 43 ^6 674, 770 947 1024 710 16 400, 401, 402 XX TABLE OF CASES CITED. Kasbinath Roy v. Nowcowry Koondoo Kasissur Surma Lahooree v. Goluk Kishore Acharj Chowdhree Kassim Mundle v. Sreemutty Noor Bibi Eatama Katchier v. Baja of ShivaguDga Eazee Abdool Hamid v. Ramcoomar Mundul Kazee Ehoda Newaz v. Nubokissore Roy Kemp V. Finden Keppell V. Bailey Kesubnath Ghose v. Hurgovind Bose Khaja Mahomed Gouhur AH Khan ». Ashrufoonissa Khelat Chunder Ghose «. Tarachurn Koondoo Chowdry Khemon Kuree Debia v. Modhoomutty Debia Khetter Monee Dossee v. Gopee Mohun Roy Khettemath Dey v. Gossain Doss Dey . Khoderam Surma v. Trilochun . Khoka Koonwur v. Jugoo King, The, v. Bourne .... King, The, v. Durham .... King, The, v. Manchester and Salford Waterworks King, The, v. Smith .... Kishno Govind Sein v. Gunganarain Sircar Kool Chunder Chuckerbutty v. Komul Chunder Roy Kooldeep Narain Sing v. Luckhun Sing . Koon Koon Sing, In re Koylasnath Roy v. Juggurnath Sircar Koylasnath Roy v. Roop Sing Sirdar Kristna Row v. Hachapa Sugapa Page 391, 397 . 19, 20 384, 388 671, 1009, 1011, 1012, 1016 Lalla Huree Sunkur Shaha v. Sheikh Bukhtear . Larmour v. Rajkishen Mitter Latafut Hossein v. Savi . Lotun Roy v. Doomun Roy Lucas V. Comerford Luchmun Persad v. Ameer Ali Luchmun Suhoy v. Bhugwan Chunder Dutt Luckhun Acharj v. Tarrachund Dutt Lurrye Chung's Case . . . App. 12, App Macrae v. Jhoomuck Misser Maharaja Moheshur Sing v. Bengal Government Mahomed Hossein v. Mussamut Woozeerun Mahomed Hossein v. Sheikh Afzul Ali . Mahomed Wajeed Ally Shah v. Monohur Doss Meares v. Aikobur Sheikh Meares v. De Brandy ... 16 659, 660 . 679 . 803 173, 174 . 906 . 817 1004, 1006 8, 10, 11 987, 989, 990 . 597 673, 674 . 454 . 463 . 105 App. 34 52 . 968 App. 4 362 note 184 184 882, 885 81, 83, 838 33, 64 36, 43, 760, 761 . 382 . 971 . 808 15, App. 30, App. 31 . 500 . 895 . 8, 9 917, 918, 921 . 1007 . 458 57, 59, 62 TABLE OF CASES CITED. XXI Meer Mahomed Kazem Chowdhry v. Forbes Meer Mahomed Tukee Chowdhry v. Forbes Meetun Lai v. Mussamut Deo Murat Merryweather v. Nixan . Mewa Lai v. Sooltan Singh Mirtoonjoy Pauree v. Omesh Chunder Paul Chowdry Mirza Abid Hossein v. Brijo Beharee Lall Misri Kooer v. Maharaja Maheswar Buksh Sing. Modhoosoodhun Mozoomdar v. Bindoobashiny Doasee, 675, 677, 678, 688, 692 Mohabul Nath Tewaree v. Bhowanee Dutt Singh Mohadeo Dutt v. Poorun Bibi Mohendro Chunder Ghose v. Inder Narain Holdar Mohunt Joyram Gir v. Lall Bungshee Adhur Mohunt Sheodass v. Bibi Ikram . Mooktokashee Dassia v. Brojunder Coomar Roy. Moon V. Durden . ... Moonshee Buzloor Buheem v. Shumsoonissa Begum Moonshee Syed Ameer Ali v. Mohendronath Bose Mosoodun Lall v. Bekaree Singh . Motee Lall Seal v. Mudden Thakoor Mothoora Lall Paul v. Shrinebash Dutt . Muddun Gopal Thakoor v. Eam Buksh Panday Mudhoosoodun Singh v. Collector of Midnapore Muhabeer Persaud v. Pertab Narain Munrunjun Singh v. Raja Lelanund Singh Mussamut Beekun Kooer v. Maharaja Bahadoor Mussamut Imam Bandi v. Hurgovind Ghose Mussamut Jankee Kooer v. Mussamut Lekranee Kooer Mussamut Jariut-ool-Butool v. Mussamut Hosseinee Begum Mussamut Kishenkaminee Chowdrain v. Mohima Chunder Roy Mussamut Lalahoonissa Khatoon v. Ram Gopal Seia Mussamut Momudunnissa v. Mahomed Ali Mussamut Mughnee v. Ohariya . App. 12, App Mussamut Roopna v. Ray Reotee Rumeen Mussamut Soukolly Koonwar, In re Mussamut Taramonee Dossee v. Birressur Mozoomdar Mussamut Wuzeerun Bebee v. Sheikh Waris Ali MuttyloU Seal ». Annundo Chunder Sandel Nadir Beebee, Inre . Narainee Dibeh v. Hirkishor Rai . Nawab Mustafa Khan v. Ranee Bhoj Kooer Nazur Ali Khan v. Raja Ojoodhyaram Khan Neenaye Joogy v. Afsurooddeen Mahomed Chowdhry Nilkishen Thakoor v. Beer Chunder Thakoor Gossain ' Page 500, 501 22 . 42, 45 . 690 36, 38, 42, 43 184 73 929, 935, 937 . 42, 45 42 . 351 . 388, 389, 393 176, 178, 179, 181 . 382 . 221 802 . 1009 . 993 60, 62, 63 . 909 1018, 1019, 1020 721, 723 43 . 561, 568, 577 . 430 . 357 168, 170 . 547 939, 940, 945 . 320 633, 634 15, App. 29, App. 31 . 739 . 722 726, 727 . 430 . 389,391,397 912, 916 67 . 43, 46 . 583 364, 366 606, 607 XXll TABLE OF CASES CITED. Page Nilmani Burnick v. Puddo Loohan Chuckerbutty 382, 520 Nobbokissen Singh v. Kaminee Dassee . 728, 730 Nobeen Kishen Bose v. SbofatooUah 904, 907 Nobin Chunder Sircar v. Shama Soonderee Dabee 490, 539 UToor Mahomed Mundul v. Hurriprosonno Roy . . 207 Nund Coomar Gungopadhya v. Rakhal Chunder Roy . 721 Nund Doolal Sircar v. Dwarkanath Biswas . 554 Nundkishore Koomar v. Zureefer Beebee . 388 Nunkoo Doobe v. Narain Doss . 41,43,46 Omed Rai v. Nakehed Rai . 42, 44 Omesh Chunder Biswas, In re . 764 note Omrao Singh v. Sukhawat Hossein 42 Onoop Chunder Paul v. Ekkowree Singh . . 893 Palmer v. Mohunt Balgobind Doss . 1004 Parbuttee Dey v. Birjmohun Mytee . 140 Parbuttee Dey, In re . 140 Parushnath Misser v. Shaikh Bundah AH . 882 Peary Mohun Doss v. Macarthur . 33 Peary Mohun Roy v, Chunder Kanth Roy . 1009 Pertab Narayan v. Rattun Mahtan . 42, 44 Pitumbur Shaha v. Jebun Singh Burmonee . 539 Phillip V. Shibnath Moitro 31 Piziruddin v. Mudhusudan Pal Chowdhry 775, 776, 77 ), 788, 792 807, 815 856, 858 Pcgose V. NyamutooUah Ostagur . . 597 Polin Chunder Gossain v. Womes Chunder Roy . . 123 Pooley V. Harradine . . . . . . 393 Poolin Behary Sein ». Lutufoonissa Beebee . 624 Poulson V. Mudhoosoodun Chowdry 16 Prannath Roy Chowdry v. Gugun Bearah . 351 Prannath Roy Chowdry v. Rookea Begum . 11 599, 600 Protab Chunder Chowdhry v. BrojoloU Shaha 644, 645 Purbhoo Raee v. Bhekun Raee . 42 Queen v. Dwarka .... 460, 481 Queen v. Godai Baout .... . 460 Queen ». Gorachand Gope ... 7 51, 752, 753, 754, 755 Queen v. Gour Polie .... App. 12, App. 16 App. 34 Queen ». Grand Junction Railway Company . 315 Queen v. Ichabur Dobey . 488 Queen v. Jan Mahomed .... . 447 Queen v. Lall Chand Kowrah . . . . , 460 Queen v. Nahmut Ahmed . 959 Queen v. Noyaudee and Shodee . . . . App. 12 App. 34 TABLE OF CASES CITED. XXlll Page Queen v. Pursoram Doss ...... 437 Queen v. Eamdhone Mundul ..... 484, 486 Queen v. Toyab Sheikh ..... 732, 7S4, 755, 756 Badha Binode Chowdhry v. Modhoosoodun Sircar . 947, 948, 949 Kadhacant Doss v. Mohadeby ...... 464 Radha Pattuk v. Lalla Burmanund ..... 43 Eai Earn BuUubh, In re . . , . . . . 393 Kaja Anundnauth Roy v. Dwarkanath Thakoor ... 9 Raja Enayet Hossein v. Sayud Ahmed Reza . . . .11 Raja Lelanund Singh ». Government of Bengal . 563, 569, 572 Raja Lelanund Singh v. Surwan Singh . . . 569, 577, 578 Raja Ram Chowdhry v. Seetula Buksh Misser .... 1023 Raja Ram Tewary v. Luchmun Pershad .... 1018 Rajendra Narayan Adhikari v. Syud Abdul Hakim . . . 42, 45 Rajessuree Debia v. Shibnath Chatterjee . . . 659, 660 Rajkishen Dutt v. Bulbhudder Misser ..... 652 Rajkissen Singh, 7n re ., . . . . . . 993 Rajkristo Roy v. Kishoree Mohun Mojoomdar . . 663, 671 Ramanunda Mukhopadya v. Ram Krishna Dutt . 52 Rambux Chittangeo v. Modoosoodhun Paul Chowdhry . . 689, 693 Ram Cbunder Paul Chowdhry I!. Punehoo Mundul . . .184 Ramcoomar Roy Chowdhry v. Kaahee Chunder Sein . . 388, 392 Ram Doollub Sandyal v. Ram Narain Mitter .... 1009 Ramgopal Nundee v. Sreeram Pattuk . . . . . 3, 4 Ramgopal Roy v Nundopal Roy .... 639, 642, 644, 64g Ram Joy Surma v. Raja Prankishen Singh .... 999 Ram Kanth Chowdhry v. Bhubun Mohun Biswas . 307, 765, 771 Ramkant Loll Sing, In re . . . . . . 367 Ram Kunhaee Rai v. Bung Chund Banhoojea . . , . . 42, 44 Ram Lochan Ky hurt's case ..... -App. 12 Ram Money Dossia v. Pran Mohun Mozoomdar . . . 677, 678, 688 Ramnath Chowdhry v. Digumbur Roy .... 1004, 1006 Ramnath Singh v. Rajroop Singh . . . . . 42, 45 Ram Ruttun Baneijee v. Maharaja Ameer-ool-Molk Bunwaree Gobind Bahadoor ........ 718 Eamrutun Singh v. Chunder Narain Rai . 38, 40, 42, 43 Ram Sahai Singh u. Sheo Sahi Singh . . . .711 Ramtanu Chatterjee a. Ishur Chunder Neogee . . . 173,174 Rani Mohamoya ». Juggurnath Persad Mullick . . .172 Rani Surnomoyee v. Maharaja Sutteeschunder Roy Bahadoor . . 90,207,251,252,539,782,805,851 Eani Surnomoyee ». Pertab Chunder Burrooa . . 10,11 Reed », Norris ..... . . 941 Reg. V. Farler ....... 465, 474 TABLE OF CASES CITED, Eex V. Hastings Kex V. Jones Kex V. Noakes Rex V. Kudd Eex V. Stubba Kex V. Wilkes Komanath Thakoor v. Chunder Narain Chowdhry Kughoobur Dyal v. Chunder Dutt Pattuk Eughoonath Roy v. Baraik Geereedharee Sing . Eughoonundon Sing v. Gopal Singh Rutton Monee Dossee v. Kalikishen ChuckerButty Rychund Bunik v. Greeschunder Goho Page . 463 462, 474 . 468 . 469 463, 467 463, 466 . 354 . 140 . 1004 . 1021 379, 520, 625, 809, 818 388, 389, 393, 396 Sarodasoondury Dossee v. Tincowry Nundee Sarupchand Sarkar v. Raja Gris Chandra Satkouree Mitter v. Useemuddeen Sirdar Seetaram v. Komul Sahoo Seetul Singh v. Sooruj Buksh Singh Shah Keramut Hossein v. Golab Koer Shah Moshum AH v. Nakenam Singh Shah Muqbool Alum v. Ajoodhea Singh Shambonath Biswas v. Kisto Dhun Sircar Shamkanto Lahoree Chowdhry v. Hurrish Chunder Cliowdhry Sheehy v. Lord Muskerry Sheikh Bukshush Hossein v. Bibee Fuzeeloonissa Sheikh Fuzl Imam v. Doolun Singh Sheikh Golam Ahyah v. Sham Soondar Koonwaree Sheikh Kadir, In re Sheikh Kamyab v. Mussamut Omda Begum Sheikh Khossal v. Sheikh Shukhowdee Sheikh Mahomed Hossein v. Boodhun Sing Sheikh Mahomed Mohair v. Sheikh Goolzar Hossein Sheikh Kozeeooddeen v. Sheikh Jehangeer Sheikh ShafaetooUah v. Joykissen Mookerjee Sheikh Sherajdee's case .... App Sheodie Mahatoon v. Hurree Kishen Sheo Dyal Eoy v. Baboo Sheo Sahaj Singh Sheo Pursun Lall v. Baboo EamNarain Singh Shib Chunder Bhadoory v. Luckhee Debia Chowdhrain Shib Chunder Ghose v. Eussiok Chunder Neoghy Shibnarain Ghose ». Kashee Pershad Mookeijee Shibram Chung's case Shrishteedhur Mundul v. Gobind Suruckar Shumboonath Eoy, Inre . Sib Chunder Doss v. Sib Kissen Bonnerjee 696, 697, 705 . 392 647, 652, 653 43 882, 884, 885 . 554 36,43 43,46 554 637 865 416 718 948 81, 837 761, 765 . 1021 . 973 . 156 503, 504 184, 197, 815, 839 12, App. 15, App. 30 979 43 1021 948 124 207, 293 App. 12, App. 30 . 647 912, 916 . 124 TABLE OF CASES CITED. XXV Singh V. Lalla Kalee Cbuiu Smith V. Gopal Sheikh Smith V. Sona Bibee Solano V. Mirza Hoormut Bahadoor Sonatan Ghose v. Moulvi Abdul Farar . I Sonaton Goho v. Parbutty Churn Roy Sorabjee Vacha Ganda v. Koonwurjee Manikjee Soudaminee Dossee v. Maharaja Dheraj Maliatub Sreemutty Jonokee v. Tukbun Singh Sreenath Doss Moonshee v. Shibkristo Bose Sreeputty Roy v. Loharam Roy . Sreeram Chatterjee v. Lakhun Magilla . Stevens v. Jeacocke Stirling v. Forrester Subjan Ostagar, In re . Syed Athar Ali v. Rai Nawagi Lai Syed Hossein Urkurree v. Gobind Narain Syed Mahomed Bakur v. Blanchard Tarakinkar Roy w. Kashichunder Sein Tekayet Jugmohun Sing v. Lelanund Sing Thakooranee Dossee v. Bisheshur Mookeijee Troup V. The East India Company Chand Bahadoor Page . 718 . 500 . 1004 . 973 62, 164, 845, 850, 851, App. 2 909 9 604 . 365 764 note 684 206 . 637 . 687 . 1005 . 612 102, 100 c7, 59, 60, 60 . 389 568, 575, 579 979, 981 11 Umbika Dutt Pattuk, In re Varden Seth Sam v. Luckpathy Royjee Lallah Virasvami Gramini v. Ayyasvami Gramiiii Wilkins v. Pry .... Wise V. Jogobundoo Baboo Womesh Chunder Roy v. Bhugwan Chuuder Roy Woomachurn Banerjee v. Haradhun Mojoouular Yarakalamma v. Anakala Narama Young V. Tiery .... 140 406, 412 739, 741 . 761 . 507 . 1000 . 1009 664 59, 62, 63 ERRATA AND CORRIGENDA. fe 3, line 4 from bottom, for " amounts" read " accounts." 9, line 20 from top, for " 1855" read " 1835." 9, line 23 from top, for " 1859" read " 1839." 10, line 6 from top, for " for 1813" read " from 1813." 19, line 5 from top, for " debtor'' read " creditor." 19, Une 6 from top, for " creditor'' read " debtor." 19, line 13 from top, for " receipt" read " release." 25, Une 11 from top, for " Bailey" read " Bayley." 30, Une 18 from bottom, for " denied" read " decreed." 31, line 2 from top, for " iUegation" read " aUegation." 31, Une 6 from bottom, omit comma after "that." 42, Une 2 from top, for " Peacock, C.J. read " L. S. Jackson, J." 62, Une 2 from bottom, for "Mooree" read "Moore." 64, line 3 from top, for " balance" read " balances." 69, lines 18 and 20 from top, for " Vivida" read " Vivada." 71, Une 16 from top, for "on the Chapter" read " in the Chapter " 72, Une 3 from top, insert " a" before " mokurrari. " 72, last Une, for " by " read " to." 86, Une 20 from top, insert " fit" after " think." 86, last line, for " has" read " had." 87, Une 14 from top, for " proportion" read " apportion." 88, Une 15 from top, for "of" read " from." 96, Une 16 from bottom, for " for" read " in." 103, line 15 from top, for " when" read " where." 105, Une 8 from top, for " 7" read " 8." 108, Une 2 from top, for " embraces" read " embrace." Ill, line 5 from top, insert " resume" after " to." 120, line 13 from top, for " takes" read " took." 121, line 6 from bottom, insert " out" after " shutting.'' 125, line 7 from top, put full stop instead of comma after " Act X." 127, Une 11 from bottom, for "to" read " for." 128, Une 6 from bottom, imert " ; they were unauthorized alienations by the zemindar of the Government portion of the produce, as weU as aUena- tions of his own share, and were opposed to the common law of the ■ country, by which a portion of the produce of every biga of land belonged to Government." after " void." 131, Une 20 from bottom, inseH " the ' after " that." 134, first Une, omit " to " after " resorted." 144, Une 9 from bottom, for " to " read " of." 152, Une 19 from bottom, far " all " read " an." 156, line 19 from bottom, for " in " read " my.'' 158, Une 10 from bottom, insert " , I would still argue that the jurisdiction of the Revenue Courts " after " Courts." 159, line 13 from bottom, for " 3 " read " 8." 160, line 8 from bottom, omit " he " after " if." xxvill ERRATA AND CORRIGENDA. Page 166, last line, for " unconditional sale of a bai-bil-waf a " read 'conditional sale or bai-^il-wafa." „ 170, line 18 from bottom, /o)* " a " j-^a^Z " the." ., 172, first Une of foot-note, for " 553 " read " 353." „ 177, line 7 from top, omit " to " before " whioli." „ 181, line 13 from bottom, insert " the produce of " after " of." ,, 191, line 15 from bottom, for " right " read " rights." „ 276, line 8 from top, for " guposed " read " supposed." „ 365, Une 16 from top, insert " Collector shall " after " Deputy." „ 893, first line, omit comma after " (1) " and insert comma after " Lords." „ 395, line 14 from bottom, for " conditional sales " read " conditional sale." „ 402, line 2 from top, omit comma after " also." „ 402, line 2 from bottom, omit comma after " proved." „ 404, line 11 from bottom, for " and" read " the." „ 416, line 6 from top, after " Bukshush" insert " Hossein d. Bibee." „ 453, line 11 from bottom, for " Assessor " read " Assessors." „ 555, line 14 from bottom, for " claims" read " claim." [defendants." „ 560, line 20 from bottom, for " used in which they " read " under which the „ 577, line 14 from top, insert " a" after " under." „ 582, note, for "A-pTpdiS.., post" read "Post, ApT^. S." „ 588, Une 5 of head note, insert " due since the testator's death " after " rent." „ 596, Une 7 from bottom, for " Hidayah" read " Hedayah." „ 611, Une 3 from bottom, insert quotation marks after " evidence." „ 701, Une 7 from top, for " Divison " read " Division." „ 767, first Une, for " road" read " read." „ 777, line 18 from top, for " zeminder " read " zemindar." „ 791, Une 16 from top, for "transferree " read " transferee." „ 797, Une 16 from bottom, for " herewith " read " therewith." „ 798, Une 6 from top, insert " a" after " by." „ 811, Une 13 from bottom, for " becaase" read " because." „ 815, Une 9 from top, for " facts" read " fact." „ 824, line 18 from top, put comma instead of semi-colon after " for," and semi-colon instead of comma after " estate." „ 825, Une 4 from bottom, insert " the" after " of." „ 827, Une 17 from top, for " ands" read " lands." „ 847, line 13 from bottom, insert " them" after " understand." „ 848, line 21 from top, for " in" read " if." „ 850, line 8 from top, omit " of " after " ancestor." „ 852, Une 15 from top, omit comma after " case " and omit the second " that." „ 853, Une 13 from top, for " heir" read " heirs." „ 878, line 18 from bottom for " very" read " every." „ 923, line 10 from bottom, for " in " read " on." „ 974, head note 4th Une, omit " (Phbab, J., doubting)" after " also ;" and in 6th line of head note, insert " (Phbak, J., doubting)" after " but." „ 990, Une 6 from top, for " (reads) the" read " (reads). The" „ 991, in foot-note, insert " 1 " before " W. R." FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Jvstice Baihes, Mr. Justice Bayley, Mr. Justice Kemp, and Mr. Justice L. S. Jackson. MAHAEANI INDRAJIT KOONWARI (Plaintiff) v. CHOKOWARI 1863 SAHU (Dependant).'' Feb. 19. Lahhiraj — Besumption — Act X of 1859, s. 28 — Begulation XIX of 1793, s. 10 — Decision— Appeal— Act VIII of 1859, s. 372. lu order to obtain relief under section 28 of Act X of 1859, the plaintiff must prove that the tenant holds under a grant made since 1st December 1790. By the word "deci- sion" in section 372 of Act YIII of 1859, is meant the decree and judgment taken together, and not simply the decree unexplained by the judgment. The circumstances of this case appear in the decision of the Full Bench, which was delivered by Peacock, C. J. — In this case the plaintiff sued to resume a lakhii-aj tenure, under section 28, Act X of 1859. Such a suit cannot be maintained upon the ground that the tenant holds under an invalid tenure, but can only be maintained upon the ground that he holds under a tenure invalid for the reason mentioned in section 10, Regulation XIX of 1793, — viz., that the grant under which he holds was made since 1st December 1790. To obtain relief under section 28 of Act X of 1859, the plaintiff must prove that the tenant holds under such a grant. In this case the Collector found that he held under a grant purporting to have been made prior to 1790, but that the alleged grant was not genuine, and he gave a decree for resumption in favor of the plaintiff. The Judge on appeal stated in his judgment that there were strong grounds for believing that the alleged grant was valid ; and that as the plaintiff had failed to prove that the defendant held under an invalid tenure, the decree of the lower Court was wrongs and he reversed the order of the Collector with costs payable by the respondent. The Judge was wi'ong in stating that the plaintiff was bound to prove that the * Special Appeal, No. 1914 of 1861, from a decision by the Officiating Judge of Behar, dated the 12th July 1861, reversing a decree of the Collector of that district, dated the 3rd June 1861. FULL BENCH RULINGS. 1863 defendant held under an invalid tenure, but he ought to have stated that Mahakani the plaintiff was bound to prove that the defendant held under a tenure KooNw'iEi 'w^hich was invalid upon the ground that it was granted since IstDecem- „ "■ ber 1790, and that having failed to do so the Collector ought to have Saiiu. decreed in favor of the defendant, leaving the plaintiff to proceed by a regular suit for resumption. It is now contended before us, on behalf of the respondent, that the decree of the Judge was right, and that the decision of the Judge could not be binding as to the validity of the sunnud in a regular suit for resumption instituted in the ordinary Civil Court. But we think that the Judge has substantially found in his judgment that the plain- tiff has failed to show that the defendant held under a grant made subse- quent to 1790, because he held under a grant made prior to that date, and that grant was valid. If the judgment and decree be allowed to stand, a Court of ordinary civil judicature would, probably, consider itself bound by the Judge's decision as to the validity of the grant. Looking at sectious 372 and 373, Act VIII of 1859, we think that the plaintiff has a right to appeal specially against the decision of the lower Court, if the- decree, as explained by the judgment, is erroneous ; for by section 372 it is enacted that a special appeal shall lie from all decisions passed in regular appeals by the subordinate Courts, and not merely from all decrees. Section 373 says, that the application for appeal shall be accompanied by copies of the judgment and decree of the lower Court; and section 376, which speaks of reviews of judgments, uses the words " decree " and "judgment " in such a manner as to lead one to think that by the word " decision " the Legislature meant the " decree and judgment " taken together, and not simply the decree unexplained by the judgment. For the above reason, we think that the appeal ought to be decreed with costs; that we ought to give the same decree as the Judge ought to have done, viz., to reverse the decision of the Collector with costs, upon the ground that the plaintiff failed to prove that the defend- ant held under a grant made since December 1790, and consequently failed to prove that the case was one in which jurisdiction was conferred on him by section 20, Act X of 1859, leaving the plaintiff to file a regular suit under section 30, Regulation II of 1819, in which the validity of the grant set up by the defendant would be investigated and determined. The appeal is decreed without costs, and the decree of the Collector reversed. The costs of both of the lower Courts to bo paid by the plaintiff, the present appellant. FUIiL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Raikes, Mr, Justice Bayley, Mr. Justice Kemp, and Mr. Justice L. S. Jackson. PURNIMA CHOWDRAIN and others (Plaintiffs) v. NITTANAND SHAH 1863 AND OTHERS (DEFENDANTS).* '^ ' Evidence — Account, Adjustment of. The adjustment of an account may be proved by verbal evidence, and need not neces- sarily be in writing signed by the party to be bound. The facts of this case appear in the following remarks of the learned Judges of the Division Bench (Baylet and Morgan, JJ.) who referred the case to a FuU. Bench, for an expression of its opinion : — " The lower Appellate Court has reversed a decree for the plaintiff, in a suit brought to recover the balance of an adjusted and settled account. On the authority of Bhoopnarain Sahoo v. Sheogolam Sahoo (I) and Ramgopal Nundee v. Sreeram Pattuk (2), the Court holds that an account cannot be legally adjusted without either the signature or the written acknowledgment of the party sued. The Court does not merely decide that the evidence in this case is insufficient to satisfy the Court that there ever has been, in truth, an adjustment of the account, but it decides as a matter of law that in no case can an account be proved to be legally adjusted unless signed or acknowledged in writing. " The decision first quoted does not appear to us to recognize any such supposed rule of law. The later decision purports to be based on the first, but in effect it lays down, as we read it, the broad rule which the Judge has applied in the present suit. But for the authority of this last case we should have been inclined to think that the lower Appellate Court had erred in treating a circumstance which is in truth only evidence (though in most cases it may be very important evidence) of an, adjustment, as legally necessary to adjustment. A case may be supposed in which credible witnesses prove that the amounts have been fully examined and settled, and the balance ascertained and admitted by the defendant, the plaintiff's books showing the balance, proved to have been duly kept, being put in as corroborative evidence (Act II, 1855, s. 43). In * Special Appeal, No. 822 of 1862, from a decision passed by the Judge of Purnea, dated the 6th December 1862, affirming a decree of the Deputy Collector of that district, dated the 12th September 1862. (1) S. D. A., 1852, 594. (2) S. D. A,, 1859, 1228. FULL BENCH RULINGS. 1863 such a case a Court would probably be satisfied that the accounts had PuKNiMA been fully adjusted, yet it would be prohibited by law from giving effect P. to this adjustment. Although the precedent of Ramgopal Nundee v. '^'sh^h^^" 6Veera»i Pattuk (1) is opposed to our view, we do not feel authorized to depart from it, unless with the sanction of a Court composed of five Judges. We think the case should be referred to a Full Bench." Moonshee Ameer Ally (Baboo Anukul Chandra Mookerjee with him) for the appellant. Baboo Dwarkanath Mitter (Baboo Srinath Das with him) for the respondents. The opinion of the Full Bench was delivered by Peacock, C. J. — In this case the plaintiff sued upon an adjusted account. The first Court held that the plaintiff had proved the adjustment of the account. The Judge reversed that decision, upon the authority of two cases decided in the late Sudder Court, — viz., Ramgopal Nundee v. Sreeram Pattuk (1) and Bhoopnarain Sahoo V. Sheogolam Sahoo (2). In the latter case, the Court refer- red to a decision in the Privy Council, Sorabjee Vacha Ganda v. Koonwurjee Manikjee (3) ; but all that was decided in that case was that one party could not bind the other party by an adjustment made by himself alone in his own books. In that case there was no evidence whatever to show that the defendant had adjusted or acknowledged the correctness of the account. We are of opinion that the adjustment of an account or the acknowledgment of its correctness may be proved by verbal evidence, in the same manner as any other fact ; and that the Judge was wrong in point of law in holding that the adjustment could not be proved except by an acknowledgment in writing, or by a signature or visible mark. The Judge was, no doubt, right in acting upon the decision of the late Sudder Court, but we think that those cases were erroneously decided. The case must, therefore, be remanded to the Judge to try whether in fact there was any adjust- ment or not. (1) S. D. A., 1859, 1228. (3) 1 Moore's I. A., 47, (2) S. D. A., 1852, 594. ' FULL BENCH RULINGS. Before Sir Barnes Peacock, Ki., Chief Justice, Mr. Justice Baikes, Mr. Justice Trevor, Mr. Justice Bayley, and Mr. Justice L. S. Jackson. BISWAMBHAK MISSER and others (Plaintiffs) v. GANPAT MISSER Act X of 1859, ««. 28 and 160 — Appeal — Jurisdiction of Collector and of Zilla Judge. Appeals from orders passed by a Collector, on applications under section 28, Act X of 1859, lie to the Zilla Judge, unless the amount in dispute exceeds rupees 5,000, in which case the appeal will lie to the High Court. Applications under Act X of 1859, section 28, are suits, and should be treated as such not only as regards procedure, but also as regards appeals, (Raikes and Tkevor, JJ., dissenting.') The following were the opinions of the learned Judges : Peacock, C. J. (Batlet and Jackson, JJ., concurring). — The question in this case was whether an appeal from a decision, passed under the provisions of section 28, Act X of 1859, lies to the Revenue Commis- sioner or to the Zilla Judge. We are of opinion that the appeal lies to the Zilla Judge, unless the amount in dispute exceeds rupees 5,000, in which case the appeal will lie to the High Court. The words used appear to us to be very clear. They state that the application made to the Collector, under the provisions of the aforesaid section, is to be "dealt with as a suit;" and again that "every such suit shall be " instituted within the period of twelve years from the time when "the title of the person claiming the right to assess the land first " accrued." The object of section 28 was to prevent proprietors of estates from acting upon their own authority, without application to a Court of Justice. The words "shall make application to the Collector" were probably used in contradistinction to the rule laid down in section 10, Eegulation XIX of 1793, by which it was enacted that parties might act without application to a Court of Judicature. Section 151, Act X of 1859, refers to orders passed by the Revenue authorities in their executive capacities, and not to judgments in suits, or orders passed in the course of suits. From any such judgments the appeal lies to the Zilla Judge, and not to the Revenue Commissioner. * Special Appeal, No. 1988 of 1861, from a decision of the Judge of Behar, dated the 2nd August 1861, reversing a decree of the Deputy Collector of Aurungabad, dated the 6th April 1861. 1863 (Defendant).* Mar. 18. FULL BENCH RULINGS. 1863 Further, in sectiou 160 of the Act, it is enacted that in "all suits BiswAMBHAK " other than those in which, when tried by a Collector, the judgment of ^ " the Collector is declared to be final, or when tried by a Deputy CoUec- ^"^sEE tor, an appeal is allowed to the Collector, the appeal from the judg- " ment of the Collector or Deputy Collector shall lie to the Zilla Judge," or to the High Court. This case does not fall within any of the excep- tions noted in section 160 of the Act. We think that we should not be justified in putting such an inter- pretation upon the words above quoted from section 28, as to say that it was the intention of the Legislature that an application under that section was to be dealt with as a suit as regards procedure, but not as regards appeals from decisions. This decision upon the point of law will be transmitted to the Division Court, for their guidance in finally determining the appeal. Tkevor, J. — I adhere to the Court's ruling as given on the 7th November 1861. The only reported case of this date is Anundmyee Dabee Chowdrain v. Hurrish Chunder Chowdhry and Sheebdyal Sewarree (1). But this decision has no bearing on Act X of 1859. I draw a distinction between the procedure inculcated in sections 25, 26, 27, and 28, and that of suits under sections 23 and 24 of the Act, because section 34 prescribes that — " suits under this Act shall be insti- " tuted by presenting to the Collector a plaint, or statement of claim, which " shall contain the name, description, and place of abode of the plaintiff ; " the name, description, and place of abode of the defendants, so far as " they can be ascertained ; the substance of the claim, and the date of the " cause of action ; " whereas the form prescribed in sections 25, 26 27, and 28 is not by plaint, but by application, and though the application when made is to be " dealt with as a suit," or in the manner provided for suits under the Act, yet it is clearly not instituted as suits are instituted and consequently the orders passed by the Collector are not "judgments in suits ; " nor orders passed by a Collector " in the course of suits and re- " latmg to the trial thereof, or orders passed after decree, and relating to " the execution thereof," and are, therefore, in my opinion appealable under section 151, to the Court of Revenue. I would, moreover remark that the procedure in the suits under this Act is specially laid down in sec- tions 34, 35, 36, and following sections ; and the rules applicable respect- ing the nature of the suits referred to in sections 23 and 24 are given in detail, while no further reference is made to such matters as are treated (1) S, D. A., 1861, 163. FULL BENCH RULINGS. 7 of in sections 25, 26, 27, and 28. It appears to me that if the matters 1863 therein referred to were intended to have been made the subjects of Biswambhak suits, some detail regarding the conduct of such suits would have been ^^'^^"^^ likewise given in the Act ; whereas while the cause of action detailed in G^^^^-*^^ dis- sections 23 and 24 are separately treated, no mention whatever is made either as to the conduct of an execution of decree in cases arising out of applications made under the other sections. As, therefore , the law does not contemplate that they shall be considered as suits, I do not think the orders applicable to judgments and orders passed on suits can apply to them ; and I therefore adhere to the opinion previously expressed by the late Sudder Court on this point on the 7th November 1861 (I). Raikes, J. — After giving every attention to the opinion recorded by the majority of the Court, I adhere to the view of the law adopted by the Court on the 7th November 1861 (1). There are, it appears to me without question, difBculties found in the wording of the law, and these difficulties seem to me to be unnecessary by allowing the Collector and the ordinary Court concurrent jurisdiction. Whereas I consider an application under section 28 not a suit, but a mere application, the action of the ordinary Civil Courts is not interfered with by the con- current jurisdiction. As, however, the majority are of another opinion, it is unnecessary for me to pursue the matter further. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Steer, Mr. Justice Norman, Mr. Justice Kemp, and Mr. Justice Seton-Karr, ANNADA GOBIND CHOWDHRT ani> others (Dependants) v. RANI 1863 SWARNAMAYI (Plaintiff) and others (Defendants).* April 11. ABHAY GOBIND CHOWDHRY (Defendant) v. RANI SWARNAMAYI (Plaintiff) and otheks (Defendants). Limitation— Beg. Ill of 1793, s. U—Act XIV of 1859, s. 1, cl. \6— Mesne Profits. Plaintiff sued for and recovered possession of land. He afterwards sued for mesne profits. Eeld, per Peacock, C. J., and Norman and Sbton-Kake, JJ. (^dissentientibus Steer and Kemp, JJ.), that under Reg. Ill of 1793, s. 14, plaintiff was entitled to recover mesne profits for twelve years prior to suit, excluding from such computation the period of the pendency of the suit for possession, from the date of the plaint till the final decree. On the 19th November 1852, the plaintiff in these cases instituted a suit, in the Court of the Principal Sudder Ameen of Dacca, for recovery of possession of 6025 bigahs of land, and he obtained a decree for posses- * Regular Appeals, Nos. 397 and 402 of 1860, from the decision of the Principal Sudder Ameen of Dacca, dated the 22nd September 1860. (1) S. D. A., 1861, 163. 8 FULL BENCH RULINGS. 1863 sion on 13th July 1855. Subsequently, on the 21st of July 1858, the Annada plaintiff brought a suit for recovery of mesne profits of the land. Chowdhkt The lower Court decided that, in accordance with former precedents, Rani^Swar- ^ plaintiff could, by a fresh suit, recover wasilat for (1st) twelve years NAMATi. previous to his suit for possession ; (2nd) the time during which that Abhat Go- former suit was pending ; and (3rd) a period not exceeding twelve years DHRY from the date of the decision of the former suit. A decree for wasilat Eani Swak- calculated upon these principles was, accordingly, passed for the plaintiff. namayi. P(jj. j.jjg appellant it was urged that the decree for wasilat must be confined to the twelve years immediately preceding the date of the present action. The case came on before Campbell and Baxlet, JJ., on 11th April 1863, and they were of opinion that the decision of the lower Court was in accordance with the precedents in Mahomed Hosseivi v. Mussamut Woozeerun (1) and Khetter Monee Dossee v. Gopee Mohun Roy (2) ; but as they considered the rulings therein contrary to the law, they referred the question, for what period the plaintiff was entitled to recover mesne profits, for the opinion of a Full Bench. The opiuions of the learned Judges upon the question referred to them were delivered as follows : — Peacock, C. J. (Norman and Seton-Kakr, J J., concurring). — This was a suit instituted on the 21st of July 1858, for the mesne profits of 6025 bigahs of land, of which the plaintiff recovered possession by a decree dated 13th July 1855. The lower Court awarded to the plaintiff mesne profits from the 18th July 1841, till the 10th April 1856, the date when the plaintiff recovered possession, being 1 4 years, 8 months, and 26 days. The suit for possession was instituted on the 19th November 1852. The question in appeal is whether the plaintiff's claim is barred to any and to what extent by the Regulation of Limitation, III of 1793, section 14 (3). (1) S. D. A. Rep., 1853, 8i9. positive proof, that he had demanded the (2) 1 Hay's Kep., 178. money or matter in question, and that the (3) Regulation III of 1793, s. 14.—" The defendant had admitted the truth of the Zillah and City Courts are prohibited hear- demand, or promised to pay the money ; ing, trying, or determining the merits of or that he directly preferred his claim any suit whatever, against any person or within that period, for the matters in dis- persons, if the cause of action shall have pute, to a Court of competent jurisdiction, arisen previous to the 12th of August 1765 ; to try the demand, and shall assign satia- or any suit whatever against any person or factory reasons to the Court why he did persons, if the cause of action shall have not proceed in the suit ; or shall prove that, arisen twelve years before any suit shall either from minority or other good and have been commenced on account of it ; un- sufficient cause, he had been precluded from less the complainant can show, by clear and obtaining redress." FULL BENCH RULINGS. S The answer would be comparatively free from difficulty, were it not isfiS necessary to consider first what is the eiFect of certain decisions in the Annada Sudder Court, which are supposed to have put a construction upon the cnowimRY Regulation in question. Eani Swar- The first of these is Gooroo Per shad Fotedar v. Komlahant Base (1). namayi. The plaintiff obtained a decree for possession on the 10th September AbhayGo- 1816, and commenced his suit for mesne profits on the 8th December duky 1 828 (more than twelve years after the decree for possession), in which j}^j,i sWak- he obtained judgment for mesne profits from 1808. The ground on which namayi. the efiects of the Regulation were said to be avoided was that the suit for mesne profits was brought within twelve years from the time when the plaintiff" obtained possession under the decree. The same point was assigned as a reason for the decision in Rajah Anundnauth Roy v. Dwarkanath Thahoor (2), in which the plaintiff' was allowed to recover mesne profits for a period of twenty-seven years before suit. The ground taken by the Court in these cases may be dealt with at once by the obser- vation that actual re-entry is no part of the cause of action in a suit for wasilat ; and a plaintiff' cannot create rights by his own laches against a defendant. Azrawil Singh v. Balgovind Singh (3) was a suit instituted on the 28th of May 1850, for wasilat from 1819 to 1855. The plaintiff appears to have obtained a decree for possession on the 9th August 1831, under which he got possession in 1837. The decree was affirmed by the Sudder Court, on the 8th April 1859. The suit was dismissed by the Principal Sudder Ameen, but the Court held that the cause of action must be considered to have arisen when all litigation regarding the right to the lands finally ceased. The suit was, in fact, instituted fourteen years after the latest date to which wasilat was claimed, and more than twelve years after the plaintiff" got actual possession of the land. In the marginal note it is said that the Court held " that the period during which litigation was protracted in appeal by the defendant should be deducted." Mahomed Hossein v. Mussamut Woozeerun (4 ) is to the same eff'ect. In Dudalee Khan v. Mussamut Woozeerun (5), the suit was brought on the 14th February 1851, for wasilat from 1826 to 1841. The Prin- cipal Sudder Ameen awarded wasilat for the two years, 1840 and 1841, as being within the twelve years before suit : but this decision was reversed, and the full amount awarded by the Sudder Court. In Bachoo Chowdree v. Ramnarain Singh (6), it was held that though the defend- (1) 6 Sel. Bep., 52. (4) S. D. A. Kep., 1853, 849. (2) S. D. A. Rep., 1847, 157. (5) lb., 851. (3) S. D. A. Rep., 1853, 830. (6) S. D. A. Rep., 1854, 31. V, iS iSAMAYI, 10 PULL BENCH RULINGS, 1803 l»AK, cnused properties belonging to her husband's estate to be sold at auction ^ ° ° Kalikumau in execution of decrees against her for personal debts ; that all these Cuowuhky alienations were invalid according to Hindu law. This suit was, Rajidas therefore, brought by the plaintiff, on behalf of her minor son Eabilochan J^^- Mitter, for possession of the properties detailed in schedule 1 annexed GauehariGui to the plaint, and for the recovery of damages with reference to the Peaki Dast. properties detailed in schedule 2, also annexed to the plaint. Machoorasi The following question was referred by the Division Bench (Peacock, ». C. J., and Kemp, J.), before whom this and the other appeals in which ' q^i' the same question arose were heard, for the opinion of a Full Bench : — " Whether the conveyance by a Hindu widow, for causes other than those allowed by Hindu law, of property inherited from her husband, is void as against the widow ? " Baboo Chandra Kali Ghose for plaintiff. Baboos Anukul Chandra Mookerjee, Naba Krishna Mooherjee, Chandra Madhab Ghose, and Kali Krishna Sein for defendants. The opinion of the learned Judges upon the question proposed to them was delivered by * Peacock, C. J. — The question which was referred for the considera- tion of a Full Bench in these appeals, is whether a conveyance by a Hindu widow of moveable property, which she takes by descent from her husband, is valid during the widow's life, if the conveyance is made for causes other than those allowed by the Hindu law ; and if not, whether the reversionary heirs of the husband can interfere by suit to cause the property to be delivered up to themselves or to the widow. The case has been very fully and elaborately argued on both sides. The principal authorities on the subject are collected in the Vyavashta Darpana, a very useful book upon Hindu law by Baboo Shama Churn Sircar. Katayana says : " Let the childless widow, preserving unsullied the bed " of her lord, and abiding with her venerable protector, enjoy the property, « restraining herself until her death ; after her, let the heirs take it" (1). (1) Coletrooke's Dayabhaga, Chap. II, Sec. 1, para. 5G. 50 FULL BENCH RULINGS. 1864 goeindmani Dasi V. SlIAMIAL BVSAK. Kalikumar Chowdhby V. Bamdas Shaha. Gauuiiaki Gui V. Peaei Dasi. JlAOITOOnAM Sen V. Gaiieiiaei Gui. Again — " The widow is only to enjoy her husband's estate, she is not " competent to make a gift, mortgage, or sale of it " (1). In Colebrooke's Digest, Vol. Ill, p. 465, it is said : " It fully appears " that the widow's disposal of her husband's property at pleasure, otherwise " than by the simple use of it, or by donation for the benefit of her lord, " is invalid." Sir William Macnaghten, a very great authority, appears to have been of opinion that a gift or conveyance by a widow other than for allowable cause, was void not only as against the reversionary heirs of her husband, but also as against herself (see Macnaghten's Hindu Law, Vol. I, pp. 19, 20). In the case .of Doe d. Bonnerjea v. Bonnerjea (2), the plaintiff was nou-suited. The decision turned upon another point, and is no authority upon the question now under consideration ; but it is important as containing the opinion which was delivered to East, C. J., by Macnaghten, J., drawn up by his son Sir William Macnaghten. The opinion was as follows : — " If a widow make a sale in perpetuity of her husband's " landed property, by a deed to that effect, the purchaser, as she had " no right to make the sale, will not be benefited by it ; nor will "he be entitled, in virtue of it, to the interest which the widow " has in the estate. This is founded upon the principle of the sale being " without ownership, which renders it void ab initio, and not, as I " before thought, upon the principle of a greater interest being conveyed " by the deed than the widow was competent to grant. The Pandits " wtom I have to-day consulted agree in saying that, if one of four "brothers make a deed of sale of the whole patrimonial property, it " will be held good as far as his share is concerned, because the sale creates " ownership in the purchaser, and not the deed, which is only proof of " the sale, and may be taken to prove it as far as will serve that pur- " pose ; though invalid with respect to the conveyance of the property " of the other brothers, it is valid against himself, and is proof of his "intention. Not so in a deed made by a widow : she has no unlimited " proprietary right over any part of her husband's property, but merely " a general usufructuary right over the whole indiscriminately. It is " clear, therefore, that she cannot convey the whole in perpetuity, but the " deed by which she conveys it is void ah initio as to the sale, nor can " it convey the interest which she possesses which (independently of " its not being ti'ansferable) is an interest of a totally different nature " from that of proprietary right " (3). (1) Colebrooke's Dayabhaga, Chap. II, Sec. (2) 2 Morley's Digest, 152. 1, para. 56. (3) Ibid, 155. PULL BENCH KULINGfS. 51 The opinion that the purchaser would not be entitled during the 18G4 V. Eamdas Shaha. Machookaji SErf V. Gaurhari Gui. widow's life was founded upon the principle that she had no proprietary Goeindmasi right over any part of her husband's property, but merely a general p. usufructuary right over the whole indiscriminately, and that the sale btsak.^ being without ownership was void aJ initio by the Hindu law. The ;g^.j3rjnu opinion of Sir William Macnaghten was founded upon the same prin- Chowdhry ciple, upon which he also gave his opinion in the same case, that the sale of a father's property by a son during the father's life-time was void ab initio, upon the ground that it was a sale without ownership, G^ukhari Got and, therefore, not binding after the father's death upon the son who Pea ri D asi. succeeded to the property as his father's heir. Sir William Macnaghten appears to have considered that the widow had no greater right iu an estate which she takes by descent from her husband than a son has in the estate of his father during his father's life-time. This, however, is not the case. In Goluckmonee Dabee v. Degumhur Dey (1) (Sup. Court, November 15th, 1852), the Court said :— " No part " of the entire interest, when the widow takes by inheritance, is in suspense" " or abeyance in any way ; nor is there a reversioa on a life-estate, but " the whole interest is in the widow. When she takes as heir under the " Hindu law, she is ranked in all treatises as heir. Sir Francis Mac- " naghten treats her estate rightly as anomalous, and other writers treat it " as coming to her as heir ; therefore, when they term it also a life-estate, " they use that expression in a sense different from that of a pure and " mere life-estate " (2). The Court goes on to say : " It has been in- " variably considered, for many years, that the widow fully represents the " estate, and it is also the settled law that adverse possession which bars " her, bars the heir also after her, which would not be the case if she " were a mere tenant-for-life as known to the English law " — (3) ; see also the case of Cossinauth Bysaok v. Hurrosoondery Dossee (4) in the Privy Council, 24th June 1826, from which it would seem that the widow takes more than a life-estate. See also Judomoney Dabee V. Saroda Prosono Mooherjee (5) ; and Macpherson on Mortgages, 3rd edition, page 28. In Hurry Doss Dutt v. Sreemutty Uppoortiak Dossee (6), it was held that the title of a widow to her husband's property, though a restricted one, was not in the nature of a trust. There are some decisions in the Sudder Court in which it has been held that the conveyance does not operate as against the widow during her (1) 2Boulnois' Rep;,19Si (4) Clark's Rales and Orders, 91; and Q2) Macpherson on Mortgages, 3rd Ed., 25. Montriou's H. L. Cases, 495. (3) TJ.j 27. (6) 1 Boulnois' Rep., 129. (,6) e Mooi-e's I. A., 443, 52 FULL BENCH RULINGS. 1864 life-time. In Hemchund Mozoomdar v. Mussamut Taramunnee (1), Goci-NDjiAsi it was declared by the decree that a deed executed by the -widow ^«'^' should not, after her death, operate to preclude the right of the surviv- ^BysIk'!^ ing heirs, leaving it to operate during her life-time. In Kishno Govind Sein v. Gunganarain Sircar (2), the Supreme Court Chowdhky declared a decided opinion that a widow had no right, other than for Eamdas allowable causes, to make any grant of her interest in the estate ' ' which could inure beyond hsr own life. In the case of Ramanunda G^^^'^^^^^'^^'- Mukhopadya v. Ram Krishna Dutt (3), it was admitted by all the Peaiii Dasi. Judges of the Supreme Court, that the grant which was made by a widow Machoosam of property inherited from her husband, and which it clearly appeared V. was not made for the benefit of her husband's soul, was good for her *^'^Gu/.'^°' life. In Cossinauth Bysack v. > Hurrosoondery Dossee (4j, in the Privy Council, to which we have already referred. Lord Gifford, after reviewing the opinions of the different Pandits, observes : "Tlie '•'result, as it appears to me, of these different opinions is this : ■" that they all agree, as I have already stated ; that the widow Hurro- " soondery Dossee is entitled to absolute possession ; that she has, for " certain purposes, a clear authority to dispose of her husband's properly ; " she may do it for religious purposes, including dowry to a daughter, " and making gifts and donations to the husband's family. But they differ " in this. The Court Pandits say that if- she alienates the property for '-' other purposes, without the consent of the husband's relations, it " would be invalid ; the others say that though she would incur moral '' blame, if applied for purposes not allowed, yet the act would be valid as "against the relations of the husband. In that respect the four Pandits " differ from the Pandits of the Court, founding their opinion on the " doctrines contained in the Eatnakara and Chintamani where not over- " ruled by the Dayabhaga and Dayatatwa " (5). It appears also from the same judgment that two other Pandits were examined, and were asked whether they agreed with or differed from the opinions of the Court Pandits. Their answer was : " We agree with them that such " gifts are not valid as a^-tiiist the next heir of her husband ; but " we say that they are valil as against the widow, who could not "reclaim them, wjiereas the heir is entitled to do so" (5). In Collychund Dutt v. Mooree (6), Ryan, C. J., says, " that a grant made " by a widow for her own life is good, has been decided in this Court." (1) 1 S. D. A. Eep., 359. (5) -STyavastha Darpana, 133, 1st Ed.; Ed., (2) Macnaghten's Cons,, Hiu. Law, 18. 1867, 97. (3) Ih., 19-20. (6) Fulton's Eep., 73. (4) Clark's Kules and Orders, 91 ; Mon- triou's H. L. Cases, 495. fULL BENCH RULINGS. 53 Upon the whole, after considering all the cases upon the subject, we i864 are of opinion that a conveyance by a Hindu widow, for other than Gobindmahi allowable causes, of property which has descended to her from her hus- ^^' band, is not an act of waste which destroys the widow's estate and Shamlal vests the property in the reversionary heirs, and that the conveyance is binding during the widow's life. The reversionary heirs are not, after CiiowDnnr her death, bound by the conveyance ; but they are not entitled, during Eamdas her life-time, to recover the property either for their own use or for the haha. use of the widow, or to compel the restoration of it to her. If the Gaukiiaki Gui widow in any case be imposed upon and induced to execute a convey- Peaei Dasi. ance by fraud, the conveyance will, in such a case, as in all other cases of Machookam fraud, be void. „' It has been urged that the reversionary heirs may be prejudiced if '^g™'^^' they cannot sue for the property during the widow's life, for after her death it may be difficult to procure the necessary evidence to show that the conveyance was executed for causes not allowable ; and that, in the case of moveable property, such as money or valuable securities, irrepar- able injury may be done to the reversionary heirs bythe grantees making away with the property during the widow's life ; or in the case of im- movable property, by committing waste. But our decision will not preclude the reversionary heirs, even during the life-time of the widow, from commencing a suit to declare that the conveyance was executed for causes not allowable, and is, therefore, not binding beyond the widow's life. Nor will it deprive the reversionary heirs, during the life of the widow, of their remedy against the grantee to prevent waste or de- sh'uction of the property, whether moveable or immoveable, in the event of their making out a sufficient case to justify the interference of the Court. Our opinion will be reported to the Division Court by which the question was referred to us, for their information and guidance. 54 FULL BENCH KULtNGS. 1864 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Steer, Mr. Justice Norman, Mr. Justice Kemp, and Mr. Justice Selon-Karr. D. H. KEAENES (Defendant) u. BHAWANI CHAEAN MITTEE (Plaintiff).* Indigo Factory, Assignment of— Assignee, Liability of, to Creditor of the Factory — Bena Powna, Contract to take over. A., by deed duly registered, assigned his interest in an Indigo Factory to B. In tie deed was a recital that it had been agreed that B. should take over the dena powna account of the Factory as the same stood on the 30th September 1856. C. sued A. and B. jointly to recover rent in respect of lands which had been occupied under a lease from C. with and for the use of the Factory, and which was due on the 30th September 1856. B. raised the defence that the debt was not included in a schedule dated 30th September 1856 signed by A., and which he alleged had been furnished to him by A. as containing a list of the liabilities of the factory. Seld, if a trader or other person in this country assigns his stock-in-trade and effects to another, and such other person enters into a contract with the first to pay the debts of the concern, or a certain portion of such debts, the contract and assignment create a liability to the creditors in whose favor such contract is made, which they may enforce by suit ; nor is the creditor bound to elect between his original debtor and the assignee, but he may join them as co-defendants in the same suit. Reld also per Peacock, C. J., and Norman and Kemp, JJ., (dissentientibus Steek and Seton-Kaek, JJ.,) the case must be remanded to the lower Court to try what was the agreement between A. and B., as to B. taking over the dena powna account of the factory, whether the schedule was an essential part of the contract or not. By indenture duly registered, dated the 5th March 1857, Macdonald assigned to Kearnes his moiety of the Bargauti indigo factory, and also of all balance sums of money, bonds, &c., due and owing by ryots and other persons to the factory. The deed recited that Kearnes had agreed with Macdonald for the purchase of the moiety of the factory, as from the 1st of October 1856, for the price of rupees 8,000 ; and that it had been agreed that Kearnes should take over the dena powna account of the said factory in respect of the said half part or share, as the same stood on the 30th day of September 1856. The plaintiff sued Macdonald and Kearnes to recover rent in respect of lauds which had been occupied under a lease from him with and for the use of the factory. The amount was due on the 5th September 1856. It was alleged by Kearnes that Macdonald had furnished him with a schedule under his (Macdonald's) signature, dated the 30th Septem- * Special Appeal, JTo. 863 of 1861, from a decision passed by the Additional Judge of Jessore, dated the 2nd March 1861, modifying a decree of the Principal Sudder Ameeu of that district, dated the 22nd December 1860. PULL BENCH KULINGS. 55 ber 1856, specifying the liabilities of the factory at that date. The debt sued for had not been entered in the said schedule. As against Kearnes the plaintiff relied upon, the purchase from Macdonald of his interest in the factory, together with the debts and liabilities (mae dena powna), and upon an alleged custom that liabilities for arrears of rent on account of land in the use and occupation of a factory were taken up by the party to whom a predecessor's rights in a factory had been conveyed. The lower Appellate Court held Kearnes liable, and he appealed to the High Court. The case came on before Batlet and Campbell, JJ., on the 11th April 1863, but these learned Judges, differing as to tlie liability of Kearnes, referred the question for the opinion of a Full Bench. The opinions of the learned Judges of the Full Bench were as follows : — Peacock, C. J. (Norman and Kemp, JJ., concurring), after reading the indenture as above, proceeded : — The plaintiff sued for the recovery of rent due for lands, which had been occupied with and for the use of the factory. The lease under which the rent became due had expired before the date of the indenture of assignment, and the rent sued for had become due before that date. The rent was in fact a debt due on account of the factory, or, in technical language, one of the debts of the factory. The terms of the agreement, as recited in the deed, were general, to take over the dena powna account as it stood on the 30th of September 1856, and not any particular account as furnished by Macdonald. But it was contended that the true contract of the parties was that Kearnes should take over the debts, mentioned in a list or schedule, dated the 30th of September 1856, and signed by Macdonald, though this instrument is not expressly referred to in the deed, and that, as the debt in question was not entered in this list, Kearnes was not liable to pay it. The Judge says : " On looking into respondent Kearnes' bill of sale, "dated 5th of March 1857, I find that he therein covenants to take over " the dena powna account of the factory of Barganti, 8 annas for himself " and 8 annas as attorney for Mr. Macdonald, as it stood on the 30tli " of September 1856. Now, as above shown, the sum in dispute was, "on the 30th of September 1856, a part of the dena powna account of " the above factory. But the respondent, Kearnes, pleads non-liability, " because, he says, the sum in question was not entered in the dena " account furnished to him by Macdonald, as by exhibit filed, dated the «' 30th of September 1856, under that person's signature. But in the "first place, that exhibit did not form a part of the bill of sale transaction 1864 Kearnes V. Bhtawani Charan MiTTEE. 56 FULL BENCH EULINGS. 1864 " of the 5th of March 1857. Then, secondly, although its accuracy was Keaknes " denied, and its alleged executant, Macdonald, was made a party to the Bhawani " suit by appellant, yet it was not attested, nor was its executant sum- Uimv "moned by respondent Kearnes to attest it ; and lastly, supposing it "to be a, bona Jide paper, it only represented the (fewa of the factory " as Macdonald believed them to be, and not as respondent accepted these " dena, viz., in full and without reservation in the bill of sale of March " 1857." It is clear that the Judge is mistaken in supposing that the bill of sale contains a covenant by Kearnes to take over the dena powna accounts. It contains a recital of an agreement between Kearnes and Macdonald on that subject, and upon that agreement the rights of the plaintiff in the present suit rest. There is nothing in the bill of sale to alter the terms of the original agreement, whatever it was, if that agree- ment was, in fact, an absolute undertaking on the part of Kearnes to take upon himself all the debts of the factory as they stood on the 30th of September 1856 ; and by the bill of sale all the property and assets of the factory were assigned to him for that purpose. We think that he must be taken to have incurred a liability to the creditors of that factory which such creditors could enforce by suit. The contract would be for the benefit of creditors, and would create a trust or obligation to them, which, we think, they could adopt and enforce. It would be vei'y hard upon them if they could not do so. The bill of sale conveys to Kearnes Macdonald's share of the factory, and of the debts due to the factory to which the creditors of the factory had a right to look for satisfaction of their debts. That assignment being made honestly, and upon a valuable consideration, viz., the contract of Kearnes to pay the creditors of the factory, could not in this country be impeached by the creditors. In England, an assignment of all the stock-in-trade and effects of a trade under such circumstances, might be defeated by the creditors as being an act of bankruptcy and void as against them. Here, however, unless we were to hold that the creditors could sue the assignee, the whole of the assets of the debtor to which they have a right to look for satisfaction of their debts might be removed beyond their reach by assignment, and they would be left without remedy. By the law of this country, the light of action to recover a debt is capable of being legally assigned, so as to give the assignee a remedy by action at law, and there would seem to be no sound reason why the liability of the debtor should not also be assignable. It seems that, by the common understanding and custom of the country, the purchaser of an indigo fiictory who takes it with the dena powna, is liable to be sued by the creditors of the concern. We, FULL BENCH RULINGS. 57 therefore, think that it may be laid dowu as a rule that, if a trader or, other person in this country assigns his stock-in-trade and effects to another, and such other person enters into a contract with the first to pay the debts of the concern, or a certain portion of such debts, the contract and assignment create a liability to the creditors in whose favor such contract is made, which they may enforce by suit. By so holding, we think that we are only giving effect to that which, we find from several of the cases reported amongst the decisions of the late Sudder Court, Frith and Sandes v. Chunder Monee Debea (1), Syed Mahomed BakuTY. Blanchard, Spence, and others (2), Meares v. De Brandy (3), has evidently been treated as the law and usage of this country with respect to the assignment of indigo concerns, though the principles upon which such liability must rest do not appear to have been very clearly stated or defined. We desire, however, to add that nothing which takes place between the assignor and assignee, under such circumstances, can, in any way, affect the right of the creditors as against the original debton unless the creditor has agreed to discharge him. We think that the case must be remanded to the lower Court to try what was the real agreement between Kearnes and Macdonald with reference to the debt in question. The recital in the deed, which is only evidence of the agreement, and not itself the agreement, refers to the state of things on the 30th September 1856, and the question will be whether the list under that date, and signed by Macdonald, was a mere estimate, or an essential part of the contract as an actual schedule of the debts which, and which alone, Kearnes, as between himself and Mac- donald, undertook to pay. We think that the plaintiff could not compel Keai-nes to pay any debt which, as between Kearnes and Macdonald, he was not bound to pay, for although it is urged that the deed was registered, and the exhibit was not registered, the registry was not for the purpose of giving notice to the creditors of tlie factory of the contracts which Kearnes and Macdonald had not entered into, but to prevent a subsequent registered purchaser of the factory from obtaining a priority over Kearnes, if Macdonald should sell it to another person. But this is a special appeal, and we think that the finding on record is not sufiicient to show that the exhibit in question contained a list of all the debts which Kearnes contracted to pay, or that it contained any fraudulent misrepresentation 1864 Kearnes V. Bhawani Chaeah MiTTEK. (1) S. D. A. Eep., 1857, 1720. (2) S. D. A. Kep., 1848, 186. (.3) S. D. A. Eep., 1852, 716. 58 FULL BENCH RULINGS, 1864 JHeabnes V. Bhawani Charan MiTTEH. on the part of Macdonald, in order to induce Kearnes to enter into the contract in general terms to take over the dena account of the factory. In the above view of the law, we think that the creditor is not bound to elect between his original debtor and the assignee of the factory, but that he may look to the assignee for payment, and also have recourse to his original debtor in the same manner as the grantor of a lease may sue an assignee of the lessee for rent, and may also hold the original lessee responsible under his covenant. And as we are not fettered by any strict technical rule which might prevent the joinder of parties as co-defendants, whose liability is not strictly joint, we think that the assignee may be sued as a co-defendant with the original debtor. We desire to add some observations as to several grounds on which the judgment of the Court below is rested, and as to certain cases on the subject of the liability of the assignees of indigo concerns. The Judge says that, by the bill of sale, Kearnes covenanted to pay the dena of the factory in fuU and without reservation, and, therefore, that he was liable, notwithstanding that the rent in question was not mentioned in the list drawn up in September 1856. Now, there is no express covenant by Kearnes to pay these debts. The indenture recites the existence of such an agreement, but, under the circum- stances of the case, there is no sufficient reason for treating the recital as a covenant. To construe it as a covenant, we must alter the language, and though, in order to carry into effect the evident intention of the parties, that may sometimes be done, that rule of construction does not apply, where, as in the present case, the application of it would alter the position of the parties to the prejudice of one of them. Even if it were expressed in the language of a covenant, Kearnes would still be at liberty to obtain relief, if he could show that it was a mistake and that the actual contract was that he was to be liable to pay only the debts in the schedule which were meant to be described, when the parties in the deed spoke of the liabilities as they stood on the 30th of September 1856. Secondly, he says : — " The respondent Kearnes was liable by the " general custom of indigo planters. Sums due on account of current " rents are not to be considered as the personal debts of the pro tempore " proprietors, but as running with the land, and, therefore, as a lien on the " factory to which the land was attached." The deed of transfer does not specially charge this rent upon the factory, or declare the factory liable for the debt, so as to bring the case within the terms of the rule stated FULL BENCH RULINGS. 59 in Frith and Sandes v. Chunder Monee Debea (1). Looking to general principle, as well as to the authorities iu the late Sudder Court, and particularly E. D. DeSarun v. Woma Churn Sett (2), there seems no ground whatever for saying that the back rents of a firm, the lease of which had expired before the sale of the factory, can be considered as a lien on the factory and other property belonging thereto in the hands of a purchaser. In Young v. Tiery (3), it was held that the purchaser of a lease is not liable for arrears of rent due by the previous owner. If the purchaser of the land out of which the rent issues is not, without express contract, liable for back rents, still less it would seem, can a purchaser of land, out of which the rent did not issue, be held so liable. Meares v. DeBrandy (4) was a suit for aiTears of salary by a servant of a factory. The Court below held that the em- ployer was discharged by the sale of the factory to the purchasers. The decision was reversed by the Sudder Court on the ground that the claim did not attach as a lien on the factory. But whether it did so attach or not, it would be a monstrous doctrine to hold that one who has dealt with a person whom he knoVs or believes to be solvent, should be deprived of his remedy against the person with whom he dealt by any act of the debtor without his own consent. In Syed Mahomed Bakur V. Blanchard, Spence, and others (5), Mr. Tucker, in admitting the appeal, said: — "The universal practice I believe to be, if nothing be said to the contrary, that a person purchasing an indigo factory is respon- sible for the debts due by the factory." In delivering judgment, the Court says : — " It is the general practice that, if money be borrowed for a factory by a party competent to borrow, the factory is responsible for it, notwithstanding transfer by purchase, as the transfer carries with it all the liabilities of the factory." We have already seen that if, as in the present case, the purchaser by the contract of sale takes over the assets of the factory, and agrees to pay the debts, the creditors may adopt and avail themselves of the contract in their favor. It is hardly suggested that there is any local or special custom which carries the liability of the purchaser further than this. Indeed any such custom would be certainly at variance with the general law applying to the case of in-coming and out-going partners. The rule applying to such cases is stated in Lindley on Partnership, Volume I, page 314 : "A person, who is admitted as a partner into an existing firm, does 18G4 Kkaunes V. Bhawani Charan MiTTEB. (1) S. D. A. Eep., 1857, 1720. (2) S. D. A. Eep., 1858, 1814. (3) S. D, A. Kep., 1856, 199. (4) S. D. A. Eep., 1862, 716. (5) S. D. A. Eep., 1848, 186, 60 FULL BENCH RULINGS. 1864 Keaenes V. Bhawani Charan MiTTEK. not, by his entry, become liable to the creditors of the firm for anything done before he became a partner." The same rule holds as to a pur- chaser. The Court, in Si/ed Mahomed Bahur v. Blanchard (1), further say : " The factory must be considered as chargeable -with the debt." Land may be charged with a debt in the hands of a purchaser where any lien or equitable mortgage on the land is credited at the time of the creation of the debt, or in cases of ryots receiving advances under Regulation VI of 1823, section 2 ; but ordinary debts do not imply liens on the property of the debtor. And in cases where a lieu exists upon particular property, it must be enforced by suit to declare such property liable, and to obtain payment by the sale or out of the proceeds of it, not by an ordinary suit for debt against the person who has taken the land subject to the charge. If it were otherwise, the whole property of such person, and not merely the property charged with the debt, would be liable. In Motee Loll Seal v. Mudden Thakoor (2), the substantial point was whether, according to the conditions of a biU. of sale from the Sheriff, the plaiutiff who purchased the interest of one Oman in a factory at the Sheriff's sale, took it subject to the liabilities which attached to it in Oman's hands. The question whether the plaintiff could maintain the suit was not raised. The case is very shortly reported, and not satisfactorily ; and, so far as it states the debt not to be merely a personal one against Oman, appears not consistent with the latter case, in the Sudder Court, of E. D. De Sarun v. Woma Churn Sett (3). Steee, J. — I never entertained any doubt that, according to the well» understood meaning of the words dena powna, and the every-day practice of owners of indigo concerns, the purchaser of a factory who takes upon himself the dena powna of it, or in other words, the assets and liabilities, and publishes it to all the world in the most public and effectual way, viz., by registration of the deed of purchase, and the terms of it, in the office of the Registrar of Deeds, was liable to the creditors for debts contracted by the factory. But still creditors are not restricted in their action against the purchaser individually, but they may sue both him and the late owner, and the Judge, who so held in the Court below, took, therefore, a right view of the matter. (1) S. D. A. Eep., 1848, 186. (2) S. D. A. Eep., 1856, 10. (3) S. D. A. Eep., 1858, 1814. FULL BENCH RULINGS. 61 The Chief Justice, Mr. Justice Norman, and Mr. Justice Kemp, while upholding this view of the Judge, still considered that the case should he remanded that the Judge may inquire for what particular dehts the purchaser, Mr. Kearnes, agreed to hold himself liahle. I cannot assent to an order of remand on these terms. In the deed of sale, all the debts of the factory (that is, of course, all debts for which the factory could be legally held liable) were, without any specifi- cation, all taken over, the whole dena powna, whatever they were at the time. That deed alone was registered, but some days afterwards, as it is alleged, but not proved, Macdonald, the old proprietor, and Kearnes the purchaser, privately drew up a schedule purporting to show the debts due by the factory, in which schedule the rents due to the plaintiff in this case do not appear. That schedule was not registered, nor was anything done to give it the least publicity, or to apprize the creditors of the factory that by this private arrangement, which was so greatly in modification of the published deed of sale, the whole de7ia powna outstanding at the date of sale was not transferred to the pur- chaser. To hold that there should be an inquiry as to what particular debts Kearnes agreed to take over, which inquiry may possibly end in its being found that the debt due to the plaintiff was not one of the debts transferred to Kearnes, may, and probably will, be productive of the greatest hardship to the plaiutiif ; for Macdonald having sold the factory with its liabilities generally, may be in Europe, or he may be dead leav- ing no assets, and there may be no way of recovering the debts from him. Thus Kearnes may possibly evade a debt which, by his own public act, he acknowledged himself to be liable for, and which by the terms of his registered contract he is liable for, by a device which any one may hereafter adopt. He and Macdonald say to the public, we have agreed that the factory changes hands, and we have agreed that Kearnes recovers all the debts due to the factory, and that he pays the factory debts ; in private they make another agreement, the effect of which may be that Kearnes is liable for no debt whatever, while Macdo- nald, by hood-winking the creditors, has succeeded in getting out of the country, and out of reach of any legal proceedings. By the terms of their published deed, Kearnes is liable for all the debts of the factory generally, and as from him alone there is any hope of recovering anything, I cannot agree to a remand which may possibly end in Mr. Kearnes being able to show that, whereas he in the most public manner held out to all the creditors that he was the party to look to, he had, by another and a private arrangement between himself arid Macdu- 1864 Kearnes V. Bhawaiti Charan MiTTEK. 62 PULL BEKCH RULINGS. 1864 Keaknes «. Bhawani Charan MiTTER. nald, of which the creditors had no knowledge, settled that he was to be liable, not for all, but only for some of the debts. I would, therefore, with every deference to the opinion held by the Chief Justice, and his other two learned colleagues, uphold the judgment of the lower Court, and dismiss the appeal with costs, Seton-Kaer, J. This case involves a very important principle affect- ing the interest of all persons in the interior of the country who have to do with indigo factories and their lands, whether such persons be Europeans or Natives ; whether they be managers, superintendents, or owners of factories on the one hand, or Natives who have dealings with the fac- tories on the other, on account of lands, rents, &c., &c. I have thought it necessary to go into all the decisions of the late Sudder Court in this important matter, and they are as follows : Syed Mahomed Bakur v. Blanchard, Spence, and others (1) ; Meares v. DeBrandy (2) ; Moltea Lall Seal v. Muddun Thakoor (3) ; Young v. Tiery (4) ; Frith and Sandes v. Chunder Moonee Debea (S) ; E. D. DeSarun V. Wotna Churn Sett (6) ; Latafut Hossein v. R. Savi (7). In the first case, three Judges of great experience in the customs under which land and factories are held and transferred in the interior, were decidedly of opinion that " it is the general practice that, if money " be borrowed for a factory by a party competent to borrow, the factory " is responsible for it, notwithstanding transfer by purchase, as the trans- "fer carries with it all the liabilities of the factory ; " and "with refer- "ence to the usual practice in such cases, and to what the justice of the " case demanded," the Court proceeded to charge the factory generally for a debt contracted by a partner who had an 8-anna share therein, but contracted for the general good of the whole factory. In the next case, Meares v. DeBrandy (2), the Court held that the Judge below had wrongly made the new proprietors liable for the salary of an assistant employed in the factory, on the supposition of a general practice applicable to such case, whereof there was no evidence on the record ; and the Court relieved the new proprietors from the claim, as one which would not lie, without some reference to any contract which might have been made between the vendor and vendee, regarding the payment of outstanding claims and debts. In the case now before us. (1) S. D. A. Eep., 1848, 186. (2) S. D. A. Kep., 1852, 715. (3) S. D. A. Kep., 1856, 10. (4) Ibid, 199. (5) S. D. A. Rep., 1857, 1720. (6) S. D. A. Eep., 1858, 1814. (7) S. D. A. Kep,, 1860, 65. FULL BENCH EULINGS. 63 I must remark that there is direct evidence of what was the contract as to dena powna between the old and the new purchasers. One of the Judges, who admitted the special appeal in the above case just reviewed, remarked pertinently on the hardship to which petty factory servants would be subjected, if they were not considered to have a lien for wages on the factory for and in which they worked. In the next case, Mudden Thakoor v. Motee Lall Seal (1), two Judges, Mr. J. Torrens and Mr. C. Trevor, held that, as the bill of sale was express as to the liability of the purchaser for the debts or dena, the new owner was liable for back rents ; and the third Judge, Mr. Sconce, concurring in opinion with his colleagues, further stated that whatever private arrangements had been made by the debtor appealing against liability for rents, the interest of the plaintiff, zemindar, could not be sunk thereby, and that the transfer of the land carried with it the liability for rent. In the next case. Young v. Tiery (2), the Court released a lessee from the liability for rents accruing previous to his purchase and entry, but did so expressly on the ground that it was not said " that he was " not bound by the terms of his purchase to liquidate past balances, or " that the assignment of the lease to him had, in any way, lessened the " plaintiff's power of recovering the* old arrear from the first tenants." In this last case, it seems to me pretty clear that no plea of a purchase with express liability for the dena powna had ever been raised. The point was that a lessee generally could not be made liable, unless so stipulated. The next case is a well known one. Frith and Sandes v. Chunder Monee Debea (3). The case turned on a bond for money borrowed for the expenses of the factory, and the Court ruled that the deed in question was " drawn up in the terms of an ordinary bond, without " any reference whatever to the factory for which allowedly the sum " in Ktigation was borrowed ; " and with regard to a plea of general prac- tice, whereby the liabilities of a factory attached, as it was urged, to the factory, the Court was "not satisfied of the existence'' of any such general custom, but added that such a general custom, if established, might govern the decisions of the Court, while the use of the words dena powna in documents drawn up in the Bengali language " would render argument superfluous," as under these terms are clearly included both the liabilities of the vendor and also the debts due to him, while in 18G4 Kearnes V, Bhawani Chaean MiTTER, (1) S. D. A. Eep., 1856, 10. (2) Ibid, 199, (3) S. D. A. Eep., 1857, 1720. 64 FULL BENCH RULINGS. 1864 Keaknes V, Bhawani Chaean MiTTEU, English conveyances, the Court would have to look to the express terms used. On the whole, the Court, referring to two of the cases cited abovei viz., those of 1848 and 1852, ruled that the correct principle was that the liability of a new purchaser for the personal debts of a vendor depended, first, on the express contract between them ; and if there were no written contract, then on the general or particular custom, or on other circum- stances of the case. The conclusion drawn by the Court in this case, while releasing the new purchasers, was that parties lending money to a factcry should take care to have the loan made a lien on the factory by express terms, and if they did not, that they could only have their remedy against the original boiTowers. In the next case, U. D. DeSarun v. Woma Churn Sett (1), the Court, in conformity with the decision just reviewed, said that the presumption was not that the new purchaser took the factory with its liabilities, but that the parties claiming rents were bound to prove, by special engage- ment or otherwise, that the debts were not personal, and that the factory was liable. In this view the Court held plaintiffs entitled to rents from the new owners only from the date of the purchase. But, in this case, the bill of sale, which might have shown the real state of the case, was repeatedly called for, but had never^een produced in the first Court. The last case quoted, Latafut Hossein v. R. Savi (2), merely turns on a question of costs, and throws but little light on the present question. From the above review, I draw the following conclusions. The exist- ence of a well-understood custom, whereby the new purchaser, on taking the dena powna, is empowered to collect all outstanding balances, and is liable for all bona fide debts incurred for and on account of the factory, has been openly recognized in some decisions of the Sudder Court by Judges of great experience. The existence of such a custom has never been positively denied by other Judges, even when in a particular case, from the facts before them, they have refused to hold the new purchasers liable. The utmost that these latter Judges have done is to rule that there was no evidence of such a custom in the case before them. In the case now before our Full Bench, the principle was directly con- tended for by the plaintiff himself as one recognized by all indigo con- cerns, and the Judge of the Court below has acted on and reccnized the same principle. Its existence and a general and wide-spread belief in its existence were admitted by Mr. Allan, who, however, argued the case for the non-liability of the new purchaser before us on special groiinds. (1) S. D. A. Kep., 1858, 1814. (2) S. D. A. Eep., 1860, 55. FULL BKNCH RULINGS. 65 From the above it follows, that I concur in a great deal of what has been laid down by the Chief Justice and my other colleagues, Mr. Justice Norman and Mr. Justice Kemp, in their judgment. The ruling that the purchaser of a factory in this country, who takes it with the dena powna, is liable to be sued by the creditors of the concern, seems to me a sound ruling, and one in accordance with several earlier decisions of the late Sudder Court, as well as in conformity with the common understanding and custom of the country, and the necessities and contin- gencies under which trade must be carried on, and concerns must change hands, in the interior of this country, where the sudden departure of owners and managers is, for obvious reasons, inevitable. In the case now before us, the terms dena powna were used, and I have no doubt, used advisedly and with a full knowledge of their meaning and interpretation by the English firm in Calcutta which drew up the trans- fer from Macdonald to Kearnes, of March 1857, in the phraseology common to English legal documents of that kind. I also concur in that part of the judgment which rules that the creditor is not bound to elect between its original debtor (Macdonald) and the assignee of the factory (Kearnes), but that he may look to the assignee and the original debtor, either or both, as he thinks fit. For though, under the custom of the country so well understood by European gentlemen and natives of all classes, I believe that the creditor will ordinarily consider the purchaser to stand exactly in the shoes of the original proprietor or assignor, and will look to that purchaser to sue and be sued, and though I hold that factories do change hands con- stantly on this understanding, the new purchasers discharging the liabilities, and collecting the dues, without having recourse to law suits, still there may be cases where he ought not to lose his remedy against the original debtor, but should be allowed to proceed against him for the recovery of his claim. But I am unable to concur in that part of the judgment which would remand the case for the reasons given. I think that the reasons given by the Judge for holding Kearnes liable, as well as Macdonald, in this instance, are full and sufficient. The Judge finds as a fact, and on full and satisfactory evidence, that the sum claimed as rent was due for lands taken for the use of, and attached to, the factory, and was not denied by Kearnes to be due on the date from which Kearnes took over the concern, i. e., on the 30th of September 1856, or the last day of the indigo year. 1864 Keaknes V. Bhawaxi Chaean MiTXER. 66 FULL BENCH RULINGS. 1864 Keabnes V. Bhawani Chaean MiTTEK. He also finds that the alleged separate paper, the existence of which was only known to Kearnes and Macdonald, was not proved, as it ought to and might have been ; and it seems to me a hard doctrine when applied to these cases, that creditors are to be admitted to sue assignees or purchasers of such concerns who take them roundly with their dena powna or assets and liabilities, and yet are liable to have their claims defeated by separate and secret agreements, of which they could have no possible knowledge whatever from the terms of the conveyance between the principals. It appears to me on this, that the only notice which the creditors could have of the transfer was the registered con- veyance, and that this deed was notice to all concerned of the person to whom they were in future to look as capable of suing and being sued. Of course, in being desirous of upholding the decision of the Judge on this point, I did not intend to rule that all debts must, in all cases, be discharged by the new purchaser. Each debt must be judged of by the circumstances under which it was incurred. There may be debts which, on investigation, may not be found to attach to the factory, but to be personal liabilities of the late proprietor. In this case, however, the Judge finds, on good evidence, that the debt runs with and is admitted to run with the land, and that the new proprietor accepted the transfer by a public deed without any reservation. To give Macdonald and Kearnes an opportunity of now proving the nature of any separate and secret agree- ment between them, would be, as I read the transaction, to imperil the just claims of the creditors. The separate schedule ought to have been filed and registered with the bill of sale of March 1857. If Kearnes should now establish the bona fides of his separate agreement with Macdonald, and should show that this special debt was, by mutual agreement, excluded from the general liability, to what remedy would the creditor be left ? Macdonald, as Mr. Justice Campbell, in referrinc the case, particularly observes in his reasoning on this part of the sub- ject, with which I wholly concur, " may be at the other end of the earth." For the above reasons, while entirely concurring in the general opinion, which the judgment delivered by the Chief Justice clearly set forth I am compelled to dissent from the order of remand for further evidence. I would uphold the decision of the Judge, including both Macdonald and Kearnes in the decree, and would dismiss this appeal with costs, FULL BENCH KULTNGS. 67 Befere Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Slmmboonath Pundit, Mr. Justice Levinge, and Mr. Justice E. Jackson. LALA JOTI LAL (Plainxisf) «. MUSSAMAT DUEANI KOWER 1864 (Defendant).* April 11. MUSSAMAT LAL KOWER (Plaintiff) v. BABOO JAIKAKAN LAL (Defendant). Mitakshara — Succession — Step-Mother and Step-Grandmother. According to the Mitaksliara, in a divided family, a step-mother cannot succeed to the estate of her step-son, or a step-grandmother to the estate of her step-grandson. The question in case No. 3024 of 1862 was whether, under the Mitakshara, where the family is divided, a step-mother can succeed to the estate of her step-son. The case came on before Kemp and Campbell, JJ., by whom, as they differed, the above question was referred for the opinion of a Full Bench. The opinion of the Full Bench, on the question referred to them, was delivered by Peacock, C. J. — This case was referred, for the opinion of a Full Bench, by Mr. Justice Kemp and Mr. Justice Campbell. The question to be considered is, whether, assuming the family to be a divided one, a step-mother can succeed to the estate of her step-son, according to the law prevalent in Mithila. It is clear that, according to the law as current in Bengal, the Step* mother cannot succeed to the estate of her step-son. But it is contended that, according to the Mitakshara, which is the law prevalent in Mithila, a different rule prevails. We have considered the authorities cited in the course of the argument, and are clearly of opinion that the step-mother cannot succeed (1). It was admitted that the decisions in Bishenprea Munee v. Ranee Soogunda (2) and Narainee Dibeh v. Hirkishor * Special Appeals, No. S024 of 1862 and No. 8 of 1861, from a decision passed by the Judge g£ Tirhoot, dated the 23rd September 1862, affirming a decision of the second Principal Sudder Ameen of that district, dated the 9th August 1862. (1) See the remarks of their LoMships of lector of Madura v. Mutu Ramatinga Sathw the Privy Councilj in the case of the Col- pathy, 1 B. L. E., P. C, 20. (2) 1 Sel. Eep , 37, 68 FULL BENCH RULINGS. 1864 Rai (1) are the only express authorities in her favor. In those Lala Joti Lal cases, the right of the step-mother was upheld, but doubts are thrown MussAMAT "P*"^ ^^^"^ ^y ^^- Macnaghten in his Notes. KowER^ The question depends upon the sense in which the word " mata " is Murr A "^^*^ ™ ^^^ Mitakshara, on the Chapters on Inheritance. It was urged Lal Kower that when a distribution is made after the life of the father, a step- V. Baboo Jaika- mother is included under the word " mother." In the Mitakshara, the rule is laid down at page 285, paragraph 2, where it is said " of heirs separat- " ing after the decease of the father, the mother shall take a share equal to " a son " (2) ; and our attention was called to the fact that in the Mitak- shara there is nothing to show that the step-mother was not included, whereas in the Dayabhaga, page 63, paragraph 30 (3), the step-mother is expressly excluded. We think that the rule, whatever it may be in the case of partition, is not necessarily applicable in the case of inheritance ; and that although the word " mata " may, in some cases, include a step- mother, it does not necessarily do so in all cases. The cases cited from Macnaghten's Hindu Law, page 50, related to partition ; we must look to the circumstances of each particular case in which the word is used. It would be contrary to the reason for which, according to the Mitak- shara, a mother succeeds to her natural son in preference to his father to hold that the mother includes a step-mother. In Chapter II, page 343 of the Mitakshara (4), it is said : " On the failure of those heirs " (speaking of daughters and daughters' sons) the two parents (meaning the "mother and the father) are successors to the property." — Paragraph 1. Paragraph 2 assigns a reason why, in construing the above text, the mother takes the estate in the first instance, and on failure of her, the father. Paragraph 3 proceeds : " Besides, the father is a common parent to other " sons, but the mother is not so ; and since her propinquity is con- " sequently greatest, it is fit that she should take the estate in the first " instance, conformably with the text — ' To the nearest Sapinda, the in- " heritance next belongs.' " In the note to paragraph 3 it is said : " The " mother is, in respect of sons, not a common parent to several sets of " them, and her propinquity is, therefore, more immediate, compared " with the father's. But his paternity is common, since he may have " sons by women of equal rank with himself, as well as children by " wives of the Kshetria and other tribes, and his nearness is, therefore, " mediate in comparison of the mother's. The mother, consequently, is (1) 1 Sel. Eep., 39. (3) Stokes' Hindu Law Books, p. 231, (2) Stokes' Hindu Law Books, p. i97, Dayabliaga, Chap. Ill, s. 2, para. 30, Mitakshara, Chap. I, s. 7, para. 2. (4) Stokes' Hindu Law Books, p. 441, FIJLL BENCH KtJLINGS. 6& " nearest to her child, and she succeeds to the estate in the first instance, jgg^ " since it is ordained by a passage of Menu, that the person who is lala Joti Lal "nearest of kin shall have the property." Mussamat The reason given in the above-cited passage from paragraph 3, shows Dukani KOWER. that a step-mother is not intended to be included in the word ' mother ; ' and Strange, in his book on Hindu Law, page 144, refers to the paragraph l^^ Kower as an authority for the text : " Step-mothers, where they exist, are baboo'''jaika- excluded" (1). There are other passages in the Mitakshara with kanLal. regard to the right of grandmothers, to succeed to the property of grandsons in preference to grandfathers, which show that step-grand- mothers could not be included. See Chapter II, section 4, paragraph 2, and section 5, paragraph 2, and the notes in those passages. For the above reasons, we are of opinion that a step-mother cannot take by inheritance from her step-son. We may remark that our opinion is in conformity with the table of succession prevalent in North- Western Schools, including Mithila, pre- pared by Baboo Prasanna Kumar Tagore, according to the Mitakshara, Vivida Chintamani, and other works, in which it will be found that "step-mother" and "step-grandmother'' are entered as wi7. The table immediately succeeds the preface to Vivida Chintamani by Prasanna Kumar Tagore. This opinion will be communicated to the Division Court by which the question was referred to us, for their information and guidance. In the second case (No. 8 of 1861), the question was whether, under the Mitakshara law, assuming a family to be divided, the widow of the paternal grandfather of the deceased can succeed, she not being the mother of deceased's father. The case came on in regular appeal before Batlet and Campbell, JJ., who were of opinion that the step-grandmother was entitled to succeed, but on application for a review of judgment, they referred the question for the opinion of a Full Bench. The opinion of the Full Bench was delivered by Peacock, C J. — We are clearly of opinion, for the reasons given in our judgment in Special Appeal, No 3024 of 1862, that a step-grandmother cannot, under the circumstances above stated, succeed to the property of the step-grandson. (1) See alBO Macnaghten's Notes, 1 Sel. Eep., 39, 42i 70 FULL BENCH RULINGS. Sifore Mr. Justice Norman, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Levinge, and Mr. Justice Shnmboonath Pundit. 1864 EAMNARAYAN BANBRJEE (Plaiktiff) and others v. JAYAKEISHNA DecW. MOOKERJEB (Defendant).* Abatement of Rent, Suit for — Patnidar — Act X of 1869, s. 23. A patnidar, or any other lease-holder, may bring a suit against the zemindar for abate- ment of rent, under section 23, Act X of 1859. This was a suit brought by the plaintiff, a patnidar, 'against the zemin- dar, in the Collector's Court, under Act X of 1859, to obtain a remission of rent, on the allegation that a certain portion of the land held by him Iiad been resumed as chakeran by Government. A special appeal was preferred to the High Court ; and at the hearing before Trevok and Campbell, JJ., it being pointed out that there were conflicting decisions on the point as to whether a suit for abatement of rent on the part of a patnidar against a zemindar is cognizable under section 23 of Act X of 1859, those learned Judges referred the point to a Full Bench. The opinion of the Full Bench was delivered by NoEMAN, J., — (who after stating the facts continued) : — The deci- sions (1) of this Court alluded to by the learned Judges who referred the point, bear date the 18th March 1864 and 4th July 1864. In the latter case, Mr. Justice Levinge differed from the other Judges trying the case, and held that a suit of this kind, though not admissible under section 18, was clearly so under section 23 of Act X of 1859. Section 18 is of course applicable only to the case of ryots having a right of occupancy, but the terms of section 23 appear large enough to embrace all suits between all parties, when the relation exists, and when the object of the suit is to obtain remission, in some one or other of the ways indicated in that section. The suits mentioned in section 23 cannot be restricted to suits between proprietors and actual cultivators, for we see in clause 6 the words * Special Appeal, No. 2209 of 1863, from a decision passed by the Officiating Judge of Hooghly, dated 30th June 1863, reversing a decision of the Deputy Collector of Jehana^ bad, dated 27th March 1863. (1) Unreported. FULL BENCH RULINGS. Yj "farmer or tenant" used along with tlie word " ryot," and if farmers jgg^ who, in many instances, hold large tracts of country under their leases, Eamnakayan be allowed to bring suits under this law as against their landlord, why ^-^ifEKjEE should not a patnidar who holds a lease in perpetuity ? The period of the J^yakrishna MOOKEKJEE lease cannot affect the question. Clause 3, section 23, embraces all suits coming under sections 13, 14, 15, 16, 17, and 18 of the Act. Now, sections 15 and 16 relate to dependent talookdars, a class in existence at the time of the permanent settlement, but differing in no other respect from patnidars. If these may bring suits, why not patnidars ? And from a consideration of the various parts of the Act it would appear to have been the object of the Legislature in enacting it to bring all ques- tions relating to the rent of land between landlord and tenant, of what- ever degree, under the cognizance of the Court, the powers of which have been much enlarged, as the preamble states, to enable it to dispose of them. It speaks of ryots, farmers, or tenants. Harington, in his Analysis on the Chapter on the Eights of Landlords and Tenants, Vol. Ill, page 419, thus describes those who were called tenants and under-tenants as desig- nated by Shore : " Whether zemindars, separated talookdars, maliks, and " other declared proprietors, who, with reference to the nature of their " tenures, or holding directly from Government, may be denominated supe- " rior landholders and tenants-in-chief ; or the dependent talookdars and " other inferior landholders, as well as the immediate occupants of the " soil, who holding their tenures under the zemindars and other proprie- " tors of land standing between them and Government, may be classed " under the general designation of under-tenants." Now, it is evident that the patnidars fall under the second of these classes ; and if so, why should they be excluded from bringing suits for abatement in the Col- lector's Court, which, by the concluding rules of section 23, is declared to be the only Court in which such suits can be brought ? If it be said that suits under that section are limited to those between the proprietors and cultivators, it may very fairly be asked, where are the restrictive Avords ? For the section speaks of suits by ryots and farmers and tenants, and so apparently embraces all classes of tenants. Looking, therefore, at the object of the Act, which was to comprehend in one Code all ques- tions relating to rent that might arise between landlord and tenant, we see no ground for excluding a suit brought by a patnidar or any other lease- holder for abatement of rent, as being beyond the purview of the Act. 72 FULL BENCH RULINGS. Bdfore Mr. Justice Norman, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Shumboonath Pundit, and Mr. Justice Levinge. 1864 GUPINATH SING (Defendant) v. SHEO SAHAT SING (PtAiNirFF).* Dec. 14. Execution — Mortgage — Subsequent Purchaser — Money-Decree. When a person to ivliom property is pledged for a debt obtains a simple money-decree against his debtor, in respect of the debt, he cannot execute that decree against the pro- perty pledged, where it is in the possession of a subsequent bona Jide purchaser. The facts in this case were as follows. On the I7th March 1850, one Biswanath Gir borrowed money from the plaintiff, and. executed a bond, and at the same time pledged a 4-anna share of niokurrari as security for the debt. The plaintiff sued to recover the sum lent, and obtained a decree for the amount claimed, on the 2oth May 1860. In his plaint he did not seek to have the property pledged to him made liable for the debt, nor did the decree point to that property as specially liable for the debt. On attempting to get his decree executed by sale of that property, the plaintiff was opposed by a third party, one Gupinath, who alleged that Biswanath had no authority to pledge the property, as he had pre- viously sold it to Balak Gir in 1849, who had subsequently sold it to him, Gupinath, on the 26th December 1859. The plaintiff's appli- cation was, accordingly, rejected on the 20th February 1861, and he brought the present suit to set aside that order, and to bring the property pledged to him to sale in execution of his decree, against Balak Gir as representative of Biswanath Gir. Both the lower Courts found that the alleged sale by Biswanath to Balak Gir in 1849, was a fiction, that Biswanath remained in possession of his property till his death in 1851 ; and that he was succeeded by Balak Gir as his disciple. They held that as the property was distinctly pledged to the plaintiff as liable for the debt contracted by Biswanath, he was entitled to bring the property to sale, notwithstanding its subse- quent sale by Gupinath, the bona fides of which was not questioned ; * Special Appeal, No. 2809 of 1863, from the decision of the Judge of Shahabad, dated the 10th July 1863, affirming a decision of the Principal Sudder Ameen of that district, dated the 23rd January 1863, gupinath Sing V. Sheosahay Sing. FULL BENCH RULINGS. and, therefore, relying upon Durgungeer Sunnassee v. Gourmohun i864 Shah (1), they gave a decree for the plaintiff. The defendant appealed to the High Court. The case came on before Trevor and Loch, JJ., who, considering the later case, Mirza Abid Hossein v. Brijo Beharee Loll (2), to be in conflict with the case of Durgungeer Sunnassee v. Gourmohun Shah (1), referred the following question for the opinion of a Full Bench : " In a case where property has been distinctly pledged in security for " a loan, and the lender does not seek in his plaint to have his claim " satisfied from such mortgaged property, but is satisfied with a simple " money-decree, which does not declare the said property to be hypothe- " cated and liable to be sold for the debt, whether he can proceed " against that property as mortgaged to him, if it be found in the pos- " session of a third person not a party to the suit, who has purchased " it in good faith, and for a valuable consideration." 73 Baboo Kallyprasanna Dutt for appellant. Baboos Dwarkanauth Mitter and Annada Prasad Banerjee for respondent. The opinion of the Full Bench was delivered by Norman, J. — This case has been referred to a Full Bench, owing to an apparent discrepancy in two decisions of the late Sudder Court, dated respectively the 22nd June 1857 and 30th April 1861, and to obtain an authoritative ruling on the point. On a consideration of the two decisions of the Sudder Court referred to above, we find that they are not in reality in conflict. In the case of Mirza Abid Hossein v. Brijo Beharee Lall (2), decided on the 30th April 1861, one Ajeetnarain, by an ikrarnamah written in 1846, agreed that, upon a certain possible, future, and contingent event, which in effect did not happen before the 22ad June 1850, he would execute a bill of sale of Mouzah Sadoobpoor to the plaintiff Brijo Beharee Lall. On the 6lli May 1850, he sold the mouzah in question, hj a bona fide conveyance, for a valuable consideration, to the defendant Abid Hossein. On the 16th June 1855, the plaintiff, suing on the ikrarnamah, obtained a simple money- cfecree against Ajeetnarain. The Court having refused to execute this decree against the property in the possession of the defendant, the (1) S. D. A. Eep., 1857, 1063, (2) S. D. A. Rep., 1861, 185. 74 FULL BENCH RULINGS. 1864 GUPINATH Sis a V. Seosahat Sing. plaintiff brought a suit to set aside the sale to the defendant, and to reverse the proceedings in the execution department staying the sale of the property. It was held that having elected to take this course, he could not be allowed to realize the amount of his decree from the pro- perty mentioned in the ikrarnamah ; in fact the agreement contained in that instrument was simply that, upon the happening of the event pro- vided for, Ajeetnarain bound himself to execute, on being requested to do so, a mortgage of the property. No such request was made within a reasonable time. Before any such request was made, in ignorance of Ajeetnarain's contract, the defendant acquired his title. The Court, therefore, held, and rightly held, without entering into the difficult ques- tion as to what might have been the equities of the parties had plaintiff called on Ajeetnarain to execute a mortgage to him on or immediately after 22nd June 1850, that the right was lost or waived as against the defendant by the course which the plaintiff had chosen to adopt. From the decision of the 22nd June 1857, Durgungeer Sunnassee v. Gourmohun Shah (1), it appears that one Sheopershad, the owner of the property, had pledged it first to Gourmohun, then to Durgungeer. The former got a money-decree, which he sought to enforce against the property then in the possession of Durgungeer, who had foreclosed and taken possession of the property under a decree. It was held that, where property is specifically mentioned in a bond as security for the sum borrowed, such debt becomes a lien on that property, and the absence of any mention in a decree of the mode in which that decree is, to be executed does not interfere with the lien existing on the property ; but that in execution, the plaintiff in the suit is entitled to have the pro- perty on which the lien clearly exists sold, and consequently that any mortgage effected subsequently to the date of the creation of the lien on the property is subject to the outstanding lien on the property ; and in case the mortgagee obtained possession after foreclosure, he takes it with all incumbrances on it prior in point of time to the date of his mortgage. It is evident, therefore, from a comparison of the two cases, that tlie facts were different, and the decisions are not conflicting. On the question in regard to which the decision of the Full Bench has been sought, we are of opinion that, when a person to whom pro- perty is pledged for a debt obtains a simple money-decree against his debtor, he cannot execute that decree against the property pledged, to the prejudice of a subsequent bona fide purchaser. He is simply in the (1) S. D. A., Rep., 1857, 1063. PULL BENCH RULINGS. 75 position of an ordinary judgment creditor in respect to his decree, and can only seize the rights and interests of his debtor. He may enforce his lien by separate action against the party in possession of the property pledged to him, but he is not entitled to execute the money-decree against the property in the hands of the subsequent purohaseri With these observations we remit the case to the Bench by which it was referred to us, that final orders may be passed in the appeal. 1864 gupinatii Sing V. Sheosahay SlNQ: Before Mr. Justice Norman, Officiating Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Shumboonath Pundit, and Mr. Justice Levinge. PIZIRUDDIN (Defendant) v. MADHUSUDAN PAL CHOWDHRY (Plaintiff).* Beg. XIX of 1793, s. 10— Beg. XLIV of 1793, s. S—Grant of Land by Zemin- dar " Bent-free " for Public Purposes — Bent — Bevenue. A zemindar in 1830 granted rent-free 22 bigas of land out of his zemindari to A., who was to make a tank, the use of which was to be devoted to the public. In February 1862 a successor to the grantor in the zemindari sought to resume the land, on the ground that- the original " rent-free" grant was null and void, it having been made without the sanction of Goverimient. Eeld, per NoKMAN, Pdndit, and Levinge, JJ. (Trevor and Loch, JJ., dissenting), such a grant was valid. It was not within the meaning of Kegulation XIX of 1793, section 10. " Eent to the Zemindar " and " Revenue of Government " distinguished. This suit was instituted, on the 17th February 1862, before the Principal Sudder Ameen of Nuddea. The plaintiff was proprietor of 3 annas, and patnidar of 13 annas, of an estate referred to in the plaint. He brought this action for the purpose, inter alia, of resuming 22 bigas of land, held by the defendant rent-free under a " sanad " or " grant," executed in favor of an ancestor by a former zemindar of the estate in the year 1830, the terms of which were as follows : — " This sanad, for digging a tank, to Kazi KudrutuUa, is executed in the "year 1237 (A. D. 1830). In Mauza Jagabandupore there is no water; "the river is very far, and there is a difficulty in getting water; hence "the villagers are absconding; therefore, for the purpose of digging a " tank, certain marshy lands, which pay no rent, amounting to 22 "bigas, is granted to you to dig a tank; you also have willingly taken " it ; you shall dig a tank in the land, and procure water. We have " no right in the land, you shall hold possession in your own right, * Special Appeal, No. 3288 of 1863, from a decision of the Officiating Judge of Nuddea, dated thelOth August 1863, affirming a decision of the Principal Sudder Ameen of that district, dated the 19th August 1862. 1865 Jan. 9. 76 JJ'ULL BENCH RULINGS. 1865 " and give the water to others as a gift. Throwing fish into the tank, PiziRUDDiN " and planting trees on the bank thereof, you shall hold possession from Madhusudan " generation to generation. No rent for the land will be charged ; if I DH^^' '' °^ ^^7 ^^ ™y heirs shall ever make any claim in this matter, it is " false. Therefore, this grant for digging a tank is made, 14th Magh. "Jagamohan Siekar." The defendant's ancestor dug the tank, and it was not denied that the water had been distributed as contemplated by the sanad, the tank having been always used as a tank. The plaintiff contended, with reference to Eegulation XIX of 1793, section 10 (1), that a grant of land, rent-free, by a zemindar, without the sanction of Government, was null and void. For the defendants it was contended that the land was granted for the purpose of constructing a tank for the benefit of the public ; that this work had been carried out, and the public enjoyed the benefit of it ; and, further, that one zemindar had not power to set aside grants or gifts or other arrangements made by his predecessor, unless he came into possession as an auction purchaser in a sale for arrears of revenue. In support of this view, section 8 (2), Eegulation XLIV of 1793, was relied upon, as also the (1) Regulation XIX of 1793, section 10. — such proprietor, farmer, or dependent talook- " All grants for holding land exempt from dar, be liable to an iacrease of assessment on the payment of revenue, whether exceeding account of such grants which he may resume or under 100 bigas, that have been made and annul, during the term of the enjoy- eince the 1 st December 1790, or that may ments that he may be under for the payment hereafter be made, by any other authority of the revenue of such estate or talook when than thatof the Governor-General iu Council, the grant may be so resumed and annulled, are declared null and void, and no length of The managers of the estates of disqualified possession shall be hereafter considered to proprietors, and of jointuudividedestates, are give validity to any such grant, either with authorised and required to exercise, on be- regard to the property in the soil or the half of the proprietors, the powers vested iu rents of it. And every person who now pos- proprietors by this section." sesses or may succeed to the proprietary (2) Regulation XIV of 1 793, section 6, en- right in any estate, or dependent talook, or acts : — " Nothing contained in this Regulation who now holds, or may hereafter hold, any shall be construed to prohibit any zemindar, estate or dependent talook in farm of independent talookdar, or other actual pro- Government, or of the proprietor, or any prietor of land, selling, giving, or otherwise other person, and any other person appointed disposing of any part of his lands as a de- to make the collections from any estate or pendent talook"; and section 8: — "Nor to talook held hhas, is authorised and required prohibit actual proprietors of land granting, to collect the rents from such lands at the without the sanction of Government or its rates of the pergunna, and to dispossess officers, to any person, not being a British the grantee of the proprietary right in the subject or European, a lease or potta for land, and to re-annex it to the estate or ground for any term of years, or in perpe- talook in which it may be situated, without tuity, for the erection of dwelling-houses or making previous application to a Court of buildings, for carrying on manufactures, or Judicature, or sending previous or subsequent for gardens, or other purposes, and for notice of the dispossession or annexation to offices for such houses or buildings, any officer of Government i nor shall any FULL BENCH RULINGS. 77 decision of the late Sudder Dewanny Adawlut in Hurree Mohun Das i865 V. Pranhishen Race (1). It was also contended that a grant " free of Piziruddlm " rent " to the zemindars, so far from imperilling the Government revenue, Madhusudah would, by improving the estate, enable the zemindars to pay it more easily. ^^^2^°^' Both the lower Courts gave a decree in favor of the plaintiff. The lower Appellate Court said in its judgment : — " It is to be noticed in the first place that section 8 of Regulation " XLIV of 1793 makes no allusion whatever to rent-free grants, but to " a lease or patta, either temporary or in perpetuity. It seems to me " that, by admitting rent-free grants as coming within the spirit, if not " the letter of this section, a construction is placed upon the Regulation " which is entirely subversive of the objects for which it was passed, "viz., the protection of the interests of Government by preventing " the permanent diminution of its resources from the land. " It farther appears to me that such a view is directly opposed, both " in letter and in spirit, to another equally important law, section 10, "Regulation XIX of 1793, by which it was enacted that all grants " for holding land exempt from the payment of rent that may have "been made after 1st December 1790, by any other authority than " that of the Governor-General, are null and voidj and that no length " of possession can give validity to any such grant, either with regard " to the property of the soil or the rents of it. "... Admitting that, for his own life-time, a zemindar is " competent to refrain from taking rent from any one in possession of " lands under him, it cannot hold good that such remission should be " binding upon his successor who refuses to acquiesce in the loss of rent. " Neither his representative, nor successor, can equitably be controlled " by an act which seems to me in itself opposed to the policy of the law, " and which, if allowed, would tend to the establishment of a very " dangerous principle. For it must be clear that, if every zemindar " could permanently grant away his lands as free from rent, it would "end in leaving no security for the Government revenue." The defendants appealed to the High Court, when the points already noticed were discussed as the main grounds of appeal. The Division Bench (Loch and Glovbe, JJ.) referred the following question for the opinion of a Full Bench : — " Whether a zemindar can alienate as rent-free any portion of his per- " manently settled estate, without the sanction of Government ; and if (1) S. D. A., 1847, 447. 78 FULL BENCH RULINGS. 1865 " a zemindar do make such a grant for works of public utility, such as a PiziEUDDiN " tank or garden, or public buildings, whether his successor, not being Madhusudan " ^^ auction purchaser, can resume the grant and re-attach the property ^^iil™"^- "to his estate?" DHKy. In making the reference, the Court observed : — " A decision of this Court, dated 18th August 1847, in Hurree Mohun Das v. Pran- kishen Raee (1), rules that such a grant car be made, and that the grantee's successor is not at liberty to resume the land. But a subsequent decision of July 18th, 1855, in the cross-appeal of Ahmed Alee Khan v. Raja Modhnarain Sing, and Rajah Modhnarain Sing V. Ahmed Alee Khan (2), ruled the other way, holding that a zemindar had no authority to make grants of land exempt from the payment of revenue (rent), but the power of erecting dependent talooks or granting leases at any rent is fully accorded by Regulation XLIV of 1793, and EegulationsV and XVIII of 1812. The earlier decision rests simply on the ground that, by section 8, Regulation XLIV of 1793, such grants, though rent-free, cannot be cancelled by any subsequent proprietor. No further reason is assigned in support of the view then taken by the Court. Now section 8 permits zemindars to grant leases for ground, for any term of years, or in perpetuity, for the erection of buildings, &c., but it does not distinctly state that a lease in perpetuity shall be rent-free. The decision of the 18th August 1847, Hurree Mohun Das V. Prankishen Raee (1 ), was passed by a Bench of three Judges (3); that of the 18th July 1855, Ahmed Alee Khan v. Rajah Moodhnarain Sing (2), by a majority of two Judges (4), Mr. Dick, who had concurred in the previous decision, being dissentient. We are inclined to think that the view taken by the Judges in the later judgment is coixect ; and as there is a conflict of decisions, and the question is of great importance, we refer the case for an authoritative ruling to a Full Bench of five Judges." The following were the opinions of the learned Judges who consti- tuted the Full Bench : — NoEMAN, J. (after shortly stating the facts, continued) : — The pre- amble of Regulation XIX of 1793 is as follows: — " By the ancient " law of the country, the ruling power is entitled to a certain pro- (1) S. D. A., 1847, 447. (4) The Judges were A. Dick, Sir R. (2) Ibid, 1855, 395. Barlow, B. J, Colvin. (3) A. Dick, W. B. Jackson, and J, A. F. Hawkins, FULL BENCH RULINGS. 79 " poi'tion of the produce of every biga of land deraandable in money i865 " or kind, unless it transfers its right thereto, &c., or limits the public Pizieuddin "demand upon the whole of the lands belonging to an individual, madhusudan " leaving to him to appropriate to his own use the difference between ^^^ Onovr- " the value of such proportion of the produce and the sum payable " to the public, whilst he continues to discharge the latter." As a necessary consequence of this law, if a zemindar made a grant of any part of his lands to be held exempt Irom the payment of revenue, it was considered void from being an alienation of the dues of the Government without its sanction ; and section 10 enacts that " all " grants for holding land exempt from the payment of revenue that " have been made since the 18 th December 1790, or that may be here- " after made by any other authority than that of the Governor- " General in Council, are declared null and void, and no length of posses- " sion shall be hereafter considered to give validity to any such grants, " either with regard to the property in the soil or the rents of it ; " and the preamble of Regulation XLIV of 1793 states that it was "to be " apprehended that many proprietors from improvidence, &c., might be " induced to dispose of dependent talooks to be held at a reduced jumma, "or fix the jumma of the dependent talooks now existing, &c., at an " under rate, or let lands in farm, or grant pattas for the cultivation of " land, at a reduced rent for a long time, or in perpetuity ; " that " such " engagements, if held valid, would leave it in the power of weak, improvi- " dent, or ill-disposed proprietors to render their property of little or no " value to their heirs, promote vice and injustice, occasion a permanent " diminution of the resources of Government arising from the lands, in " the event of the rent or revenue reserved by such proprietors being in- " sufficient for the discharge of the public demand upon their estates, be " an abuse of the great and lasting benefit which has been conferred upon " the landholder by the possession of their lands being secured to them " in perpetuity at a fixed assessment; and moreover be repugnant to the " ancient and established usages of the country, according to which the " dues of the Government from the land, as defined in Regulation I of 1 793, " are inalienable without its express sanction ; " and by section 2 (which was afterwards repealed by section 2, Regulation V of 1812), it is enacted that "no leases or other engagements shall be made for a term exceeding ten years." Reading these Regulations together, it seems to have been the inten-, tion of the Legislature to treat the zemindars as agents or trustees for the Government, and, as such, bound to collect the Govei'nment share 80 FULL BENCH RULINGS. 1865 of the produce from each and every biga of land within their zemiu- PiziKUDDiN daries. They are incapacitated from depriving themselves of the right Madhusudan ^"'l obligation of collecting the revenue, which by Regulation XLIV is ^^dhSt*^' declared inalienable, i. e., by the zemindar, without the express sanc- tion of Government ; and it is in accordance with that principle that all grants by zemindars, which exempt the grantees from liability to pay revenue to the zemindar, are declared nuU and void by section 10, Regulation XIX of 1793. If, therefore, the grant now before the Court is to be considered simply as a rent-free grant created by a zemindar since 1790, I should feel bound to agi'ee with the Court below, and say that it is null and void. This would be in accordance with the decisions of the late Sudder Court, Baboo Moodhnarahi Sing v. Amirrunissa Begum (1), and Ahmed Alee Khan v. Moodhnarain Sing (2), But first, we may observe that, by the acceptance of the grant in question, the grantee and his heirs are bound to allow the tenants of the zemindar in the village to take water ; and that liability is one which might be enforced by the zemindar or his successors, owners of the zemindari for the time being, if the grantee failed to continue to distri- bute water; or, in other words, to allow the use of the water in the tank to the tenants of the village. It is clear that the revenue or rent reserved to the zemindar need not be a money rent ; it may be a portion of the crops, in specie, or apparently anything else having a money value. The word "rent" is large enough for that purpose. In Coke upon Littleton, 142 a, of Rent Service, it is said : — " The rent may as well be in delivery of hens, " capons, roses, spurres, bowes, shafts, horses, hawkes, pepper, comine, " wheat, or other profit that lyeth in render, office, attendance, and such " like, as in payment of money.'' The preamble of Regulation XLIV of 1793 goes on to recite that " it is essential that proprietors of land should have a discretionary " power to fix the revenue payable by their dependent talookdars, and to " grant leases, or fix the rents of their lands for a term sufficient to induce " their dependent talookdars, under-farmers, and ryots to extend and im- " prove the cultivation of their lands, and that such engagements should " be held inviolable in all cases, except where they may interefere with " or affect in any shape the primary and indefeasible rights of the Govern- " ment." Section 8 enacts that nothing in that Regulation shall be taken (1) S. D. A., 1852, 967. (2) S. D. A., 1855, 395. Pal Chow- DHKT. FULL BENCH RULINGS. 81 to prohibit proprietors from granting a lease or patta for any term, or 1865 in perpetuity, for the erection of dwelling-houses or buildings for Pizibdddin carrying on manufacture, or for gardens, or for other purposes. Madhusudan So far from prejudiciag the interests of the G-overument, the grant, by securing water for the use of the inhabitants of the village, appears to have been an essential means of placing the zemindar in a position to realize the Grovernment revenue, and increasing the security of the Government. It was, therefore, clearly not within the mischief intended to be guarded against by the Regulations above referred to, and, there- fore, may be said to be out of the purview of the enactment. (See Lord Coke's 2nd Institute, page 886; Comyn's Digest, Title Parliament, R., 15, R. 16). Again, water may be treated as the produce of the land, a portion of which the zemindar and those authorized by him are entitled to take; and the right to take it may be considered as of the nature of a reser- vation of rent in kind. It is satisfactory to me to find that similar grants were held valid by the late Sudder Court in Hurreemohun Das v. Prankishen Raee (1), in The Petition of Sheikh Kadir (2), and in Lalla Huree Seekur Shaha v. Shaih Bukhtear (3). These decisions appear to be equally consistent with good reason and a sound construction of the Regula- tions. I think that the grant was valid, and would reverse the decisions of the Court below with costs and interest. Trevob, J. — The question referred to us for solution is, whether a rent-free grant of land, by a zemindar to an under-tenant, for the purpose of digging a tank, is legal or not. If it be null and void as against the policy of law, the successor of the grantor will, of course, be at liberty to resume the grant. If it be legal, no such power will belong to him. The instrument in the case before us is, as to its terms, a grant, in fee-simple, of 22 bigas of the grantor's revenue-paying estate, to the grantee, to be held by him free of revenue for ever ; and it can in no way be construed as a lease, for there is no annual return or rent made by the grantee as tenant, either in labor, money, or kind. The condition in the grant, if condition it can be called, of giving water to others, is only a condition subsequent, and there is no contention on the part of the grantor that the grant is liable (1) S. D. A., 1847, 447. (3) S. D. A,, 1858, 968. (2) /(?.,■ 1856, 74. 82 FULL BENCH RULINGS. 1865 to be defeated in consequence of a breach of tbia condition. It is PiziEuDDiN simply contended that the grant itself is of a nature contrary to Madhosudah public policy, and one that by Statute has been declared null and void. ^'^DHRY.^' Had it been a lease, however small the rent reserved, it would have been legal under the terms of section 8 of Regulation XLIV of 1793; but as it is a grant involving that which the zemindar had not the power to grant, viz., the Government portion of the produce of the land granted in perpetuity, it is altogether, it seems to me, illegal and contrary to the policy of the law, as laid down in Regulation XIX of 1793, viz., the common law of the country. It is laid down in the preamble of this law : " The ruling power is entitled to a certain propor- " tion of the produce of every biga of land, until it transfers its right " thereto for a term, or in perpetuity, or limits the public demand upon " the whole of the lands belonging to an individual, leaving him to " appropriate to his own use the difference between the value of such " proportion of the produce, and the sum payable to the public, whilst " he continues to discharge the latter ; as a necessary consequence of " this law, if a zemindar made a grant of any part of his land to be " held exempt from the payment of revenue, it was considered void, " being an alienation of the dues of Government without its sanction." Section 10 of that law, in furtherance of this view of the common law of the country, declares that " all grants for holding lands exempt from "the payment of revenue made by zemindars since 1st December 1790 " are null and void, and no length of possession shall be considered to " give validity to any such grant, either with regard to the property in " the soil or the rents of it." The mere fact of the land granted being unculturable at the time the grant was made does not render that legal which, under other circum- stances, would not be so. The fact of its unculturableness was an accident of the moment ; and as the land was a portion of the decennially settled estate, the whole area of which forms the security for the Government revenue, it could not be alienated, revenue free, without the consent of Government. Neither can the fact of the grant, being for the alleged benefit of the villagers, render that legal, which is illegal in consequence of its being to the detriment of the interest of the State. But it may be said that the grant in this case, though against the letter, is not against the spirit of section 10 of Regulation XIX of 1793, which prohibits only improvident grants, but not those made with a view to the benefit of the estate in which the land granted is situated ; and that as the grant in this case is of the latter sort, it does not fall PULL BElsrCH RULINGS. 83 within the prohibition of the law. This position appears to me not to i865 be tenable. The prohibition in the law is absolute, and under all circum- Piziruddin stances, though doubtless the benefit of the State would be a strong madhu'sudan ground for inducing Government to consent to the alienation of its per- ^"^^hkt^' tion of the produce of the land, and to legalize the grant. Coming down to authorities, it appears that the late Sudder Court ruled, in 1847, in the case oi Hurree Mohun Das v. PrankishenRaee (1), which ruling was followed in the subsequent case, decided in May 1858, Lalla Hureesunker Shaha v. Sheikh Bukhtear (2), that a grant similar to that in the present case was legal under section 8, Regulation XLIV of 1793. But, notwithstanding the marginal note in which the words " grant " or " lease" occur, and looking to the tenor of the law itself, it is quite clear that that law only referred to leases on which a rent, how- ever smaU, was reserved ; and in no way applies to grants by which the land granted becomes severed from the revenue-paying estate, of which it forms a part. With great deference, therefore, to the Judges who passed that decision, it seems to me to be altogether erroneous. The view adopted above is in accordance with the judgment passed by the majority of the Judges in the case of Rajah Moodhnarain Sing V. Ahmed Alee Khan (3) ; but the reasoning of the dissentient Judge in this case is so striking at first sight that it requii'es a short consideration. After other remarks, Mr. Dick proceeds thus: — " Grants of the nature in " question, quoad the grantors and their heirs, affect not the public " revenues. They affect merely their own rental. The grantor con- " tinues himself to pay the revenues ; and if he do not, the estate is sold, "and then the grant becomes null and void." This is, no doubt, in the main, true ; and at the Decennial Settlement, the Legislature might, had it chosen, have relied on the Sale Law, to remedy any improvident act done by zemindars, and to restore estates to their original state. But it considered prevention better than cure ; and with the former object, keeping in view the common law of the country, and the probable impro- vidence and weakness of the zemindars it had then created, it enacted Regulation XEK of 1793, and has thereby declared that all grants of the nature of that before us are null and void, and that no lapse of time shall give them validity. It follows that, as they are null and void in their inception, they can be resumed even by the grantor or his heirs, at pleasure. (1) S. D. A., 1847, 447. (3) S. D. A., 1855, 395. (2) Id., 1858, 968, 84 FULL BENCH RULINGS. 1865 I am of opinion, for the reasons above given, that the rent-free grant PiziKDDDiN is illegal, and is liable to resumption. The question of assessment is not Madhusudan »iow before Court. Pal Chow- DHRY. Loch, J. — The question in this case is, whether a zemindar can alienate any part of his permanently settled estate as rent-free, i. e., can he create a lakhiraj title in favor of any person to lauds which form part of such an estate ? If a proprietor make such a grant, is it invalid, and can the land be resumed by his successor ? Section 10, Regulation XIX of 1793, distinctly declares that " all " grants for holding land exempt from the payment of revenue, whether "exceeding or under 100 bigas, made since 1st December 1790, or that " may be hereafter made, by anyother authority than the Governor-General " in Council, are null and void." And the proprietor of the estate, within which such lands were situated, was required to collect the rent and dispossess the grantee of the proprietary right in the land, and re-annex it to the estate. It is clear from these words that the power of re-annexing such lands, without application to any Court, was granted to proprietors, on the supposition that all lands so separated actually formed part of the permanently settled estate, and were liable with every other biga of land in the estate for their quota of the public revenue. By section 8, Regulation XLIV of 1793, proprietors of estates were permitted to grant leases or pattas for any term of years, or in perpe- tuity, for the erection of dwelling-houses, manufactories, gardens, and other purposes. The above section, however, is not applicable to the document propounded in this case. It cannot, under any circumstances, be termed a lease in perpetuity, for it wants the element of a lease, viz., payment of rent in some shape or other. The deed is a distinct grant to hold 22 bigas of laud, rent-free, i- e., lakhiraj ; and the land is bestowed upon the grantee to enable him to dig a tank for the use of the public. Section 8, Regulation XLIV of 1793, has, therefore, nothing to do with this case. Another element of confusion must be got rid of, viz., the interpreta- tion put upon the word "revenue" in Regulation XIX of 1793. It has been said that the word is used indiscriminately to mean either revenue or rent according to the context. This appears to be a mistake. The word " revenue " is used in its proper meaning throughout the Regula- tion, and is not convertible with rent, though it comprises rent. A consideration of the purport of the law will at once show that the PULL BENCH RULINGS. 85 Legislature was dealing with a question of revenue only. The law first i865 lays down the principle that the Government is entitled to a certain Piziruddin proportion of the produce of each biga of land, unless it transfers its MADHusunAn right, either for a term of years or in perpetuity. In regard to all dhky!^^" grants made previous to 1765, the Government gave up this right; but in regard to all lands held under grants made intermediately, it declared them liable to assessment, and that Government was entitled to enjoy the revenue so assessed. The Government then appropriated the revenue on lands exceeding one hundred bigas alienated under any one grant made previous to December 1790, and made over its right to the revenue assessed upon lands under one hundred bigas to the zemin- dars within the local limits of whose permanently settled estates such lands were situated. And the law further said that if any one claim to hold lands exempt from the payment of revenue under a grant made since 1790, his claim was not to be listened to for a moment, for the lands could be no other than a portion of the permanently settled estate within which such lands were situated. And this must be kept in mind that, in the limits of an estate, there could be only two classes of land, revenue-free created before 1st December 1790, and revenue-paying comprised in the estate at the Permanent Settlement. The word " revenue," therefore, as used in section 1 1 of Regulation XIX, is used in its proper sense. It was revenue claimable by the Government on lands held on invalid title, which revenue, and the right to claim which. Government had transferred to the zemindars. When so transfered, the revenue became rent. It has been asked why, if a zemindar is able, as unquestionably he is by law, to alienate any part of his estate by sale or gift, he should be unable to create a rent-free tenure; that as he can give a perpetual lease at a quit-rent, there can be no good reason why he should not be able to forego his rent altogether; for if a rent-free grant be said to be injurious to the estate, a perpetual lease on a quit-rent, which the law allows him to make, might be equally injurious. The reason why such rent-free grants cannot be made is that they are entirely opposed to the theory of the Permanent Settlement, and it is very remarkable how guarded the law has been on the subject, for while it allows the zemindar to give a lease in perpetuity, it never sanctions such an alienation as a lakhiraj or rent-free grant ; and the reason is obvious when the principle of the Permanent Settlement is considered, which is clearly laid down in the preamble of Eegula- tion XIX of 1 793, — that " the ruling power is entitled to a certain pro- 86 PULL BENCH RULINGS. 1865 " portion of the pi'oduce of every biga of land, demandable in money PiziRUDDiN " or kind, according to local custom, unless it transfers its right thereto Madhusudak " for a term, or in perpetuity, or limits the public demand upon the ^"^DHEY ^" " whole of the lands belonging to an individual, leaving him to appro- " priate to his own use the difference between the value of such propor- " tion of the produce, and the sum payable to the public, whilst he con- "tinues to discharge the latter; as a necessary consequence of this " law, if a zemindar made a grant of any part of his lauds to be held " exempt from the payment of Government revenue, it was considered " void, from being an alienation of the dues of Government without its " sanction. Had the validity of such grants been admitted, it is ob- " vious that the revenue of Government would have been liable to " gradual diminution." The preamble then goes on to state that, pre- vious to the accession of the Government to the Dewany, many such grants had been made, and proceeds to declare what course the Governor- General intended to pursue with regard to these lands. The passage quoted from the preamble clearly lays down the principle upon which the revenue was assessed; what part of that revenue was to be considered as rent (viz., the difference between the assets of an estate and such portion of them as Government might think to appropriate), and it distinctly repudiates the zemindar's right to make a grant exempt from the payment of revenue, such revenue necessarily comprising rent. Now it is obvious that, if a zemindar grant lands to any one free of rent, he violates the above principle of the Permanent Settlement, for he not only alienates that portion of the assessment on each biga of land which the law permits him to appropriate, but he also gives up that portion which is the Government revenue, and thereby does a serious injury to the assets of the estate. He relinquishes the quota of the revenue with which each biga of a permanently settled estate was charged at the time of the settlement ; and it is no answer to say that the whole estate is liable for the revenue, for it is not only that the in- tegral estate is liable for the whole revenue assessed upon it, but each biga of land is responsible for its quota of that revenue. Suppose a zemindar were, by successive rent-free grants, to alienate the better part of his estate, so that, when it came into the hands of successors, the assets were insufficient to afford the Govenment revenue, surely it is not sufficient to say that at any rate the Government revenue is secui'ed from the integral estate, and that a sale for arrears of revenue will put everything right, the auction purchaser having the power to set aside all previous engagements. The Government, however, has no wish FULL BENCH RULINGS. 87 that an estate should, by the act of any proprietor, be so impoverished as 1865 to descend as a burden to his successor, or that the assets of an estate Pizibuddin V. be so reduced by the folly of one zemindar as to render it impossible for Madhusudan his successor to realize the Government dues from the lands, whose only dhky. course under such circumstances is to allow it to go to the hammer; consequently, the Government have prohibited such rent-free grants altogether. It is a mistake to suppose that lands alienated by gift or sale are held exempt from their share of the Government revenue. The proprie- tor, who has made the alienation, may pay the revenue out of his own pocket ; but the untenableness of this supposition would be apparent on the application of any party, entitled to claim a partition, to the Collector to make a partition of the estate. He would proceed to assess every biga of land, and proportion the Government revenue thereon, , irrespective of any private arrangements. And so with regard to perpetual leases. On the principle of the Permanent Settlement, it is assumed that the rent received from such lands covers the revenue as well as the zemindar's rent. The zemindar may remit his share of the rent, but he has no authority to remit any portion of the revenue ; and therefore a perpetual lease on a quit-rent, which does not provide for the fuU quota of revenue from each biga of land, is as invalid as a rent-free grant. Looking at the terms of section 10, Regulation XIX of 1793, and at the principles of the Permanent Settlement, it appears to me that a zemindar has no power to make a lakhiraj or rent-free grant, even for public purposes, without the sanction of the Governor-General. If a zemindar wish to make a grant of the kind, his proper course is to apply to the Government, who alone have it in their power to remit any portion of it to be lakhiraj, revenue-free, as well as rent-free. And it further appears to me that, if a proprietor make such a grant, it being declared by the law null and void, his successor may resume and assess it. Under this view of the case, I would confirm the decision of the Judge, and reject the appeal with costs. Pdndit, J.^In India, that portion of the produce of lands which goes to the ruling power as its share is called revenue ; and the produce (in money or kind) received from the cultivators by the persons entitled to collect, as well as the collection made (in kind or money) by other intermediate holders of different grade from those who are above those persons that collect, from the tenants of the lowest 88 FULL BENCH EULINGS. 1865 grade up to those who pay the revenue directly to Government, is called PiziKUDDiN rent. That which persons, collecting from the lowest tenants or others Madhu'sudan of ^ higher grade, retain as their profits from collections made by them "^dhry!^^" from intermediate persons, is also called rent. The word " revenue," however, is used indiscriminately for rent as well as for revenue, in many of the old laws preceding, as well as many of those passed in, 1 793 ; and so in section 10 of Kegulation XIX of 1793, the same confusion in expression is to be found ; also in some other laws passed subsequent to 1793 (see Eegulation III of 1821). It is evident from the preambles of Regulations XIX and XLIV of 1793, that, before and in that year, it was believed to be the custom and the common law of the country that each biga of land was liable to pay its own quota of revenue to the ruling power. Proceeding upon the principles of this common law with a view to protect the Government revenue due from estates that were as well as of those that were not permanently settled ; and in order to prevent the zemindars from injuring their solvency to pay the assessment fixed upon their estates by the Decennial Settlement in 1790, it was thought at that time advisable to enact certain rules which were afterwards embodied in the laws of 1793. By these rules, all the British officers, except the Governor-General, were prohibited from making any rent-free grants; and in estates permanently settled, the zemindars were restricted from settling their lands with any person under pattas written according to any form not approved of by the Collector, or for a term exceeding ten years, except for tanks, houses, gardens, &c. (see section 8, Regula- tion XLIV of 1793). The zemindars and all other persons were further prohibited from giving away, without the permission of the Government, any portions of the lands of their estate, without reserving some rent, which rent was supposed likely to represent in part or in whole, according to the quantity of the lands settled by the lease, the revenue due to the Government. The British Government, on taking the administration of the countiy, found that, under the system prevailing before, emperors, subadars, rajas holding large landed property, zemindars and talookdars under them, had granted away lands by rent-free sanads, the effect of which transfers was to convey such proprietary rights as the party conveying could grant, without reservation of any rent, and which transfers, according to the common law of the country, were considered to be alienations of the revenue due to the Government from these lands. Certain officers under the British Government were also, from time FULL BENCH EULINGS. 89 to time, authorized to make such alienations, and many, n6t authorized, 1865 also made such grants. During the progress of the Decennial Settle- Piziuuddixv ment, and in 1793, when the laws of that year were enacted, it was Madhusodan thought to be a sufficient check against acts supposed to be injurious ^'^^'jfuT^''" to the public rights, to declare that no grant or alienation should be made rent-free ; and it was not considered at all expedient to rule further that the rent reserved iu a lease should be equal to the propor- tionate revenue due to the G-overnment from the lands leased out. It was not an easy matter to fix this proportion ; and it was not thought proper to impose such a troublesome condition, because it had already been ruled that the zemindars generally could not settle for more than ten years, and that fraudulent or wrongful settlements made by them were not binding upon auction purchasers. In about twenty years, the G-overnment discovered that the imposi- tion of restrictions upon settlement of land by zemindars, as made by the laws of 1793, was not at all necessary for protecting its rights, and were at the same time highly injurious to the improvement of the country at large. Accordingly, by Regulation V of 1812, power was given to the zemindars to make settlement for any term of years, or even in perpetuity, so far as they could do so. People had already, in one form or another, adopted long and perpetual leases witli or without consideration, revived old, and created new tenures of the perpetual kind under different names; and so it was thought advisable in 1819, when Regulation VIII of that year was passed, to legalize all settle- ments made in direct opposition to former laws. It was not, however, even at that time, thought advisable to limit the power granted by Regu- lation V of 1812, by any restriction requiring that, when any estate or part of an estate is let out on lease, the rent reserved should not be less than the total or the proportionate share of the G-overnment revenue due from the lands let out. The former strictness and jealousy by degrees slackened. New ideas came into operation, until in 1859, the present Revenue Sale Law was passed, which materially differs in spirit and principles from the rules adopted in the old laws for protecting the Government rights. In 1859, limitation was made applicable to suits for resumption of lands alienated after 1790, whereby virtually, except aa against auction purchasers, such grants were legalized. If the words of section 10, Regulation XIX of 1793, are strictly construed, rent-free grants subsequent to 1st De- cember 1 790 might be considered resumable even by the persons making such grants ; and, accordingly, it might also be thought to be within the 90 FULL BENCH RULINGS. 1865 power of their heirs and successors and privies to re-attach the lands PiziBUDDiN to the estates from which they were so alienated. It may appear to be Madhusudak unjust and inequitable that any person should have a right to take Pal Chow- a,jvantage of his own wrong, that grants made for consideration should be resumable by the party making the same, and that his heirs should be empowered to question the legality of the act of their predecessors. But perhaps the policy which dictated the laws preferred to protect the rights of the Government without any regard to the hardship or injustice noticed above. The earlier ideas regarding the mode of protecting the rights of the Government, began, however, to change by degrees, till they were materially altered into quite new- principles now adopted by the Government upon this subject. While the law regarding the restricted power of the zemindars to make settlements of their lands was by degrees completely modified, the prohibitions regarding rent-free grants was not altered by any express enactment. The present Sale Law requires auction purchasers to respect certain settlements by the defaulter, if the amount of rent and other conditions of the lease were approved by the Collector before the sale. It has also made provision to the effect that, in some cases, it may, through the Collector, by notifi- cation at the time of the sale, require the purchaser to respect all incum- brances created before the sale, just as they are bound to respect leases given by themselves. At present, the Government is willing to sell its rights of receiving the revenue in consideration of a money payment in a lump sum. If it be now held by my colleagues that by these modifications, up to 1819, and in subsequent years, the prohibitory provision of sec- tion 10, Eegulation XIX of 1793, so far as it authorizes the grantor, his heirs, and privies to resume a rent-free grant made subsequent to 1790, is virtually modified without any expi'ess enactment to that purpose, I would at once agree in that opinion. I would also agree with my colleagues if they hold that, as regards such grants against those who have in " equity " no rights to resume, by a fiction of law it is to be assumed that the formal sanction of the Government has already been obtained by the grantees. The observations of their Lordships of the Privy Council in the assess- ment case of Ranee Surnomoyee v. Maharajah Suttees Chunder Roy Bahadoor (1), to a great extent support this view. It is evident that, with regard to alienation since 1790, there was very little pressing (1) 10 Moore'a I. A., 123. Seethe report, "argument" down to the words "equitable p. 143, line 16, from the worda "upon the limitations," p. 147, line 2. FULL BENCH RULINGS. 91 necessity to make auy law to limit the resuming powers of persons i865 granting such invalid grants or of their heirs. These rent-free grants Pizibuddin were very rarely given by the proprietors in consideration of money, madhusudan These were always pious and religious gifts. It was vrell known that ^'^^ Cirow- Hindus and Mahomedans invariably respect such gifts of their own creation or of their predecessors, and think it a disgrace and sin to take away lands given to Brahmins, Saints, and Fakeers, as gifts during religious ceremonies for use and cultivation, or private houses, tanks, orchards, public temples, given for other religious and charitable purposes. Even purchasers by private sales or at auction for revenue, Hindus as well as Mahomedans, generally respected such grants, until about thirty years ago some Bengalees having become zemindars by private purchase or by public sales, turned a new leaf, and, braving the public opinion of their countrymen, began to exercise resumption rights, and so tempted some to follow their example. With regard to rent-free grants after 1765 up to 1790, out of regard to these time-honored feelings of the people, the Government, by section 3, Regulation XIX of 1793, pro- vided that grants within ten bigas given for chai'itable and religious purposes, under certain circumstances and conditions, were not to be resumed. Actions for resumption by landlords were very rare before, and even now all zemindars, &c., do not exercise these rights. The resumption suits are comparatively confined to the districts of Hooghly, Burdwan, and the 24-Pergunnas. The respect generally shown before, and the disrespect exhibited by some persons since the new idea has prevailed, related, and affects, not only the grants subsequent to 1790, but also invalid grants existing before that year. It was within the powers of the zemindars to give or withhold this authority to resume, when they made settlement of their lands with others on a long lease or in perpetuity; and it has been observed that in former times such a power was often withheld, even when patnis were granted for a consideration. This state of the feelings of the people shows why there was no pressing necessity to make any law about this matter of resumption. The zemindars and others holding inferior rights, having before 1765, and afterwards, according to the universal custom of the country, granted rent-free tenures, and these grants having been con- sidered to be alienations to the prejudice of the revenue due to the ruling power, the Grovernment thought proper to uphold such grants created previous to 1765. It kept the lands covered by grants from that time up to 1790, apart from the estates of which the Decennial Settlement was made, and from time to time made rules, before and 92 FULL BENCH RULINGS. 1865 in 1793, and after that time, for assessing such rent-free lands. Mean- PiziKUDDiN while, in estates permanently settled, parcels less than 100 bigas Madiiusudan were (by section 6, Regulation XIX of 1793) made over to zemindars, DHRY*^^" without any additional revenue being imposed upon them for the same. Looting to what had been done before, the Government was naturally afraid that the proprietors of permanently settled estates might again do what others, with less power, had done before; and so, after a long period, the Government might be required upon some grounds of expe- diency or hardship to uphold these new grants, just as it was compelled to hold good the grants made before 1765, and to make rules for assess- ing some of the grants from that year to 1790, with only the half jumma, justas it was afterwards in 1809 compelled to uphold indirectly, and partially, in estates no longer in its possession, against the present holders of these estates, grants created after 1790, by applying rules of limitation to suits for possession and assessments of these grants. All lands not having been settled permanently in 1790 into estates, several zemindaris remained in the khas possession of the Government for a long time, and even now some lands are lying in the hands of the Government, which are not settled at all with any person as estates. It was apprehended that the Revenue officers may create rent-free grants in properties thus held khas by the Government. In order to avoid this contingency, of which the Government was so much afraid, it thought proper to rule that all rent-free grants, without its permis- sion, given after 1790, were null and void; and no length of possession was at any time likely to give any validity to these alienations. The object was much less to assist the zemindars in 1790 or 1793, or immediately afterwards, than to provide against the possibility of any claim of prescription being raised by any person, with reference to possession under any such rent-free grants of the 1st of December 1790, as regards the revenue due to the Government from these lands. It was on these grounds that I, sitting with the Chief Justice in another case, tried before another Full Bench of five Judges (but in which, after all, no decision was pronounced) was inclined to hold that a zemindar creating or those holding under one who has created any such grant, were not authorized to resume, on the ground that what he or his predecessors had done was illegal under section 10 of Regu- lation XIX of 1793. If the original prohibition was based on a common law of the country, it was equally a well-known common custom that any such grant is not ordinarily considered resumable by those who may have made it, as well as by those who hold under him, FULL BENCH RULINGS. 93 The laws iu 1793 represented not only the ideas then entertained by 1865 the Government, but these laws, as well as those subsequently passed, Pizuiuddin also took cognizauce of the well-known religious and social opinions madhusudan and general conduct of the people of the country. ^"^DifBY*!^^" la this view of the case, it may perhaps be proper to uphold such grants, with a declaration that they are not binding against the G-overn- ment or those entitled to hold under it, by right of an auction purchase. When, in 1859, the Government distinctly declared that an action for assessment and also for possession could be brought regarding rent-free grants made after 1790, I cannot decide that, in such cases, the right of those who are not auction purchasers is only to see the tenure assessed with a rent to the extent representing its portion of the Government revenue, and not to dispossess. For the purposes of this case, it is sufficient to notice that, when rules were made by the Government to protect revenue from aU lands settled in an estate, it never proceeded to the extreme length of prohibiting the zemindars from digging tanks and wells, building houses for religious worship or for dwelling pur- poses, or planting orchards upon certain parts of their estates for private or for public use, and thus deprive themselves of all chance of getting any rent or produce in kind from these lands. In all laws regarding sales for revenue, provision however was made for certain reasonable rents being payable to the auction purchaser for lands so used by the defaulter. It does 'not, however, appear that any assess- ment could be made regarding lands upon which something was built or done, which was not likely to yield directly any return to the auction purchaser, but at the same time was enjoyed by the public, and was not in the exclusive possession of any particular person. As regards others than the auction purchaser, the use thus made of these lands, at least when made for public purposes, was in one sense no better than a rent-free alienation, and yet the heirs or representatives of those who may have made such transfers have not been considered to possess any power to assess the lands so alienated from the assets of the estate. The power to grant a rassadi (1) lease for the reclamation and culti- vation of waste lands, beginning with a rent-free term for certain years and progressive rent afterwards, was, of course, never questioned, and is not within the prohibitions of section 10 of Regulation XIX of 1793. It does not also appear that the object of this section was to (1) Progressively increasing or decreasing as the annual amount of revenue. 94 FULL BENCH RULINGS. iSGo prevent any lands being given away rent-free for public purposes as PiziBUDDiN in this case, for digging a tank in a village for procuring water, for Madhushdan raising or protecting the crops upon the lands of that village, to a Pal Chow- person who may be willing to incur the expenses of the digging, but who nevertheless might not find it convenient to pay any rents for lands which he never intended to use as private property. It does not follow that such a grant was contemplated to be included within the aliena- tions which the law had declared to be null and void. The letter of the law may cover such a case, but the object of the law was, and the subsequent modifications are, quite opposed to any such construction. I do not think that it is stretching the words of the law beyond the legal limits allowed, or that it is opposed to the present state of the law, to decide that the grant of a portion of lands for any public purpose likely to improve the value of the estate is not null and void, though made rent-free, and without the formal sanction of the Government. I am not, however, prepared to state that a rent- free grant for tanks comes within the powers given to the zemindars by section 8, Regulation XLIV of 1793, as was held repeatedly by several Judges of the late Sudder Court. This section refers to leases for rents, and not to grants without any reservation of rents. On these grounds I hold that the grant in this particular case is not resumable by the plaintiff. I would, therefore, decree the appeal, and reverse the decision of the lower Appellate Court. Levinge, J. (after shortly stating the facts, continued) : — The appellant's pleader has contended that the grantor had a legal power to make this grant, and drew a distinction between a grant of land rent-free and revenue-free; and contended that a grant, worded as the one before the Court, was not null and void, under the provisions of Eegulation XIX of 1793, section 10. It was n.ot pressed in argument that this grant came expressly within the terms of section 8, Regulation XLIV of 1793, which recognises the power of the zemindar to grant a lease or patta for years or in perpe- tuity, for the purposes of a tank, although the decision of 18th August 1847, in Huree Mohun Das v. Pranhishen Race (1), was quoted to show that a grant of land, rent-free, for such purpose, was held by the Court to be within the class of grants stated in that section. (1) S. D. A., 1847, W. FULL BENCH RULINGS. 95 But it appears to me that this graut does not come within the category 1865 of grants expressly declared to be within the power of a proprietor to pizibuddin make by section 8 of Regulation XLIV of 1793, inasmuch as this madhusudan grant is not a lease or patta — a distinction which does not appear to ■^'^^hry ^' have struck the Court in the case above cited, when they ruled that the grant, rent-free, proved in that case, came within the terms of that sec- tion. On the other hand, I do not consider that the grant now before the Court falls within the class of grants prohibited by section 10 of Regulation XIX of 1793. The grants there contemplated do not appear to me to include or embrace gifts of land for the purpose of making a tank, even supposing that the term "rent-free" in a grant may be properly construed by this Court as meaning "revenue-free." Sup- posing that the provisions of that section aimed at protecting the income of the zemindar, by preventing its diminution by grants of portions of the estate, rent-free, as well as declaring that all grants made in deroga- tion of the public revenue are null and voM, still I think the object and language of this deed clearly shows that there was no other inten- tion than to benefit the public and the parent estate at the expense and labor of the grantee, and that the grant can have no other effect ; and I should require to be shown the clearest declaration of the law before I would hold this grant to be null and void. Besides, I would remark that the language of that section does not seem strictly applicable to the grant before the Court, inasmuch as the section declares " that the propi-ietor is authorized and required to " collect the rents from such land granted at the rates of the pergunna, " and to dispossess the grantee of the proprietary rights in the land," words hardly referable to a bona fide gift of land for the purpose of excavat- ino- a tank for the supply of watei', to prevent the villages of the zemindari being deserted, and which was to be made and maintained at the expense of the grantee. For the above reasons I would uphold this grant, and abstain from expressing any opinion on the abstract question, whether a grant by a zemindar of a portion of his proprietary rights in his estate, rent-free, is a grant wholly void as against the grantor, his heirs, and those claiming under him. But as the Court at large are for going into that matter, and express- ing an opinion, I do not shrink from stating my views. I shall first consider the scope of Regulation XIX of 1793, and then allude to the 10th section, on which so much stress is laid, and under which, it is said, this grant is null and- void. Pal Chotv- 96 FULL BENCH RULINGS. 1865 Eegulation XIX is declared by the printed title to be " a Regulation for PiziKUDDiN " re-enacting, with modifications, the rules for trying the validity of titles Madhusudan " of persons holding lauds exempted from the payments of revenue to " Government." The concluding part of the 1 st section,—" upon the above " grounds, and with a view to facilitate the recovery of the public dues " from land held exempted," &c.— shows that the whole aim of the Regulation is to secure the recovery of the dues of Government, and that it is not a Regulation passed to prevent a zemindar, as long as the land is not illegally granted free of those dues, from granting a portion of Ms zemindari free of rent payable to himself or his heirs or assigns. The 15th section provides for suits, and declares that " the Collectors of " the revenue are to defend all suits that may be instituted against " Government by any person claiming a right to hold lands exempt from " the payment of the public revenue." The 24th section provides for the registry. It declares that " all "persons, actually holding land exempt from the payment of public revenue " in virtue of grants made previous to 18 th December 1790," are allowed a fixed time to register in the office of the Collector of revenue ; show- ing plainly, I think, all through the Regulation that it was introduced in 1793 to protect the public revenue, facilitate its collection, and effectually put an end to any pretence that lands could be held under grants made after 1790 free from the payment of revenue to the Govern- ment ; in other words, it is publicly notified that lakhiraj holdings could not be created for derogation of the fiscal prerogatives of the Govern- ment. I take it that the grant now before the Court, or any grant using simply the terms " free of rent payable to the zemindar, his heirs or assigns," would not be termed a lakhiraj-according to Wilson's Glossary, i. e., a term applied to land exempted for some particular reason from paying any part of the produce ; and Mr. Tucker in Guru- churn Paramanik and Saduchurn Paramanik v, Odayenarain Mun- dal (1) thus defines it: " The tank has been improperly termed lakhiraj. "It is not lakhiraj, for it has not been exempted as such from the " general estate for which the zemindar pays revenue to Government." The 27th section of Regulation XIX enacts that " all grants, not re- " gistered within the prescribed time, are declared invalid as far as regards " the exemption from the payment of revenue, and the land be assessed " with revenue, as directed by section 26;'' and that section leaves that duty to the Collector, who, I am not aware, had any power to assess the amount of rent payable to the zemindar. (1) C Sel. Eep., 281, 282. FULL BENCH RULINGS. 97 The 28th section informs the public of the effect of registry, and 1865 states that it is not to prevent the proprietor suing to recover possession Pizieuddin of the soil, and the Collector suing to recover the revenue. Madiiusudan I, therefore, think that the language of the 10th section — " all grants ^^^ Chow- " for holding land exempt from the payment of revenue, whether exceed- "ing or under 100 bigas of land, that have been made since 1790, " or that may be hereafter made by any other authority than that of the " Governor-General in Council, are declared null and void," — does not apply to a grant of land " free of rent ;" and to read or construe the deed by the language of the 10th section is to interpolate another ex- pression, extend its operation, make it express what it never intended, and nullify and avoid the deed made for good consideration. And here I cannot avoid quoting a familiar passage from Broome's Legal Maxims, where the construction of deeds is discussed and sup- ported by so many authorities (see pages 482, 485) : — " The construction, likewise, must be such as will preserve rather " than destroy ; it must also be favorable and as near the minds and " apparent intents of the parties as the rules of law will admit ; and, " as observed by Lord Hale, Judges ought to be subtle to invent reasons " and means to make acts effectual according to the intent of the parties, " They wiU not, therefore, cavil about the propriety of words when the " intent of the parties appear ; but will rather apply the words to " fufil the intent than destroy the intent, by reason of the insufficiency " of the words." Again : — " If words have a double intendment, and the " one standeth with law, and the other is against law, they are to be " taken in the sense agreeable to law ;" a passage peculiarly applicable to the term " rent-free " in the deed, as those who hold this deed void, do so on the ground that it must mean " revenue-free " likewise. A grant exempt from the payment of revenue is not only declared by the 10th section to be null and void, but the section expressly requires the proprietor and the Collector to disposses the grantee. Now, can it be said that, if the land is simply granted free of rent payable to the zemindar, and he or the grantee is willing to pay the revenue, the zemindar and the Collector are bound to avoid the deed and dispossess the grantee ? They certainly are, if " free of rent payable to the zemin- dar " means also " free of revenue payable to the Government." A grant of land, rent-free, by a proprietor, does not more interfere with the revenue of the Government, or the position of the proprietor, than a lease in perpetuity, at a nominal rent of one rupee annually. This lease in perpetuity has just as much effect on the revenue (which is nothing !) N 98 F^LL BENCH RULINGS. 1865 and on the iiicom^auJ resources of the zemindar, as a grant, free of rent, PiziKUDDiN payable to tlie zemindar. Yet it is not disputed that the lease is binding Wadhusudan on the zemindar and his heirs. But, it is said, the grant is not legal, ^diiky'^^' because it is contrary to the Eegulations and against the policy of the law, which ^vill protect the zemindar from improvident alienations though made on good consideration. Supposing the deed, expressly granting the land, rent-free, contained a covenant between the zemindar and the grantee that the former and his heirs would pay the Government revenue, would the deed be null and void, because the land had been granted " rent-free," and would the zemindar and the Collector be bound to dispossess the grantee ? I should think not. Again, if the grantee covenanted with the zemindar for the consideration expressed in the deed, and for which the land had been granted rent-free, that he would pay to the zemindar the quota of Government revenue, expressly declaring that it was a payment for the Government revenue, and not for or in lieu of rent, would the deed be null and void ? I should doubt it. I shall now refer to the recognized powers and rights of the zemin- dars by referring to one or two of the earlier Regulations, with the object of showing that a grant of land within their estatCj rent-free, is one they have power to make. In Eegulation I of 1793, section 9, Article 8, is to be found the following sweeping declaration : — " That no doubt may be entertained " whether proprietors of land are entitled, under the existing Regu- " lations, to dispose of their estates, without the previous sanction of " Government, the Governor-General in Council notifies to the zemin- " dars, independent talookdars, and other actual proprietors of land, that " they are privileged to transfei-, to whomsoever they may think proper, " by sale, gift, or otherwise, their proprietary rights in the whole or any " portion of their respective estates, without applying to the Government " for its sanction, &c." Here is an explicit declaration, that the proprietor may transfer a por- tion of his estate without the sanction of the Government ; and I am at a loss to see why they should not exercise this power, when they cannot by any alienation free the land from the tax or revenue payable to the Government. I next refer to Regulation I of 1801, section 14, under which I think it is clear that the right of the zemindar to create a rent- (not revenue-) free tenure is recognized. This section declares that " by section 9, " Regulation I of 1793, the zemindars and all other proprietors of land FULL BEXCII RULINGS. 99 " have been declared at liberty to transfer, by sale, gift, or otherwise, 1865 " their proprietary rights in the whole or any portion of their respective Piziruddi.v " estates ; but by section 10 of the same Eegulation it is required that MADnuscDAx " all such transfers be notified to the Collector of the Zilla, &c., but ^"^^hky"''" " until such notification and separation shall have been made, the whole " of the estate is declared responsible to Government for the discharge "of the fixed jumma assessed upon it, in the same manner as if no " transfer had taken place." I think, after that declaration, it could not be contended that, unless the notification to the Collector mentioned above were given, the grant of a portion of the estate in perpetuity would be null and void as against the grantors and his heirs, for some meaning must be given to the sen- tence, " but until such notification and separation shall have been made, the " whole estate is declared responsible." I read that sentence to mean that the G-overnment will not recognize the apportionment or grant of any part of the zemindari until notification ; but I also treat it as recognizing the power of the zemindar to make a complete disposition of a portion of his estates with the option of having the whole zemindari held responsible for the revenue of the portion so disposed of. The above-quoted passage will dispose of any argument raised as to the inter- ference with the revenue payable to the Government, as every fraction of the estate, including the part alienated, remains liable for its payment. The section I am quoting from goes on to declare : — " If, therefore, any " zemindar shall have disposed of his proprietary rights in any portion " of his zemindari, whether under the denomination of an independent " talook or . otherwise, and the talookdar or other person to whom the " portion of an estate may have been so transferred shall have omitted to " obtain a separate allotment of the public assessment thereon, in the " mode prescribed by the Regulations, such transfer, as far as respects " the rights of Government, must be considered invalid; and if the laud " so privately transferred, but not separately assessed, should have been " since, or shall be hereafter, included in any public sale for arrears of " revenue, the illicit and imperfecl; transfer must be deemed to have been "altogether done away. In such cases the lands transferred, until " publicly registered and separately assessed, form part of an undivided " estate ; and, as such, are liable to be sold for any arrear of revenue " which may be due from any part of the estate." I think that in the above is to be found a recognition of the grant being binding on the proprietor and his heirs, and invalid as against an auction purchaser at a sale for arreai-s of I'evenue. It interprets the word " revenue " in the 100 FULL BENCH RULINGS. 1865 10th section of Regulation XIX of 1793, as being confined to the PiziEUDDiN revenue payable to the Government, and as not including rent payable to Madhusudan the proprietor of the entire zemindari. DHRY. -"-f ^^^ zemindar cannot make the disposition I contend he has the power to make, what becomes of his proprietary rights ? They are frittered away and controlled by a shadowy distinction. Those who contend that a zemindar cannot grant a portion of his estate to a member of his family free of rent payable to him or his heirs, admit he may lease in perpetuity so as to bind himself and his heirs at a pepper- corn rent, an alienation just as injurious to the zemindari as a grant of a portion of a rent-free estate. Sir E. Barlow and Mr. B. Colvin, in their j udg- ment of the 18th July 1855, in Ahmed Alee Khan v. Baja Modhnarain Singh (1), use the following language : — "In fact the law nowhere recog- " nizes grants of land exempt from revenue, but the power of creating " dependent talooks or granting leases at any rent is fully accorded (see " section 6, Regulation XLIV of 1793, and Regulations V and XVIII "of 1812)." In that case those learned Judges drew no distinction be- tween rent and revenue, but they have clearly announced what the law is as regards the power of the zemindar to lease away in perpetuity at any rent. In opposition to the ruling of those Judges (who did not see the distinction between rent and revenue) on the power of the zemindar to grant rent-free, Mr. Dick held as follows : " I concur with the Prin- " cipal Sudder Ameen that the grant is not resumable by the heirs of " the grantor, and that section 10, Regulation XIX of 1793, does not apply " to the case. The law could not intend to declare that the party who " had made the grant could at pleasure resume it whether given for a " valuable consideratton or not, or intend to entitle the heirs of such " grantor to resume. This would be authorizing such persons to repu- " diate their own acts and the acts of their ancestors. Grants of the " nature in question, quoad the grantors and their heirs, affect not the " public revenue. They affect merely their own rental. The , grantor " continues himself to pay the revenue, and if he do not, the estate is "sold, and then the grants become null and void. The law (Section " 10, Regulation XIX of 1793) was enacted to prevent alienations " prejudicial to the security of the public revenue, not to enable pro- " prietors and their heirs (whose ancestors' acts are theirs) to profit by " their own wrong. The proprietors and their ' successors,' who are " authorized to resume at pleasure, are not those who made the grants, or (1) S. D, A., 1855, 395. Pal Chow- DHKY. FULL BENCH RULINGS. 101 " their hereditary successors. An auction purchaser can annul grants 1865 "and alienations. This the law declares. AW bona Jide alienations are Pizikuddin " binding on those who made them and on their heirs. This justice madhusudan " requires, and our precedents have decided." Considering that there is no express law declaring a grant of land free of rent payable to the zemindar null and void, I hold the grant valid. I support the proprietary right in the soil. I prevent the gran- tor and his heirs annulling a bona fide deed made for valuable consi- derations, and I in no way interfere with the revenue payable to Government, or the right of an auction purchaser to acquire a title free of all encumbrances on the land. On these grounds, I also hold the grant in the present case binding on the plaintiff. Before Mr. Justice Norman, Officiating Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Shumboonath Pundit, and Mr. Justice Levinge. JOHN POULSON (Dependant) v. MADHUSUDAN PAL CHOWDHUY jges (Plaintiff).* ■^«»- 18. Limitation— Act X of 1859, s. 32— Act XIV of 1859, «. 1, cl. 8, a. 14 and s. 18. The provisions of the Limitation Act, XIV of 1859, do not apply to suits for arrears of rent under Act X of 1859, nor are the provisions of Act X of 1859 in any way affected by the provisions of Act XIV of 1859. This suit was instituted on the 16th April 1863 (29th Chaitra 1269), for arrears of rent during the years 1265 to 1269 (1858 to 1862), under Act X of 1859. For the defence it was contended that the suit was barred under section 32 (1) of Act X of 1859 as to any rent prior to * Regular Appeal, No. 294 of 1863, from a decision passed by the Deputy Collector of Chowkee Mohespore, ZUla Nuddea, dated the 6th May 1863. (1) Act X of 1859, s, 32. — " Suits for the that, if the suit be for the recovery of rent recovery of arrears of rent shall be institu- at a higher rate than was payable in the ted within three years from the last day of previous year, such rent having been the Bengal year, or from the last day of enhanced after issue of notice under see- the month of Jeth of the Fusly or Willay- tion 13, and the enhancement not having uttee year in which the arrear claimed shall been confirmed by any competent Court, have become due. For arrears of rent due the suit shall be instituted within thi-ee at the passing of this Act, suits shall be months from the end of the Bengal year or brought within three years after the passing of the month of Jeth of the Fusly and of thisAct, or within the period now allowed "Willayuttee year on account of which such for the institution of such suits in the Civil enhanced rent is claimed." Court, whichever may first expire. Provided 102 PULL BENCH RULINGS. 1865 1266 (1859). The plaintiff replied that he was entitled, under sec- J^s PouLsoN tion 14 (1) of Act XIV of 1859, to except from the period of limita- SlADHusuDAN ^^ou the time during which he was bona fide prosecuting the same Pal Chow- pijjim in a wrong Court. The Deputy Collector gave a decree for the plaintiff as prayed. The defendant appealed, and the question whether the provisions of Act XrV of 1859 applied to suits' brought under Act X of 1859 was referred by the Division Bench (Campbell and Kemp, JJ.), who differed from the ruling in Syud Hossein Urhurree v. Gobind Narain (2), for the opinion of a Full Bench. The opinion of the Full Bench appears in the following judgments : — NoEMAN, J. (after shortly stating the facts, continued) : — The preanible of Act XIV of 1859, "An Act to provide for the limitation of suits,'' states that " it is expedient to amend and consolidate the laws relating " to the limitation of suits," and for that purpose it enacts that " no "suit shall be maintained in any Court of Judicature within any " part of the British Territories in India in which this Act shall "be in force, unless the same is instituted within the period of " limitation hereinafter made applicable to a suit of that nature, any "law or regulation to the contrary notwithstanding, and the period of " limitation and the suits to which the same respectively shall be appli- " cable shall be the following." Then comes the enumeration, amongst which, in clause 8, section 1, is " suits for the rents of any buildings " or lands (other than summary suits before the Revenue authorities "under Regulation V of 1822 of the Madras Code), the period of three " years from the time the cause of action arose." The question is whether, under the description of suits for " rents of buildings or land," suits for arrears of rent under Act X are meant to be included. The argu- ment, on behalf of the respondent, is that Act XIV is the general law of limitation, and that the intent of the Legislature was that the period of limitation in all suits to be instituted after that Act came into opera- (1) Act XlVof Wh'd^s.U. — "Incomput- of iurisdiotion or other cause, shall have ing any period of limitation prescribed by been unable to decide upon it, or shall have this Act, the time during which the claimant, passed a decision which, on appeal, shall or any person under whom he claims, shall have been annulled for any such cause, have been engaged in prosecuting a suit upon includiag the time during which such appeal, the same cause of action against the same if any, has been pending, shall be excluded defendant, or some person whom he repre- from such computation." sents, hon&fide, and with due diligence, in (2) S. D. (N. W. P.), 1863, 218, any Court of Judicature, which, from defect PULL BEIs'CII RULINGS. 103 tiou should be regulated by it. Clauses 1 to 15 of section 1 enumerate 1865 a great number of different suits to which different periods of limitation John Poulson are respectively to be applicable, and clause 16 provides a period of madhusudan limitation for all suits to which no other limitation is thereby expressly ■'^'^dhrt'^^" provided. At first sight, therefore, it might appear that the Act is meant to be applied to all suits of whatever nature or kind. But in section 18, it is enacted that " all suits to which the provisions of this " Act are applicable, that shall be instituted after the expiration of two " years from the date of the passing of this Act, shall be governed by " this Act, and no other Law of Limitation, any Statute, Act, or Regu- " lation now in force notwithstaading.'' The Act, then, is not universal in its application. It is clear that the Legislature contemplated that there were some suits to which the provi- sions of the Act would not be applicable. It can hardly be said that the Act is not applicable to cases when shorter periods of limitation than those prescribed in section 1 are kept alive by section 3, because, first, the Act does apply to them in keeping alive such shorter limitation ; and, secondly, in every other respect, except the period of limitation, they are probably meant to be regulated by Act XIV. Act X of 1859 received the sanction of the Governor-General only six days previously to the passing of Act XIV. Now, it is a sound rule of construction that " the law does not favor " a repeal by implication, unless the repugnance be quite plain ; and, " such repeal carrying with it a reflection on the wisdom of former " Parliaments, it has ever been confined to repealing as little as possible " of the preceding statute. Although then two Acts of Parliament " are seemingly repugnant, yet, if there be no clause of non obstante " in the latter, they shall, if possible, have such construction that the "latter may not be a repeal of the former by implication" (1). If the words " suits for the rents of any buildings or lands " had been intended to include suits dealt with by section 32 of Act X, we should have been obliged to say that the Legislature, by sec- tion 32, created a limitation of three years from the end of the month of Ghaitra to remain in force for two years ; but after a period whQU the limitation in Act X had become thoroughly well known and understood by the agricultural community, without any parti- cular reason for the change, they would find that suits must be brought within three years of the cause of action if for arrears on (1) Dwarris on Statutes, 533. 104 FULL BENCH RULINGS. 1R65 account of land, or six years if on account of pasturage, forest rights, John Poulson fisheries, &c., with privileges as to the extension of the period in the Madhusudan latter case which it was not thought necessary to provide in the former. ^"^DHUY^^^" It would be difficult to assign any j ust reason why, in Acts of the Legisla- ture which were under consideration at the same time applicable to the same matter, one set of Regulations as to limitation should be established at once, and anotlier and totally different set of rules should be enacted to take effect at a date arbitrarily fixed at two years after the passing of the second Act. I cannot doubt that if the period of limitation and the qualifications contained in Act XIV had been intended to apply to rents, under Act X, the Legislature would have declared that these provisions should have come into operation at once. It is equally difficult to understand why there should be a new classification of suits for rent to take effect at such future time. Act X of 1859 is a special statute applicable only to the Presidency of Fort William in Bengal, and containing a complete code regulating the rights and duties of the agricultural population, with respect to the occupation, management, and rent of land, and the recovery of such rent in Collectors' Courts within the Presidency. Now, it is a well-known principle of legal construction that general statutes are not to be taken as repealing special statutes, unless there is a clear expression of the inten- tion of the Legislature to that effect. Mere general words are not enough. The rule which was stated by Judge Jenkyns in his " Eight Centuries of Reports," case 41, page 120, was recognized by the Lords Justices of Appeal in Chancery in 1853 — The Trustees of the Birkenhead Docks V. The Birkenhead Dock Company (1), and in 1861 by Vice- Chancellor Wood in Fitzgerald v. Champneys (2). The reason given by the Vice-Chancellor is as follows : — " The Legislature having had its "attention drawn to a special subject, and observed all the circum- " stances of the case and provided for them, does not intend, by a general " enactment afterwards, to derogate from its own act when it makes no " special mention of its intention so to do." Secondly, the word "lands" in clause S may have a sufficient mean- ing given to it by treating it as a term subordinate to houses, — that is, as applying to " houses and lands appurteuaut thereto," as distinguished from " lands, forest rights, fisheries," and the like, in the sense in which tlie word is used in section 23 of Act X of 1859. It is a well-settled rule that an enumeration of different subjects in an Act of Parliament (1) 23 L. J. (N. S.), Ch., 457. (2) 30 L. J. (X. S.), Ch., 777. FULL BENCH RULINGS. 105 general words following specific words, may be construed with reference 1865 to the antecedent matters^ and the construction may be narrowed by John Poulsok treating them as applying to things of the same kind as those previ- Madhustjdan ously mentioned. Compare Comyn's Dig. Parliament R., 36 ; The ^'*^^°^' King v. The Manchester and Saljord Waterworks (1) ; The East London Waterworks v. Mile End Old Town (2). Again, looking at the history of the enactment of clause 8, section 1, we find that, as origin- ally proposed, clause 7, specially excepted " summary suits before the "Revenue authorities regarding arrears and exactions of rent;" but after the passing of Act X, summary suits, except under Regulation V of 1822 of the Madras Code were at an end, and the clause was then amended, so as to except such last-mentioned summary suits only. This shows that even before the passing of Act X of 1859 there had been an express in- tention to exclude suits for rents of land from the operation of clause 8, and to deal with them by other legislation. We are therefore of opinion that suits for arrears of rent under Act X of 1859 are not afiected by Act XIV of 1859, because no " period of limitation " is by the last- mentioned Act " made applicable to suits of that nature," so that the case is not brought within section 1, and such suits are therefore not " suits to which the provisions of that Act are applicable " within section 18 of Act XIV of 1859. We have gone into the case at length, because our decision is at variance with the case of Syad Hussein Urkurree v. Gobind Narain (3). Letinge, J. — I concur in Mr. Justice Norman's judgment, having no doubt that the special provisions of Act X of 1859, regulating the recovery of rent in the Bengal Presidency, are not repealed or interfered with by the provisions of the general law — Act XIV of 1859 — passed for the three Presidencies, and that this is the true legal construction to be given to these two Acts. Pundit, J. — I agree with this opinion, though I see that, in many cases, this construction, which I am compelled to adopt, is likely to operate as injurious to the extent of depriving redress altogether. I feel no hesitation in holding that cases under Act X of 1859 are not affected by Act XIV of the same year. Trevor, J. (Loch, J., concurring). — The question which we have to determine in this case is whether, iu a suit brought under Act X of 1859 for arrears of rent, the special limitation of section 32 of that Act applies, (1) 1 B. & C, (2) 17 Q. B., 1 B. & C, 630. (3) S. D. (N. W. P.), Uth March 1863, ^ " ",512. 218, O DHBY, 106 FULL BENCH RULINGS. 1865 or whether those suits are governed by the provisions of clause 8, section 1, John Poulson Act XIV of 1859. If the former law is applicable, a landlord will be Madhu'sudan S'hle to institute a suit for arrears of rent at any time within three years Pal Chow- f^.^^ ^^^ j^^^j. ^^^ ^^ ^^^ Bengal year, or from the last day of the month of Jeth of the Faslee or Willayati year, in which the arrears claimed shall be due, as the land is situated either in Bengal or elsewhere ; whereas if the latter applies, the landlord must bring his suit within three years from the time the cause of action arose, but he will, under section 14 of the Act, be entitled in the computation of the three years to the exclusion of any period during which a bona fide suit upon the same cause of action against the same defendant, or some person whom he represents, was pending either originally or in appeal, or both, and •was dismissed for defect of jurisdiction. It appears to me to be clear that the terms of section 32 of Act X of 1859 are unalFected by the provisions of Act XIV of 1859 : first, in- asmuch as a general law does not override or repeal by implication a special law, the more especially when the two laws are enacted contem- poraneously ; secondly, inasmuch as in the present instance the general law contemplates cases not falling within its provisions, and its terms are satisfied by the exclusion of these cases under Act X of 1 859 ; and thirdly, inasmuch as the difi^erence in the Law of Limitation under Act X and Act XIV of 1859 is such as to show that those laws were severally enacted for difierent classes of cases ; i;he law in the latter case not being applicable to the former. In one word, the causes which exist for the enactments in the general law do not exist in the subject- matter of the special law — hence the difference between them. The principle that a general law does not derogate from a special one admits of no question. It only remains to show that the subject-tnatter of Act X of 1859 is of a special, whilst that of Act XIV is of a gene- ral, nature. The title of Act X of 1859 is "An Act to amend the law relating to the recovery of rents in the Presidency of Fort William in Bengal," and the preamble of the law declares that " it is expedient to " re-enact with certain modifications the provisions of the existing law "relating to the rights of ryots" with respect to various matters, "to " extend the jurisdiction of the Collector, and to prescribe rules for the " trial of such questions, as well as of suits for the recovery of arrears " of rent, and of suits arising out of the distraint of property for- such " arrears." With a view of carrying out these objects, various I'ules were }jiade ; and by Section 32, it is enacted that " suits for the recovery of FULL BENCH RULINGS. 107 " arrears of rent shall be instituted within three years from the last 1865 " day of the Bengal year, or from the last day of the month of Jeth John Poulson " of the Fusly or Willayuttee year in which the arrears claimed shall MADHn'suDAN " have become due. For arrears of rent due at the passing of this Act, I"-*^ Chow- " suits shall be brought within three years after the passing of this " Act, or within the period now allowed for the institution of such suits " in the Civil Court, whichever may first expire. Provided that, if the " suit be for the recovery of rent at a higher rate than was payable in " the previous year, such rent having been enhanced after issue of notice " under Section 1 3, and the enhancement not having been confirmed " by any competent Court, the suit shall be instituted within three " months from the end of the Bengal year, or of the month of Jeth of " the Fusli or Willayatti year on account of which such enhanced "rent is claimed." Now, these are special rules for special points arising out of the special subject to which the Act refers, — viz., the transactions arising out of the relation which exists between landlord and tenant in the Presidency of Fort William in Bengal. Turning to Act XIV of 1859, which was passedonthe 5th May 1859, seven days subsequently to that on which Act X was passed, its title is " An Act to provide for the limitation of suits," and its first section enacts that " no suit shall be maintained in any Court of Judicature " within any part of the British Temtories in India, in which this Act " shall be in force, unless the same is instituted within the period of limi- " tation hereinafter made applicable to a suit of that nature, any law or " regulation to the contrary notwithstanding." The general nature of the subject-matter of the Act cannot be questioned. It follows, there- fore, the one Act being special, and the other general, and both passed with only an interval of seven days, that they do not in the least inter- fere with each other ; but it has been contended that, unless the latter override the former law, its general and large terms are not satisfied, and this consideration must override any technical rule of construction regarding a general law not derogating from a special one, but the con- tention wUl not, it seems to me, admit of argument. The special law is only concerned with a special relationship within the Presidency of Bengal ; the general law embraces all suits arising out of all relation- ships, except that special one, between man and man, within the British Territories in India, including the Presidencies of Madras and Bombay, This area and these relationships are large enough to warrant the use of the most general terms, without interfering with the special contem- poraneous law made regarding a particular relationship in a particular 108 FULL BENCH RULINGS. 1865 part of the country. Bead by this principle, the very general terms of John Poclson section 1 of Act XIV embraces the various suits brought with a view Madhusddan of enforcing the obligations contracted by, and of repairing the injuries DHB^^" done by, individuals not standing to each other in the relationship of landlord and tenant in Bengal, and simply import that, when, concerning any suit falling within the general Limitation Law, there are or shall here- after be made laws prescribing a shorter limitation for the institution of them, the shorter limitation shall prevail. Moreover, section 18 shows clearly that there are suits to which the provisions of the law are not applicable ; it may therefore be asserted that the very general, though not absolutely universal, application of the law quite satisfies the Iftfge terms used in the law itself. The separate reading of the two laws which the rule of legal con- struction points to, not only satisfies the terms of both laws, but explains the causes of the difference in them on the point to which the present discussion refers. In the special law, — in cases, that is, between landlord and tenant, — the demand is for rent ; rent is a demand arising yearly from the land, and must be satisfied yearly, in order to enable the zemindar to pay his revenue. If the zemindar is a minor, whether under the Court of Wards or otherwise, he must, under the laws in force, have a manager to whom they are to be paid, and who is legally empowered to grant receipts and to institute suits for their rents on his behalf, and special tribunals have been established in which alone suits for rent can be adjudicated: no other Court having jurisdiction over such matters in Bengal. Hence in these cases, having once fixed the date from which time shall run, there is no necessity for any allowance on account of minority, or for time expended in suits brought bona fide upon the same cause of action and against the same defendant in any Court of Judicature not having jurisdiction; whereas in other cases, from their variety, from the uncertainty as to the ability, power, or will of any party to take them up, and sometimes from the doubts as to the parti- cular forum in which the suit should be brought, there is a necessity for not allowing time to run in cases of parties under legal disability when the right of action first accrues, and a necessity also for excluding from the computation of time running against a suitor, that period during which a suit brought bona fide on the same cause of action against the same defendant may have been pending in a Court without jurisdiction. This diversity of position arising from the different nature of the transactions, and the parties to them, sufficiently explains the difference between the two laws, and the reason for the same, and fur- FULL BENCH RULINGS. 109 Bishes a conclusive proof that the intention of the Legislature was that 1865 these laws should be considered separate and distinct. John Poulson For the above reasons, I have no hesitation in ruling that the terms of Madhusudan section 32 of Act X of 1 859 are altogether unaffected by the provisions dhry. of Act XIV of 1859. Before Mr. Justice Norman, Officiating Chief Justice, Mr. Justice Trevor, Mr. Justice Seton-Karr, Mr. Justice Pundit, Mr. Justice Phear, Mr. Justice E. Jackson, and Mr. Justice Glover, SONATAN GHOSE and others (Dependants) a. MOULVI ABDUL 1865 FARAE (Plainiifp.)* Jany. 25. Lakhiraj — Resumption — Regulation II of 1819, «. 30 — Act X of 1859, s. 28 — Juris- diction of Civil and Revenue Courts. The plaintiff, the purchaser of a patni lease, sought to obtain a declaration of his mal right, by setting aside an alleged rent-free tenure, in certain lands which the defend- ant claimed to hold under a lakhiraj title prior to 1765, or Ist December 1790. The plaint was filed in the Collector's Court on 31st December 1861, but was referred to the Civil Court under the Bengal Act VII of 1862, and the plaintiff obtained a decree in the lower Courts. Held, by a majority of the Court (Teevoe, Seton-KIare, and Glovee, JJ., dissenting), that the Civil Court had jurisdiction to try the suit, notwithstanding section 28 of Act X of 1859. Per Tkevoe, Seton-Kaee, Pundit, and Glovee, JJ., section 30, Regulation II of 1819, did not apply to cases within section 10, Regulation XIX of 1793. — Norman, Pheae, and Jackson, JJ., contra. This was a suit by the plaintiff, who was the purchaser of a patni, instituted under section 30, Regulation II of 1819, for the resumption of, and declaration of, the mal right (right to assess) of the plaintiff in certain land alleged by the plaintiff to be held by the defendant under the false allegation of its being rent-free. The plaint was filed in the Collector's Court on the 31st December 1861 (the last day of the old Law of Limitation which was superseded by Act XIV of 1859), and subsequently transferred to the Civil Court in pursuance of the provisions of the Bengal Act VII of 1862. The defendant set up a lakhiraj title prior to August 1765, and 1st December 1790, which he failed to prove. The plaintiff obtained a decree in the lower Courts, and the point raised in appeal was that the present suit having been instituted after the passing of section 28, Act X of 1859, the Court had no jurisdiction. * Special Appeal, No. 869 of 1864, from a decision passed by the Additional Judge of Hooghly, dated the 30th January 1864, affirming a decision of the second Principal Sudder Ameen of that district, dated the Uth April 1863i 110 FULL BENCH RULINGS. 1865 The case came on in special appeal on 26th August 1864 before SoNATAN Steer and E. Jackson,.JJ., and, it appearing that there was a conflict ^_ of decision upon the point, the question was referred to a Full Bench. MOULVI Abdul Faeak. Whether or not the Civil Court had jurisdiction ? That question was treated as depending upon the two following, namely : — 1st. — Whether such a suit is cognizable under section 30 of Eegula- tion II of 1819 or not ? 2nd. — If not cognizable under section 30 of Regulation 11 of 1819, then is the jurisdiction of the Collector's Court, under section 28 of Act X of 1859, an exclusive one in such cases, or has it only a con- current jurisdiction with the ordinary Civil Courts ? The provisions of the Statute Law upon which the questions in this and the following case (1) principally turn are here added. Regulation XIX of 1793, Section 10. — All grants for holding land exempt from the payment of revenue, whether exceeding or under one hundred bigas that have been made since the 1st December 1790, or that may be hereafter made by any other authority than that of the Govern- or-General in Council, are declared null and void, and no length of possession shall be hereafter considered to give validity to any such grant, either with regard to the property in the soil, or the rents of it. And every person who now possesses, or may succeed to the proprietary right in any estate of dependent talook, or who now holds or may here- after hold any estate or dependent talook in farm of Government or of the proprietor, or any other person, and every officer of Government appointed to make the collections from any estate or talook held khas, is authorized and required to collect the rents from such lands at the rate of the pergunna, and to dispossess the grantee of the proprietary right in the land, and to re-annex it to the estate or talook in which it may be situated, without making previous application to a Court of Judicature, or sending previous or subsequent notice of the disposses- sion or annexation to any officer of Government; nor shall any such proprietor, farmer, or dependent talookdar be liable to an increase of assessment on account of such grants which he may resume and annul during the time of the engagements that he may be under for the pay- ment of the revenue of such estate or talook when the grant may be so resumed and annulled. The manager of the estates of disqualified (1) p, 162, infra. FULL BENCH EULINGS. Ill proprietors, and of joint undivided estates, are authorized and required 1865- to exercise, on behalf of the proprietors, the powers vested in proprie- Sonatas Ghose tors by this section. v. Regulation II of 1819, Section 30. — First. — All suits preferred in a ^dul^fIkak, Court of Judicature by proprietors, farmers, or talookdars to the reve- nue of any land held free of assessment, as well as all suits so preferred by individuals claiming to hold lands exempt from revenue, shall, imme- diately on their institution, be referred for investigation to the Collector or other ofS^eer exercising the powers of Collector : provided also that proprietors, farmers, or talookdars, who may deem themselves entitled to the revenue of any land held free of assessment in their respective estates, talooks, or farms, or individuals claiming as aforesaid to hold lands free of assessment, shall be at liberty to prefer their claims in the first instance to the Collector : provided, further, that the party so preferring his claim directly to the Collector shall, in his petition to the Collector, state the particulars of his claim, and the grounds on which it is founded, in like manner as if the suit were instituted in a Court of Judicature : and the petition shall be written on stamped paper of the value prescribed for petitions of plaint in suits instituted in those Courts. Act X of 1859, Section 28. — So much of section 10, Regulation XIX of 1793, section 10, Regulation XLI of 1795, section 6, Regu- lation XXXI of 1803, section 21, Regulation VIII of 1805, and sec- tion 24, Regulation XU of 1 805, as authorises and requires proprietors and farmers of estates and dependent talooks in cases in which grants for holding land exempt from the payment of revenue have been made subsequent to the dates specified in the said sections, of their own au- thority to collect the rents of such land, and to dispossess the grantees of the proprietary right in the land, and to re-annex it to the estate or talook in which it may be situate is repealed ; and any proprietor or farmer who may desire to assess any such land, or to dispossess any such grantee shall make application to the Collector, and such application shall be dealt with as a suit under the provisions of this Act. Every such suit shall be instituted within the period of twelve years frMpi the time when the title of the person claiming the right to assess the land or dispossess the grantee, or of some person claiming under him, first accrued. If such period has already elapsed, or will elapse within two years from the date of the passing of this Act, such suit may be brought at any time within two years from such date. Act XIV of 1859, Section 1, Clause 14. — To suits by the proprie- tor of any land, or by anjr person claiming under him, for the resumptioa 112 FULL BENCH RULINGS. 1865 or assessment of any lakhiraj or rent-free land, the period of twelve SoNATAN years from the time when the title of the person claiming the right to Ghosp ^. resume and assess such lands, or of some person under whom he claims, Abdul'fakab.^'^*'' ^'Ccrued : provided that, in estates permanently settled, no such suit, although brought within twelve years from the time when the title of such person first accrued, shall be maintained if it is shewn that the land has been held lakhiraj or rent-free from the period of the perma- nent settlement. Act VII of 1862, B. C— Whereas by section 30 of Regulation II of 1819, it is enacted that certain suits preferred in a Court of Judica- ture regarding lands held, or claimed to be held, free of assessment, shall be referred for investigation to the Collector, and that similar suits may be preferred in the first instance to the Collector ; and whereas such reference of suits is unnecessary and causes inconvenience and delay in their decision, and it is advisable that such suits should be preferred and disposed of exclusively in the ordinary Courts of Civil Judicature ; It is enacted as follows : — I. Within the Provinces subject to the Government of Bengal, sec- tion 30 of Regulation II of 1819 is hereby repealed, except as regards such suits decided by Collectors under the provisions of that section as may be open to appeal at the date of the passing of this Act. II. All suits preferred by proprietors, farmers, or talookdars, to resume the revenue of any land held free of assessment, as well as all suits preferred by individuals claiming to hold land exempt from the payment of revenue, shall be instituted, heard, and determined in and by the Courts of Civil Judicature, like ordinary civil suits, and under the rules and subject to all the provisions contained in Act VIII of 1859 (for simplifying the Procedure of the Courts of Civil Judicature not established by Royal Charter), and not otherwise. The opinions of the learned Judges upon the question referred to them were delivered as follows : — SiftoN-KAER, J. (after stating the facts and the question referred, proceeded). — The Regulations and laws most quoted in this discussion, the tenor and scope of which it becomes necessary to discuss and examine very closely, are Regulation XIX of 1793, Regulation II of 1819, Regulation IX of 1825, and Act X of 1859. The first law, Regulation XIX of 1793, is a law passed for trying the validity of the titles of persons holding, or claiming to hold, lands exempted from the payment of revenue to Government ; and the first PULL BENCH RULINGS. 113 section lays down clearly what is the ancient and common law of the 1865 country on this important matter. It then divides the grants alienating Sonatan public revenue into three classes : (1) grants previous to the Dewanny, ^^"^^^"^ or to the 12th of August 1765 ; (2) grants between this date and the j^^^^l^j,^ 1st of December 1790 ; (3) grants made after 1790, With the first class of these grants, the present discussions have nothing whatever to do, and only incidentally does the discussion touch on the second class. Between the two first classes and the third class. the law draws a marked distinction. By section 6 of the law, the revenue assessable on grants of the second period, when not more than 100 bigas in extent, is declared to belong not to Government, but to the person responsible for the discharge of the revenue of the talook or estate within which the grant is situated ; and the proprietor is declared on this account not to be subject to any extra payment of revenue. It has been shown to us incidentally that, in the old rules of 1789, the word " rupees " was used instead of the word " bigas ; " and it is natural to infer that the subsequent designation of bigas, as marking the extent of the land, was used, because each biga might be held, roundly, to be liable to one rupee of revenue. By the next section, it is clearly laid down that the revenue on grants of more than 100 bigas in extent, alienated before 1790, should belong not to the zemindar or talookdar, but to Government; and that these lands should constitute independent talooks after resumption. Section 10 of this law (Regulation XIX of 1793) is the remarkable section out of which the present contention has mainly sprung. It rules that all grants made after 1790, December 1st, whether under or above 100 bigas in extent, made by any other authority than that of the * Governor-General, are absolutely null and void ; that all proprietors of whatever sorts, are " authorized and required" to collect the rents from such lands at the pergunna rates, and to dispossess the grantee from the same, without making any application to a Court of Judicature or to Government ; and it declares that no such proprietor shall be liable to any increase of assessment on account of any such grant which he may resume and annul. The distinction which the Legislature intended to draw in this section is, I think, suificiently obvious. The permanent settlement had been made with the zemindars, and their status, as proprietors, had been recog- nized. Any grants made by any other authority than the Governor- General were, in such estates, ipso facto, null and void. In the term " grants," must, also, I think, in all fairness, be included any usurpation p 114 PULL BENCH RULINGS. 1865 or encroachments made by any subordinate holder of land, under the SoNATAN pretext that they wei'e grants; and it was by considering the status of V. zemindars and proprietors, which had been so recognized by law, that Abddl^Fakar ^^'^^ persons were not only permitted but required to look after their estates; that they were considered bound to see that the area on which rent was due, and from which revenue was eventually payable, should not be impaired or diminished; and that they were permitted, without any formality or any application to the authorities of any sort, then and there, even by force if necessary, to dispossess all fraudulent or illegal grantees, and to re-annex the usurped property to its parent estate. The zemindars, in this view, were only enjoying their own again. They had as much right to re-annex a tenure, impudently or fraudulently set up as rent-free, but in reality created or usurped after 1790, as they would have had to recapture a stray horse or cow. After 1790, there could, it is clear, be no such grants whether by nawabs, amils, farmers, or proprietors of any kind. None but the Governor- General in Council could, from that date, alienate the revenue, or what was practically the source and foundation of revenue, namely, rent. It is probable, however, that such attempts at usurpation, by sub- tenants, were few in number. Perhaps, on the other hand, if any such encroachments were made, the zemindars feared that disposses- sion by the strong hand would fail in the result, or might lead to resist- ance or violence ; or it might be that a zemindar could not distinguish between grants created before and grants created after 1790 ; and that, when they did endeavor to resume, they preferred challenging all grants, as held by invalid tenure, in uniform, general, but positive terms, without specification of the date of origin. Again, it may be that very little was done comparatively in the way of resumption by Government, until the passing of the Resumption Laws of 1819 and 1828, and that the zemindars following in the wake of Government, themselves did little or nothing, until later years. Religious prejudices may also have had their full sway, and respect for Brahmins may have prevented zemindars from closely scrutinizing the titles by which brah- matra and dewuter, and even other tenures, were held. Certain it is that, from whatever cause, for a long time, we heard little of section 10, except in theory. Quarrels and affrays have not, as 1 hold, been due to this portion of the law in any marked degree, or in a greater pro- portion than they are due to other well known causes of agrarian dis- turbance. And it is also tolerably certain that institutions of suits for resumption by zemindars have been numerous enough to attract FULL BENCH RULINGS. 115 attention, and to create a distinct branch of law and of litigation, only 1865 since the year 1848. After that date, and again after the year 1855, Sonatan the proprietors of estates in the lower provinces, following the example „_ of two or three well known and energetic zemindars, have generally ab^l^fJkar. betaken themselves to enquire into the origin of their grants, and with a growing disregard of religious prejudices and of ancient custom, have resolutely set themselves to increase the rent^paying area of their estates, as they had a perfect right to do, by every means which the law had placed within their reach. AU this it is necessary tp premise for a full understanding of this part of the subject. We now come to the next law of importance, the weU-known Eegu- lation II of 1819. Till that time, it is clear, from the preamble of the law, that the exist- ing laws had been inadequate to secure the just rights of Governments, and similarly, we may add, of those to whom Government had delegated a portion of its rights. The preamble recites the object of the law to be the declaration of the right of Government to assess all lands, which, at the decennial settlement, were not included within the limits of a settled estate, and at the same time to renounce all claim on the part of Government to additional revenue from lands included within the limits of a permanently settled estate. In this view, one uniform course of law and procedure was laid down. The first twenty-nine sections of this law are wholy taken up with the procedure and forms to be adopted by Government in the resumption of its own rights. But the 30th section embraces the cases of proprietors in regard to lands which they could resume. It would seem as if the Legislature, after minutely laying down rules for the action of the Revenue Authorities charged with the preservation or the resumption of the rights of Government, had also thought that time and trouble would be saved by prescribing, in one and the same law, the rules whereby private, as well as public claims should be instituted, tried, and adjudicated. Section 30 declares that all suits instituted by proprietors, &c., to the revenue of any land held free of assess- ment, shall, immediately on their institution, be referred to the Collector for report ; and that proprietors who deem themselves entitled to the revenue of any land held free of assessment on their respective estates, shall be at liberty to prefer their claim, in the first instance, to the Collector. The remainder of the section is wholly taken up with the procedure in such cases, and need not be now adverted to. Now, what is to be understood by the term " revenue of any land held free of assessment," which occurs twice in this section ? Did the 116 FULL BENCH KULINGS. 1885 Buits, contemplated on the part of proprietors, include both suits for SoNATAN lands held under grants anterior to 1790, and suits for lands usurped or V. granted away since that date ? Is the word "revenue" (1) in this section Abdul Farar. to ^^ understood as meaning the revenue due to Government, which had been assigned to the zemindar, or is it a careless tei-m, meaning the rent ■which proprietors could levy on the ground of their existing status and rights ? And, finally, ought suits for the assessment of lands for the first time held, granted, or usurped after 1790, to have ever been held under this section or not ; and if suits have ever been so tried, then is the jurisdiction of this section curtailed or taken away by the provisions of section 28 of Act X of 1859 ? This really is the gist of the whole controvei'sy. I am of opinion, after the very fullest consideration, that the arguments in favor of a concur- rent jurisdiction for the Civil and the Revenue Courts in regard to this section, and for the retention of such concurrency, even after the passing of Act X, are inferior in number, weight, and fulness to the arguments, that to resume grants of a later date than 1790, one Court, and one only, that of the Collector, is intended as the correct and legal tribunal. Section 30, to my mind, contemplates the zemindar or talookdar in the position of the assignee of the revenue due to Government on lands of less than 100 bigas in extent. It does not contemplate him as resum- ing the rent of his own lauds, which had been illegally or fraudulently usurped, or denied to him by his own tenants residing on the estate, which was settled with him at the perpetual, and consequently at the decennial, settlement of 1789. The word " revenue'' was used, knowingly and advisedly. This, I think, is to be inferred from the whole language and scope of the Act. Its first twenty-nine sections prescribed the rules where- by Government shall recover its alienated revenue. The 30th section similarly prescribes rules whereby zemindars shall recover that portion of the revenue which Government, in its generosity, had conceded to them, and to which they could have had no title, were it not for such liberality on the part of Government. Section 10 of Regulation XIX of 1793, already quoted and explained, is not mentioned, and was never contem- plated by the framers of Regulation II of 1819, although other sections of that law are thereby rescinded in express terms. The section (10 of Regulation XIX of 1793) remained in force and unaltered until sec- tion 28 of Act X displaced it, and substituted for the possible violence of the zemindar, a more sober, formal, and regular mode of ejectment. (1) In Piziruddin v. Madlmmdan Pal the Zemindar" and " Eevenue of Govem- Chowdry, ante, p. 75, the terms " Kent to ment" were distinguished. FULL BENCH KULINQ8. 117 Section 30 of Regulation II of 1819 does not contemplate ejectment at all, 1865 but assessment ; whereas section 10, Regulation XIX of 1793, directly Sonatan contemplates an act of ejection and dispossession. Section 30 and the „, whole Regulation II of 1819 contemplate liability to assessment, and not abdulFabar. the ejectment and dispossession of illegal or usurping grantees. This much, I think, every one must concede. It is said, on the other hand, that zemindars have been allowed to bring suits under section 30 for both kinds of land, — i. e., those taken before, and those taken after, 1790 ; and that, further, any zemindar who prudently did not wish to resort to force to oust the latter kind of tenants, had, at any rate, his remedy for his wrong under an ordinary civil action, independent of the Resumption Law of 1819 ; such as was permitted to all persons injured, under Regulations III and IV of 1793, or our earliest Civil Code. I concede that it is quite possible that suits to resume lands taken after 1790, may have been carelessly admitted under section 30 of Regulation II of 1819. But the truth, as I take it to be, is that, until a very recent period, zemindars suing to resume and assess used a general and vague language as to time. They stated in their plaints broadly that such and such lands were held " under invalid (najaiz) lakhiraj tenures," and invoked the aid of the Courts. The marked distinction in dates has been, I firmly believe, of recent introduction, and perhaps subsequent to Act X of 1859 ; and if we find that some suits have been carelessly admitted, that the point has never been fairly and fully argued until very lately, and yet that the Legislature has prescribed certain remedies which are to be the sole remedies for a particular class of wrongs, what, I would ask, is there to hinder us from considering the subject, and from laying down a precise rule for all future and for all pending cases ? I cannot admit the conclusiveness of the arguments on the other side of the question, admitting that much may be said against my view of the case, to the effect that it has lately been the practice to admit both classes of suits to trial under section 30. Then, what is the meaning of the reference to the Collector and to the Board throughout the whole of the law of 1819, and specially in section 30? The Collector was the sole registrar and depository of papers and titles by which the revenue of Government was affected. He was naturally supposed to be the most competent authority to determine in what cases Government, or those to whom Government delegated its powers, might claim revenue unlawfully withheld or appropriated. He was by some 118 FULL BENCH RULINGS. 1865 supposed to possess a perfect monopoly of knowledge in regard to SoNATAN revenue and land tenures. But I do not see why the Collector should „. be supposed to know at what period, or by what process, rents, and not AeduTfIrae. revenue, due on lands situated within the limits of a decennially settled estate, with which the Collector had no practical interference, had been illegally appropriated by some fraudulent tenant. The zemindar was the person who could see after his own affairs; who could best know the limits of his own estates, and the extent of the misdoings or usurpations of his ryots; and if he had no means of ascertaining these points, the Collector was not the person to give him any material assist- ance. The zemindar would certainly find in the CoUectorate the quinquennial registry papers, and the papers showing of what mauzas an estate consisted at the perpetual settlement; but all this he was supposed to have in his possession already. On the other hand, to call in the aid of the Collector to point out what lands were liable to revenue, and by what titles or grants they were held, was, according to the ideas of the Legislature of 1819, perfectly reasonable and proper. To send zemindars to the Collector, in order that he might help them to ascertain all about their defaulting tenants, and ihe deficiencies in their rent-roll, was wholly unnecessary. Such alienations, by the section of a law never changed until the passing of Act X of 1859, were on tha face of them null and void. What was then left for a Collector to enquire into, ascertain, or report ? And to what portion of an enquiry about nothing, could the long and elaborate processes of the swelling clauses of that same section, which make up two pages of Clark's Edition, by any process of reason or analogy of law, be thought to apply? I cannot accept the argument that the word "revenue" in section 30 is used indiscriminately as expressing " khazana," which means both revenue and rent. The framers of the law of 1819, according to my idea of their capacities and intention, knew prefectly well the force and significance of the terms which they were using, and made use of revenue in its ordinary significance, — viz., that which is due to Govern- ment from the land. The word " rents," on the other hand, is pointedly used in section 10 of Regulation XIX of 1793, as being what zemindars are required to collect as their own already. That no interference with section 10 of Regulation XIX of 1793 was contemplated by the framers of Regulation II of 1819, seems to me, further, to be conclusively established by a reference to Regulation rV of 1825, section 8. This section specially provides that nothing in Regulation II, or in any other Regulation in force, shall affect, or be FULL BENCH RULINGS. 119 ooneidered to aflfect, section 10 of Regulation XIX of 1793, which 1865 declares the right of zemindars to make use of no Court at all, but Sonatan only of the services of their own naibs, gomastas, and retainers. And v. the section goes on to reserve to the Revenue Authorities the right to abdul Farab. resume lands now held free of assessment, but subject to payment of revenue at the date of the perpetual settlement, as well as to except the cases in which revenue might belong to the proprietors or others with whom a permanent settlement had been concluded, — i. e., cases of lands on which rent-free grants had been set up after 1790. The section concludes by saying that the provisions of section 22 of Regulation II of 1819 (allowing rent-free holders to remain in possession on tendering security, pending the suit which they were to institute to retain their tenures) shall not apply to such cases. Having thus shown, as I hold, that the intermediate and well-known law of 1819 had no reference whatever to grants made after 1790, and consequently that any such cases instituted under its provisions must have been admitted through inadvertence, or from mere want of distinct- ness or perspicuity in the claims, I come now to section 28 of Act X of 1859. In my view of the case, there is, then, nothing in our legislation which touches these cases in the whole period between 1793 and 1839. We go per solium from the vigorous and off-hand dispossessing zemindar of 1793 to the same individual applying to the Revenue Authorities in 1859. In that year a law was passed, which, from its preamble and its whole scope, was intended to provide for all rights of zemindars and ryots, and all questions arising out of rent, and to form, as far as possible, a com- plete and definite Code in itself. Now what is the language of section 28 of this Act ? It simply repeals section 10 of Regulation XIX of 1793, and rules that "any " proprietor or farmer who may desire to assess such land, or dispossess " any such grantee (i. e., a grantee after 1 790), shall make application to " the Collector, and such application shall be dealt with as a suit under " the provisions of this Act." The section then goes on to say that such suit shall be instituted within twelve years from the time when the title of the plaintiff accrued, &c. In the above language there is nothing permissive. Nothing which suggests the notion of a double form, or of a subsequent remedy in the shape of a civil suit, such as is, by other sections of Act X, reserved for parties whose titles or rights cannot be decided by the Collector. The 120 FULL BENCH RULINGS. 1865 period of limitation is no short period, but the longest which any of our SoNATAN laws permit. The terms used are as positive and peremptory as lan- ^f.^'^ guage can afford. The law says as I read it:—" You shall no longer oust Abotl"fSaii. " all^6geirchasers within twelve years of 1862, having been confined at the best to the end of 1861, in the latter portion of the year a vast quantity of suits were instituted throughout several of the Bengal Districts, chiefly in Hooghly and Burdwan. These cases were all instituted under section 30 of Regulation II of 1819, either in the CoUectorate, or, after beino- instituted in the Civil Courts, had been, or were to be, made over to the Collectors. The Revenue Courts throughout Bengal had already been made exclusive Courts for all cases mentioned in sections 23 and 24, (1) S, D. A., 1855, p. 501 ; see p. 510. FULL BENCH RULIl^GS. 145 Act X of 1859 ; and provisions were also made by the same Act for re- 1865 ference to the Collector of many other complaints upon different questions Sonatan arising between landlords and tenants. The Collectors had thus their j,, files already overwhelmed with these cases. The fact of the last few j^jdui, FabAk, months of 1863 being too late for cases of arrears of rent due more than three years before the passing of the Act, it was apparent that towards the end of the year many more cases were likely to be instituted in these Courts which could not be instituted anywhere else. Besides, in some districts the indigo disputes had brought in the Revenue Courts an enormous quantity of suits for assessment and^ en- hancement, and " the right of occupancy " had given rise to many suits. In order to decide these cases, in several districts many extra hands bad been engaged. The resumption cases already instituted could not be disposed of in any districts for several years, if they had to pass thi'ough the CoUectorate so burdened with different sorts of cases. To relieve the Revenue Courts from these arrears, and to have these cases under section 30 speedily decided, was the real object of passing this law of 1862, by which the pending cases were to be transferred to the CivU Courts, as was done by section 2 of the Act. Besides, it was considered that lakhirajdars dispossessed by landholders before Act X of 1859 was passed, or even afterwards, might have occasion to sue for recovery of possession ; and for these persons the original remedy provided for by section 30, Regulation 11 of 1819, was still considered as the law under which they might be allowed to sue. The latter por- tion of clause 14 of section 1 of Act XIV of 1859 being applicable only to estates permanently assessed in Bengal, there might still be lands held khas, but not at all settled, in which there may be lands held rent-free under grants alleged to be before 1st December 1790, and to the revenue of which lands Government still have a right. The law of 1859 was also merely a rule of limitation ; it could not prevent cases being brought by parties. Under this state of things, probably, the Legislative Council of Bengal thought it proper to word section 1 of Act VII of 1862, as it is now worded, meaning that the provisions of that section will be, in the case of private claims by landlords, applicable, with reference to the laws enacted before by the Legislature, only to cases to which it will actually apply, — i. e., to suits by those who may still have a right to sue for assessment of rent-free grants before 1790. Section 1 of Act VIl of 1862 of the Bengal Council is not, there- fore, any conclusive proof of the law-makers having understood that T 146 FULL BENCH RULINGS. ■ 1865 section 30 of Regulation II of 1819 was actually applicable to suits for SoNATAx assessment of rent-free holdings subsequent to 1st December 1790, „ Even if, misled by loose practice of the Courts, the framers of that AiiBUL"FTiiAi!. ^'^^ ^^ 1^®2 had thought so, that would not extend the operation of the law of 1819. It is, therefore, clear that, either in cases for possession, or in cases for assessment of rent-free grants subsequent to 1790, before section 28, Act X of 1859, passed, the ordinary Civil Courts were the tribunals where the suits could have been instituted. It appears that, when section 28 was originally proposed, it simply was intended to be applicable to cases of possession and not of assess- ment ; and the non-limitation clause of section 10 of Kegulation XIX of 1793 was left unaflFected. When it was found that provision of limitation had been introduced in Act XIV of 1859 (passed only five days after Act X, and considered simultaneously with the latter) on this subject of assessment inferentially for lakhiraj lands subsequent to 1790, a class of cases which the Legislature found were often instituted, though not provided for in express words by any law passed before the cases of assessment were included in section 28 ; and the same rule of limitation that was made applicable to assessment suits under clause 14 of section 1 of Act XIV of 1859, and which had been provided for all cases of possession under clause 12 of the same section, was made applicable to those of possession and assessment mentioned in the said section 28. If clause 14 of section 1, Act XIV of 1859, had been held to be intended to be the general code of limitation for all cases in all Courts, there might be some grounds to argue that, by section 28, exclusive jurisdiction was intended to be given to the Collector in cases mentioned in that section. It has already been held that Act XIV does not over-ride the limitations mentioned in Act X of 1859. It is also clear that the original framers of Act X may have intended to give that meaning to section 28 ; but the rule passed in other laws may be the reason for the omission of those words in this section which we find are given in sections 23 and 24, to the effect that the cases provided for in these sections were not to be heard in any other Courts. The intention at the time of framing of any section of a law, whether changed or not changed by those who ultimately pass the law, will not by itself be a good ground for a Court of justice to construe the meaning of the law in conformity with this intention, when the wording of the law as passed, compared with others passed before or at the same time, distinctly leads to a construction opposed to that intention. If the new remedy provided by the new FULL BENCH RULINGS. 147 law is not at all inconsistent with the old remedy; and when the old 1865 remedy, as now modified, is found to agree exactly with the new Sonatan remedy now under consideration, there is no reasonable ground to infer v. that the jurisdiction of the Collector is entirely exclusive. The power ae^°"f^p., to assess is not anywise inconsistent with the power to oust ; the latter included the former ; and the imposition of a rule of limitation in the Collectorate, even though no such rule was made for suits to be brought in Civil Courts, would not have made the new remedy any way inconsistent with the old mode of redress. In this view of the case, I think that a case for assessment or possession of lakhir^ lands subsequent to 1st December 1790 can be brought either before the Collector, under section 28 of Act X of 1859, or in the Civil Courts, under the ordinary powers possessed by these Courts, irrespective of section 30, Regulation II of 1819, All the arguments used by Mr. Justice Raikes and Mr. Justice Trevor in Anundmyee Dabee Chowdrain v. Hurrish Chunder Chowdhry (1), decided on the 7th November 1861, to prove that suits under section 28 were only petitions in matters appealable to the Revenue Commissioners and not to the Judge, apply to the point now under discussion, and show that the jurisdiction of the CoUeetor, under section 28, is not exclusive. The fact tjiat this decision on the point it ruled has since been set aside by another Full Bench Decision of five Judges, passed on the 18th March 1863 — Bisioambhar Misser v. Ganput Misser (2) does not at all affect the argument. The subsequent ruling simply decided that, as the matter brought before the Collector under section 28 is required to be tried and dealt with as a suit, the appeal should be to the Judge. Whether, after such decision, another case on the same grounds which formed the subject- matter of dispute before the Collector, can, by the party dissatisfied, be again brought, or cannot be brought at all, before the Civil Court, is quite a different question. The word " shall " in section 28 only points to the necessity of suing, which landlords were not required to do before, previous to the ousting of persons holding rent-free grants subsequent to 1st December 1790, and cannot, in any way, enable us to get rid of a separate provision for limitation of such cases, expressly provided for cases of assessment in clause 14 of section 1 of Act XIV of 1859. The argument of there being a limitation fixed in section 28, particularly two years' time being given for cases in which this limitation had a,lready expired, is of no consequence, as it is clear that there might be some limitation for these cases even when the Court pf the Collector is the (1) S. D. A., 1861, p. 163. (2) Ante, p. 5. 148 FULL BENCH RULINGS. 1865 exclusiye Court. Only within some fixed time a suit for current years SoNATAN could be brought in the Collectorate, and the jurisdiction of the Civil Ghose t,. Courts, or the limitation applicable to these cases in Civil Courts, was Abdul^abak. ^^ "° ^^y affected by this additional new remedy of a summary case. There being temptation to go to the Collector, as only a quarter of the stamp duty was required, nobody chose to go to the Civil Court, but the law did not prohibit landholders from going to the Civil Courts for their current arrears. Hence, there being a dread of onus in these cases of resumption of rent-free grants after 1790, though no stamp fees are required under section 28, the zemindars do not like to go to the Collectorate as long as they have a hope that they may still sue in the Civil Courts under section 30 of Regulation II of 1819, which throws the onus upon the defendant. If they knew that the Civil Courts have jurisdiction, but not under section 30 of Regula- tion II of 1819, the zemindars wUl necessarily prefer to come under section 28 of Act X of 1859. As to the suggestion made that the original section 10 of Regula- tion XIX of 1793, as well as the present section 28 of Act X of 1859, now under consideration, refer to grants, and not at all to cases of lands for which rents may have been only withheld subsequent to 1790 without the ryots having any grant, it is clear that, in all cases ordi- narily instituted for assessment of rent-free lands alleged to be created after 1790, no person has found it convenient to plead any invalid grant subsequent to that year, except any grant given by the complainant himself or his predecessor ; while generally these cases have been defended by the lakhirajdars under an allegation of rent-free grants previous to 1790. The holding of a rent-free grant previous to 1790, or even after, is an adverse title which the landlord is obliged to set aside before he can succeed in assessing or obtaining possession of the lands. When the landlord sues in the Civil Courts for possession or assessment, the defendant pleads a rent-free grant and puts in a copy of a taidat relat- ing to the village in question. In such a case the plaintiff must prove that the lands of which he asks possession or assessment are parts of his estate which he held, or from which he received rents within twelve years preceding the suit, without the defendant being put to the proof of his alleged grant. Accordingly, in cases of lands held rent-free without any grant from a period subsequent to 1790, the claim of the plaintiff will be liable to limitation under the ordinary law, without any reference to the provision of the Act of 1859, As FULL BENCH RULlNGS. 149 most of the cases to which the present discussion applies are cases i865 ■without any grant subsequent to 1790, and the right of the landlord Sonatan to sue for the assessnaeut of these lands in Civil Courts is not at all ^, denied, and all these cases have now, if instituted in the Collectoi'ate, abdu°"fakar. been transferred to the Civil Courts, it is immaterial, with regard to the cases, whether there is any grant at all of a date subsequent to 1790. The fact of a grant or no grant, if considered material, will be so only in cases instituted under section 28 of ActX of 1859. In this view of the matter, even if the jurisdiction of the Collector is ex- clusive in all cases mentioned in the said section 28, it must be so only in cases where there is any question of a grant of a date subsequent to 1790; the Collectors cannot have any jurisdiction in cases where no such question does arise. I have only seen one case of a grant sub- sequent to 1790 affirmed by a Governor-General. It is reported in page 240, Vol. II, S. D. A. Reports. The wording of clause 14 of section 1 of Act XIV of 1859 does not confine the cases mentioned in that section to grants, but provides for assessment of rent-free lands, of course subsequent to 1790. I may, therefore, have no hesitation in agreeing with my colleagues, who hold that the remedy in section 28 of Act X of 1859 is confined to cases of grants subsequent to 1790. But I am not prepared to hold that that jurisdiction is exclusive, or that the Collectorate is the only Court where all actions for possession or assessment of lands, the rents of which are alleged by landlords to have been withheld since 1st Decem- ber 1790, under any rent-free grant, or without any such grant at all, can now be instituted. The case now before us is, in my opinion, cognizable in the ordinary Civil Courts, without any reference to section 30 of Eegulation II of 1819, under the general powers which the Civil Courts possess irrespective of that section, which does not^apply to cases mentioned in section 28 of Act X of 1859. I would, therefore, allow the case to proceed. Pheae, J. — This case, which has been argued before us at great length, and with elaborate care, relates solely to pure matter of proce- dure. The suit is brought substantially to obtain a declaration that the plaintiif is entitled to the rent of certain lands, which he alleges that the defendant holds within his zemindary on an invalid rent-free title. It ■was, in the first instance, preferred before the Principal Sudder Ameen, 150 PULL BENCH RULING^. 1865 and now comes to this Court by special appeal on several grounds ; bu-t SoNATAN it is agreed by both sides that the only question to be determined by us „. is, whether or not the Civil Courts, as distinguished from the Collectors' Abdul"fauar Courts, have jurisdiction to receive and deal with the suit ; and this question tqrns upon the construction to be given, first, to a section of a Regulation made in 1819 ; secondly, to a section of an enactment made in 1859. Unfortunately, our forensic procedui'e is based so little upon any general a priori considerations, that it is nearly impossible to infer the motives actuating the Legislature from the forms which it is found ultimately to prescribe. Still, in the absence of any specific declarations on the point, I conceive that the Legislature must be always presumed to have intended to facilitate the recourse of suitors to the legal tri- bunals rather than the contrary. This presumption affords us but little assistance here, but, such as it is, it is the only guide we have extrane- ous to actual words of the enactments where these leave us in any doubt or obscurity. The two enactments to be construed are the 30th section of Regu- lation II of 1819, and the 28th section of Act X of 1859. But before considering them, it is necessary to call to mind the state of things relative to proprietary rights in the soil or its produce, which was brought about by the permanent settlement of 1793. This settlement was founded on the principle that, "by the ancient law of the " country, the Ruling Power is entitled to a certain proportion of the "produce of every biga of land (demandable in money or kind " according to local custom), unless it transfers its rights thereto " for a term or in perpetuity, or limits the public demand upon the whole " of the lands belonging to an individual, leaving him to appropriate to his " own use the difference between the value of such portion of the pro- " duce and the sum payable to the public, whilst he continues to discharge " the latter." Practically, the Ruling Power nearly always transferred its rights, or limited its demand in the way thus mentioned, and the lands from which the dues would have accrued, had they been laid in kind, were termed in English the estates of the transferrees or other owners respectively. Clearly, the proprietors of so-called estates had no power to grant away any portion of their land free of liability to pay the public dues, and so to diminish the amount receivable by Government from themselves or their successors ; still such pretended grants had been and continued to be made, and Government itself sometimes made valid grants of the like kind. So that, when the permanent settlement con- firmed the proprietors in their estates upon condition of their paying, by FULL BENCH KULINGS. 151 way of revenue, a certain fixed jumma, or rent, in perpetuity, this jumma i865 was assessed on each estate, exclusively and independently of those por- Sonatan tions of it as were at the time of the assessment claimed to be held v. lakhiraj, or free of revenue, by virtue of any such grants. Abdul^Faear By Regulation XIX of 1793, section 3, made after the permanent settlement, " all grants for holding land exempt from the payment of " revenue which may have been made since 12th August 1765, and pre- " vious to the 1st December 1790, by any other authority than that of " G-overnment, and which may not have been confirmed by Government " or by any ofiicer empowered to confirm them, are declared iuvaild," and the revenue withheld under pretence of any invalid grant made pre- vious to the 1st December 1790 is allotted between the proprietor of the estate and the Government in the following manner. Sec- tion 6 says that, if the land which is the subject of any one such grant does not exceed 100 bigas, the revenue assessable thereon shall belong to the proprietor of the estate in which such land is situated, who shall not, in consequence, be liable to pay any additional revenue in respect of his estate. And by section 7, if the land in one such grant exceed 100 bigas, the revenue assessable thereon shall belong to the Government. Before the proprietor of the estate can claim the revenue given him by section 6, he must establish the invalidity of the grant before the ordinary civil tribunals (section 2) ; thereupon he becomes entitled to recover such an amount in perpetuity as the Collector on due investigation may fix (section 9). Under no circum- stances does he obtain a right to obtain possession of the soil (section 6). The subject-matter of grants made after 1st December 1790 was dealt with by the Legislature somewhat difierently. It is as well to observe that the permanent settlement was not definitely established until after this date ; and the assessment of the fixed jumma on parti- cular estates might be, and was in plenty of instances, delayed to a con- siderably later period. Hence, so far as concerns such of these grants subsequent to the 1st December 1790, as were made before the assessments of the jumma on the estates within the geographical limits of which they purport to take effect, these operate to deprive the Government of revenue, while those of them which were made after that assessment, only go to diminish the proprietor's (zemindar, talookdar, and so on, as the case might be,) sources of income from his estates. I shall have occasion to refer to this distinction further on ; but it is, at the outset, im- portant to remark that this distinction was at any rate disregarded by the Legislature in 1793, for both classes alike are admittedly within the 152 FULL BENCH RULINGS. 1865 scope of section 10 of Eegulatioa XIX of that year. The words of that SoNATAN section are — " All grants for holding land exempt from the payment of Ghose „, "revenue, whether exceeding or under 100 bigas, that have been Abdul Fakar. "™^de since the 1st December 1790, or that may be hereafter made by " any other authority than that of the Governor-General in Council, are " declared null and void ;" and it is not unimportant to remark that the words here used to describe the character of the grants are identical with those used for the like purpose in section 3. Having declared the grants to be null and void, under the prescribed circumstances, the same section authorizes and requires the proprietor of the estate " to " collect the rents from such lands" (those to which the void grants applied) " at the rates of the pergunna, and to dispossess the grantee of the proprietary right in the land, and to re-annex it to the estate or talook in which it may be situated, without making previous application to a Court of judicature, or sending previous or subsequent notice of the dis- possession or annexation to any officer of Government." And it further provided, that the proprietor should not be liable to any increase of assessment on account of any such grants as he should resume or annul. The effect of this section seems to \>e,Jirst, to give the proprietor the largest possible right, as against the terre-tenant, to the possession of all lands within the ambit of his estate which may be claimed to be held free of payment, either to him or to Government, by virtue of aU. alleged grant, purporting to be made since 1st December 1790, by his prede- cessor in the estate, or any other alleged competent authority ; and witli this right to possession, also the right to claim rent from those lands in the same way as if they had been let at the pergunna rates, in ordinary course, with the rest of his estate ; all this without obliging him to make, on his part, an additional payment to Government, whether or not the land in question originally formed part of the assets on which his fixed jumma was assessed. Thus far, then, his situation relative to these two sets of lands respectively appears to me to be as follows, namely : with regard to land which forms the subject of a grant for holding the same exempt from revenue, dated previously to the 1st De cember 1790, provided tlie amount does not exceed 100 bigas, he is entitled to obtain from the terre-tenant an annual payment of a given fixed sum assessed originally by the Collector ; and with regard to the land which forms the subject of a grant, for holding the same exempt from the payment of revenue, dated since the 1st December 1790, he is entitled to obtain not a fixed sum, but the annual payment of such sum as accords with the rates of rent in the pergunna. He has, moreover, FULL BENCH RULINGS. 153 the further right to evict the claimant under the invalid grant even 1865 summarily by force, without having recourse to a Court of law. Sonatan - Whatever be the intrinsic peculiarities of these two respective sets of „. rights, they both alike (the one by the express provisions of, and the abdul'faear. other by necessary implication from, the Statute) could be vindicated before the ordinary Civil Courts, and this adipittedly rema,ined the case until 1819. In that year was passed Regulation II, the 30th section of which enacts that "all suits preferred in a Court of judicature by " proprietors, farmers, or taloolsdars, to the revenue of any land held free " of assessment, as well as all suits so preferred by individuals claiming " to hold lands exempt from revenue, shall immediately on their insitu- " tion be referred to the Collector for investigation," &c. The appellants urge that this section relates solely to suits by proprietors in re.^pect of land, which is claimed to be held exempt from payment under grants made before the 1st December 1790, and that it leaves untouched those where the exemption is claimed under a grant of later date. They then go on to argue that the latter cases are dealt with by section 28 of Act X of 1859, which, after repealing section 10 of Regulation XIX of 1793, enacts that " any proprietor or farmer who may desire to assess " any such land, or to dispossess any such grantee" (namely, such land and such grants as formed the subject of the repealed section) " shall " make application to the Collector, and such application shall be dealt " with as a suit under the provisions of this Act." According to the appellants, therefore, while the one set of suits may be instituted in the Civil Courts, subject to being immediately transferred to the Collector, the other can be instituted only before the Collector himself. They then contend that, by the words of the plaint before us, the plaintiff actually says that he brings the suit under section 30 of Regulation II of 1819 ; and further, also, makes admissions which show that the pre- tended rent-free tenure is based on a grant made since the 1st December 1790, and consequently as he brought the suit in the first instance before the Civil Court, it ought to have been dismissed for want of jurisdiction. With the view I take of the two sections under consideration, I do not conceive it necessary to decide whether or not the plaintiff in his plaint made any admission of the kind alleged. For the mere statement that the suit is brought by virtue of a particular enactment does not affect the substantive character of the cause of action ; and then, taking the sections in their chronological order, in my judgment, the words of section 30 of Regulation II of 1819 are sufficiently large to embrace suits of both classes ; and I see no sufficient indication that the Legisla- 154 FULL BENCH RULINGS. 1865 ture intended their meaniDg to be restricted to the interpretation put SoNATAN upon them by the appellants. It is said that " suits preferred to the ^. revenue of any land held free of assessment " can only apply where Abdul Fahar. *^® claimant stands as it were in the shoes of Government, — namely, where he claims in respect of land which has not been included in his revenue assessment, and in respect of which, consequently, nothing is paid to Government, But even this reasoning, which certainly gives a wrench to the sentence by referring " free of assessment" to the pro- prietor's relations with Government, while the claim of revenue is preferred against the terre-tenant, does not necessarily confine the opera- tion of the section to cases where the exemption is based on the allega- tion of a grant before the 1st of December 1790 ; for, as I have already explained, all lakhiraj grants made after that period and before the decennial settlement of the particular estate which they afifect, would deprive the Government of revenue ; and section 10 of Eegulation XIX of 1793, would as effectually make the proprietor assignee of this revenue, as section 6 of the same Eegulation makes him assignee of that which is the subject of earlier grants. I cannot assume that the proba- bility of such intervening grants having been made was absent from the mind of the Legislature when framing this section ; and, consequently, as no express words of exclusion were used, I must take them to be within the purview of the words quoted ; and if this be correct, the appellant's contention with regard to this section fails, because it re- quires for its success that the dividing line for all cases should fall on the 1st December 1790. However, I go a step further. I think the phrase "revenue of any land free of assessment" is in its meaning co- extensive with the word " revenue " as it occurs in the next adjoining and correlative sentence of the same section, — namely, " individuals claim- ing to hold lands exempt fi-om revenue,'' and I cannot doubt but that these latter again embrace those persons who set up " grants for holding land exempt from the payment of revenue," within the meaning of sec- tion 10 of Regulation XIX of 1793, which concerned grants made since 1st December 1790 only. It would seem anomalous that one and the same issue should be submitted to a different process of investiga- tion, according as it arose from the proprietor instituting proceedings for the assertion of his claim against a soi-disant lakhiraj dar, or from the latter taking the initiative upon himself, without waiting for his opponent's attack ; and I see no sufficient reason for inferring that the Jjcgislature intended to establish such 'a state of things. In my opinion, therefore, the woi-ds " suits preferred to the revenue of any lands held FULL BENCH RULINGS. 155 free of assessment " include as well suits to assess and recover (in 18G6 pursuance of section 10 of Regulation XIX of 1793) the "rents'" Sonatan Ghose withheld under pretence of a grant for holding laud exempt from pay- v. ment of revenue, as suits to recover (under section 6 of the same Abdul^Farar. Regulation) " revenue " withheld under pretence of a grant described in the same words. And to hold otherwise would lead to this conse* quence, — namely, that the jurisdiction of the Court to entertain the proprietor's suit for compelling payment of dues withheld from him would depend upon the nature of an undisclosed defence. Had this been desired by the Legislature, surely it would not have left so import* ant a point without definite expression. But it is insisted very strongly that the purview of the whole Statute shows that it was directed solely to claims founded on grants made before 1st December 1790. With this I cannot concur. The conclusion which I draw from the purview is that the Statute is confined to claims of alleged grants of exemption of whatever date. I quite yield to the reasoning of those who urge that the process and particular mode of investigation which this Regu- lation prescribes to the Collector's Court is extremely ill adapted to solving satisfactorily questions which may arise between a landlord and his tenants, or between him and his neighbours; but I do not think that the eifect of section 30 is to subject questions of such kind to the Collector's jurisdiction. Taking the preamble in connection with the Regulation itself, it seems fairly clear that the object of the Legislature was to provide machinery for the special purpose of determining the validity of claims to be free of assessment, whether relied upon by a proprietor against Government, or by a terre-tenant against the pro* prietor, and for that purpose only. In the two cases the claim was essentially identical in character, and necessitated the same kind of proof. When Government took the initiative, no issue but this could arise, and the first twenty-nine sections develope a special mode of try- ing it, having relation mainly to the circumstance that the Collector himself would be the Attorney-General, so to speak, of the Government. The Regulation still left all other cases open to the ordinary tribunals ; all, cases where the party initiating the contest was a private per- son, such as where the proprietor of the estate brought a suit against the lakhirajdar, or the lakhirajdar instituted his claim either against the proprietor or Government, as the case might be, where, I may remark, the claim in question might be mixed up with divers other matters of proprietary right. Then comes section 30; and this, as I read it, directed that, if in any suit of this kind brought in the ordinary 156 FULL BENCH RULINGS. 1865 Courts, au issue as to the validi(;y of the claim to exemption arose, SoxATAN whetlier alone or amongst others, that issue should be referred for V. investigation to the Collector, whose decision with regard to it should Abdul"farae. ^°''™ ^° element iu the final determination of the Civil Court, while other proprietary issues remained in the hands of the Civil Court alone ; only in the case where Governmeut was defendant (and therefore the issue as to validity of grants of exemption could be the only issue), the Collector's decision determined the suit. And it should be observed that, as in the former cases, the Civil Court, with its own course of appeal, could overrule the Collector, so in the latter a particular mode of appeal from the Collector to the Civil Courts was specially given. Now, I see nothing in this arrangement to oblige us, in the absence of express words, to say that this legislation obviously contemplated questions as to the validity of grants of exemption made previously to the 1st of December 1790, and these alone; or that it ought to be confined to these, because its wider operation would be subversive of justice. Under the circumstances which attend the prosecution of the appeal now before this Court, I have thought it incumbent on me to give the foregoing somewhat lengthy explanation of the way in which I read section 30 of Regulation II of 1819; but the view which I take of section 28 of Act X of 1859 will, of itself, determine in judgment in this case. Section 10 of Regulation XIX of 1793 had, on the happening of a certain event, given the proprietor of the estate a sum- mary personal power to assess and evict. The practice seemed to have been that the proprietor evicted at his peril, leaving the tenant to bring his action for the disruption of the lakhiraj tenure — Sheikh Mahomed Mohair v. Sheikh Goolzar Hossein (1). This state of things left an opening for much oppression; and section 28 of Act X of 1859 corrects this by taking away the summary power of eviction, aud substituting for it a proceeding of ejectment before the Collector, in which the harden of proving that the event in question had happened is imposed on the proprietor; for, until he shows that he sues in respect of "such "land or against " such " grantee as are respectively the subjects of " grants for holding land exempt from the payment of revenue made subsequent to the 1st December 1790," he has made out no case within this section. It, in eflfect, says to the proprietor of the estate, " If you choose to " base your claim to assessment, or possession, on the allegation that the " defence to it rests upon an invalid grant made since 1st December 1790, " prove that allegation to the Collector, and you shall have your summary (1) 1 S. D. A., 1858, p. 464. FULL BENCH RULINGS. I57 " remedy without further trouble." But I find nothing in the section to jggg take away from him any right of suit to the Civil Courts which he Sonatan previously possessed. This interpretation, in no degree, as I conceive, "°^^ conflicts with Bistvambhar Misser v. Ganpat Misser (1), and is, I . Moulti ^ \ " ' Abdul Fakab, think, strongly confirmed by the circumstance that this section is quite one-sided, and mokes no provision, nor does any other part of the Act, for the establishment on the part of the lakhiiajdar of his claims, — an omission which does not occur in section 30 of Regulation Il^of 1819. Therefore, whether this suit is within the meaning of section 30 of Regulation II of 1819 or not, I think it is well brought in the Civil Court. Jackson, J. (after briefly stating the facts, proceeded) : — It is to be remarked, in the first place, that the suit has been treated in both the lower Courts before which it was heard, as a suit preferred under sec- tion 30, Regulation II of 1819; and the plaintifi" in his plaint distinctly states that he brings his suit to be tried under the provisions of that law. The plaintiff has obtained a decree under that law. This Court should not, on special appeal, throw out the suit, because there has been any careless wording in the plaint, the more so as the plaintifi's right to resume will, if now thrown out, be hereafter barred by the law of limitation. The Courts below and the parties have fully understood the nature of the claim, and only at this late stage of the case the question of jurisdiction has been raised, and raised also on a view of the plaint which, it appears to me, was not contemplated by the parties in the lower Courts. It is said that the plaintiff avers that the land has been taken possession of as lakhiraj after 1790. The words in the plaint are that the defendants have taken possession of the land, and the rent derivable from it, surreptitiously under pretence of a lakhiraj title in the time of the former talookdar. These words do not, to my mipd, definitely state that the land was taken possession of after 1790. Even, however, if the plaint did contain allegations sufficient to specify that it was the intention of the plaintiff to charge the defendant with having fraudulently obtained poesession of the land as lakhiraj after 1790, it appears to me that the jurisdiction in the suit would He in the Civil Courts. The provisions of section 28, Aot X of 1859, do not confer an exclusive jurisdiction on the Revenue Courts. Applications preferred under that section are similar to applica- tions preferred to the same Courts under sections 25 and 26. They are (1) Ante, p. 5. 158 FULL BENCH RULINGS. 1865 in the nature of summaiy applications ; and orders passed on such SoNATAN applications are revisable in the Civil Courts, and suits may be preferred V. direct to the Civil Courts without the intervention of any application to Abdul Fabae. ^^^ Revenue Courts by parties seeking for the redress to which those sections relate. Act X of 1859 lays down, in the clearest language, the particular suits, to try which an exclusive jurisdiction is vested in the Revenue Courts. I allude to the concluding words of the 23rd and 24th sections. The 151st section also lays down that no judgment of a Revenue Court in any suit under the Act shall be open to revision or appeal, except as declared in the Act. It also points out what orders passed under the Act are not open to revision or appeal. If the decisions passed on applications preferred under sections 25, 26, and 28 of the Act are orders, those orders are nowhere declared final, or not open to revi- sion. If, on the other hand, they are judgments in suits, they are clearly declared not open to revision. This Court has, in former special appeals, ruled that the decisions under sections 25 and 26 are orders ; but that the decisions under section 28 are judgments. The word "orders" is distinctly used in the 25th and 26th sections ; but unfortunately, in the 28th section, neither the word " orders," nor the word "judgments" is used. In all these sections " application" is the word used to designate the form of claim, and the procedure under which the " application " is to be tried is that applicable to suits. These applications are, it appears to me, in the nature of summary applications, on which, if the plaintiff can show good cause for obtaining the assistance of the Revenue Author- ities, he can obtain an order from them to enforce his rights. I see no different reason for making any distiuction between the decisions of the Revenue Authorities passed under these three sections. If, however, it is a point which is not open to further dispute, as having been already decided by a Full Bench of the Court, that decisions under section 28 are judgments in suits, and the j urisdiction to try such suits is thereby vested exclusively in the Revenue Courts under that section, must be confined strictly to the cases to which section 10, Regu- lation XIX of 1793 relates. Section 28, Act X of 1859, only substitutes a new form of procedure where parties wish to dispossess grantees who hold under grants subsequent to 1790. Where a landholder could have ousted a lakhirajdar under section 10, Regulation XIX of 1793 of his own accord, he is now directed by section 28, Act X of 1859 to make application to the Collector, and obtain an order from him declar- ing his right to oust the alleged lakhirajdar before he proceeds to oust him. But the right of action of the landholder under the former law, FULL BENCH RULINGS. 159 and the jurisdiction of the Revenue Courts under the present law, 1865 are confined to cases where it is clear and undoubted tliat the lakhii-aj Sonatan title set up is one dated after the year 1790. If the lakhirajdar sets up v. a title anterior to 1790, the Revenue Court has no longer any jurisdiction j^bdui. Fakab. to try his title. It might try his title for the purposes of trying the plain- tiff's application, but no decision of a Revenue Court in such a title would be a final decision. A lakhirajdar, who sets up a title anterior to 1 790, is entitled to have his claim to hold his lakhiraj estate under that title declared valid or invalid only by the Civil Courts, or if by the Collector, then only under the provisions of section 30, Regulation II of 1819, with power of appeal to the Civil Courts. If I look, then, to the wording of the plaint, my impression is that, in the view of it which the lower Courts have taken, it is correctly pre- ferred in the Civil Courts. But that impression is much confirmed if I go beyond the plaint, and determine the jurisdiction according to the issues which have arisen in the suit, and which have been tried and decided with the consent of both parties, or at least without any objection from the special appellant, as is visible from his appeal to the lower Court. There has been much argument in the case as to whether a suit in which there was a distinct allegation that the defendant held under a lakhiraj title of a date subsequent to 1790 could, after the passing of section 28, Act X of 1859, be preferred in the Civil Court. It is, on the one hand, said that such a suit can be preferred under section 30, Regulation II of 1819, and tried under the provisions of that Regulation. It is, on the other hand, said, that such a suit does not come within the provisions of that law, but before the passing of section 28, Act X of 1859, could only have been preferred under the general law (section 3, Regulation III of 1793), and, after the passing of section 28, Act X of 1859, could only be brought under that law. Those who hold the former view allege that the jurisdiction to try such suits still exists in the Civil Courts. Those who hold the latter view allege that the jurisdiction no longer exists in the Civil Courts, but is exclusive in the Collectors' Courts. It appears to me, then, immaterial whether the jurisdiction to try a claim for the resumption of land alleged to be held under a lakhiraj grant after 1790, which it is admitted did exist in the Civil Courts, was one which they obtained under section 30, Regulation II of 1819, or under the general law (section 8, Regulation III of 1793). In either case, I am of opinion that that jurisdiction still remains with the Civil Courts. And in what- 160 FULL BENCH RULINGS. 1865 ever mode the suit was brought, I would apply the rule which is SoNATAN declared ia the preamble of Regulation XIX of 1793, — namely, that Ghose V. the Ruling Power is entitled to a certain proportion of the produce of Abdul'farae. every biga of land, and call upon the lakhirajdar to prove that he holds any title to hold land rent free in contravention of this old and long established rule. Certain sections of Regulation XIX of 1793 distinctly throw the burden of proof on this point on lakhirajdars who held under grants dated prior to 1790. No special rules were enacted regarding the trial of grants subsequent to 1790 in Regula- tion XIX of 1793. But it cannot be supposed, looking to the terms of section 10, Regulation XIX of 1793, that a less stringent mode of procedure was to be adopted with lakhirjdars holding under grants of a date subsequent to 1790, than with lakhirajdars holding under grants prior to that date. In both cases the same presumption would apply, that their titles were invalid until the lakhirajdars could prove them to be valid. It still remains to consider what was the effect of section 30, Regula- tion II of 1819, with respect to the procedure as regards suits for the resumption of lauds held under grants subsequent to 1790. It is said that section 30, Regulation II of 1819, applies only to grants anterior to 1790. But there is nothing in the wording of that section alone to lead to that coucluaion. A piece of land, which is held rent-free under a grant dated 1790, is virtually held free of revenue and of Government assessment, as well as of the zemindar's assessment. That piece of laud does not contribute to the Government revenue. It may be that the Govern- ment has assessed it at the decennial settlement; but the holder has contrived by some means to escape paying that share of the revenue which was assessed on it, and so far the holder of that land, in the words of Regulation II of 1819, has defeated the just rights of the Government as well as of the zemindar. In section 10, Regulation XIX of 1793, the same wording is used as in the other sections of that Regulation, showing that the Legislature considered that every biga of land which did not pay rent, and was rent-free, was also to be considered revenue-free, and that Government would not tolerate not only revenue-free invalid grants, but also rent-free invalid grants. In fact, it applied a far stricter rule with the latter grant than with the former. The latter were specially declared all invalid, unless sanctioned by the Governor- General in Coun- cil. The former were admittedly valid if lie held on good title. If, then, the wording of section 30, Regulation II of 1819 is sufficient to include the trial of suits to resume land held under lakhiraj grants, FULL BENCH EULINGS. 161 after 1790, on the ground that such grants are virtually free of Govern- i865 ment assessment, the next question is whether it has always been the Sonatan custom of tlie Courts to admit such suits for trial under that law. », There appear to be precedents in the old Reports, showing that such suits Abdu°"fIbaj!, have been preferred under that Regulation, and have been sent to the Collector for report, and ultimately decided. I am not aware of any such suit in which the defendant has admitted that he holds under such a title; and, therefore, although plaintiff may have preferred suits alleging that lakhirajdars hold under such titles, the issues in such cases have always turned upon other points. The lakhirajdar has always set up a title anterior to 1790, and the question for trial has always been the defend- ant's allegation of that title prior to 1790. If he shows he really holds some such title, then the question is whether it is a valid title. If he holds no title at all prior to 1790, then it is held that he holds under no title at all, and he may be even dispossessed. I cannot help thinking that, in all this contention regarding grants subsequent to 1790 we are contending with a shadow. There are very few cases on record in which zemindars have preferred a suit alleging that a lakhirajdar held under such title, and similarly hardly a case in which a lakhirajdar ever alleged, in answer to any resumption suit, that he held under such a title. There are some exceptional cases in which it is attempted to support such grants, on the ground that, though no rent is paid annually, still a certain consideration equivalent to rent is paid ; and there have been other attempts on other grounds to have such grants declared valid. But such cases are very few indeed, and may be looked upon as quite exceptional. Section 28, Act X of i 859, gives jurisdiction in such cases to the Collector ; but not an exclusive jurisdic- tion. It may be that, in passing section 30, Regulation II of 1819, the Legislature never contemplated cases in which the lakhirajdar would destroy his own title by making any such averment as that he held under a grant after 1790. But tliere is nothing in that law to prevent the Collector from reporting on such a case ; and it appears to me absurd to suppose that, on a lakhirajdar making such an averment, the Collector would no longer have any jurisdiction to report upon the case, or the Civil Court to try it, until a new suit was brought. I would, therefore, record my opinion that section 30, Regulation II of 1819, refers not only to cases where land is said to be held free of Government assessment on grants anterior to 1790, but also to cases where land is equally held free of Government assessment ; in that it does not pay any Government W 162 FULL BENCH RULINGS. 1865 revenue or assessment in the shape of rent, although it was included in SoNATAn the assessment at the decennial settlement. J. I would, consequentlj, disallow the objection to jurisdiction which is ABD^r^IL.E.'^i^ed in this appeal. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Bayley, Mr. Justice Norman, and Mr. Justice Campbell. jggg PARBATI CHAEAN MOOKERJEB Pbfendant) v. RAJKRISHNA ^^, 22 MOOKERJEE (Plaintiff).* Limitation — Enhancement of Rent — Regulation XIX of 1793, s. 10 — Regulation II of 1819, s. 30— Act X of 1859, s. 26— Onus Probandi. In a suit brought in the Civil Court, before Act XIV of 1859 came into operation, to enforce a right under section 10, Regulation XIX of 1793, — that is, to resume lands alleged to be held by the defendant under an invalid lakhiraj grant, — Beld, that the suit was not barred by section 28, Act X of 1859. The onus is on the plaintiff to prove that the case falls within section 10, Regulation XIX of 1793, — i. e., that the grant was made subsequent to December 1st, 1790, This case was identical in its nature and object with the case of Sonatan Ghose v. Moulvi Abdul Farar (1) already reported, and which was decided on the 25th January 1865. The case came up on special appeal before Loch and Seton-Kaeb, JJ. It was a suit instituted on 30th December 1861, in the Court of the Moonsiff of Hooghly, for the resumption of 1 biga 1 kata 14 chittaks of invalid rent-free lands, in Village Mirzapore, within Pergunna Baleah, which the plaintiff stated appertained to his mal estate. The defend- ant filed a taidat which the lower Appellate Court (the Principal Sudder Ameen) considered insufficient to support the plea of valid rent- free tenure from 1790, and, therefore, disallowing a plea of limitation, and reversing an order of the Moonsiff, it gave a decree in favor of the plaintiff. The defendant appealed to the High Court on the following grounds : — 1. That as the plaintiff averred that the land in question, formed a part of his revenue-paying estate, he was bound to bring his suit in the Collector's Court under section 28 of Act X of 1859. 2. That having brought his suit under section 30, Regulation II of 1819, he has thereby admitted the existence of the tenure as lakhiraj from 1790, and his suit is consequently barred by limitation. * Special Appeal, No. 434 of 1864, from a decision passed by the Principal Sudder Ameen of Hooghly, dated the 16th December 1863, reversing a decree of the Moonsiff of that district, dated the 15fli April 1863. (1) Ante, p. 109, FULL BENCH RULINGS. 163 3. That as the plaintiff has asserted the land in question to be mal,—' 1865 i. c, part of his revenue-paying estate, — he is bound to prove his aUega- Pareati tion before putting the defendant to proof of his title. Mookeejee 4. The decision is defective in that it has gone into the validity of eajkr'ishna the title, instead of determining the first point whether the land has been Mookeejee. held as lakhiraj from 1790 or not. The learned Judges of the Division Bench (Loch and Sbton- Kabb, JJ.) differing, a reference was made to a Full Bench. The following opinion of the Full Bench was delivered by Peacock, C. J. — The plaintiff in this suitj which was commenced oa the 31st December 1861, alleges that he is a dar-patnidar; that there is a certain quantity of land, part of his " mal " land, held by the defendant under the false pretence that it is lakhiraj ; and that the lakhiraj was created in the time of a former talookdar by fraud. The defendant pleads that the suit is barred by the Statute of Limitation, and the first question we now have to decide is whether or not it is so barred, assuming that the grant was subsequent to the 1st December 1790. If the case is one falling within section 10, Regulation XIX of 1793, we are of opinion that the suit is not barred. Section 10 enacted that " all grants for " holding land exempt from the payment of revenue, whether exceeding " or under one hundred bigas, that have been made since the 1st De- " cember 1790, or that may hereafter be made by any other authority " than that of the Governor-General in Council, are declared null and void, " and no length of possession shall be hereafter considered to give vali- " dity to any such grant, either with regard to the property in the " soil or the rents of it. And every person who now possesses, or may " succeed to the proprietary right in any estate or dependant talook, or " who now holds, or may hereafter hold, any estate or dependant talook " in farm of Government or of the proprietor, or any other person, " and every officer of Government appointed to make the collections from " any estate or talook held khas, is authorized and required to collect the " rents from such lands at the rates of the pergunna, and to dispossess " the grantee of the proprietary right in the land, and to re-annex it to " the estate or talook in which it may be situated, without making pre- " vious application to a Court of Judicature." That is how the law stood prior to Act X of 1859 ; but by seotioH 28 of Act X of 1859, it was enacted that " so much of section 10 of Regu- "lation XIX of 1793 as authorizes and requires proprietors and farmers 164 PULL BENCH RULINGS. 1865 " of estates and dependant talooks, in cases in which grants for holding Paubati " land exempt from the payment of revenue have been made subsequent MooKERjEE " to the date specified in the said sectiou, of their own authority to col- Eajkeishna " ^®''* ^^^ rents of such land, and to dispossess the grantees of the pro- MooKEBJEE. « prietary right in the land, and to re-annex it to the estate or talook in " which it may be situated is repealed; and any proprietor or farmer who " may desire to assess any such land, or to dispossess any such grantee, " shall make application to the Collector, and such application shall be " dealt with as a suit under the provisions of this Act." A case was referred to a Full Bench to consider whether the effect of section 28 was to deprive the party of the right which he had under section 10, Regulation XIX of 1793, of proceeding in the ordinary Courts of Civil Justice. The Court held in that case that, although the party had a right to proceed under section 28, Act X of 1859, it did not deprive him of the right which he previously had of enforcing it in the regular Court of JusticOi notwithstanding the words " and any proprietor or farmer who may desire to assess any such land, " or to dispossess any such grantee, shall make application to the Col- " lector, &c." This Court, without expressing any opinion as to the correctness of that decision, hold that they are bound by it, and that it was authoritatively settled that a party has a right to proceed in the ordinary Civil Courts to enforce his right under section 10, as if sec- tion 28 had never been passed (1). But the question still remains to be decided, whether proceedings instituted before the 31st December 1861 (that is to say, before the last Law of Limitation came into operation) in the ordinary Courts of Justice, to enforce a right under section 10, Regulation XIX of 1793, are barred by limitation, if the invalid lakhiraj be proved to have been made since the 1st December 1790. There was a course of decision in the late Sudder Court, that the words " no length of possession shall "be hereafter considered to give validity to any such grant, either with " regard to the property in the soil, or the rents of it," excluded fimita- tion, when a suit was brought to get rid of a grant subsequent to the 1st December 1790. As a Full Bench has decided that an action still lies in the ordinary Courts to enforce rights under section 10, it must be considered whether the law, as laid down in those decisions, has been altered by the provisions of section 28, Act X of 1859. The latter part of sec- (1) Sonatan Ghose v. Moulvi Abdul Farar, ante, p. 109. FULL BENCH RULINGS. 165 tion 28 is referred to. It enacts that "every such suit shall be instituted 1865 "within the period of twelve years from the time when the title of Parbati " the person claiming the right to assess the land or dispossess the grantee, Mookerjkb "or of some persons claiming under him, first accrued. If such period eajkeishna " has already elapsed, or will elapse within two years from the date of Mookekjee. " the passing of this Act, such suit may be brought at any time within " two years from such date.'' The Court are of opinion that those words apply only to new suits brought under section 28, and that they do not alter the limitation with regard to a suit instituted in the ordinary Courts of Civil Justice. The effect of section 28, as construed by the decision of the Full Bench, merely takes away the right of proprietors to act of their own authority, and compels them in the place of so acting to make appli- cation to the Collector. The old right of suit in the Civil Courts still remains, and there is nothing in section 28 to repeal or alter that part of section 10 of Regulation XIX of 1793 which declares that "no length " of possession shall be hereafter considered to give validity to any such " grant, either with regard to the property in the soil or the rents of it." Section 10, however, applies only to grants made since the 1st Decem- ber 1790, and it must, therefore, be decided on whom the " onus pro- bandi " lies, — whether it is upon the plaintiff to prove that the case is one falling withiii section 10, or in other words that the grant was made since the 1st December 1790, or upon the defendant to show that he holds under a valid grant. Both of the lower Courts held that the onus was upon the defendant. If the Court below are right, then the defendant not having given any evidence in the case, the appeal must be decided against him. If, on the other hand, the Court is satisfied that the onus is on the plaintiff to prove that the grant was subsequent to the 1st December 1790, the case must be remanded, in order that the plaintiff may adduce evidence. We are of opinion that the plaintiff must prove that the case is one falling within section 10 of Regulation XIX of 1793, so as to show that it is excluded from the Law of Limitation by the words to which we have referred, " and no length of possession shall be hereafter con- "sidered to give validity to any such grants, &c." He must prove his allegation that the land held by the defendant, and which he claims to be lakhiraj, is part of the mal land of the plaintiff; if he prove that fact and show that it was assessed to the public revenue at the time of the Decennial Settlement, it may be presumed that the right under which the defendant claims to hold as lakhiraj commenced subsequent-* 166 FULL BENCH RULINGS. 1865 ly to the 1st December 1790, unless the defendant gives satisfactory Pake ATI evidence to the contrary. We think that the lower Courts were wrong Chakan . , , . MooKEEjEE m holding that the onus was upon the defendant. Eajkrishna The case must, therefore, be remanded to the first Court to be re-tried MooKEKjEE. ^j^.jj reference to the opinion above expressed. If the plaintiff fail to give the necessary proofs, the third issue as to limitation must be found for the defendant, and judgment must be given for him. Be/ore Mr. Justice Norman, Officiating Chief Justice, Mr. Justice Trevor, Mr, Justice Bayley, Mr. Justice Morgan, and Mr. Justice Kemp. 1865 GURDIAL MUNDAR and others (Plaintiits) v. EAJA TEKNAKATAN Feby. 27. SING and others (Defendants).* Mahomedan Law — Pre-emption — Conditional or Unconditional Sale — Mortgage. In the case of a mortgage, the right of pre-emption does not arise until the equity of redemption is finally foreclosed. (Batlet, J., dissenting'). The plaintiff, a shareholder in Mouza Morho, sued to establish a right of pre-emption in respect of 3 annas 4 gandas of that mouza, mort- gaged by his co-sharer, Santokh Sing, to Raja Teknarayan, one of the defendants, by a deed purporting on the face of it to be an absolute sale. The plaintiff alleged that he claimed a right of pre-emption, and that he went through the forms to entitle him to it, both when the conditional sale was made, and also subsequently when the equity of redemption was foreclosed, and the conditional sale was made absolute. The lower Appel- late Court found that it was not proved that any demand was made at the expiration of the year of grace, but the Court did not decide whether or not the plaintiff had put forward his claim, and done all that was requi- site in support of it, at the time the conditional sale was originally made. The plaintiff in special appeal alleged that he had made a formal demand, and done all other requisite acts at the time of the execution of the deed, and that the Judge should have inquired into this, and was wrong in holding that it would not be sufficient to entitle him to a right of pre-emption, if proved. The case came before Batlet and Macpherson, JJ., who, differing in opinion, referred the point to a Full Bench, with the following remarks: — Macpherson, J. — The question to be decided in this case is whether a right of pre-emption can arise on the making of a mortgage by unconditional sale of a bai-bil-wafa. * Special Appeal, Ko. 1727 of 1864, against the decree of the Additional Judge of Zilla Bhaugulpore, dated the 21st May 1864, ueversing a decfee of the Principal Sudder Ameen of that district, dated the 31st July 1861t FULL BENCH RULINGS. 167 In my opinion, the lower Court was right in deeming it unnecessary iggs to enquire as to what occurred when the mortgage was first created. Gurdial It is laid down by Macnaghten on " Mahomedan Law " (1) that " the ^^^ndar " right of pre-emption cannot take effect until the sale is complete, as „ ^•^•''*- " far as the interest of the seller is concerned;" and the principle of Sing. the law seems to be that the right can arise and be given effect to only when the seller is parting with his property finally. In the case of a mortgage, the mortgagor cannot be said, in the first instance, to part finally with his property. What takes place (although the transaction may be called a conditional sale, and whether it be or be not on the face of it an out-and-out sale) is in fact not a sale at all. It is a mere pledge or giving of the laud by way of security for the repayment of a sum of money. If, however, it be looked upon as a sale, it appears to me quite impossible to consider it a sale which, at the time of making it, falls within the terms of the rule which I have quoted above, and is " complete so far as the interest of the seller is concerned." It has been argued that iuasmuch as Sir William Macnaghten lays down that the right of pre-emption arises on a " sale " taking place, and inas- much as he, in another part of his work (2), says that " sales are either absolute, or conditional, or imperfect, or void," he must have intended to say that the right arises alike in an absolute and in a conditional sale. But I see no force in this argument, which, if it convinced me, would necessitate my supposing that his intention further was to declare that the ri^ht arose on the making of a " void " sale. I can find nothing which leads me to think that Sir William Macnaghten, when writing of pre-emption arising on " sales," had any sales before his mind save those which are absolute ; and it is worthy of remark (although it of course does not conclude the question one way or other) that the only case amonc his " Precedents " which at all approaches the present case is one (3) in which the right was claimed not at the time the conditional sale was made, but subsequently when an absolute sale took place in order to raise money to pay off the original mortgagee, who had been for some time in possession under the conditional sale to him. Moreover, the claimant of the rigfit of pre-emption must pay the purchaser a sum equal to the purchase-money which the purchaser has paid. But at the time of giving lands in mortgage, it is impossible to say what will be the precise sum due on the date on which the conditional sale (1) Chapter IV, Sec. 3, Edition of 1825, (3) See Precedents of Pre-emption, Case 47_ ix, Edition of 1825, p. 193. ' (2) Chap. Ill, Sec. i, Edition of 1825, p. 42. 168 PULL BENCH RULINGS. 1865 comes to be made absolute : and the sale cannot be made absolute until GuRDiAL that sum is ascertained. It is, therefore, impossible for the persons *^. claiming the right of pre-emption to pay, until the sale is made absolute, Teknarayan *^^ whole sum which becomes eventually due on the mortgage, which SiNQ. gum ig Jq fjjQj; ^jjg price which the purchaser pays. The Hedaya (1) appears to support the view which I take of this question. It is there said : " If a man sell his house under a condition of option (i. e., " reserving to himself the power of hereafter dissolving the sale) (2), the " privilege of shaffa cannot take place with respect to that house, the " power reserved by the seller being an impediment to the extinction of " his right of property ; but when he relinquishes that power, the " impediment ceases, and the privilege of shaffa takes place, provided " the shafee prefer his claim immediately." So in a recent case, Mussamut Jankee Kooer v. Mussamut LeJtranee Kooer (3), decided, 18th June 1864, in which it was contended that the suit to establish the right of pre-emption was premature, because, although the year of grace had expired, there had been no actual transfer of possession, — it was held by this Court that the absolute right of the mortgagee and consequent right of pre-emption arise from the time when the sale becomes absolute. There seem to be no reported cases in which the question has been raised. The special appellant himself did not launch his case rely* ing only on his having claimed and done all that was necessary when the conditional sale was made. His case was that he had claimed and gone through the prescribed forms on no less than four occasions : when he heard of the conditional sale, when the application for foreclosure was made, on the expiry of the year of grace, and subsequently on hearing of tlie result confirming the purchaser's title and declaring it to be bona fide. Tliis alleged frequent repetition of his claim does not argue much confidence in the effectiveness of that originally made by him. The conclusion at which I have arrived is that the right of pre-emption did not arise, and could not be given effect to on the mere giving of these lands in mortgage, and therefore that the appeal ought to be dismissed with costs. Batlet, J. — I regret that I differ from the view expressed by Mr. Justice Macpherson in this case. I think that, taking the deed to be one of conditional sale, as found below, the formal demand necessary to secure the right of pre-emption can be made then. (1) Hamilton's Hedaya, HI, 596. (3) W. K., 1864, Civ. Kul., p. 285. (2) Hedaya, Vol. HI, p. 695. FULL BENCH RULINGS. 169 The words used on the subject by Macnaghteu are these (1) : — "It is 1865 " necessary that the person clairains this right should declare his inten- Gurdial " tion of becoming the purchaser, immediately on hearing of the sale, «. " and that he should, with the least practicable delay, make affirmation xeknaravaw " by witness of such his intention, either in the presence of the seller, ^™'*- " or of the purchaser, or on the premises.'' Then turning to the Chapter on Sales (2), it is stated that " sales are either absolute, or conditional, "or imperfect, or void." Again, turning to Baillie's " Mahomedan Law of Sale," I find in page 302 (3), on the bye-al-waffa (or, as it is usually called bye-bil-waffa), this passage — " And the form of the transaction " is this : the seller says to the purchaser, ' I have sold you this thing " for the debt due to you by me, on condition that, when I pay the debt, "the thing is mine ;' or thus — 'I have sold you this for so much, on " condition that, when I give up to you the price, you will give up to "me the thing.'" Again occurs this passage (4) — "And what is " valid is that the contract which passes between them, if it be in words " of sale, is not a pledge. It is then to be considered if the two parties " have mentioned a condition of cancellation in the sale, and if so, the , " sale is invalid. And even if they should not have mentioned this in " the sale, but have both, in expressing themselves, used the word ' sale ' " with a condition of wufa, or have expressed themselves as in the case " of a lawful sale, but with the meaning that the sale is not to be bind- "ing or obligatory, the result is the same. Where, again, sale is men- " tioned without any condition, and the stipulation is then mentioned " after the manner of a mutual promise, the sale is lawful, and the " wufa binding as a promise." At page 303 occurs this passage : — "In the Futwa of Aboo'l Fuzl, a case is mentioned of an orchard, " which was in the hands of a man and a woman, and the latter having " sold her share to the former, on condition that he should restore it to her " on repayment of the price, and the man having subsequently sold his " own share, it was asked if the woman had a right of pre-emption, and " the answer was that, if the sale was a maamilut (5) sale, she " had such a right, whether her share of the orchard were in her own " hands or in the hands of the man. Thus, in the Moheet. And in the " Atabeeah, it is said that a bye-al-waffa and a maamilut sale are one. So in the Tatur Khaneut." In the Hedaya (6), the time for making the (1) Macnaghten's Mahomedan Law, Ch. (4) Edn. o£ 1850, p. 302. IV, on Pre-emption, sec. 7, p. 48. (5) From Urrml, practice. (2) lb., Ch. Ill, sec. 4, p. 42. (6) Hamilton's Translation, BookXXXVIIT, (3) Edn. of 1850, p. 302. Chap. I, Vol. Ill, p. 668. X •170 FULL BENCH RULINGS. 1865 formal demand is when "it is manifest that the proprietor is no longer GiiRDiAL " inclined to keep bis property." It is true that the passage says also MuNDAK „ ^^^^^ ^^^ ^^^^ _„ ^^^^ ^^ -J. ^^^^ remarked, a conditional sale is one of TeknIrIyax t^e specific forms of sale in Mahomedan law. Now to apply these S''**'' authorities to this case : We have before us a deed of absolute sale. There is in the record no ikrar, or agreement, varying it ; but the lower Courts find that it is a conditional deed of sale. On the whole, then, I think that the formal demand may be made under the Mahomedan law at the time when the ,pre-emptor hears of the transaction of conditional sale, or of its being recorded by a deed. The opinions of the learned Judges of the Full Bench were delivered as follows : — NoEMAN, J. (Teevoe, Moegan, and Kemp, JJ., concurring) : — We think it is clear that, in cases of mortgages which are foreclosed, the right of pre-emption does not arise till the sale becomes absolute. This is evident from the very definition given by Macnaghten of the right of pre-enlption, viz., that it is a power of possessing property which has been sold by paying a sum equal to that paid by the purchaser. See also Hamilton's Hedaya, Vol. Ill, p. 568 ; Macnaghten's Pre- cedents, p. 196 ; and a case of Massamut Jankee Kooer v. Mussamut Lehranee Kooer (1), decided in this Court by Teevoe and Camp- bell, JJ., 18tli June 1864. It has never been contended that a right of pre-emption includes a right of paying off a mortgage, and of stand- ing in the position of the mortgagee. It appears from Baillie's Mahomedan Law of Sale, p. 303, edition of 1850, that, notwithstanding a mortgage by way of conditional sale to a co-sharer, the mortgagor, in right of his equity of redemption, retains his right of pre-emption in respect of other land sold by that co-sharer to a stranger. This shows that a mortgage does not in any way affect the right of pre-emption. For this purpose the mortgagor still remains, in contemplation of law, the owner of the mortgaged property. The right of pre-emption does not arise until the seller's right of property has been completely extinguished, and therefore has been said not to exist if the seller has secured to himself any condition of option, or power of dissolving the sale at a future time. If he transfers the pro- perty by an invalid sale, there is no right of pre-emption, for the property continues his notwithstanding such a sale — Hedaya, Vol. Ill, p. 596. We (1) W. K,, 1864, Civ, Kul., p. 285. FULL BENCH RULINGS. 171 must therefore say that no right of pre-emption can arise on a mere 1865 conditional sale or mortgage, while any right of redemption remains in Gurdial the mortgagor. It has been decided that a refusal to purchase before „. the sale is complete cannot operate to defeat a claim of right of pfe-emp- tekiiakatan tion subsequently preferred — Macnagh ten's Precedents, p. 196. We Sing. need not now discuss the question whether this proposition is univer- sally true ; but it is certain that the mere declaration of an intention to exercise a right, which has not yet accrued, is in no sense a claim of a right of pre-emptioa. On these grounds we are of opinion that it was wholly immaterial whether the plaintiff had made any formal demand of pre-emption at any other time than after the sale became absolute. Batlet, J. — It is with much difiEidence that I still differ from my former colleague ia the Division Bench, Mr. Justice Macpherson, and from my four colleagues in the Full Bench. The reasons for my holding to my opinion that the case should be remanded for investigation, whether plaintiff did or did not make the necessary formal demand at the time of hearing of the execution of the deed of sale, are briefly these : — I. — The claim of pre-emption is one under Mahomedan law, and the provision of that law requires the claim of pre-emption to be made on hearing of the sale. The plaintiff alleges that when he heard of the sale he made his claim of pre-emption. In this case the deed had the form of an absolute deed of sale. It was only discovered to be condi- tional some time afterwards. The Mahomedan law defines a conditional sale as one of the recognized species of sale. I have before quoted two passages where a conditional sale and an absolute one are declared to be both equally sales : Paragraph 4 of the Chapter of Sales in Mac- naghten's Mahomedan Law, and Baillie's Mahomedan Law of Sale, pp. 302, 303. Then if we look to the policy of the Mahomedan law in regard to pre-emption, it is clearly this, that co-parceners, those interested in the profits, and neighbours, in order thus enumerated, shall have the earliest opportunity of knowing of land being available to them in respect to which to assert the claim of pre-emption — Chapter V on Pre-emption in Macnaghten's work, pp. 42, 43. Again, in this case, at the time at which plaintiffs allege they made the claim, the deed in the only form in which it appeared was an absolute sale. Can it be said, then (leaving alone for the present the question whether we are to consider the transaction a mortgage under English or Eegulatiou law, or an equivalent to a sale under Mahomedan 172 FULL BENCH RULINGS. 18G5 law), that the pre-emptor transgressed the law in making the claim GuRDiAL when he first heard of the execution of the deed as an absolute sale? MUNDAR V. I hold that he followed the law, and is therefore entitled to have its Teknakatan privileges, if it be ascertained on remand (a point not yet enquired into) Sing. that he did then make the necessary formal demands. I would still, then, remand the case for re-trial on this matter. Before Mr. Justice Norman (Officiating Chief Justice), Mr. Justice Trevor, Mr. Justice Bayley, Mr. Justice Kemp, and Mr. Justice Loch. 1865 KOWAR BIJOI KESAL ROY BAHADUR (Decree-holder), Petitioner, Feby. 27. „ SAMASXJNDARI and others (Judgment-Debtors).* Execution of Decree — Act VIII of 1859, s. 224 — Hindu Family Dwelling-house. A decree-holder purchased, in execution of his decree, the right, title, and interest of the judgment-debtor, a member of a joint Hindu family, in the family dwelling-house and land attached. Held— per Nokman, Trevor, Loch, and Baylet, JJ. — that section 224 of Act VIII of 1859 did not apply; that A. was entitled to actual possession of the share of his judgment-debtor in the house as well as in the land, but his share must be marked out so as to cause the least possible inconvenience to the other members- of the family. Per KemPj J. — An equivalent in value of the share in the house should be appor- tioned to him out of the land, which greatly exceeded the dwelling-house in value. On the 6th July 1849, the plaintiff purchased a 6-anna 8-ganda share, being the share of Srinath and Mathuranath MuUick, of the 8-anna share of Ramtanu, in a joint undivided Hiadu family dwelling-house, with the premises attached thereto, sold in execution of a decree against them. Being unable to obtain possession, he brought a suit for possession of the share so purchased. After a prolonged litigation and a remand upon a special appeal by the late Sudder Court, a report of which appears in the Decisions for 1859, Ranee Mohamoya v. Juggunathpersad Mullich (1), on the 14th December 1860, he obtained a decree declaring him, as purchaser of the interests of Srinath and Mathuranath, entitled to possession of a 6-anna 8-ganda share of the eight annas of Ramtanu. In execution of this decree, the Nazir returned that he gave the plaintiff possession by putting up a bamboo. The plaintiff insisted on having actual possession, but this the Nazir did not allow. By a petition dated the 14th September 1861, Samasundari, who, as the widow of Jagganath Prasad, was entitled to eight annas of the whole property, alleged that * Summary Special Appeal, No. 553 of 1864, from an order passed by the Judge of Hooghly, dated the 30th April 1864, reversing an order of the Second Principal Sudder Ameen of that district, dated the 24th Kovember 1863. (1) S. D. A, 1859, p. 725. FULL BENCH RULINGS. 173 her husband had a defined 8-anna share, and, consequently, that the platn- 1865 tiff could not obtain possession of any portion of that defined share. Kowar Bijoi l^ESAL Roy The lower Court decided this question against her and in favor of Bahadur the plaintiff, but went on to say that " when a decree-dar, a stranger, samasundari. " wishes the Court to put him in actual possession of a share of a family " Hindu homestead, the Court finds that there is a difficulty, as such " taking of actual possession would, undoubtedly, cause much injury to " the family already residing there ; " and directed that the appellant should have actual possession, under section 223, of the shai-e decreed to him in the land, and possession of the said share in the buildings, as pro- vided in section 224 of Act VIII of 1859. In giving this decree, the lower Appellate Court relied on Kesubnath Ghose v. Hurgovind Base (1). The case was heard, on special appeal, by Mr. Justice Loch and Mr. Justice Seton-Karr, and was referred by them to a Full Bench, with the following remarks : — Loch, J. — There is a decision of the late Sudder Court, Ramtanu Chatterjee v. Ishurchunder Neogee (2), in which the question now before us has been disposed of ; and the plaintiff, though a stranger, was held to be entitled to obtain possession of the share of a joint family house which he had purchased from the auction-purchaser in execution of a decree. The decision is opposed to that of Kesubnath Ghose v. Hurgovind Bose' (1) ; and as the question before us may frequently arise, I think it would be advisable to send up this case for an authori- tative ruling of a Bench of five Judges. Seton-Kaee, J. — I am inclined to concur in the decision of the Judge. The decree-holder, who sued and obtained a decree for the rights and interests in certain property which he had purchased, has only a right to a 6-anna 8-ganda share in the houses and buildings. No partition of these buildings has been made ; and it would be very inconvenient, and I think inequitable to give him, a stranger, a right of actual tangible entry into a dwelling-house occupied by a respectable Hindu female, when that right so conferred would extend to every room and corner of the buildings. The decree-holder must be content with the ordinary possession of the building, under section 224 of the Civil Code, as conferred on him by the Judge, which will entitle him to rent for the (1) S. D. A., 1853, p. 768. (2) S. D. A., 1857, p. 1585. 1'74 FULL BENCH RULIN-GS, 1865 same, unless he can come to some arrangement with the resident therein, KowAK Bijoi who, it appears, is willing to purchase his share. In affirming this order, Bahadur I think that I am following the principle laid down in a similar case, Samasundabi. Kesubnath Ghose v. Hurgovind Base (1). I would dismiss this appeal with costs. The opinions of the learned Judges of the Full Bench were delivered as follows :— NoEMAN, J. (after stating the facts as above, continued) — The question is whether the plaintiff was entitled to be put in actual posses- sion of his share in the dwelling-house. We think it quite clear that section 224 has no application to the present case. The defendant, Samasundari, is not " a person entitled to occupy the house " as against the plaintiff, who has obtained a decree for possession. The case of Eamtanu Chatterjee and Govind Chunder Chatterjee V. Issurchunder Neogee (2), is a direct authority, if any be needed, to show that the plaintiff, as purchaser in execution of a decree, is entitled to actual possession of that which he has bought. If the petitioner is subjected to any inconvenience, she has only herself to blame. She might have purchased the shares of the execution-debtors at the sale, or sued for partition, instead of resisting to the uttermost the claim of the purchaser and setting at defiance the decrees of the Court. In the case of Kesubnath Ghose v. Hurgovind Base (1), the Court pointed out that, in execution of the decree, an ameen may divide joint property upon the same principle as that on which batwaras are made, and on that principle possession of a portion of the dwelling-house equivalent to a 6-anna 8-gauda share must be set apart and given to the plaintiff, the apportionment being made in such a manner as to cause the least pos- sible inconvenience to the defendant. TbevOE, Loch, and Batlet, JJ., concurred. Kemp, J. (after briefly recapitulating the facts, continued) — The question now before us is, how this decree is to be executed ? The decree- holder asks for a share equal to a 6-anna 8-ganda share in every room and corner ; this much, however, my learned colleagues are not prepared to allow. I think, with reference to Hindu customs and prejudices, that it would be inequitable to permit a stranger to intrude himself upon the (1) S, D. A., 1863, p., 768. (2) S. D. A., 1857, p. 1585. FULL BENCH RULINGS. , 175 privacy of a joint Hindu family residence, — more especially, when, as in 1865 this instance, that stranger is actuated by motives of enmity. The Kowar Buoi decree-holder, on sumg tor possession, valued the land round the house at Bahadur three times that ofthe house itself, and yet he refuses, though the opposite samasdndaki. party are willing, to take his share out of the land, but insists upon intruding upon tTie house. If we permit him to do this, we shall be encouraging the decree-holder in his animosity, and be driving the other members of the family to leave their ancestral home. I would direct the Court below to depute an ameen to mark off in one spot from the land attached to the house a 6-anna 8-ganda share with an equivalent in value of a share of that extent in the house to be taken from the land. Before Mr. Justice Trevor, Mr. Justice Loch, Mr, Justice Bat/ley, and Mr. Justice Morgan. MUSSAMAT FARZHARA BAKU and others (Plaintiffs) v. MUSSA- 1555 MAT AZIZtJNNISSA BIBI and others (Dependants).* Jwie 5. Sesumption and Assessment of Lakhiraj Tenures — Under-tenants, Mights of. The mere resumption of a laWtdraj tenure by Government does not dissolve the contract between the zemindar and tenant. The tenant has the option to determine his tenancy, or he may consent that the amount of revenue which the landlord must pay to Government, or a portion of it, shall be added to his original jumma. This was a suit to recover possession in right of a shikmi talook (existing long before the Dewanny) of certain lakhiraj lands belonging tp the vendors of the defendants. The plaintiffs alleged that, on the resumption of the rent-free tenure by Government, the settlement was at first made with one of the plaintiffs, but subsequently with the maliks, the vendors of the defendants; that these defendants, having sub- sequently purchased the estate, began to show a desire to dispossess the plaintiffs; that a case under Act IV of 1840 (1) followed, under the award of which, the defendants obtained possession; that plaintiffs then sued to obtain the settlement and to recover possession with mesne profits. The lower Court disallowed this claim to settlement, but gave them a decree to hold as dependent talookdars. The late Sudder Court, on the appeal of the defendants, on the 28th April 1857, reversed the * Special Appeal, No. 2577 of 1862, from a decision passed by the Judge of Mymen- sing, dated the 10th July 1862, affirming a decree of the Principal Sudder Ameen of that district, dated the 26th August 1861. (1) Repealed by Act XVII of 1862, as to places in which the Code of Criminal Procedure is in operation. 176 FULL BENCH RULINGS. 1865 decree, on the ground that the claim of the plaintiifs was brought on a MussAMAT different right from that decreed to them. It was provided in the order Banu ^^^^ ^^^ dismissal of this claim of the plaintiffs was not intended MussAMAT ^° prejudice their right to bring an action for recovery of possession AzizuNNissA as shLkmi talookdars, and they accordingly brought this action to obtain possession in that capacity. The defendants denied that the plaintiffs held any liona fide shikmi talook, and further pleaded that, owing to the resumption of the lakhi- raj tenures, even if any such title had existed before, it was no longer in existence. The Principal Sudder Ameen of Mymensingh, on the 26th August 186], without trying the question of the existence of any shikmi talook, dismissed the case upon the authority of Mohunt Sheodass v. Bibi Ikram and Bibi Nuseerun (1), and Anundmoyee Chowdrain v. Ramkunth Sein (2). He decided that, after the resumption of the rent- free tenure, the plaintiffs, even if they had held hitherto as shikmi talookdars, must be considered to have lost all possible rights to hold possession under any terms whatever in connection with their former rights. The plaintiffs appealed against this decision, and urged that, by the decision appealed against, their claim to recover possession as tenants had been entirely dismissed, notwithstanding that they held possession ; that the Principal Sudder Ameen had refused to allow them, as tenants, a right of occupancy which Act X of 1859 recognizes as legal and valid ; that by the resumption of the lakhiraj tenure, plaintiffs could not have lost entirely all rights as under-tenants, but that the mokurrari lease alone must be admitted to have fallen. The Judge, on the 10th July 1862, upholding the decision of the Principal Sudder Ameen, dismissed the appeal. The plaintiffs then appealed specially to the High Court. The Division Bench (Kemp and Pdndit, JJ.), considering that the decisions relied upon in the Court below were contrary to law, made a reference 'to a Full Bench as follows: — It is evident that the Court below have decided this case wholly relying on the rulings of the late Sudder Court since May 1850. In our opinion, however, the precedents quoted by the lower Court (particularly that of Anundmoyee Chowdrain v. Ramkunth Sein) (2), appear to be founded on wrong principles, and to be opposed to justice and equity. We freely admit that, on resumption of lakhiraj tenure, any dependent tenure of the (1) S. D. A. Rep., 1850, p. 167. (2) S. D. A. Kep., 1860, p. 660. FULL BENCH RULINGS. 177 entire or a portion of the lands comprising the rent-free tenures must he 1865 considered as no longer in the same status as it was before, and that Mussamat _ _ Fakzhara the tenant has no right to ask for any independent settlement from the Banu superior- proprietor resuming the lakhiraj tenure, or to claim to remain Mussamat in possession under his immediate landlord upon the old terms, or to ask ^'b"™.'^^'*^ any new settlement from him upon the same conditions. But we are inclined to think that his right to hold possession — a right to which may have been originally acquired for a good and substantial consideration — cannot, merely by the intervention of the said resumption proceedings, be entirely annihilated. Our opinion is simply based upon our failure to discover why the resumption proceedings should be held to opei'ate towards dissolution of the former contract between the lakhirajdar and his tenant, to the entire benefit of the former, and to the prejudice and detriment of the latter, although the latter may be quite willing to abide by whatever equity may require that he should agree to perform towards and for his landlord, in order to preserve his own rights under the new state of things. We do not see the justice of holding that, for an accident not provided for, one party should lose all his rights, though he may be willing to act so that the other party may not suffer any loss whatever, by being compelled to uphold his own contract and the rights of his under- tenant, even under the altered state of things; and cannot understand upon what principles of justice one party should be in a better position than he was before, while the other is to lose all that he got and enjoyed before, though he may be willing to protect his own position, on condi- tion of securing to the other party all his former gains, or even some- thing more besides. We do not believe that the plaintiffs, or parties in their position, are entitled to plead, under Act X of 1859, that having paid so much rent from before or at the time of the Permanent Settle- ment, or for more than twelve or twenty years, they are exempted from paying as rent for the lands anything more than they have hitherto paid ; but we think they may, without injustice to any party, plead a right to pay to their landlord, for his benefit, exactly the same profit that they paid him before resumption, and agree to add to this payment the whole or a proportionate share of the assessment imposed upon their landlord by the resumption of the rent-free tenure. But whether they are entitled to hold the tenure upon the old terms, on condition of paying the whole or a proportionate share of the revenue or rents assessed upon the resumed lakhiraj tenure, or whether they are entitled r 178 FULL BENCH RULINGS. 1865 to hold on condition of defraying fair and equitable rents for their MussAMAT lands, or whether they can only acquire any such rights after having Banu held for so many years, or in exchange for a consideration, ai-e questions MussAMAT which a Court of Justice may have occasion to decide after it has been ■^^'msr^^* first decided that, on the mere fact of the resumption of a lakhiraj tenure, an under-tenant of the whole of, or of a portion within, the said resumed lakhiraj tenure, does not lose all rights of every kind as a tenant with regard to the possession of the lands held by him as such before. The two Judges deciding the case of Mohunt Sheodass v. Bihi Ikram and Bibi Nusseeruji il), &g3i\n&t s. ihivA. in minority, might or might not have intended to decide anything beyond this, viz., that the former mokurrari lease of the under-tenant had ceased to have any effect after resumption; but there can be no doubt that the decision of Anundmoyee Chowdrain v. Ramkunth Sein (2) goes to the extent of deciding that all rights of such an under-tenant are lost by the resumption of the lakhiraj tenure of his landlord. It is also clear that the decision of the late Sudder Court in that case is founded upon the precedent of Mohunt Sheodass v. Bibi Ikram and Bibi Nusseerun (1), and it is to be borne in mind that several Judges of the late Sudder Court before and after 1860, and perhaps several Judges of the present Court since its foundation, have also construed the precedent of Mohunt Sheodass v. Bibi Ikram and Bibi Nusseerun (1) in the same manner as the two Judges who decided the case of Anundmoyee Chowdrain V. Ramkunth Sein (2) have done. It is also clear that the applica- tion of this principle may also affect in theory, besides mokurrari rights, the rights of under-tenants or farmers holding under leases only for so many years, as well as lease-holders of a permanent kind not exempted from enhancement. As settlements with these persons are, however, made exactly as if the lands leased were mal lands, practically the difficulty is felt only in cases of mokurrari tenures. A question, however, might arise with regard to those who, without any lease, but on payment of uniform rents, may have held rent-free lands for a period which would, under Act X of 1859, create a right of occupancy. To us it appears probable that the two Judges who passed the decision in the case of Mohunt Sheodass v. Bibi Ikram and Bibi Nussee- run (!) did not, as they could not, decide anything beyond the fact that, owing to the resumption, the mokurrari title had become void, and to this extent the principle involved in that decision appears (1) S. D. A. Rep., 1850, 167. (2) S. D. A. Eep., 1860, 660, FULL BENCH RULINGS. 179 to be unobjectionable. We read the present ease of the plaintiffs to 1865 be one in which they reserve the rights of their landlords to settle the Mussamat •^ Farzhaea question of the amount and the nature of the enhancement, or, to speak Baku more correctly, of assessment to be made upon the lands the possession Mussamat of which at present the plaintiffs ask to recover. Even if they have not ^'b'ib^'^^"*^ done so, it is not beyond the power of this Court to make in this case reservations in favor of the landlords,- in other words, to adjudicate upon the plaintiffs' rights to recover possession, as well as to fix the terms upon which alone they may be entitled to hold possession. As the construction now given to the case of Mohunt Sheo Doss v. Bihi Ikram and Bibi Nusseerun (1) is one entirely in accordance with the decision in Anundmoyee Chowdrain v. Ttamkunth Sein (2), and as such opinion has been maintained by several Judges of the late Sudder Court, and also may have been by some Judges of the present Court, we think it proper to refer the case to a Bench of five Judges for the determination of the following points : — 1. What was the intent and purport of the decision in Mohunt Sheo Doss Y. Bibi Ikram and Bibi Nitsseerun ( 1 ) ? 2. Is the decision in Anundmoyee Chowdrain v. Ramhunth Sein (2) a proper construction of the opinion of the majority of the Judges deciding the first case ? 3. If it be, then are both of these decisions, and if it be not, then is the decision in Anundmoyee Chowdrain v. Ramhunth Sein (2), just as far as the equitable and legal rights of parties to valid contracts are concerned ? 4. If the third question be decided in the negative, then it is to be decided whether plaintiffs are entitled to hold as tenants by paying (in addition to what they paid before) the amount of revenue imposed upon their landlord after resumption ? 5. Or whether to hold simply on condition of paying fair and equi- table rents ? 6. Whether any right which plaintiffs may still be considered to possess is in any way dependent upon proof of the permanent nature of their lease, as regards possession, or of payment of a fixed jnmma, or upon proof of consideration or a bonus, or previous possession for any number of years. We think that those tenants who may be proved to have held under permanent leases on fixed rents are entitled to hold on as before without any regard to time and consideration or bonus, on their agreeing to make (1) S. D. A. Rep., 1850, 167. (2) S. D, A., Rep., 1860, 660. 180 PULL BENCH RULINGS. 1865 up the loss which the landlord would suffer if they were permitted to MussAMAT pay only what they paid before ; that those who hold under permanent Banu leases, but not on fixed rents, are entitled to hold on as before, without lIussAMAT ^"y regard to time and consideration, but only on condition of paying fair ^^'bibT^^^ and equitable rents ; that those who held under leases for a limited term, cannot by resumption lose their right to hold, as they have agreed to bold, up to the time they have a right to remain in possession, without any regard to the imposition of revenue or rent upon the lakhiraj tenure of their immediate superior, as they, like the holders of the permanent leases without fixed rents, must have contracted to pay rents for the lands leased to them, upon the same conditions that would have been made if the lands had never been lakhiraj at all ; and that ryots who may have paid uniformly for several years, and held all along without any leases would, notwithstanding the resumption of the tenure, acquire a right of occupancy secured to them by law. The decision of any of these law points in favor of the plaintiffs will not finally dispose of the case, as the fact of the existence of the tenure pleaded by the plaintiffs, and entirely denied by the defendants, has not yet been decided below. It will accordingly be necessary to remand the case to the first Court for adjudication upon that question of fact. Baboo Anukul Chandra Mookerjee for the appellants. Baboo Nilmadhab Sen for the respondents. The opinion of the Full Bench was delivered by Trevor, J.- — The plaintiff in this c?ise was a sub-talookdar who held his tenure by virtue of a contract with his superior holder, the lakhi- rajdar. At the time at which that contract was entered into, which on the statement of the tenant was before the acquisition by Government of the Dewanny, the lakhiraj dar's estate was not subject to the payment of revenue. Subsequently the Government resumed the property and assessed it with revenue. Certain proceedings have been brought before the Court into which it is not necessary here to enter ; it is sufficient to state that the result of a case under Act IV of 1840 has placed the defendant, the zemindar, in possession. The plaintiff therefore sues in the present case for possession of his ehikmi talook, of which he had been illegally dispossessed under the operation of Act IV of 1840. The defendant below pleads that the PULL BENCH RULINGS. 181 plaintiff held no shikmi talook in his estate, and that if he did pre- 1866 viously to the resumption of the lakhiraj holdings, the title of the Mussjimat Farzhara plaintiff to an under-teuure had lapsed, as repeatedly ruled by the late Banu Sudder Court. Muss^Imat Both the lower Courts dismissed the plaintiff's suit, on the ground Azizunnissa that, in the absence of express special condition in the lease of the plaintiff under the rulings of the Sudder Court in the case of Mohunt Sheo Doss V. Bibi Ikram and Bibi Nusseerun (1), decided on the 2nd of May 1850, it had fallen in and become void on the resumption of the lakhiraj tenui-e. Two Judges of this Court, ou the matter coming before them in special appeal, dissented from the ruling of May 1850 above cited, on which the judgment of the lower Court was based, and also from another decision passed on the 25th June I860 in Anundmoyee Chowdrain v. Ramkunth Sein (2), which seems to confirm the previous ruling. They have therefore referred the question to a Bench of five Judges (3). When a lakhirajdav has entered into a contract with a tenant, whether for a term or in perpetuity, both parties are in strict law bound to the conditions of the contract. We, therefore, do not think that the mei'e resumption of the lakhirajdar's tenure by Government — that is, the mere fact that that tenure has been rendered liable for the payment of revenue — can of itself, as a matter of law, dissolve- the contract entered into by the two parties. Looking to the unexpected and unforeseen nature of the Government act, which has declared that a certain proportion of every biga of the tenure must be paid in perpetuity to Government by the zemindar, it appears to us that, although it may be at the option of the tenant to determine tlie tenancy, he may consent that what the vis major of Government has taken from the land shall be added to the original engagement, so as to enable the zemindar to hand over the same to Government, and thus the parties will be left, as between themselves, exactly in the position in which they were before the resumption. The under-tenure, as to its duration, will not be interfered with ; but during its currency, the revenue which has been assessed on the lakhiraj dar will be added to the original j umma. But the tenant is, we think, at liberty to throw - up his lease, if he declines to enter into any engagement with the lakhi- rajdar, now become the owner of a revenue-paying estate. If a tenant, (1) S. D. A. Rep., 1850, 167. the four Judges only whose names are (2) Id., 1860, 660, 661. given at the head of the case. No other (3) This judgment bears the signature of judgment is recorded. 182 FULL BENCH RULINGS. 1865 under the circumstaaces now before us, asks for relief from the Court, we MnssAMAT think that, as he who requires equity must do equity, he is not entitled Banu to be reinstated in his former position, leaving the zemindar the whole MussAMAT burthen of discharging the G-overnment revenue. We do not consider AzizuNNissA om-selves on the present occasion required to pronounce our opinion whether, in the event of the tenant declining to come under any obligation for the payment of the Government revenue, he has a right to be maintained in his holding on any other, or what, equitable terms. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Shumboonqth Pundit. 1865 K. WATSON and others (Plaintipes) u. The GOVERNMENT and otheks ■^""g 13. (Defendants.)* Limitation — Adverse Possession — Cultivated and Uncultivated Lands — Landlord — Tenants— Ghatwals— Act XXIII 0/I86I, s. 23. The owners o{ a patni of Bishenpore sued to set aside a survey award and alter a map (1855) which demarcated certain lands as cultivated and uncultivated belonging to Government, and in the possession of ghatwals. Certain ghatwali lands, part of the zemin- dari of Bishenpore, had been given up to the Government, by the zemindars, in 1802, and the ghatwals had since paid a quit-rent to Government for the same. The plaintiflfs became purchasers of the patni in 1839, under a sale for arrears. They admitted that, as to the uncultivated lands, they had never been in actual possession or in the receipt of any rents since they purchased, but they alleged that, from that time, the ghatwals fraudulently or dishonestly refused to pay them rents, in respect of the cultivated lands, as they had done to their predecessors ; and that the ghatwals had encroached upon the uncultivated lands. The ghatwals, on the other hand, stated that they never had paid rent to the pat- nidar, and that the lands were all included within those for which they paid a quit-rent to Government. Seld (Loch, J., dissenting) that the ghatwals, if proved to have been the tenants of the plaintiffs or their predecessors, could not acquire a title against them by adverse possession of twelve years. Per Peacock, C. J. — The issues are: (1) whether the ghatwals paid rent for the culti- vated lands to the pataidar ; (2) whether the cultivated or uncultivated lands form part of the patni estate ; (3) whether the ghatwals were in possession of the uncultivated lands from 1839, or for a period exceeding twelve years before the commencement of the suit ; (4) whether they paid rent for the same to the patnidar. The plaintiffs were patnidars of Lot Koororeah, purchased by them, in 1839, at a sale under Eegulation VIII of 1819. They alleged that the lands in dispute originally formed part of the permanently- * Special Appeal, No. 2715 of 1863, from a decision passed by the Judge of West Burd- wan, dated the 15th June 1863, affirming a decision of the Principal Sadder Ameen of that district, dated the 23rd September 1861. FULL BENCH RULmGS. 183 settled estate, Pergunna Bisheupoi-e ; that the lands in suit were 1865 partly cultivated and partly under jungle ; that for the cultivated Watson portion, the ghatwals in possession had paid rent to their predecessor ; Government. that they fraudulently refused to pay to them (plaintiffs), alleging that they were included within the ghatwali lands for which they paid a quit-rent to Government ; that in 1802, a certain portion of the talook, consisting of 35,955 bigas held by the ghatwals, bearing a jumma of sicca rupees 4,641, was, by aiTangement with Government, made over to Government, and constituted a separate estate on the rent-roll of the district ; that the ghatwals had from time to time encroached upon their (plaintiffs') estate, and that their possession of the 1,362 bigas in dispute was an encroachment of that nature, inasmuch as the area was not within the land made over to Government in 1802 ; that the Deputy Collector subsequently (1855) demarcated the boundaries, and prepared a map, describing the land as included in the ghatwali tenure, under the name of 33 pharrees of Mauza Chota Bunkadoho. , This suit was instituted in 1856 to set aside the survey award, for the correction of this map, and for the confirmation of the plaintiffs' mal right ; the ghatwals and the Government (the latter appearing as prin- cipal defendant) separately raised the defence that the suit was barred by lapse of time. The first Court dismissed the suit on the ground that the plaintiffs had not been in possession of the land within twelve years. This decree was upheld on appeal. The plaintiffs appealed to the High Court on the following grounds : — I. That the lower Appellate Court had wrongly thrown the onus upon the plaintiffs in regard to the plea of limitation advanced by the defendants. II. That the defendants being the owners of a limited estate within the general estate of the plaintiffs, the onus of showing any particular lands were included in the limited estates lay upon the defendants, and not upon the plaintiffs, whose allegations in regard thereto were eventually of a negative character; but that the lowei' Appellate Court, overlooking the relative positions of the parties, had erroneously thrown the burden of proof entirely on the plaintiffs. The appeal was heard by Norman and E. Jackson, JJ., who referred the case to a Full Bench, under the following order : NoEMAN, J. (who, after stating the facts, continued): — It is neces- sary to observe that the possession of these lands by the ghatwal- 18-t FULL BENCH RULINGS. 1865 (lefendantp, in whose hands they were liable to assessment as towfir, Watson is a very different thing to possession by a neighbouring zemindar of GovBKNMENT. lauds which he claims as within his boundaries. If a ghatwal, in course of years, obtained possession by encroachment of mal lands not originally included in his tenure, he could not in a suit for assessment or for khas possession, after refusal by the ghatwal to make a settlement, plead as against the owner of the zemindari that the zemindar had not been in possession within twelve years. That point was expressly decided in Koylasnath Roy v. Roop Singh Sirdar and Koylasnath Roy v. Juggeriiath Sircar (1). This pro- ceeds upon the well-known principle that the general Law of Limitation is inapplicable as against a zemindar in suits for the assess- ment of rent of lands within his zemindari. See Sheikh Shafaetoollah V. Joykissen Mookerjee (2), in the Matter of the Petition of Jummal Surma (3), and Hukeem Abool Hosein v. Chutterdharee Singh (4). The case of tenures held as lakhiraj tenures before 1790 is an excep- tion to the general rule that limitation cannot be pleaded in such cases. The cause of action in a suit for assessment by a zemindar is said to be a continually recurring one — Degumber Mitter v. Ram Soonder Mitter (5). Till the right to assess has been repudiated by some distinct act, the zemindar is not put to his right of action. Therefore, as against the person within whose zemindari or mal lands those now in ques- tion may turn out to be situate, — whether the Government, the Eaja of Burdwan, or the patnidar, appellant, — it would seem that the ghatwals could not plead limitation. This seems to be a totally different question from the question whether the ghatwal could plead limitation for possession and met^ne profits from the date of an alleged dispossession treating him as a mere trespasser. No doubt, to such a suit, twelve years' possession without payment of rent would be an answer. See Mirtoonjoy Pauree v. Omesh Chunder Paul Chowdry (6), Ram Chunder Paul Chowdliry v. Punchoo Mundul (7). Again, if the ghatwals could show that for twelve years they had paid I'ents specifically for those lands to the Government, and tliat the Government had, at any time more than twelve years before suit, assert- ed a title to those lands as maliks or zemindars, adversely to the patni title (1) S. D. A. Rep., 1858, 1713; S. D. A., (4; S. D. A. Rep., 1850, 494. 1862, 284, 292. (5) Id., 1856, 617. (2) 7 Sel. Rep., 499. (6) Id., 1849, 411. (3) S. D. A. Rep., 1850, 158. ' (7) Id., 1855, 253. FULL BENCH RULINGS. 185 of the plaintiffs, the suit might be barred by limitation. If the land shall, on 1865 enquiry, appear to be within the zemindaii of Bisbenpore, and comprised Watson within the patni talook of the plaintiffs, the mere omission to take steps Government to assess rent on the lands, or to have them declared mal for more than twelve years, appears to us not to be a bar to this suit, which is to obtain a declaration of the plaintiffs' mal right. The right of action appears to date, not from the time when the ghatwals may appear first to have been in possession without payment of rent, but from the date when such possession was adverse to the patnidar. This is not merely the result we arrive at by our own reasoning, but accords with the principle established by the case of Goor Persad Roy v. Moulvi Abdool Ali (1). It does not appear from the judgment of the Court below, nor can we infer, that there was any such adverse possession prior to the date of the survey awards demarcating the lauds as gbatwali, and conse- quently as held under the Government. Another question of considerable importance and difficulty might arise if those lands turn out to be in fact parts of the decennially- settled lands of the zemindari of Bishenpore; and in respect of which, the Grovernment are yearly in receipt of revenue as such, — viz., whether the Government can, in its character of malik or owner of an adjoining zemindari, plead limitation in a boundary suit as against the claim of the zemindar to recover any portion of his decennially-settled lands encroached on by the ryots of the Government. These points do not appear to have been adverted to in the cases of The Collector of fVest Burdwan v. Messrs. Watson and Co. (2) and The Government v. Maharaja Dheeraj Mahatab Chund Baha- door (3); and as our decision is at variance with the former ease, and the point involved is one of importance, if the parties desire it, the point may be re-argued before a Full Bench. The case was argued before a Full Bench — Noeman, C. J. (offg.), and Trevor, Loch, Shdmboonath Pundit, and Levinge, JJ. The following opinions were delivered : Norman, J. — This case having been re-argued before a Full Bench at the request of the respondent, and in pursuance of the permission given to that effect, I think that limitation will not apply to the (1) S. D. A. Rep., 1850, 491. (3) Hay, 1863, 384. (2) Id., 1860, 643. 186 FULL BENCH RULINGS. 1865 claim of the patnidar to euhancement, if the lands in dispute were Watson originally included in the decennially-settled estates of Bishenpore, V. Government, and were not surrendered by the zemindar to the Government under the arrangement in 1802. Pundit, J. — In this case it appears to be an admitted fact that the Permanent Settlement was made with the Eaja of Bishenpore of his zemindari, together with certain ghatwali lands held by ghatwals, and that afterwards it was found expedient to detach the ghatwali lands from the estate, and to give some remission of revenue to the zemindar. These lands were then and are still mostly j ungle and hilly tracts, with very little cultivation, and so their exact boundaries and quantity it was not easy to know and determine at the time of this separation. The plaintiff is a patnidar under the zemindar, and the Government and the ghatwals oppose his claim and plead limitation, on the ground that the lauds claimed by him have been held since the separation by the ghatwals as part of their ghatwali tenures. The ghatwals pay only a quit-rent for the lands they hold, and, when called upon by the Government to put in lists of the lands held by them, are said to have represented themselves as holding much less than they actually did and do hold. Now, with regard to the lands not under cultivation, no question of adverse possession can arise; but with regard to the lands said or proved to be under cultivation, it is not improper to apply the Law of Limitation when the plaintiff has failed to prove that they were, as he had asserted, held by him under the right derived long ago from the zemindar. The arguments of his pleader regarding the onus probandi might have availed him if there had not been a separation, as ghatwals do not pay so much per biga to Government. It is impossible for Government to prove that it has actually and directly received rents for any particular portion of the lands in dispute. When, with regard to these cultivated lands, claimed by the plaintiff, the defendants plead limitation, I do not see why they should be required to prove that these lauds have been held by the ghatwals, and also prove that the Government has received rents for these identical lands. The fact that Government received revenue from the zemindar does not alter the nature of the case or shift the onus. The plaintiff in this case, like any other plaintiff, was bound to show that these cultivated lands were held by him within twelve years preceding his suit. On the contrary, he admits that, for more than twelve years from the time that he acquired the right under which he sues, he has never held them; FULL BENCH RULINGS. 187 and so with regard to this portion of the lands claimed by him, his 1865 claim appears to me barred by the Statute of Limitation. Watson I do not object to a remand regarding any portion of the lands Government. claimed that may be admitted by both parties, or proved by evidence, to be uncultivated. Although the ghatwals may perhaps succeed in proving some sort of possession even of these lauds, yet as, from the very nature and quality of these lands, such possession cannot necessarily be considered as adverse ; it is not at all advisable to apply any limitation to the claim of the plaintiff regarding such lands. It vcould, however, be necessary to remand, in order to find out the two kinds of lands, if their respective quantity and identity are not admitted or already proved. Loch, J. — With regard to the jungle lands, I see no objection to a further investigation being made as proposed by my colleagues, because it is very difficult to prove possession of such tracts, unless the pro- prietor has exercised acts of ownership by preserving and appro- priating the jungle for his own use, or permitting others to appropriate certain portions, paying him for the same. The mere assertions of possession or demarcation in a map are not of themselves proof of possession. With regard to the cultivated lands, however, I do not see why the Law of Limitation cannot be pleaded by the defendants in this case as in any other where the complainant admits that he has been out of actual possession for more than twelve years. The ghatwali lands of Bishenpore were originally comprised within the zemindari of that name. At the instance of Government, they were separated from that zemindari, and Government took posses- sion of an area nominally aggregating 35,955 bigas, assessed at rupees 4,641. These lands had never been measured, and the area in possession of the ghatwals was known to be much larger than stated, and the first returns of the ghatwali lands received through the police officer showed that the lands in the occupancy of the ghatwals, as ghatwali tenures, greatly exceeded the area mentioned in the instru- ment by which they were transferred to Government by the Raja of Bishenpore, to whom a remission of revenue from the jumma of Per- gunna Bishenpore was allowed. When the ghatwali lands were transferred to Government, they were entered as a separate mehal in the rent-roll of the district, and did in fact constitute a separate estate therein. The ghatwals hold 188 FULL BENCH RULINGS. 1865 these lands direct from Government in return for their services as Watson police, paying also a small quit-rent. They stand very much in the GovERNJsiENT. positiou of talookdars under a zemindar, paying, however, in return for the lands they hold, not a full money-rent, but a rent consisting partly of service and partly of money. It appears to me that the position of Government, as proprietor of the ghatwali mehal, is that of an independent zemindar deriving no title from the zemindar of Bishen- pore, but as completely separate from him and his zemindari as if Government had acquired the lands by gift or purchase, or by any other independent mode. Now, if a talookdar paying a fixed jumma to his zemindar, encroach upon the property of a neighbouring zemindar, he pays no increase of rent to his own landlord for lands so acquired ; and if the injured zemindar sleep over his rights, and do not seek to recover possession within the period allowed by law, the talook- dar and his zemindar may effectually plead the Law of Limitation against him. Why should the same rule not be applied to the case of these ghat- wals? If a ghatwal trespass, the party injured is bound to take steps to remedy the injury in proper time. If he sleep over his rights, why should he not lose his remedy as in other cases ? The conduct of the ghatwal may be reprehensible in appropriating the property of another, but it is no worse than that of the talookdar whom I have supposed under similar circumstances ; and if the talookdar and his zemindar could plead limitation as against a party seeking to recover possession, why should not the ghatwal and Government, his zemindar, be able to take the same plea ? It is true that Government is unable to show that it has received rents for the lands alleged to have been encroached upon, and thus exercised acts of ownership over them, but a zemindar, whose dependant talookdar encroaches on the neighbouring zemindar's lands, is equally unable to show this, and therefore this test is equally defective in his case; and yet in the latter case, if the injured party sleep over his rights, he loses his remedy. In the present case, we flud that plaintiff purchased the patni in 1839. Readmits that, in regard to those cultivated lands, he has never received rents froni the ghatwals, who hold them, rightly or wrongly, as part of their ghatwali tenure. In fact, he admits that he has exercised no right of ownership over them for more than twelve years. He alleges that his predecessor did collect rents from the ghatwals, which they ceased to pay on his purchase of the patni. Why did he sleep over his rights if they ever were in existence ? PULL BENCH RULINGS. 189 It may be said, however, that this is not a suit for possession. The 1865 form of the suit matters very little, except to show the ingenuity of Watson V. the party bringing it. In substance it is to recover possession ; but Govekhment; instead of bringing his action for possession and mesne profits as against wrong-doers, the plaintiff assumes that the lands are his, and the defendant ghatvs^als recusant occupants, and therefore he brings his action to assess these tenui'es. Had the suit been brought in its present form against an ordinary zemindar, the Tiaw of Limitation could have been as effectually pleaded as if the suit had been to recover posses- sion ; and as plaintiff by his pleading shows that he has been out of possession for more than twelve years, his suit would have been held to be barred. In what respect is Government holding the ghatwali tenure in its own right as zemindar, in a different position from an ordinary zemindar ? Government, it appears to me, as zemindar, has all the rights and privileges of an ordinary zemindar, and the laws appli- cable to suits brought against the latter are equally applicable to suits against the former. The present suit brought for assessment is simply an attempt to evade the Law of Limitation, and, if effectual now, may be used in all cases. I would, therefore, confirm so much of the order of the Judge as relates to the cultivated lands. Teevor, J. — The question before us in this case is a simple one, — viz.^ whether the Statute of Limitation bars the claim on the plaintifi's own statement of his case or not. (After stating the facts.) — Had all the lauds been under cultivation, and the zemindar in possession, or had Government pleaded that it had, by the receipt of rents, exercised the right of ownership continuously over the whole of it, this possession being adverse to the plaintiff, it would have been for the plaintiff to show that he had been in possession within twelve years prior to the date of suit, and, failing on this point, his suit must have been dismissed. But such is not the state of the present case. The Government pleader admits that the land in dispute is partly cultivated and partly jungle, and that he gets a quit-rent from the ghatwals for a large quantity of land ; and that he is unable to say whether this is the portion of the land on which the quit-rent was fixed or not, — that is, he is unable positively to assert an adverse possession to the defendant. Now, as regards the uncultivated land, there seems to me to be no doubt that there was no possession accompanied by an exercise of the right of ownership in any one, either in the plaintiff or in Government. The ghatwals' possession alone is not adverse to the plaintiff, they being 190 FULL BENCH RULINGS. 1865 under-tenants. It follows that, for this portion of the claim, the case Watson must unquestionably be remitted for re-investigation as to whether V, Government, the uncultivated land formed portion of the lands made over to the Government in 1802, or not. If it did, the plaintiff's suit must be dismissed ; whereas if it did not, he must obtain a decree. Again, as to the cultivated land, as Government is unable to assert that these lands are those on which quit-rents of the ghatwals were fixed, and consequently those on which it has continuously exercised the right of ownership, the mere fact of the ghatwals having taken possession of and cultivated them cannot, by limitation, bar the right of either zemindar. In this state of things, it seems to me that no application of the Statute of Limitation on the pleadings can be made ; but this portion of the case, as well as that regarding the uncultivated lands, must be tried upon its merits, the real issue being, are the cultivated lands in dispute within the estate of plaintiff, or the ghatwali estate of Government, as settled in 1802 ? The plaintiff alleges that his prede- cessor in the patni always collected rents from these lands. If he is by evidence able to prove this, it will go far to establish his title to them, as on the part of Government it is not asserted that these particular lands have ever been subjected by it to assessment. On the view of the case expressed above, the whole case should, in my judgment, be remitted for inquiry on its merits in the mode above suggested. In consequence of the death of Mr. Justice Levinge before judgment, the case came before the Chief Justice (Sir Barnes Peacock), by whom it was referred to another Full Bench, under the following order : — Peacock, C. J. — But for the opinion of the two learned Judges (Mr. Justice Trevor and Mr. Justice Norman), I should have enter- tained no doubt or difficulty on the subject of this case. As to the cultivated lands, those learned Judges differ from Mr. Justice Loch and Mr. Justice Shumboonath Pundit. It appears to me that the decision of the 18th June 1860, which was passed by Mr. Justice Loch and Mr. Justice Bayley, in Collector of West Burd- wan V. Watson (1), is perfectly correct ; and following that decision, and the principle on which cases of this sort ought to be determined, it appears to me, if I can legally express an opinion upon the subject, that the decision of Mr. Justice Loch and Mr. Justice Shumboo- nath Pundit, as to the cultivated lands, is correct ; but I unfortunately differ with those two learned Judges with regard to the uncultivated (1) S. D. A., 1860, 643. PULL BENCH RULINGS. 191 lands, because it appears to me that there may be a possession of 1865 uncultivated lands or jungle, just as much as of cultivated lands. Take Watson the instance of tea gardens in Cachar or Assam. There is no doubt that Goykbnment. persons have bought laud from Governrnent for tea gardens, who are in possession of the whole, notwithstanding large portions are jungle and wholly uncultivated. There may be great difficulty in proving the possession of uncultivated lands ; and if there is any doubt as to who is in possession, the case would probably be determined in favor of the party who proves title; but if one party can prove that he has been in adverse possession of uncultivated lands for a sufficiently long time to bar the remedy of the person who has title, the case of the latter may be barred by limitation as to uncultivated land or jungle in the same manner and to the same extent as regards cultivated lands. Mr. Justice Loch says that it is very difficult to prove tlie possession of uncultivated lands, and Mr. Justice Shumboonath Pundit is of the same opinion. But although such a difficulty may exist, it does not follow that it is insurmount- able. Therefore, if I could express an opinion as to whether the case should be remanded, I should remand it, if at all, as to the uncultivated lands, to try first whether the ghatwals had or had not adverse possession of the uncultivated lands for a period exceeding twelve years before the commencement of the suit, and should hold that, if the possession by the ghatwals for twelve years before the institution of the suit should be established, the plaintiff's would be barred with regard to the uncultivated lands just as much as with regard to the cultivated lands. If neither party should be proved to have had actual possession, or to have exer- cised right such as would amount to possession, or from which posses- sion might be inferred, the question of title would have to be gone into. This would be the case if the cause were remanded for re-trial as to the uncultivated lands, but I am not sure that it will not turn out that the lower Courts have found as a fact that the ghatwals were in possession of the uncultivated lands. This question, however, I cannot enter into as a fifth Judge, the four other Judges not differing as to the uncul- tivated lands. If I were to give judgment as to the cultivated lands, and an applica- tion for a review of judgment were to be presented as to the uncultivated lands, as the pleader for Government has proposed, I could not express an opinion on that matter, because I should be no party to the judgment as to the uncultivated lands : as to those lands, the judgment would be that of the four Judges alone. But upon looking at section 23 of Act XXIII of 1861, I doubt whether I have power to express an 192 FULL BENCH RULINGS. 1865 Opinion at all in the case. That section enacts as follows: — " If, when the Watson " Court consist of only two Judges, there is a difference of opinion upon Government, " the evidence in cases in which it is competent to the Court to go into " the evidence, and one Judge concur in opinion with the lower Court as " to the facts, the ease shall be determined accordingly ; if in a Court so " constituted " (that is, a Court composed of two Judges), " there is a " difference of opinion upon a point of law, the Judges shall state the " point upon which they differ, and the case shall be re-argued upon that " question before one or more of the other Judges, and shall be deter- " mined according to the opinion of the majority of Judges of the " Sudder Court by whom the appeal is heard." The Court by whom this appeal was heard was not a Court consisting of only two Judges. It was a Court consisting of five, who, if one of them had not unfortunately died, would have considered and passed their judgment on all the points brought forward. Mr. Justice Levinge might have expressed an opinion as to the uncultivated lands which I cannot. I therefore do not stand in the same position as he did. It is not a mere technical objection, because, when the Judges take time to consider and consult together, it is possible that the opinion and argument of one Judge might to some extent influence the opinion of another Judge. It might have been that Mr. Justice Levinge might have convinced Mr. Justice Loch and Mr. Justice Shumboonath Pundit that, although there might be great difficulty in proving possession of uncultivated lands, the case should not necessarily be remanded to try the question of title, until the question of possession had been first determined ; or that the fact of possession of the uncultivated lands had been decided by the lower Courts, and was not open to be reversed on the special appeal. When the case came before me to refer it to a fifth Judge, in consequence of the death of Mr. Justice Levinge, I thought that that would be the proper course. It did not occur to me then that I should not be in precisely the same position as that learned Judge, and to point out in consultation and express my views on those points of the case upon which there was no difference of opinion amongst the other four Judges. But upon fur- ther consideration, it appears to me that this is not a case within section 23 of Act XXIII of 1861, and that the case ought to be re-argued before five Judges, of whom I will form one. I think that the other four Judges ought to be the four who heard the case before. Therefore, without expressing any decided opinion on the points upon which the learned Judges either differed or agreed, because my mind is open to be influenced upon further argument at the bar, or by the FULL BENCH RULINGS. 193 opinions and arguments of my learned brothers, I merely decide that 1865 this is not a case for a single Judge under section 23 of Act XXIII of WAisoiif 1861, and tliat it must be re-heard before a Full Bench of five Judges. Government. I will arrange and fix an early day for the re-hearing of the case before five Judges as above stated. I am very sorry that the mistake should have occurred, and that the learned counsel should have had the trouble to re-argue the case fruitlessly. The case was accordingly re-heard before such Full Bench, when the following judgments were delivered : — Peacock, C. J. — There are two questions in this case : firstly, as to the cultivated lands, of which, it is admitted, the defendants were in posses- sion ; and, secondly, as to the uncultivated lands. It appears that the ghatwali lands were originally part of the zemin- dari of Bishenpore ; aud for some reasons (as to which it is not necessary now to inquire) a portion of the lands were given up by the zemindars to the Government, and the Government gave up a portion of the revenue assessed on the zemindari. Upon a survey of the lands which are now in dispute, both the culti- vated and uncultivated lands were included as belonging to the Govern- ment and in the possession of the ghatwals. The owners of the patui of Bishenpore claim to set aside that survey, and to declare that they were entitled to the lands, both cultivated and uncultivated. They admit that, as to the uncultivated lands, they have never been in possession or in the receipt of any rents since the year 1839, when they became purchasers of the patni under a sale for arrears. But they say that, from that time, the defendants (the ghatwals) fraudu- lently or dishonestly refused to pay them rents as they did to their pre- decessors. The defendants say that they never paid any rent for the lands to the patnidar of Bishenpore ; that that allegation is not true ; that they hold now, and have held these lands since 1 839, without paying any other than the quit-rent which they paid to Government. It is an important question (as regards not only the Government, but as regards the ghatwals also) whether, in respect of lands which the defendants claim to have held as part of these ghatwali tenures, they are now to be called upon to pay, in addition to the quit-rent, a rent to the patnidar, on the ground that they are a portion of the lands of the patni of Bishenpore. If the plaintiffs can make out that the ghatwals did pay rent to their predecessors, such payment as against the ghatwals would be evidence that the lands in respect of which the payment was made were A A 194 PULL BENCH RULINGS. 1865 part of the patni of Bishenpore. But the ghatwals could not legally trans- Watsos fer the right to the lands, if they really were part of the ghatwali estate, GovEKNMEBT. from tho Government to the palnidar, by paying rent to the patuidar of Bishenpore, in addition to the quit-rent. Therefore, as regards the ghatwals, it is necessary to inquire whether they did or did not pay rent to the patnidar prior to 1839. If they did, such payment as regards the ghatwals would be evidence in favor of the owners of Bishen- pore ; but as against the Government, the mere fact of paying the owners of Bishenpore would not be sufficient. The first issue that ought to be tried as to the cultivated lands is whether the defendants (ghatwals), or those under whom they claim, paid rent for any and what part of the cultivated lands to the predecessors of the plaintiff ; and next, whether the cultivated and uncultivated lands, or any and what part of them, formed part of the patni of Bishenpore. Then as to the unculti- vated lands, it is said that the defendants were not in possession. But the survey shows that they are in possession, and that those lands are part of the ghatwali lands ; and the action being brought to set aside the award made in that survey, there is a. prima facie case in the defendants' favor that they were in possession of those lands. Now, although it may be difficult inm any instances to prove the actual pos- session of jungle lands, it is possible to do so. The civil law requires different kinds of proof, according to the nature and quality of the things to be possessed. It is laid down as follows in Domat's Civil Law : — " One may possess corporeal things, whether they be moveable or im- „ . "moveable ; but according to the differences of Page 846, para. 2130. . ° "their nature, the marks of the possession " of them are different. Thus, one may possess moveables by keeping " them under lock and key, or leaving them otherwise at one's disposal. " Thus, one possesses cattle either by shutting them up or giving them " to be kept. Thus, one possesses a house by dwelling in it, or having the " keys thereof, or trusting it to a tenant, or by building in it. Thus, one " possesses lands by cultivating them, reaping the fruits, going or coming " through them, or disposing thereof at pleasure.'' The marks of possession, therefore, with regard to property depend on the nature of the property. It is not necessary, in order to prove possession, to prove an actual bodily continuous possession. Domat says : — " Although possession implies the detention of what ".we possess, yet this detention ought not to Page 847, para. 2132. A ^ , a -4^ : " be so understood as if it were necessary to FULL BENCH RULINGS. 195 " have always, either in our hand or in our sight, things of which we 1865 " have the possession. But after possession has been once acquired, it Watson " is preserved without an actual possession." Goveknment. The exercise of such acts of ownership over jungle lands as would ordinarily be exercised over property of that nature would be evidence of possession. For instance, if it were proved that the ghatwals were in the habit of cutting or preserving the wood, gathering wax or wild lioney, collecting sticks, lac, &c., may all be evidence of acts of owner- ship or possession, and those who have to deal with the facts of the case must determine whether the acts were referable to the right of property or possession, oractsof mere right or easement independent of possession. As, therefore, there may be possession of uncultivated land, as well as of cultivated land, the question must be tried whether the defendants were in possession of the uncultivated lands from the year 1839, or for a period exceeding twelve years next before the commencement of this suit ; and if they had possession of the uncultivated lands, or of any portion of them, whether they ever paid rent for them to the plaintiff or his predecessors. I think these are the only issues which it will be necessary to try for the purpose of coming to a correct conclusion as to the final decision of this case. But as these questions of fact may be difficult to be dealt with upon the evidence, I think it will be well to direct the Judge to take the case on to his own file, so that, in case of necessity, it may come up to this Court as a regular appeal, and be heard and determined as well on the questions of fact as on the questions of law. The issues are as follow : — 1. Whether the defendants (ghatwals), or those under whom they claim, paid rent for any and what part of the cultivated lands to the plaintiff or his predecessors of the patni estate. 2. Whether the cultivated or uncultivated lands claimed, or any aud what pai't of them, formed part of the patni estate of the piaintiff. 3. Whether the defendants (ghatwals) were in possession of the uncultivated lands, or of any and what part of them, from tlie year 1839, or for a period exceeding twelve years before the commencement of this suit. 4. Whether they paid rent for the same, or for any and wliat part of them, to the plaintiff, or the owner of the patni estate. I should add that a tenant cannot prescribe against his landlord accord- ing to the English law or the civil law, nor, as I understand, according to the law as laid down in the Sudder Decisions. 196 FULL BENCH KULINGS. 1865 Teevor, J. — When this case was last before the Court, I put in a Watson written judgment, and I see no reason to alter the opinion therein GovEKNMENT. Gxpressed. It appears to me that the case should be referred to the lower Court for inquiry on only one point, — viz., with whom is the title to the lands in dispute — is it with the plaintiflf or the defendant ? The only party who could plead an adverse possession to the plaintiff is the Government. But it has never set up an adverse possession, and the mere fact of the ghatwals having been in possession, as tenants, can- not entitle them to do so. Such being the case, in my opinion the only point for enquiry is, as I have above stated, with whom is the title — with the plaintiff or the defendant ? and I would send the case back for that purpose only. Loch, J. — I still adhere to my former opinion. I think the suit is barred by limitation. The plea set up by the defendants, and taken together by the zemindar and the ghatwal, is a valid plea ; and as the plaintiff admits that, as regards the cultivated lands, he has exercised no right of ownership for more than twelve years, he cannot bring his action to recover. With regard to the uncultivated lands, however, there is not the same admission made, and therefore I think the case may go back again for the question of possession to be re-tried, as proposed by the learned Chief Justice. If plaintiff's possession within twelve years be proved, it will go far to prove his title. Norman, J. — I adhere to the opinion I originally expressed in this case. With reference to the arguments which have since taken place, it is necessary to add that, when the case was before the Court on the last hearing, Baboo Krishna Kishor Ghose admitted that the Govern- ment had not received rent specifically for those lands from the ghat- wals, defendants, who were in possession. For the purpose of the plea of limitation, it must be assumed that these lands were within the limits of the decennially-settled estate of Bishenpore. I think that, when a person holds lands within a zemindari, but not under a zemindari title, in order to sustain the plea of limitation against the zemindar suing to assess, he must show a possession adverse to that of the zemindar. If he is a mere ryot, his possession is not adverse. Again, as a mere squat- tei', he cannot plead limitation. If the plea of limitation could be pleaded successfully, it would be on the ground that, from a twelve-year's possession, it could be inferred that a rent-free tenure has been created FULL BENCH RULINGS. 197 within the zeraindari. But such a grant, if actually made, would be 1865 invalid, and, as it appears to me, contrary to section 10, Regulation XIX Watson of 1793. That, I believe, is the true ground of the decisions in cases Government. like Sheikh Shafaetoollah v. Joy Kishen Mookerjee (1), that the general Law of Limitation is inapplicable to the case of a person who proceeds to assess rent against another, holding under an alleged invalid rent-free tenure. In that case, and in Degumber Mitter's case (2), it is said that the cause of action was a perpetually recurring one. I think that princi- ple applies to the persons who are now found occupying lands within the zemindari of Bishenpore. They themselves could not plead limitation in a suit to assess and declare the land to be mal lauds. I think it makes no difference that they are holding adjacent lands under the Government. They say that the lands are within a zemindari belong- ing to the Government. Are they, or are they not ? — that is a simple issue. It may be, as a general rule, that encroachments are to belong to the estate of the landlord under whom the encroaching tenant holds. But that is a presumption capable of being rebutted. It is by no means clear that there is such a presumption in favor of the landlord as against a stranger. Lord Campbell in Doe dem BaddeleyY. Massey (3) says : — ■ " The principle of law must be that the lessee is estopped from denying " that the whole premises are those which were demised to him. " It would be strange to lay down that the tenant steals for the " benefit of his landlord. If it was so taken, the landlord is thereby " entitled as against the tenant who took, but not as against a third " person." The zemindar of Bishenpore being liable to the payment of Government revenue in respect of these lands, it is exactly the same as if a contract existed with the Government. It appears to me that the Government cannot be in the. position of being entitled to claim the Government revenue, and at the same time to plead adverse possession as against the zemindar in respect of these lands. I am therefore pi-epared to say that the Government cannot set up an adverse possession. It is clear that the Government never did, in fact, assert any adverse title by taking rent for, or specifically asserting a claim to, those lands as against the zemindar. Had the Government actually asserted an adverse title to the lands as being part of the ghatwali lands more thau twelve years ago, the question would have been difierent. As to the first issue proposed by the learned Chief Justice (namely, whether the ghatwals, (1) 7 Sel. Eep., 499. (3) 17 Q. B., 376. (2) S. D. A. Eep., 1856, 617. 198 FULL BENCH RULINGS. 1865 or those under whom they claim, paid rent for the cultivated lands to Watson the plaintiffs or their predecessor), I see no objection to it; and if that GovEKNMENT. issuo is fixcd in favor of the plaintiffs, and it is shown that the ghatwals ever paid to the now plaintiffs or their predecessors, they cannot convert what was once a tenancy into an adverse possession. Nor have I any objection to the second issue whether the cultivated and uncultivated lands ever formed part of the plaintiffs' patni estates. The third and fourth issues, whether the defendants were in possession of the uncultivated lands for more than twelve years before suit, and whether they ever paid for the same to the patnidar, are material, because, if found against the defendants, they dispose of the case, even if the views I have enunciated are adopted by the majority of the Court. Pundit, J. — The ghatwals hold a separate estate, so long as it is not proved that they were the ryots of the plaintiff or of his prede- cessor, and they have a right to plead adverse possession and limita- tion against the plaintiff. That the ghatwals were originally allowed to hold, as ghatwals, lands in quantity less than they are now holding, would not alter the position of things, or affect the rights of the defendants. When the ghatwals pay only quit-rent in a lump sum for the ghatwali estate. Government may, without any prejudice to the rights of the ghatwals, say that it cannot declare that, for any particular parcel, we get or do not get the quit-rents. Whether the lands in dispute are parts of the original ghatwali tenure, or represent the encroachments of the ghatwals upon the zemindari lands, it does not alter the state of things. Government can hold adversely to the plaintiff through the ghatwals, if they have held the lands in dispute as ghatwals. As regards the cultivated lands, plaintiff admits that he has not received any rents for them since his purchase, and so, to prove anything on this point favorable to the plaintiff, the onus is upon him. As to the un- cultivated portion, if the defendants like to plead the adverse possession of a property which may be legally held by plaintiff, without the exercise of any ordinary proprietary rights, the defendants must prove that their alleged possession of these lands is such as can legally and reasonably be called adverse to the plaintiff. I have no objection to an order of remand directing that for lands cultivated more than twelve years ago, if the plaintiff likes, he may prove that his predecessors had received rent from the defendants now in possession or their predecessors; and if he can prove that, then those who held once as tenants cannot be allowed to hold for themselves or others FULL BENCH RULINGS. 199 adverse to their former landlord. It may also be directed that, with i865 regard to lands brought into cultivation within twelve years, there Watson would not be any question of limitation. As to the uncultivated lands, Gqveknment. if the defendants can prove that they have held possession of these in such a manner as to make their holding actually adverse to the plaintiff, then limitation will apply to the claim for this portion. If for both, or any portion of them, limitation does not apply, then for the same reason the title of the plaintiff is to be inquired into. The case is to go to the Zilla Judge, and not the Principal Sudder Ameen, that the decision arrived at by the lower Court may be appealable to this Court as a regular appeal. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Shumbhoonath Pundit. MADHUSUDAN SING (Plaintiff) v. The COLLECTOR op MIDNAPORE 1865 AND OTHERS (DEFENDANTS).* jMWe lo. Court of Wards — Certificate of Administration — Act XL q/'1858 — Regulation VI of 1822. The Court of Wards is not prevented by Act XL of 1858 from taking an infant and his estate under its protection by reason of a certificate of administration to the estate having been granted by the Civil Court. The Court of Wards has a right to assume charge of the estate although originally it may have refrained from acting. In this case the following question arose at the hearing before a Divi- sion Court : — Whether the Court of Wards may at any time claim the guardianship of a minor and the management of his property, notwithstanding that a Civil Court guardian, under Act XL of 1858, has been appointed. The question was referred by Morgan and Shumbhoonath Pundit, JJ., with the following remarks : — This appeal was heard by us a few days ago, when it appeared that the question for decision had formerly been before a Division Court (1), who had so dealt with it that, without expressly deciding the point, they had apparently intimated an opinion in the Collector's favor. * Special Appeal, No. 466 of 1865, from a decision passed by Mr. C. Hobhouse, Judge of Midnapore, dated the 21st December 1864, affirming a decision passed by the Principal Sndder Ameen of that district, dated 27th September 1864. (I) 1 Marsh., 244. 200 FULL BENCH RULINGS. 1865 The question is a very important one, and if under the power reserved Madhusudan to the High Court hy the 13th section of the Statute 24 and 25 Vic., ^" c. 104, a Division Court of more than two Judges can be constituted ^MmNAPor °^ '° ^^^^' ^^^ dispose of it, it seems to us that such a Court should be constituted for the purpose. Baboos Ashutash Dhur and Chandra Madhab Ghose for the appel- lant. Baboo Krishna Kishore Ghose and Messrs. R. T. Allan and J. S. Rochfort for the respondents. The opinion of the Full Bench was delivered as follows : Peacock, C. J. — We are of opinion that the Court of Wards was not prevented by Act XL of 1 858 from taking an infant and his estate under their protection by reason of a certificate of administration granted by the Civil Court under Act XL of 1858. Before the passing of Regulation VIof 1822, it seems that it was considered under the old Regulations to be the duty of the Court of Wards to take the protection in all cases in which they had the legal power to do so. Regulation VI of 1 822 was passed partly for the purpose of authorizing the Court of Wards to refiain from taking the estate of an infant under their pro- tection. In the preamble of that Regulation it is said : — " It is more- " over expedient to enable the Courts of Wards to refrain from inter- " feriug with the estates of minors, or other disqualified proprietors, in " cases wherein they deem their interposition unnecessary or inexpe- " dient." Section 4 then enacts as follows : — " The several Courts of " Wards are hereby vested with a discretion to refrain from interfering " with the estates of minors or other disqualified proprietors in cases " wherein they may deem their interposition unnecessary or inexpe- " dient." And in the latter part of the section it is said, — " And it will " of course be competent to the Courts of Wards to assume charge of " these estates at any time during the minority of the proprietors, notwith- " standing they may have originally refrained from interfering." So that, as the law stood under that Regulation, the Court of Wards might refrain from taking an infant and his estate under their protection, but were competent at any time to assume charge of the estate. Then was it the intention of Act XL of 1858 to deprive the Courts of Wards of the power which they had under the Regulation above referred to ? Section 2 of the Act says : — " Except in the case of pro- " prietors of estates paying revenue to Government who have been or FULL BENCH RULINGS. 201 " shall be taken under the protection of the Court of Wards, the case i865 " of the persons of all minors not being European British subjects) Madhusudan " and the charge of their property, shall be subject to the jurisdiction of 0"° " the Civil Court." The exception extends to cases of proprietors of *^^';;;^°™'^^ °^ estates paying revenue to Government which shall be taken under the Court of Wards. The Act does not deprive the Court of Wards of their right to assume charge, notwithstanding they may have originally refrained from acting. We are of opinion that the Court of Wards had the power to assume jurisdiction, notwithstanding the Judge had granted a certificate of ad- ministration under section 7. Here a person made an application for a certificate under the Act, and the application was granted. The next of kin asked that he might be removed. The Judge removed the manager, and ordered the estate to be taken under the authority of the Collector. There was no necessity for the Court of Wards to interfere, because, directly the Judge removed the manager he put the estate under the Collector. But on the 8th January 1863 (1), an appeal which had been preferred from that order was decreed, and the Collector was removed from possession. Then if the Court of Wards thought it right to as- sume charge, there was no necessity for their having the next of kin to institute and incur the expense of a regular civil suit for the purpose of removing the manager. The Court of Wards, when they said that the manager had been removed by the Judge at the instance of the next of kin, thought fit to prevent the estate from incurring the expense of fresh litigation and assumed the jurisdiction which they had. It appears to me that they did perfectly right. The decree of the lower Appellate Court must be affirmed with costs. Teevoe, J. — I entirely concur with the learned Chief Justice. I think upon the point referred to us that the Court of Wards had a per- fect legal power to assume charge of this estate, and Act XL of 1858 does not in any way affect the jurisdiction of the Court of Wards. Loch, J. — I concur. Norman, J. — I agree entirely on the point of law. I find on refer- ring to the reported decision of the 8th January 1863 (1), that it is quite clear that, though there were grave charges against the manager not fuUy substantiated, the management of the manager was admittedly (1) 1 Marsh., 244. B B 202 PULL BENCH RULINGS. 1865 far less advantageous to the infant than the management by the Collector. Madhdsudan It appears to me that the Court of Wards, representing the sovereign „. as *' parens patrice," for the protection of the interests of the infant, and ^M^pnSobe.^ for the security of the public revenue, were right in assuming the charge of the estate. Ppndit, J. — I agree in the judgment of the learned Chief Justice, on the ground that the powers of the Court of Wards do not appear to have been taken away by any enactment, and that the Act of 1858, giving the power to the Civil Courts, does not contain any provision that, on the Civil Court acting, the right of the Court of Wards to assume jurisdiction shall cease. June 19. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Bayley, Mr, Justice Steer, Mr. Justice Norman, Mr. Justice Morgan, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice Shumboonath Pvndit, Mr. Justice Campbell, Mr. Justice Phear, Mr. Justice E. Jackson, Mr. Justice Macpherson, and Mr. Justice Glover. 1865 THAKOORANEE DOSSEE, widow op BANSHIDHAE GHOSE (Dependant), V. BISHESHUE MOOKEEJEE and oiheks (Plaintiits.)* Act X of 1859, ss. 5, 6, Sf 13 — Enhancement of Bent — Adjustment, Mode of-^Pro- partion, Bule of— Fair and Equitable Rates — Kabuliat, Suit for. When there has been an increase in the value of the produce of land arising from an increase in prices, and the zemindar is entitled to a new kabuliat from an occupancy ryot, at an enhanced rate, at fair and equitable rates, Held, per Tkevoe, J, (concurred in by the majority of the Court). — The words " fair and equitable," in s. 5, Act X of 1859, are to be construed as equivalent to the varying expressions, pergunna rates, rates paid for similar lands in the adjacent places, and rates fixed by the law and usage of the country, — all which expressions indicate that portion of the gross produce calculated in money to which the zemindar is entitled tinder the custom of the country ; that, as the Legislature directs that, in cases of dispute, the existing rent shall be considered fair and equitable until the contrai'y be shown, that rent is to be presumed, in all cases in which the presumption is not by the nature and express terms of the written contract rebutted, to be the customary rate in- cluded in the terms pergunna rates, rates payable for similar lands in the places adjacent, end rates fixed by the law of the country ; that in all cases in which the above presump- tion arises, and in which an adjustment of rent is requisite in consequence of a rise in the * Special Appeal, No. 2064 of 1864, from a decree passed by the Judge of the 24-Pergun- nas, dated the 10th May 1864, affirming a decree of a Deputy Collector of that dis- trict, dated the 17th March 1864. FULL BENCH RULINGS. 203 value of the produce caused simply by a rise of price, the method of proportion should be jggs adopted — the former rent should bear to the enhanced rent the same proportion as the ; former value of the produce of the soil, calculated on an average of three or five years Dosseb next before the date of the alleged rise in value, bears to its present value ; that in j;, all cases in which the above presumption is rebutted by the nature and express terms Bisheshur of the written contract, the re-adjustment should be formed on exactly the same prin- Mookebjee. ciple as that on which the original written contract, which is sought to be superseded, was based ; and that in cases in which it appears, from the express terras of the contract, that the rents then made payable by the tenant were below the ordinary rate paid for similar laud in the places adjacent, in consequence of a covenant entered into by the ryot to cultivate indigo or other crops, the former rent must be corrected so as to represent the ordinary rate current at the period of the contract, before it can be admitted to form a term in the calculation to be made according to the method of proportion above laid down. Per Maopherson, J. — The rule of proportion,— as the old value of produce is to the old rent, so is the present value of produce to the rent which ought now to be paid, — is the rule which should be adopted in the absence of any recently adjusted pergunna customarj' rates. Either party should be at liberty, in each case, to prove any special circumstances tending to show that the application of the rule of proportion to that particular ease would work injustice. Per Phear, J. — When the Collector is called upon in any given case to determine the rent, which it is fair and equitable that the ryot should pay, he ought to enquire — 1st. — Whether at the last antecedent period, wbeu the arrangement between the parties (either then created or previouslj' existing) was such as must, by reason of tacit acquiescence or otlierwise, be taken to have been fair and equitable, that arrangement contained express stipulations as to rent ; if so, then these stipulations, unless the reason for them is gone, should be followed in arriving at the rent for the new potta. 2nd. — If the Collector finds no express agreement to guide him, then he must ascertain whether the ryot is legally entitled by custom, based either on his personal status, or on the character of the land occupied by him, to any definite share of the produce of the land, or to any beneficial interest in it. If the ryot is so entitled, the rent must be adjusted accordingly. 3rd. — If neither express agreement, nor legal right in the ryot, be found to have determined the amount of rent, the last arrangement must have been governed by some locally prevailing custom, or the rent regulated, tacitly, according to some locally prevailing rates ; and in that case the custom ought to be complied with, and the rates adhered to. The fair presumption will be, in the absence of evidence, or unless a different foundation be actually shown, that the rate was originally based upon the principle of sharing the produce of the land between the ryot and zemindar in a fixed ratio. The result of applying this presumption would be that the new fair and equitable rent would be the same proportionate part of the new produce that the old rent was of the old produce. In all cases, the duration of the intended potta must be taken into consideration as an element affecting the question of fairness and equity. Per NoKMAN, J. — 1. With respect to the rents of ryots having mere rights of occu- pancy, a zemindar is entitled to claim from his ryots such rents as are paid by the same class of ryots for land of a similar description and with similar advantages in places adjacent. 2. If such rents are too low, and the zemindar simply allege that the value of the produce has become increased, otherwise than by the agency, or at the expense, of the ryot, he shews an increase in the value of that which primarily belongs to the producer, to a proportion of which alone the zemindar is entitled. It is only necessary to give the zemindar an amount of rent which shall bear the same proportion to the old rent which the present price of the produce ,doe3 to the former. It must be taken that the old rent was fair and equitable. It is for the zemindar to prove his case, and he must carry back his evidence, as nearly as he can, to the time when the rent was fixed. 3, If the rent consist partly of money, and partly of services, or something equivalent to services, as an obligation to cultivate, and supply indigo at a certain price,' the value I 204 FULL BENCri RULINGS. 1865 Thakooranee DOSSEE BiSHESHUR MOOKERJEE. of such contract would have to be estimated and added to the old rent; and in such cases the aggregate value would form a term in the proportion. 4. If a ryot is holding below the rates paid by his neighbours, and in consequence of the increase of the value of the produce, these rates are themselves too low, the zemindar may be entitled to the benefit of both grounds of enhancement in the same suit. 5. The cost of cultivation, in the absence of evidence to the contrary, may be taken roughly to have Increased in a ratio proportionate to that of the increased price of produce. But in exceptional cases it may be found that the particular crop for which the land is specially fitted, as cotton, or crops on land in the vicinity of a town, has greatly increased in value without any general equivalent rise in the price of labor, or the cost of food. In such cases, if the zemindar is not in a position to make out a case under the first clause, the increased profit may be divided between the zemindar and the tenant, as may appear reasonable under the special circumstances of the case ; and in like manner any extraordinary increase in the cost of production may be proved by the ryot in answer to the claim for enhancement on the ground of enhanced price of produce. 6. If the productive powers have increased from other causes, as in the case of lands protected from flooding by the embankments of the railway, without increase of outlay or labor by the tenant, the whole of such increase belongs to the zemindar, subject to any increased expenses which may be caused to the tenant by the collection or realization of the larger profit. Per Peacock, C. J. (dissenting), — The rule of proportion is not applicable. The rule laid down in Ishore Ghose v. James Hills (^V) should be followed — The definition of rent by Malthus in his Principles of Political Economy is the guide. Eent is " that portion of the value of the whole produce which remains to the owner of the '* land after all the outgoings belonging to its cultivation of whatever kind have been paid, "including the profits of the capital employed, estimated according to the usual and »' ordinary rate of agricultural capital at the time being." In considering whether the whole of the increased value of the produce is to be added to the rent, the Court must be guided by all the circumstances of the case. He may take the old rent as a fair and equitable rent, with reference to the former value of the produce. He must take into consideration the circumstances under which the value of the produce has increased, and whether these circumstances are likely to continue. He must also consider whether the costs of production, including fair and reasonable wages for labor, and the ordinary rate of profits derived from agriculture in the neighbourhood, have increased; and if so, he must make a fair allowance on that account. It is only the net increase, or such part of the net increase, as will render the rent fair and equitable that can be added to it. By the whole Cowrt. — A holding for twelve years, whether wholly before, or wholly after, or partly before and partly after, the passing of the Act, entitles a ryot to a right of occupancy under Act X of 18.59, section 6. By the majority of the Court (Peacock, C. J., and Norman and Pundit, JJ., contra). — a laud-owner can sue for a kabuliat, at an enhanced rent, without having first given notice of enhancement under section 13 of Act X of 1859 (2). By the majority of the Cowrt. — ^A land-owner can sue for a kabuliat, at an enhanced rent, without having first tendered a potta. Per Peacock, C. J. — He can sue if notice of enhancement has been given. Per NoBMAS, J. — A suit for a kabuliat is not maintainable, except in cases provided for by section 9, Act X of 18.59 (2). This suit was brought in the Court of the Deputy Collector of the 24-Perguuiias, for a kabuliat for three years, at an annual jumraaof rupees 95-7-8, at an enhanced rate of rupees 4 per biga of land in the (1) 1 Marsh., 151; W. R., 48, 131 ; on review, 148. Special Vol., (2) See Akhoy Sankar Chucicerhutty v. Raja Indra Bhusun Deb Soy, i B. L. R. (F. B.), 68. FULL BENCH RULINGS. 205 defendant's possession. The plaintiff was auction-purchaser of the 1SG5 talook in which the land in question lay, and he alleged in his plaint Thakooranee that the defendant paid rent for the land at a variable rate; that the pro- v. ductive powers of the land, and the value thereof had, without any mookerjee. exertion or agency of the plaintiff (1), increased at the time of filing the plaint ; and that the rate of rent claimed was the same as that upon the lands adjacent to the lands in dispute. The defendant denied these allegations. The Court of first instance gave the plaintiff a decree for a kabuliat, at the rate of rupees 4 per biga. The defendant then appealed to the Judge, who gave judgment as follows : — " The plaintiff sues to obtain a kabuliat at enhanced rates. The " defendant alleges a fixed rent from the time of the Permanent Settle- " ment. The lower Court finds, on the admissions of the defendant in " another suit, that she pays to the 9-anna shareholder a different rate " than she admits now ; and, consequently, holds that the rent of the " tenure has varied as regards one portion, and, therefore, as regards the " whole, gives a decree at the rate of rupees 4 per biga, which appears " to it equitable on the evidence. " The defendant appeals both as to the alleged fixed tenure and also " as to the rate. But it seems there is no proof on the record of a fixed " rent having been paid for twenty years to the plaintiff, and therefore " this ground of appeal is relinquished ****** " The judgment must be confirmed at the rate of rupees 4 per biga of " 80 haths. If the defendant desire it, in the execution of this decree, " the land in her occupancy will be measured, and the rent calculated " accordingly. " The appeal is dismissed with costs." The defendant then appealed specially to the High Court on the grounds — 1. That the lower Appellate Court was in error in saying that there was no evidence to make out the defendant's right to the presumption of fixity of rent. 2. That there is no proper finding of the lower Appellate Court on the question of increased value. 3. That the decision of the Court of first instance, confirmed by the lower Appellate Court, in respect to the rate of increase to be paid by the ryot, is based on no principle whatever. The appeal was heard by Campbell and E. Jackson, JJ., who dismissed it so far as it depended on the first of the above grounds, but (1) Sic in translation of plaint filed in the High Court with the papers in this case. 206 FULL BENCH EULINGS. 1865 they upheld the second ground of objection, and decided that the case must Thakooeanee be remanded ; and in consequence of the conflicting decisions of the „. High Court in Hills v. Ishore Ghose (1) and Hurromohon Mooherjee MooKEKjEE. '*'• Thakoor Doss Mundul (2) as to the principle to be followed in assessing the rent to be paid by the ryot in cases of this kind, they referred the followng questions for the decision of the Full Court: — L When there has been an increase in the value of the produce, and the zemindar is entitled to a new kabuliat from an occupancy ryot 'for an enhanced rent, at fair and equitable rates, is the fair and equitable rate to be awarded the rate which might be obtained by commercial com- petition in the market, or is it a rate to be determined by the custom of the neighbourhood in regard to the same class of ryots ? 2. If the customary rate of the neighbourhood has not been adjusted with reference to the increased value of produce, then on -what principle is the enhancement of that customary rate to be adjusted ? Baboo Dwarkanath Mitter, Mr. R. E. Twidale, and Baboos Mahendra Lai Shome, Iswar Chandra Chuckerbutty, Annada Prasad Banerjee, Makes Chandra Chowdhry, Bani Madhab Banerjee, and Batna Charan Banerjee, for the appellant. Mr. Doyne (with him Baboos Krishna Kishor Ghose, Hem Chan- dra Banerjee, and Chandra Madhab Ghose) for the respondents. Mr. Woodroffe, who had argued for the zemindar in Ishore Ghose's case, was requested by the Court to argue on the same side as Mr. Doyne. The following Eegulations, Acts, and Authorities were referred to in the course of the argument : — Eegulations I and II of 1793. [56, and 66. „ VIII of 1793, section 6, clause 2 ; sections 51, 55, XIX of 1793. „ XLIV of 1793, section 5. IV of 1794. „ L & LI of 1795, section 10. „ VII of 1799, section 29. „ LVII of 1803. „• Vof 1812, sections 6, 7. „ IV of 1805, section 7. „ V of 1816. VII of 1819. „ XI of 1822, section 32. (IJ 1 Marsh., 151; "W. K,, Special Vol., (2) 1 W. R., 112. 48, 131 ; on review, 148, FULL BENCH RULINGS. 207 Act XII of 1841, sections 27, 28. 1865 ., I of 1845, section 26. Thakooranee „ X of 1859, sections 3, 4, 5, 6, 13, 17. °°'™'' Harington's Analysis, Vol. 11, pp. 1 83, 1 89 , Mook^^ee. Vol. Ill, pp. 228, 231, 233, 235, 369, 423, 436,-460, and 481. Minute of Lord Cornwallis, 3rd February 1790. Despatch of Court of Directors, 19th September 1792. Fifth Report, 1812, pp. 16, 19, 20, 60, 206, 478, and para. 370. Joynarain Base v. Madhub Chunder Sircar (1), Degumher Mitter V. Ramsoonder Mitter (2), Sreeram Chatterjee v. Lakhun Magilla (3\ Jadub Chunder Haldar v. Ishree Lushkur (4), Noor Mahomed Mundul V. Hurriprosonno Roy (5), Hurromohun Mooherjee v. Thakoor Doss Mundul (6), Shibnarain Ghose v. Kashee Pershad Mooherjee (7), Ishore Ghose v. James Hills and James Hills v. Ishore Ghose (8), and Ranee Surnomoye v. Maharajah Suttees Chunder Roy (9). Teevor, J. (after stating the questions, and how they arose, conti^ nued) : — Before proceeding to answer these questions, it will be well to notice certain objections which have been taken to the form of the pre- sent action. An action for enhancement of rent, it has been contended, can only be maintained after a notice has been formally served on the tenant in accordance with the provisions of section 13 of Act X of 1859 ; that a suit for a kabuliat, at an enhanced rate prospectively, is not maintainable at all, or, if maintainable, can only be decreed for one year ; that under the law the tenant is entitled to know the terms on which he is to be permitted to occupy, before he is dragged into Court, where- as by the admission of a suit like the present the tenant is harassed with law proceedings and law costs, when he has never given the plain- tiff any cause of action, and possibly never intends to occupy the lands at all. These objections, I think, are not well-founded. The ordinary and most proper mode of proceeding to • be adopted by a zemindar or other person wishing to enhance the rent of his tenant is, doubtless, by a notice under section 1 3 in the first instance, and then by a suit for the recovery (1) S. D. A., 1855, p. 357. (6) 1 W. R., 112. (2) Id., 1856, p. 617. (7) Id., 226. (3) 1 Marsh., 379. (8) 1 Marsh., 151 ; W. K., Special Vol., 48, (4) W. E.(1864),Gap.VoI.,ActXKul.,74. 131; on review, 148. (5) Id., 75. (9) 10 Moore's I. A., 123. 208 FULL BENCH RULINGS. 1865 of that rent, to be brought within the term specified in the proviso at Thakooranee the end of section 32 of Act X of 1859 ; but it appears to me that it DOSSEE . . . y. V. IS also competent to a zemindar or other person to bring an action for a MooKEEjEE. kabuliat, and in that form to raise the question as to the particular enhanced rate at which the potta and kabuliat shall be exchanged between the parties. Suits for the delivery of pottas or kabuliats are both expressly recogniized in section 23, and also in sections 80 and 81 of Act X of 1859. It is true that section 76 only gives the Collector power to fix the term in suits for the delivery of a potta ; but regarding, as I do, the suit for a kabuliat as the correlative of the suit for a potta, I think that by implication this section ap- plies equally to both classes of suits, and this without any detriment to the ryot who, under section 19, can, after notice given at any time, relinquish the land held by him. As to the argument drawn from the supposed hardship to the tenant arising from his being brought into Court unnecessarily, and without having given plaintiff any cause of action, I would observe that, if the present action were one founded on an injury already actually committed, and were brought without any notice or demand, there would be no ground for the contention now raised; and regarding this action simply as a declaratory one brought, that is, for the Court's determination as to the amount of enhanced rent to be paid from the beginning of the year subsequent to the passing of the decree, I think that the suit itself is in the nature of a demand, and that the answer of the defendants objecting to the claim made, is equiva- lent to a repudiation of that demand, rendering him liable, in case his contention fails, to be saddled with the costs of the action, which, of course, he would not have been, had he admitted the right claimed by the plaintiff prospectively. Whether, in suits like the present, grounds for enhancement beyond those stated in section 1 7 are admissible, is a point not legitimately raised before the Court, the ground for enhancement, on which the pre- sent suit is based, being one of those expressly mentioned in that section of the law. I, therefore, decline to enter into a consideration of this point in the present reference. In determining the question proposed to the Court, it will be neces- sary, in the course of my remarks, to consider briefly the relative right of the Government, zemindars, and ryots in Bengal, before the enact- ment of Act X of 1859 ; 2ndly, the effect, if any, which Act X had on the previous relation of zemindars and ryots ; and, Srdli/, the principle which, under the circumstances set forth in the question put FULL BENCH RULINGS. 209 to the Coui't and under their present relation, should be adopted in the 1865 adjustment of their rents. Thakooeaneb It might be sufficient, when considering the first point above noted, ». to limit myself to the relative rights of Government, zemindars, and moc»mjee. ryots with a right of occupancy, as gathered from the Regulations of Grovernment passed in 1793 and subsequent years. As, however, the learned counsel and pleaders have turned the Court's attention to the state of things existing before the Decennial Settlement, I propose to make a few remarks on that period. The earliest authentic records seem to point to a state of things in which the gross produce of the soil was, in some places, of right shared between the king, the village landholders, and the permanent or khud-kasht tenants who cultivated the lands of the village in which they resided, retaining them during their lives, and transmitting them to their descendants ; and in others, in which there were no village land- holders, between the king and the aforesaid tenants. At the time of Menu, the proportion legally claimed by the king was one-sixth, and so long as the demand of the State was fixed, the profits of the village communities and permanent tenants remained unchanged ; but when the State, as was afterwards the case, raised its demand on the produce, the profits of the other sharers in the produce diminished in an equal proportion. In the state of things described above, property, says an able historian of India (1), in the English sense of the term, — that is, the exclusive use and absolute disposal of the powers of the soil in perpetuity was in no one person ; each party was equally entitled by right to a share of the produce, and the practical question, under such circumstances, is not in whom property resides, but what proportion of the produce is due to or claimable by each party. Coming to later times, we meet with the class of persons, the pre- decessors and ancestors of the zemindars of the Perpetual Settlement, who seem not to have had any existence before the time of the Maho- medan conquest. The sovereign and the permanent or khud-kasht tenants are always present ; and in parts of the country other than Bengal, the village landholders, who all, in different proportions, receive their shares of the produce. It would be out of place to enter into an antiquarian discussion as to the rights of the zemindars, whether they were public servants filling a conditional office generally renewable and revocable on defalcation, but conveying no right of property in the (1) Mountstuart Elphinstone, Vol. I, Chap. 2. C C 210 l-'ULL liENCH RDLISGS. 1865 grantee, the sovereign ruler being the sole proprietor of the soil, in' Thakooranee right and fact the real actual landlord ; or whether, even if they did p. not originally possess, they did not acquire in course of time a property MooKEKjEE ™ *^® ®°^^' ^^^ *^® right annexed thereto of disposing of it by sale, gift, and mortgage, subject, however, under any mode of alienation, to the sovereign's claims for revenue. It will be sufficient to cite liere, and to accept as sufficiently accurate for present purposes, the definition of a zemindar given by Mr. Harington (1). "A zemindar," says that gentleman, " appears to be, under the Mogul constitution " and practice, a landliolder of a peculiar description not definable by " any term in our language ; a receiver of the territorial revenue of the " State from the ryots and other under-tenants of the land, allowed to " succeed to his zemindari by inheritance, yet generally required to take " out a renewal of his title from the sovereign or his representative, on " the payment of a fine of investiture to the Emperor, and a nazarana " or present to his provincial delegate the Nazim ; permitted to transfer " his zemindari by sale or gift, yet commonly expected to obtain previous " special permission ; privileged to be generally the annual contractor for " the public revenue received for his zemindari, yet set aside with a " limited provision inland or money when it was the pleasure of Govern- " ment to collect the rents by separate agency, or to assign them tem- " porarily or permanently by the grant of a jaghir or altamga ; author- " ized in Bengal since the early part of the eighteenth century to appor- " tion to the pergunnas, villages, and lesser divisions of land within his " zemindari, the abwab or cesses imposed by the subadar, usually in " some proportion to the standard assessment of the zemindari establish- " ed by Toran Mull and others, yet subject to the discretionary inter- " ference of public authority, either to equalize the amount assessed on "particular divisions, or to abolish what appeared oppressive to the ryot ; " entitled to any contingent emoluments proceeding from his contract " during the period of his agreement, yet bound by the terms of his •' tenui-e to deliver in a faithful account of his receipts." The settlement of Toran Mull, alluded to in this extract, was, accord- ing to Sir John Shore, formed by collecting, through the medium of the canungoes and other inferior officers, the accounts of the rents paid by the ryot, which served as the basis of it. It was made about 1582, and remained essentially in force for very many years. Under it, in accordance with the principle of Mogul finance, the gross produce of land was divided in certain proportions between the sovereign and (1) Vol. Ill, p. 400 FULL BENCH RULINGS. 2 1 1 the husbandmen ; the share of the former being from one-half to one- 1865 eighth of the gross produce, according to circumstances, and the zemin- Thakooraneb dars, with whom the settlement generally was made, receiving in Bengal °^f^^ a portion of the land or its produce for their use and subsistence under mookewee. the name of nankar, which did not in the aggregate exceed one per cent, of the revenues collected by them. The rate of rent, or revenue, to be paid by each ryot under the settlement of Toran Mull, and which represents a portion of the gross produce converted into money, was, in after time, designated the assal, or original rate, to distinguish it from those taxes or cesses which were subsequently imposed, and which, though not, speaking generally, directly raised from the land, yet immediately or mediately pressed upon its cultivators. The origin of these cesses is not quite clear. Whether they were originally devised by Government as a means of raising the revenue of the State, or whether, having been, in the first instance, devised by the zemindars as an unauthorized means of increasing their emoluments, they, on being discovered, gave the Government officers a hint as to a mode in which the demands of the State could be eflFectually raised, it is not very material now to enquire. It is quite clear that, however origin- ating, from the time of Jafflr Khan, that is, since the reign of Aurang- zebe, at the beginning of the eighteenth centuiy, they became an acknowledged subadari impost. They were in general levied upon the standard assessment in certain proportions to its amount ; and the zemindars who paid them were authorized to collect them from their ryots in the same proportion to the rents paid by them. When the value of the produce of the land remained the same as it had been pre- viously, their imposition operated as an arbitrary enhancement of rent, which would not have been the case, had the increase in the demand always arisen from an increase in the value of the Government share of the produce when measured in money. An increase of this nature, to a certain extent, must have taken place, according to the best authorities, between the time of Toran Mull and that of Jaffir Khan, from the extension of commerce and the influx of silver into tho country ; and it is not improbable that it may have had the effect of making these impositions less severely felt by the tenantry than they otherwise would have been. But, be that as it may, it remains, as observed by Mr. Mill, a fact "that, though the demands of the great " landholder — the State — were swelled by fiscal rapacity, it was thought " necessary to have a distinct name and a separate pretext for each " increase of exaction, so that the demand has sometimes come to consist 212 FULL BENCH KULING8. 1865 " of thirty or forty different items in addition to the nominal rent. This Thakooeanee " circuitous mode of increasing the payments assuredly would not," DossEE pjQgeeds Mr. Mill, " have been resorted to, if there had been an acknow- MooKE^^EE. " ledged right in the landlord to increase the rent. Its adoption is a " proof that there was once an effective limitation, or real customary « rent, and that the understood right of the ryot to the land, so long as " he paid rent according to custom, was at some time or other more than " nominal." It is useless to attempt to trace right principles during the last years of Mahomedan rule in Bengal. The only principle of action traceable throughout is a detei-mination on the part of the ruling power to exact, by means of arbitrary imposts, as much rent as possible from the zemin- dars or farmers of revenue as might be. " The mode of imposition," as remarked by Sir John Shore, " was fundamentally ruinous both to the ryots and zemindars ; and its direct tendency was to force the latter into extortion, and all into fraud, concealment, and distress " ( 1 ). It does not appear that after the acquisition of the Dewanny by the East India Company, any marked improvement, in the method of apportion- ing the share of the produce of the land between the parties entitled to it, was made. The settlement, sometimes quinquennial, but generally annual, was made sometimes with the zemindar, who, according to the preamble of Regulation II of 1793, after the deduction of the expenses of collection, paid over ten-elevenths of the net rents of his property as revenue to Grovernment, retaining the remaining one-eleventh as his zemindari profits, — and sometimes with strangers, who at auction bid over the head of the zemindar himself. In this case the zemindar re- ceived the profits of his nankar land, or some particular sum payable either by the farmer or from the public treasury ; and the fanner, in order to enable him to meet his engagements with Government, frequently made without sufiicient regard to the assets of the property which he had obtained in farm, resorted to every sort of exaction over his tem- porary tenants. This state of things was rendered worse by the inge- nuity of the native collectors of Government, " who,'' to use the words of Government, "in 1786, had endeavoured to confound the limits of different districts, to vitiate accounts, to increase old abwabs, and to superadd new ones, and, in short, to involve oppression in such mystery and difficulty as nearly to defeat and set at defiance all attempt at detec- tion." (1) Sir John Shore's Minute of June 1789, p. 44. FULL BENCH RULINGS. 213 It was iu the midst of this state of things that the Decennial Settle- 1865 ment was determined on, which afterwards became perpetual. Its object Thakooranee was to fix the Government demand, to fix the demand which the zemin- "^^"^"^ dar should make on his tenants, and to guarantee to the zemindar the ^'sheshob profits arising from his bringing waste lands into cultivation, and induc- ing the ryots to cultivate the more valuable articles of produce. " The rents of an estate can only be raised," remarks Lord Cornwallis, " by inducing the ryots to cultivate the more valuable articles of produce, and to clear the extensive tracts of waste land which are to be found in almost every zemindari in Bengal'" (1). By this Settlement the de- mand of the State was fixed for ever, thus at once remedying, perhaps too decisively and adversely to itself, the evil which had become chronic in Bengal, arising from the uncertainty in the share of the produce which the Government might claim as its own. The Government, moreover, has asserted, in the preamble of the Regulations XIX and XLIV of 1793, its right to a share of the produce of every biga in Bengal, assessed and unassessed, unless held lakhiraj under a valid grant; or, in other words, unless Government has transferred its right to such share to individuals for a term or in perpetuity ; and it has limited its demand in perpetuity over all assessed estates to the sum that, under the Settle- ment, was assessed upon them, leaving the zemindar to appropriate to his own use the difference between the value of the proportion of the annual produce of every biga of land which formed the unalterable due of Government according to the ancient and established usage of the countiy, and the sum payable to the public. It has declared, moreover, that the zemindars, whatever they may have been originally, and however liable heretofore to be displaced from their estates with the bare pittance of nankar or other small allowance, are the actual proprietors of the soil ; and that, as an implied consequence, they will not be liable to be ejected from their estates, but that, on failure to pay the revenue assessed upon them, their estates or portions of them, sufficient to meet the Government demand, will be brought to sale. Government, moreover, expressed a trust that, sensible of the benefit thus conferred on them, the zemindars would exert themselves in the cultivation of their lands (a considerable portion of which was then under jungle), under the certainty that they would enjoy exclusively (that is, without the interference of Government) the fruits of their own gpod management and industry ; and Government reserved to itself (1) Lord Cornwallis' Minute, dated the 3rd February 1790, Vol. II, p. 185, Haringtou's Analysis. 2U FULL BENCH RULINGS. 1865 the power, acting under tlie duty which belongs to it as ruling power, of Thakooranee protecting all classes of people, and more particularly those who from ^ ' *' their situation are most helpless, of enacting, whenever it might deem it MooKKiwEE P'"°P®''» ^"'^h Regulations as it might think necessary for the protection and welfare of the dependant talookdars, ryots, and other cultivators of the soil ; and it declared ( I ) that no zemindars, independent talookdars, or other actual proprietors of land, shall be entitled on this account to make any objection to the discharge of the fixed assessment which they have respectively agreed to pay. These words clearly show that, though recognized as actual proprie- tors of the soil, — that is, owners of their estates, — still zemindars and others entitled to a settlement were not recognized as being possessed of an absolute estate in their several zemindaris ; that there _ are other parties below them with rights and interests in the land, requiring pro- tection just in the same way as the Government above them was declared , to have a right and interest in it which it took care to protect by law ; that the zemindar enjoys his estate subject to, and limited by, those rights and interests ; and that the notion of an absolute estate in land is as alien from the Regulation law as it is from the old Hindu and Maho- medan law of the country. What, then, are those rights and interests recognized by law belonging to the ryots — for with them we are alone concerned — which limit and control the right of the zemindar in his own estate ? At the time of the Decennial Settlement, the ryots were, in Bengal, as in other parts of India, divided into khud-kasht or resident, and py-kasht or non-resi- dent. It has indeed been contended before us that time is of the essence of a hhud-kasht tenure ; that a ryot simply residing in a village in which his land is, is not a khud-kasht ryot ; and that, in order to con- stitute a khud-kasht ryot under the Regulations, he must be a resident hereditary ryot ; and that if he has not succeeded by right of heirship, he does not fall within that class of tenants. But it appears to me that, whether we look to the etymology of the word or to the thing itself, there is no reasonable ground for question. Khud-kasht ryots are simply cultivators of the lands of their own village, who, after being once admitted into the village, have a right of occupancy so long as they pay the customary rents, and therefore with a tendency to become here- ditary, and with an interest in the produce of the soil over and above the mere wages of labor and the profits of stock; in other words, above the cost of production. (1) Regulation I, 1793. FULL BENCH IIULINGS. 215 These tenants seem, at the Settlement, practically and legally, though 1865 not by express Statute, to have been divided into two classes, the khud- Thakookanek kasht kadimi, and the simple khud-kaskt, or those who had been in v. possession of the land for more than twelve years before the Settlement, and mookewee. those whose possession did not run back so long. Both by the Hindu and Mahomedan law, as well as by the legal practice (1) of the country, twelve 3'ears had been considered sufficient to establish a right by negative prescription, — that is, by the absence of any claim on the part of other persons during that period, — and hence the doctrine which has obtained that khud-kasht ryots in possession twelve years before the Settlement, were, under no circumstances, not even on a sale for arrears of revenue, liable either to enhancement of rent, or eviction from their holding, so long as they paid the rents which they had ^11 along paid. The existing leases of khud-kasht ryots at the time of the Settlement, who bad no prescriptive rights, were, with certain exceptions specified in section 60 of Regulation VIII of 1793, to remain in force until the period of their expiry ; and those ryots were entitled to renewal of their leases at pergunna rates (2) ; and on a sale for arrears of revenue such ryots were entitled to a new settlement at the pergunnab rates, and could be evicted only after declining to enter into engagement with the pur- chaser at the same rates (3). It may here be observed that written en- gagements between the tenants and other parties were not the custom of the country. The entry of the tenants' names, and of the rents, in the papers of the village accountants, was the only evidence of title which the great majority of the tenants in the country then held. The Regu- lations of 1793 attempted, but ineffectually, to introduce generally the system of the exchange of written engagements between the zemin- dars and their tenants. Khud-kaskt ryots, whose tenancy commenced subsequently to the Decennial Settlement, are entitled to hold on at the rate which they have either expressly or impliedly contracted to pay during the incumbency of the zemindar who granted the potta, and of his representatives, whatever that rate may be (4) ; and on a sale for arrears of revenue, they also are entitled to a renewal of their leases by a purchaser at the pergunna rate. Should the rate in the engagement cancelled by the sale have been below that figure, they can only be evicted on refusing (1) Colebrooke's Digest of the Kegala- (4) Section 5, Eegulation XLIV of 1793 ; tions, Vol. Ill, page 4. Section 7, Regulation IV of 1794 Clause (2) Section 7, Regulation IV of 1794. B, Section 29, Regulation VII of 1799. (3) Section 5, Regulation XLIV of 1793; Clause 5, Section 29, Regulation VII of 1799. 216 PULL BENCH RULINGS. 1865 to renew at the pergunna rates. Moreover, it was enacted generally Thakooranee by section 6 of Regulation IV of 1794, that if a dispute arises between DOSSEE V. the ryots and the persons from whom they may be entitled to demand MooKEEjEE, pottas regarding the rates of the pottas, it should be determined in the Dewanny Adawlut of the Zilla in which the lands were situated according to the rates established in the pergunna for lands of the same description and quality as those respecting which the dispute arose. The Legislature, as just now observed, was, in 1793, anxious to encou- rage the exchange of pottas and kabuliats between the zemindars and their tenants; but so fearful was it, lest, from weakness or improvidence, the zemindars just recognised as actual proprietors should injure their own properties, and also endanger the stability of the Government revenue by granting long leases at insufS.cient rents, that it restricted the period for which leases could be granted to ten years, renewable in the last year for another period of ten years (1). This law remained in force till 1812, when, by Eegulation V of that year, section 2, the above restriction was taken off, and zemindars were declared competent to grant leases for any period which they might deem most convenient to themselves and tenants, and most convenient to the improvement of their estates. Moreover, by Eegulation XVIII of the same year, it was explained, in consequence of certain doubts which had arisen on the construction of section 2 of Regulation V of 1812, that the true intent of the said section was to declare proprietors of land competent to grant leases for any period, even to perpetuity, and at any rent which they might deem conducive to their interests. This law did not, however, expi-essly, or by implication, override the rights of khud-kasht ryots to hold at pergunna rates. It simply de- clared that, having regard to the rights of others, the zemindar might grant leases for any period or any rent, be it high or be it low, provided the tenants were willing to pay it, and he to take it. Again, by section 2 of Regulation VIII of 1819, it was declared that all leases and engage- ments for the fixing of the rent now in existence, that may have been gi-anted or concluded for a terra of years or in perpetuity, by a proprie- tor under engagement with Government, or other persons competent to grant the same, shall be deemed good and valid tenure, notwithstanding that the same may have been executed before the passing of Regulation V of 1812, and while the rule of section 2 of Regulation XLIV of 1793 above alluded to, was in full force and effect. (1) Section 2, Kegulation XLIV of 1793. PULL BENCH RULINGS. 217 Thus, then, the khud-kasht ryots, though they were entitled to i865 pottas at the pergunna rates by the laws of 1793 and following years, Thakooranee and though, under section 6 of Regulation IV of 1794, the Courts were, „. jn case of disputes, to determine the rate of the potta according to mookebjee. those rates, still, under the operation of the laws above cited, ryots might, if they pleased, bind themselves by specific engagements irrespective of those rates ; and, of course, having done so voluntarily, they would be held strictly to the terms of their engagement. As I have observed above, it had become the practice of the Government for the time being, to collect various imposts from the zemindar, who again was entitled to collect them from the ryots ; and from their number and uncertainty, they had been intricate to adjust, and a source of oppression to the tenants. These also were entered in the papers on whicli the Decennial Settlements were based, and consequently had been legalized and recognized by it. By section 54 of Regulation VIII of 1793, all proprietors of land and dependant talookdars were required to consolidate these charges with the assal, or original rate, into one specific sum. And by section 55 of the same law, proprietors and farmers of lands, of whatever description, were prohibited imposing any new abwab or mathot on the ryots, and a penalty was enacted in case of any infringemeut of the prohibition. When then the term * pergunna rate ' occurs in the Regulations of 1793, 1794, and 1799, in connection with khud-kasht ryots, the ques- tion arises, is it confined to the particular portion of the produce of land to which, by the custom of that pergunna, the demand of the zemin- dar is limited, or does it include also the abwab recognized by Regula- tion VIII of 1793 which has become consolidated with it ? The Court has been told indeed, that the pergunna rate never meant anything ; that it was a mere myth ; but that, if it did mean anything, it was only another term for the zemindar's discretion or moderation ; and that, even if those rates existed in 1793, they had become well nigh obsolete in 1812 ; for although, by section 6 of that law, it is enacted that estab- lished pergunna rates, where such existed, shall determine the amount to be collected by Government ofiicers and purchasers at sales for arrears of revenue, still by section 7 it is enacted that, in cases in which no established rates of the pergunna or local division of the country may be known, pottas shall be granted and the collections made according to the rate payable for land of a similar description in the places adjacent. I cannot assent to the doctrine that the Legislature in 1793 and the following years used terms without meaning, and directed the Court to settle disputes according to a I'ate which then had no exist- D D 218 FULL BENCH RULINGS. 1865 dice. I must rather conclude that the terms which the Legislature Thakooeanek used to denote the rate which was to form the limit of the zemindar's », demand, represented something real and distinct at that period ; and MooKWKE. although, in the shape of a pergunna rate, the limit on the zemindar's demand had become, by 1812, in some places, indistinct, still the limit existed in the shape of the rate which was payable for lands of a similar description in the places adjacent — a rate which is in fact the same thing with the pergunna rate, under a different form — the customary rent deduced from the similar rate paid in places adjacent rather than from a rate current in the pergunna. Eeverting then to the question, what the words ' pergunna rate,' as used in the old laws, meant, I have no hesitation in holding that it must be considered to mean the assal, or original rate, the rate of Toran Mull, together with the ahwab which had been subsequently levied from the tenants and recognized by the Settlement. It is true that these two quantities joined together did not probably exactly represent that share of the produce calculated in money which, under a pure system of customary rents, would have been developed ; but judging from the increased wealth of the country, which had, from commerce and the influx of precious metals, resulted between the time of Toran Mull and the Decennial Settlement, the assessment which had been increased in one form did not probably differ widely from what it would have been had the other and natural mode of calculating the increase been adopted. Since the Decennial Settlement, however, the rates of rent have adjusted themselves to the varying prices of the produce irrespective of any extraneous demand ; and the terms used in Regulation V of 1812 have regard to the varying rates in the different localities which have resulted solely under the increased activity and industry caused by the compa- rative security obtained under the Permanent Settlement. To suppose that a pergunna or local rate of rent could be perma- nently fixed in amount when the circumstances of the country were improviug, is to suppose an impossible state of things. The propor- tion of the produce calculated in money payable to the zemindar, repre- sented by the pergunna or local rate, remains the same ; but it will be represented, under the circumstances supposed, by an increased quantity of the precious metals. The rates of rent, then, which khud-kasht ryots under the old Regu- lations were liable to pay, independent of contract, remained in all cases, whether under a purchase at a sale for arrears of revenue, or otherwise, fixed either at the pergunna rate, the rate payable by land of a FULL BENCH RULINGS. 219 similar description in the places adjacent, or at rates fixed according to 1865 the law and usage of the country ; and they were entitled to hold their Thakookanee lands so long as they paid those rates. But when Regulation XI of ^"^^^"^ 1822 was passed, the use in section 32 of that law of the terms khud- Iooke^ee. khast kadimi ryot, or resident and hei-editary ryot with a prescriptive right of occupancy, to designate the cultivsttor who would not be liable to eviction on a sale for arrears of revenue, gave rise to the doctrine, that khud-kasht ryots who had their origin subsequent to the Settlement were liable to eviction, though, if not evicted, they, under section 33, could only be called upon to pay rents determined according to the law and usage of the country ; and also, that the possession of all ryots whose title commenced subsequent to the Settlement was simply a per- missive one, that is, one retained with the consent of the landlord ( 1 ). Again, by Act XII of 1841, and Act I of 1845 (which repealed the former), a purchaser acquired his estate free of all encumbrances which had been imposed on it after the time of the Settlement; and he is entitled, after notice given under section 10 of Regulation V of 1812, to enhance at discretion, — anything in the Regulations to the contrary notwithstanding, — the rents of all under-tenures in the said estate, and to eject all under-tenants with certain exceptions, amongst which are khud-kasht kadimi, but not simple khud-kasht ryots. It follows that these laws distinctly gave the purchaser the power to eject a khud- kasht ryot whose tenure was created after the Permanent Settlement, and if not ejected, they are liable to be assessed at the discretion of the landlord. This word " discretion " entirely annihilated the rights of the khud-kasht tenants created subsequent to the Settlement in estates sold under these laws. It reduced them from tenants with rights of occupancy, so long as they paid the established rate of the pergunna, or the rate which similar lands paid in the places adjacent, into mere tenants at the will of the zemindar, who might in any year eject them, and place in their stead any tenant competiug for the land. It is, in short, introducing into this country competition in the place of customary rents. As topy-kasht ryots, they are nowhere expressly mentioned in the laws referring to Bengal. If they held under pottas at the time of the Settlement, they were entitled to hold them till the expiry of the lease under the comprehensive terms of clause 1, section 60, Regulation VIII of 1793, which included even them. In section 10, Regulation LI of 1795, which referred to Benares, they are expressly mentioned, and they (1) S. D. Decisions for 1856, pp. 617 to 628. 220 FULL BENCH RULINGS. 1865 are declared to be equally entitled with khud-kasht ryots to have their Thakooranee pottas renewed at the established rates, provided the proprietor or DossEE f^j.^jgj chooses to permit them to cultivate the land held by them, which Mooke^b"eI t^sy ^^^® *^® option to do, or not to do, as they think proper, on the expiry of all py-kasht leases. In Bengal, the rates of py-kasht ryots at the present date, though it seems to have been different formerly, are generally above the pergunna rates. They have always been considered to have no rights independent of the particular engagements under which they hold; and those being cancelled, they are liable to immediate eviction. Such was the stale of the law when Act X of 1859 was passed, under the power, it may be presumed, which the Governor-General in Council had reserved to himself in the 7th Article of the Proclamation inserted in Regulation I of 1793, of enacting, whenever he might deem it proper, such Regulations as he might think necessary for the protec- tion and welfare of the ryots and cultivators of the soil. They were, in the opinion of the Legislature, insufficiently protected ; hence the new law which re-enacted with modifications certain old laws rescinded by it, and which, moreover, as we shall see presently, interfered with the rights of the zemindars as laid down in the Legislation of the last thirty years. By the first section of this Act are rescinded all those Regulations which laid down the rights of khud-kasht or permanent resident ryots ; Regulations IV of 1794 and V of 1812, as to the rates at which they were entitled to pottas, were repealed, and such parts of section 26 of Act I of 1845 (by which law Act XII of 1841 was repealed) as related to the enhancement of rents and the ejectment of tenants by the pur- chasers of an estate sold for arrears of Government revenue, was modi- fied; and it was enacted by section 3 that ryots who hold lauds at fixed rates of rent which have not been changed from the time of the Perma- nent Settlement, are entitled to receive pottas at those rates; and by section 4 proof that the rent has not been chapged for twenty years, raises the presumption that the land has been held at that rent from the Per- manent Settlement. By section 5 it is enacted that ryots having right of occupancy, but not holding at fixed rates, as described in the two preceding sections, are entitled to receive pottas at fair and equitable rates ; and, in case of dispute, the rate previously paid by the ryot shall be deemed to be fair and equitable, unless the contrary be shown in a suit by either party under the provisions of this Act. Then follows section 6, by which it is enacted that " every ryot who has cultivated or FULL IlKNCri UULINGS 221 liiilil land for a period of twelve yours, Una a right of occupancy in tlio land t865 fio cultivated or hold by him, whether it be held under potta or not, so Thakoouanke long as ho pays tho rent payable on account of tlio samo ; but this rule "r"" does not apply to khamar, nij-jote, or seer land belonging to the proprietor MooKic'itjim. of tho estate or tenure, and let by him on lease for a term, or year by year, nor (as respects tho actual cultivator) to lands sub-let for a term, or year by year, by a ryot having a right of occupancy. The holding of the father or other person througli whom a ryot inherits shall be deemed to bo the holding of tho ryot within the meaning of this section." Sec- tion 7 declares that " nothing contained in the last preceding section shall bo hold to alfoct the tonus of any written cond-aot for tho cultiva- tion of land eulorod into between a landholder and a ryot, when it con- tains any ox:|M-oss stipulation contrary thereto ;" and section 8 declares that " ryots not having rights of occupancy are entitled to pottas only at such ratos as may be agreed ou between them and tho persons to whom tho rent is payable." All ryots, then, whether hhud-kasht or py-kasht, with the right of occupancy, are, under section 6 of this law, entitled to pottas at fair and o(|uitable rates ; ond the point which we have eventually to dotor- mine is the meaning to be given to the words " fair and equitable " undor tho circumstancos of the present case. Before, however, proceeding to tho delorniination of that point, a preliminary difficulty has to be settled. It has been urged before the Court that section 6, in whatever way it bo read, afl'oots tho vested rights which zemindars have, under oxistiug laws, in thoir lauds hold by ryots who may occupy it for twelve years; that whuroas those poraous had no right of occupancy at all previously, but wore mere tenants-at-will, the Legislature gives that right to them now after twolvo years' occupancy only; that, consoquoutly, the law should be read, not retrospectively, but prospectively, — 'that is, it should be read in such a manner as to give the zemindar an opportunity to avoid its, to him, disadvantageous enactments, and in such a woy as to infringe as little as possible on his vested rights ; and the case of Moon v. Dtir- den (I) has been cited to us as an authority. Undoubtedly, with refer- ence to past transactions and to such as are still pending, laws should be construed as prospective, not as retrospective, unless they are made expressly applicable to them; but iu tho present instance the Court has to deal, not with past transactions, but with the status or condition of persons; and the Court has only to determine whether tho Legislature (1) 2 ISxoh., 22, cited niid approved in JucLwn v. WoolUi/, 8 Kxcli,. 788, 222 FULL BENCH RULINGS. 1865 intended to, and did in furtherance of that intention, declare or enact Thakooranee that the status or condition of a ryot with right of occupancy should be „. ' held by or given to all ryots who might either at the passing of the Act MooKEWBE. ^^^^ occupied, or might at any time, partly before and partly after its enactment, occupy for twelve years ; or whether it simply enacts that twelve years' continuous occupancy subsequent to the passing of the Act should confer that condition on every ryot so holding. This point must be determined with reference to the terms of the law and the intent of the Legislature as gathered therefrom. After having attentively considered the point raised before the Court, and keeping in mind the magnitude of the innovation which by the interpretation adopted by me is wrought on the immediately previously existing law, I am clearly of opinion that the terras of the Act confer on every tenant, be he a khud-kashf or 'py-kasht ryot, in every estate in the country, who had held at the time of the passing of the Act, or might at any time, partly before and partly after the enactment of the law, occupy for twelve years, a right of occupancy, whether he had that right before or not. The inexact terms of the law might, if considered alone, leave a doubt on the subject. But when the terms of the section are considered in connection with the repeal of the old laws regarding the rights of khud-kasht ryots, except as to proceedings commenced before the Act came into force — with the modification of Act I of 1845, so far as relates to the enhancement of rent and the ejectment of tenants by an auction-purchaser, a modification which, as the old laws are repeal- ed, would have nothing upon which to act, did the law not intend to affect the status of parties from the date on which it was passed and to be in force accordingly — and with the contemporaneous enactment of a new Sale Law, Act XI of 1859, attended with tiie total repeal of Act I of 1845, in which there is a section (37) with a proviso, which becomes intelligible only on the supposition that section 6 is current law, — I cannot entertain a doubt that it was the intention of the Legislature, as gathered from the terms of the law, with which alone sitting as a Judge I have to do, that the law in question should affect the status of all ryots falling within its terms on and from the date of the passing of the Act. This being my opinion, and the points referred to the Court not having fallen through, as they would have done had the Court at large thought differently, I have now to consider the meaning of the terras " fair and equitable," under the circumstances of the present case, when applied to ryots with a riglit of occupancy. FULL BENCH RULINGS. 223 It has been urged by the learned counsel, Mr. Doyne, that there are 1865 three classes of tenants : khud-kasht ryots holding at an invariable rate Thakooranke from before the settlement ; ryots holding from old dates, but subsequent °V^ to the Settlement ; and the creatures of Act X ; that the first class mookewkb. may be said to pay a rent regulated by custom ; that the second class might be able to show the same, though, as the zemindar might at any time put an end to their tenancy, it is difficult to see how they could show a rent regulated by custom ; but that to the third no custom could apply, for previous to the enactment of Act X, they were mere tenauts- at-wili ; that the legislature, by section 6 of Act X, has only given these ryots a right of occupancy, or, in other words, a preference or a refusal curtailing in no way the right of the zemindar as to the rate of rent which he might demand ; that the zemindar, being absolute owner, is entitled to a full rent, a rent proper under the system of competition, that is, the portion of the value of the whole produce which remains after the deduction of the ryot's costs of production, — in other words, to rent calculated on the principle of Ishore Ghose's case ; that the rates of rent by the system of proportion in the case of a rise in the price of the produce can only be adopted with any show of justice in a case in which it appears clearly that the rate existing up to the present time is based on a certain proportion of the ryots' produce ; that although it is alleged that the pergunna rates were so calculated, there is no proof of the fact ; that, even were the mode of calculation just, it would at present be impossible of application, for one could not find the value of the ryot's produce at the time of the last adjustment of the rent ; that the zemindars have hitherto always entered into engage- ments with their tenants on calculations based on the theory of rent laid down by political economists ; and that this right should be continued, and the principle laid down in Ishore Ghose's case (1) confirmed. It appears, as I have observed above, that, under the old Regulations of Government, all resident khud-kasht and permanent ryots had enjoyed a right of occupancy, and were entitled, unless they had waived their right by entering into a specific contract inconsistent with it, to enjoy the same so long as they paid their rent, either according to the pergunna rate, or to the rate which such lands paid in places adjacent, or the rate fixed by the law and usage of the country ; and their tenures could not, by clause 5, section 18 of Regulation VIII of 1819 (a section of law repealed by Act X of 1859, and re-enacted in a more complete form in section 78 of this Act), be cancelled, except after a summary (I) 1 Marsh., 151; W. R., Special Vol., U8, 131 ; on review, 184. 224 FULL BENCH RULINGS. 1865 suit obtained at the end of the year, and on failure on the part of the Thakooranke tenant to pay the amount immediately after the decree had been obtained. ^. The right of occupancy which the hhud-kasht permanent tenant for- MooKEEjEE ™6rly enjoyed has been granted by clause 6 to all tenants occupying their lands for the space of twelve years, whether under potta or other- wise; and they are entitled to receive pottas at fair and equitable rates. Now, I cannot agree with the learned counsel in thinking that the Legislature intended merely to give to those tenants a preferential right to hold, the land being then subject to be rack-rented by the zemindars. I agree with the Select Committee that sat on Act X of 1859, which remarked that the recognition of a right of occupancy in the ryot implies necessarily some limit to the discretion of the landholder in adjusting the rent of the person possessing such a right; and I think that the terms " fair and equitable" are used with reference to that limit ; or, in other words, to the right which tenants with a right of occupancy had under the old Regulations, and that therefore they are the equivalent of pergunna rates, rates which similar lands bear in places adjacent, or rates fixed by the law and usage of the country, and are to be explained and interpreted by those customary rates ; — in short, it appears to me that it was the intention of the Legislature to place the ryot whose rights were created by Act X in exactly the same position as all other tenants with a right of occupancy held under the old Regulations, — and this notwithstanding that recent Legislation had curtailed the rights which he enjoyed under those old laws. And here I would notice the error which seems to me to pervade the reasoning of the learned counsel, viz., that of considering that the principle of competition has ever in this country, to any appreciable extent, determined the mode in which the gross produce shall be divided between the zemindar and the ryot. " It is only," observes Mr. Mill, " through the principle of competi- tion that political economy has any pretension to the character of a science (1). So far as rents, profits, wages, prices are determined by competition, laws may be assigned for them. Assume competition to be the exclusive regulator, and principles of broad generality and scientific precision may be laid down according to which they will be regulated. But it would be a great misconception of the actual course of affairs to suppose that competition exercised, in fact, this unlimited sway. Com- petition, in fact, has only become in any degree the governing principle of contract at a comparatively modern period. The farther we look back into history, the more we see all transactions and engagements (1) Vol. II, page 292. FULL BENCH RULINGS. 225 under the influence of fixed custom. The reason is evident. Custom 1865 is the powerful protector of the weak against the strong, their sole pro- Thakooranee tector where there are no laws or Government adequate to the purpose, ». though the law of the strongest decides. It is not the intention, or, in MooKERra«. general, the practice of the strongest to sti'ain the law to the utmost ; and every relaxation of it has a tendency to become a custom, and every custom to become a right. Eights thus originating, and not competi- tion in any shape, determine in a rude state of society the share of the produce enjoyed by those who produce it. The relation, more especially between the landholder and the cultivator, and the payment made by the latter to the former, are in all states of society but the most modern, determined by the usage of the country. Never until late times has the condition of the occupancy of land been, as a general rule, an affair of competition. The occupier for the time has very commonly been considered to have a right to retain his holding whilst he fulfils the cus- tomary requirements, and has thus become in a certain sense a co-pro- prietor in the soil." Mr. Mill goes on to give India as an example of his remark, observing, at the same time, that " the customary rents have become obscure, and that usurpation, tyranny, and foreign conquest have, to a great degree, obliterated the evidence of them ;" — and he adds " that the British Government of India always simplifies the tenure of a ryot by consolidating the various assessments (that is, the real rent and the taxes subsequently imposed) into one, thus making the rent, nomi- nally as well as really, an arbitrary thing, or at least a matter of specific agreement ; but it scrupulously respects the right of the ryot to the land, though until the reform of the present generation (reform even now only partially carried into efiect) it seldom left him much more than a bare subsistence." These remarks seem to me admirably to describe the state of things which has existed in this country, to show that any reasoning drawn from facts peculiar to England must be fallacious, and also to confirm the view which I have taken of looking upon section 6, Act X of 1859 as a further reform, to adopt Mr. Mill's language, made by the present generation in the interest of the ryot, and a partial return to the old state of things, entitling ryots with right of occupancy acquired under the law by a twelve years' occupancy to obtain pottas at a rent fair and equitable according to the custom of the country and not according to the theory of English political economists, by whose analysis, when applied to this country, all that is not comprehended in the wages of his labor, and profit of the ryot's stock, must be the land- holder's rent. E E 22:6 FUtTL BEiSTCH RtJLiNgS. 1865 As, then, the terms " fair and equitahle" seem t6 nie to hav'fe relation Thakqpranee to the customary rate' of the country representing a share of the gross B. produce calculated in money under whatever form of expression it be Moo^KjEB. designated, aincl as" the law directs ^hat in case of disputes the rstte of rent which a ryot with' a right of occupancy has paid sTiall be consider- ed fair and equitable uniil tlie contrary be shown, if; is a fair presump- tion that the rent now paid represents the customary rent in th6 absence of any proof to the contrary. Uiider this presumption, theii, when the value of the produce has increased otherwis'e than by the agency or the expense of the ryot or the zemindar, and simply in consequence of the rise of^ prices, what is the principle on which the rents should te adjusted ? As the rent now paid represents the custoniary rent, it represents on the view which I have adopted, that proportion of the gross produce calculated in money to which the zemindar was entitled ; and as the increase in the produce has arisen from circumstances independent both of the zernihdar and the ryot, the zemindar is entitled to a rise in his rent proportionate to the increased value of his share of the produce. The formula, then, by which this increase should be determined seems to me to be the following. The value of the gross produce before the alleged alteration in the same is to the rent which the land then bore, as tlie aliered value of the produce is to tlie rent which should be assessed on it; or, in another forih, the old rent must bear to the new rent the same proportion as the formei* value t)f the produce of the soil bears to its present value. This method of calculation on the sup- position that the costs of production have risen in the same ratio, leave the parties as to each other in exactly the same relative position as they were. The value of the produce which each would receive, the one as rent, the other as ryot's profits, or as representing his beneficial interest, would remain in the same prd|)ortioii to each other, though the figures representing that proportion will be altered ; but even if the costs of production have not increased in the same ratio, that is a point which, under a systeni in which custom gives to a zemindar only a fixed por- tion bf the produce, is irnmatCTial, or rather one which will not entitle the zemindar by his own act to alter that custornary proportion. All the risk of seasons and markets is (as was observed by Baboo t)warka- nath Mitter) with the tenant. But this is not the main reason which entitles the tenant to retain the supposed advantage. It is the system itself which, having once fixed the proportion for which the ryot is liable to the zemindar, refuses to look at costs of production or matters ^f i,epi\l, ]beipg coutent with seeing tjiat ike paymen^ pf ^he jSx^ed gjfjare ig igp of the produce belonging to the zemindar, or that the altered value of Thakooranee that share in money, is ensured to him. Not so, however, under the -"fc system in which competition dejt^^rmines the division of the pro^duce. Msyii^KifEiE. According to this, all tha,t does not legitimately fall witMn v^ages and pro^t is rent, and the competition which has the tendency tp reduce profit has the same tendency to raise landlord's rents ; but as I have given my opinion that that system does not prdinarily obtain in !flndia, ij; is unnecessary to carry the subject farther. An objection was made to the method of proportion on the ground that it was not universally applicable, and that this defect showed that the method is unsound in itseljf. But such is not the case ; for whether the productive power remaining the same, the value of the produce has increased, or whether the productive power has alone increased, or whether the land be proved by measurement to be greater th^n the quan- tity for T^hich the rent has been previously paid, provided the whole land be of one and the same quality, in all these cases coming under section 17 of Act X of 1859, the method of proportion is applicable ; and t(he pbi.eictipn, therefore, now under notice, need npt delay the .C9ur|; longer. JBijt it was ohserved by the learned counsel that, granting thaf; the system of proportion was the correct system to be adopted in a .case Ijyke .ftiat before tjti,e C.ourt, great apd insuperable difficulties wpuld arjse in its application : that it would be impossible to find the v^ue of the produce, net or gross, at the time of the last adjustment, which may have been at a remote period ; and that by a, failure to settle the two first terms pf ^e proportion, the whole calc^ulatipa would breajs down. But I do not see any necessity for these supposed difficulties. A zernin- dar, on suing to enhance, must state the ground^ on which he desires the enhan.cernent. If his claim be founded on the mcrease in the vajlue of the produce through a simple rise of price^ he ;^ill, wha|;ever the mode of adiustment determined on, have tp state the circumstances lead- ins tP the demand, and he will have tP infprm the Court pf the particu- .-Pn ,'■■');•;■■ /•..■"■• i ■' ■•>•■ ■:', : ', -•■!} -■ ;'!■(.;" t:'";': 1 % I Tiri' :i"r- lar rise in price subsequent tP the last adjustment which justifies that demand. In stating this, he will give the Court sufficient data for the fprmul>a aboy.e la,id down. It is unnec,ess»ry to refer to the period pf the kst adjustment itself. The price pf the produce, previous to |;he date pf the alleged rise in value, will be sufficient data pn which tc base the formula of proportion ; and when that is obtained, and the rent also, the two first terms of the formula are at hand, and no difficulty need t>e experienced- 228 FULL BENCH EULINGS. 1865 But these remarks apply to cases in which there is no evidence to Thakooranee rebut the presumptioa that the rate hitherto paid, which, in ease of „. dispute, by the direction of the Legislature, is to be considered fair and MoIkeTjeb. equitable until the contrary be shown, is the customary rate. There may, and probably will, as was remarked by Mr. Doyne, be many cases in which parties will be sued for the enhancement of their rents, who were mere tenants-at-will, and who hold under written engagements in which their rents are based upon data inconsistent with the presumption of the rate being a customary rate, and thereby rebutting that presump- tion, but who by the operation of section 6 became vested with the right of occupancy. In these cases, of course, the method of propor- tion will not be applicable. The rents wiU be adjusted upon the same principle as they were under the old contract, to which the ryots volun- tarily submitted themselves. It was also urged that there were cases in which the old rents had, according to the written terms of the potta and kabuliat, been settled at rates below the ordinary one, in consideration of certain acts to be done by the tenants which are no longer required to be done ; that in this case the rate in the old engagement could not be presumed to be the customary rate ; but that before the method of proportion could be applied to these cases, the old rents must be adjusted so as to equal the rate which was ordinarily borne by similar lands in the places adjacent when such rate was uninfluenced by any extraneous circumstances. This contention is undoubtedly sound ; and whenever it is shown from the contract itself that such extraneous circumstances have affected the terms of it, they must be eliminated, and a calculation made irrespective of those must be substituted in their place before the method of propor- tion can fairly be applied. In answer, then, to the questions which have been put to the Court by the Division Bench, I would reply that the terras " fair and equit- able," when applied to tenants with a right of occupancy, are to be construed as equivalent to the varying expressions, pergunua rates, rates paid for similar lands in the adjacent places, and rates fixed by the law and usage of the country, — all which expressions indicate that por- tion of the gross produce calculated in money to which the zemindar is entitled under the custom of the country ; that, as the Legislature directs, that, in cases of dispute, the existing rent shall be considered fair and equitable until the contrary be shown, that rent is to be presumed, in all cases in which the presumption is not by the nature and express terms of the written contract rebutted, to be the customary rate includ- FULt BElfCH EtfLINGS. 22 ed in the terms, pei'gunna rates, rates payable for similar lands in the 1865 places adjacent, and rates fixed by the law of the country ; that in all Thakooranee , , , . DOSSEE ' cases in which the above presumption arises, and in which an adjustment «. of rent is requisite in consequence of a rise in the value of the produce mookerjeb, caused simply by a rise of price and by causes independent both of the zemindar and ryot, the method of proportion should be adopted in such adjustments, in other words, the old rent should bear to the existing rent the same proportion as the former value of the produce of the soil, calculated on an average of three or five years next before the date of the alleged rise in value, bears to its present value ; that in all cases in ■which the above presumption is rebutted by the nature and express terms of the old written contract, the re-adjustment should be formed on exactly the same principle as that on which the original written contract, ■which is sought to be superseded, was based; and that in cases in which it appears, from the express terms of the previous contract not still in force, that the rents then made payable by the tenant were belo^w the ordinary rate paid for similar land in the places adjacent, in consequence of a covenant entered into by the ryot to cultivate indigo or other crops, the old rent must be corrected so as to represent the ordinary rate current at the period of the contract, before it can be admitted to form a term in the calculation to be made according to the method of propor- tion above laid down. Loch, Batlet, Jackson, and Glotee, JJ., concurred. MacpHERSON, J. (after stating the questions referred, continued) : — The question in fact is — a ryot having a right of occupancy being entitled to a potta at " fair and equitable rates,'' what meaning is to be attached to these words, and how is it to be ascertained what rates are fair and equitable? Act X of 1859 is silent upon the point; and it is for the Court now to determine what rates are to be deemed fair and equitable. It appears to me that, in order to arrive at a just conclusion in the matter, it is necessary to consider not merely the provisions of Act X, but also the position of ryots who had a right of occupancy prior to the passing of that Act. For if we shall find from the prior legislation, and from the earlier history of the country, that there was any known rule by which the rates to be paid by royts who had a right of occupancy • were ascertainable, that rule will form a legitimate and safe guide to the ascertainment of the rule which ought now to prevail. Act X was 230 W""^ ,BpjTC0 JRULma^. 1865 not intended to be generally subversive of tji.e old law. It yfas an Act Thakookasee mainly for the protection and benefit of tfie ryot — an Act " ,tp re-enact, s. " with certain modifications, the provisions of the existing law relative to MooKERjEE. " '-h® I'ights of roy ts, with respect to the delivery of pottas and occupancy " of land, to the prevention of illegal exaction and exjtortjon in con- " nection with the demands of rent, and to other questions connected yf').th "the same," besides extending the jurisdiction of the Collectors, a|)ji pro- viding for the easier recovery of arrears of rent. So that, where a question ig left undecided by the express terms of tie new law, we niay well look to tjlje former Jaw to assist us jn its solution. J. shall not enter upon the general history of the country prior to the Perpaanent Settlement. That history js referred to at some length in the judginent of Mr. Justice Trevor, and I shall only remark that it very strongly confirms the view which I take of the state of things prior to 1793, and which, I think, is shown by the ^regulations of that year to have previously existed. As regards the legislation from 1793 down to Acp X, it, in my opinion, shows clearly that tjbe ^pmindar never was, and never was intended to be, the absolute proprietor of the soil. He never was proprietor in the English sense of the term, or in the sense that he could do with it as he pleased ; for certain classes of royts have, at all times, had rigbts quite inconsistent with absolute ownership, having rights which entitled them to remain in occupation so long as tbey paid their rents. We learn from the Regulations that, prior to the P,erm,a]aent S.ettle- ment, the rents had been from time to time settled and adjusted with reference to the produce of the land, so much of the produce of each biga going to Government, and so much to the ryot. Whether in the name of rents, or in the name of abwabs and irregular imposts, the rents were fjrom time to time adjusted, and there was a pergunna rate, or customaj-y rate of the neighbourhood to refer to in case of dispute. In section 1 of Regu- lation II of 1793, it is recited that the amount of revenue payable for- merly was liable to frequent variation ; that estimates were formed by public officers of the aggregate rent payable by the ryots, and of that aggregate rent ten-elevenths went to the G-overnment, and one-eleventh to the land-holder. So the preamble of Regulation XIX of 1793 recites that, " by the ancient law of the country, the ruling power is entitled to " a certain proportion of the produce of every biga of land (demandable " in money or in kind according to local custom), unless it transfer its " rights thereto for a term or in perpetuity, or limit the public demand " upon the whole of the lands belonging to an individual, leaving it to FULi 6'BNCit lIltfLWciS. 231 "him io appropriate to his own use the diiFerence between the value of igfis " such proportion of the produce anS the suni payaljle to ihe' public' while IThakooranee " he coritiuues to discTiarge the latter." ». iiegulation 1 of 1793 nlakes the Decennial Settlenient p'erpetti^l, atid mookerjee. declares (section 4) to the zemindars and other actual proprietors of lands "that they and their heirs and lawful successors will be allowed to hold " their estatfes at such assessment for eyer." In section 7 it is Said that the Groverrior-Gehefal in Council trusts tliat the proprietors of lands "will exert themselves in the cultivatidn of their lands, uridef the " certainty that they will enjtiy exclusively the fruits of their o-vtn good " management and industry." It is to be observed that it is to the ciilti- vation of lands that the attention of the zemindars is directed ; it being open to them, as appears from other Regulations which came into force simultaneously, to make such arrangemeiife as they pleased With new ryots as regards new lands iiot previously cultivated. Even on the face of Regulation t of l793, however, the zemindar was hot absolute pro- prietor : for it is expressly stated in it that, " to cotiduct themselves with " good faith and moderation towstrds their dependant talookdars and ryots," is among the duties of proprietors of land, — and section 8 reserves power to the Governor-General in Council io enact sucTi Regulations as he may think necessary for the protection and welfare of the depend- ant talookdars and other cultivators of the soil." .By Regulation VIII of 1793, section 51, provision is made to prevent undue exactions from dependant talookdars, and the rules under which the amount payable by them may be enhanced are laid down. It is de- clared that they may be increased " by special custom of the district," or " by the conditions under which the talookdar holds his teriiire." Section 52 enacts that the proprietor may " let the remainiiig lands of his estate " under the prescribed restrictions, in whatsoever manner he may think proper." By sections 54 and 55 all abwabs and other irregular imposts on the ryots are directed to be consolidated with the rent, and it is for- bidden to create any new abwabs or imJDOSts of atiy kind. Section 56 says : " It is expected that in time the proprietors of land, &c., and the " ryots, will find it for their mutual advantage to enter into " agreements in every instance for a specific sum for a certain quantity of land." Where it is the custom to vary the potta for lands according to the articles produced thereon, and the parties shall prefer to adhere to the custom, the engagement between them is to specify the kind of produce, the quantity of lands, amount and rate of rent, and term of lease, with Other particulars. Section 57 enacts that 232 FULL BENCH RULINGS. 1865 "the rents to bo paid by the ryots, by whatsoever rule or custom they Thakooranee may be regulated, shall be specifically stated in the potta." Section V. 59 empowers the ryot to demand a potta from the person from whom MooKEKjEE. he holds. Section 60 declares that the pottas of khud-kasht ryots are not to be cancelled, except it be proved that " the rents paid by them within the last three years have been reduced below the nirihbundy of the purgunna." And section 62 provides for the appointment of putwarries, — one object of their appointment being to prevent oppres- sion of the persons paying rent. It will be seen that this Regulation teems with provisions quite incompatible with any notion of the zemindar being absolute proprietor. It will also be observed that the custom of the district and the per- gunna rate are referred to as furnishing the rule for fixing the rent to be paid by those having the right of occupancy. Eegulation XIV of 1793, after expressing a fear lest foolish or vicious proprietors should grant pottas at a reduced rent for a long term or in perpetuity, and so endanger the G-overnment revenue, goes on to say that at the same time it is essential that the proprietors of land should have a discretionary power to grant leases and fix the rents of their lands for a terra sufficient to induce ryots to extend and improve the cultivation, &c. Section 2 enacts that such pottas shall not be granted for a period exceeding ten years ; and section 5 provides that sales for arrears of revenue shall cancel all pottas to ryots and engage- ments with dependant talookdars (save as therein excepted), and that the purchaser may demand from the ryots, &c., whatever the former proprietor would have been entitled to according to the established usage and rate of the pergunna or district, had the cancelled engage- ment or lease never expired. I next come to Regulation IV of 1794, which in its preamble recites that it is essential for the protection of ryots to adopt rules to determine disputes between them and proprietors "regarding the rates of the pottas required to be granted by Regulation VIII of 1793, or the rates at which pottas that may expire or become cancelled under Regulation XLIV of 1793 are to be renewed." Section 6 provides that disputes regarding the rates at which pottas under Regulation VTII are to be granted are to be decided by the Civil Courts " according to the rate established in the purguunas for lands of the same descrip- tion and quality ;" and section 7 enacts that ryots whose pottas have expired or been cancelled under Regulation XLIV of 1793 are not bound to take new pottas " at higher rates than the established FULL BENCH RULINGS, 233 rates of the pergunna for lands of the same quality and descrip- 1865 tion." Tliey are entitled to renewed pottas at the established rates Thakooranbe DOSSEE as under Regulation VIII of 1793. v. "n I Ofl 5" g HIT R Regulation IV of 1808 has also been referred to in argument. It Mookeejeb, applies only to Benares. It relates to the appointment of Cauungoes, ■whose duties (amongst other things) were by section 6, clause 5, to compile information regarding pergunnas, " articles^ of produce, rates of rent, rules and customs established in each pergunna." Another Benares law referred to was Regulation LI of 1795, of which sections 9 and 10 are somewhat similar to sections 6 .and 7 of Regula- tion IV of 1794, which I have already mentioned. The conclusion of section 10 enacts that khud-kashts will be entitled to have their pottas renewed at the established rates, as are also py-hasht ryots, " provided the proprietor chooses to permit them to continue to cultivate the land which they have the option to do or not, as they may think proper on the expiration of all py-kasht leases ; whereas khud-kasht ryots cannot be dispossessed as long as they continue to pay the stipulated rent." Regulation VII of 1799, section 29, clause 5, enacts that any under- tenant whose lease is cancelled by section 5 of Regulation XLIV of 1793, may be ejected if he will not renew as provided by the Regula- tion to which I have already referred. The next Regulation which has been quoted is Regulation V of 1812. Section 2 removes the restriction which prevented zemindars from grant- ing leases for more than ten years. Section 5 says — " There being rea- son to believe that the pergunna rates are, in many instances, become very uncertain, the following rules shall be approved on all occasions of that nature," — {i. e., cases in which leases are cancelled by sales for arrears, un- der Regulation XLIV, 1793, section 5, &c.) Section 6 enacts that, "if any known established pergunna rates exist," they are to be the test of the rates at which new pottas are to be given ; and section 7, that if no established rates of the pergunna or local division of the country be known, pottas are to be granted, &c., according to the rates payable for land of a similar description in the places adjacent ; but if the pottas of the tenants of an estate generally, whicli may consist of an entire village or other local division, be liable to be cancelled under the above rules, new pottas shall be granted at rates not exceeding the highest rates paid for the same land in any one year within the period of the three last years antecedent to tie period at which the leases may be cancelled. Regulation VIII of 1819, while providing for the sale of talooks, &c., for arrears of revenue free from encumbrances, aad free from all leases F 1? 234 PULL BENCH RULINGS. 1865 granted by the defautling proprietor, provides; nevertheless (by section Thakookaneb 11, clauses), that the purchaser shall not be entitled to eject "a khud- DOSSEE t). kasht ryot or resident and hereditary cultivator." MooKERjEE. So in Regulation XI of 1822 (which also relates to the sale of lands for arrears of revenue), section 32, it is enacted — " Nor shall the said rule be construed to authorize any purchaser to ej«ct a khud-kasht kadimi ryot or resident and hereditary cultivator having a prescriptive right of occupancy. Again, by Act XII of 1841, section 27, purchasers of estates sold for arrears may, &c.,. " enhance at discretion the rents of all undei"-tenures in the said estate, and eject all tenants thereof," except (1) is^ewjram or mokurraris at a fixed rate twelve years before the Permanent Settlement; (2) tenures existing at the Permanent Settlement, and not proved liable to assessment, &c.; (3) "lands held by khud-kasht or Aadmi ryots having rights of occupancy at fixed rents, or at rents assessable according to fixed rules under the Regulations in force," &c. This provision was re-enacted in Act I of 1845, section 26. These are the Regulations and Acts prior to Act X which bear upon the subject. Having set forth in detail those portions of them which I think most material, it will be sufiicient for me briefly to state the conclusions which I draw from them. It appears to me, then, from these various enactments, and indepen. dently altogether of any history save such as they themselves relate, that zemindars never, at any time, were the absolute proprietors of their estates ; but that they at allj times have held subject to the rights of various classes of ryots whom the zemindar had no power to eject, so long as the proper rents were paid by them. The rent payable by some of those ryots was fixed and unalterable. The rent payable by others was subject to increase under certain conditions. Rents prior to the Settle- ment were fixed according to the produce of the land, so much of each biga going to the Government as landlord, and so much to the ryot. The same principle prevailed after the Settlement, save that the position of the zemindar, as landholder between the Government and the actual cultivator, was distinctly recognized, and he was declared to be the proprietor of the land in a certain restricted sense. The rents were fiom time to time adjusted, and there was a pergunna rate or cus- tomary rate of the neighbourhood (based on the original rule as to dividing the produce proportionately, and from time to time re-adjusted) to refer to in case of dispute, and according to these rates disputes were pettled. Ryots who had a right of occupancy, but who were liable to -PULL BENCH KULINGS. 235 have their rents increased, could not be enhanced above the pergunna i865 or customary rates. As regards new lands and persons not having a Thakookaneb right of occupancy, the zemindars could make what arrangements they t,; pleased. It is unnecessary here to decide to what precise extent such moq^ekjee. ryots coming in under special engagements, did or could acquire a right of occupancy. For the purposes of the question before me, I consider it enough to look only at the position of such ryots as had an admitted right of occupancy, but were liable to have their rents enhanced accord- ing to certain rules. It further appears from the Regulations that the adjustment of the pergunna rates was much neglected, — probably owing to no great change having for many years taken place iurthe amount or value of produce, — and that there were no recently adjusted rates to refer to, and no customary rates to form any general guide throughout the country. In this state of things Act X was passed. It provides that persons having a right of occupancy shall be entitled to hold "at 'fair and equitable rates.'' It appears to me that, in the absence of any rule or guide contained in the Act itself, we may wdl, in considering what is fair and equitable, look, at what was deemed to'be "fair and equitable " in the case of persons having a right of occupancy prior to Act X. Under the old law, persons having a right of occupancy were not liable to have their rents increased, save according to the pergunna rate or customary rate of the district. Finding that this rule has prevailed ever since the Decennial Settlement, and prior to it, I may well presume that the rates so ascertained are " fair and equitable." In my opinion, where there has been any recent adjustment df the pergunna rates, Ihey should certainly be now followed. In the abseaeeof any customairy rates of the neighbourhood, or pergunna rates,' so recently adjusted as to form any distinct guide, I think that the rule of proportion, on which the per- gunna rates or custom of the district were undoubtedly originally based, is, in the present defective state of the law, the best rule to be adopted, subject to certain qualifications. It has been contended that " rent proper" or " rack-rent,"'-i-sucb a rent as would be obtained by putting the land up to competition,.— i«i the only "fair and equitable" rent. But it appears to me that no such rent can possibly be fair or equitable, were it only for this simple reason that, in assessing the rent on that principle, nothing is allowed to the i;yot for his right of occupancy. If he is to be rated on that principle, his right of occupancy must be ignored wholly, and he must stand precisely as he would have stood had he had no such right. The right, if it exists, must 236 FULL BENCH RULlN&S. 1865 needs be worth something. Yet in none of the calculations made or sug- Thakooranee gestedtothe Court, on the footing of "rent proper" or "rack-rent" or DOSSEE . , . _ 0. competition, has anything been allowed him on this account ; nor indeed MooKEKjEE. could it be. That the legislature intended the right of occupancy to be a valuable right, I do not doubt from the terms of Act X. How it is to benefit the ryot in any material degree, so long as it is merely to give him a preferential claim if no higher bidder comes forward, I am at a loss to see. In my opinion, the rule of proportion, — as the old value of produce is to the old rent, so is the present value of produce to the rent which ought now to be paid, — is the rule which should be adopted in the absence of any recently adjusted pergunna customary rates. In so ascertaining the rate, we shall be ascertaining it on a principle similar to that on which the old pergunna or customary rates were fixed. We shall be doing what was deemed fair and equitable in the case of ryots having a right of occupancy prior to Act X, and what is not less fair and equitable, in the case of ryots having a right of occupancy under that Act. Let the zemindar seeking to enhance the rent go back to any year he chooses ; let him go back to the last adjustment if he can, — if not, to any year which he thinks will suit his purpose, — and let him prove that the proportion was then more favorable to him than it has subsequently become. Either party should be at liberty, in each case, to prove any special circumstances tending to show that the application of the rule of proportion to that particular case would work injustice. On the whole, the answer which I would give to the questions put, is in substance the same as that proposed by Mr. Justice Trevor, — in whose opinion as to Act X of 1859 not being merely prospective in its operation, as indeed in the greater part of his judgment, I entirely concur. Pheae, J. — The case has been argued before us at great length as befits its undoubted importance, and we have had the advantage of all the reasoning and illustration which the very able advocates of each side have brought to our notice. The answers to the questions seem to hinge on the interpretation to be given to the words "fair and equitable," as used in section 5 of ActX of 1859. And although the questions themselves are fairly specific, still they are, to say the least, but little comprehen- sive ; and the way in which this case has come before us and has been treated by both sides in the discussion, obliges us to go beyond their limits and to attempt to enunciate the meaning of the words in question t'ULL BEFCri RULINGS. 237 in the form of a general rule. We are thus prevented from confining 1865 ourselves to our legitimate function, namely, that of saying what is the Thakooranee effect of those words merely on the particular issue placed before us. I j,. need- hardly remark that the constitution and procedure of a Court of mookekjee. Justice is very ill adapted to carry even that which is often termed judi- cial legislation beyond the facts of the case material to the issue which is before the Court for decision. The Superior Courts of England have uniformly refused to countenance any attempt made to induce them to transgress this limit. It seems to me, however, that we are now asked, and in some sense compelled, to take a very large step into the region of pure legislation. It is foreign to our ways of proceeding and of deli- beration to undertake the framing of a declaration of law which shall be prospective, and have application to eventual and unascertained condi- tions of fact ; and I can scarcely hope that the effort to do this, which we are about to make, can end in a result which shall be satisfactory. A preliminary objection has been raised (for the first time in this Court) that Act X does not apply to the case at all, inasmuch as it is said the defendant has no right of occupancy unless by virtue of section 6 of that Act ; and it is contended that the qualification of twelve years mentioned in that section cannot be taken to embrace time, any portion of which had expired before the Act came into force. I think this objection must be over-ruled. It has been supported by argument which certainly seemed to me to exhibit some disregard of the distinction between "retrospective action" and present interference with vested rights ; but fortunately it is not now necessary to go into the merits of this discussion, because it is, I believe, the unanimous opinion of the Court that the words of the section are so strongly explicit as to leave no sort of ambiguity as to their meaning, and it is only in cases of ambiguity that recourse can be had to a "priori presumption as an aid to construction. I conceive that the section in effect says : "Every ryot, who at the date " when the Act comes into operation, has been, or at any date thereafter " shall have been, in continuous occupation of land for the period of the "preceding twelve years, whether that period comprises time which "elapsed before the date of the Act coming into operation or not, has, "from the time of the completion of the twelve years, a right of occu- " pancy of the laud." This being so, the suit is rightly brought under the Act, and it becomes necessary to see what the general scope of the Act is, so far as it concerns the settling questions of rent between landlord and tenant, in order to ascertain whether any guide is afforded by it to the " fairness DOSSEE V. BiSHESHDR MOOKEUJEE. 2S8 FULL BENCH RULINGS. 1865 and equity " of section 5. The result in my mind of the best eonsidera- Thakooeanee tion I can give the matter, aided by the very full discussion which has taken place, is that these words are not directly referable to, or dependent upon, the provisions of section 17. I think the legislative effect of the Act upon the subject before us may be fairly summed up and arranged in the following manner : — All ryots are entitled to receive pottas (section 2), and — (I). Eyots having rights of occupancy (a), who hold lands at rates which either have not been changed, or must by law be presumed to have not been changed, since the time of the Permanent Settlement, are entitled to receive their pottas at those fixed rates (sections 3 & 4). (b.) Who do not hold land at any such invariable rates are entitled to receive their pottas at fair and equitable rates (section 5). (II). Ryots not having rights of occupancy are entitled to pottas only at such rates as may be agreed on between them and the persons to whom the rent is payable (section -8). On the other hand, every person who grants a potta, or tenders one, such as the ryot is entitled to receive, is entitled to receive a kabuliat (section 9). Provision is made for enabling the parties to enforce this right to a potta and kabuliat respectively, by the agency of a suit before the Collector ; and in my judgment these rights are correlative. In the suit for the kabuliat, the main question must always be whether the corresponding potta is such as the ryot is entitled to receive ; and as it has been judicially decided that the commencing the suit is sufficient evidence of the tender of the potta, the issue between the parties comes to be the same whether proceedings are first instituted by the ryot or by the zemindar. It is said that, although a potta for a term of years may be sued for by the ryot at any time, yet the most that the landlord on his side can do is to sue for a kabuliat of an indefinite potta which shall fix the rent for one year or until the ryot objects ; and in support of this contention, the difference in the wording of sections 80 and 81 is referred to ; also section 76 is relied upon as showing by implication that the Legislature only gave the Collector power to fix the term in the case of a ryot's suit. But if this be so, what authority has the Collector in a suit for a kabu- liat to fix the rent for a year even, or from year to year, until the ry t objects? As I have already said, I think the Act makes the land- lord's right to a kabuliat correlative to, and co-extensive with, the ryot's right to a potta, and I do not, myself, see sufficient in the differ- MOOKERJEE, FULL BENCH RULINGS. 239 ence of phraseology just mentioned to lead to a contrary inference ; and 1865 I may remark that this right of suit for a kabuliat does not give the Thakooranee zemindar, as might at first seem to be the result, a new right of com- "l^^^^ palling the tenant to occupy the land for a coming term of years whether j^^^kf^r^wb he is willing to do so or not, because section 19 expressly enables the ryot in all cases, by giving proper notice, to throw up his holding whenever he likes. The right to bring a suit of this kind is in fact a right to oblige the other side to submit to the arbitration of the Collector with regard to the terms upon which the holding shall be continued ; and I see nothing in the Act to prevent this arbitration being invoked at any time when either party is dissatisfied with the existing relations between himself and the other, or on as many occasions in succession as the dissatisfac- tion may arise. The agricultural year always, I believe, commences with the month of Baisakh, and tenant-holdings, whether by contempla- tion of the Regulations, or by custom of the country, never involve frac- tions of years. Consequently, the Collector's decision would generally, unless by the express consent of the parties, take effect from the begin- ning of the ensuing year. If, at the time of the application to the Collec- tor, a potta is subsisting (whether it originated in agreement between the parties, or in a suit) comprehending a definite term which will not have expired at the end of the current year, it ought, probably, except in extreme cases or hardship, to bar the applicant's claim. In all other cases, I conceive the bringing of the suit is intended by the Legislature to be sufficient notice on the part of the plaintiff to terminate the exist- ing agreement as to rent at the end of the current year. As to the current year, or the preceding year, supposing time not to have barred the landlord's right to recover in respect of it : — (A.) If a written potta for a term of years be in force, then the rent is fixed by that. (B.) If such a potta, for any reason, be not in force, then the rent is that of the previous year, unless the landlord had, in or before the month of Chait which preceded the year in question, served on the tenant notice of enhancement and the grounds thereof, and the tenant either has not contested his liability, or, contesting it, has failed, in which case the rent is recoverable on the terms of the notice (section 13). In the event of the ryot contesting his liability before the Collector, the latter must, I suppose, though I still feel hesitation as to this point, be guided to his judgment by considerations of "fairness and equity" whatever those words may mean as used ia the dth section ; and if the 240 FULL BENCH KULINGS. 1865 ryot be one having a right of occupancy, those considerations must have Th,\kooranee exclusive relation to the grounds of enhancement mentioned in section 17, V. and also relation to those of abatement in section 18. MooKEKjEE. -A^S<''i"j ^-''6 '"yot may at any time formally complain to the Collector that the rent demanded of him is too high. On the whole, then, I conceive the Act intended to give each side two modes of seeking relief against the other, namely : — \st. — That of obliging him to enter into a prospective written agree- ment. 2nd. — That of adjusting the terms for each year, as the occasion arises. It may well be that the Legislature, while it desired that every oppor- tunity should be given for the creation, at the instance of either party, of leases for terms of some definite duration, yet felt obliged, by the character and circumstances of the cultivators, and the physical condi- tions of the country, to leave an opening for annual adjustment by judi- cial intervention. The case before us falls under the first head only, and I conceive that we are in effect asked to direct the Court below what circumstances are to be looked at, in judicially fixing the terras of a potta as regards rent, such that it may be fair and equitable between the parties within the meaning of Act X of 1859, the potta being prospective and com- mencing with the ensuing year, and the tenant being a ryot having a right of occupancy. The Act itself does not anywhere say expressly what the Legislature intended this fairness and equity to have regard to. I do not consider that section 17 has any bearing on the point. In my judgment that section relates solely to what I will venture to term therfe anno in annum process of section 13 ; it is clear that sections 14, 15, and 16 are necessarily confined to that, and section 17 appears, as regards its subject-matter, to follow them in natural sequence. The word " enhancement" used in it must, as it seems to me, mean the tech- nical enhancement of section 13, in which section the word occurs for the first time in the Act, and can have no relation to any increase on a former rent, which may be the result of fixing a new rent in a suit for a potta or kabuliat. In the absence, then, of any legislative instruction on the point, I think we ought to so construe tlie words " fair and equitable" as to dis- turb as little as possible the relation which obtained between the parties before, or independently of, the operation of the Act so firr as it can be ftscertained. And this relation differs, as 1 conceive, with each separate FULL BENCH RULINGS. 241 case, so that it is impossible for us to lay down a single rule of assess- 1865 ment to be followed in all cases alike. On the one side, it has been con- Thakookanee DOSSEE tended for the zemindar that he has always possessed the right to exact a v. rack-rent from the ryot, and that the Court ought not, in fairness and mookekjee. equity, to recognize any principle of assessment which would not strictly lead to such a rent. On the other side, it has been urged with equal force that the ryot has been always entitled to some definite share of the produce of the land, and therefore the Court ought to lay down an inflexible rule of proportion. I do not think that either of these courses would be fair and equitable to the parties. In my judgment, the zemin- dar's contention cannot be universally supported for two reasons — 1st. — Whatever may have been the abstract rights intended to have been conferred upon the zemindars by the Eegulations, in practice they have, generally speaking, never been exerted to the extent of producing a rack-rent. This is hardly denied by any one ; and the very considerable margin which any calculation of a rack-rent exhibits beyond that which the landlord even ventures to claim in litigation, sufficiently supports this position. If any principle of competition has ever (at any rate for the last seventy years) found play, it has done so in the face of such local public opinion or custom as has, in the majority of cases, modified its results to an extent that cannot readily be allowed for in calculation. 2nd. — It is impracticable, under the circumstances of these cases, to make, ab extra, an assessment of the true, or even approximately true rack-rent. The various formute of the political economists for a farm- ing rent are but so many analyses of the result of free competition ; at best, they only express the amount of rent in terms of other elements, which are themselves the results of free competition. If the free competition never existed, or, having once existed, has in any man- ner been put an end to, the element depending upon it cannot be ascertained. The right of occupancy itself seems, then, to be a great stumbling-block in the way of working any politico-economical formu- la, and certainly (independent of anything introduced by the new- Act) there has, as it seems to me, been no such open market bear- ing upon the value to be given to the ryot's skill, the amount of risks run by him, the profits obtainable by the application of his capital to other pursuits (or in other modes), &c., &c., as is capable of producing trustworthy data for getting at what would be the market rent, on the hypothesis of a free competition for the land which does not now exist. And indeed I cannot help thinking that there is a fundamen- tal mistake at the bottom of all the calculations which have been made G G 242 FULL BENCH RULINGS. 1870 for this purpose. It has been attempted to estimate the rent payable by Thakooranee the ryot to the zemindar on the footing of its being a proper farming DOSSEE V. rent, such as is given birtli to where there is a limitation of the demand MooKEEjEE. ^^^ dependent upon the amount of profit to be got by the investment of capital, and no other limitation. But the condition and circumstances of the ryot, as I understand them, are not such as to give rise to a farming rent ; his capital, when he has any, is so small, and his hereditary habits of life such, that (speaking of him as a class) he seems generally to have no alternative but to cultivate the land. He can- not carry himself and his capital into other markets, or at any rate, never, to any appreciable extent, thinks of doing so. The profits derivable from his skill, labor, and capital never have affected the rent he pays, nor, economically considered, ought to do so. His tenancy, if of a competitive character at all, is of the nature of a cottier tenancy, in which the rent is purely the result of the relation of the numbers who want the land on one side to the supply of land on the other; and the numbers who want the land are in no way determined by the profits obtainable by the investment of capital and skill. No other class than this ryot class is seeking the land, and consequently the rent cannot possibly be got at by any process other than actual competition. And it is worth remarking that the result of this will be that, if the numbers of the ryots wanting land are small, relatively to the quantity of land wanting ryots, the tenant may well get a portion of the profits of the soil, which, under the estimate of a proper farming rent, would go to the landlord. I can as little agree to the general rule contended for by the ryot as I can to that of the zemindar, because I do not think that the former has at all established any definite claim in all cases to a proportionate part of the produce of the land. A third alternative has had prominence given to it during the discus- sion of this case, which, as far as I am able to give it expression, seems to be this,— namely, that, by some sort of natural equity, the tenant ought only to get so much of the profits of the laud as is attributable to the application of his labor, skill, and capital, and that the landlord, as owner of the soil, ought to get all the rest. I am convinced' that a doctrine so vague as this finds no countenance in any writers on Political Economy, and a little refieotion shows that it is practically inapplicable. It is physically impossible to separate the part of the produce which is due to the tenant's exertions, from that which is the result of the intrinsic qualities of the land ; without land and without cultivator alike, there PULL BENCH RULINGS. 243 would be no agricultural produce at all, and it is simply absurd to . 1865 attempt in any case to distinguish that which is due to the one cause Thakooranek from that which is due to the other. In fact, the sharing of the produce „. between landlord and tenant never has been, and never can be, based on mookekje^. any consideration of this kind ; and there is nothing inherently inequit- able in an arrangement, which may, in the estimation of those accustomed only to farming rents, give the tenant even an apparently extravagant portion of the produce. With the view I take, it is not at all necessary to discuss the question as to what are the respective rights of khud-kasht and py-kasht ryots. I think every case must turn on its own attendant circumstances. When the Collector is called upon in any given case to determine the rent which it is fair and equitable that the ryot should pay, he ought to enquire — \st. — Whether at the last antecedent period, when the arrangement between the parties (either then created or previously existing) was such as must, by reason of tacit acquiescence or otherwise, be taken to have been fair and equitable, that arrangement contained express stipulations as to rent ; if so, then these stipulations, unless the reason for them is gone, should be followed in arriving at the rent for the new potta. Under this head would be ranged all actual rack-rent and cottier rent afreements, whenever any such have been come to ; and if the Col- lector is called upon to act upon an arrangement of this kind, I can give him no alternative to looking at the actual market, because I believe, for the reasons I have already mentioned, that there is no other fair and equitable mode of arriving at competition rents in this country. 2nd. — If the Collector finds no express agreement to guide him, then he must ascertain whether the ryot is legally entitled by custom, based either on his personal status, or on the character of the land occupied by him, to any definite share of the produce of the land, or to any beneficial interest in it. If the ryot is so entitled, the rent must be adjusted accordingly. 3rd — If neither express agreement, nor legal right in the ryot, be found to have determined the amount of rent, the last arrangement must, I conceive, have been governed by some locally prevailing custom, or the rent regulated tacitly according to some locally prevailing rates; and in that case I think the custom ought to be complied with, and the rates adhered to. It is obvious- from what I have already said that these rates will, by the nature of the case, be almost invariably such as to give to the ryot's holding a beneficial character ; and, therefore, I think the 244 FULL BENCH RULINGS. 1865 fair presumption will be, in the absence of evidence, or unless a different Thakookanee foundation be actually shown, that the rate was originally based upon V. the principle of sharing the produce of the land between the ryot and MooKEWEE. zemindar in a fixed ratio. Many of my learned brothers are of opinion that this is not properly a presumption of fact, but is in truth a matter of legal right established by history. I confess that I feel great diffi- culty in seeking and ascertaining law from such a source ; and further I am reluctant, while acting judicially, to pledge myself to the accept- ance of any particular version of a history which notoriously rests upon most imperfect materials. Under these circumstances, although my conclusion on this point is, I believe, practically in unison with that of the majority of my colleagues, I regret that I cannot place it on the foundation which they have chosen, but am compelled so far to separate from them as to rest it solely on a presumption which I consider to be natural and justifiable, quite independently of any history whatever. The result of applying this presumption would be that the new fair and equitable rent would be the same proportionate part of the new produce that the old rent was of the old produce. And I further think that, in all cases, the duration of the intended potta must be taken into consideration as an element affecting the question of fairness and equity. By proceeding in the manner I have attempted to sketch out, the Collector will, I believe, be enabled to determine what rent would be fair and equitable between the ryot and his landlord within the meaning of the Act. And I think, under the peculiar circumstances of this case, to which I have already alluded, I cannot usefully put my answers to the questions submitted to us into a less general shape. Campbell, J. — I entirely concur with Mr. Justice Trevor, except in the use of any expression which might seem to imply any doubt whether a ryot possessing right of occupancy can be, in any shape, subjected to enhancement on any ground other than those mentioned in section 17, Act X of 1859. Though this question does not properly arise on the limited reference of the Division Bench, it has been argued that, in such a suit as this, for a kabuliat at an enhanced rate, the zemindar is not restricted to those grounds. I am decidedly of opinion that he is limited to the grounds mentioned in section 17, in whatever shape he sues or can sue. The provisions of section 6, Act X of 1859, are so entirely declara- tory in their terms, and in that sense would seem to define so unam- PULL BENCH RULmGS. 245 biguously the class of ryots possessing rights of occupancy, while the 1865 old Regulations explain so clearly the status of occupant ryots, that Thakooranee it might seem at first sight unnecessary to go further back into his- torical retrospects, with a i7iew to determine the character of their rights. Mookerjee, But it has been thought necessary to open up this enquiry, with a view to show that, in fact, the occupancy rights of the present day are not of the character which is claimed for those of ancient days, or that we must, at any rate, distinguish between different classes of ryots whom Act X of 1859 has included within a too wide definition. It would seem to-be assumed that the old ryots and their descendants never had very high rights ; that, whatever they were, they have for the most part died out ; that the occupancy ryots of Act X of 1859 are, as a body, the creation of that Act ; and that occupancy tenures must be treated as so created for the first time, and the Act construed as if it merely conferred certain limited tenant-rights upon those who before held as tenants-at-will. To test these arguments, some historical survey has become necessaiy. I take the same general view as Mr. Justice Trevor with regard to the history and nature of landed tenures in Bengal before the Perma- nent Settlement. There can be no doubt that the settlement attributed to Toran Mull (and alluded to by Mr. Justice Trevor), like all the settlements of Akbar and his successors, and indeed, all the detailed settlements of the British Government founded upon the same system, dealt primarily with the individual ryot, and fixed the sum payable by him for the land which he cultivated. The process is described by Elphinstone, pp. 475-6. It appears that the average produce of the biga of land of each description was ascertained, and the Grovernment share was then calculated, one-third being the full demand, and deduc- tion being made for fallows, occasional inundations and droughts, inferior soils, &c. The average dues of the State (in grain) being thus ascertain- ed, the grain rates were commuted into money on an average of the price currents of the nineteen previous years, and the rates so obtained were calculated on the land of each ryot. The option of paying in kind according to the established proportion seems, however, to have been maintained. Thus the payments of the ryots were fixed by an act of State quite independent of the will of any other subject, or of any question of competition or relation of landlord and tenant in the English sense. Whether the revenue was paid direct to the ofiicers of Govern- ment, or by the village communities jointly through their head men, or through hereditary zemindars of a superior grade, the quota due from each 246 FULL BENCH EULINGS. 1865 ryot was fixed and recorded ; that was the unit of the whole system from Thakooranee which all calculations started. The headmen and zemindars were remu- y. nerated for their services, or received the hereditary dues to which pre- MooKE^RjEE. scription entitled them in the shape either of percentages on the collections from the ryots, or of nankar land held exempt from revenue. That is clearly the old law of the country in general, and of Bengal in parti- cular. Even when, in the decline of governments, the State control became relaxed, and the ryots became subject to much oppression on the part of those placed over them, they still had some protection in the only ever-surviving law of the East — ' Custom.' The old-established rates they have always continued to cling to as sanctioned by ' Custom.' That custom the worst oppressors could not openly defy ; and hence, as shown by Mr. Justice Trevor, all extortions and imposts took the shape of extra cesses, levied on various pretexts. Even when thus, by oppres- sions, the sums levied may have been raised up to or even beyond a rack-rent, the remark of Mr. Mill seems irresistible, that the shape in which they were taken and the survival beneath all imposts of the old customary rates, is the strongest evidence that the right of the ryot survives, to become again beneficial in better times. That these rights survived in this shape in Bengal up to the time of the introduction of British rule, there is the amplest evidence. Every early paper on the subject teems with evidence to show that the ryots were very much more than tenants-at-will, even where legal and illegal- exactions had been imposed to the farthest on the proper or 'a««aZ' rates. Indeed, the concurrence of the early Regulations of the British Gov- ernment in every different part of Lidia, made at different times, under different circumstances, and by different Governments, which, in other respects, differed most widely in their views on kindred subjects, would seem sufficiently to establish that, under the old law and custom of India as everywhere found, on the assumption of territory by the British Gov- ernment, some right in the soil still belonged to the ryot. However widely they differ in regard to the superior rights of Government and the great landholder, they all concur in the view that neither the Gov- ernment nor the great landholder had an absolute and complete right, but that some right was concurrently enjoyed by the ryot in the shape of a right of occupancy at rates regulated by custom. On this general question, I would only further add to what Mr. Justice Trevor has said, that with reference to a frequent modern assertion that this alleged right is a mere invention or resuscitation of a benevolent • FULL BENCH RULINGS. 247 Britisli Government, I have sent for the three greatest and best authori- 1865 ties on the modern Native States in different parts of India- — books which Thakoolianee were written long before these discussions arose. I take Tod's Raj poo- „ tana for the north of India, Malcolm's Central India for the centre, and j^oo^e^ "jee, Buchanan's Journey in Mysore (then under Native Government) for the south. I turn to the indices to see what is said of the ryots. I find the following : — Tod puts their rights very high. He says (Vol. I, p. 494):-— "The ryot (cultivator) is the proprietor of the soil in Mewar. He compares his right to the ' a^khye d'hooha ' " (1). He calls the land his Bapota, the most emphatic, the most ancient, the most cherished, and the most signi- ficant phrase his language commands for ' patrimonial inheritance.' He Las Nature and Menu in support of his claim, and can quote the text alike compulsory on prince and peasant — " Cultivated land is the property of him who cut away the wood, or who cleared and tilled it, — an ordi- nance binding on the whole Hindu race, and which no international wars or conquest could overturn ; " for, as the author a little farther on observes, we may " trace a uniformity of design which at one time had ramified, wherever the name of Hindu prevailed ; language has been modified and terms have been corrupted or changed, but the primary pervading principle is yet perceptible." Malcolm (Vol. II, p. 25) says: — "The settled and more respectable hereditary cultivators of Central India have still many privileges, and enjoy much consideration. Their title to the fields their fore-fathers cultivated is never disputed while they pay the Government share. If they are unable from age or want of means to till their field, they may hire laborers, or make it over to another person, bargaining with him as they like about the produce ; but the field stands in the Government books in the name of its original tenant. In general, a fixed known rent and established and understood dues or fees are taken from such persons, beyond which all demands are deemed violence and injustice. These, however, have been of late so universal, that the condition of the hereditary cultivators as compared with others has been little enviable." Buchanan puts the right somewhat lower, and more like that recog- nized by our modern law. He says (Vol. I, p. 124): — " The ryots or farmers have no property in the ground j but it is not usual to turn any man away so long as he (1) Tod's Note. — "The d'hooba grass 'immortal,' but 'a'/chye,' 'not to be eradi- flourishes in all seasons, and most in the cated,' and its tenacity to the soil deserves intense heats ; it ia net only ,' amara,' the distinction," 248 FULL BENCH KULINGS. 1865 pays the customary rent. Even in the reign of Tippoo, such an act Thakooeanee would have been looked upon as an astonishing grievance." V. -A-gain, Vol. II, p. 90, after describing the different kinds of headmen MooKEMEE. or renters of villages, he adds, — "Neither can legally take from the cultivators more than the custom of the village permits. This custom was established by one of the Mysore Rajahs." And same Vol., p. 109, — " A farmer cannot be turned out of his possession so long as he pays the fixed rent ; but if he gives over cultivation, the ofl&cers of Government may transfer his lands to any other person." We might probably consider this to be a very accurate description of the old state of things in. Bengal. For an exact account of the state of things prevailing in Bengal at the time of the Permanent Settlement, and the terms on which the settlement was made, so far as the present question is concerned, it is really hardly necessary to look beyond the very text of the Regulations themselves. The nature of the ancient rights of the ruler or superior landlord is thus shown — " By the ancient law of the country, the ruling power is entitled to a certain proportion of the produce of every biga of land (demaudable in money or kind according to local custom), unless it transfers its right thereto for a term or in perpetuity, or limits the public demand upon the whole of the lands belonging to an individual, leaving him to appropriate to his own use the difference between the value of such proportion of the produce and the sum payable to the public, whilst he continues to discharge the latter" (1). Previously to the Permanent Settlement, the zemindars had very limited rights, and were liable to be capriciously dispossessed, and arbitra- rily assessed upon on account of their gross receipts (2). " The amount of assessment was fixed upon an estimate formed by the public Officers of the aggregate of the rents payable by the ryots or tenants for each biga of land in cultivation, of which, after deducting the expenses of collection, ten-elevenths were usually considered the right of the public, and the remainder the share of the landholders." By the Permanent Settlement, the amount of assessment on the zemindars was irrevocably fixed ; they were declared to be proprietors of the land, and they were encouraged to " exert themselves in the (1) Preamble to Regulation XES of 1793. (2) Preamble of Eegalation II of 1793. Same words repeated in Preamble, Regula- Regulation I of 1793, Section 7, Clause 1. tion XLIT of 1793. FULL BENCH RULINGS. 249 cultivation of their lands under the certainty that they will enjoy exclu- 1865 sively the fruits of their own good management and industry, and that Thakookanee no demand will ever be made upon them or their heirs and successors „. by the present or any future Government for aa augmentation of the mookemeb pubic assessment, in consequence of the improvement of their respective estates'' (1). But general reservation was made that " the Governor- General in Council will, whenever he may deem it proper, enact such Eegulations as he may think necessary for the protection of the dependant talookdars, -ryots, and other cultivators of the soil" (2). Hence it appears that the rights, first of the ruling power, and even- tually of the zemindars to whom those rights were assigned, consisted in the sliare of the produce of every biga leviable from the ryots in money or kind according to custom. The zemindai- also acquired the power " to let the remaining lands of his zemindaree or estate under the prescribed restrictions in what- ever manner he may think proper" (3). The zemindar, therefore, took the estate, subject to certain restrictions, in addition to his obligations to discharge the Govemiment revenue. What then are these restrictions ? The zemindars are to grant pottas to the ryots, which " shall be specific as to amount and conditions. The rents paid by the ryots, by whatever rule or custom they may be regulated, shall be specifically stated in the pottas, wliich, in every possible case, shall contain the exact sum to be paid by them. He (the zemindar) shall, in concert with the ryots, consolidate the impositions under the name of abwab, matJiot, and other appellations with the assal into one specific sum ;" and he shall not " impose any new abwab or mathot upon the ryots under any pretence whatever. A ryot, when his rent has been ascertained, may demand a potta," and the pottas must all be settled by the end of the year 1198 (4). Again, all leases made previous to the conclusion of the settle- ment (and not obtained by collusion, &c.), are to remain in force till their expiration, and " no proprietor shall cancel the pottas of the khud- kasht ryots except upon proof that they have been obtained by collusion, or that the rents paid by them within the last three years have been reduced below the nirikbandi of the pergunnas, or that they have (1) Regulation I of 1793, Section 7, (3) Kegulation VIII of 1793, Section 52. Clause 1 ; same, Clause 2. (4) Eegulation VIII of 1793, Sections 5^ (2) Regulation I of 1793, Section 8, 64, 65, 67, and 69. H H 250 FULL BENCH RULINGS. 1865 obtained collusive deductions, or upon a general measurement of , the Thakookanee pergunna, for the purpose of equalizing and correcting the assess- DOSSEE i» /ix ». ment (1). MooicEKjKE. Further it was enacted that, " if a dispute shall arise between the ryots and persons from whom they may be entitled to demand pottas regarding the rates of pottas, it shall be determined in the Dewanny Adawlut of the zilla in which the lands may be situated, according to the rates established in the pergunna for lands of the same descrip- tion and quality as those respecting which the dispute may arise" (2). And, " The rules in the preceding section are to be considered applicable not only to the pottas which the ryots are entitled to demand in the first instance under Regulation VIII of 1793, but also to the renewal of pottas which may expire, or become cancelled under Regu- lation XLIV of 1793 ; and to remove all doubts regarding the rates at which the ryots shall be entitled to have such pottas renewed, it is declared that no proprietors shall require ryots, whose pottas may expire or become cancelled under the last-mentioned Regulation, to take out new pottas at higher rates than the established rates of the pergunna for lands of the same quality and description, but that the ryots shall be entitled to have the pottas renewed at the established rates" (3). It is thus clear that, as regards the then existing ryots, the zemindar had no power to fix rents at discretion, but was bouud to consolidate the established assal and abwah into one sum, " in concert with the ryots," to give pottas for the sums so ascertained, and to renew expired and cancelled pottas ; that all disputes regarding the rates were to be settled by the Courts, according to the established rates of the pergun- na ; and that, at any rate with respect to hhud-kasht ryots, the zemindar had no power to cancel or refuse to renew pottas once granted, or to eject the ryots. Rents were absolutely and entirely regulated by custom, and not by competition. By another Regulation (4) zemindars were declared not competent to "fix at any amount the jumma of an existing dependant talook for a term exceeding ten years, nor to let any lands in farm, nor to grant pottas to ryots or other persons for the cultivation of lands for a term exceeding ten years." But this provision was subsequently repealed with retrospective effect by Regulations V of 1812, Section 2, XVIII of 1812, Section 2, and VIII of 1819, Section 2, by which all such leases (1) Regulation VIII of 1793, Section 60. (3) Regulation IV of 1794, Section 7. (2) llegulation IV of 1794, Section 6. (4) Regulation XLIV of 1793, Section 2. i'ULL BENCH RULlt^Gs! 251 were rendered valid and legal, and zemindars were declared competent 1865 to graat pottas at any I'ent for any term. The object of the original Thakooranee enactment was not to prevent the zemindar's settling permanent ryots at «; the pergunua rates, bul to prevent his granting improvident leases below' mookebjee. those rates ; for, as observed by the Privy Council in a late case (1) turning on another part of the same Regulation, and with respect to such restrictions — " their meaning is properly to be collected from the policy' and intent of the Regulation. The object of the Government was that the jumma should be duly paid, aod that the means of paying it should not be withdrawn by improvident grants. The power given to the pur- chaser supposes the talookdars and the ryots to remain in all respects as before, except that they become liable to a certain limited increase of rent according to the established usages and rates of the pergunna or district." The power of the proprietor himself was certainly not great- er than that of the auctiou-purchaser. As observed by Lord Corn- wallis in his Minute, — " The rents of an estate can only be raised by inducing the ryots to cultivate the more valuable articles of produce, and to clear the extensive tracts of waste lands." Looking to the expressions regarding the expiry and renewal of pottas, and the advantage to be derived from more valuable articles of pro- duce, I imagine that the framers of the early Regulations very prbbably' contemplated periodical re-adjustment of rates between zemindars and ryots with reference to the value of produce, in t;he same way as was ori- ginally contemplated in Akbar'a settlements (Elphiustone, p. 476), the plan of which was that the money-rates were to be fixed every ten years on the average rates of the preceding ten, — -that is, the grain rates remaining the same, the money rates were to be adjusted in proportion to the aver- age price of grain. But no express provision was made to this effect in the Regulations of 1793. It being then clearly established that, by the terms of the Permanent Settlement, the zemindars were not made absolute and sole owners of the soil, but that there were only transferred to them all the rights of Govern- ment, — viz., the right to a certain proportion of the produce of every biga held by the ryots, together with the right to profit by future increase of cultivation, and the cultivation of more valuable articles of produce ; it being further established that the hhud-kasht ov resident ryots retained a right of occupancy in the soil, subject only to the right of the zemindars to the certain proportion of the produce represented by the pergunna or (1) Ranee Surnomoi/eev. Maharaja Suttees Chunder Boy, 10 Moore's I, A., 12^. 252 PULL BENCH RULINGS. 1865 district rates : we have next to consider the changes which occurred Thakooranee between the Permanent Settlement and the passing of Act X of 1859. B. Little material change was made by the Legislature. The declaration MooKERjEE, of Regulation V of 1812, that, where pergunna rates were no longer clear, the term " rates payable for land of a similar description in the places adjacent" should be substituted, is a mere accommodation of the existing law to the march of society. The only material change affecting certain estates is to be found in the gradually increasing strin- gency of the Sale Laws. During the first generation subsequent to the Permanent Settlement all new hhud-kasht ryots settled by the proprietors on waste or other lands were in case of sale absolutely protected. The purchaser could neither evict them nor enhance their rents beyond the customary rates; he could but take rent "according to the established usages and rates of the pergunna or district" (1). But by Regulation XI of 1822 this protection is narrowed to the case of any "hhud-kasht kadimi (old khud-hashf) ryot or resident and hereditary cultivator having a prescriptive right of occupancy" (2). Perhaps we may infer that the purchaser acquired the right to terminate all other tenures created since the Settlement, and to evict the holders. Still, as in truth this right of eviction was scarcely ever exercised, and it appears that, if not exercised, the purchaser was still limited to the pergunna rates "according to the law and usage of the country" (3), the practical effect of this Regulation does not seem to have been great as respects the question now before us ; and it is therefore hardly neces- sary to enquire what was the exact term of prescription which then made a man an old hhud-kasht ryot. By the later Sale Laws, Acts XII of 1841 and I of 1845, stringent provisions were introduced. Protection was given to " hhud-kasht or kadimi" ryots, but the purchaser had power not only to evict, but also to enhance at discretion the rents of all other ryots. The sales under this Act were, however, comparatively few. It may here be observed that, in truth, in the later enactments, the word " khud-hasht" is so variably coupled with the other terms "kadimi," "resident," "hereditary," "resident and hereditary'," that it became very difficult to say who were privileged against auction- purchasers, and who came within the various descriptions of hhud- kasht ryots. But I have no doubt that, as explained by Mr. Justice (1) Regulations XLIV of 1793, Section 5 ; Ckunchr Roy, 10 Moore's I. A., 123. IV of 1794, Section 7 ; Til of 1799, Section (2) Regulation XI of 1822, Section 32. 29, Clause 5 ; Ranee Surnomoyee v. Suttees (3) Regulation XI of 1822, Section 33. FULL BENCH RULIITGS. 253 Trevor, the original khud-kasht of the early Regulations was simply 1865 the resident ryot permanently settled in the village, as opposed to the Thakookanee py-kasht ryot. The two words " khud-kasht" and " py-kasht" are used „_ as correlatives, and as between them including all ryots. MookTkjee. Such being the laws, it may bo conceded that, from the time of the Permanent Settlement, the zemindars have been free to make such arrangements and contracts as pleased them regarding all land in which no rights were held by ryots or others at the time of the Settlement, or which at any time might lapse by the failure or abandonment of the ryots, subject only to this that a man once admitted on an ordinary khud-kasht tenure, without limitation of time, could not be ejected or enhanced beyond the customary rates, except in certain cases, by an auction-purchaser. The question is, what in fact did the zemindars do ? Did they, by the investment of capital, cultivate the waste for their own benefit ? Did they take evfry opportunity of asserting an absolute right in every field that lapsed, and farm it out on true commercial principles ? Or did they iu truth adhere to the old practice and custom of the country, and seek to increase the rent-roll, merely by settling new ryots on the old customary terms, leaving them to cultivate in their own way, and to occupy the land without limitation of time, subject to the payment of the rents established by the custom of the locality? It is notorious and well established by history, botli general and judicial, that the latter -v^as almost the universal rule. The zemindars did not invest capital in agricultural operations after the modern fashion. They did not seek to get rid of the old ryots and the old system, and to establish large commercial farms. On the contrary, the endeavour was to get new ryots. Ryots were considered to be the only riches, and the struggle of a good landlord was not to get rid of the ryots, but to tempt away another man's ryots by the offer of favourable terras. The ryot who was settled on waste or other ryoty land, cultivated it, stocked and furnished it, built his house, and dug his tank at his own expense, or by his own labor. Hence it naturally followed, that, according to the ancient custom and present understand- ing between the parties, the new ryot who permanently settled in the village as a khud-hasht or resident ryot, acquired all the rights, privileges, and immunities accorded by usage to hhud-kasht ryots. The ryots so settled were protected in the first instance by law in case of sale, and, after the passing of Regulation XI of 1822, they were in practice protected by habit and the interest of the purchaser, and resumed their former status. Of resident ryots, only the few who may 254 FULL BENCH RtTLINGS. 1863 have come in under special contracts at variance with the custom, or Thakooeanee whose tenures passed under the Sale Laws of 1841 and 1845, held on °l^^'^ any other than the customary terms. In every case that comes before MookTwee. "s, it is patent that, up to the present day, rents in Bengal are usually regulated by the customary rates ; sometimes in the shape of pergunna rates, more generally in that of local rates, universally known in each estate or part of the coutitry. Frequently, zemindars know nothing of their estates, have no clue to the actual positions of each jumma or ryot's holding, but simply collect on a paper roll showing the annual payment due from each ryot according to the custom. But were the customary rates varied or enhanced, or, how were they regulated ? It seems a somewhat singular omission that in the Regu- lations no provision is made for any enhancement of the pergunna rates payable in money. The customary or pergunna rates were of three kinds : — 1. Grain rates, being the original share of the produce not com- muted into money, and which generally continued to prevail in the province of Behar. In this case, as the value of the grain increased, — if taken in kind, it fetched more money — if annually struck in money at the market rates, more money was received, — thei'e was no need of any special provision for enhancement. The rent, as it were, enhanced itself. 2 & 3. Money rates more common in Bengal, — i. e., when the grain rents were commuted into money in either of two ways, which are distinguished in Section 56, Regulation VIII of 1793, as follows : — 2. " Where it is the custom to vary the potta according to the articles produced thereon " (on the land), that is, there were established rates not for each kind of land, but for each kind of produce, — so much per biga for rice, so much for wheat, so much for cotton, so much for sugar-cane. In this case the zemindar would benefit by the substitution of more valuable for less valuable articles of produce ; but the kind of produce remaining the same while it increased in value, he would not benefit. And 3. The system which it was hoped would ultimately prevail where the rates were fixed not on each kind of produce, but on each quality of land, and thus there was fixed " a specific sum for a certain quantity of land, leaving it to the option of the ryots to cultivate v^hatever speCiea of produce may appear to them likely to yield the largest profit." In this case, it is evident that, without some mode of enhancement, the zemindar would benefit neither by the FULL BENCH IIULTNGS. 255 introduction of new products, nor by the rise in value of the old pro- 1865 ducts. The expression in Lord Cornwallis's Minute that tlie zemin- Thakoouasee dars are to benefit by " inducing the ryots to cultivate the more ,;. valuable articles of produce," does not seem to occur in the Regulations ; Mookf!kjee. ^nd as respects land held on these money rates, no provision for such benefit seems to be made. In truth, it seems very doubtful whether, if the khud-kasht ryots paying these specific money rates had stood toge- ther on the letter of the Regulations, and steadily resisted enhancement, they ever could have been enhanced. It is remarkable that, throughout the whole litigation of the long period between 1793 and 1859, no principle of enhancement, other than a reference to existing pergunna or local rates, is anywhere to be found. There have been conflicting decisions as to the prescription by which a right of occupancy was acquired, and great doubt was thus thrown on that subject ; but as regards any rule of enhancement, either at discre- tion, or on any other rule, save and except the standard of rates paid by the same class of ryots in places adjacent, there is nothing. We have particularly drawn the attention of the counsel on both sides to this point, and it is clear that there is no such case. "When the customary rates were enhanced, it must have been done without the least assistance from the law or the Courts of Judicature. In fact, however, the rates have generally been enhanced. The zemindars had great power over their ryots ; the interference of the law was but partial ; the zemindars could do much without law ; and the reliance of the ryots was much more on custom than on law. Moreover, in this matter, the zemindars had a strong equity on their side. Although no rule of enhancement was laid down by the law, it seemed hard that, as the relative value of produce and money altered, as pi'oduce became relatively more valuable, and money relatively less valu- able, the zemindar should continue to receive, as representing his share of the produce, a sum of money actually representing a smaller purchasing power, a smaller quantity of grain, and a smaller proportion of the produce. The fact seems to be that this contingency of a change in the relative value was omitted to be provided for. But as the country progressed, and as the zemindar's expenses increased, without a corresponding increase of income, he had, according to custom and ancient rule, a strong equitable claim to a re-adjustment which should restore to him his own fair share of the produce. Power and equity being then combined, it is not wonderful that, in the absence of any regulated mode of adjustment, it was irregularly efl!ected by 256 FULL BENCH RULINGS. 1865 various irregular devices resulting in compromise between the zemindar Thakookanee ^itl tlie bo'lv of the ryots. As Harington puts it : — " Every part of the ossEB " transaction is a subject of contention; the demands on both sides are BisHESHUR " unreasonable, and are finally terminated by a compromise." A common process seems to have been a mere repetition of the old process by which Toran Mull's assessment was enhanced. In spite of the prohibition against adding abwahs, or cesses, to the consolidated rates of the time of settlement, illegal cessess (almost always in the regulated form of percentages, so many annas or pie in the rupee, or so many seers in the maund) were from time to time added on, and gradually annexed to the custom ; tlien as they became complicated and heavy, and led to resistance, compromise was effected, and the extra cessss wei'e merged into a rate somewhat enhanced, to which the ryots consented. Then, as further increase of value took place, more cesses were super- imposed on the rates, and presently another compromise took place. Sometimes in one way, and sometimes in another, the rates by mutual compromise and consent were from time to time enhanced, and the per- gunna rates were frequently split up into local rates special to estates and sub-divisions, according to tlie area of each new compromise. Still the new rates always had and have some local area. They were and are common to the body of the ryots of that locality. When the major- ity or body of the ryots had consented to an equitable compromise, an enhanced local rate was established, and refractory individuals could be and were raised to that standard. The nature of the occupancy tenure of the ryots of the class under discussion, as it existed prior to the passing of Act X of 1859, cannot be better described than in the words of the Eight Honorable Holt Mackenzie, in his evidence before the Select Committee of the House of Commons in 1832 : — " They may be generally described as cultivators possessing a fixed "hereditary right of occupancy in the fields cultivated by them, or at " their risk and charge ; their tenure being independent of any known « contract, originating probably in the mere act of settlement and tillage ; " and the engagements between them and the zemindar or (in the absence " of a middleman) the Government officer, serving, when any formal " engagements are interchanged, not to create the holding, but to define "the amount to be paid on account of it. They cannot justly be ousted " so long as they pay the amount of value demandable from them ; that " being determined according to local usage, sometimes by fixed money "rates, or rates varying with the quality of the land, or the nature of the FULL BENCH RULINGS. 251 " crop grown ; sometimes by the actual delivery of a fixed share of the 1865 "grain produce ; sometimes by an estimate and valuation of the same ; Thakooranee " sometimes by other rules ; and what they so pay is in all cases distinctly „. " regarded as the Government revenue or rent, whether assigned to an mookekjeb. " individual or not ; in none depending on the mere will and pleasure of " another. There are varieties of right and obligation which one could " fully explain only by a reference to individual cases ; but this is my " general conception of the rights of the class whom I should consider " the proprietors of the fields they occupy. In Bengal Proper they are " usually called ' khud-kasht ryots' {i. e., ryots cultivating their own,) and " by this class of persons I believe the greatest part of the lands in " that province is occupied." At the time of the passing of Act X of 1859 then the state of things was this. The tenures and rents of the ryots were still for the most part regulated by the old customs of former times. But two things specially required legal definition: — ■ First.' — There was doubt as to the mode or prescription by which a khud-kasht or occupancy tenure was acquired, and which tenures were of this character. It was not certain whether mere settlement in the village on the ordinary terms, without limitation of tenure, gave such a right, or what length of prescription established that right. The various Sale Laws had also introduced a large element of confusion, diflferent estates beiuo' variously afiected according to the date of sale. And, what is perhaps most important of all, owing to the absence of public records in Bengal, the perishable nature of private evidence, and the discredit attaching to private documents and oral evidence in this country, it was very difiicult to prove whether a ryot's holding was really ancient, or what was the date of its creation ; the oldest holdings were imperilled by the absence of reliable proof. Second. — There was an entire want of any regulated and defined legal mode of enhancing the customary money rates. Setting aside re-enactments and details, the most important provisions of Act X referred to these two points. Section 1 expressly repealed the existing Sale Laws so far as they gave rights of ejection and enhancement beyond the customary rates. Section 6 declared that twelve years' holding was to be taken as the test of a prescriptive right of occupancy, unless the presumption was contradicted by an express written contract (section 7). That was a pro- tection in favor of the ryot, settling all doubt as to the rights of those who bad held so long. I 1 258 FULL BENCH RULINGS. 1865 Sections 5, 13, aud 17 declared the right of the zemindar to enhance Thakooranee the rents of all tenures which had either submitted to enhancement V. since the Permanent Settlement, or had been created without specific MooKBEjEB. stipulation since that period, provided that it was proved that the former rent was not fair and equitable, and that the grounds of enhance- ment should be confined to certain particular grounds specified in Section 17. At first it appears to have been intended to confine these grounds to two, in accordance with the letter of the old Regulations, viz. : — 1. That the rent paid by any ryot was below the prevailing rate paid by the same class of ryots in the places adjacent ; and 2. That the ryot held more land than he paid for. But before the Bill finally passed, a third very equitable ground of enhancement was added, giving the zemindar the right to claim an increased rent in consequence of the increased value of the produce, — an increase which both the old custom of division of produce would have given him, and the subsequent practice had in fact without express provision of law more or less given him. Enhancement might hence- forth be awarded on the specific ground " that the value of the produce or productive powers of the land have been increased otherwise than by the agency and at the expense of the ryot." This was a new provision in favor of the zemindar. It appears, then, that the principal provisions of Act X were in fact those by which on two points the hitherto rough and somewhat uncertain unwritten practice was reduced to definite law, — in one case, in favor of the ryot, by defining the prescriptive right of occupancy; in the other in favor of the zemindar, by acknowledging the right to enhancement on the ground of increase of the value of produce. It is with this latter provision that we have now to deal. Unfortunately, the law, while stating the ground of enhancement, does not exactly specify how it is to be applied. Hence the present difficulty. Taking the words of Section 17 alone, enhancement may, it is urged, be applied in three ways : — First. — Mr. Doyne seems to argue that, when increase of value has occurred, the old rent is as it were expunged, and a new rent is to be fixed without any reference either to the amount of the old rent, or to the amount of increase in value, or to the custom, but simply at the competition or market rate which the land would fetch in the market — at the rate which any person bidding on purely commercial principles would give for it. But the Judges of this Court seem now to be all FULL BENCH RULINGS. 259 agreed that the natui-e of an occupancy tenure and the provisions of i865 Act X of 1859 altogether negative this extreme doctrine of competition Thakooraneb rates; that in fact the increase of rent must in some shape or other be v. measured and limited by the increased value of the produce when that is mookerjeb the ground on which increase is sought. It remains, then, only to decide on the remaining modes of applying this ground of increase, viz.: — Second. — The whole increase in the value, after deducting the actual increase in cost of production, may, it is said, be given to the zemindar. Or, Third. — the rent may be increased in the same proportion as the value has increased, so that the relative situation of the parties may remain as before, and if there were profit shared between them under the old arrangement, any new profit may also be shared between them. To decide this question, it has been thought necessary to go beyond the Act itself. The view which seems to have been taken by the learned Chief Justice in Hills' case (1), and which is now supported by Mr. Doyne, is that Section 6 must be considered not to be in any respect a definition of pre-existing rights of parties having different interests in the soil, but a new provision — a sort of benevolent interference between the absolute owners of the soil and the tenants who had heretofore held under them at their mere will — an interference with vested rights of property on one side in favor of those who had no rights whatever on the other side, in violation of the ordinary rules of property and political economy; that therefore such a provision must be construed very strictly in favor of the old proprietor and against those on whom these new rights were thus arbitrarily conferred ; and that, under such a construc- tion, the ryots can only have the rights of occupancy expressly given to them, while the zemindar must take in the shape of rent all the beneficial interest created by change of circumstances. At any rate it seems to have been considered by the learned Chief Justice, that, if any ryot claims any higher right than that above expressed, he must prove it altogether independent of the provisions of Act X ; that upon him lies the whole onus of proving some ancient tenure and custom prior to the Permanent Settlement under which he can claim some other rate. I cannot take this view of the nature and intent of Section 6. Its form is altogether declaratory. It may be, and probably is, the case, that, in substituting for the previous uncertainty a new and comprehensive (1) 1 Marsi., 161 ; W. R., Special Vol., 48, 131 ; on review, 148, 260 FULL BENCH KULINGS. 1865 definition, some persons were included in the terms of the definition Thakookanee whose claims were not before well established ; but it seems to be quite V. beyond doubt that it was the intention of the Legislature to declare MooKEBjEE. existing rights, not to create wholesale an entirely new class of rights. No general right of occupancy is given to all tenants who have held for twelve years. By the terms of Section 6, express exception is made in regard to " land belonging to the proprietor of the estate or tenure," that is, land absolutely owned by him as distinguished from the ryoty land. When such land called " khamar, nij-jole, or seer " is let either for a term, or year by year, as also when the land of occupancy ryots is sub-let by them, no length of holding gives a right of occupancy. Further, as respects ryoty land, by the express provisions of Section 7, every written contract inconsistent with the right of occupancy overrides all claim to such right, it being reasonably assumed that, in the absence of express written contract, the ordinary custom prevailed and the ordi- nary prescription ran. The declaration establishing a test by which the right of occupancy is to be tried only aifected those cases in which there was nothing, either in the character of the land or in the written contract, to contradict that declaration. If there could be any doubt as to the intention of the framers of the Act, as evidenced by the declaratory form of the words, it is set at rest by the actual recorded expression of those intentions. Among the papers printed and put into our hands on the trial of this case, is an extract from the Report of the Select Committee of the Legislative Council, which settled the details of Act X of 1859 ; and this shows exactly how this 12-year clause got into its present position. This passage is as foUows : — ■ " Section. 6. — The laws in force speak of khud-hasht ryots as pos- sessing rights of occupancy, and in some places the word ' khud-hasht ' seems to be considered as synonymous with resident' (1). ' Resident' was therefore the word used in the original Bill. But it has been pointed out by the Western Board that residency is not always a condition of occupancy; and it appears that, after much enquiry, it was prescribed by an order of the Government of the North- Western Provinces in 1856 as most consistent with the general practice and recognised rights, that a holding of the same land for twelve years should be considered to give a right of occupancy. We have followed this precedent, and altered the section accordingly." (1) Eegulation LI of 1795, Section 10 ; Regulation VIII of 1819, Section 11, Clause 3, luid SectioQ 18, Clause 5, FULL BENCH RULINGS. 261 It would probably not be proper to use this evidence with the view 1865 of altering the ordinary meaning of the words of the Act ; but it may Thakooeanee fairly be used to support their plain declaratory form and meaning against v. a forced and less obvious construction. It is, then, absolutely certain Mookekjee. that (whether or not they were strictly and exactly right in the definition adopted) it was the intention of the Legislature to declare and define existing rights, — not to create a new class of rights; and in that sense the plain words of the Legislature must be taken. The 12-year rule, thus declared and established, covered the great mass of resident ryots who had held so long or much longer, and relieved from the bur- den of proof ancient ryots whose proofs .could not be carried back be- yond a limited period. It amounted, in fact, to this. All holders of ryoty lands, who can prove a 12-year holding, shall be presumed to be ryots of the occupancy class, unless the contrary is proved by express written contract (under section 7). If, in Bengal, some comparatively few 'py-hasht ryots were wrongly included in the definition, that is an accident, and not the rule. This creature of Act X, whom it is sought to make the normal occupancy-ryot, seems to be, in practice, a rare crea- ture. He is more common in theory than in actual cases. Probably most of those to whom the old custom did not give such rights do not now assert them. At any rate, in all the cases which have given rise to ^ this reference, the ryot claims much older rights, and the real contention is almost always with men of a much higher class. In Hills' case (1) the ryot, we gather, claimed to have held from ancient times, and it was admitted that he had held for at least thirty years. In the present cases, no attempt is made to contradict or deny the ryot's assertion of ancient holding. There is generally little or no contest about the occupancy character of the holding. It would then, it seems to me, be most unjust to assume (till the contrary is proved) that the occupancy-ryot whose right is tested by the definition declared by the law, is a mere creature of Act X, who had no rights whatever before that Act passed, and so to throw on him that burden of proof of which it was the very object and essence of the law to relieve him, — a burden which, if, according to a hard construction, it is necessary to prove his holding from before the Permanent Settlement, it will now at this distance of time be almost impossible for him to bear. Such a construction would, in fact, reduce the great mass of the ancient ryots to the status of the most recent holders. (1) 1 Marsh., 151; W. B., Special Vol., 48, 131 ; on review, 148. 262 FULL BENCH RULINGS. 1865 It seems to me that the presumption aud onus are now quite the other Thakooranbe way ; and that any argument founded on the recency and character of a ». holding which comes within the definition prescribed by law, must be MooKEKjEE, supported by proof that the tenure really is one of the recency and cha- racter on which the argument is based. The right of occupancy is declared by the law — that is not now in question — but for other questions connected with the incidents of such tenure, it must, I think, be presumed that every man who comes within the definition is an occupancy or khud-kasht ryot according to the cus- tom of the country, and that his tenure has the ordinary incidents of such a holding according to the ordinary custom : — all this should be presumed till, at least, the contrary is proved. Now, it is quite certain that the ordinary and most important inci- dent of an occupancy tenure is a right to hold at a customary rent accord- ing to the usage of the places adjacent. It might be a question whe- ther the effect of a new definition, which might include in the class of occupancy-ryots some persons not before belonging to that class, would be to promote them to all the privileges and incidents of the ordinary occupancy tenure. I think that at any rate every occupant ryot must be prima facie presumed to hold under the ordinary customary law and subject to the ordinary incidents ; that if it be proved that the tenure was hitherto subject to other incidents, then in such a case the new law may be construed strictly, and only those new lights will be acquired which the law expressly gives or the custom presumes on points uncon- tradicted by evidence ; when other incidents, not absolutely inconsistent with the right of occupancy given by the law, are proved, then those incidents will continue attached to the occupancy tenure. We deal then, first, with the ordinary occupancy-ryot, whose rent is not shown to be otherwise than an ordinary customary rent. How is that rent to be enhanced on account of increase in the value of the pro- duce ? It seems to me to be certain that the customary rent represents the proportion of the produce which was the ancient right of the ruling power ; and that if that rent be, as it were, resolved into its original elements, it will, when expressed in money, increase with the increase in the value of the produce exactly in proportion to that increase. The old proportion of the produce, the right first of the Government, and afterwards of the zemindar, was in Bengal commuted into pergunna rates expressed in money. Those peigunna rates were in course of time transmitted in a somewhat altered form, and became the modern FULL BENCH RULINGS. 263 "rates paid in the places adjacent." But still these modern customary 1865 rates of the present day are the direct descendants of the old rates Thakooranee expressed in the form of a proportion of the produce. So long as the l5 jQijn*QTJTr|? grain rates were from time to time converted into money, they rose in Mookerjee. proportion to the increase of value : and since they have been perma- nently commuted into money rates, no other rule of enhancement is any- where to be found. The only other systematic mode of enhancing the customary rates known to history also follows the method of proportion, viz., that by " abwabs,'' or cesses, added to the " assat," or original rates, in the shape of a percentage or proportion, as clearly shown by Sir John Shore in the extract and example quoted from him by Harington, Vol. Ill, p. 435:— " At present there are many abwabs or cesses collected distinct from the nirih, and not included in it, although they are levied in certain proportions to it. The following abstract of a ryot's account will show, the mode in which this is done : — Kent of bigas 7-12-7 of land ... ... ... Ks. 14 8 Abwabs or Cesses. Es. A. Gs. Cs. Chout at 3-16ths per rupee .. 2 10 Pulbandi, l-24th of the jumma 9 7 2 Nazzerana, l-12th Mangan, l-12th ... 1 1 2 2 15 15 Foujdaree, l-16th ... 14 15 Company's Nazzerana, 1 month aud-a Batta, one anna per rupee •quarter's rent 1 7 14 o -tn n n Total ... 22 12 10 Khelat at IJ anna per rupee of the ab ove sum 2 2 12 Total ... 24 14 12 0' History and equity seem to me both directly to point to the rule of proportion, that is, that as the value of produce increases, the rent should increase in the same proportion. As respects the other mode by which the whole increased value is added to the rent and given to the landlord (still dealing with the ordi- nary occupancy-ryot holding on a customary rent), it seems to me — First. — That it is inequitable to give to one of two parties interested in the soil the whole of any profit arising from it ; and Second. — That it is at variance with the old arrangement between the parties, and the old practice, and inconsistent with the nature of the customary rents, 2 64 FULL BENCH RULINGS. 1865 Third. — This mode seems to me to necessitate the consideration of ele- Thakookanee ments of calculation not contemplated by the law, and to become in DOSSEE V. practice impossible of application. In order to ascertam the compara- ElSHESTTTTR • MooKKRjEE. *'^® o'' proportional increase of value, it is not necessary to ascertain the actual gross produce of the land at either one period or the other, but only the relative value of the staple products at the two periods. Mere price currents, showing, e. g., the market price of rice at the different periods, are sufficient to show that the value of the produce of rice-fields has doubled (increase of productive power not being alleged). But to ascertain the absolute increase of the value of the gross produce, we must begia by ascertaining not only the price current, but also the actual quantity produced. Nor is that enough. It is manifest that, with the general increase of prices, the cost of production will also ordinarily more or less increase (in fact, the food of men and cattle, and many other things are directly affected by the same increase), and to give to the zemindar the whole increase in the gross value of the produce would be a great injustice. Hence every such calculation supposes that the cost of produc- tion at either period must also be calculated. This is introducing a new element not mentioned in the law, and it involves a much more difficult calculation, such as was attempted in Hills' case (1). I believe it to be beyond dispute that, in practice, it is wholly and absolutely impossible for the Courts to arrive at a safe and correct result, showing the true rent and actual net increase of value by this process. It may, in some places, be possible to ascertain market rates of rent ; but to ascertain the true rent by the process indicated in Hills' case is, I believe, wholly impossible. I would, therefore, reject this mode as being — 1. — Not fair and equitable. 2. — Contrary to custom and law. 3. — Practically impossible. To return to the method of proportion. A subsidiary question has been a good deal argued, viz., whether, before applying it, the cost of production should also be taken into consideration. It is said that the cost of production may not always exactly follow the value of produce ; that it may sometimes increase in a greater or less proportion relatively to the increase in the price of produce, or may remain stationary, or decrease when prices increase, or vice versa. The latter supposition is not probable in this country. As has been said, many of the items which enter into the cost of production are identical with those which (1) 1 Marsh., 151 ; W. E„ Special Vol., 48, 131 ; on review, 148. FULL BENCH KULINGS. 265 mate up the value of products, or very closely follow them ; and some 1865 of the objections to dealing with this element have already been noticed. Thakooranbk It may, however, be admitted that, more or less, the increase in cost of ». production may somewhat vary from the ratio of increase of value of mookkrjbb, gross produce ; and it might be the strictest theoretical equity to cal- culate first the net value of produce after deducting the cost of produc- tion, and then to apply the rule of proportion to this net value. I think, however, that the law contemplates, as ground for increase of rent, the gross value of the produce, and not the net value. The cost of production is not mentioned, and no increase of rent could be sought on the ground that the cost of production has decreased. That would be one of the accidents, the advantage of which is left to the ryot. Then it is certain that, in the original division of the produce on which the customary rent is founded, no variation is allowed on account of variable cost of production. It is presumed that, in a rough and general way, the value of produce and cost of production, sooner or later, follow one another. In fact, originally, there was hardly any such dis- tinction. No money calculation entered into the matter. The ruling power took its share of the produce ; the ryot and his family and his cattle consumed their share, and paid out of it in grain the dues of the village carpenter and blacksmith and weaver. It is there- fore only consistent in following out the old analogy to follow it out in the old way, not in a new way. However theoretically equitable, a calculation of the costs of production would, in practice, only introduce an elemeiit of confusion not contemplated by the law. As a decrease in the cost of production, the value of produce remaining stationary, would clearly, under the law as it stands, be the profit of the ryot ; so if the rate of increase of some items of the cost of production somewhat lags behind, and is slower in attaining its maximum than the increase in market value of produce, that also is an accident which the law and custom give in favor of the lyot. la the more improbable case in which the cost of production might increase in a greater ratio than the value of produce, that might be an accident against the ryot. But my own opinion is that ordinarily this can happen only in countries where corn is largely imported, and that is certainly not likely to be the case in Bengal and the valley of the Ganges. In this country a great labor market has always greatly raised the price of grain ; witness much recent experience in many parts of India. And it may be observed, as a means of getting over any theoretical difficulty arising on that score, that there is a singular difference between sections 17 and 18 of Act X, K K 266 FULL BENCH EULINGS. 1865 which can hardly be mere accident, viz., that, while section 17 strictly Thakookanee provides that there shall be no enhancement, except on one of three DOSSEK specific grounds, section 18, immediately following, merely declares 'MooKBKjEE. certain grounds of abatement, but omits the words which would limit all abatement to those particular grounds. It may be that if, by an extreme accident, an excessive increase of cost of production, without corresponding increase in prices, rendered the ryot's rent, as adjusted by custom and proportion, permanently higher than the market value, he might claim a reduced potta on general grounds of fairness and equity. That, however, is beyond the present question ; and it may be generally observed that, in dealing with customary rights, we can hardly strictly apply those rules of Political Economy which assume competition princi- ples to the exclusion of custom and moral force. I think, then, that in the case of all occupancy-ryots holding on rents which may be presumed to be customary, or in regard to which no other established rule of enhancement can be shown, enhancement sought on the ground of increase in the value of produce should be decreed exactly in proportion as the current prices of the staple articles of produce yielded by the land have permanently increased. The last adjustment by mutual consent must (in the absence of any special stipulation) be considered to have been at that time the fair and equitable rent by which both parties are bound. Either party may go so far back if he chooses, but no farther. The party coming into Court must show the increase of price at the present period as compared to that period, or to a series of subsequent years. If subsequent years be taken, or the date of the last adjustment does not appear, the opposite party may carry his evidence as far back as he pleases, so that a last adjustment be not overstepped. The increase will be calculated on the average of a few years at the period farthest back (and consequently nearest to the last adjustment) so shown as compared to the average of recent years. The officer making the calculation must of course be satisfied that there is a real increase in the value of the produce likely to be durable, and that the rise in prices is not the temporary result of bad harvests, an occa- sional extraordinary demand, or any such irregular cause. Of course, the whole of the above has reference to increase souo-ht under clause 2, section 17 only. The old rule, that ryots holding for any reason (other than express and binding stipulation of the zemindar) at rates below the customary rates, can at any time be raised up to those rates, is distinctly re-enacted by clause 1 ; and exceptionally low rates can always be adjusted to the rates payable by the same class of ryots J'ULL bench rulings. 267 in places adjacent, under that clause, independent of increase on account 1865 of increased value of produce. But if the adjacent rates have already Thakoobanee been increased on account of increased value of produce, a double «. increase on that ground of course cannot be had by taking advantage Mookekjee. of the same element under both clauses. There remains only the case where it may happen that the contract under which the ryot holds, though so indefinite in regard to the term of holding as not to defeat the claim to right of occupancy, still shows that the rent was not a customary rent, and supplies materials from which some rule of enhancement other than the customary rule can be found, e. g., when the potta is for rates above the customary rates, and shows that it was based on some other calculation, or stipulates for renewal at market rates. On the zemindai-'s proving such a case (and in such a case only), enhancement may be decreed on the basis supplied by the original contract, and not on the customary basis ; provided only the case comes within the terms of section 17 of Act X as respects some ground of enhancement. Low rents on special stipulations would first be adjusted under clause 1 by raising them to the full local rates. The only difficulty as regards the practical working of the simple and direct rule of proportion would be the case in which the crops produced have been wholly changed, where, for instance, some new and valuable staple has been introduced. It may be said, you may compare rice with rice, or wheat with wheat. You may also compare two differ- ent staples, which, according to the old custom, were divided in the same proportion ; but you cannot compare rice with sugar-cane ; they are, as it were, incommensurate quantities. This case has not yet been presented to us, and I understand that in Bengal there is not the same rotation and variety of crops which we have in other parts of the countiy. Rice land, I am told, usually remains rice land, till by artificial means the character of the land itself is changed. The crop is not changed without a change on the surface of the land, by which it is removed into another class. If that be done by the ryot, the increased value of produce resulting is not a ground of enchancement of rent. But it may be necessary to meet the case of new or improved staples. It will generally happen that the introduction on the old ground of new staples, rendering it more valuable, will raise the value of the old staples in much the same proportion. For instance, the excessive rise in price and consequent extension of cotton cultivation in Western India has led to an equal rise in the price of grain. In such a case the increase of value caused by new staples may be measured by the increased price of BtSHESHITE MOOKEKJEE, 268 FULL BEFCH RULINGS. 18"5 the old staples. But if this cannot be done, it is certainly the case that Thakookaneb rice and sugar-cane (as an example) are incommensurate things. X)[)SS£B Staples of great value, which owe most of their value to the large expen- diture of capital in their cultivation, cannot be compared to those which a light cultivation obtains easily from the land. That is known and recognized by all the Revenue systems of Native States, which are generally regulated in this respect by wonderfully correct principles of Political Economy. Not only does the State proportion of different crops vary according to the nature of the cultivation required, but in arid parts of the country irrigated crops of any particular grain pay a smaller proportion than unirrigated crops of the same grain, because a greater proportion of the former is due to labor and capital. And sugar- cane, cotton, vegetables, and such valuable products always pay fixed money rates, so that the extra expenditure of capital is not taxed. When then new staples have been introduced and no sufficient measure can be derived from the increased value of old staples, in that case only it may be necessary so far to depart from the direct proportion of cur- rent prices, and equitably to estimate, as best may be, the actual increase in the annual value of the land, increasing the rent in the proportion of that increase. If such a case arises, the rule of proportion may, I think, in some shape, still be applied. To sum up, the question principally argued before us seems to be simply this : " Are the zemindars absolute owners of the soil, and the ryots persons without any other right than one recently conferred upon them, to protect them against capricious ejectment, namely, a right of occupancy at full market or competition rents ; or have the ryots also certain rights in the soil by law, custom, and prescription ? " That question we are, without disagreement, disposed to answer by saying, " all occupancy-ryots are not necessarily of one class. While some have high customary rights, others may possibly be mere tenants- at-will, recently converted into occupancy ryots." The substantial differ- ence is only as respects the onus or ordinary presumption. The majority of the Court seem to be of opinion that a ryot who has held for twelve years and upwards must be presumed to be a khud-kasht ryot; and entitled to the privileges of the " khud-kasht " of the laws till the contrary is shown ; and that if it be shown that the ryot has come in at a date subsequent to the Permanent Settlement, still, if he came into the village as a khud-kasht or resident ryot, or has held more than twelve years without any express contract and at customary rates, he must be presumed to have acquired by consent, FtJLL BENCH RULINGS. 269 la\ MooKEKjEE. necessity for demanding kabuliats through Courts arises afterwards from disputes regarding the quantity by measurement, or concerning the quality or the condition of the lands. In these cases, generally, a mere amalnama is given at first, or some deed executed providing for the future exchange of the potta and kabuliats after a certain period. Even by the Sale Law of 1859, ryots having a right of occupancy (sec- tion 37 of Act XI of 1859) are not liable to pay any indefinite and unlimited amount that may be asked. It is, therefore, evident that, in all cases purely for kabuliats, either the rates are fixed, or are simply required to be fixed, by reference to some standard, viz., the nirik of the pergunna or the prevailiug rates of the neighbourhood. No landlord can be allowed to ignore the provisions of section 17 by simply asking for a kabuliat when his real intent is to ask an enhanced rate of rents. The landlord may, both when there was and when there was not a kabuliat before, ask for an enhanced rate under section 17, and at the same time ask also for a kabuliat at the enhanced rate sued for by him, but that will not give him any right to ask for a general adjustment even of the old rents, and to pass over the restrictions imposed by sec- tions 17 and 13. When, however, a kabuliat may be asked (irrespective of any right to enhance), if the case requires a settlement of the rates, they are to be fixed according to the prevailing rates of similar lands in the neighbourhood ; and where the rates are already fixed, the amount of rent to be inserted in the kabuliat is to be summed up at that rate upon the quantity of the land which, after investigation, may be found to exist, or found to be liable to pay rents. It is therefore manifest that in ordinary cases for kabuliats, and accordingly also in suits for pottas, no question of enhancement or abatement can be allowed to be raised. If, however, when the value of the produce of the lands of his ryot ma}"- have risen, the landlord sues for a kabuliat fixing and determining the rates of rent to be paid by the tenant, he can ask only for a kabuliat, and the rents to be fixed must necessarily include the share of the enhanced value. If the rents in the neighbourhood have already adjusted themselves with reference to the altered state of things, the rents to be paid will be fixed with reference to those prevailing rates. If the rents have not so adjusted themselves, the rates prevailing before the rise in the value of the produce is first to be found out, then FULL BENCH RULINGS. 27,3 'the share of the enhanced value is to be added to it, and the total of iSftS both will represent the proper rent. Thakooranee If it be held that objection against the fairness of the old rates can v. be raised in all cases for kabuliats and pottas, the double process men- Mookbmee. tioned above must be adopted in these suits also. The object of the, law, however, appears to keep all cases under one right quite separate from others involving other rights. In the present case owing to a rise in the value of the produce upon the rents previously paid by the tenant, an enhancement is asked. It is therefore a case for enhancement, and not simply for a kabuliat, tliough a kabuliat is demanded by the plaint. It is true that a case for enhance- ment must be for the rents of past years, and in this case a kabuliat is asked for three years, and these are partly in future, still the fact of the insertion of this prayer cannot be allowed to alter the real merits of the claim. As the tenant had not given a kabuliat before, if the land- lord had said " that the ryot has not given me a kabuliat, that I have offered him a potta, that I want a kabuliat accordingly," and no men- tion had, on the ground of a rise in the value of the produce, been made of any right to ask for an enhanced rate (equal to that paid by the generality of ryots for similar lands before the rise in the value), it may have been a case for a kabuliat fixing the rents. The prayer to ask a kabuliat for three years is redundant, as no ordei- fixing the rates for three years can be granted by the Court at the suit of the landlord. For a suit like this, where virtually an additional rent is asked upon the second ground mentioned in section 17, issue of notice under section 13 before the beginning of the year for which the enhanced rent is asked, is essentially necessary ; but as no objection regarding the non-service of such a notice is taken by the tenant, it may be supposed that one was issued as required by the law. In all such cases the adjustment for one year is practically an adjustment for an indefinite period, viz., up to the time that any cause does not arise for a further enhancement or for abate- ment. Most of the ryots throughout Bengal hold without pottas and have seldom given kabuliats, yet the rents payable by them are known to the parties concerned, and are evident from papers produced when disputes arise. In the present case it is admitted that the value of the produce has risen without the agency of either the landlord or of the tenant, merely by a general rise in the value of the produce, owing either to an increase in the demand or a general rise in the price by a greater influx of gold in the country. 1 L 274 FULL BENCH KULINGS. 1865 In order to find out what is the proper rent according to the rules Thakookanee laid down by political economists, we must find out, first, the average o. yield of a stated quantity, say a biga. To find this, we have to ascer- MooKEKjEE. ^^™ *^^ yi^^'lw"3's to continue, however much the land may improve in value ? If not, by what rule is it to be increased ? Is there any rule wliich lays down the standard which is to be applied in increasing it ? and if not, is the Court to say that, because there is no custom, or because the rents have not adjusted themselves according to a custom, we will create a new custom, and declare that the custom requires the rents to be in- creased, so that the landlord's rent may always bear the same proportion to the present gross produce as the old rent did to the old gross produce ? If the rule of proportion was not the custom, how does the right, even if it exists, to hold at customary rates, entitle the ryot to have that standard applied ? Is it to be applied as a principal of natural justice and equity independent of any custom to warrant it ? lu the judgments by which the questions were submitted to a Full Bench in this case, Mr. Justice Campbell and Mr. Justice E. Jackson say that the enhancement shall be awarded in proportion to increase of the value of the net produce of the land. E. Jackson, J., says : — " I agree with Mr. Justice Campbell that the enhancement should be awarded in • proportion to the increase of the value of the net profits of the land. By this mode of enhance- ment, the original agreement between the ryot and the zemindar is retained, and both continue to share in the increased net value of pro- duce in the same proportion in which they agreed to share in the net value of the produce as it existed when the agreement was originally made. No sufficient ground is shown by either side to disturb that original agreement." There was no finding by the lower Court of any such agreement, and no evidence whatever to prove that any such agreement ever existed, or from which any such agreement could be legally presumed. The mere fact that the rent originally fixed bore a certain proportion to the value of the net produce (which could not be ascertained at the time when the rent was fixed) is no more evidence, either actual or presumptive, of an agreement that that proportion should always continue to exist, than the fact that a certain amount of rent was fixed is evidence of an agreement that the same amount of rent should always continue. There is no more evi- dence of an agreement that the proportion should always remain the same, than there is of an agreement that the amount should always remain the same. But if there was an agreement that the rent should FULL BENCH RULINGS. 329 always bear, a certain proportion to the value of the net produce, why 1865 is the rent to be fixed in proportion to the value of the gross produce ? Thakooeanee It has been contended that section 17, Act X of 1859, extends only to °°^™^ cases of suits for enhancement, and not to cases in which the ryot asks mookbwee, for a potta, or the landowner demands £^ kabuliat at an enhanced rent. This view has been apparently adopted by some, but I cannot concur in it. The Act says that, in the case of a ryot having a right of occupancy, the rent paid shall be deemed to be fair and equitable (section 5). But the 17th section says : — "No ryot having a right of occupancy shall be lia- ble to an enhancement of the rent previously paid by him, except on some one of the following grounds." When a right of occupancy exists, it appears to me that the rent previously paid cannot be enhanced, except for one of the grounds men- tioned in section 17, whether in a suit for enhancement, or in a suit for a kabuliat, or for the recovery of arrears at enhanced rates. The form of the procedure adopted by the landowner to obtain a higher rent than that previously paid, cannot alter his right. If it would, landowners would only have to sue for kabuliats at increased rents, instead of giving notice to enhance, and suing for enhancement or for the recovery of arrears of the enhanced rent. According to Ishore Ghose's case (1), the enhanced rate cannot exceed the old rent, with such additions as the grounds of enhancement warrant. It is to be the old rent with something added to it. Whatever net profit the tenant derived from Iiolding at that rent, he must, according to the decision in that case, retain after the rent lias been enhanced upon the ground of the increased value of produce. If his rent were rupees 10 or 20 lower than a rack-rent of the land under the circumstances exist- ing at the time wlien it was fixed, and consequently givinsj; him a net profit to that extent beyond the whole expenses of prodnetinn, he must continue, after enliancement, to enjoy the full benefit confei'red upon him wlien his rent was fixed, and the enlianced rent must to the same extent be lower ihan what would be a rack-rent of the premises, liaving regard to the increased value of the produce ; for it is expressly laid down that the enhanced rent cannot exceed the old rent with such portion of the increased value added to it as will render it fair and equi- table ; and that, in fixing the amount, the Judge must consider whether the costs of production, including fair and reasonable wages for labor, and the ordinary rate of profits derived from agriculture in the (1) 1 Marsh,, lh\ ; W, E., Special Vol., 48, 131 ; on review, 148. S S 330 FULL BENCH RULINGS. l-gSS ■ neighbourhood, have increased ; and if so, that he must make a fair Thakoobanee allowance on that account. In other words, all increased costs of », productioUj including wages and agricultural profits, must be deducted MoooiRjBE. ^''°°^ ^^^ increased value of produce before any part of the Increase can be added to the old rent. It is only the net, and not the gross, increase, or such part of the net increase as will render the rent fair and equitable, that can be added to it. If the market value of the land should exceed the amount of the old rent, with the whole of the net increase added to it, the landowner would not be entitled fo the full market value, but must make such a deduction as will leave the tenant the benefit of the full amount of profit which he derived from the old rent at the old value of produce ; that is to say, the new rent must be as much lower than a full rack-rent of the land after the increase, as the old rent was lower than a full rack-rent before the increase. To give the tenant more than this without the landowner's consent, would be injustice to the landowner, and consequently cannot be fair and equitable. It cannot be doubted that Act X did to some extent encroach upon the rights of the landowner when it created a new right of occupancy even at a fair and equitable rent, and limited the right to enhance to particular grounds ; for it deprived the landowner of his right to turn out those ryots who, under the old law, were tenants-at will, if they would not come to terms, or if the landowner for any cause required to have his land again. But the words of the Act are clear ; that the rent canot be enhanced, except upon certain grounds specified in section 1 7, and the Courts are bound not to enhance the rent beyond the amount which those grounds warrant. Let us see how the case would stand according to the rule in Ishore Ghose's case (1). Suppose a lyot held land for twelve years at rupees 100 rent, — that the gross value of produce when the rent was fixed was rupees 300, and all the costs of production, including labor, interest, and profit on capital (which in Ishore Ghose's case was said to be included in costs of produc- tion J amounted to rupees 100. The case would stand thus : — Rs. Value of produce ... ... ... ... 300 Costs of production ... ... ... ... 100 Net value ... ... .. ... ... 200 Rent ... ... ... ... ... 100 Byot's net profit ... ... .. ... loo (1) 1 Marsh., 161 ; W. E., Special Vol,, 48-, 131 ; on review, 148. PULL BENCH RULINGS. 331 In that case the tenant would get rupees 100 net profit, after paying i865 The ratio of tenant's IJTbX. all the costs of production, including profit on capital and wages, Thakooraneb whether his own or those of hired laborers. °^^ The ratio of rent to net value was toS or ^. net profit to net value is the same, i%% or ■^. Suppose the value of produce should be doubled, and the costs of production doubled — Ks. The value of produce would be . . . . 600 Costs of production Net value . Ryot's net profit as before Leaving for rent 200 400 100 300 If the owner''s rent were increased to rupees 300, it would not bear the same proportion to the present gross value (rupees 600), as the former rent (rupees 100) did to the former gross value (rupees 300), or the same proportion to the net value of produce (rupees 400), as ithe old rent (rupees 100) did to the former net value (rupees 200). It would be one-half instead of one-third of the value of gross produce, and three- fourths instead of one-half of the net value of pi'oduce, yet the ryot would still have the same amount of net profit as before. Unless the ryot is made a co-proprietor by Act X of 1859, there i« no reason why his net profit should exceed that which he derived from his fonner rent under the old circumstances, and the landowner be debarred of bis right to let theUand for I'upees 300, if he could procure that amount by competition from ryots who would be satisfied with a clear net profit of rupees 100 over and above all expenses of production. If the ryot is not contented with the same amount of profi,t as be made before the rise in prices, he is not bound to remain. He can give up his hold- ing. His right of occupancy does not bind him to remain. It only binds the landowner not to turn him out. Whether it would be the interest of ithe landowner not to allow the ryot some addition to his fonner net profit, is another matter. In this respect the demand for labor and rthe necessity of giving the ryot some interest to exert himself would be the ryot's security for liberal treatment by the land-owner. The landowner is not bound to allow his ryot to have a net profit of rupees 200 out of rupees 400, because, in fixing the rent in the first instance, he allGwed •him to hold at such a rent as in fact gave him a net profit of rupees 100 out of rupees 200. The two eases are very difierent. If the ryot coald show 332 FULL BENCH KULINGS. 1865 that, by reason of a stipulation in the contract, or by prescription, he was Thakooeanee entitled to have a particular share of a net or gross produce, the case would V. of course be different. But the mere fact of his rent having been fixed MooKEKjEE. originally at rupees 100 lower then the rack-rent, or at such an amount as did in fact give him a net profit of rupees 100 out of a gross value of rupees 300, or out of a net value of rupees 200, does not show that the landowner was bound, either by prescription, or contract, or custom, to adjust the rent for ever at such a rate as would give him a net profit of one-third of the gross, or one-half of the net, produce, whatever might be the amounts. It might with as much reason be said that the ryot was always entitled to hold at rupees 1 00 rent whatever might become the value of the land, because, when the rent was first fixed, he was allowed to hold at rupees 100. If all the ryots in the district had had their rents adjusted, so as to give them a net profit of rupees 100 out of rupees 200, it would not create a custom or a right for them all to have a net profit of rupees 200 if the value of net produce should increase to rupees 400. Every one knows that a business which gives very large gross returns is generally more valuable in proportion than one which gives smaller returns. The copyright of a book of which 10,000 copies are struck off and sold at the first issue, would, cateris paribus, generally be worth more than ten times as much as one of which only 1,000 copies are struck off and issued. The reason is that the one gives larger net pro- fits than the other. The author would not probably sell the copyright of the two books at prices bearing the same proportion to the number of copies issued, nor pay a publisher for publishing and printing the works the same proportion of the gross proceeds of the sale of the 10,000 copies as he would of the 1,000. Why then, should a landowner be legally bound to allow a ryot to hold at a rent which, under the altered circumstances, would yield a net profit of rupees 200 out of a net value of rupees 400, because ho once allowed him to hold the same land at a rent which gave him a net profit of rupees 100 out of a net value of rupees 200 ? There is nothing in the Act which declares that he is 60 bound 5 and if he is not declared to be so, it is only by the Court's construction of what is fair and equitable that he becomes so bound. I confess that I cannot see the equity, or justice, or fairness of such a decision. Having shown that the rule in Ishore Ghose's case secured the tenant as large a net profit under the altered circumstances as he derived from the old rent at the time when it was originally fixed, I will now consider the equity and justice of the rule of proportion. FtJLL BENCH KULINGS. 333 It is said that the rent to be fixed must bear the same proportion to 1865 the present gross value of produce as the old rent did to the former Thakookanee , p , DOSSEE gross value oi produce. „. Suppose it should be proved that an agricultural laborer, without any MooKBKraB, capital or property, fourteen years before the passing of Act X of 1859, applied to a zemindar to allow him to enter upon lands which had been abandoned or deserted by a former ryot who had held as tenant-at-will ; that the zemindar consented ; that the parties agreed upon a rent, say rupees 100, without any stipulation or agreement as to the basis upon which the rent was fixed ; that the ryot entered and occupied from year to year, and continued in possession upwards of twelve years before Act X and up to the present time ; that when the land was first let, the gross value of the produce was rupees 300 ; that all the expenses of cultiva- tion, including labor, interest, and profit upon capital, and every other incidental expense of production, amounted to rupees 100. Suppose it should be further proved that the value of the produce had increased from rupees 300 to 900, and that expenses of cultivation had been doubled. This is not an improbable supposition ; for in the present case, it was found that the former value of the produce was rupees 4-8 per biga, and the present value rupees 15 ; the former expenses rupees 1-4, and the present expenses rupees 3. The case would stand thus if the rule of proportion is to apply : — Before Increase. Rs. Former gross value of produce . . . 300 Expenses of cultivation .... 100 Former net value of produce .... 200 Landowner's rent . . , . . 100 Net profit to ryot after paying all expenses of cultiva- tion 100 After Increase, Present value (rupees 300 trebled) . . . 900 All expenses of cultivation (rupees 100 doubled) . 200 Present net value of produce .... 700 Landlord's rent (rupees 100 trebled) . . . 300 Eyot's clear profit ..... 400 The ryot received out of gross produce rupees 200, viz., rupees 100 for costs of production, and rupees 100 for net profit. The ratio of ryot's clear profit to gross value was formerly ^ = i The ratio of ryot's net profit to net value was ... ... igg = | " The ratio of rent to net value .. ... ... sot = ^ and the amount of rent and the amount of ryot's net profit were equal. 334 FULL BBNOH RULINGS. 1865 But under the altered circumstances, if the rent must bear z the same proportion to the present gross value of pro- DoasEE duce, as the former rent did to the former gross value of *'• produce, the ratio of ryot'a net proiit to gross value BlSHESHUR .,, , ^^oo — ^ MooKBBJKj:. ■•• ••• •■■ •■• ••• •■• sws — 9 Ratio of ryot's net profit to ne< value of produce ... 4t§ ^ t Ratio of rent to net value will be ... ... ... 7§§ = 4 and the ryot's net profit will exceed the landlord's rent by one-seventh of the net value. Thus, whilst the ratio of the ryot's net profit to net value is increased from i to ^, the ratio of the landowner's rent to net profit is reduced from i to ^, and the ryot, instead of having a net profit of rupees 100, has now a net profit of rupees 400, which is rupees 100 more than the land- owner's rent. Again, suppose that, in the course of the next twenty or thirty years, the present gross value of produce should be trebled, and the pre- sent costs of production doubled, the case would stand thus : — Rs. Gross produce (rapees 900 trebled) ... 2,700 Expenses of cultivation (rupees 200 doubled) 400 Net value of produce ... ... ... 2,300 Rent (rupees 300 trebled) ... ... 900 1400 i3 60 = 14 900 — A Net profit to ryot ... ... ... 1,400 Ratio of ryot's net profit to net value Ratio of rent to net value and whilst the ratio of ryot's net profit to net value would be increased from 4 to fISS or ii, the ratio of rent to net value would be further reduced from t to ^-iwB or ^V, and the ryot instead of having a net profit of rupees 100 as at first, or of rupees 400 after the first increase, would have a net profit of rupees 1,400, whilst the landlord would have only rupees 900 as rent. But suppose the ryot, instead of continuing to hold and cultivate the lands, should have ceased to live in the village, and should have under- let them to another ryot who had held them for twelve years when Act X of 1859 came into operation. The occupation of the under -ryot would not give him a right of occupancy as against the original ryot, for section 6, Act X of 1859, declares that the rule which gives a right of occupancy does not apply as respects the actual cultivator to lands sub-let for a term, or year by year, by a ryot having a right of occupancy. FULL BENCH RULIFGfS; 335 The first ryot could, therefore, tura out the under-iyot, and would thus i865 be enabled to obtain a competition rate of rent, or the market value of Thakooeanee ., , , DOSSEE the land. „. In the case above supposed of the value of produce (rupees 300), having mookewee. trebled, and the expenses (rupees 200), doubled, it has been shown that the net value would be rupees 700, the rent rupees 300, and the net profit rupees 400. If the first ryot should re-let the lands for rupees 600, the under-ryot would make a net profit of rupees 100, the same amount as was made by the first ryot when he first took the lands. In that case the first ryot would have a net rent of rupees 300, for he would receive rupees 600 as a competition rent from the under-ryot, and have to pay only rupees 300 to the landowner according to the rule of proportion. Thus, instead of being a mere agricultural laborer without capital or property, as he was when he first hired the land fourteen years ago, he would become a quasi landed proprietor, receiving from the under-ryot a net rent of rupees 300, equal to the rent of the real landowner. If any rule of proportion is to be applied as a test of what is fair and equitable, which I deny, the rule that the ryot's net profit under the new circumstances shall bear the same proportion to the present net value of produce as the former net profit did to the former net value, would be more fair and equitable than the proposed rule of proportion. In that case the new rent would bear the same proportion to the present net value, as the former rent did to the former net value. If the revenue settlement had not been made permanent, the Govern- ment would, at the next settlement, after the increase in the value of produce, assuming that it was likely to be permanent, have increased the revenue assessment, and, under the old practice, would have taken two- thirds, or, according to the practice now adopted in the North- Western Provinces, one-half of the net produce. {See Directions to Revenue Officers, page 3.) It is there said : — " It is needless to enquire who, theoretically, is the owner of the soil. Undoubtedly, traces are often to be found of the existence aud exercise of a proprietai-y right in the land on the part of the individuals. But so long as the sovereign was enti- tled to a portion of the produce of land, and there was no fixed limit to that portion, practically the sovereign was so far the owner of the land as to be able to exclude all other persons from enjoying any portion of the net produce. The first step, therefofe, towards the creation of a private proprietary right in the land, was to place such a limit on the demand of the Government as would leave to the proprietors a profit which would constitute a valuable property. This is effected by provid- 336 FULL BENCH RT7LINGS. 1865 ing that the assessment shall be a moderate portion, say two-thirds " Thakooranee (now one-half), " of the net produce at the time of settlement, and that °„ the proprietor should be allowed all the benefits from improved or MooKEMEE ^^tended cultivation, which he may be able to obtain during the currency of his lease. This was further effected in most of the districts in the Lower Provinces, by making the settlement permanent, and declaring the property in the soil to be vested in the landholders." If the settlement had not been made permanent, the Government revenue in the case supposed of the net value of produce being increased from rupees 300 to 700, would, according to the rule of taking half the net produce, have been increased to rupees 350, and the landowner would have been entitled to receive from the ryot at least half as much again as the Government took from him, and would consequently have been entitled to rupees 525, i. e., rupees 350 Government revenue, and one-half as much again, viz., rupees 175. The rules which regulate the respective rights of the Government and the landowners, where the settlement has not been made permanent, are shown in paragraphs 135 and 136 of Directions to Settlement Officers : — " When the Government fixes its own demand upon an estate, i. e., at the time of settlement, the Government officer is competent to fix the rates payable by the cultivator to the proprietor. He will be very careful not to do this arbitrarily, but he will refuse to admit the princi- ple that, because a cultivator paid a low rent before the settlement, he is entitled to hold at the same rate, notwithstanding the Government demand has been re-adjusted. As a general rule, open to exceptions in special cases, the proprietoi's should be held entitled to raise the rent upon the cultivator till it reach half as much again as the average Government assessment upon land of the same quality. " When the Government restricts its own demand upon the proprietors, it does not prohibit the proprietors from raising their terms upon the cultivators, in such amount as may be equitable duiing the period of the settlement. General circumstances affijcting the whole pergunna, such as the opening of new markets for the produce, the introduction of new articles of produce, increased facilities of irrigation, or a fall in the value of money, or circumstances having local effect in the village, such as the establishment of a ganj or hat, the new direction of a road, or the eonstructiou by the proprietors of some work for irrigation " (and I may add the proximity of a railway), "may all render it equitable that the proprietor should dem9.nd a,n iucreased rent, though the Government FULL BENCH KULINGS. 337 jumma remain the same. The law has made provision for securing this 1865 right to the proprietors, fair opportunity Jiaving been afforded to the Thakooranee cultivators for contesting their demand." Dossle The rules adopted in the North- Western Provinces, as described in the Bisueshur above paragraphs, are strictly iu accordance with the ancient laws of the country, by which (as declared in the preambles of Rogulations XIX and XXXVII of 1793) the ruling power was entitled to a certain proportion of the produce of every biga of land, and with the established custom or usage by which (as declared in section 7, Regula- tion I of 1793) the rulers have from time to time demanded an increase of the assessment from the proprietors of laud; and for the purpose of obtaining this increase, frequent investigations have been made to ascertain the actual produce of their estates. The Government, no doubt, would generally take the rents received by the land-owners as the basis of the revenue assessment, both in the Lower Provinces before the Permanent Settlement, and iu the North- Western Provinces since Regulation IX of 1833, section 2 ; but if, when a new settlement is made, all the rents are too low in consequence of a considerable and permanent rise in prices, it would be necessary for the Collector to ascertain as nearly as possible what might fairly be expected to be the value of the net produce, and to assess the land in one-half the amount. "Net produce" is defined in the Directions to Revenue Officers, paragraph 52, to be " the surplus which the estate will yield after deducting the expenses of cultivation, including the profits of stock and wages of labor." By the terms of the Permanent Settlement, Grovernment pledged themselves to the zemindars that they were to have the full benefit of the assessments having been made permanent. To hold that the land- owners are not fairly and equitably entitled to receive from the ryots since the Permanent Settlement as much as they would have done if the assessment had not been made permanent, and the laud had been re- assessed, is, in my opinion, to put such a construction upon Act X of 1839 as to render it a violation of the pledge made by Government to the zemindars at the time of the Permanent Settlement ; for there is no doubt in my mind that, to give the land-holder the full benefit of that engagement, they ought to be allowed to collect as much from the laud, and to enjoy as large a portion of the net produce, without an increase of the assessment, as they would have done if the settlement had not been made permanent, and the land-holders had been re-assessed. In fact, they were to have the full benefit of (he assessment being fixed for T T 338 FULL BENCH RULINGS. 1865 ever, instead of being subject to have it increased in proportion as the Thakoorasee value of the land increased. But how can they get the full benefit of °l^^^' this if they are to be prevented by an Act of the Legislature (and that MooKEMEE. ^ retrospective one), or by a construction to be put upon it, from receiving as much from their ryots as they might have done if the assessment had been increased? I have shown that, if the assessment had not been permanent, the land-owner in the case supposed would have been entitled to recover from the ryot rupees 525 out of the net produce, rupees 700, viz., the one-half of the rupees 700 which he would have had to pay to Government as increase of revenue, and half as much more which he would have been entitled to take for himself. This would have left rupees 175 as net profit to the ryot ; in other words, the Government would have taken one-half the net produce from the zemindar as revenue, the zemindar one-fourth in addition to the one-half which he would have had to pay to Government, and the ryot the other one-fourth, which would have given him rupees 175 net profit. Whereas, if the land-holder is to be restricted according to the rule of proportion to rupees 300, being one-third of the gross produce, rupees 900, he will receive rupees 50 less than he would have had to pay to Government if the land had been re-assessed to the revenue ; and the ryot instead of getting only one-fourth of the increased value which he would have got if the land had been re-assessed, will get four-sevenths of it, whilst the land-owner gets three-sevenths. How then can it be said that the land-owner enjoys exclusively the benefit of the public assessments having been fixed for ever when the ryot gets four-sevenths, and he gets only three-sevenths of the net increase ? If a zemindar had, by the express terms of a potta, granted lands to a ryot for fourteen years at a certain rent, with an agreement that the ryot should always have a right to occupy at a fair and equitable rent, could it be contended, in construing such a document, that it gave the ryot a right to have his rent always so adjusted as to bear the same proportion to the gross value of the produce for all time as the old rent did to the old gross value ? If such a construction would be unreason- able, how can it be right to put the proposed construction upon the words "fair and equitable" in the 5th section of the Act? If we go back to early days in search for customary rights, I think we shall fail to discover any custom under which the ryots received as much as one-half or even one-fourth of the net produce after paying all the expenses of production; or that, when a money rent was fixed, a ryot having a right of occupancy had a right to prevent the land-owner PULL BENCH KULINGS. 339 from increasing it beyond the proportion wliicli such money-rent, when 1866 fixed, bore to the gross value of produce. Thakoobankb Act X of 1859 applies not only to the permanently settled districts, ». but also to the North-Western Provinces. If the Sudder Court of Agra Mookerjee. should so construe the Act as to apply the rule of proportion, it will probably materially affect the Government revenue at the next Revenue Settlement. If such settlement is to be made upon the basis of the rights created by Act X, and every ryot who has a right of occupancy, whether existing before that Act or created by it, should be held to have a right to hold at a rent bearing the same proportion to the present gross value of pro- duce as the old rent did to the former gross value of the produce, the land- owners cannot be assessed at most at a higher amount of revenue than the amount of rent which, according to the principle of proportion, they are entitled to receive from their ryots. If the land-owner is prevented by Act X from raising his rent upon the cultivator beyond a certain amount, can the Government assess him by increasing their revenue to an amount up to which he will not be entitled to raise the rent of his cultivators? But if it should be held that the fair and marketable value of the land is the rule in the North- Western Provinces, how can it, in fairness and justice to the zemindars in the permanently settled districts, be said that they are to be bound by the rule of proportion ? It is the same Act and the same words in this respect which are to bind and to be construed in the North- Western Provinces and in the Lower Provinces of Bengal. If the rule of proportion is not to prevail in the North- western Provinces, where the Government revenue is not fixed, and it ought not in fairness and equity to prevail there if the Government assess according to the net value, it ought not to be allowed to prevail and to be the rule in the permanently settled districts where the Government revenue is fixed. In the case now before us, Mr. Justice Campbell says : — " This case has been decided on the principle of dividing the increased value equally between the zemindar and the ryot ; and though in many cases such a decision might be roughly equitable, it cannot be ai^plied in all cases, and is in this case a mere arbitrary guess at equity ; a more definite rule is required." E. Jackson, J., says : — " The principle that the net increase in value of produce is to be divided half-and-half between the ryot and the zemindar is in fact no principle at all. It is established on no fair and equitable basis." Such a principle is not, in my opinion, more rough than the principle adopted by Government in the North- western Provinces in assessing the revenue at half of tlie net 340 FULL BENCH RULINGS. 1865 produce, and allowing the land-owner to take half as much more frotn Thakooranee his ryot as he pays to Government for revenue. The principle acted upon UOSSEB • u • V. HI enhancing the rent in this case by the lower Courts was not to MooKEKjEE. enhance in the same proportion as the former rent bore to the former gross produce ; but it is in my opinion more fair and equitable (if any rule of proportion is to be adopted at all) than a rent assessed in that proportion, for it is in fact in precisely the same proportion, as, according to the finding of the lower Courts, the former rent, rupees 1-10 per biga, bore to the net value, rupees 3-4, and at the same time it gives the ryot a net profit bearing the same proportion to the present net value as the former net profit of the ryot bore to the former net value. The finding was — Per Biga. Rs. A. P. Former gross produce ... 480 Expenses of cultivation ... ... ... 14 Net value ... ... ... ... ... 3 4 Rent ... ... ... ... ... 1 10 Net profit to ryot ... ... ... ... 1 10 This is more fair in my mind than the rule of proportion proposed to be adopted, without any proof that the rent was originally fixed upon the basis that the gross profits of the land w^ere to bo divided accordiug to any such principle. The rule of proportion clearly was not intended to be applicable to the first ground of enhancement mentioned in section 17. It seems to me to have been intended that, if the rate paid by a ryot was below the prevailing rate, it might, if considered fair and equitable, be raised to the amount of the prevailing rate. It surely could not have been intend- ed that it might be raised only to such an extent that it might bear the same proportion to the present prevailing rate as the old rent bore to the former prevailing rate. So, as to the third ground of enhancement that the rent may be enhanced if the quantity of land should be proved by measurement to be greater than the quantity for which rent had been previously paid, the Act did not mean that, if land should be increased in dimensions by alluvion, the tenant should necessarily pay for the new accretion rent at the same rate or in the same proportion per biga as for the old cultivated land. If the rule of proportion did not apply to the first and third grounds, why should it be held to be applicable to the second ? FULL BENCH RULINGS. 341 If we were eutitled to do what is roughly equitable, instead of decid- 1865 iug upon accurate and correct principle, I think the most equitable Thakookanee 1 • lit JJOSSlfiii thing would be to give the land-owner three-fourths, and the tenant one- v. fourth of the net increase according to the rule adopted in the North- Mookerjee. Western Provinces of giving Government one-half, and allowing the land-owner to increase his rents upon his ryots until they amount to half as much again. It could not be necessary for the protection and welfare of the ryots, and in order to prevent them from being improperly loaded with unwar- rantable exactions, to pass a law which would prevent a land-owner in the permanently settled districts not only from taking such a proportion of the net produce as a laud-owner in the North- Western Provinces would be allowed to take, but even to resti-ict him from taking as much of the net produce as the Government in the Nortb-Westem Provinces at present think it fair to take as the Government's share of the net produce. I need not point out the extent of injury which a zemindar will sustain if, throughout his whole zemindari, every ryot with a right of occupancy is to be converted into a part proprietor with an interest equal to or even greater than that of the zemindar himself. To raise the status of the ryot, and, instead of leaving him as au agricultural laborer without capital or property, to convert him into a co-proprietor with interests equal to or greater than those of the zemindar, would, doubtless, be very benevolent if one were to do so at his own expense. But for the Legislature to do so by sacrificing the rights of the zemindar would, as it appears to me, so far from being fair and equitable, be an act of the greatest injustice. I cannot, therefore, think that the words " fair and equitable " ought to receive such a construction as that proposed to be put upon them. Entertaining the opinion which, after much reflection and labor, I have formed in this case, I feel that I should not be justified in yielding that opinion out of deference to the opinions of my learned colleagues. On the contrary, I should consider that I was holding that the Legislature, iu passing Act X of 1859, had violated the engagement which the Govei'n- meut made with the zemindars at the time of the Permanent Settlement, and had exercised a power which, Government stated, no longer existed, when in Regulation II of 1793 they declared, iu the most emphatic language, that " no power would then exist in this country by which the rights vested in the land-holders by the Regulations could be infring- ed, or the value of the landed property affected; that land must in con- sequence become the most desirable of all property, aud the industry of 3 42 FULL BENCH RULINGS. 1865 the people would be directed to those improvements in agriculture which Thakookanee were as essential to. their own welfare as to the prosperity of the State." a. I answer the first question by stating that I still adhere to the rule nZIZll I'^id down in Ishore Ghose's case (1). As to the 2nd question — We are asked, if the customaiy rate of the neighbourhood has not been adjusted with reference to the increased value of produce, then on what principle is the enhancement of that customary rate to be adjusted? I confess I do not clearly understand the question. There is consider- able confusion in the question, and also, in the judgment in which it was propounded, in the use of the words " rate of rent." Sometimes the word " rate '' seems to be used as meaning the amount of rent, and sometimes as meaning the standard by which amounts are to be adjusted. The Courts have not the same power as a Collector at the time of making a settlement of fixing the rates payable by all the cultivators in a zemindari or per- gunna. If no custom is proved, or no standard proved, the Court cannot make a new custom, or a new customary standard. Each case must stand upon its own merits. If the rule of proportion is to apply, and all ryots of the same class are entitled to be assessed at the same rate for lands of a similar descrip- tion and with similar advantages in the neighbourhood, they ought all to be assessed at the prevailing ratio of rent to gross value of produce. But if there is no such prevailing ratio, there cannot be any customary rate of proportion. The rule of proportion adopted cannot then depend upon custom. There is no finding or evidence of any such prevailing ratio, or of any other custom, for adjusting the rents. This, in fact, brings us round to the first question in cases where there is no proof, either direct or presumptive, that the ryot is entitled to have his rent adjusted according to a particular custom, or by a particular standard, or in a particular proportion. In such case I think the proper rule for adjusting the rent is that laid down in Ishore Ghose's case (I). The old custom, if any could be proved, would probably be found to give the ryots not more than a subsistence; the portion of the gross produce which was formerly allowed to them was not often more than sufficient to pay for their wages as laborers with sach amount as was necessary to repay the advances for seed and implements of agriculture. I do not believe that any custom could be found which would give the (1) 1 Marsh., 151 ; W. R., Special Vol., 48, 131 ; on review, US. FULL BENCH RLTi^INGS. 343 ryot as much as half of the net value of the proilnce when the Govern- 1865 ment used to take half or two-thirds of it for revenue. Thakooranee Three preliminary objections have been made — v. Is^— As to whether section 6, Act X of 1859, applied to cases in mookewee. which the twelve years' holding was wholly before, or partly before and partly after, the passing of the Act; or whether it extended only to cases in which there should be a holding for twelve years after the passing of the Act. 2nd. — As to whether a landlord could sue for a kabuliat at an enhanced rent, without having given a notice of enhancement, as requir- ed by section 13 of the Act. 3rd. — Whether he could sue for a kabuliat, without tendering a potta. As to the first of these questions, the words " has cultivated or held for a period of twelve years," as used in section 6, would seem to apply to cases in which the holding was prior to the Act, whereas the words " whether it be held," &c., appear to have reference to the future ; but looking to the preamble and the whole scope and tenor of the Act, I think it was intended by the Legislature that a holding for twelve years, whether wholly before or wholly after, or partly before and partly after, the passing of the Act, should entitle a ryot to a right of occupancj'. As to the second point, I am of opinion that a land-holder cannot sue for a kabuliat at an enhanced rent, without giving the notice required by section 13, ActX. In all the cases which were decided as analogous lo Ishore Ghose's (1), some of which were suits for kabuliats, the notice to enhance was admitted. Section 13 enacts that the ryot shall not be liable to pay a higher rent than the rent payable for the previous year, unless a written notice shall have been served on such ryot in or before the month of Chaitra, specifying the rent to which he will be subject for the ensuing year, and the ground on which an enhancement is claimed. If the ryot is unwilling to pay the enhanced rent, he may give up the land under the provisions of section 19, which enacts that a ryot who desires to relinquish land held by him shall be at liberty to do so, provided he give notice of his intention in or before the month of Chaitra of the year preceding that in which the relinquishment is to take effect. If he fail to give such notice, and the land be not let to another person, he shall continue liable for the rent of the land. It is admitted, I believe, on all hands that a suit for a kabuliat at an enhanced rent for the current year in which the suit is brought cannot be main- tained, without a notice served in or before the month of Chaitra in the (1) 1 Marsh., 151 ; W. K., Special Vol., 48, 131 ; on review, 148, 34 1 FULL BENCH RULINGS. 1865 preceding year ; but it is contended that the suit for a kabuliat at an enhane- TiiAKooRANEE sd Tent commenced iu or before the month of Cliaitra in auy year, is tanta- . r. mount to anotice to enhance, provided the kabuliat is not to have effect until itooKKHjKE. S'ft^r the expiration of the month of Chaitra iu the year in which the decree is given. In the present case the suit was commenced on the 3rd February 1864 before the expiration of the month of Chaitra; it did not ask for a kabuliat for the ensuing year, but simply for a kabu- liat; but possibly it must be intended that the plaintiff asked for a kabuliat for the ensuing agricultural year, and that the decree which is general is that a kabuliat is to be granted for the ensuing year at the enhanced rent fixed. But still I am clearly of opinion that the plaintiff had no right before the end of Chaitra in one year to ask for a decla- ration that he would be entitled to a kabuliat for the next year at an enhanced rent. The decree in such a case could only be on condition that the ryot thinks proper to continue his holding after the end of Chaitra, for he may relinquish his holding under section 19 if he gives notice of his intention in or before the month of Chaitra. If such a suit can be commenced in Chaitra, the last month of the agricultural year, to declare the right to have a kabuliat in the ensuing year, it might also be commenced in Baisakh, the first month in the year, or in any intermediate month between Baisakh and Chaitra, to declare that the land-owner is or rather will be entitled to a kabuliat at au enhanced rent in the ensuing year. The tenant, if the suit can be so commenced, must either- defend it or not. If he does not defend it, the suit may be tried ex parte and determined against him. If he defends, he must either incur the expense of employing a mooktear or vakeel, or he must waste his time by going to the Court, and waitino- there till his suit has been heard ; and this, if the suit be commenced at a particular time of the year, may drag him away from his home during harvest or seed time. Would it not be a complete answer to such a suit commenced iu Baisakh for a kabuliat for the ensuing year, to say — " The time Jias not arrived. I may be dead before next year, or I may think fit to give up possession iu Chaitra next, or there may be a drought, and thei-e may be no increase in the value of produce, or of the productive- powers of my land ; for all I cau say now, the value of my produce next year may be nil. The suit cannot be determined now ?" To decide in May 1865 to what amount the rent for 1866-67 ought to be enhanced in consequence of an increase in the value of produce, in order to fix the rent at which a lease for 1866-67 ought to be decreed, rULL BENCH RULINGS. 345 would involve the necessity of the Court's proceeding on speculation as i860 to what might be, instead of acting on an existing or past state of facts. Thakoobaheb Then, why allow a tenant to be harassed by such speculative action ^°^^'^^ to determine what he may or may not be liable to do next year ? Surely -Bisheshuk litigation in the mofussil is harassing enough at present, without adding to it by allowing a zemindar in 1864 to commence a suit to declare that he will be entitled to a kabuliat in 1865 if certain events do or do not happen in the mean time. It has been suggested that, if a zemindar sues for a kabuliat at an enhanced rent, he may enhance without reference to the grounds of enhancement mentioned in section 1 7. This point I have already referred to in another part of my judgment. As to the other point, whether a land-owner can sue for a kabuliat at an enhanced rent without first tendering a potta. Such a suit has in substance a two-fold aspect : first, to enhance the rent, and to declare the rate to which it is liable to enhancement ; and, second, for a kabuliat at that rent. I think the suit may be maintained, if notice of enhancement has been given, for the purpose of determining the amount to which the rent may be enhanced. A decree in such a suit will have the efifect given to it by section 81, Act X of 1859, which declares that, if a person who is required by a decree to execute a kabuliat refuse to execute the same, the decree shall be evidence of the amount of rent claimable for him, and that a copy of the decree under the hand and seal of the Collector shall be of the same force as a kabuliat executed by the said person. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Shumboonath Pundit. SITAE AM SAHU (Dependant) v. MOHAN MANDAR (Plaintiff).* iggs Sale of Decree — Subsequent Execution of Decree by Vendor, and Purchase of 1 Property under it at Auction-sale — Construction 1341 of ilth June 1842. The plaintiff purchased lands which had been pledged to the defendant on a bond, and, subsequently, in order to prevent their being taken in execution of a decree obtained by the defendant for the amount of the bond, the plaintiff purchased the decree from the defendant, who, notmthstanding, took out execution against the lands and sold them as •though the decree had never been sold. In a suit by the plaintiff to recover possession of the lands and for reversal of the execution sale, held, it was no defence that the plaintiff had not notified this purchase of the decree to the Court in compliance with Construc- tion 1341 of 17th June 1842. The plaintilF, Mohan Mandar, instituted this suit against Sitaram, Chandra Narayan Panday, aud others, on the loth August 1860, in the * Special Appeal, No. 2001 of 1864, from a decision passed by the OiEciating Additional Judge of Bhaugulpore, dated the 18th June 1864, affirming a decision of the Principal Sudder Ameen of that district, dated the 25th January 1862. U U 346 FULL BENCH RULINGS. 1865 Court of the Principal Sudder Ameen of Bhaugulpore, for the recoTeiy SiTAEAM Sahu of possession of certain land mentioned in the plaint, and for the reversal Mohan '^^ ^^ auction-sale of those lands, which took place on 7th February Mandar. 1859, in execution of a decree which the defendant, Sitaram, had obtained in the Court of the Moonsiff. The plaintiff also asked for mesne profits from the date of the auction-sale to the date of the institution of this suit. The facts, as found by the Court of first instance, were as follows : — The defendant, Sitaram, had obtained a decree in the Court of the Moonsiff against Mussamat Puran Chowdhrain upon a bond, in which the lands in litigation were pledged to him. Previous to this decree, the plaintiff had bought the said land; and in order to protect his purchase, he bought Sitaram's right, title, and interest in the land under the decree, for rupees 205. A kabala was executed in plaintiff's favor in the name of Chandra Narayan Panday. The kabala and receipt for the consideration-money, which had been registered and filed in Court, were found to be genuine. Sitaram, after selling his interest in the decree, proceeded to execute it. The Principal Sudder Ameen made the following decree : — That, in reversal of the auction-sale of the 7th February 1859, this suit be decreed against Sitaram and Chandra Narayan Panday; that plaintiff be placed in possession of the land, the subject of his claim ; and that he do recover the mesne profits accruing from the date of disposses- sion to that of delivery of possession. The decree was upheld by the Additional Judge of the district, and Sitaram then appealed to the High Court, on the following ground {inter alia): — That the Court, at the time of the sale, had no other recorded decree-holder before it, except the defendant himself, and. that, therefore, the plaintiff's claim to be considered a decree-holder was untenable. The learned Judges of the Division Court (Batlet and Macphee- SON, JJ.) differing, the case went before a Full Bench. The judgments of the Division Court, so far as they relate to the question before the Full Bench, were as follows : — Batley, J. — The defendant's case is that the plaintiff does not prove hie alleged purchase of the decree ; and that even if he did, he cannot obtain possession by reversal of the sale, inasmuch as he did not take any FULL BENCH RULINGS. 347 steps to notify the same to the Court as required by Construction i865 No. 1341 of the 17th June 1842 (1). si^l^j^sl^ But on the third plea (2), I hold that Construction 1341 of 17th June mohan 1842 prescribes a proper rule of law, i. e., that it is essential to the Mahdak. formal recognition by a Civil Court of the transfer of a decree, that the transferor should certify the fact to the Court ; and that until such fact be so certified, the originally recorded decree-holder alone can be regarded as the decree-holder who can properly execute the decree by sale or otherwise. Applying this rule to this case, 1 am of opinion that this Court cannot, in this suit, decree possession to the plaintiff, for it could only really do so by the reversal of the sale in execution, and that sale I hold it cannot reverse in this suit for the reasons above given. I may add that the fact of the decree-holder being himself the purchaser in no way alters the case, for there is no legal prohibition to his being the purchaser. I am willing to state that the plaintiff, if so advised, will not by this decision be barred from bringing a separate action against the defendant, as his alleged vendor for breach of contract ; and on the facts found below in this case, this view may bo pleaded to show that the defend- ant ought to account to plaintiff for the property which really had been transferred to defendant, but had been appropriated by a fraudulent act of plaintiff. I would, accordingly, decree this special appeal as in this suit ; but looking to the finding of facts below as to the reality of the transfer of the decree to plaintiff from defendant, it is a case where the appeal should be decreed without costs, and with the declaration above made. Macphekson, J. — In this case it was no doubt the duty of the plaintiff (the respondent in this Court) to have taken such steps on purchasing the decree as would have prevented the possibility of the original decree- holder taking out execution, as he has done. But I do not consider that his neglect of that duty is any bar to his applying to the Court for relief ao-ainst the fraud which it is found as a fact had been practised upon him. His suit is bad so far as it seeks to I'everse the sale which has taken place. The sale must stand, and cannot now be set aside, as it was made strictly in accordance with the provisions of the law. But the appel- lant, Sitaram Sahu, was guilty of a gross fraud and breach of faith (1) Construction No. 1341 of llth June made the transfer to B., whose name should 1842. — ifeW, on a reference from the Judge of there be inserted in place of that of the Futtehpore,that, in the event of A. endorsing original decree-holder in the execution of over a decree passed in his favor to B., it is decree process, essential to the formal recognition by a Civil Calcutta, 17th June 1842. Court of such a transfer that A., the trans- Constructions of Regulations and Acts ferring party, should certify in person, or by from 1793 to 1847, 550. mookhtear appointed for the special purpose, See Act VIII of 1859, ss. 206, 208. either verbally, or by petition, his having (2) The ground of appeal stated in the case- 348 PULL BENCH RULINGS. Igg5 towards the plaintiff in taking out execution, and pui'chasiug these lands SiTAEAM Sahu himself, after he had sold his decree to the plaintiff; and it appears to Mohan ™6 ^^^^ ^ Court of Equity will fasten a trust upon the lands so purchased, Mahdar. g^jj^ ^m declare that *the appellant holds them as a trustee for the plaintiff. The plaintiff is, in my opinion, entitled at his option to re- cover either the amount realized by the execution-sale, and paid into Court, or the lands purchased, together with wasilat, on making good to the appellant the purchase-money paid by him. The plaintiff has elected to proceed against the lands, and in this suit he substantially asks for what he has a right to, although he also prays that the sale in execution of the decree may be set aside, which it cannot be. I think the decree ought not to reverse the sale, but should declare that the appellant, Sitaram Sahu, has been in this purchase a trustee for the plaintiff, and should order that possession of the purchased lands be given to the plaintiff with wasilat, the amount paid by the appel- lant into Court on his purchase being made good to him by the plain- tiff. With this modiflcation, I would confirm the decree appealed against. Mr. Paul (with him Baboo Anand Gopal Palit) for the appellant. Mr. R. T. Allan and Baboo Krishna SahJia Mookerjee for the respondent. The opinion of the Full Bench was delivered by Peacock, C. J. — This is a very clear case. The plaintiff sues to set aside an execution and a sale under it. He was a purchaser of a decree from the defendant, Sitaram. It appears, that Sitaram had obtained a bond from Chumaran and others by which the lands in question were pledged to Sitaram. Sitaram sued upon that bond and obtained a decree for the sale of those lands. Previously to the decree being obtained, and whilst the suit of Sitaram was pending, the plaintiff purchased from Chumaran and others (the defendants in that suit) the lands in question ; and in order to prevent the lands which he had so purchased from being taken in exe- cution of the decree, the plaintiff purchased the decree from the defendant, Sitaram, and that fact (as has been found by the .Court of first instance) was not disputed. Having sold the decree to the plaintiff, the defendant, notwithstanding, took out execution as he would have done if the decree had not been sold, and then he says to the plaintiff, you cannot upset my execution, because you did not comply with Construction No. 1341 of the 17th June 1842. But that Construction was never intended to enable a person in the position of the defendant, Sitaram, to commit a fraud by first selling a decree and suing out execution upon it. We think that the decision of the first Appellate Court must be affirmed with costs. FULL BENCH RULINGS. 349 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Treaor, Mr. Justice Loch, Mr. Justice Bayley, Mr. Justice Steer, Mr. Justice Norman, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice Pundit, Mr. Justice Campbell, Mr. Justice Pkear, Mr. Justice E. Jackson, Mr. Justice Glover, and Mr. Justice Macpherson. NOBBO KISSEN SINGH v. KAMINEE DASSEE. 1865 March !). Appeal, Calculation of Period allowed for — Reasonable Ground for enlarging Time — Review. The plaintiff, against whom a decree had been given, did not appeal within the twenty days allowed for that purpose; but, after the expiration of more than a month, he made an application for a review of judgment, which was refused after nine months. Nineteen days later he applied to have the time for filing Ms appeal enlarged. Held, that the application was not made in time. Sufficient cause was not shown for not having presented the appeal within the limited period. In calculating the number of days limited for appealing, the period occupied by the Court in disposing of an application for review presented during the time limited for appealing, must not be reckoned. In this case there was a decree given against the plaintiff, on the 5th Fehruary 1864, on the original side of the High Court. The plaintiff did not appeal from that decree, nor did he apply for a review of judg- ment within the twenty days allowed by Eule 38 (1) ; but on the Sfch of March he filed a petition for review. That petition was heard on the 23rd of December, and was rejected, and nineteen days after that, the plaintiff presented this application to enlarge the time for filing liis appeal. The Advocate- General (Mr. Cowie) asked for the opinion of the Court, whether the period for appeal should not be calculated fi'om the date of an order rejecting a review of judgment, instead of from the date of the origi- naljudgment. If his view be not adopted, he then asked whether, as an (1) Eule 38. (Numbered 47 in the fourth edition of Broughton's Civil Procedure Code by Wilkinson.) "An appeal from a decree or appealable order, which shall be made after the passing of these rules by a Judge or Division Court in the exercise of ordinary civil jurisdiction, shall be presented within twenty days from the date of such decree and within four days from the date of such order. In reckoning the time, the date of the decree or order shall be excluded. The time may be enlarged upon sufficient cause being shown to the satisfaction of the Appellate Court for not having presented the appeal within such limited period." 1 350 FULL BENCH RULINGS. 1865 ordinary rule, subject to exceptions in special cases, the period during NoBBo KissEN which the review was pending should not be deducted, from the period SisGH allowed for appeal. Kaminee Dassbb. The opinion of the Full Bench was delivered by Peacock, C. J. — This is an application to enlarge the time for filing an appeal against a decree, and not to lodge an appeal against an order rejecting a review of judgment, even if an appeal would lie against such an cider. The question arises whether the petitioner has brought his applica- tion in time, aud, if not, whether there are reasonable grounds for the Court to enlarge the time. Eule 38 says : — (reads.) Let us see wliether the present application has been made within the proper time. The decree was pronounced on the 5th February. Twenty days were allowed to the pliiintiff to appeal or to apply for a review of judgment. The plaintiflf tooli the whole of his thirty days, and on the 8th March he filed a petition for review. The petition was not heard until the 23rd December when it was rejected. From the 8th March until the 23rd December, the case was tied up by the petition for review, it was not until nineteen days afterwards, that the plaintiff presented his petition of appeal. It appears to us that the petition was not made within proper time. It certainly was not made within twenty days from the date of the judgment or decree or within such period of twenty days, exclusive of the time during which the application for a review of judgment was pending. The Madras Sudder Court held that, if a party present an applica- tion for review of judgment within the time limited for appealing, the period occupied by the Court in disposing of such application, will not be reckoned among the number of days limited for appealing but will be added thereto, and a memorandum of appeal presented within such extended period will be received as put in within time. We think that the rule is a correct one, and consequently that this appeal has not been presented within the time allowed by liiw. The question, then arises whether sufiicient cause has been shown to the satisfaction of the Court for not having presented the appeal within the limited period. Sitting as an Appellate Court for the purpose of hearing this application for extension of the time to appeal, I hold that no sufiicient cause has been made out. The plaintiff had not only twenty days, but he had thirty days for presenting his petition of appeal or review. At the end of those thirty days, he presented a petition PULL BENCH RULINGS. 351 for review, and, after that petition was rejected, be tool? nineteen days 1865 furtlier before he presented his petition of appeal. It seems to me NobboKisskn that he ought to have presented his petition of appeal immediately ». after the petition of review was rejected. Instead of that he took as dasseb."^ much time with the exception of one day, after the petition for review was rejected, as he would have had if tiie decree had been only then pronounced. It is not because the plaintiff shows, that this is not a case of appeal for delay that he makes out his case under the provisions of Rule 38. The Rule does not say that (he time shall be enlarged, if the Court shall be satisfied, that the appeal is not for the sake of delay, but that it may be enlarged if suf&oient cause be shown to the satis- faction of the Court for not having presented the appeal within tlie time limited by the rules of the Court. This has not been shown to my satiafactioii, and under these circumstances the application must be rejected. Before Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Bayley, Mr. Justice Norman, and Mr. Justice Morgan. SYED HAMEEDOODEEN (Plaintiff) v. SYED MOULVIE RAYEOODDEEN AHMED (one of the Defendants).* Appeal— Act X of 1859, s. 77. No appeal lies to the Judge from the decree of a Collector passed under o. 77 of Act X of 1859 in a suit for a sum less than Es. 100 in value. In this case which was referred to a Full Bench by Norman, Offg. C. J., and Pundit, J., the question was, "Whether in a suit for rent of less than 100 rupees, where a thiid party intervenes under s. 77, and the Deputy Collector decides that the plninliff had been iu the actual receipt and enjoyment of the rent up to the time of suit, an appeal lies to the Judge." The reference was made in consequence of a conflict of decisions between Prannath Roy Chowdhry v. Gugun Bearah, 5tli December 1861, (I) and Mohendro Ghunder Ghose v. Indernarain Holdar, 28th April 1863 (2) on the one hand : and Gopal Chunder Doss v. Ramcoomar, Ghose, 10th September 1863, (3) on the other. * Special Appeal, No. 2779 of 1864, from a decree of the Acting Judge of East Burdwan, dated the 19th April 1864, reversing a decree of the Deputy Collector of that district, dated the 15th August 1863. (1) S. D., July to December 1861, 190. (3) Sevestre's Reports for 1863, 216. (2) 2 Hay's Rep, for 1863, 532. 1865 May 26. 852 FULL BENCH RULINGS. 1865 Baboo Grija Sunkur Mojoomdar and Moulvie Murhamul Hossein SyedHameed- for the appellant. OODEEN StedMoulvie Baboos Rissen Kishore Ghose and Juggodanund Mooherjee for '''ZSr™ the respondent. The opinion of the Full Bench was as follows : — The question for us to determine is whether an appeal from a deci- sion passed under s. 77 of Act X of 1859 in a suit for a sum in value less than Rs. 100 in amount, lies to the Judge. It is provided by the law just cited that " when in any suit between " a land-holder and a lyot or under-tenant under this Act, the right " to receive the rent of the land or tenure cultivated or held by " the ryot or under-tenant is disputed ; and such right is claimed " by or on behalf of a third person, on the ground that such third " person, or a person through whom he claims, bas actually, and in " good faith, received and enjoyed such rents before and up to the time " of the commencement of the suit, such third person shall be made " a party to the suit, and the question of the actual receipt and enjoy- " ment of the rent by such third person shall be enquired into, and the " suit shall be decided according to the result of such enquiry. Pro- " vided always that the decision of the Collector shall not affect the " right of either party, who may have a legal title to the rent of such " land or tenure, to establish his title by suit in the Civil Court, if " instituted within one year from the date of the decision." In s. 163 of the same law, it is declared that no appeal shall lie from the decree of a Collector in suits under clauses 2, 4, and 7 of ss. 23 and 24 of the Act for a sum less than 100 rupees in value, " unless in any such suit a question of right to enhance, " &e., or any question relating to a title to land or to some interest " in land as between parties having conflicting claims thereto, has "been determined by the judgment, in which case the judgment is " open to appeal in the manner provided in ss. 160 and 161." It has been contended before us, that in an enquiry under s. 77 the right to receive rent is investigated ; that this right is an interest in land, and that, therefore an appeal lies to the Judge ; but we cannot assent to this reasoning. We think that under s. 77, the only matter enquired into is the fact of the actual receipt and enjoy- ment of rent before, and up to the time of the commencement of the suit ; that this fact is totally unconnected with the legal title to, AMEED- OODEEN FULL BENCH RULINGS. 353 01' any interest in, the land, or with the riglit to receive the rent, which 1865 is by the proviso of the section reserved for enquiry in the Civil Court ; SyedH and that, consequently, no appeal lies to the Judge under ss. 153 and 160 of Act X of 1859, The view which we take was adopted 1™^°"^,^^^'^ by two Judges of the late Sudder Court ia the case of Bhuggohutty Ahmed. Dabee v. Sama Churn Banerjee, decided on 1st October 1861, and of its correctness we have not the slightest doubt. Before Mr, Justice Trevor, Mr. Justice Loch, Mr. Justice Bayley, and Mr. Justice Morgan. KATTEMONEE DOSSEE v. RANEE MONMOHINEE DABEE and others.* 1865 May 26. Alluvial Land — Accretion — Re-formation of Land on old Site — Regulation XI of 1825, ts. 4, cl. 1. Where new land is formed, whether it be a re-formation on an old site or whether it is formed where no land ever previously existed, ownership is determined by the ownership of the adjacent land to which it has accreted. To defeat or prevent the right by accretion, the person, who claims the land as a re-formation of his old land, is required to prove some continuing right of property in himself : it is not enough for him to rely merely on identity of site (1). The plaintiff brought this suit to recover possession of a newly-formed land, alleging that it stood upon the site of the village, Koopodoba, which had formed part of his zeraindary, but had been washed away by the rivers. This village formed a portion of the land which was lost by the gradual encroachment of the river Pudda in former years, and which comprised also the village of Soldoba belonging to the defendants. The village of Soldoba had also been re-formed by gradual accretion from the rivers to the defendant's land on the same place where that village formerly stood : and the land beyond that was claimed by the plaintiff as his property, being a re-formation of his village of Koopodoba. The plaintiff contended that it was not land "gained by gradual accession" within the meaning of cl. 1, s. 4, Regulation XI of 1825, and therefore that the defendants could not claim it ; but that it was a re-formation of land which belonged to his zemindary, and was therefore his property. The Moonsiff gave a decree, in favor of the plaintiff. On appeal, the Judge reversed that decree and dismissed the suit. * Special Appeal, Ko. 1495 of 1863, from a decree of the Officiating Judge of Nuddea, dated the 4th March 1863, reversing a decree of the Moonsiff of that district, dated the 30th April 1862. (1) See Lopezv. Maddan Thakoor, 5 B. L. R., 521, overruling the decision in this case ; and Pahalwan Singh v, Maharajah Uuhessur Buksh Singh, 9 B. L, R,, 150. 354 FULL BENCH RULINGS. 1865 The plaintiff appealed to the High Court. The case was heard Kattbmonek before a Division Bench (Morgan and Pundit, JJ.)> and was referred DossEE iQ a Full^Benchjin consequence of the decision in Romanath Thakoor v. Eanee Mon- Chunder Narain Chowdhry (1). MOHINEE Dabue. Baboos Banee Madhub Banerjee and Nilmadhub Sein for the appellant. Baboo Chunder Madhvh Ghose for the respondent. The opinion of the Full Bench was as follows : — By the gradual encroachment of the river Pudda in former years, the village Koopodoba belonging to the plaintiff's zemindary, and a part of the defendants' village of Soldoba, were carried away. In subsequent years the river gradually receded, and the chur, which is the subject of dispute in the present suit, has been formed. The chur occu- pies, we understand the Judge to find, the site of the lands formerly •washed away. It has been formed by gradual accession to the defend- ants' village from the recess of the river; and it appears, therefore, to be an increment within the express provision of cl. 1, s. 4 of Regulation XI of 1825, and to belong wholly to the defendants. The defendants' right is undisputed to the portion of the newly formed iand which occupies the place where the old land of their village of Soldoba stood ; it is admittedly an increment to their old estate. But the new land beyond those limits, is claimed by the plaintiff as his property, because it stands where his village of Koopodoba formerly stood. It is not denied that this land is an alluvial formation like the portion ali-feady mentioned, but although like that, it has been formed by gradual accession, it is, according to the plaintiff's argument, not land " gained by gradual accession" within the meaning of the clause referred to, but a re-forma- tion on the old recognized site of his village, and therefore his property. The Judge has found that Koopodoba was entirely washed away upwards of twenty-five years ago, and that not a vestige of the village remains. Any recognition of the land is now impossible, and it is only upon the identity of site that the plaintiff's claim is based. The Division Court has referred the case to a Full Bench in consequence of the decision in Romanath Thakoor v. Chunder Narain Chowdhry (1) which has been understood to sanction the construction of the law for which the plaintiff contends. It is said to have been there held that cl. 1, s. 4, applies only to cases of land gained, that is to say, (1) 1 Mars., 136, FULL BENCH RULINGS. 355 formed upon a si(e which cnoDOt be recognized as that of the estate of iggs any former proprietor ; and that where the accietion can be clearly kattemonee recognized as having been re-formed on that which formerly belonged to Dossee a known proprietor, it remains the property of the original owner. Banbb Mon- MOHINEE Regulation XI of 1825 is a declaratory law, whereby the previously Dabee. well-established rules and customs for the determination of claims to land gained by alluvion or by dereliction of a river or the sea were for- mally enacted ns written law. It contains a recital that " in conse- «' quence of the frequent changes which take place in the channel of the " principal rivers that intersect the Provinces immediately subject to tlie " Presidency of Fort William, and the shifting of the sands which lie " in the beds of those rivers, ehurs or small islands are often thrown " up by alluvion in the midst of the stream or near one of the banks, and " large portions of lands are carried away by an encroachment of the " river on one side, whilst accessions of land are at the same time, or in " subsequent years, gained by dereliction of the water on the opposite "side." The Regulation then declares (s. 2) that certain diputes rela- tive to alluvial liinds between proprietors of contiguous estates divided by a river shall be decided by immemorial and defluite local usage. Where no such local usage exists (s. 3) the rules declared by tlie subsequent sections are applicable. The first of these (cl, 1, s. 4), is ihe rule in question relating to land gained by gradual accession. Accession is an increase or addition to something previously belonging to us. The proprietor of the land becomes also, by virtue solely of his old proprietorship, the owner of the alluvial soil gradually added by the river to his land. The imperceptible increase of his property in no way affects his ownership of every portion of it. That which has been recently added is his, because he is the proprietor of the older portion. In every title founded on accretion, it is essential that the ownership of the adjacent lands should be established by the claimant. This first clause of the section provides that, " when land may be gained by " gradual accession, whether from the recess of a river, or of the sea, "it shall be considered an increment to the tenure of the person " to whose land or estate it is thus annexed." We read this clause to declare that what is added by gradual accession must in all cases be considered an increment to the old estate without regard to the site of the increment. Whether the new land is a re-formation on an old site, or whether it is formed where no land ever previously existed, its ownership is determined, when the ownership of the adjacent land to which it has by imperceptible degrees accreted is 856 PULL BENCH RULINGS. 1865 Kattemonee DOSSEE V, Eanee Moh- JrOHINEE Daeee. ascertained. If, therefore, in the present case the ownership of the adjacent land has been duly ascertained to be in the defendant, and the newly formed land is found to have been gradually gained from the river by accession to the defendant's adjacent land, we think that the plaintiff cannot lay claim to any portion of the latter by showing that it occupies the site of his village Koopadoba, and that it is needless to remand the case for a more distinct finding as to the identity of site. The language of the Court in the judgment which has been quoted, appears to limit the operation of this clause, so as to exclude from its provisions land formed again by accretion on an old site which can be clearly recognized. If we are to understand the Court to have held that "land formed on the site of an old estate," belongs to the person who was the owner of the old estate, and not to the owner of the adjacent dry land, to which it has by slow degrees accreted, we must dissent from this opinion. The law recognizes no right of property in a mere site, nor any such mode of acquisition as that which would confer on the proprietor of an old estate (every particle of which may have long ago disappeared or passed away) the ownership of land since formed on that site, however clearly the identity of the site may be established. It is only where the original owner retains his property in his old estate, that he can lay claim to tlie surface where it re-appears above the water ; and his title to this is not necessarily by accretion (because he will be equally the owner, whether the land is exposed by a sudden recess of the river, or by a gradual deposit of soil on its surface), but by virtue of his old ownership remaining undisturbed. Tlie judgment in the case quoted, when it speaks of " the recognition of a site," may perhaps be understood to refer to the case of a still continuing owner- ship in land which has disappeared by submergence beneath the surface of the water. This is probable from the following passage in the judg- ment : — " It never could have been intended that, when the surface of "an estate is washed away, and the lower portion of it is covered with " water and formed into a portion of the bed of a river, the ownership " of that portion of the estate which has become inaccessible in conse- " quence of its being covered with water, should be lost ; and that, " when the surface is re-formed, it should become the property of an " entirely [different owner, because he may happen to be the owner of " the estate adjoining." The suit itself was one instituted to recover land claimed by the plaintiff as gained by accretion to his estate. The plaintiff seems also to have claimed the land as a re-formation on the site of lands formerly belonging to him, but which had since been FULL BENCH RULINGS. 357 washed away. The judgment only, and not the argument of the i865 pleaders, has been reported. We are, however, able to state Kattemonkb (Bayley, J., having been a member of the Court) that the argument „ for the defendant (against the plaintiff's right to the land as re-formed ^ifo'^HiNEE^' on tlie site of his old land) was carried to the length of contending that Dabee. in no possible case (not even where the existence of a mine or some clear means of recognition enabled the identity to be established beyond dispute) could the old rights of property in land, the surface of which was wholly waslied away, subsist so as to be the foundation of a title to newly formed land. The judgment should perhaps be read with reference to this argument, which is clearly untenable. The ownership of land is not ordinarily lost, because the land itself may be submerged or inundated. The case of Mussamat Imam Bandi v. Hurgovind Ghose (1) is a striking illustration of this. The land there in dispute is thus described in the j udgment : — " The whole of the dis- " trict adjoining the land in dispute, as well as that land itself is flat and " is very liable to be covered or washed away by the waters of the Ganges, " which river frequently changes its channel. The land in dispute was "inundated about the year 1787 : It remained covered with water till "about 1801 ; it then became partially dry till in the year 1814 it " was again inundated. After this period it once again re-appeared "above the surface of the water, and by the year 1820 had become " very valuable land." These frequent changes and the lapse of time were deemed not to affect the question of title, for the judgment con- tinues : — " The question then is to whom did this land belong before " the inundation ? Whoever was the owner then remained the owner " while it was covered with water and after it became dry." So, in the case supposed in the passage of the judgment under consideration which we have quoted, the surface stratum may be swept away and lost without disturbing the old ownership in the laud or mines beneath, (unless, perhaps, when what is left forms the bed of a navigable river). Where the remaining land can be sufficiently identified, no change takes place in its proprietorship, and whatever becomes annexed to it belongs to the old owner, if he is known. But this principle cannot, we conceive, govern the case which has been referred to us. The old right of property cannot remain in existence after the lapse of any length of time, however considerable, nor unless something beyond mere identity of site is brought forward in proof of it. To defeat or prevent the right by accretion which the law gives to the adjacent owner, the claimant is (1) 4 Mno. I. A., 403. 358 PULL BENCH RULINGS. 1865 required to prove some continuing right of property to himself; it ig Kattkmoneb not enough for him to rely merely on identity of site. If he can show "^^'^ no assertion of ownership, such as the condition of the property admita Eanee Mon- gf^ fgj, ^ great number of years, it may fairly be concluded that he has Dabee. relinquished all right and claim to the remnant of what once belonged to him. In this case upwards of a quarter of a century has passed since the plaintiflf's village was washed away, and there is no suggestion of any evidence in support of the continued existence of any portion of his old estate, beyond the (alleged) identity of site, or of any right of the plaintiff therein. Witli this expression of our opinion of the law as applicable to cases, like that before us, we remit the case to the Divisional Bench. Before Sir Barnes Peacock, Ki., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. i865 McDonald (Plmnuff) v. MTJNAR rot and others (Defendants).* June 14, Error in Lam — Special Appeal — Local Investigation. It is not an error in law in the investigation of a case where the Courts below do irot direct a local investigation of their own motion when they are not askedl by the parties to do so. This case was referred to a Full Bench by Steer and E. Jackson, J J.^ under the following circumstances : This was a suit for enhancement of rent pursuant to notice. The ryot had in a former suit claimed exemption from the enhancement demanded in that notice under section 14, Act X of 1859. The ryot then claimed to hold at fixed rates, and alleged that the ground upon wtich enhanced rent was demanded in the notice, viz., that the pro- ductive powers of the land had incrpased, was false. The ryot's suit was dismissed, his right to fixed rates disallowed, and the fact that the productive powers of the land had increased was found to be true. But it was at the same time recorded that the question as to wliat was a fair and equitable rate of rent, and the extent to which the productive powers of the land had increased, were left to be decided in future. This suit was then brought by the plaintiff and the issue raised by the Deputy Collector was, what would be a fair and equitable rent for the land. The plaintiff adduced the judgment in the former case, and urged * Special Appeals, Nos. 2632 to 2664 of 1864, from the decrees of the Judge of Tirhoot, dated the 28th June 1864, affirming tie decrees of tlie Assistant Collector of that district, dated the 13th May 1864. FULL BENCH RULINGS. 359 that that judgment was conclusive evidence as to his right to obtain the i865 enhanced rent named in his notice. The plaintiff put in no further McDonald evidence, and, the case having been kept pending some time on Iiis jiunau Roy. account, the Deputy Collector ruled that the judgment waa no evidence at all, and dismissed the suit. The plaintiflf appealed, and the Judge, considering that the plaintiff ougiit to have petitioned for a local investigation, confirmed the decision of the Depuf;y Collector. It was again urged on special appeal that, that the suit of the ryot to set aside the notice having been dismissed, the plaintiff was entitled to a decree without producing further evidence. It was further con- tended tliat inasmuch as it was proved that the productive power of tlie land had increased, the Deputy Collector was bound, under the cir- cumstances, of his own accord, to direct a local investigation, and the Judge on appeal should have ordered such an investigation. For the respondent it was contended that this was a matter within the discre- tion of the Court. The following judgmetfts were delivered by the Division Bench : Steee, J. (after stating the facts) — I hold that, where, as in this case, a plaintiff gives some documentary evidence to prove the enhanced rent he is entitled to, and tiiat evidence does not satisfy the Court that he is entitled to the extent claimed, it is essentially a case in which justice can- not be done without a local investigation, and the Judge is quite in error in supposing that a local enquiry cannot be resorted to without a direct application made to the Court for that purpose. The former decision was conclusive that the plaintiff was entitled to some enhancement. He gave evidence such as it was, as to the rate he considered himself entitled to ; and if this evidence did not satisfy the Court, it might, and it ought in the ends of justice, to have ordered a local investiga- tion, and thus obtained from an independent source reliable evidence to clear up all doubt upon the point as to what the rates should be. I hold, therefore, that the investigation in this case has been defective, and that that is a proper ground for a remand. I would remand the suit accordingly. Jackson, J. (after stating the facts).~I think the Deputy Collector was not at all bound to direct a local investigation. He was right to call upon the plaintiff to prove that the rates he demanded were fair and equitable. He appears to have kept the case pending for some time to enable the plaintiff to give his evidence on this issue, and to have onlj- 360 FULL BENCH KULINGS. 18^5 dismissed it when the plaintiff declined to give any further evidence than McDonald the judgment in the former case, vchich was in fact no evidence at all. MuKNAR KoT '^^^ plaintiflF might, as the Judge on appeal says, have asked for a local investigation, but he did not. He rested his case on the judgment, and accordingly lost it. Before the Judge the plaintiflf again rested his case on the judgment ; but the Judge very properly confirmed the decision of the Deputy Collector. It is too late now for the appellant to ask for a local investigation, and I cannot see that there has been any error in law in the procedure in the Courts not ordering a local investigation of their own accord. A plaintiff, when he brings his case, particularly one of enhancemenf, is bound to be ready to fur- nish his evidence, and if he fails to produce it' when called upon, his suit must be dismissed. It is very hard upon ryots that they should not know what rent they are to pay for the past two years, and that suits for enhancement should remain pending over them, because the plaintiff is not ready to prove what rents they ought to pay. I would dismiss this appeal with costs. Mr. Allan and Baboo Kishen Succa Mookerjee for the appellant. Baboo Debendro Narain Bose for the respondents. The opinion of the Full Bench was delivered by Peacock, C. J. — We agree with E. Jackson, J., in this case. We think that there was no error in law, and that the Judge was not bound to grant a local investigation. The decree of the lower Court is accordingly affirmed with costs. Eefore Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr, Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. 1865 EAJKRISTO EOY v. DINOBUNDO SURMA.* Jv/neli. Limitation— Act XIV of 1S59— Sunday, Holiday, dies non. Under Act XIV of 1859 a suit not brought within the period allowed for that purpose , will be barred although such period may expire on a Sunday, holiday or dies non (1). This case, which came up on a reference by the Judge of the Small Cause Court of Hooghly, was as follows : — • Reference from the Judge of the Small Cause Court of Hooghly, dated 21st February 1865. (1) See Act IX of 1871, s. 5a; also lUunski Abdul Ali v. Tarachmd Ghose, 6 B. L. K. 294, and Tarachand Ghose v. MmsU Ahdul Ali, 8. B, L. K„ 25. FULL BENCH RULINGS. 361 ISTO KOY V. DiNOBUNDO SUIUIA, The plaintiff sued on a bond for Rs. 33 dated the 7th Cliyte 1267, i865 (19tli Mareli 1861) purporting to be payable in the month of Assin Kajkr 1268 (September 1861). Tlie suit was instituted on the 16th Novem- ber 1867 or cue month and one day after the expiration of the peiiod of limitation, the Court having been closed from the 3rd of October to the 15th of November inclusive. The defendant did not appear. The Judge referred the following questions : — First. Can the plea of limitation be raised by the Court, in an undefended case when the defendant neitlier takes nor waives that plea? Indly. Whether a plaintiff, suing after the expiration of the period of limitation, the last day of which fulls on an authorised vacation, is in time if he comes to Court on the first day the Court re-opens. As to the first of these questions he was of opinion that as the defendant did not appear and by his defence waive the plea of limi- tation, it was competent to the Court to raise that plea of its own accord. With respect to the second question, he tliought that the plaintiff was barred by the law of limitation. The case came on before Bayley and Phear, JJ., who referred it to a Full Bench with the following remarks : — We concur in the opinion expressed by the Judge of the Small Cause Court, and we think that under Act XIV of 1859, limitation would bar a suit where the time within which the act is to be done expires on a Sunday, Holiday, or dies non. But, a.s the third Bench by the decision of April 24th (1 ), has held another opinion, we refer the matter for the decision of a Full Bench. The opinion of the Full Bench was delivered, by Peacock, C. J. — We think that the Judge of the Small Cause Court was right in this case ; and we agree in opinion with the learned Judges who referred the question to a Full Bench. The case (1), (1) Before Mr. Justice Loch and Mr. Justice Seton-Karr. The 24fch April, 1865. GOBIND CHUNDER BHUTTA- CHAEJEE (Defendant) v. SREB NATH MOOKEREE (Plaintiff).* This case was sent up bj the Deputy Kegistrar wii;h a note to the following effect : — » Petition of Special Appeal, from a decree of the 2nd Principal Sadder Ameen of 24- J'ergunnas, dated the 14th January 1865, afflrmmg a decree of the Moonsiff of that district, dated the 14th September 1864. The time (90 days) for preferring this special appeal expired yesterday (Sun- day), and the appellant has appeared to- day in person to present it. The law, Regulation VII of 1832, sec- tion 2, clause 4, which prescribes that " when the periods for preferring appeals " expire during the adjournment of the " Court on account of any holiday or va- " cation, no default shall attach to the " appellant, provided the appeal be pre- 362 PULL BENCH RULINGS. 1865 ■which they cite aud assume to be opposed to their view, relates to the Eajkristo time for preferring an appeal and does not conflict with this decision. By „. s. 333 of Act VIII of 1859, appeals are to be presented within the SumttA"" Period prescribed, unless the appellant shall shew, to the satisfaction of the Appellate Court, sufficient cause for not having presented it with- in the limited period. But the Limitation Act contains no words to a like effect. The period is fixed by the Act, and no discretion is given to the Courts to extend the time. The case will be sent back to the Divisional Court with an expres- sion of our opinion. Bifore Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell, 1866 BHARAT CHANDRA MAZUMDAR (Dependant) v. RAMGUNGA SEN "^' (Plainiiit) and anothek (Defendant).* Review— Appeal— Act VIII of 1859, ss. 375 §• 376. A Judge is bound to proceed with an application for a review of his judgment even though a petition of appeal has been filed subsequently to the application for review. This was a special appeal against a decision passed by the lower Appellate Court on review reversing its former decision. The " sented immediately on the re-opening of " the Court," has been repealed by Act X of 1861, and by consequence also, the rule laid down on the appeal of Koon Koon Sing (a) to the effect that the last day allowed for the appeal falling on a Sunday, the appeal is admissible on the following day, has been rendered null. There is, therefore, now, no law or rnle countenancing the practice of ad- mitting an appeal, when the time for pre- ferring it has expired on a holiday, on the day following ; while the principle laid down at page 158 of Macphersou on Mortgage (pages 182 of the 2nd edition), founded on a decision of the North- Western Court, viz., "the fact of the "twelve years having expired during "the Dusserah vacation, is no ground " for admitting the suit on the first " Court-day after the vacation" is against the practice. May I beg, therefore, the orders of the Court on the point, whether, under the circumstances, appeals can any longer be entertained, when the time for preferring them has fallen on a day on which the Court may have adjourned on account of a holiday or vacation, on the first Court day. The order thereupon was as follows : — We think the petitioner is entitled to have an extra day, when the last day on which he can file an appeal falls on a Sunday or other close holiday. Admit the appeal. (a) Summary Reports, Ed. of 1853, page 75. * Special Appeal, No. 1317 of 1865, from a decision of the Principal Sudder Ameen of Mymensingh, dated the 3rd March 1865, affirming a decree of the MoonsifE of Nilkee, dated the 28th July 1864. FULL BENCH RULINGS. 863 Appellant argued that the lower Appellate Court had no authority iggg to entertain and admit the review, because a petition of special appeal Bhauat had been already preferred agaiust its first decision. This special mazumdak appeal, it was stated, had been aftei'wards withdrawn before the „ "urqa admission of the review and before any notice had been served upon Skn. the opposite party. The appellant relied on a decision of a Divisional Bench of the High Court, dated 9th May 1865—ffurkoo Dahey, 'petitioner, and a previous ruling of the English Department on a reference from the Patna Court (1). The case came before Pundit and Campbell, JJ., by whom it was referred to a Full Bench " that it might, with reference to ss. 375 (2) and 376 of Act VIII of 1859, and the decisions quoted by the special appellant, decide authoritatively the validity or otherwise of the plea taken by him, and to lay down the construction of the law upon this right of filing a review, after the registration of a special appeal application." Baboos Mahini Mohan Boy and Kalikrishna Sen for the appellant. Baboos Srinath Das and Nilmadhab Sen for the respondent. The judgment of the Full Bench was delivered by Peacock, C. J. — It is admitted that the review was applied for on the 6th February 1865, and that the appeal was not filed until the 18th February 1865. The question therefore referred to the Full Bench, viz., whether a review can be admitted by a lower Court after an appeal has beeu preferred to this Court, does not arise. It is clear that if a review be applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding upon their application for review by the subsequent presentation of appeal, and he has full power and is bound to proceed under the application for review. This is a special appeal from the judgment in review. The first and second grounds are that the Judge had no jurisdiction to try the review as the application was made after the presentation of appeal to this Court. These two grounds are not supported by the facts, and the objections fall to the ground. It is admitted by the pleader for the special appellant that there is nothing in the third and fourth grounds of appeal. The decision of the lower Appellate Court in review is therefore affirmed with costs. (1) Both unreported. (2) Repealed by Act XXIII of 1861, s, 1, See s. 25 of that Act. 364 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Bayley, Mr. Justice Seton- Karr, Mr. Justice Pundit, and Mr. Justice Macpherson, 18G6 DINANATH BOSB (Plaintii'i') v. KALI KUMAR ROY (Defendant).* Fehy. 1. ■ Act X of 1859, ss. 77 {l)— 150-159— " Decision of Collector"— Suit in Civil Court for Bight to Rent — Limitation. The year within which, under 3. 77 of Act X of 1859, a party may sue in the Civil Court to establish his title to the rent of the land or tenure is one year from the date of the final decision against him (1). The question in this case was from what date the period of one year provided for the limitation of suits to be brought in the Civil Court, to contest the legal title to the rent of land under s. 77 of Act X of 1859 was to be reckoned. The Divisional Bench (Lktinge and PoNDiT, JJ.) doubting the correctness of the decisions in Neenaye Joogy V. Afsurooddeen Mahomed Ohowdhry (2) dated 8th August 1865, and Sreemutly Jonokee v. Tukbun Singh (3) dated 13th Septem- ber 1865, according to which the lower Court had decided this case, referred the case to the Full Bench. The following judgments were delivered : Peacock, C. J. (Baylet, Pundit, and Macpherson, JJ., concur- ring).— The question in this case depends upon the proper construction of the proviso to s. 77 Act X of 1859. The words are: — "Provided always that the decision of the Collector shall not affect the right of either party, who may have a legal title to the rent of such land or tenure, to establish his title by suit in the Civil Court if instituted within one year from the date of his decision." The ques- tion is wliether the word decision means the decision of the Collector, or the final decision in the suit, if an appeal is preferred. It appears to us that it means the final decision in the suit. By s. 23 it was enacted that suits for arrears of rent should be tried by the Collectors of laud and except by way of appeal should not be cognizable in any other Court. The proviso in s. 77 was to prevent decisions in trials under the Act from being final, or barring a suit to the right to the rent between the plaintiff and the iutervenor. When the Legisla- * Special Appeal, No. 2293 of 1865, from a decree of the Principal Sudder Ameen, with powers of Judge of Small Cause Court of Backergunge, dated 22nd May 1865, affirming a decree of the Moonsiff of that district, dated the 27th September 1864, (1) As to the repeal Act X of 1859 and Act VI of 1862 (B. C), see Act VIII of 1869 (B. C), ». 107. (2) 3 W. K., Act X Rul., 155, (3) 4 W. R., Act X Rul, 21, FULL BENCH RULINGS. 365 ture spoke of the decisions of the Collector, doubtless they intended to iges include decisions in appeal from those decisions. Dinanatu ^ BOSE By s. 150 it was enacted that: — "All the powers vested in the k^li Kumar Collector by the preceding sections of this Act may be exercised by ^°'^- any Deputy Collector in cases referred to him by a Collector, and in all cases without such reference, by any Deputy Collector placed in charge of any sub-division of a district ; and all applications and reports allowed or required by this Act to be made to the Collector may be made to any Deputy Collector having such local jurisdiction." S. 150 was repealed by Bengal Act VI of 1862 and was re-enacted with slight alterations by s. 19. But this does not make any difference with reference to the point now under consideration, S. 155 of Act X of 1859 says : — " When any such suit as aforesaid, in which, if tried and decided by a Collector, the judgment of the Collector would be final, is tried and decided by a Deputy Collector, an appeal from the judgment of the Deputy lie to the Collector." Now if a person were to sue for arrears of rent under Es. 100, the decision of the Collector would be final ; but if tried by a Deputy Collector, there would be an appeal to the Collector, Suppose the question had arisen in a suit under Rs. 100 tried by a Deputy Collec- tor, would the year be reckoned from the date of the decision of the Deputy Collector or from the date of the decision of the Collector ? If it is from the decision of the Collector, it dates from the decision in appeal ; but if from the decision of the Deputy Collector, it would date from the decision of the original Court, It appears to us that, in such a case as that it would come strictly within the words " the decision of the Collector," Then it would be from the decision of the Appellate Court ; and if from the decision of the Appellate Court, does not that show, that in the case of au appeal from the decision by a Collector in the first iostance to a Judge, the Act meant that the period should date from the decision of the Appellate Court, It appears to us that the decision meant was the final decision in the case. The party in whose favor the decision of the Court of first instance is given would have no ground to appeal against it, but if the period of one year is to be reckoned from the date of the decision of the Collector, as in cases appealable to the Judges, the party in whose favor the decision of the first Court was given would be too late to establish his right to such in the Civil Court, if, on appeal by his opponent, the case should be determined against him 3 366 FULL BENCH RULINGS. 1866 ^y tlifi Judge after the expiration of a year from the date of tbe deci- DiNANATH sion of the Court of first instance. BosE -^g think that the words of the Legislature must receive a reason- E^A" J^uMAK jible construction, and that the right of either party who may have a legal title to the rent to establish his title by a suit in the Civil Court is not barred or affected by the decision of the Court of first instance or of the Court of Appeal, if the suit is in the Civil Court instituted within one year of the decision against him. Seton-Kaeb, J. — I only wish, in addition to what the learned Chief Justice has said, to state that this point does not come before me now for the first time. In one of the decisions cited by the Judges who have referred the case, I decided on the purely technical and grammatical construction of s. 77, that the limitation must be reckoned from the decision of the Collector, Neenaye Joogy v. Assurooddeen Mahomed {!). But subsequently, in another case, sitting with Macpherson, J., I reconsidered that opinion, and thought, in accordance with the ruling of Pundit and Phear, JJ., that the limit ought to run from the date of the decision of the second Court, and I hold that opinion on full consideration of the subject, whether the decision of the first Revenue Court be favorable or adverse to the plaintiff who has to seek his remedy afterwards in the Civil Court. This seems to me the only way of avoiding certain inconsistencies and of removing the difficulties which the lower Court would feel in applying the law of limitation under this section if the literal text of this section were insisted on. Sometimes the appeal in Act X lies to the Collector from the Deputy Collector, sometimes from the Collector to the Judge, and sometimes from the Collector to the High Court. If we insist on the grammatical and literal interpretation of s. 77, discrepancies and difficulties must arise ; the fair way of meeting them and of inter- preting the section is to rule, that in all cases the limitation should run from the date of the decision of the second, or the Appellate Court. (1) 4 W. R., Act X Eul., 21, FULL BENCH RULINGS. 367 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice Seton-Karr, Mr. Justice Pundit, and Mr. Justice Macpherson. NASIRUDDIN KHAN (Plainteff) v. IKDKONARAYAN CHOWDHRY 1866 Feby. I. (DErENDANT).*(l) Beoiew—Act VIII of 1859, ss. 376, 377, 378 §• 380— J^moZ Order— Construing Act. An order rejecting a review is not conclusive, and the Court may, in the exercise o£ its discretion, admit a review even after a prior order rejecting it, Seton-Kaek, J., differed. In these cases, there were applications to Bayley and Macpherson, JJ"., for a review of an order rejecting an application for review of judgment. Mr. Lingham, for the respondent, took the preliminary objection, that a review of an order passed on an application for a review, or on an admitted review, cannot lie, under the terms of ss. 376 and 378 of Act VIII rf 1859. He contended that there was a conflict between two decisions of Divisional Benches on the point ; in FuJteerooddeen V. Kalachund Sircar (2) Steer and E. Jackson, JJ., held, that a second application for a review of judgment can be admitted, although the first application has been rejected as founded on insufficient grounds ; while Loch and Seton-Karr, JJ., held, in the case of Ramk ant Loll Sing, petitioner (8), that no petition for a review of a review should be received in the office, but that a motion may be made to the Court to admit the review. It appearedv that a motion for the admission of a review had been made, and the case had been admitted on the review file of Bayley, J., but judgment had not been given, owing to some documents not having reached the Court. In consequence of these decisions and of a doubt entertained by the Court whether, under the terms of s. 378 of Act VIII of 1859, the decision of Steer and E. Jackson, JJ., was correct, the point was referred to a Full Bench. Mr. R. E^ Twidale for the petitioner. Baboo Chandra Madhah Ghose for the respondent. * Application for Reviews, N"os, 24 and 25 of 1865, of the judgment of Bayley and Macpherson, JJ>, dated the 30th November 1864, in Special Appeal No, 2240 of 1864 and in Regular Appeal No. 162 of 1864. (1) See Bani Madliah Ghose v. Ganga (2) 1 W. E., 287. GaUnd Mamdal, 5 B. L. R., 316. (3) 8 Sevestre's Reports, 101. 368 FULL BENCH RULINGS. 1866 Nasiruddin Khan The opinions of the Full Bench were delivered as follows :— Peacock, C. J. — The question which has been submitted for the Indro- opinion of a Full Bench is whether an application for the review of an NAUAYAN "^ ™ . I. 1. L ■ 1 ■U Chowdhky. order rejecting a previous application for review can be entertamea by the Court, or whether the order made upon the first application for rejecting the review is final and binding upon the Court which for- merly rejected it. The answer depends upon the proper construction to be put on Act VIII of 1859, s. 376, and the other sections of Chapter XI. The question, although it arises upon an order for rejecting a review, must also be considered in other points of view, because, whatever is the proper construction of s. 378 with reference to an order for rejection, appears also to be the proper construction with reference to an order for admitting a review, and to a judgment given after such admission. The words are — " and its order in either case, whether for rejecting the application or granting the review, shall be final." The words " shall be final" apply not only to an order for rejection, but also to an order for granting the application. I will therefore con- sider the case in four different points of view. 1st. — When an applica- tion for review is dismissed upon default of the applicant. 2nd. — When the application for review is admitted, and the judgment is altered on rehearing. 3rd. — When the application is admitted and the judg- ment is not altered on rehearing. 4th. — When there is an order for rejecting the application. Although the question now before us has reference to an order for rejection, I think the case will be made more clear if, before we deal with the question as regards an order for rejection, we consider the case in the other points of view which I have mentioned. 1st. — I shall consider an order of dismissal on the ground of default of the applicant. S. 376, Act VIII of 1859 (the first section of Chapter XI) states when an application for review may be made. It enacts that : — " Any person considering himself aggrieved by a decree of a Court of original jurisdiction, from which no appeal shall have been preferred to a Superior Court, or by a decree of a District Court, in appeal, from which no special appeal shall have been admitted by the Sudder Court, ***** and who, from the discovery of new matter or evidence which was not within his knowledge, or could not be adduced by him nt the time when such decree was passed, or from any other good and sufBcient reason, may be desirous of obtaining a review of the judgment FULL BENCH RULINGS. 369 passed against liim, may apply for a review of judgment by the Court igse which passed the decree." S. 377 enacts :— " That the application Nasiruudin sliall be made within ninety . days from the date of the decree, unless ^^*'' the party preferring the same shall be able to show iust and reasonable I"«i>RO- NARATAN cause, to the satisfaction of the Court, for not having preferred such Chowdhky. application within the limited period. Then comes the section upon which the case turns. S. 378 says : — "If the Court shall be of opinion that there are not any sufficient grounds for a review, it shall reject the application ; but if it shall be of opinion that the review desired is necessary to correct an evident error or omission, or is other- wise requisite for the ends of justice, the Court shall grant the review ; and its order in either case, whether for rejecting the application or granting the review, shall be final." That section applies only to two cases: 1st, when the Court is of opinion that there are not sufficient grounds for granting the application; and 2nd, when the review is granted. No express provision is made by that or any other section for the case of the dismissal of an application, for default of an applicant who fails to appear on the day appointed for hearing the application, and who afterwards comes forward and satisfies the Court that there was good excuse for his non-appearance. As the point is not pro- vided for by the Act, there is nothing, one way or the other, to show whether the order of dismissal is final or not. It appears to me that the Court would have the power to re-admit the application upon grounds similar to those laid down in s. 347, for the re-admission of an appeal dismissed for default. That section says : — " If an appeal be dismissed for default of prosecution, the appellant may, within thirty days from the date of the dismissal, apply to the Appellate Court for the re-admission of the appeal ; and if it shall be proved, to the satis- faction of the Court, that the appellant was prevented by any suffi- cient cause from appearing when the appeal was called on for hearing, the Court may re-adrait the appeal." By parity of reasoning, I think that if an application for review is dismissed for default, and the party can satisfy the Court that he was prevented by any sufficient cause from appearing on the day fixed for hearing the application, the Court may re-admit the application. I would not say that the application for re-admission should be made within thirty days, because there is no express enactment to that effect, but I would allowit to be re-admitted, on sufficient cause shown, within such time as the Court may deem reasonable. 2ndly. — I come to the case when the application for review is ad- mitted and tlie judgment is altered oa rehearing. If the Court admits 370 PULL BENCH KULINGS. 1866 the review, there must be a rehearing. S. 380 enacts that " When an Nasiruddin application for a review of judgment is granted, a note thereof shall 5_ be made in the register of suits or appeals (as the case may be), and NAEAYAN *^® Court shall give such order, in regard to the rehearing of the Chowbhrt. suit, as it may deem proper in the circumstances of the case." Now, upon a rehearing, I apprehend there must be a fresh judgment, and a fresh decree according to the new judgment ; and it appears to me only reasonable, just, and proper that when a new judgment is given, altering the former judgment, the opposite party should have an opportunity of applying for a review of that judgment. Suppose upon a rehearing upon a review, a decree for the plaintiff should be altered, and a decree given for defendant, the plaintiff would have a right to appeal against the new decree, and the time for appealing would be reelsoned, not from the time of the original judgment, but from the time of the new judgment. If an appeal would lie from the new judgment, there can be no reason why an application for review- ing it should not be allowed. Suppose a judgment originally given in favor of the plaintiff should, upon review and the admission of newly discovered evidence, be given for the defendant, and suppose that after the judgment in review the plaintiff should discover new evidence, there is no reason why he should not obtain a review of the second judgment ; nor is there anything in s. 376 to show that it ought not to be granted. Zrdly. — When the review is admitted and the judgment is not altered on rehearing. Upon this point, it must be remarked, that, after the admission of review, there must always be a rehearing and a new judgment, whether the judgment be in accordance with or different from the original judgment. If it is a new judgment, it is so as regards an appeal and the time for appealing, aud also as regards aa application for a review. 4:thly. — When there is an order for rejecting the application. I think that an order for rejection is not absolutely final, and that it is in the judicial discretion of the Court to say that notwithstanding it has rejected the application on one ground, it is not precluded from admitting it upon another ground. It may happen that, after a review has been rejected on a point of law, new evidence may be discovered, which was not within the knowledge of the applicant at the original hearing, or at the time of the rehearing on review; surely there is no reason for I'efusing to admit a review upon the ground of the new evi- FULL BENCH RULINGS. 371 dence, simply because it has been rejected upon a point of law, if the jggg Court thinks that a review is necessary for the ends of justice. Nasiruddin In construing an Act it is always right to look at the consequences K.han of the decision, for the purpose of ascertaining the intention of the Indko- NARATAN Legislature. If a particular construction would lead to inconvenience, Chowdhky. it may fairly be supposed that the construction is not in accordance with the intention of the Legislature in cases in which the words used are susceptible of a different construction. In the present case, I am of opinion that the words " shall be final " in s. 378 are used with reference to appeal ; that is to say, that no appeal shall lie from an order of rejection, upon the ground that a review ought to have been admitted, or vice versa. I do not think that any inconvenience will arise from this construction, if applications for review be confined to their legitimate object ; whereas injustice might be done if a different construction were put upon the words. On several occasions applications for review have been made before me upon grounds which showed a great misapprehension of the real object of a review. The late Sudder Court, in a decision to which my attention has been called by Bayley J. (I), rejected an " application for review, npon the ground that the suit, which altogether depended upon a question of fact, had been disposed of after due consideration of the evi- dence ; and that the objection urged in the petition of review, as to the weight attached by theCourt to that evidence, was not a sufficient ground for admitting the review." I have called attention to this case, because I have on more than one occasion observed that an attempt was made to obtain a review of judgment, upon the ground that, upon the first hear- ing, the Court had determined the facts contrary to the weight of evi- dence. This is a matter for appeal, not for a review. But the attempt has frequently been made for the purpose of having the cose re-argued by fresh Counsel, when parties have been dissatisfied with the first decision. It appears to me that the question which hns been propounded to us ought to be answered by stating that an order rejecting a review is not conclusive, and that the Court may, in the exercise of its discretion, admit a review even after a prior order rejecting it. The case will go back to the Divisional Court which referred the question, in order that it may be determined by them. Batlet, J. — I am of the same opinion, and think that there is nothing in the law which prohibits a second application for a review of (1) Jnggvdumha Dehea v. MuneeriUh Mooherjee, S. D. A. Kep,, Sept. 25, 1858, p. 1639. 372 FULL BBNCFI RULIXGS. 1866 the order rejecting the first one. I would add, with reference to the judg- Nasieuddin ment ia Juggudumba Debea v. Muneeruth Mookerjee (1) that I think ^"f" now, as'l did then, that the /aw never contemplated, and our practice Indko- never sanctioned, those applications for review which are simply and NAKATAN Chowdhet. solely to serve the mere puipose of a re-argumeut hy new Counsel of the former case, on the facts and points of law before duly consid ered and adj udicated. Pundit, J. — I agree with the Chief Justice. Macpherson, J. — I concur in the judgment of the Chief Justice. I shall only add that, as a general rule, no second or other subsequent application for review should be granted, except under special circum- stances. Such application should not, in my opinion (save in very exceptional cases), be granted on the ground of any question of fact or of law which has been, or might have been, brought before the Court in any previous application for review. Seton-Kakk, J. — I concur with the learned Chief Justice in think- ing that we should look, in such cases, to the probable or possible con- sequences of our acts, but I also think that we are bound to look to the whole spirit of our Legislature, to the temperament of the people, and to the character and complexion of the cases which crowd our Courts. This is especially necessary in a case where the wording of the law may give rise to different interpretations. We may then fairly look to the spirit aud iutent of the Legislature. Most heartily, too, do I agree with what has fallen from the Chief Justice, as to the princi- ples on which reviews should be entertained. I wholly condemn the pernicious practice whicli is constantly attempted to be introduced, of endeavouring to get a case, not reviewed, but entirely reheard on tlie same grounds, facts and evidence, by different pleaders from those who argued tlie case at the original appeal. Such could never have been the object of the Legislature in providing for reviews. The Chief Justice has delivered his judgment with reference to four points. I have considered the subject with reference to the three questions which were argued consecutively by Mr. Twidale, but I believe that my remarks will be found to embrace the whole subject which has been raised before us. The points, which have been argued are, then, in order of argu- ment, as follows : — \st. — Can a second application for a review of judgment be admitted after the first has been rejected ? 2nd. — (1) B. D. A. Eep. for 1858, p. 1539. FULL BENCH RULINGS. 373 1866 Can an application for review of judgment be readmitted after it has once been dismissed for default by tlie absence of the pleader Nasikuddin or the appellant, the dismissal not having been on the merits ? 3rd. — ^^^ Can an application for review be admitted or entei-tained of any Indro- order passed, when an application for review has been actually Chowdhby. granted, whether the new order in review confirms, modifies or reverses the original judgment in appeal ? As regards the first point, I hold that the order of a Civil Court rejecting an application for review is final, in the sense that such order is conclusive, not only on the particular point then raised, but absolutely conclusive against any further steps in the Court which passes such order. The words of the law seem to me sufficiently clear and positive on this head. Cases have indeed been shown to us to prove that such reviews of reviews, or rather such second applications wheu the first had failed, had been entertained by the late Sudder Court, and, on one or two occasions, by Divisional Benches of our Court. But what we liave to look to is not past practice under either the old or the present law, but the legality of such a practice under the Code which we are bound to interpret and administer ; and I am forced to the conclusion that both the letter and the spirit of s. 378, Act VIII of 1859, are against the admission of any such second application. The letter of the law cannot, it seems to me, as has been contended, apply to possible appeals, or to tlie mere finality of the order itself, passed on some particular point pressed on the Court at the time. We are scarcely warranted I think in interpreting the law to mean that an order is final in one particular sense and not final in another. Our Legislators in 1859 used language with reference to its fair and ordinary construction. Had what is contended for been the intent of the law, it would, I think, have discriminated and would have said, " final and not subject to appeal," or would iiave used additional words to illustrate its meaning. But the finality intended is, to my mind, evidently that of the Court itself passing the order of rejection. As regards the spirit of the law and the intent of the Legislature, the conclusion seems to me equally unavoidable. Once admit a second application after a first had failed, and there is no reason why ten, twenty, or even endless applications should not be made on new points of law, or on the alleged discovery of new evidence. The pleader, who contended for this second application, admitted that this was the fair, logical and inevitable deduction from his contention. If we rule that the first rejection is not final and conclusive, 4 374 FULL BENCH RULINGS. 1866 according to the ordinary interpretation of language, there may Nasiruddin be literally no conceivable limit to fresh applications made by wealthy, '"^ determined, and litigious clients. On this point then, I hold that an Indro- order of a Civil Court reiecting an application for review puts an end Chowdhky. to everything aa far as that Court itself is concerned. On the second point, I am glad to think that there is no material division of opinion. We may reasonably and lawfully in the spirit of the Code, and without violating or altering its letter, apply to reviews the provisions of ss. 346 and 347, wiiich relate to appeals dismissed for default. If the application for review be dismissed for default, because the appellant does not appear in person or by a pleader, he may beallowed to apply within thirty days for the readmission of the review. The application has not been heard on the merits, and s. 378 would not apply until it had been so heard. But I would strictly limit this period to the thirty days mentioned in the above sections. It is as regards the third point that I feel great difficulty and doubt, and that I think it necessary to explain my views at some length. My learned colleagues, I understand, are of opinion that when a review is once granted, and not rejected, the case from that time assumes a different phase, and that, whether the original order of the Court be affirmed, or be modified or reversed, the order passed after the review is granted becomes a new ordrr or judgment. The case, it is said, is not merely reviewed, it is reheard and a fresh judgment follows, to which the ordinary rules of pleadings apply. A review of such a judgment passed on the discovery of the new matter or evidence not within the knowledge of the party, or on other good and sufficient cause, as contemplated in s. 376, would, consequently, be an entirely distinct and separate judgment of which a review might be granted in ordinary course, as if the first proceedings had been wholly obliterated and nullified. After very careful consideration, I own that I am unable to find such a conclusive warrant for any such proceeding in the sections of the law as to satisfy me that this can be the correct judicial practice of the Court. The chapter on reviews is very short, and consists only of five sections. The first section — 376 — explains for what " a review of judgment by the Court which passed the decree" may be granted, being new matter or evidence not within the knowledge of the jiarty, or " any good and sufficient reason." The next section relates to the time prescribed for filing such applications and to the stamp required, and does not bear on the point before us. The third section — 378 — says that " if the Court shall be of opinion that the review is desired to PULL BENCH RULINGS. 375 correct au evident error or omissiou the Court shall grant the 1866 review and its order in either case, whether for rejecting the application Nasiruddin or granting the review, shall be final." The next section — 379 — merely ^^^ prescribes that the application for review must be made to the Judge or Indro- r re O NARAYAN Judges who passed the decree, if he or they are not " precluded by absence Chowdhky. or other cause for a period of six months after the application from con- sidering the judgment to which the application refers." And the hist section — 380 — prescribes that "when an application for review of judg- ment is granted, a note thereof shall be made in the register of suits or appeals (as the case may be}, and the Court shall give such order in regard \,o the rehearing of the suit as it inay deem proper in the circumstances of the case." It is, I understand, on the words of ss. 378 and 380, taken together, that the argument for considering an order passed when an application for review has been granted to be a new order or a new judgment mainly depends. It was argued by the pleader for the respondent, against the view taken by Mr. Twidale, that an order of rejec- tion of an application was final, while an order granting a review might be open to further consideration. I confess that I do not see any way at present to any division of s. 378 into two distinct clauses or pro- visions, one of which shall prescribe that the order rejecting the review shall be final, while the other shall mean that when a review has been granted and a rehearing takes place, as contemplated in s. 380, the order shall not be final, but shall again be open to a fresh review. It is true that the difficulty which I feel is attempted to be met by an argument that " granting the review" and " rehearing the suit," which are the words used in ss. 378 and 380, respectively, relate not to one operation, but to two distinct operations. But I cannot think that the law contemplated any such distinction, or that it intended that the order, when once admitted to review, should be looked on as a new order, whether it endorsed, or whether it reversed or altered the old order. S. 378 talks of the " review," that is the rehearing and reconsideration, being necessary to "correct an evident error or omission." But by correction of an error or omission, a new judgment, such as my colleagues contemplated, would at once start into existence. And yet in the very same section we are told that this very order for " granting the review," and consequently, so I argue, for correcting the error or admission, is final. Again, if the new order affirmed the old order or judgment, then, practically and to all effects, there would be no new order at all. The case would be the same case, with the same interests 376 FULL BENCH RULINGS. 1866 between the same parties, and with precisely the same results. The old Nasieuddin order would not, as I understand it, have been wiped out, but would be ^^^^ merely reaffirmed with the additional weight and strength which the Indbo- fresh arguments, the new view of the law, or the additional evidence NAEAYAN " ' Chowdhkt. lent to the winning side. In many instances the confirmation of the old order would necessarily be brief and terse." It would be in the old order that the main exposition of the reasons for the conclusion of the Judge would be found. How could it be then said that the new order of ten or twenty lines superseded the elaboj-ate previous judgment of several pages ? If, on the other hand, the new order should take the form of either reversing or modifying the old order, still it would, in my opinion, amount to nothing more than the "review of judgment" con- templated in the first section of the chapter — s. 376 — which would have been granted on the discovery of new matter or evidence, or for some good and suificient reason. Then, again, when we look into s. 378, I find myself, as I said, unable to draw the distinction between the finality intended to be applied to rejections of application, and the finality of orders granting the review, which review had become necessary to correct an evident error or omission. The Legislature contemplated both contingencies, and provided for them both by making the orders final. We seem agreed that to admit fresh applications after the first had been rejected may be inconvenient if largely resorted to and not checked. Reading the whole chapter together and considering its lan- guage and object, I find myself unable to draw any other inference than that the law intended to put an end to all such litigation. In special appeals the rejection of a review would be the fourth time of hearing, without making an allowance for remands. In regular appeals it would be the third time of hearing. What more did the exigencies of litigation require, or the law-makers intend to supply ? I admit that there is something which may be taken to favor the opposite view in the words " rehearing of the suit," used in the last section of the chapter ; but they are not sufiiciently clear and explicit to satisfy me that it was the deliberate intention of the Legislature, with its eyes open to the pre- valence of litigation, and looking to the ends of justice, that, when a review had been granted for the reasons prescribed by law, the whole case should once more be opened to review. Litigation in this view might be more endless, harassing, and uncertain than ever, and it is a well- known and a long established legal maxim tested by experience, con- sonant to reason, and sanctioned by the highest legal authorities, that, PULL BENCH RULINGS. 377 in the interests of the State, there should be some end of litigation. This maxim acquires treble weight and force in this country. If the opposite doctrines now contended for be adopted, it is perfectly pbssi- ble that we may see a train of litigation just such as the following. A plaintiff, after a local investigation and a long contest, obtains a decree in a case of chur laud or accretion in the Zilla Pourt. The decree is afterwards reversed in appeal by the High Court, and judg- ment is entered for the defendant. The plaintiff then discovers a new map, or other important document, which would entirely alter the whole aspect of the case, and flies an application for review. The review is granted, and the case is relieard by the light of the addi- tional evidence and with argument reenforcing argument. After a long hearing, in which appear diflferent Pleaders or Counsel from those who argued the case at the appeal, the original decision is set aside, and the accreted land is given to the plaintiff. This being treated as a fresh decision, with which the first judgment had nothing whatever to do, the defendant then applies in his turn for a review on the ground that the Court had wholly misread or misinterpreted the law of accretion ; a review is grauted, the second decision on the fresh evidence is after due formalities set aside on a law point ; and we have a third decision which, after all, is not in any way final in place of the two others. Where, I earnestly ask, is this litigious spirit to stop, or to what security are litigants to look ? When I remember the eager zest and animosity which we see so constantly displayed by wealthy, pertinacious, or unscrupulous litigants in this country, I must be clearly satisfied of the intention of the Legislature and of the precise directions of the law before I can consent to sign or endorse any ruling which, though only on parti- cular occasions, may be followed by consequences not in keeping with that certainty and definitiveness of judicial administration which is the avowed aim of those who make, and of those who administer, the law in Bengal. The cases put by the Chief Justice might involve hardship, but hard cases make bad law, and I must consider, not the discretion of the Court in such hard cases, but the policy of the State and the general effect on litigation. The word " rehearing" used in the last section of the chapter, on which stress is laid, appears to me inserted merely in order that the Court which has admitted the review, may either then and there reverse its first order, or not to take the respondent by surprise, if new evidence has been filed may put off the hearing, and the review or reversal of its own order to some future day. And I do not see any 1866 Nasiruddin Khan V. Indko- NARAYAN Chowdhry* 378 PULL BENCH RULINGS. 1866 real difference between the review of ss. 376 and 378, and the Nasikuduin rehearing of s. 380. There is, no doubt, some little difficulty as to the ^ appeals from orders ou reviews which alter former orders, but this is stAEAYAN ""* conclusive, and it may be a casus omissus of the Legislature. It Chowdhky, may be that from an order in review which modified or reversed a former order,, an appeal would lie to the Appellate Court, though a fresh review of that second order ought not to be admitted iu the same Court. Such an appeal, though not distinctly provided for in the chapter on reviews, ought to be, and would be, admitted on the principle which governs appeals in ordinary cases. But when the case in any one Court had been decided twice in favor of the plaintiff or the defendant, or once in favor of the plaiutiff, and once in that of the defendant, I should certainly say that in that Court the case had been sufficiently heard. If the second order reaffirmed the first, then an appeal from the first order would be all that was necessary. If the second altered or reversed the first order, then an appeal ought to lie from the altering or reversing order. I am also able to perceive a clear distinction between cases in which a Court passes a preliminary j udgment on a point of law, without going into tlie merits, as follows: — A Court dismisses a suit either in the first instance or in appeal, because the plaintiff is barred by limitation, or has no locus standi in Court. A review is afterwards granted, on the ground that the ruling in law is wrong. Tiiis review being admitted, is, to my thinking, final, but the case when so reviewed may of course be heard on the merits in the same Court, simply because those merits had never been enquired into at all. According to the view taken by my colleagues, the order of review, admitting that the plaiutiff was not barred and had a locus standi, would not be final, and it would be the interest of the defendant to pray for review of review, in endless succession, in order to harass and keep the plaintiff out of Court, and prevent his case being heard on the merits. It would be easy to multiply instances of this kind, which I conceive would not conduce to the good administration of justice. I should have had much greater pleasure had I either been able to agree with my learned colleagues, or had they thoughtfit lo take up my view of the question, and I can most sincerely and conscientiously say that I dissent from them with great respect for their varied talents and long judicial experience. But I have thought it absolutely essential to explain my own views and to scrutinise the law narrowly, as the point raised is one which appears to me to be one involving an important principle. If my arguments appear partial, strained, or likely to work injustice, then the decision of FULL BENCH RULINGS. 379 my learned colleagues will only thereby derive additional weight and iggg authority, because the opposite view will have been set out with such Nasiruddin ability as I can bring to bear on the subject. The result is, that I would answer the first and third questions in the negative, and the second in the aflBrmative. Khan Indeo- NAEATAN Chowdhkt Before Sir Barnes Peacock, Kt, ■ Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell. NILMANI BUENICK (Plaintifp) v. PUDDO LOCHAN CHUCKERBUTTY AND OTHEKS (DEFENDANTS)* Jurisdiction of Civil Courts and Revenue Courts — Civil Procedure Code (^Act VIII ' of 1859;, s. I— Act X of 1859, s. 151. An action lies in the Civil Court to set aside a purchase fraudulently made at a sale in execution of a decree of a Revenue Court which had been obtained by fraud (1). The question in this special appeal, referred by Peacock, C.J., for the consideraiion of a Full Bench, was "whether a suit lies in the Civil Courts to set aside a sale in execution of a decree of the Revenue Court under Act X of 1859 on the ground of fraud." Bnboo Anukul Chandra Mookerjee for the appellant. Baboo Ramesh Chandra Mitter for the respondents. The following judgments were delivered: Peacock, C.J. — The case of Ruttunmani Dasi v. Kalikissen Chuckerhutty (2) decided on 16th March 1864 does not govern this case. In that case no fraud or other misconduct of the parties to the suit was alleged. The decision was merely that a suit would not lie in the Civil Court to annul the decision of a Revenue Court under s. 151, Act X of 1859, or to set aside a sale of a tenure by order of a Collector in execution of a decree for arrears of rent. I concur entirely in that decision. The suits before a Collector under Act X of 1859 are not summary suits, but are, in most cases, suits in * Special Appeal, No. 1678 of 1865, from a decision passed by the Judge of Tipperah, dated the 1st August 1865, affirming the decree of the Principal Sudder Ameen of that district, dated the 5th August 1864. (1) As to the repeal of Act X of 1859, Deli, 8 B. L. B,, 1. See also Ramsundar and Bengal Act VI of 1862, see Bengal Poramanick v. Prasanna Kumar Base, post, Act VIII of 1869, s. 107. p. 382. See Sheikh AfzulAli v. Lala Gour Narain, (2) W, R., Sp. No., p. 147. post, p. 619; Meah Jan Munshi v. Kurnmanuiyi 1866 Feb. 5. 380 PULL BENCH RULINGS. 186S NiLMANI Bdrnick V. PUDDO LOCHAS Chhckeb- BUTTY. Courts having exclusive jurisdiction. There is no general power in the Civil Court to set aside a decree of another Court of competent juris- diction upon the ground of an error or mistake on the part of the Court making the decree, but when a decree of one Court, or an execu- tion of a decree, is obtained by fraud, the fraud gives a right of action to the party injured by it against the party guilty of the fraud. Tlie Revenue Courts have no jurisdiction to try a suit to enforce that right of action, but the suit is cognizable only by the ordinary Civil Courts of Judicature within whose jurisdiction the cause of action accrues, or within whose jurisdiction the defendant resides as a fixed inhabitant. Possibly the Revenue Courts under Act X of 1859 may have the power to prevent parties from abusing the process of their Courts ; but admitting that they have that power, it does not oust the jurisdiction of the ordinary Civil Courts of Judicature ; otherwise the parties might collude and by fraud obtain a decree against a putnidar for a small arrear of rent, and, before the putnidar has notice of the decree, sell his tenure however valuable. It may be worth 10,000 or 20,000 rupees, and if the incidental power of the Collector's Courts to deal with abuses of its own decrees would oust the jurisdiction of the Civil Courts, the decision of the Revenue Courts, under Act X of 1859, 8. 151, would be final and dispose of property of such a value that, if a decree of the High Court in respect of it were obtained, it would be appealable to the Privy Council. It is a cause of suit in the Civil Courts, which have jurisdiction to administer the rules of equity, justice, and good conscience, to set aside decrees obtained by fraud, and to restrain the parties to the fraud from reaping the fruits of it by enforcing such decrees. In this case the Revenue Court, upon the review, set aside the judg- ment under which the tenure was sold, and passed a fresh judgment for a different amount. When that judgment was set aside there was no judgment to support the sale which had taken place under it. It is unnecessary to say what would have been the effect of setting aside the decree under which the sale took place, if the purchaser at tlie sale had been a bond fide purchaser. It is sufficient to state tliat a decree set aside for fraud would not support a sale to a purchaser in collusion with the parties to the fraud, and acting as benami for one of them. This is the charge in the present case, and, if the fraud alleged be made out, the plaintiff is entitled to relief. The decrees of the Lower Court are reversed ani tlie case is remanded to the Court of first instance to be tried upon the merits. FULL BENCH RULINGS. 881 Batlet, Noeman, and Pundit, JJ., concurred. Campbell, J. — I concur in thinking (h^it the Civil Court hns jurisdic- tion in this case. But I should like to be understood as confining my- self to the very case before us, viz., that of a suit against the fraudulent purchassr of a property for recovery of tlie property. I wouH not commit myself to any thing which might seem to lay down that any decree passed between certain parties can be set aside by a fresh suit between the same parties. I think that any suit which could be brought in a Civil Court to set aside, or render inoperative, the decree or execution of the same or of another Civil Court, can be brought to deal similarly with the proceedings of a Revenue Court when, as in this case, the ground of the action being fraud, it is such that the Revenue Court has no jurisdiction to entertain such a suit. But I would hesitate before in any degree touching on the principles broadly laid down by s. 2, Act VITI of 1859, which- seems to render every suit final between the parties to the suit, and allows no fresh suit to try the same subject- matter. A fresh suit can no doubt be brought by or against a third person injured by, or improperly profiting by, the decree. But between the same parties respecting the same subject-matter, I doubt whether a fresh suit can in any shape be brought. We know nothing of any distinc- tions between law and equity ; and I would not admit ihe possibility of bringing a suit in equity to render ineffectual a legal decree. I should rather think that the i-emedy under our procedure is, in case of a decree fraudulently obtained ex parte, an application for a rehearing, and in every other case an application for review, as provided by the Code of Procedure. In this case, however, it appears that under the decree of a competent Court the property has been sold, and the sale is so far final. Tlie present suit is of the nature of a suit to force the purchaser to reconvey the property, on the ground that the purchaser (who was no party to the original suit) fraudulently brought about the sale of the property, and fraudulently bought it. I think that such a suit will lie, and so far 1 concur in the judgment of my learned colleagues. 1866 NiLMANI BURNIOK V. PUDDO LOCHAN Chucker- BUTTV. 882 FULL BENCH RULINGS. Before Sir Barnes Peacock, Ki., Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell. 1866 RAMSUNDAR PORAMANICK and others (Defendants") v. PRASANNA ^"^y- ^' KUMAR BOSS and others (Plaintiffs).* Jurisdiction— Civil Court— Civil Procedure Code (Act VIII of 1859;, s. 1— Act X of 1859, ,. 105. The Civil Court has jurisdiction to entertain a suit instituted by A, to set aside a sale of his tenure under s. 105 of Act X of 1859, on the ground that the sale was held under a decree obtained fraudulently against B, who was not the real owner (1), The question raised in this special appeal was, whether a suit would lie in the Civil Court by the plaintiff to set aside a sale of his tenure, under the provisions of s. 105 of Act X of 1859, in execution of a decree obtained fraudulently against another party. The case came before Bayley and E.Jackson, JJ., by whom, having reference to Luch- mun I'ersad v. Ameer Alt (2), Mooktokashee Dassia v. Brojunder Coomar Roy (3), and Jokee Lai v. Nursing Narain Singh (4), it was referi'ed to a Full Bench. Baboos Orija Sankar Majumdar and Malti Lai. Mookerjee for the appellants. Baboo Pt/ari Lai Roy for the respondents. The opinion of the Full Bench was delivered by Peacock, C. J. — This case is governed by our decision in the case of Nilmani Burnick v. Puddo Loohan Chuckerhutty (1). The tenure was sold under a decree of the Revenue Court, for arrears of rent, against Bhaggabatti and not against the present plaintiff. If the plaintiff was the real owner of the tenure, and was treated as the proprietor of it by the zemindar by his accepting rent from him for it, his tenure could not be legally sold under an execution fraudulently obtained against Bhag- * Special Appeal, No. 2138 of 1865, from a decree of the Principal Sudder Ameen of Furreedpore, dated the 23rd June 1865, reversing a decree of the Moonsiff of that district, dated the 29th December 1864. (1) See Nilmani Burnick v. Puddo Loclian Chucherhntty, ante, p. 379, (2) W. R., Jany. to July 1864, Mis., 15. (3) 3 W. E., Act X Eul., 156. (4) 4 W. R., Act X Kul., 5, FULL BENCH RULINGS. %83» ■'*' gabatti. If the allegation of the defenduut be made out that the igge tenure really belonged to Biiaggabatti as the heiress of the registered eamsundaji proprietor, and that the plaintiff never purchased the tenure, never was PoK-^MAisjeK in possession, and never paid rent for it, the case would be different, Prasanna K0MAK BOSB. for, m that case, the tenure would not belong to the plaintiff, but to ., Bhaggabatti, against whom the decree was obtained and the execution issued. But if the sale of the plaintiff's tenure was made fraudulently under a decree against Bhaggabatti, the Civil Courts clearly have jurisdiction to set aside the sale, and to restore the plaintiff to his rights. The case will be sent back to the Division Bench which referred it to us, in order that it may be determined with reference to our present decision upon the point of law which has been referred to us. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bat/ley, Mr. Justice Norman, Mr, Justice Pundit, and Mr. Justice Campbell. KASHI NATH CHATTERJEE (Plaintiff) v. CHANDI CHAEAN BANEE- 1866 JEE (Dependant).* ^^- ^■ Evidence — Written Agreement — Contemporaneous Verbal Agreement — Parol Evidence to vary deed. Per Peacock, C. J., Batlet and Campbell, JJ. — Verbal evidence is not admissible to vary or alter the terms of a written contract where there is no fraud or mistake, and ia which the parties intend to express in writing what their words import. The parties cannot show by mere verbal evidence that, at the time of the agreement, what they expressed by their words to be an actual sale was intended by them to be a mortgage only (1). It is, however, material to enquire whether, having regard to the acts and conduct of the parties, and having reference to the amount of the alleged purchase-money and the real value of the interest to be sold, the parties intended the writing to operate as an absolute sale, and treated the transaction as such, or as a mortgage only (2). Per Norman and Puxdit, JJ. — Parol evidence is admissible to show that a bill of sale, though absolute in its terms, was a mortgage. The question in this suit was, whether in a suit between the parties to a written agreement of absolute sale, parol evidence could be ad- mitted to show that the agreement was subject to a contemporaneous * Special Appeal, No. 870 of 1865, from a decision of the Principal Sudder Ameen of Hooghly, dated the 18th February 1865, reversing a decision of the Moonsiff of Sulkea dated the 26th May 1864. (1) See Bholanatk Khettr'i v. Kaliprasad 1 B. L. E., A. C, 41 ; Manohar Das v_ Agurvialla, 8 B. L. R., 89, and the authori- Bhagbati Dasi, 1 B. L. R., O. C, 30 & 32 . ties collected there. See also Sheikh Par- and Madhab Chandra Roy v. Gungadhur abdi Sahani v. Sheikh Mahomed Rossein, Samant, 3 B. L. R., A. C, 83. (2) See s. 92 of Act I of 1872. 384 FULL BENCH RULINGS. 1866 parol agreement by the vendee to reconvey on payment of the Kasiii Nath purcliase-mouey. The first Court refused to hear oral evidence to Chatiekjee prove the oral agreement. The lower Appellate Court, considering iha Chandi evidence admissible, remanded the case for retrial, and against tlint Banerjee. order the defendant appealed. The special appeal was argued before Pundit and Campbell, JJ., by whom the following question was referred to a Full Bench. "Whethtr oral evidence is admissible to show that a deed of sale was really varied by a virbal promise to reconvey on repayment of the money, making it in fact a mortgage." In referring the question the Court said : — It has been several times held that, however dangerous it may be to admit oriil evidence to vary a written contract of sale (made, it may be, many years back) and however cautious the Court ought to be in dealing with such evideuc*", still, it being the fact that it is a frequent custom in this province so to vary or qualify contiacts of sala by oral agreement, the plea is admissible as between the vendor and the original vendee, or those holding under Lim with notice, and must be so till the Legislature interferes, and by some provisions made publicly known alters the pi'actice. We find, however, that some decisions contrary to the above have been passed by the Court, e.g., the case of Kassim Mundle v. Srimutee Noor Bibi (1). We therefore think it necessary to refer this case for the decision of a Full Bench. Baboo Anukul Chandra Mookerjee for the appellant. Buboo Taraknath Sen for the respondent. Peacock, C.J. (Baylet, J., concurring) — I am of opinion that verbal evidence is not admissible to vary or alter the terms of a written con- tract in cases in which there is no fraud or mistake, and in which the parties intend to express in writing what their words import. If a man writes that he sells absolutely, intending the writing which he executes to express and convey the meaning that he intends to sell absolutely, he cannot, by mere verbal evidence, show that, at the time of the agreement, both parties intended that their contract should not be such as their written words express, but that which they expressed by their words to be an absolute sale should be a mortgage. It is said that there is no Statute of Frauds, and therefore parties may enter into verbal contracts for the sale of lands in the IMofussil without writing. (1) 1 W. R., Civil Killings, 76. FULL BENCH RULINGS. 385 Does this npply to Hiudus or Mahomedans only, or does it extend iggg also to Europeans ? If the rule depends merely upon the absence of kashi Nath the Statute of Frauds, it applies to Europeans as well as to Hindus ^"^'™"'""^ and Mahomedans. If it depends upon Hindu or Malioraedaa law, Chandi it would not extend to Europeans in the Mofussil, whether the BASisujEis. deeds of sale are between European and European, or between an European and a Native, whether Hindu or Mahomedan. Regulaiioa IV of 1793, s. 15 enacts: — "In suits regarding succession, inherit- ance, marringe, and caste, and all religious usages aud institutionsj the Mahomedan laws with respect to Mahomedans, and the Hindu laws witli regard to Hiudus, are to be considered as the general rules by which the Jmiges are to form their decisions. In the respective cases, the Mahomedan and Hindu Law Officers of the Court are to attend to expound the law." These words are not the same as those used in s. 17 of 21 Geo. iii., e. 70, with reference to ihe late Supreme Court, which extended the rule to contracts between Mahomedans and Hiudus, nor does it direct that the rules of evidence of the Mahomedan or Hindu law shall be acted upon. lu all other cases, by Regulation III of 1793, s. 21, the case is to be determined "according to justice, equity, and good conscience." But, admitting that tlie law allows sales of land, or othtr contracts relating to land, 10 be made verbally, it does not follow that, if the parties choose to reduce their contract into writing, they can biing forward mere veibal evidence to contrailict the writing, and to show that they intended something different from that whicli the writing expresses and was intend- ed to express. Tliat would be contrary to a well-known rule of evidence of the English law ; see Siarkie on Evidence (4th edition), pages 648, 651, 655, 656, 659, 660. The following are the words of the passages referred to : — Page 648. — "It is likewise a general and most inflexible rule, that wherever written intruments are appointed, either by the require- ments of law, or by the compact of parties, to be the repositoiies aud memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy; of principle, because such instruments are, in their own nature and origin, entitled to a much higher degree of credit than parol evidence ; of policy, because it would be attended with great mischief if those instruments upon wliieh men's rights depended were liable to be impeached by loose collateral evidence." Page 651. — " The same 386 FULL BENCH IIULINGS. 1866 principle applies where private parties have, by mutual compact, Kashi Nath constituted a written document the witness of their admissions and „. intentions." Page 655. — " Where the terms of an agreement are reduced Charan *'* writing, the document itself, being constituted by the parties as tha Banekjee, expositor of their intentions, is thfl only instrument of evidence in respect of that agreement, which the law will recognize so long as it exists, for the purposes of evidence." Page 658 . — " Where A granted an annuity for his own life to B, which was secured by a bond and warrant of attorney, and judgment was entered, the Court would not, after the death of B, permit the attorney of B to prove a parol agreement that A should be at liberty to redeem the annuity on terms." Page 659. — " So in an action on a bond conditioned for payment absolutely, the defendant cannot plead an agreement that it should operate merely as an indemnity." Page 660. — " Upon the same principles, evidence is inadmissible of a parol agreement prior to or contemporary with the written instrument, and which varies its terms; as to show that a note made payable on a day certain was to be payable upon a contingency only, or upon some other day, or not until the death of the maker." See also Taylor on Evidence (5th ed.), page 993. Para. 1049 says: — "It is almost superfluous to observe, that the rule is not infringed by proof of any collateral parol agreement, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter." Without holding that every rule of the English law of evidence is to be applied to transactions in the mofussil, I have no hesitation in saying that a rule of evidence allowing a contract expressed in writing in words which the parties intended to use, and of which they knew the import, could be varied by mere verbal evidence that the parties did not intend that which they expressed in writing but something very different, would lead to the grossest fraud, and would open the widest door to perjury in support of fraud. None of the cases, which have been cited, show that effect was ever given to such a verbal agreement, or that such a verbal agreement ever in fact existed ; for in every case in which such a verbal agreement was attempted to be proved, the Court found that no such verbal contract existed. In the case of Jadub Sirdar v. Kishenhuree Chatter jee (1) the Court does not admit that verbal agreements such as that contended for are usual or customary, for they say : — " The Court cannot see why (1) S. D. A. Eep., 1861, 189. FULL BENCH RULINGS. 387 there was not the usual written ikrarnama or agreement. My re- jggg marks apply to mere verbal agreements, and not to a contempor- kashi Na.th aneous written ikrarnama. In such a case the rule of evidence Chatterjee V. would not prevent the reception of the ikrarnama. According to Chandi Chaean the Common Law of England, a deed under seal could not be varied Banerjee. or altered by a written contract not under seal ; but such a rule is not applicable in the Mofussil in this country, and a contract under seal might be varied by a contemporaneous contract in writing not under seal. If mere verbal evidence is admissible in this case to contradict a written contract, it would apply to every other case, and a man who writes " one thousand " intending to write " one thousand" might prove that, by a verbal agreement, the words " one thousand " were not intended to mean " one thousand " but only " one hundred." Nothing could be more dangerous than the admission of such evidence. Further, if it be held that such evidence is admissible, the whole effect of the new Registration Act would be frustrated. If an absolute deed of sale of land is registered, it could not be controlled or proved to be conditional by an unregistered ikrarnama, because both are instruments relating to land within the meaning of Act XVI of 1864, s. 13 : but a mere verbal contract would not be an instrument within the meaning of tliat section. If an absolute deed of sale could be controlled or modified by a contemporaneous verbal agreement, showing that it was intended to be a mortgage, an absolute deed of sale of land registered could be modified by an unregistered verbal agreement, as a verbal agreement cannot be, and is not required to be registered. This does not necessarily show what the law is ; but it behoves us, in deciding this case, not to admit a principle which must necessarily lead to such results, unless we find it clearly and unequivocally established. A European British subject cannot make a will without writing by reason of the Will's Act, but a native may (1). If the rule be laid down that that which is expressed and intended to be expressed in writing may be varied by verbal evidence, it may be shown that a native who intended to declare by his written will, executed in the presence of witnesses, that he gave 10,000 rupees to a particular individual, expressly stated in the presence of other witnesses that, though he intended to write 10,000 rupees as the legacy, he intended it merely to be 100 rupees. He may make a verbal will if he pleases, but, if he chose to write his will, he cannot alter it by a contemporaneous verbal expression. (1) As to this see the Hindu Wills Act cvibes the mode in which wills should be XXI of 1870, incorporating s. 50 of the In- executed, dian Succession Act, X of 1865, which pres- 388 FULL BENCH RULINGS. 1866 It would be most dangerous to testators, it would be fraught with the Kashi Nath greatest danger to tiie coramuuity at large, to admit such a doctrine. J, I do not know that the Hindu or Mahoraedan law allows a written Chaban document to be altered by contemporaueous verbal statements. It is Baherjee. unnecessary to enter into that question here. It is sufficient to say that, if they did, we are not bound by the Mahomedan or Hindu rules cf evidence, and that they are far more stringent than ours. I agree with the decision in Rychund Bunik v. Greeshchunder Goho (1), which has been cited. That was a case in which an absolute deed of sale was attempted to be controlled by verbal evidence against a purchaser from the original vendee, and it was held that parol testi- mony was not admissible to alter or contradict a valid written instrument. The case of Mohunt Joyram Gir v. Lall Bungshee Adhur (2) laid down the same rule as between the original parties to the contract. The case of Ntindkishore Koomar v. Zureefer Beebee (3) is not in point. In the case of Kassim Mundul v. Sreemutty Noor Beebee (4) it was held that verbal evidence was admissible to prove fraud or mistake, but not to prove that an absolute deed of sale was intended to operate merely as a mortgage. If persons will write things in unmistakeable language intending that the writing shall convey a meaning by which they do not intend in reality to be bound, they must have some improper, or underhand object, and they cannot be surprised, or with any reason complain, if the Courts refuse to allow them to contradict their writing by mere verbal evidence. The cnse of Hidayut Ali and Qiadar AH v. Prem Sing (5) merely held that parol evidence was admissible to prove the contents of a written ikrarnama which had been accidentally burnt, and which controlled another written contract contemporaneously executed. There is no doubt that such evidence was admissible. In the case of Doorgadoss Roy v. Ramjeebun Doss (6) the verbal evidence was disbelieved. The same remark applies to the case of Ram- coomar Roy Chowdhry v. Kashee Chunder Sein (7). In the latter case, the verbal evidence seems to have been admitted to explain a written document ; but the evidence was not believed, and the written document was construed without reference to the verbal evidence. It is therefore no authority on the question now under consideration. It can scarcely be supposed that, in either of the two last mentioned (1) S. D. A., 1859, 362. (5) 3 Sel. Rep., 250. (2) 2 Hay's Rep., 328. (6) 2 Hay's Rep., 209. (3) Leg. Rem., liO. (7) 1 Hav's Rep., 325. (4) 1 W. R., 76, FULL BENCH RULINGS. S89 cases, the Court Intended to act in opposition to the rule laid down in (he i8B6 ». Chandi Chahan Banekjkk. first two cases which I liave above cited, viz., Rychund Bunik v. KashiNath Greeshchunder Goho (1) and Mohunt Joyram Gir v. Lall Bungshee Ad/iur (2), as two of the Judges in tlie case of Tarahinkar Roy v. Kashichunder Sein (3) were Trevor, J., who was one of the Judges in the case of Rychund Bunik v. Greeshchunder Goho (1) and Seton-Karr, J. wlio was one of the Judges in the case decided on the 16tli March 1863, 'and as one of the Judges in the case of Doorgadoss Roy v. Ramjeebun Doss (4) was Seton-Karr, J. Tlie case of Muttyloll Seal v. Annundochunder Sandel and Jogenderchunder Sandle (5) was cited, but (hat case did not lay down the broad rule now contended for. It was decided upon the documents themselves and the acts of the parties. In that case the appellant, Muttyloll Seal, agreed to lend money to Madhusudan Sandle at 17 per cent, interest. He lent Rs. 5,000, and he took an absolute bill of sale of certain property, stating that it was in consi- deration of Rs. 25,000 paid ; and, by lease of the same date, he let the property to Madhusudan Sandle at a rent of Rs. 425 per month, ■which was equal to the precise amount of interest on Rs. 5,000 and Rs. 25,000, amounting to Rs. 30,000 at 17 per cent, per annum. One question in determining the case would necessarily be to ascertain whether the Es. 25,000 was a loan or purchase-money. Part of the money was afterwards paid oiF by Madhusudan, and then the rent under tlie lease was, in pursnance of an agreement to that effect, reduced in tlie proportion of 17 per cent., on the money paid off ; and there were other circumstances in the case tending to show that the Rs. 25,000 was a loan only. There can be no doubt that the whole was a colorable transaction to secure the money lent with usurious interest. The Supreme Court held that the transaction was a mortgage. The Privy Council concurred. Lord Langdale, in deliver- ing the judgment, said : — "In this appeal, although we think it is not without difficulty, and our opinion, if given in detail, might not have been altogether in accordance with the decision of the Court below, yet, giving our best consideration to the whole matter, we do not find any reason which appears to be sufficient to alter that decision. Under these ciicumstances we must dismiss the appeal with costs." This case, as I have observed, shows merely that the Judicial Com- mittee of the Privy Council upheld the decision of the Supreme (1) S. D. A., 1859, p. 362. (4) 2 Hay's Rep., 209. (2) 2 Hay's Reports, 328. (6) 5 Moo. I. A., 72. (3) 1 Hay's Kep., 325. 6 390 FULL BENCH KULINGS. iseg Court, but we cannot say for what reasons. There were ample reasons Kashi Nath for upholding it, without introducing or upholding such a rule as that Chatteejee ^^^ contended for, which was never laid down in the judgment in the Chandi Supreme Court or ever contended for in the arguments of Counsel. In Baneejee, Taylor ou Evidence, (5th edn.), page 985, para, 1039, it is said : — "Parol evidence may also, under the proper plea, be offered to show that the con- tract was made for the furtherance of objects forbidden, either by statute, or by common law." In the case above cited from the Privy Council, it was alleged, at the time of the transaction therein referred to, to lend money at 17 per cent., and it was therefore quite in accordance with the rules of evidence to show that the transaction was really a usurious loan, colorubly represented as a sale for the purpose of avoid- ing the usury laws then in force. The plaintiff in the present case alleged that he took possession in 1266 (1859) and that in 1270 (1863) the defendant forcibly dispossessed him. The defendant says, that the plaintiflf never took possession, and that he was never forcibly ousted. If possession did not accompany or follow the absolute bill of sale, it would be a strong fact to show that the transaction was a mortgage and not a sale ; and it therefore becomes material to try whether the plaintiff was ever in possession and forcibly dispossessed as alleged by him, and whether, having reference to the amount of the alleged purchase-money advanced, and to the value of the interest alleged to be sold, and the acts and conduct of the parties, they intended to act upon the deed as an absolute sale, or to treat the transaction as a mortgage only ; for I am of opinion that parol evidence is admissible to explain the acts of the parties, as for example to show why the plaintiff did not take possession in pursuance of the bill of sale, if it be found that the defendant retained possession, and that the plaintiff never had possession as alleged by him, and was never forcibly dispossessed. I would remark that, although evidence of the acts and conduct of the parties is admissible in suits in which third parties are not concerned, the rights of a third party acting bond fide upon the faith of an absolute sale, such for instance as those of a bond, fide purchaser for value from the apparent vendee, would not be affected even by the acts or conduct of the original parties, and the third party would not be precluded by such acts or conduct from having effect given to the contract as expressed by the writing. A second issue was raised by the Moonsiff, viz., whether a verbal contract subsequrnlly entered into by the parties could nullify the FULL BENCH RULINGS. 391 previous written one. There can be uo doubt that a prior written igee contract may be varied by a subsequent verbal one in cases in wliicli Kashi Nath the law does not require the contract to be in writing ; see Taylor Chattkkjee on Evidence (5th edn.), page 925, para. 1043 : it is there stated that q'"^^an " the rule under discussion does not exclude verbal evidence, when Baneejbb. adduced to prove that the written agreement has been totally waived or discharged." It turns out that no subsequent verbal contract was set up in the present case ; it was merely alleged that, in Aswin 1270 (Septenaber 1863), the defendant went to repay the money with interest, but that the plaintiflf refused to accept it on the plea of other dues and accounts. This fact, if proved, will be an important one to be considered when the acts and conduct of the parties come to be taken into consideration, for the purpose of detei'miuing whether they by their own acts treated the transaction as a sale or mortgage' ; for why should the plaintiff refuse to accept the money and interest upon the ground of other dues and accounts, if the transaction was really an absolute sale. The case must be remanded to the first Court, not for the purpose directed by the Principal Sudder Ameen, but to try the following issue, viz., whether having regard to the acts and conduct of the parties and having reference to the amount of the alleged purchase-money, and the real value of the interest alleged to be sold (which were matters taken into consideration in the case of Muttyloll Seal v. Annundochunder Sandle and Jogenderchunder Sandle (1) to which reference has already been made), the parties intend- ed the deed to operate as au absolute sale and treated the transaction as an absolute sale or as a mortgage only. NoEMAN, J. — I agree with the Chief Justice that this ease must be remanded. But I do not agree in the reasons for the judgment delivered by him. I am of opinion that the Principal Sudder Ameen was right in holding that evidence is admissible to show that the bill of sale, though absolute in its terms, was a mortgage; in other words, that it was made subject to a contemporaneous verbal agree- ment that the vendee should reconvey on payment of the money. The point seems to me to have been expressly decided by the late Supreme Court, and by the Privy Council on appeal, in the case of Muttyloll Seal -7. Annundochunder Sandle (l) in accordance with the decision of Morgan and Pundit, JJ., in Kashinath Roy v. Nowcowry Koondoo (2). The cases from the earliest date show that it is a (1) 5 Moo. 1. A., 72. (2) 1 W, IJ., 22. 892 FULL BENCH RULINGS. 1866 common practice in this country, upon the occasion of a mortgage, Kashi Nath for the borrower to convey the estate absolutely to tlie vendee ; the Chatterjee In tter engaging by a contemporaneous agreement, wliich is sometimes in Chandi writing, and sometimes merely verbal, that, on the repayment of the Banerjee. money lent, he will reconvey the property to the borrower ; see Hidayut Alt V. Prem Sing {I) ; Beharee Lai y. Mussummaut Sookhun {2) ; Sarupchand Sarkar v. Raja Gris Chandra (3). Tlie custom is as old as the days when the Mahomedans ruled in this country. In Baillie's Mahomedan Law of Sale, page 302, it is said : — " It is then to be considered, if the two parties have mentioned a condition of cancellation in the side act, if so, the sale is valid. And even if they should not have mentioned this in the sale, but have both in expressing themselves used the word 'sale' with a condition of ^wafa,' or have expressed themselves as in the case of a lawful sale, but with the meaning that the same is not to be binding or obligatory, the result is the same. When, again, sale is mentioned without any condition, and the stipulation is there mentioned after the manner of a mutual promise, the sale is lawful, and the ' wafa" binding as a promise." There is no rule of law that I am aware of, which, in the case of Hindus, requires either the conveyance or the contract for re-conveyance to be in writing ; and I see no reason on princi^de why the former should not be in writing and the latter verbal or ihe reverse. In Ramcoomar Roy Chowdry v. Kasheechander Sein (4) the Court says : — "It is simply contended that, intliis country, we have no Statute of Frauds ; that one transaction is sometimes partly in wriiing and partly oral; that, consequently, in such cases, both parts must be considered together, and if the oral part be clearly proved, it must be duly considered and accepted by the Court. Doubtless, there is truth in this contention, and the Courts in this country have never refused to listen to pleas of the nature of that now advanced ; but they have always shown a disin- clination to admit such pleas, and this disinclination increases with the length of the period which has elapsed since the date of the transaction." The Court then proceeded to try the case on that footing. 1 think that one ground on which such evidence may be admitted, ■where the ques I ion arises between the immediate paities, is much the same as that on which evidence is admissible to show that one, who, on the face of an instrument, appears simply as a co-contractor did in reality contract as a surety ; as to which see Lord Cottenham's judg- (1) 3 Set. Rep., 250. (3) 5 Sel. Eep., 139. (2) 4 Sel. Sep., 174. (4) 1 Hay's Rep., 325, at p. 327. FULL BENCH RULINGS. 393 ment in Hollier v. Eyre (1), in the House of Lords and Poohy v. iggg Harradine (2). It appears to me that evidence of a verbal agreement Kasih Xath for defeasance does not contradict a written conveyance. It is or may Chatterjee be entirely consistent with, and in accordance with the usual practico Chandi , , CHAKA^f relating to such transactions. It is not easy to find in the books cases in Banekjeb, ■which a verbal contract for re-conveyance has been allowed to prevail against a conveyance absolute in its terms. But I am satisfied that such cases are very numerous in the Courts of Justice in this country. As I understand it, Rai Ram Bullubh (3) is a reported case in •which such a verbal contract was established by proof. In Sturkie on Evidence, 4th edition, page 716, note 4th, it is said that the ex- istence of a deed or other written instrument does not exclude parol evidence as to a collateral transaction, citing Fletcher v. Gillespie (4). In Harris v. Rickelt (5), the Court of Exchequer held tliat where it is shown that the written agreement does not contain, and was not intended to contain, the whole agreement between the parties, the rule that parol evidence is not admissible to add to a written agreement has no application. Of the cases opposed to the view which I take, that of Rychand Bunik v. Greeshchunder Goho (6) is a case between a purchaser from the mortgagee, who had apparently been misled by, and had acted on the faith of, the representation contained in a deed purporting to be one of absolute sale. As a bona fide purchaser for value without notice, he would of course have a riglit to hold the mortgagor bound by the representation coutaiupd in that deed, iu reliance on which he had paid his money : and I think that the case should have been tried on that footing. That of Mohunt Joyram Gir V. Loll Bungshee Adhur (7) appears to be a case of fraud, and was found to be such by both the High Court and the lower Appel- late Court. The High Court say more than is necessary for the decision. It appears to me that it would be very desirable, particularly with reference to the provisions of the Registration Act, that the Legislature should provide by enactment that, after some future date, no parol defeasance made after that date should be given in evidence. But sitting as a Court of Justice, I think, we ought not to lay down a rule of evidence which may have the effect of invalidating a large number of contracts in a form which is very commonly adopted in this country, and which, so far as I see, are blameless iu themselves. (1) 9 CI. & Fin., 1; pp. 45 to 51. (2) 7 E. & B., 431. f3) S. D. Summary Cases, 79. (4) 3 BiDg., 635, (5) 4H. &N., 1. f6) S. D.A. Kep., 1859, 362. (7) 2 Hay's Kep,, 328. 394 FULL BENCH RULINGS. Chandi Chakan BANEliJEE. iggg PuNMT, J. — It is admitted by the special appellaat that, in this Kashi Nath P^rt of India, in cases of conditional sales, it is often found that a deed Chaiterjee p£ out-and-out purchase in favour of the mortgagee is executed, and a separate agreement acknowledging the right of redemption ia given to the mortgagor. Generally, possession is made over to the mortgagee, but it is sometimes retained by the mortgagor. It cannot, however, be denied that in many cases no such ikrar is taken, and for a transac- tion known and understood by the parties to it to be merely a conditional sale, no other deed except one of an out-and-out sale is executed, and a verbal promise made to return the property or the deed of sale after the money advanced is paid off with interest. I admit this custom is rather dangerous, and that the Legislature should soon try to set it aside. But as long as it is in existence. Courts of Justice are required to take it into consideration. There can be no difficulty in a case where there is an ikrar. As to those cases in which merely a verbal promise is pleaded, it is certain that it is one thing to disbelieve parol evidence produced to contradict the written terms of a deed, and another to deny to receive such evidence at all. The rule adopted by the English Courts with reference to the rejection of parol evidence to vary and contradict a deed is undoubtedly based on sound principles : but, with reference to the circumstances of this custom with regard to conditional sales, it will be unfair for a Court of Justice to adopt that rule of evidence in transac- tions made when it was not recognized as any part of the law in force. Practically, such parol evidence, though received by our Courts, was not generally believed, as the Judges trying such cases were always dis- inclined to countenance such a dangerous custom. The Judges could not, however, ignore the existence of the custom, and so did not refuse to hear evidence, which, in many cases, might turn out to be credible. In one sense the additional verbal agreement is not perhaps inconsistent with the deed of sale. The deed, as worded, is intended to be one for a sale out-and-out, and the transaction is a sale, but conditional so far that there is an additioual promise for the return of the property if the money paid is returned with interest within a period fixed. The law has, however, construed these transactions to be mortgages, and which cannot be foreclosed merely on the failure of the mortgagor to pay within the time fixed in the deed. I wish the Legislature may pass a law to the efiectthat, in future transactions of this kind, no parol testimony shall be received to prove that, at the time of writing a deed of sale, it was agreed that the transaction is to be one different from the terms of the deed. The Legislature may even, if it think proper, order the rule to apply PULL BENCH RULINGS. 395 V. CHANDt Chaban Bahekjee, retrospectively. Rules of evidence have, from time (o time, been passed igge by our Legislature in the form of laws. In the absence of such a law, by Kashi Nath following the rule as adopted in English Courts, we are likely to injure ^Ihatterjbis many who might have executed deeds of sale when the contracts made by them were simply mortgages, and were known to be so by the ostensible vendees. The supposed vendors, viz., the mortgngors, who may never have originally received the full value of their property, are, by the terms of the original contract, entitled to redeem, and were hitherto quite assured that, if the mortgage be denied, they have a right to prove the real nature of the transaction by parol evidence regarding what had passed at the time of the contract. One or two of the earlier decisions of the late Sadder Court, quoted by the Counsel for the respondents, show that the Judges trying those cases had considered that such conditional sales are usually supported by ikrars from morlgagees. But the records of our Civil Courts miglit, if searched, show the existence of numerous cases in which, for such condiiional sales, simply deeds of absolute sale were executed, in which the crediior, not denying the nature of the transaclion, litigated with hia debtor on other grounds. There might also be found several cases in which, on the fact of the mortgage being denied, and an absolute sale pleaded, both the parties were allowed to bring evidence to support their respective assertions, and were not prevented on such occasions from pro- ducing parol evidence as to what passed at the time of the execution of the deed. As the application of the rule of exclusion of this evidence was never pleaded before, there was no opportunity to overrule it. As a ques- tion of fact I can state from personal experience that I have seen and known of many deeds of conditional sales executed as of absolute sale not followed by any written agreement by the mortgagee to return the property. I now notice the argument that this misnaming of the transaction of a mortgage must be from some fraudulent motive. Fraud may not have anything to do with the original introduction of the custom. It is not denied that, in many cases, the written ikrars taken from the mortgagee were registered simultaneously with the deed of sale. From this it would appear that the form of writing a deed of sale, and accompanying it with a written or verbal promise to return, appears to have been gen- erally considered as the one adapted for these transactions of baibil-wa/d. It may also be that, as the selection of this form is not always invari- ably a voluntary act of the mortgagor, but is the condition dictated by the creditor to a person pressed hard for money, the design of a cunning creditor to take advantage of the possibility of the failure of 396 FULL BENCH RULINGS. 186G the mortgagor to prove, by parol evidence, the fact of tlie transaction Kashi Nath being merely a mortgage, or vain hope of getting rid of the tedious pro- Chattekjee gggjijjgg ^,f foreclosure under Regulation XVII of 1806, might have Chakan g'^en rise originally to the custom of keeping the promise merely verbal. Banebjee. Ordinarily persons so mortgaging their property are not actuated to execute deeds of sale with a view to protect their rights of redemption from any other creditor. In many cases the mortgagor may not have any other debts, or may not have in contemplation to incur any from any other person besides the advance he is receiving from the mortgagee. As to the mortgages altogether fraudulent, where there is no bona fide sale or mortgage at all, the fact of fraudulent debtors executing such deeds cannot justify the adoption of a rule which will injure many who had never heard or thought of it. Further, if the meaning of the rule in question is allowed to be what the Court of first instance has held it to be, it would go beyond what it is according to the English authorities. It would give an undue advantage to many creditors, and make over to them, on the bare wording of deeds, property which was never intended to be conveyed absolutely, which they might all along have held only in trust, and from the proceeds of which, as origiiinlly agreed, they may have fully paid themselves. It is only since 1862, that the rule in question has begun to be adopted in this Court with regard to these cases of conditional sales. The case of liychund Bunik v. GreesJichunder Goho i\) was rightly decided, as it related to the rights of a third party to whom different rules apply. I would, therefore, in this case allow the parol evidence to be taken even to prove the exact nature of the original transaction, and therefore reject the special appeal. The English rule of evidence does not appear to have been disallowed in any other transaction except that of conditional sales in which the deeds are drawn as for out-and-out sales. I myself would not exclude the operation of this rule, except from cases of conditional sales with verbal promise to return. I also would not make any such considera- tion in favor of a party, who, by a voluntary or forced adoption of the custom of misnomer, may have been the cause of leading a third person to purchase out-and-out a property from the ostensible vendee, believing him, on the wording of the deed executed, to be a purchaser under the same. In the present case, even if the English rule is adopted, it will simply prevent the respondent from proving by parol evidence that, at the time of the execution of the deed of sale, it was contracted by verbal agreement ; that the transaction is not to be what (1) S. D. A. Eep., 1859, 362. FULL BENCH RULINGS. S97 it is described in the deed. It cannot prevent the reception of parol igee evidence regarding otlier matters mentioned in tlie defence of the icashiNatu special respondent, whicli, if proved, miglit legally and satisfactorily ^"■^^^'"'"'^'^ prove that the deed of sale is simply a mortgage — Muttyloll Seal v. Chandi Annundochunder Sandle (1). Tlieie is no such law in English Courts, Baneiuee. or in Courts where English law prevails, which declares that when a deed is in the form of an absolute sale, it is to be considered as such, irrespective of all legal evidence wliich the party executing it may have in his power to produce to show that it was not a sale. If a party can prove, as is alleged in this case, that the value of the lands is higher than the consideration paid when tlie deed was written, or that the plaintiif had never held possession of the property, these and other facts connected with the dealings of the parties with the pro- perty miglit prove that the transaction was a mere mortgage, and not one of absolute sale. The order of the lower Appellate Court in this case is a remand to the Court of first instance for trying the statements of the defendants. I would therefore reject this special appeal with costs. Campbell, J. — It seems to me clear that, in a case of this kind, we are not to administer Hindu or Mahomedan law, but only the law of equity and good conscience applicable to all Natives and Europeans alijie. That being so, ou so broad a question as tiiat before us, the decisions of the Courts must come very near in character to legislation, and in this matter I should think that we were bound to follow any uniform and well established series of decisions. When I referred the case to a Full Bench, and when the argument in this Court commenced, I was certainly under the impression that the decisions had, during many years, gone to establish the admissibility of parol evidence in such a case as that before us. I have been surprised to find how little this view can be supported in argument by the citation of cases. The cases cited, when examined, are either not properly in point, or are of doubtful effect, down to the decision of 15th August lSQi.—Kas}iinath Roy v. Nowcowry Koondoo (2). On the other hand, the opposite doctrine has been sevenil times laid down, and on the whole the balance of authority seems to be on that side. I also think that the rule, which excludes parol evidence contradic- tory of the plain and intentional terms of a written and published (1) 5 Moo. I. A., 72. (2) 1 W. K. 22. 398 FULL BENCH RULINGS. 186G document such as that "before us, is consonant to equity, good conscience Kashi Nath and public policy. It is not equitable or right that parties should be Ghattbkjee a]j(j„g^ ]yj jj formal -insirument to place on record one thing when Chahdi they mean another. Charan ■' Banbejeb. There can, in no case, be any douht that a third party, acting on the aith of the written instrument, could not be affected by any parol engagement ; and, even as between the parties themselves, I think that, if in any case there really is any understanding or expectation con- trary to the terms of a -deed which has been acted on, this «an only result from one of two things, i.e., either the object is (as is commonly the case in this country) to deceive -othei's, and to retain the means of cheating others ; or the vendor, whatever hope of re-con veyance he may retain, deliberately puts himself as it were out of the pale of the law, and cuts off from himself all legal right or remedy. If it were otherwise, what additional security would a mortgage in this shape give to the lender as compared to a mortgage in the ordinary form ? And an additional security is the only object suggested. But then comes the decision of the Privy Council cited to us. That case, when examined, seems, I think, as shown by the learned Chief Justice, to amount in brief to this, that when there are actions of the parties at variance with the written instrument, and especially when possession of the property has not been transferred, nor full value paid, then parol evidence to explain those facts may be admitted. I would hold that, although parol evidence may not be admitted purely and simply to contradict the terms of a formal and public written instrument duly acted on, it may, as between the original parties themselves, be admitted in sup- port of substantial acts and facts which negative or detract from the effect of the instrument. In this case, then, the question whether the possession was transferred to the purchaser is most material. If it was not — if possession was retained by the vendor, then I think he maybe permitted to show (there being no third party in the case) that the transaction was merely of the nature of a deposit of title deeds as security for a loan. I concur in the decision of the learned Chief Justice. PULL BENCH RULINGS. 399 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Baylei/, Mr. Justice Norman, Mr, Justice Pundit, and Mr. Justice Campbell. MALUK CHAND SURMA (One of the Plaintiffs) v. KARLU 1866 CHANDRA SURMA and others (Defendants).* ^"^^^ ^- Evidence — Written Agreement — Contemporaneous Verbal Agreement — Parol Evidence to vary Deed. A., by a deed purporting to be a deed of absolute sale, conveyed certain property to B. The deed was registered. C. claimed a right of pre-emption. Eeld, per VejlCook, C3 ., Batley, and Campbell, J J. (Noeman and Pundit, JJ. dissenting,) that the acts of the original parties or their statements could not be admitted as against a third party to prove that their intention was di£E«rent from that which their written deed expressed and was intended by them to express (1). This was a suit to enforce an alleged right of pre-emption, the plaint stating that Ramrnttan, the alleged purchaser, bad taken possession, under a registered kabala or deed of absolute sale. Th edefendants, in answer, alleged that the sale was conditional ; that though the deed of conveyance was absolute in its terms, there was a verbal agreement that the kabala should be taken back, if the party conveying paid to the purchaser 100 rupees within a year. They also denied that posses- sion was taken by the purchaser. The lower Appellate Court found that the sale was a conditional one, and, consequently, that there was no riglit of pre-emptiou. It was objected that parol evidence had been wrongly admitted to vary the terms of the deed. Baboo Umesh Chandra Banerjee for the appellant. Baboo Bama Charan Banerjee for the respondents. Peacock, C.J. (Baylet, J., concurring). — It appears to me that this case is governed by the ruling in Kashinath Chatterjee v. Chandi Charan Banerjee (1), that mere verbal evidence is not admissible to show that the parlies did not intend that an absolute sale in writing should operate as an absolute sale, but intended it to operate merely as * Special Appeal, ITo. 1978 of 1865, from a decision passed by the Principal Sudder Ameen of Sylhet, dated the 4th May 1865, reversing a decision of the MoonsifE of that district, dated the 28th January 1865. (1) See Kashi Naih Chattet^ee v. Chandi Charan Banerjee, ante, p. 383, 400 FULL BENCH RULINGS. 18G6 a conditional sale. Tliis case is still stronger than tlie former one ; for MalukChand in this case the absolute deed of sale was registered, and the plaintiff is J,.' ' a third party who claims a right of pre-emption. If the sale was Chandua absolute as expressed in the registered deed, the plaintiff was entitled to SuitHA. pre-emption ; but if it was merely conditional as attempted to be shown by the verbal evidence, he was not entitled to pre-emption. The plaintiff, acting upon the registered deed, as he found it published to the woiid upon tlie registry, asserts bis right of pre-emption and endeavours to enforce it by suit, but he will be defeated, and the suit must be determined against him if the verbal evidence be admitted and acted upon. The acts of the original parties, or their statements, cannot be admitted as against a third party to prove that their intention was not that whicii their written deed expressed, and was intended by them to express. It is unnecessary, tiierefore, to send this case back to have an issue tried, whether the vendor took possession or not. The parties to the bill of sale can no more use verbal evidence to defeat the right of the plaintiflf, than tiiey could to defeat a purcliaser from the vendor if the latter had sold for a valuable consideration. The Principal Sudder Ameen has not tried the question, whether the requisitions of the law of pre-emption were fulfilled by the plaintiff. This case must be remanded to him to try the fourth issue as laid down by the first Court which raises that question, and which the first Court has decided in favor of the plaintiff, and the Principal Sudder Ameen is directed to return his finding upon that issue in this Court, together with his reasons in detail for such finding. Norman, J., (after stating the facts, continued.) — It is objected before us that parol evidence was not admissible to contradict the deed of sale which is absolute in its terms. I have already stated my view on that subject in Kashinath Chatterjee v. Chandi Charan Banerjee (1). I think that the Principal Sudder Ameen should have enquired into the truth of the allegation that possession was taken by the purchaser ; that, if no possession was taken, the evidence that the deed was subject to a verbal condition for rendering it void on payment of the money within the time stipulated would be properly admitted. But there is another consideration to which attention has not been given by the Principal Sudder Ameen, which would be deserving of the greater weight if possession followed the execution of the deed, viz., whether the plaintiff was not so far misled and injuriously affected by the acts (1) Ante, p. 391. FULL BENCH RULINGS. 401 Surma V. Karlu Chandra SUBSIAr of the defendants, in becoming parties to a deed purporting to be one of iggs absolute sale, as to entitle him to say that they are not now at liberty malukChand to set up thiit the deed is not one of absolute sale as against their own admission. If he was misled, and in good faiih brought this suit in the bona fide belief that the deed was one of absolute sale, I think that the defendants ought not now to be allowed to deny it. If they could do so, tlie plaintiff might lose his right to pre-emption altogether. If he delayed taking the necessary steps till the end of the year, when the sale is to become absolute, the defendants would have the answer : — "The sale was absolute and not conditional. You were warned by the registered deed, and are now out of time under s. 1, cl. I, of Act XIV of 1859" (I). To hold tlie parties ao bound, appears to me the only mode in which the interests and rights of the pre-emptor can be effectually protected. I would remand the case to the Principal Sudder Ameen for the trial of the issues to be raised with reference to tliese points. It is admitted that the case must go back to the lower Court for the trial of the fourth issue. P0NDIT, J. — The judgment inKashinath Chatterjee v. Chandi Charan Panerjee (2), decided to-day, affects this suit. The plaintiff in this case sued for pi"e-emption on the ground of a deed drawn as one of out-and- out sale. He may have been misled to suppose the contract to be a sale; but his mistake cannot give him a right to alter the real nature of the original transaction. The plaintiff cannot be considered to have incurred any such loss by his mistake that he can in return ask for a decree of the property. If he had purchased from the ostensible purchaser, he was clearly entitled to be protected from any demand made against him by the mortgagor. I think, however, that, if not satisfied with the denial of the vendor and the vendee regarding the transaction being a sale, and relying upon the wording of the deed, he institutes a case under a belief that his opponents will fail in establishing before a Court of Justice that the transaction was merely a mortgage, he may, notwithstanding his calculations proving wrong, be entitled to bo protected from the liability of paying any costs to his opponents. (1) Act XIV oJ 1859, s. 1, cl. 1. — " To of one year to be computed from the time at suita to enforce the right of pre-emption, which the purchaser shall have taken posses- whether the same is founded on law or gene- sion under the sale impeached." ral usage or on special contract,— the period (2) Ante, p. 383. 402 FULL BENCH RULINGS. 1866 Even if the English rule of evidence be considered as applicable to Maluk Chand *'"^ *'*®^' ^^ ^^ '^^^ ^'^'^^ *^^°' *^® question of possession is at issue, and SuKMA as proof of it is likely to throw great light upon the nature of the Karlu transaction, and as this evidence is not parol evidence which is con- ChaNDEA .,1, ,,.. .1,1 Surma. siuered inadmissible, and as it is necessary to enquire whether the plaintiff knew the real nature of transaction, I agree in the order of remand proposed by Norman, J., on the points therein mentioned. Campbell, J. — In this case, as distinguished from the last, Kashinath Chatlerjee v. Chandi Charan Banerjee (1), I have had a good deal of doubt, first, as regards the point whether as between the original parties, or those standing in no higher position, it would be necessary to try the question of possession ; and, secondly, as regarding the position of the plaintiff as a third party. In the last case, it was alleged that, during several years subsequent to the sale, possession was retained by the vendor, and that was so material an act and fact that parol evidence might well be admitted in support of it. In this case the cause of action arose so soon after the transaction, that the retention of possession (if it was retained) may hardly have attained the character of a positive act. Still, I think, I should be inclined to hold that till possession is delivered in terms of the deed of sale, the transaction is not a complete transaction : and that, if pos- session had not been given, it might be shown in a suit between the original parties that it never was intended to transfer possession, and that the transaction was a mere deposit of title as security. The plaintiff, though a third party, is not a purchaser for value ; he is in the very peculiar position of a person claiming the right of pre- emption on the faitli of the deed of sale, and the question to ray mind is whether he is a third party in the sense that in his favour effect must be given to the deed without respect to th.e disputed question of possession. Upon the whole, I think, it must be important to maintain in all cases the right of third parties acting upon solemn instruments formally published and registered ; and considering that the plaintiff, on the faith of the registered sale, may have raised money, made his arrangement for the purpose, and brought his suit, while the combined defence of the vendor and vendee, if admissible, could hardly be dis- proved, byhira, I, on that ground, concur in the decision of the learned Chief Justice. (1) AnU, 383, FULL BENCH RULINGS. 403 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell. MAHAEAJA MAHESWAR BAX SING BAHADUR (Defendant) v. 18GG BHIKHA CHOWDRY (Plaintiff).* ^^''^- ^- Lien — Mortgage — Registration — Act XIX of 1843 — Purchaser for Value without Notice — Notice — Priority. A registered deed of sale has not priority under Act XIX of 1843 over an unregistered deed of mortgage of an earlier date (1). Per Peacock, C. J., Nokman and Pundit, JJ., (Baylet and Campbell, JJ., dis- senting.) The fact of a purchase of land under a deed of sale being bond fide, and without notice of a prior charge, does not pass the land free from the prior charge. In this case the plaintiff claimed a lien on certain lands under a bond by which they had been pledged or mortgaged to him. The defendant was a purchaser in possession under a deed of sale from the same pro- prietor, of a subsequent date, but duly registered, while the plaintiff's bond was not registered. The Judge found the plaintiff 's bond to be genuine and bona fide. Two questions were ruised on the argument on the special appeal on behalf of the defendant. First. — Whether, under Act XIX of 1843, the defendant's registered deed was entitled to rank before the plaintiff's deed, notwithstanding the priority of date of the plaintiff's deed ? Secondly. — Whether, even independent of Act XIX of 1843, if the defendant is a bona fide purchaser for value without notice, and exer- cising due diligence, he was liable to the plaintiff in I'espeet of the plain- tiff's lien over the land ? Campbeli, and Pundit, JJ., before whom the special appeal was argued, considered, on the first point, that the true intent and meaning of Act XIX of 1843 was that not only shall a registered deed of sale invalidate an unregistered deed of sale, and a registered deed of mort- gage, an unregistered deed of mortgage, but also that a registered deed of sale shall invalidate an unregistered deed of mortgage. Upon the second question the learned Judges observed that " inde- pendent of Act XIX of 1843, if the defendant in possession under a * Special Appeal, No. 645 of 1865, from a decision passed by the Judge of Shahabad, dated the 21st December 1864, modifying a decision passed by the Principal Sadder Ameen of that district, dated the 19th July 1864. (1) See Prahlad Uisser v. Udit Narayan Soodharam BhattacTiarjee v. Odhoy Chunder Singh, 1 B. L. H., A. C, 1S7 ; Ginja Singh Bundopadya, 10 B. L. R., p. 380; and V. Giridhari Singh, 1 B. L, R., A. C, 14; Act Y III of 1871, S. 50. 404 PULL BENCH RULINGS. 1866 Maiiakaja JIaheswar ]5ax Sing Bahadur V. Bhikha Chowdky. hon&fide purchase can show that he took without notice or means of notice of the alleged lien after using due diligence, he is not liable on this private and unpublished deed of lien now produced against him, and that the case should, failing the defence on the first question, go back for a trial on the second. Considering the first question one of extreme importance tliey agreed to refer the case to a Full Bench. The judgments of the Full Bench were as follows : — Peacock, C. J. — It has been held in several cases that a deed of sale registered did not invalidate a prior unregistered mortgage under the provisions of Act XIX of 1843. There was a case of Dooleychand V. Hurdeo Suhai (1). There was also a case oi Heralollv. Rutchfall, which is referred to in the decision of in Dooleychand v. Hurdeo Suhai, and the last mentioned decision was followed by a decision of the Sudder Court in Bengal to the same effect, dated 23rd December 1852. I am of opinion that those decisions were con-ect. But even if I hud had doubt as to the proper construction to be put upon the Act, if this had been a new case and there had been no authorities on the subject, I should not feel that I was right in overturning decisions upon the faith of which many persons may have acted, unless I saw that the decisions were clearly wrong. We can look only to the words of the Act, and must collect the inten- tion of the Legislature by the words which tliey have used. It appears to me that the bond in quesiion did not amount to a deed of sale either absolute or conditional, but meiely to a charge binding upon the land, either in the hands of the Raja or in the hands of any other person to whom it might be transferred. The Legislature probably intended merely to get rid of the effect of notice to the holder of a subsequent deed, when registered, of a prior unregistered deed, and investigations as to which had given rise to fraud and perjury. See the recital in Act I of 1843. That Act recites : — "Whereas the Registry Laws now in force in the respective Mofussils of Bengal, Madras and Bombay, pro- vide that registered conveyances and other instruments affecting title to laud and other interests therein, shall not take precedence of unregis- tered conveyances and instruments in cases where the parly registering shall have known of the existence of such unregistered conveyances or other instruments : And whereas a complicated system of laws has arisen out of the construction which is to be given to the provision regarding the knowledge of parties or notice had by them in such cases : (I) 7 Agra S. D. A., 124. FULL BENCH RULINGS. 405 And whereas much perj ury has been committed in investigations touch- ing the fact of such notice or knowledge, and much of the time of the Courts has been occupied with such investigations : And whereas, in con- sequence of forgeries, perjuries, fraudulent concealments, and other prac- tices, no person purchasing or advancing money on the security of land can safely rely on the conveyances or other instruments affect- ing the title to such land or other interest therein affording, by means of their being registered, a security against conveyances or instruments being set up, as of previous date, by unregistered claimants : It is liereby enacted that all provisions contained in any Regulation or Regu- lations of the Bengal, Madras or Bombay Codes touching such know- ledge or notice as aforesaid, of previous unregistered conveyances, or instruments affecting titles to land or other interest therein, shall be repealed from the first day of May next." The effect of the Act, there- fore, was to repeal that part of the former Regulations which allowed proof of notice of a prior deed In order to prevent priority being given to a subsequent registered deed. Act I of 1843 was repealed by Act XIX of 1843 which is the Act now under consideration. That Act states that : — " Whereas doubts have risen as to the true meaning and construction of Act I of 1843," (the Act does not state what those doubts were) : "It is hereby enacted that the said Act is repealed, except in so far as it repeals all provisions contained in any Regulation or Regulations of the Bengal, Madras or Bombay Codes, touching the knowledge or notice had by parties to registered conveyances and other instruments affecting titles to land and other interests therein, of the existence of unregistered con- veyances or other instruments affecting such titles or other interests therein." The words of Act I of 1843 were : — And every convey- ance or other instrument affecting title to land, or any interest in the same authorized by those Codes respectively, to be registered, shall, so far as regards any lands to which the same relate, be void as against any person claiming under any subsequent conveyance or other instrument duly registered, unless the prior conveyance or instrument shall have been duly registered before the registration of the subsequent convey- ance or instrument; any alleged notice or knowledge of such prior con- veyance or instrument notwithstanding." These words were in my opinion sufficient to give a preference to a registered deed of sale over a prior unregistered deed of mortgage, and vice versa : but when we find the Legislature repealing that Act upon the ground that doubts had arisen as to the meaning and construction of it, and returning 8 1866 Mahaeaja Maheswak Bax Sma Bahaduk V, Bhikha ' Chowdry, 406 FULL BENCH RULINGS. 1866 Maharaja Maheswau Bax Sing Bahadur V. Bhikha Chowdet. to the words of Regulation XXXVI of 1793, instead of using those of Act I of 1843 which they had before them, we cannot say that their intention was different from that which the words used by them import. As to the second ground which has been raised for our opinion, viz., that the purchaser under the bill of sale was a bond fide purcliaser without notice, and therefore entitled to priority. If the bond was really and bona fide executed before the date of the defendant's pur- chase, it would prima facie be entitled to priority, and the defendant could not, according to the decision in the case of Varden Seth Sam V. Luckpathy Royjee Lallah (1), succeed without proof that he was a bona fide purchaser for value without notice. But even if the defend- ant were to satisfy the Court on that point, he could not, in my opinion, be entitled to priority, unless the plaintiff was bound to give notice of his bond. If he was not bound to register it in order to retain priority over subsequent purchasers for value, I do not see what notice he could give or was bound to give. The mere charge upon an estate does not give a right to the possession of the title deeds : and even if it would, the plaintiff in the present case had a charge, not upon the entire estate, but only on one or two vil- lages, which would not give him a right to the possession of the title deeds to the whole estate. But if the defendant should prove that he was a bona fide purchaser for value, he would throw the onus on the plaintiff of proving that he actually advanced the money as alleged in the bond creating the charge, and that the bond was executed before the defendant's purchase. We tliink that the case ouglit to be remanded to the Judge to try — 1st. — Whether the defendant was a bona fide purchaser for value. 2ndly. — Whether the plaintiff's bond or deed of charge was bona fide and for value, and whether the money secured thereby was advanced to the Eaja as alleged in the bond, and whether the bond was executed, as alleged, before the date of the defendant's purchase. As both of these deeds were executed after the Penal Code came into operation, I think the case should be sent to the Magistrate in order that he may investigate it and consider whether there are any grounds for instituting criminal proceedings against Raja Ram Prokash (2) under s. 415 of the Penal Code, or under s. 423 or 464 of the same Code. If the deed of 30th of March 1862 (i.e., the bond or deed of (1) 1 Mars., 461. (2) The vendor. FULL BENCH RULINGS. 407 charge) was lonafide executed on the day on wliioh it bears date, it would amount to cheating to sell the property to the defendant without disclosing the prior charge. See s. 415 of the Peniil Code. That section says: — " Whoever, by deceiving any parson, frauduleotly or dis- lionestly induces the person so deceived to deliver any pi-operty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do any thing which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, is said to ' cheat.' " JExplanation. — A dishonest concealment of facts is a deception within the meaning of this section." And then there is Illustration (/) which says: — " A sells and conveys an estate to B. A knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage-money from Z. A cheats." That will be the case if the bond or deed of charge was a valid one, and honafide executed for valuable consideration, and the subsequent sale was effected without disclosing the prior mortgage. But if the bond was fraudulent and antedated for the purpose of giving it priority over the deed of sale and thereby defrauding the defendant, it would amount to an offence under s. 464 of the Penal Code. That section says: — "A person is said to make a false document, who dishonest- ly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, or executed, or at a time at which he knows that it was not made, signed, sealed, or executed, &c.'' And then we have Illustration (h) which says : — "A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six mouths earlier than the date of the conveyance to Z, intending it to be believed that he had con- veyed his estate to B before he conveyed it to Z. A has committed forgery." But if the bond was not antedated, but was executed on the date when it bears date, or prior to the deed of sale, and fraudulently recited a loan which did not exist, the case would fall under s. 423 of the Penal Code. That section says : " Whoever dishonestly or fraudulently signs, executes, or becomes a party to any deed or instrument which 1866 Mahahaja Maheswar Bax Sing Bahadur V. Bhikha Chowdky. 408 FULL BENCH RULINGS. iggg purports to transfer or subject to any charge any property, or any interest Maharaja therein, and which contains any false statement relating to the consi- deration for such transfer or charge, or relating to the person or per- sons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The deeds will be impounded by the Judge until after the investigation now ordered. Maheswar Bax Sing Bahaduk ». Bhikha Chowdky. Batlet, J. — At the hearing I expressed my concurrence in the views expressed by the learned Chief Justice on the first and third points, viz., as to the construction of the Registration Law, Act XIX of 1843, and its application in this case, and as to the propriety of directing an enquiry by the criminal authorities in regard to the conduct of one of the parties, and the character of the deeds propounded in this case. I then also reserved my judgment on the second point, viz., as to the right of a bona fide purchaser for value, and duly registered, to hold his purchase unaiFected by an unregistered mortgage alleged to be of prior date, and of which no notice had in any way been given. Here the purchaser who is admitted to hold under a bona fide pur- chase for value, and to have done all he could by registration to give public notice of his purchase, and thus legally to protect himself and enable others to do likewise in their dealings with the properly, is met by an unregistered mortgagee who, by the production of a document of which no one had notice, is to oust the purchaser of title and possession. It was clearly necessary by law (Act XIX of 1843) that that mort- gage deed should have been registered if it were a question of priority between it and another deed of the same description, i.e., of mortgage. The same law enabled the mortgagee, by registeringh is mortgage deed to record its date and other particulars, so as to help to secure himself against allegaiions of antedating or other »!aZa_/?rfe« in the transaction. This same process was that which would, at the same time, have given others notice not to deal with the property as free from the lien of this alleged mortgnge, and this might have been a guide to all as to the real position and real value of the property. It is not the policy of the law generally, and it is not equity and good conscience, that parties should be left in ignorance and without means of knowledge of the real value and real position of property by absence of such notices as are practically, and are intended to be, the legal guides to them in these transactions with property; nor is it equitable that a bona fide purchaser for value should, having pur- FULL BENCH RULINGS. 409 chased williout notice or means of knowledge of an alleged mortgage, find his purchase so encumbered. In this case, too, the purchaser's possession under his sale was for some time unquestioned, i. e., till this mortgage deed was long after produced, and alleged to have been long before executed, though always unpublished and never heard of nor acted upon. If, under such circumstances, a bond fide purchaser for full value in possession is to lose title and possession by the production of a hitherto unheard of paper, capable of being easily falsely written, and, unfortunately, equally capable of being easily falsely altered by oral testimony in this country, an extremely wide door to most dangerous temptations to fraud, and too often to successful fraud, would be opened, seriously and extremely affecting existing and bona fide purchasers for value. On this ground I differ from the majority, and concur with Campbell, J., and I would, therefore, not rule that the bond, fide and duly registered purchaser for full value in possession, as in this case, may lose his title and possession by the production of this un- registered mortgage of alleged prior date, of which no notice has been given to any one in any way whatever. NoEMAN, J. — I agree entirely with the learned Chief Justice, and I only wish to add a very few words. To construe the Registration Act, XIX of 1843, as giving no protection to a registered deed of sale against prior unregistered mortgages, and no protection to a registered mortgage against a prior unregistered deed of sale, is to make the Act a dead letter. If this matter had come before the Court for the first time, and I had been considering Act XIX of 1843, or Regulation XXXVI of 1793, s. 6, els. 1 and 2, of which that Act is a re-enactment, I should have had some doubt in coming to the conclusion at which the Chief Justice has arrived. The Regulation recites that one of its objects is to prevent individuals being defrauded by buying, or receiving in gift, or lending money on mortgage, or taking on lease any such property that may have been so previously disposed of or pledged." That is the object of the Regulation, as stated in the Preamble. S. 6, cl. 1, says, " every deed of sale or gift of the description specified in cl. 2, s. 3" (that is to say, " deeds of sale or gifts of lands, houses, and other real property") " that may be executed on or after the 1st January 1796, and a memorial of which shall be duly registered according to this Regulation, shall, provided its authenticity be estab- lished to the satisfaction of the Court, invalidate any other deed of sale or gift for the same property, executed subsequent to the said date which may not have been registered, and whether such second or 1866 Maharaja Maheswab Bax Sing Bahadur V. Bhikha Chowdrt. 410 FULL BENCtI RULINGS. 1866 JIaharaja Mahrswar Bax Sing Bahadur V. Bhikha Chowdrt. other deed shall have been executed prior or subsequent to the registered deed." If I were reading that Regulation for the first time, I should be strongly disposed to hold that " deeds of sale or gift of lands, houses, and other real property" included every deed of sale, whether absolute or conditional, and every gift, whether as a free gift, or a pledge, or other- wise, in the widest sense as intended to include every transfer of a charge on land. Then comes the second clause, which says : — " Every deed of mortgage of the description specified in cl. 3, s. 3." (that is to say, "deeds of mortgage on land, houses and other real property, as well as certificates of the discharge of such encumbrances") "that may be executed on or after the 1st January 1796 and a memorial of which shall be duly registered according to this Regulation, and pro- vided its authenticity be established to the satisfaction of the Court, shall be satisfied in preference to any other mortgage on the same property executed subsequent to the said date, which may not have been registered, and whether such second or other mortgage shall have been executed prior or subsequent to the registered mortgage." Now I think that these words " satisfied in preference to any other mortgage on the same property, executed subsequent to the said date which may not have been registered" might have had a sufficient meaning given to them by treating the first clause as relating to titles to land, and the second to the application of money in paying oif charges on land. That construction would have given to the enactment a remedial operation as large and beneficial as the Legislature, in the preamble declared their intention to provide for. But I cannot say that that con- struction ought now to be given to the enactment : because, for the last sixteen or seventeen years, both in this Court and the Agra Court a different construction has been put upon it ; and if we were to overrule the cases, we should be imperilling the titles of a large number of persons who may have dealt with property in reliance upon the law as stated in those decisions. They are binding upon us, and if they are to be overruled at all it can only be by the Privy Council. The next point referred to us is whether, even independent of Act XIX of 1843, the defendant, as a hondi,fide purchaser for value without notice, and exercising due diligence, is liable to the plaintiff in respect of the plaintiff's lien over the land. Now I take the position of the two parties to be this. The plaintifi' is a prior purchaser, having equal rights and equal equities with the defendant, subject to what I shall presently say on that subject ; and the general rule is that he who is prior in time has the better right. But it is suggested that the plain- FULL BENCH RULINGS. 411 tiff has failed to do something which he was bouud to do. It is aald that he should have given notice of his charge. But, as the learned Chief Justice has said, to whom could he have given notice? There was a particular and specified mode of giving information, viz., by registering the mortgage. He failed to give information in that way, and the Legislature has distinctly and exactly pointed out what should be the consequences of that omission, and we cannot enlarge them. I do not mean to say that a case might not happen in which a mortgagee, who by his own act or default, whether fraudulently or not, has actually misled a subsequent purchaser, and induced him to believe that the estate was fi'ee from encumbrance at the time of his purchase, might be estopped from setting up his charge to the prejudice of the person so misled by him. But that does not appear to be the present case. Pundit, J. — On all three points I agree with the Chief Justice and Norman, J. Campbell, J. — It appears to rae that Act XIX of 1843 is entirely adopted and imported from Regulation XXXVI of 1793, and as that Regulation, XXXVI of 1793, has not been repealed to this moment, I think I am justified in considering that the two enactments may be read together, and that the preamble of Regulation XXXVI of 1793 may be considered as if it had been repeated as the Preamble of Act XIX of 1843. Moreover, as it seems to me, the Preambles of those days were not mere statements of objects, but parts of the Regulations them- selves. They do not in fact stand apart before we come to the body of the Regulations, but the preamble is numbered s. 1, and then we come to s. 2 and so on. That being so, great doubt arises in my mind on reading that part of the preamble which mentions one of the objects of the Regula- tion to be to prevent individuals being defrauded by buying or receiving in gift, or lending money on mortgage, or taking on lease any such property that may have been so previously disposed of or pledged." I think the object of the Legislature was to provide for just such a case as we have before us. If we had been deciding the case for the first time, then reading the preamble of Regulation XXXVI of 1793 as part of an unrepealed enactment, I should have felt disposed to give to the enactments as a whole the construction which the framers intended. But reading the provisions repeated in Act XIX of 1843 alone, I admit that they will bear, and, in fact, taken literally do bear, a different construction; and considering that several decisions may be said to have declared, and in some sort settled, the law according to 1866: Maharaja Maheswak Bax Sing Bahadur V. Bhikha Chowdbi. 412 FULL BENCH RULINGS. 1866 Maharaja Maheswak Bax Sing 13 AH AD UR V. Bhikha Chowdkt. that literal construclion, I am not prepared on this point to dissent ~ from the judgment of my learned colleagues, founded on the reasons so fully expressed by the learned Chief Justice and Norman, J. On the second point, regarding the position of an innocent purchaser without notice, I am compelled in some degree to dissent from that judgment. I would go a good deal further than the Chief Justice proposes to go in favor of an innocent purchaser. The principle which I would adopt is that which has I believe been adopted in a long series of decisions of this Court and of the late Sudder Court, and which, if it has not been laid down authoritatively as a principle of law, has, I think, not been contradicted in the decision of the Privy Council — Varden Seth Sam v. Luckpathy Roy Lallah (1) — which has been quoted to-day. The words I rely upon are these: — " Let it be conceded that a purchaser for value bona fide, and without notice of this charge, whether legal or equitable, would have had in these Courts an equity prior to that of the plaintiff." If so much be conceded, (and the Privy Council do not negative the doctrine), it appears to me that, subject to the limitations and reservations men- tioned in the judgments of the Privy Council, if the defendant can prove that he is a bond fide purchaser for full value, and that he has exercised due diligence and eare, and made an apparently complete title, he would be entitled to a verdict. In this Court the only law we have to administer on such subjects is the law of equity and good con- science. The principle which protects an innocent purchaser is certainly not unknown to the law of England. There, no doubt, the working of the principle is complicated and embarrassed by the distinction between legal and equitable titles. That distinction is not known to the law. It is hard to say in this case whether the holder of a mere paper lien has acquired the legal estate, or only an equitable lien on the property, which the Court of Equity may or may not enforce. Our Courts are (except in regard to certain special classes of cases) Courts of equity, and of equity only, and it seems to me that the case comes before us to be judged on equitable principles only. If that be so, the equities are, in my opinion, by no means equal. The man who has done nothing to protect himself is not superior or equal in equity to the man who has done every thing. The maxim Qui prior est in tempore potior est in jure strictly applied is, I think, rather a Common Law than an equitable maxim ; that is, in equity it may be, and constantly is, overridden by other rules. It is also said leges (1) 9 Moo, I. A., 303; S. C, Mars,, 461. FULL BENCH RULINGS. 413 vigilantihus non dormientibus subveniunt. Here we have (supposing that the plaintiff and defendant make out their respective cases) the case of one man, the plaintiff, who obtains a paper creating a lien on cer- tain property, which he neither acts on nor publishes. He leaves in the hands of the original owner both the possession of the property and all the ordinary evidences of title such as they are in this country, and keeps his lien as it were secret ; aud on the other side, we have the defendanf, a man who deals with the apparent owner in possession both of the property and of the title, whom I suppose to make all due enquiries, to turn every stone that he could reasonably be expected to turn in order to test the title, and to exercise proper caution in every way : such a man, so dealing, buys the property, acquires possession and an apparently complete title, and pays his money. Subsequently, the secret lien-holder pulls his paper out of his pocket, and says, " True you have bought in good faith and paid your money ; true you had no knowledge or means of knowledge of my lien ; but my paper is first in date ; by that paper I am entitled to take from you the value for which you have paid. I claim the assistance of the Court to turn you out and sell the property in satisfaction of my claim." In my view the party thus claiming the assistance of a Court of Equity lias an equity far inferior to that of him against whom he invokes the Court. He has taken none of the steps to secure himself, and prevent the alienation of the property in contravention of his claim, which a prudent and cautious man should take. It is true that, as the law has now been construed, he was not absolutely bound to register. But every facility for, and encouragement to, registra- tion was given to him by the law. Regulation XXXVI of 1793, s. 5, by expressly making it optional to register or not to register the deeds specified in three clauses of s. 3, seems to infer that the registration of the deeds mentioned in the other two clauses was not optional : and, in fact, every prudent man would register or publish a mortgage openly for the very sufficient reason that, if he did not do so, every subsequent mortgagee without notice would, under the express terms of the law, be satisfied before him. There are also several other modes in whicli a transaction creating a right in real property may be, as I think, published. In my opiuion, according to the law and practice of tlds country, any transfer of rights in real property should be accompanied with some sort of seisin, actual or formal and public. It is usual in case of landed property to proclaim either entry or pledge by public announcement on the estate and before the tenants : and the pledge of house property in security for public engagements is, I think, always notified in some 9 1866 Maharaja. Mahkswab Bax Sino Baiiaddr V. Bhikka Chowdbt. 414 PULL BENCH RULINGS. 1866 Maharaja Maheswar Bax Sing Bahadok V. Bhikha Chowdry. formal way. I think the man who omits all public formality and puWi- catioo, as well as registry, record of names, or deposit of title-deeds, fails in his duty, or at least takes the risk that the property may be subsequent ly made away with by the owner in possession. This case may not improbably go off on another point : but 1 think it right fully to express my opinion on account of the apprehension which I entertain of what I may call frightful consequences which may result, if it be established as law that not only a lien on real property need not have been register- ed, but that without either publication or possession or notice of any kind it will suflBce to defeat the most cautious purchaser. I should fear that, in this country, the result would be an entire insecurity of title : that it would be impossible for any man, by any amount of cnution, to buy real property with any confidence or any security that such lien-holders may not start up with documents (or possibly even asserting verbal engagements) proved as proof here goes, and which he cannot disprove, and may defeat or harass him. My remarks have special reference to the state of things prior to the new Registry law. But even that law only affects documents of date subsequent to its taking effect: and I apprehend that, for the next fifty years, no purchaser would be safe against secret lien-holders, or pretended lien-holders, of date prior to 1st January 1865. I think that the lower Court should be instructed that, if the defendant proves that he is a purchaser for value who has exercised due caution and diligence, who has made an apparently complete title, and who had no knowledge or means of knowledge of the plaintiff's lien, the plaintiff's suit should be dismissed. As regards the other points, and especially the order that the defend- ant Ram Prokash Sing should be sent to the Magistrate for enquiring into his conduct, I entirely concur in the judgment of the learned Cliief Justice. FULL BENCH RULINGS. 41^ Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, and Mr. Justice Pundit. SAEIFUNNISSA (one op the Defendants) v. SHEIKH IN A YET 1866 HOSSEIN (Plaintiff).* '^"^'■I- " Begutation XVII of 1806 — Mortgage — Promulgation of Statute — Onus. The plaintiff sued, on the 31st of December 1861, to redeem a mortgage of lands la Sarun, dated the 30th of November 1801. The mortgage money was payable on the 28th September 1806. If not paid, the property was to vest absolutely in the mortgagee without foreclosure. The defendant admitted that he had not foreclosed ; but stated that Regulation XVII of 1806 was promulgated in Sarun on the 7th January 1807, and, conse- quently, that the money became due before the Regulation was promulgated. Eeld, the Onus was on he plaintiff to prove that the Regulation was promulgated before 28th September 1806 (1). The suit was brought by the plaintiff to redeem a mortgage of lands in Sarun. The mortgage was dated on the 30th November 1801, and the mortgage money was payable on the 28th September 1806 : if not paid, the property was to vest absolutely in the mortgagee without foreclosure. The suit was commenced on 31st December 1861. The defendant admitted that he had not foreclosed, but stated that Eegu. lation XVII of 1806 was promulgated in Sarun on 7th January 1807, and consequently that the money became due before the Eegulation was promulgated. The Principal Sudder Ameen, on the 28th December 1863, found that the Regulation was promulgated on the 7th January 1807, and dismissed the plaintiff's suit. Afterwards, on review, he gave judg- ment for the plaintiff upon the ground that the Eegulation came into force on the llih September 1806. The defendant appealed to the High Court (2). The judgment of the Court was delivered by Peacock, C. J. — (His Lordship, after stating the proceedings in this case as above, continued.) The case is very clear. The Principal * Special Appeal, No. 1990 of 1865, from a decree of the Principal Sudder Ameeu of Sarun, dated the 28th April 1865, reversing a decree of the Sudder Ameen of that district, dated the 14th July 1863. (1) See Act I of 1872, ». 101. (2) There is no referring order among the records of this case. 416 FULL BENCH RULINGS. 18G6 Suduer Ameen, in his first decision, held that Eegulation XVII of 1806 Sarifuknissa was promulgated in Sarun on 7th January 1807, and he dismissed the Sni.iKH plaintiff's suit. That decision was correct, if the Eegulation was pvo- HossEiN. mulgated, as he stated, and had not been promulgated prior to the 28th September 1806. Unfortunately, in another case, — Sheik Bukshush Fuzeeloonissa (1) — which came before a Division Court, the attention of the Judges was not called to the following words in s. 1 of the Eegulation : — " The following rules have been enacted to be in force throughout the whole of the provinces subject to the immediate government of the Presidency at Fort William from the date of their promulgation ;" and they held that the Eegulation took effect from the date on which it was passed by the Governor-General in Council, viz., 11th September 1806. The decision was passed under a mistake, and cannot be upheld by the Full Bench. But the Principal Sudder Ameen, acting on that judgment, granted a review, and reversed his first decision. Now the Principal Sudder Ameen must have been either right or wrong in finding that the Eegulation was promulgated in Sarun on 7th, January 1807, acting upon the statement of the Judge of the Zilla in another case between other parties. If he was right, the Act was promulgated after 28th September 1806. If wrong there was no evidence that it was promulgated at an earlier date. The onus of showing that it was so promulgated rested on the plaintiff, and as he gave no evidence upon the subject, he was not entitled to a decree. There is a strong pre- sumption against the plaintiff arising from the fact of his not having brought the suit for nearly sixty years after the 28th September 1806. We think there are no grounds for remanding the case, as we are asked to do. The decision on review must be reversed, and we decree that the plaintiff's claim be dismissed, with all costs in the lower Courts and the costs of this appeal, with the usual interest. (1) W. K., January to July 1864, 189. FULL BENCH HULINGS. 417 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell. The queen v. LALCHAND KOWRAH, CHOWKEEDAR, and others* 1866 Feby. 7. Evidence, Uncorroborated— Perjury— Act II of 1855, s. 28— Pereai Code (Act XLV of I860;, s. 193. A person cannot be convicted in the mofussil of giving false evidence upon the uncorroborated evidence of a single witness (1). Campbell, J,, dissenting. This was an appeal from a conviction before the Sessions Judge of Hooghly. The prisoner Lai Chand was convicted and sentenced to three months' imprisonment, under s. 193 of the Penal Code, on a charge of giving false evidence in a stage of a judicial proceeding, by falsely asserting to the Joint Magistrate that he had not told the Inspector of Police that he had taken bamboos from Kartick Ghose, Rakhal Sahee, and others. The proceedings before the Joint Magistrate showed that a charge was pending before him against one Nissa Ahmed, the head constable of Kulsinee, to whom a sum of money had been entrusted for the purpose of building a hut, that he had obtained materials without paying for them. The prisoner stated before the Joint Magistrate : — " I received from the liead constable the price of all the bamboos I collected ; I did not tell the Inspector that I received bamboos from Kartick Ghose, Eughoo Sahee, and others named." The evidence of Inspector Cavanagh was as follows : — "I was investigating the conduct of the Kulsinee head constable regarding the accounts of the zemindary dak building at Nobogram. I remember that the prisoner told me that he had collected some bamboos for the purpose of that building. Lai Chand told me the names of certain persons from whom he had received some bamboos. I don't remember the names he mentioned, but I wrote them down, from his mouth at the time, in a memorandum." Producing memoranda A. and B., he said: — "These are the memoranda I wrote with my own hands." Refreshing his memory from them, he said : — " Lall Chand told me he received bamboos from Kartick Ghose, Rakhal Sahee, and others. I took the names down at the time in my memoranda as the prisoners mentioned the names. They, of their own accord, gave the names. * Committed by the Joint Magistrate, and tried by the Sessions Judge of Hooghly. (1) See Act I of 1872, s. 134. 418 FULL BENCH RULINGS. jggg I am quite certain that this is the prisoner who made the assertion. I am Queen quite certain that I made no mistake; and as each prisoner mentioned the ^ "■ names, I wrote them down." Pointinj; to another document he said :^-" This Lalchand .... KowKAH, is the original diary written by me from the memoranda, and is the report CHOWK.EEDAE. ^gferred to in my deposition before the Joint iVIagistrate." Tlie Judge, in summing up the case to the jury, said : — "You have to determine whether you believe the Inspector or the prisoners ; if the former, you must convict ; if the latter, if you think that the prisoner unintentionally made the false assertions, you must acquit. It is nothing to you whether the alleged false evidence was or was not on a point material to the issue of the case in which it was given, or whether it was on a trifling or an important point, or whether there is any valid reason for their making a false statement. You have to decide whether the prisoners Lave falsely stated in their depositions as witnesses in the case against the head constable as to the matter of the building of the zemindary dak-house, that they did not state as recited in the charge. There is only one witness for the prosecution, but under s. 28 of Act II of 1855 (1), the evidence of that one witness, if you believe it, is suiEcient for the conviction of the prisoner; for there is no law or practice of the Mofussil Sessions Courts which requires evidence corroborative of such single evidence in cases of false evidence." The jury convicted the prisoner of giving false evidence before the Joint Magistrate, and the Judge sentenced him to three months' rigorous imprisonment. On appeal to the High Court, the case was heard before Norman and Campbell, JJ. Norman, J., was of opinion that the conviction must be quashed on the "round that the evidence required corroboration, but Campbell, J., was of a contrary opinion. Therefore the following question was referred to a Full Bench : — "Whether a person can be convicted in the mofussil of perjury upon the evidence of a single witness uncorroborated." The opinions of the Full Bench were as follows : — Peacock, C.J. (after stating the question and reciting s. 28 of Act II of 1855.) — It is said that s. 28 does not extend to the mofussil Court ; and that it applies only to the High Court on its Original Side, (1) Act Ilof 1855,8.28. — "Except in cases sion shall not affect any rule or practice o£ of treasoD, the direct evidence of one witness, any Court that requires corroborative evi- who is entitled to full credit, shall be sufS- dence in support of the testimony of an cient for proof of any fact in any such Court accomplice or of a single witness in the case or before any such person. But this provi- of perjury." FULL BENCH RULINGS. 419 inasmuch as the Act was intenJed to apply only to Her Majesty's i8G6 Supreme Courts. That depends upon the construction which is to ba Queen put upon the words, in the general rule laid down in s. 28, " in any such lalchand Court," or "before any such person." Now, it so happens that s. 27, chowkeedab, which immediately precedes the section in question, says ; — " The rules of evidence in Her Majesty's Supreme Courts as to matters of Eeclci siastical or Admiralty, Civil Jurisdiction, shall be the same as they are on the Plea Side of the said Courts, and it is argued from that that, when s. 28 uses the words in such Courts," it means in any such Court as is lastly above-mentioned, viz., Her Majesty's Supreme Courts. But it appears to me that that construction is not cori'ect. S. 27 was not intended to alter the rules of evidence in every branch of the Supreme Courts, but only to make the rules of evidence in matters of Ecclesias- tical or Admiralty Civil Jurisdiction the same as those on the Plea Side of the said Courts. That was the sole object of s. 27, and it did not apply to matters of Criminal Jurisdiction. But s. 28 applies to cases of treason and perjury, and to all cases of every kind; and it appears to me that the words " before any such Courts" were intended to refer to all Courts of Justice in the territories then in the possession and under the government of the East India Company, as mentioned in s. 2 of the Act. The words "or before any such person" cannot refer to persons mentioned in s. 27, as no persons are mentioned therein. They in like manner refer to the persons mentioned in s. 2, viz. ; all persons having by law, or consent of parties, authority to take evidence. Ss. 3, 5, 7, 11, and other sections use the words "all such Courts and persons aforesaid," and ss. 6, 9, 12, and other sections use the words " all such Courts and persons aforesaid," referring to the Courts and persons mentioned in s. 2. The Act passed was for the improvement of the law of evidence, not only in the Supreme Courts, but in all the Courts of the country. Neither the title nor the preamble limit the Act to the Supreme Courts, If the words "such Courts," in s. 28, refer to the Supreme Courts, because tliose were the Courts last-mentioned, ss. 30, 41, and 45, which use the words "such Court or person," must, upon the same reiisoniiig, be construed to refer to the Supreme Courts. The Act recites that it is expedient, further, to improve the law of evidence, and then proceeds to enact " that, within the territories in the possession and under the government of the East India Company, all Courts of Justice and all persons having by law, or consent of parties, authority to take evidence, shall take judicial notice," &c. Further, the proviso in s. 28 shows that 420 FULL BENCH RULINGS. 1866 "any such Court" was not intended to refer simply to the Supreme QuKEN Courts ; it says :— "But this provision," that is, the provision tliat tlie Lalchand evidence of one witness, who is entitled to full credit, shall be sufficient Chowkeedak. ^°^' proof, and "shall not affect any rule or practice of any Court that requires corroborative evidence in support of the testimony of an accom- plice or of a single witness in the case of perjury." Now tlie words "of any Court" would not have been used in the proviso of the preceding part of the section had they been intended to apply only to the Supreme Courts ; whereas if my construction is correct tliat the words "such Courts" and "such person" refer to the Courts and persons mentioned in the second section of the Act, the words of " any Court," &c., are applicable and correct. According to tiie law ns administered in the exercise of Oiiginal Crimintil Jurisdiction, the evidence of only one witness, uncorroborated, is not sufficient to convict of perjury, because it is governed by the rules of the law of England. I do not mean to say tliat every rule of the law of evidence as administered in England applies to the mofussil, but I cannot think that we ought to put such a construction upon s. 28, Act II of 1855, as would allow a person to be convicted of perjury at Alipore, or in other parts of the mofussil, upon the uncorroborated testimony of a single witness, when such evidence would be insufficient for a conviction in Calcutta before the High Court in the exercise of its Original Criminal Jurisdiction. Such a construction would not be very consistent. But if the law is so, we are bound by it. If there was any rule or practice in the SudJer Court or in the Courts in the mofussil, which, before Act II of 1855, prevented a conviction for perjury upon the evidence of a single witness without any corroboration, it appears to me that such Courts fall within the proviso in s. 28. Now there is a case which was decided by Mr. Samuells in tlie Sudder Court, Government v. Goreeb Peadah {}), in which the rule was laid down as follows: — " Perjury is not to be assumed, because the story of one man appears to be more credible than that of another. There must be certain proof adduced, independent of the oath of one of the parties that the deposi- tion of the other is false;" that is to say, the oath of one man is not sufficient to convict another of perjury, when he has sworn to the con- trary; that yon are not to take the evidence which, by an accident, is the more credible for the purpose of convicting of perjury, but you must bring something corroborative or something more than the evidence of one witness. This rule, which was, laid down by the Sudder Couit in this case, is supported by other cases, and is in accord- FULL BENCH RULINGS. 421 nnce with the principle of the English law. Indeed, I think, I may iggg safely say, that it was the practice of the Sudder Nizamut and of the Qoees ' Mofussil Courts not to allow a conviction of perjury upon the uucor- lalohakd roborated evidence of a single witness. Consequenily, the case does „ Koweah, . ° -1 /' Chowkbbdab, not fall withm the general rule of s. 28, ihnsmuch as it is taken out of that rule by the provision which says, that the rule is not to affect any rule or practice of any Court that requires corroborative evidence of a single witness in a case of perjury. We do not sit here to make the law, nor to exercise the functions of Legislators, but to administer the law, as in our consciences we believe it to exist. It is unnecessary, therefore, to enquire, whether the rule of English law or the rule of practice of the Mofussil Courts are founded upon sound and correct principles or not. Batlet, J. — ^luthis case I would distinctly confine myself to the case OS one of perjury. The question then is whether, when A has deposed one -Way, and B has deposed exactly the contrary, and upon this B is accused of perjury, the statement of A on oatli, which is one statement against that of B, also on oath, will require some corroboration before B can be convicted of perjury. I think that the principle laid down in the deci- sion of Mr. Snmuells in the case of Government v. Goreeb Peadah (I), is that which should be followed. That case is very analogous to this. The principle I would follow here is enunciated in the following words ; — " The conviction, which is founded simply on the oath of the persons accused by the prisoner, cannot stand. If I were to affirm such a conviction, no person bringing a charge against a darogah, who hap- pened to enjoy the good opinion of the Judge and Magistrate of that district, would be safe. Perjury is not to be assumed, because the story of one man appears to be more credible than that of another. There must be certain proof adduced, independent of the oath of one of the parties, that the deposition of the other is fulsot" As I said before, the case before us is a case of perjury, and therefore I would not go beyond it, or enter info any other question of the construction or application of Act II of 1855, irrespective of this case of perjury. NoKMAN, J. (after stating the facts as above). — I may observe that the prisoner was called before the Joint Magistrate to prove that by the desire of the head constable he had taken bamboos, without paying for them, from Kartick Grhose and other villagers. He denied it. The question, whether he had not told the inspector that he had not done (1) 9 Niz. Ad, Kep,, 210, 10 422 FULL BENCH EULINGS, jggg so, was apparently put to him, in order to show that his statement ■ QuEKN before the Magistrate was at variance with the statement made by him - "• to the inspector, and, consequently, that his evidence in exculpation of KowitAH, (he head constable was not to be relied on, as opposed to that which it Chowkeedae. was expected that Kartick Ghose and the other villagers would give. It was clearly material as aflfecting his credit and the credibility of his statement on oath before the Magistrate. It is, therefore, not necessary forme to express any opinion as to whether a false statement made by a witness on a point wholly immaterial to the issue in a cause, is a giving of false evidence, and, as such, punishable under the 193rd section. The only other point is, that the prisoner was convicted of giving false evidence, the only proof that the testimony was false being that of a single witness. S. 28, Act II of 1855, enacts (reads). An accomplice can hardly be said to be a witness entitled to full credit. I am disposed to think that, by the law of evidence in this country, and the practice of the lute Sudder Court, the testijnony of an accomplice required confirmation (see Regulation X of 1824). I think that by the rule and practice of the late Sudder Court, some corroborative evidence was required to prove the fulsehood of the statement on which perjury is assigned : that a conviction for perjury was not allowed to stand where there was the mere uncorroborated oath of the prosecutor against the oath of the prisoner. See a case in Beaufort's Digest, paragraph 4508, in which, however, the rule was probably misapplied. See also Government v. Goreeb Peadah (\), Vakeel of Government v. Musumat Kukha (2), and Government V. Khooman {S). I am sure that the rule rested on sourd policy. After a very careful consideration, I am disposed to think that the evidence of two witnesses, or at least some corroborative evidence of the oath of a single witness, is still necessary to prove the falsehood of any statement charged to be false evidence. But I feel considerable dif&dence on the subject. My view is, however, apparently in accord- ance with the opinion of Mr. Norton in his work on Evidence, B. 622. The cases of the other prisoners, who were tried at the same time, are precisely similar. I would quash the conviction. I should regret the aoquitial of the prisoners on this ground the less because of the shape which the charge in the present instance has assumed. (1) 9 Niz. Ad. Rep., 210. (3) 2 Niz, Ad. Eep., ed. by Macnaghten, (2) 1 Niz. Ad. Rep., ed, by Macnaghten, 168. 314. FULL BENCH RULINGS. 423 The substautiivl offeuce of which the prisoners were apparently guilty, iggg was that of giviug false evideuce iu order to screen an offender. In Queisn order to punish them for that offence, of which ther,e was no sufficient lalchand proof, they are charged with having - spoken falsely, by denying that „ Koweah, they made a piuticular statement to the Police officer. The confessions of persons accused, made before Police constables are not admitted as evidence of guilt ; and it would certainly seem to be a dangerous practice that one who has made such a statement or confession before a single Police constable, should be compellable to repeat or admit that he made the confession before the Magistrate or Judge, on pain of being charged with perjury if he retracts and denies that he made the statement. If the statements of the prisoners made to the Inspector are true, they are probably liable to be charged as guilty of, or of abetting, offences under the 105th or the 409th section of the Penal Code, The ease having been referred to the Full Bench on the second point, as the majority of such Court agree with me, the convictions will be quashed. Pundit, J. — I believe that in the late Sudder Nizamut, the Judges almost invariably convicted prisoners tried for perjury, when the oath against the former oath of the prisoner was corroborated, and so I should hold in this case, that the testimony of one witness is not sufficiently legal to convict the prisoner. Campbell, J. — The question arising in this case is a point of law in a criminal appeal, from a conviction by jury for false evidence, first heai'd by Noiman, J., and myself. There was a difference of opinion, on account of which we thought it necessary to refer the case to u Full Bench. If I were charging a jury, or advising an inexperienced Judge, I should probably say that, in ninety-nine cases out of a hundred, a single witness would not suffice for a conviction in a case of this kind. As a matter of credibility, I have no doubt that it is so. But we are now called on to determine the matter simply as a dry point of law, and of law only. The prisoner has been convicted of false evidence in a trial by jury in the Sessions Court, upon the evidence of one witness, which the Jury and the Judge deemed worthy of entire credit; and my learned colleague and myself, who sat on the Division Bench, were agreed that, as a question of fact, we neither had the power to interfere, nor saw any reason for interfering, with that conviction ; that iu this respect the appeal could not be sustained. The only ques- 424 FULL BENCH RULINGS. 1866 tion is whether, that being so, we are, as a matter of technical law, Queen bound to quash the conviciion ; to say, we have no doubt of the truih Lalchand of the evidence for the prosecution, we have no doubt of the guilt of Chowkkedar. *^^ prisoner, we have no power to interfere with the finding of a jury on the facts, but still we are, in a case of perjury, bound by a technical rule to release the prisoners, because the evidence of one witness is, in law as distinguished from fact, insufficient for a conviction, and the jury cannot legally find a verdict upon it. I concur in the view of Act II of 1855, 3. 28, which has been taken by my learned col- leagues. The first sentence of that section lays down the general law of British India, viz., that one witness of unimpeachod credit is (if believed by the Court) sufficient for a conviction in a case of perjury, or in any other case. Tlie second sentence makes an exception in regard to Courts where a contrary rule or practice is ah'eady established. It is not, I think, necessary here to discuss whether, in English Courts, there is really on this subject a rule of legal efiect ; whether, in a case of perjury proved by a single witness, the question is one for the jury or for the Judge. I have no doubt that since the English law prevailed in the late Supreme Courts, and it was not in 1855 thought necessary to go beyond that law for the purpose of rendering the law of those Courts uniform with that of British India in general, the second sentence of s. 28 was intended to reserve the law of England in those Courts in regard to the point now before us, what- ever the Judges might construe that law to be. Up to the present moment, tlie Criminal Procedure is entirely diiferent within and without the limits of the original jurisdiction of the High Court ; and it seems to me that, in 1855, the Legislature recognised and contemplated a very wide difiference in the Criminal Law and Procedui-e within and with- out the Mahrutta Ditch. But the wording of the second sentence of s. 28, even if specially designed for the Supreme Courts, in terms extends to all Courts in which there had been pi-eviously established a rule or practice requiring corroborative evidence in support of the tes- timony of a single witness in the case of perjury. The question is, therefore, narrowed to this, viz., whetlier in the Courts of Bengal such a legal rule or practice had been established. I think, however, that when the Legislature had laid down a broad and liberal rule for British India, and allows only of exception in regard to certain Courts, then, before we establish the exception ia the Courts of Bengal, before we give effect to a highly technical rule at variance with the general law of British India, we must be satisfied that, in reality, such a rule was clearly, distinctly, and deflaitely established as matter of law FULL BENCH RULINGS. 425 Previous to the Penal Code, the criminal law of the Mofussil Courts iges was very vague and uncertain. It may be that, both in criminal and Z " civil matters, single Judges may occasionally huve somewhat loosely "• "1 Lalchand quoted what they supposed to be the rules of English law. But I caunot Kowrah, think that two or three isolated instances of such references, culled from a vast number of decisions extending over very many years, would suffice to establish a rule of law. In this instance, so far as I have seen, even such dicta are quite wanting. A great deal depends on the way in which the word " practice" is understood. I quite admit that it may be found that, in practice, in a very great many cases, a single witness, uncorroborated, was not deemed sufficient for a conviction for perjury. But that is, in ray view, a question of the credibility, not of the admis- sibility, of the evidence. The question is whether there is a practice elevated to the dignity of an absolute rule of law, viz., that though we may, to the fullest extent, believe the evidence, we cannot convict upon it, and must set aside the verdict of a jury. Such a rule of law must, it seems to me, have been clearly enunciated and consistently acted on before it can be binding upon us under the terms of the statute, I cannot see that it has been so. I do not find it clearly and broadly expressed in unambiguous terms in a single case which has come to my notice. Beaufort quotes one case in which the Judge refused to convict for perjury on the evidence of two witnesses, because it was oath against oath ; that can hardly be applicable. One or two other cases have been examined, and especially one is relied on, decided by Mr. Samuells — Government v. Goreeb Peadah (1) — in which it seems to me that the expressions used mean that, in the particular case, the judge did not think, and in similar cases would not think, tlie unsupported testimony of one or two witnesses interested in the matter sufficiently credible. In truth, on examining that case I find that there were two wit- nesses who directly swore to the perjury — "the darogali and a bur- kundaz named iWeheerooUah." Mr. Samuells also says :— "The only evidence against the prisoner is that of the darogah and the burkundaz whom he had accused, and the conviction, founded simply on the oath of the persons accused by the prisoner, cannot stand." It is evident that this case is not in point, nor have I seen any other more so. I cannot see that any rule of law on the subject was established in the Courts of Bengal, and, therefore, I would not give effect to such a technical rule in opposition to the general law of India. The appellants having been convicted by the j ury, I would dismiss the appeal. (1) 9 Niz. Ad. Kep., p, 210. 426 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt,, Chief Justice, Mr. Justice Bayley, Mr. Justice Seton-Karr, Mr. Justice Pundit, and Mr. Justice Macpherson. iggg In the matxee oe the Petition of KAMPRASAD HAZBA. Fehy. 12. Power of High Court — Stay of Criminal Proceedings — Perjury — Forgery — Criminal Procedure Code {Act XXV of 1861), s. 171. When a Ciyil Court directs that criminal proceedings be taken against a party to a suit before it for perjury or forgery, the High Court has no power, on an appeal being preferred against the decision of that Court, to direct that such proceedings be stayed until the appeal shall have been heard and determined. The petitioner had beea committed for trial by a Civil Court on a charge of perjury or forgery in a suit before it. A special appeal having been preferred against the decree in the suit, the petitioner moved the High Court to stay the criminal procaedings pending the result of the appeal. The case was submitted for the opinion of a Full Bench by Loch and Glover, JJ., under the following order : The vakeels for the petitioner have produced no order of this Court in a previous case staying the proceedings of the Court below in regard to the committal of a party till the result of the special appeal then pending was made known ; and as it appears questionable whether this Court has authority to interfere with the proceedings directing the commitment of a party for perjury or forgery, we think that the question should be submitted for decision of a Full Bench. Baboos Anukul Chandra Mookerjee and Ashutosh Dhur for the petitioner. Baboo Beni Madhab Banerjee contra. The following judgments were delivered :— Peacock, C. J. — I am of opinion that, if, in the course of hearing a suit, a Civil Court commits a party to the suit for trial on a charge of peijury or forgery, or directs that the case be made over to a Magis- trate for investigiition of such a charge, this Court cannot, in the event of a regular or special appeal being lodged against the decision of the lower Court, interfere to stay the crimiuul proceedings until the appeal shall have been heard and deteimiued. FULL BENCH RULINGS. 427 1866 As the question propounded is somewhat ambiguous, ntid it is doubtful whether the referring Judges in using the words " this Court " In the mat- intended the Division Bench of which they were tlie Judges or the petition of High Court generally, we have heard the question argued with re- Kamprasad ference to the power of the High Court generally, as well as with reference to the power of a Division Court in the exercise of either Civil or Criminal Jurisdiction. The order, if treated as an order in a civil case, is not appeal- able under Act VIII of 1859. Act VIII of 1859, s. 365, gives an appeal against orders as to fines, or as to imprisonment under the Act, and an appeal is also given by the Code of Criminal Procedure in similar cases by s. 413. But no appeal is given either by the Code of Criminal or Civil Procedure against orders which are left to the discretion of the Civil Court, either granting or withholding sanc- tion to a criminal prosecution under ss. 169 or 170, or against an order sending a case for investigation before a Magistrate under s. 171 of the Code of Criminal Procedure. S. 414 of that Code enacts that " unless otherwise provided by this Act, or by any other law for the time being in force, no appeal shall lie from any order or sentence of a Criminal Court." Tliere is no special provision made by the Code for cases of sanction under ss. 169 or 170, or of orders for investigation under s. 171. I am of opinion, therefore, that this Court cannot, either in the exercise of Civil or Criminal Jurisdiction, entertain an appeal against any such sanction or order. It cannot, as a Court of Eevision, reverse such sanction or order upon the ground that it was not warranted by the facts, for, as a Court of Revision, it cannot reverse an order except for error in law. In the present case, the application was not by way of appeal, but merely by way of motion to postpone the committal. If the Court, as a Court of Appeal or as a Court of Revision, cannot reverse or alter such an order, I cannot see any inherent authority which it has to stay proceedings. I remark that, in some of the cases cited, the question as to reversing such sanctions was brought before the Court by motion. I asked how the case came before the Court by motion. The answer was that the motion was in the nature of a petition of appeal. But I am clearly of opinion that, in cases in which no appeal lies to this Court, relief cannot be given indirectly by motion in the nature of an appeal. If the Full Court cannot exercise such a power, it follows that a Division Court cannot do so. The, question propounded by the Judges will, tHerefore, be answered in the negative. 428 FULL BENCH RULINGS. 1866 Batlet, J. — I am of the same opinion. Although I find that in In THE MAT- some cases the power has been exercised as an inheren t power, 1 can Petition op ^'^^j ^^^ ^^ shown, nothing in the law constituting the late Sudder ^''hazrI^" Court, or in the Code of Criminal Procedure, to show that the Court has such a power. Seton-Kakr, J. — I am inclined to the opinion that the Judges who referred the case to a Full Bench intended to refer the question with reference to the power of a Divisional Bench of tiie High Court on the Civil Side to grant such an order. I am glad, however, that the case has been argued with reference to the power of the Court both on the Civil and Criminal Sides. We have carefully looked over nil the cases, and heard all the arguments on both sides ; and I agree with the Chief Justice that we have not by any law the powei', either on the Civil or Criminal Side, to pass an order suspending the proceedings of the Magistrate till the civil appeal be decreed ; and that we have no in- herent power to supply any defect in the law by laying down new rules on the subject. Pundit, J. — I concur in the judgment delivered by the Chief Justice. Macpherson, J. — I agree entirely in what has fallen from the Chief Justice. I may add that, considering the Legislature has thought fit to empower Courts, in their discretion, to direct the criminal prosecuiion of persons, who commit certain offences in the course of proceedings before those Courts, it would, as it seems to me, almost amount to an absurdity if a prosecution, so ordered to be had, were to be suspended merely because an appeal is pending from the decree made in the suit, in the course of which the act or omission which is the subject of the prosecution was committed. FULL BENCH RULINGS. 429 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pandit, and Mr. Justice Campbell. In the matter or the Petition op MIRZA HIMMAT BAHADUR.* iggg Feby. 12, Appeal — Act VIII of 1859, «. 348 — Limitation. The first Court held that the plaintiff's suit was barred by the law of limitation, but the decision was reversed on appeal, and the case was remanded by the lower Appellate Court for trial on the merits. The first Court then gave a decree for the plaintiff, but on appeal the lower Appellate Court dismissed the suit on the merits. The plaintiff pre- ferred a special appeal to the High Court, Beld, it was competent to the defendant, on such appeal, under s. 348 of the Civil Procedure Code, to raise the objection that the suit was barred by the law of limitation. This suit was brought by a mortgagee for foreclosure. The defendant pleaded that the mortgagor had become a rebel, and that his property had been confiscated by Government, and purchased by the defendant from the Government, and that as the suit had been brought more than a year after the sale, it was bari-ed by s, 20, Act IX of 1859 (1). On the 18th February 1863, the Moonsiff dismissed the suit on this ground. On the 30th September 1863, the Principal Sudder Ameen, on appeal, held that the law of limitation did not apply, and remanded the case to the Moonsiff to try whether the mortgage was collusive or not. On the 18th January 1864, the Moonsiff decreed the suit for the plaintiff on the merits, holding the mortgage to be bond fide. The defendant appealed against that decision, and on the 15th July 1864, the Principal Sudder Ameen dismissed the suit upon the merits, refusing to try the issue of limitation, upon the ground that no special appeal had been preferred against his former order. A special appeal was preferred to the High Court against this last judgment by the plaintiff, and, by way of cross-appeal under s. 348 of the Civil Procedure Code, * Application for Review, No. 273 of 1865, of the judgment of Bayley and E. Jackson, JJ., dated the 25th AprU 1865, in Special Appeal, No. 3053 of 1864. (1) Act IX of 1859, ». 20.—" Nothing in vided that no suit brought by any party in this Act shall be held to affect the rights of respect of su9h property shall be entertained parties not charged with any offence for unless it be instituted within the period which, upon conviction, the property of the of one year from the date of the attach- off ender is forfeited, in respect of any pro- ment or seizure of the property to which the perty attached or seized as forfeited or suit relates." liable to be forfeited to Government ; pro- 11 4.80 FULL BENCH RULINGS. 18(56 the tlefenclnnt (respondem) contended tliat the suit was) barred by the Ij, the i''w of limitation. On the other hand, the plaintiff contended that the THE^Pi./riTioN '®^"® °^ limitation had been determined by the Principal Sudder Ameen "himmat^ before the remand, and that, as no appeal had been preferred against that Bahadur, decision, the defendant could not now object. The case was decided by Bayley and E. Jackson, JJ., by whom it was afterwards, ou review, referred to a Full Bench under the following order : — In this case, the petitioner urges that we have decided the case on the merits, without fully hearing the arguments of pleaders which were only partially opened when the Court intimated its desire to refer to the Full Bench the question whether the plea of limitation could be heard for the first time after a remand order on the merits had been carried out, when it had not been made the subject-matter of appeal at a previous stage. We find two conflicting decisions on the point, viz., Mussamut Beehun Koer V. Maharaja Bahadoor (1) in which the Judges held that the plea could and ought to be preferred when the Judge gave the adverse decision, and the case of Mussamut Wuzeerun Bebee v. Sheikh Waris Alii (2) in which the Judges held the contrary. Both parties agree that, without reference to the fact whether the plea of limitation prove a valid one or not, they wish for the reference to the Full Bench for a decision on the conflicting cases noticed. We refer it accordingly without prejudice to the right of the parties to be fully heard on the merits hereafter. Mr. C. Gregory for the petitioner. Mr. R. E. Twidale and Baboo Mohindra Lai Shome contra. The opinion of the Full Bench was delivered by Peacock, C. J. (who, after staling the facts as above, continued) S. 363 of Act VIII of 1859 enacts as follows :— "No appeal shall lie from any order passed in the course of a suit and relating thereto prior to the decree ; but if tlie decree be appealed against, any error, defect or irregularity in any such order affecting the merits of the case or the jurisdiction of the Court may be set forth as a ground of objection in the memorandum of appeal." The decision reversing ibe decree of the Moonsiff on the issue of limitaiiou was not a mere order prior to (1) Marsli., 66. (2) 1 W. R., 51. FULL BENCH RULINGS. 431 decree. It was itself a decree; as shown by s. 351 of the same Act. iges That section enacts: — " If the lower Court shall Lave disposed of the it, the case upon any preliminary point, so as to exclude any evidence of^"*p™°joj, fact which shall appear to the Appellate Court essential to the riarhts "^ Mikza ° HiMMAT of the parties, and the decree of the lower Court upon such prelimi- Bahadue. Eary point shall be reversed by the decree in appeal, the Appellate Court may, if it think right, remand the case, together with a copy of the decree in appeal, to the lower Court, with directions to restore the suit to its original number in the register, and proceed to investigate the merits of the case and pass a decree therein.'' It is clear that the decision reversing the first decree of the lower Court was a decree of the Principal Sudder Ameeu in appeal, and not a mere order prior to decree. It appears to us that the defendant might have appealed against the first decision of the Principal Sudder Ameen reversing the first decree of the Moonsiff on the issue of limitation. But he did not do so. The ease went down to trial on the merits under the remand. When the defendant appealed against the decision of the Moonsifi' on the merits, he could not ask the Principal Sudder Ameen to allow him to appeal to the Principal Sudder Ameen himself from the former decision of the Principal Sudder Ameen on the issue of limitation ; and when the suit was dismissed by the Principal Sudder Ameen upon the merits, there was no occasion for the defendant to appeal to the High Court against his decision. If the Principal Sudder Ameen had upheld the decision of the Moonsifif on the merits, the defendant might clearly have applied to the Court to enlarge the time for his appealing against the decision of the Principal Sudder Ameen upon the plea of limitation, aad if he had done so, the Court might have granted his application, if he had shown sufficient cause, and in all probability, the remand would have been deemed a sufficient cause. But when the plaintiff appealed to the High Court against the decision of the Principal Sudder Ameen on the merits, the respondent had the right under s. 348 of Act VIII of 1859, to rely upon aoy objection as if he had preferred a separate appeal. The words of s. 348 are: — "Upon the hearing of the appeal, the respondent may take any objection to the decision of the lower Court, which he might have taken if he had preferred a separate appeal from such decision." The word "decision" in this section must, in our opinion, mean a decision upon the whole case ; and we are of opinion that the defendant (respondent) had the right, upon the hearing before the Division Court, to object to the first decree in the suit which was against him on the issue of limitation. I had some little doubt whether, 432 FULL BENCH RULINGS. iggg upon the strict wording of ss. 332 and 333, which relate to regular jj, ^jjj, appeals, and of ss. 372 and 373, which relate to special appeals, the MATTER OP defendant could, without leave of the Court, have appealed against the THE Petition . . OP MiRZi first decision of the Principal Sudder Ameen upon the plea of limita- Bahaduk. lion, within ninety days after the last decision of the Principal Sudder Ameen upon the merits, and after the expiration of ninety days from the date of his decision upon the plea of limitation^ if the last decision of the Principal Sudder Ameen had affirmed the last decision of tbe Moonsiff, and had consequently been adverse to the defendant. But I agree with the rest of the Court, who entertain no doubt on the subject, that he might have done so even without satisfying the Court that there was sufficient cause for not having presented it within ninety days from the time of the first decision of the Principal Sudder Ameen. It appears to us that the judgment and decree, from which the ninety days are intended to be reckoned, are the final judgment and decree in the suit between the parties. The result is that, although the defendant might have appealed against the first decision of the Principal Sudder Ameen, on the question of limitation, within ninety days from that decision, he was also at liberty to appeal against it at any time within ninety days from the time of the final decree disposing of the whole case. The case will go back to the Division Court to be decided with reference to the opinion now expressed upon the point referred to us. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Bayley, Mr. Justice Seton-Karr, Mr. Justice Pundit, and Mr. Justice Macpherson. 1866 In the matter op the Petition op J. DACOSTA.* Feby. 13. 24 §• 25 Vict, c. 104, s. \5— Power of Hi^h Court— Act XXIII of 1961, ss.U,12 4- 35— Act VIII of 1S59, s. 3M— Execution of Decree— Sale— Appeal— Revision. Certain Bank Shares, the property of a. judgment-debtor, were sold in execution of decree. The Sudder Ameen afterwards reversed the sale on the ground of the inadequacy of the price. The Judge having refused to entertain an appeal, the purchaser applied to * Miscellaneous Appeal from an order of the Judge of Bhaugulpore, dated the 3l9t July 1865, affirming an order of the Sudder Ameen of that district, dated the 26ih June 1865. FULL BENCH RULINGS. 433 the High Court. BeU, the parties being precluded from appealing by s. 364 of Act VIII jggg of 1859, the High Court had no power to grant relief (1). Ik the matter op In execution of a decree held by one Cohen, the moveable property the Pbtitiok ofJ. Dacosta. of the judgment-debtor, M. M. Hall, was sold. Among the property were certain Simla Bank shares, which were purchased for Es. 625 by the petitioner, who paid the purchase-money and completed the sale. The judgment-debtor objected to the sale on certain grounds, and, among others, objected to the inadequacy of the price, stating that an oflfer to purchase these shares had been made by the Secretary of the Simla Bank for Ks. 2,187-8, and that they should not have been sold under such circumstances for Rs. 625. The Sudder Ameen, on this ground, reversed the sale. The petitioner appealed to the Judge, who rejected the petition of appeal on the ground that an appeal did not lie to him ; and the present appeal was then preferred to the High Court, upon the ground that the Sudder Ameen had acted wholly without jurisdiction. It appeared that a letter was received from the Secretary to the Simla Bank, making an offer of Rs. 2,187 for the Bank shares ; but at the time of sale, there was no one present to represent or to bid on behalf of the Bank, and the shares were knocked down to the highest bidder, who completed his purchase according to law. The case came before a Division Court (Loch and G-lover, JJ.) who referred it to a Full Bench with the following remarks : — As this was a sale of moveable property, the Sudder Ameen had no authority under s. 252 of the Civil Procedure Code to enquire into any objections raised to the sale by the j udgraent-debtor. If there. had been any irregularities in the sale proceedings, the remedy was an action for damages. Had there been fraud, such fraud might have constituted a cause of action to set aside the sale by separate suit, but did not, in our (i) See In the matter of the petition of Sossem, 5B. L. E., 316; In tlie matter of the Doorgachum Sirkar, 2 B. L. R., A. C, 165; petition of Hani Umasundari Debi, 5 B. L. Ajonnissa Bibi \. Smya Kant Acharj, 2 'B. K., App., 2^; Maharaja JDhiraj Mahtab L. E., A. C, 181; In the matter of the Chand Bahadur v. Sliagor Kundu, 5 B. L. petition of Maharajah Dhiraj Mahtab Chand B., App., 91; /» the matter of John Thomp- Bahadur, 2 3.11.18.., A. C, 217; Mir Habib son, 6 B. L, K., 180; Tarini Charan Sobhan v. Mahendra Nath Boy, 2 B. L. E,, MooJcerjee v. Raja Furna Chandra Boy, App., 32 ; Am,ra, Nashya v. Gagan Shvier, 6 B. L. K., 717 ; Earis Chandra Gupto v. Sri- 2 B. L. E.,App., 35; Narayani Sayi Debi v, mati Shashi Mala Chipti,.6 B. L. E., 721; Chandi Charan Chowdhry, 3 B. L. R., App., Kali Charan Gir Gossain v. Bangshi Mohun Gb; In the matter of the petition of Sanhar Das Baboo, 6 3. li.^., 727; In tlie matter Dobey, i B. L. E., A. C, 65; Hardayal of the petition of Srimati Nassir Jan, 1 3. h. Mandalx. Tirthanand Thahir, 4 B. L. E., B., 144; and In the matter of the petition oj App., 29 Asrafannissa Begum y.Syadlnaet Mothnranath ChucherbuUy, ^ H. L, E., 364* MATTER OF THE 434 FULL BENCH RULINGS. 1866 opinion, give the Sudder Ameen any jurisdiction to interfere summarily In THE wi til the sale. In refusing to receive the appeal, the Judge, we think, Petition acted legally, for there is no appeal provided for such cases by the law. <'^'^'^^'*^^^" Had he interfered, the case could have been brought under the pro- visions of s. 35 of Act XXIII of 1861, and this Court would then have been able to right the petitioner. As it is, we find that the Sudder Ameen has acted wholly without jurisdiction, and has done injury to a bond Jide purchaser; and that, under the law as it now stands, there is apparently no power in this Court to put matters right. This is not the first lime that cases of this kind have come before the Court in the Miscellaneous Department, and the course followed by the Court has been to point out in distinct terms the illegality of the order complained of, and to recommend the complainant to apply for a review of the judgment, filing with the petition a copy of the Court's opinion This, however, is but a lame expedient ; for the lower Court is not bound to act upon the opinion of the High Court, and it may happen that the Judge of the lower Court may, from sheer obstinacy, refuse to admit a review, and the com- plainant is then without a remedy. Mr. Paul for the petitioner. Mr. R. E. Twidale contra. The opinion of the Full Bench was delivered by Peacock, C.J. — It is clear that we cannot, under the general powers vested in the Court by the Letters Patent, interfere by way of motion, and do indirectly that which we cannot do directly by way of appeal. Nor can we interfere in this case as a Court of Revision, under s. 35 of Act XXIII of 1861, or as a Court of Appeal, under s. 12 of that Act. The Judge was right in holding that he had no power to interfere with the order of the Sudder Ameen setting aside the sale under the execution. By s. 364 of Act VIII of 1859, it was enacted that no appeal should lie from any order passed after decree and relating to the execution thereof, except as therein-before expressly provided. There was no express provision in the Act which would enable the Court to deal with a case like the present. Act XXIII of 1861 did not repeal s. 364, but, by s. 11, enacted that any questions, arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree, should be determined by order of the Court executing the decree, and not by separate suit, and FULL BENCH RULINGS. 435 that the order passed by the Court should be open to appeal. This is a iggg question not arising between the parties to the suit, but between the ETthk debtor and a third party, who claims as purchaser under an execution, thk'pktition It occurred to me at first that s. 12 of Act XXIII of 1861 provided of J. Dacosta. for this ease. But wlien I cousidei'sd the words "provided the appli- cation be preferred within ninety days from the date of the passing of this Act," it appeared clear that the intention of s. 12 was to provide only for cases in which orders had been made before the passing of the Act. That section says : — "An appeal from an order passed iu execution of a decree, which shall have been rejected as inadmissible under s. 364 of Act VIII of 1859, or which would have been inadmissible before the passing of this Act, may be admitted on an application in writing to the Court which rejected the appeal, or by which the appeal, had it been admissible before the passing of this Act, would liave been coguizable, provided the application be preferred within ninety days from the date of the passing of this Act." By s. 364 of Act VIII of 1859, it was expressly enacted that an appeal should not lie from an order relating to the execation of a decree. S. 11 of Act XXIII of 1861 applied only to future cases. The words are " shall be determined by order of tlie Court executing the decree ;" and " the order passed by the Court shall be open to nppeal." And s. 11 applied only to questions between the parties to the suit. It appears to us that s. 12 does not apply to any order made after the passing of Act XXIII of 1861, and that the words " which would have been inadmissible before the passing of this Act" may be admitted to apply to cases of orders made before the passing of Act XXIII of 1861. If the object of that section had been to give an appeal in cases of orders made subsequently, the words " provided the application be preferred within ninety days fr.om the date of the passing of this Act" would not have been used. We have carefully gone through the Charter, and there is nothing iu it which induces tlxe Court to think that it has any power to give relief to the parties. The Court cannot make any rules providing for cases like the present ; for if the parties are precluded from appealing by s. 364 of Act VIII of 1859, which has not been repealed, an order giving a right to apply by motion would be contrary to the provisions of the Act. We cannot consider in this place whether a remedy ought to be provided by the Legislature. Sitting judiciully, we cannot recommend the Governor-Seneral in Council to amend the law. 436 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson. jggg THE QUEEN v. GODAI EAOUT* (1). Feby. 15, ■ Ileview of Judgment in Criminal Cases — Criminal Procedure Code (Act XXV of 186i;, ss. 404, 405, 439— Beg. IX of 1793, s. 73— Beg. XIV of 1S70, ss. 3 §• 4— Act XVII of 1862. The High Court cannot review its judgment passed in a criminal case before it on appeal. The prisoner in this case was tried by a jury and convicted. He appealed to the High Court, and was heard, by Counsel, before Seton- Karr and Macpherson, JJ., who dismissed the appeal confirming the conviction and sentence. Mr. Cochrane, for the prisoner, applied for a review of judgment, on the ground that it was wrong in law. Upon this application the Court referred the following question to a Full Bench : " Whether the Court has any power to entertain an application to review its judgment passed in a criminal case before it on appeal." In referring the question the Court said : — Without entering at all into the merits of that judgment, it appears to us that the application ought to be rejected, on the simple ground that this Court, having given judgment in a criminal case regularly brought before it on appeal, has no power to review its judgment. Clause 38 of the Charter pro- vides, that " the proceedings in all other criminal cases shall be regulated by the Code of Criminal Procedure prescribed by an Act passed by the Governor-General in Council, and being Act No. XXV of 1861, or by such further or other laws in relation to criminal procedure as may have been or may be made by such authority as aforesaid." Now Act XXV of 1861 gives no power to review a judgment passed on appeal in a criminal case, nor does any other enactment now in force, so far as we are aware, give any such power. A review of judgment in civil cases is given by the express provisions of the Civil Procedure Code ; but in the absence of any such provision as regards criminal cases, in our opinion there is no review. * Committed by the Magistrate and tried by the Sessions Judge of 24-Pergunna3. (1) See In the matter of the Petition of the Government of Bengal, 9 B. L. R., 346 & 347. FULL BElJCIl RULINGS. 437 We find, however, that in the case of The Queen v. Pursoram iggg Doss(l) a review was admitted, apparently without question or argument, Queen by Kemp and Glover, JJ. As our opinion conflicts with that which qoo^/k^qut those learned Judges must have entertained, and as the point is one of importance, we refer the question for the decision of a Full Bench. Mr. Cochrane for the petitioner. The opinion of the Full Bench was delivered by Peacock, C.J. — The Court is clearly of opinion that a review of judgment will not lie from a sentence or judgment pronounced by the High Court, or by a Division Bench of the High Court, in a criminal case upon appeal. By cl. 38 of the Charter of the High Court, it is ordained {reads). Regulation IX of 1793, s. 73, has been relied upon in support of the argument in favour of a review of judgment. By that section it was enacted that the Nizamut Adawlut should exercise all the powers which were vested in it whilst it was stationed at Moorshedabad, and superintended by the late Naib Nazim, the Nawab Mahomed Reza Khan. It appears to the Court that the proceedings in criminal cases in the High Court are not regulated by the provisions of s. 73, Regulation IX of 1793, even if that section has not been virtually repealed by the Code of Criminal Procedure. When the Letters Patent declared that the proceedings in all criminal cases shall be regulated by Act XXV of 1861, it clearly could not have been intended to vest the High Court with the powers of the Nizamut Adawlut whilst it was stationed at Moorshedabad and superintended by the Nawab Nazim. It is not shown, and it is not likely, that the Nawab Nazim ever granted reviews of judgment. This is an answer to that portion of the argument of the learned Counsel which depends upon s, 73, Regulation IX of 1793. The next argument to be considered is that which depends upon Regulation XIV of 1810. In the course of his able argument, the learned Counsel, Mr. Cochrane, referred to ss. 3 and 4 of that Regulation. But it appears to us that those sections had a very different object from that of conferring a mere power to review a judgment upon the ground of error, as regards either the facts or the law. As we understand Regulation XIV of 1810, it merely allowed the Court to grant a remission or mitigation of punishment, whenever they should be of opinion that a prisoner, according to the falwa of the Maho- (1) 3 W. K,, Cr. Eul., 46. 12 438 FULL BENCH RULINGS. 1865 medan law officers, or according to the Regulations, was declared liabla Queen to a more severe punishment than the case warranted. S. 3 says : — " In GoDAi Raout, all criminal trials before the Court of Nizamut Adawlut (except for crimes against the State, in which eases the proceedings held upon the trials are required, by s. 5, Regulation IV, 1799, and s. 5, Regulation XX, 1803, to be submitted, with the sentence of the Court, for the orders of Government), if the fatwa of the law officers of the Nizamut Adawlut, or the sentence of an assembly of hill chiefs in Zillah Bhoglepore (held under the provisions of Regulation I, 1796), shall declare a pri- soner or prisoners liable to a more severe punishment, than on due consideration of the evidence, and all the circumstances of the case may appear to the Court of Nizamut Adawlut to be just ; or if a pri- soner or prisoners (not charged with a crime against the State), shall, in any case before the Court of Nizamut Adawlut under the provi- sions of the laws and regulations in force, be liable to a more severe punishment than may appear to the Court equitable, though not speci- fically declared by the fatwa of the law officers, or sentence of the hill chiefs in Zillah Bhoglepore ; it shall be competent to two or more Judges of the Court of Nizamut Adawlut to grant such remission, or mitigation of punishment, as may appear just and proper, according to the evidence and circumstances of the case, and to pass sentence accordingly ; provided that in all such cases the Court of Nizamut Adawlut shall record the grounds upon which a remission or mitiga- tion of punishment may be arijudged, under the discretion hereby vested in that Court, and shall communicate the same to the Court of Circuit (or Magistrate of Zillah Bhoglepore) before whom the trial may have been held, with directions to cause the same to be made known, in open Court, to the prisoner or prisoners concerned." That Regulation did not give the lower Courts the power of reviewing their own judgments, on the grounds therein mentioned. The power was conferred upon the Nizamut Adawlut alone. But if this Court has power to review a judgment under the Code of Criminal Procedure, the lower Court must have that power also. S. 4 of the Regulation did not carry the case further than s. 3. It declares that " the powers vested in the Nizamut Adawlut by the preceding section shall be con- sidered applicable to all cases in which that Court" (meaning the Nizamut Adawlut) "may revise a sentencj^ passed by a Court of Circuit, or Zillah or City Magistrate, or assistant to a Magistrate, in pursuance of s. 24, Regulation IX, 1807, or under any other provision in the Regulations. It is also declared applicable to any cases in which the FULL BENCH RULINGS. 439 Court ofNizamut Adawlutmnysee reason to revise a sentence passed by igee that Court, and to remit any part of the punisliment adj udged. But this qubkn discretion shall not be exercised without strong and sufficient grounds goda/raout. to be recorded at large upon the proceedings of the Court." Now the words "by that Court" have been very properly argued to mean the Nizamut Adawlut itself. But, then, the only power of that Court is that given by the 3rd section, viz., the power to grant a remission or mitigation of a sentence where the fatwa of the law officer, or the general laws and regulations in force, declared a prisoner liable to a more severe punishment than, upon a due consideration of the evidence, and all the circumstances of the case, might appear to the Court equitable or just. These sections have been altogether repealed by the repealing Act XVII of 1 862, and, therefore, no longer exist. But it has been argued by the learned Counsel that there has been one uninterrupted series of authorities, for fifty-two years, to show that the Nizamut Adawlut exercised the power of review under the general powers of the Court. No doubt, when this Eegulation existed, the Court had the power to revise sentences for the purpose of mitigating them. But a practice, even for fifty-two years under a particular law, does not show that a right existed independently of that law, or con- tinues to exist after it has been repealed. The sections above referred to did not confer a power upon the Criminal Courts of reviewing their own judgment, upon the ground of their having come to an erroneous conclusion upon the evidence given before the lower Courts, or of their having committed a mistake on a point of law. The Code of Criminal Procedure does not contain auy'section expressly authorizing a review of judgment in a criminal case after the judg- ment has been recorded. The Code of Criminal Procedure was passed after the Code of Civil Procedure. The latter contains a section ex- pressly authorizing a review of judgment, but the former contains no corresponding section. From this it may reasonably be inferred that the Legislature did not intend to confer in criminal cases a power simi- lar to that which they had given in civil cases. There were certainly one or two cases cited in which the Nizamut Adawlut did grant a review, not simply under the Eegulation of 1810, but generally upon the merits of the case. The cases, however, were not so numerous as to show that there was a uniform uninterrupted practice of granting reviews upon the general merits of the case. There are only three or four cases to which our attention has been called. One of the Circular Orders of the Nizamut Adawlut was referred 440 FULL BENCH RULINGS. jggg to by the learned Counsel. The one of 9th May 1861 has nlso been Queen brought to our notice. The learned Counsel contends that the ruling Goda/eaout ^'^ *^^* Circular Order is not correct, inasmuch as it was opposed to the principles of Regulation XIV of 1810. The Circular Orders are cer- tainly not authorities binding on the Court. But they are useful for the purpose of showing what was the opinion of the Court as to whether there had been an uninterrupted practice or series of authorities on a particular subject. In the Circular Order of 9th May, 1861, the Sudder Court (Messrs. Eaikes, Trevor, Loch, and Steer) declared that the power vested in the Court by s. 4, Eegulation XIV of 1810, was "a power of revision with a view of a remission of part of the punishment, and did not extend to the gi-anting a review of judgment or rehearing a whole case, which might eventually end in a sentence opposed to that originally passed." The Circular Order goes on to say that " it is ques- tionable whether the power exists under Eegulation law ; and should a case come to the notice of the Court in which the sentence originally passed appears erroneous, and the prisoner entitled to acquittal, the proper course, it seems to the Court, would be to report the case to Government, in order that a pardon might be granted to the prisoner." It appears, therefore, that, as late as May 1861, there was a Circular Order of the Sudder Court, stating that the power vested in the Court by virtue of Regulation XIV of 1810 did not allow a review of judgment generally upon the merits, but merely for the purpose of remitting a portion of the punishment when it was considered too severe. Surely that is not fas it was contended in the argument,) contrary to Regu- lation XIV of 1810. It is clearly in accordance with the words of ss. 3 and 4 of that Regulation. But a further question remains to be considered, viz., whether even supposing the Sudder Court did, before the passing of Act XXV of 1861, allow a review, was the same power of granting reviews in criminal cases continued to the High Court by the Charter, of which cl.- 38, which has already been read, directs that its proceedings in criminal cases shall be regulated by the last mentioned Act, XXV of 1861 ? Whether those cases were correct or not, is not material ; even sup- posiog that they were correct, and that the Sudder Court had the power to grant reviews for the purpose of reconsidering their judgments pronounced in appeal, it appears to us that power no longer exists, for the High Court was required by cl. 38 of its Charter to regulate its proceedings in criminal cases by Act XXV of 1861. FULL BENCH RULINGS. 441 Now the next question is, does Act XXV of 1861 contain any iggg express or implied power to this Court to review its judgment in Queen ' criminal cases ? We have ah'eady pointed out that, notwithstanding godai''raout there is an express clause in the Code of Civil Procedure providing for cases in which reviews of judgment may be allowed, the Code of Criminal Procedure is wholly silent upon the point ; and, therefore, if the power is given by the Act, it is simply by inference from certain sections, and those are the sections to which the learned Counsel has alluded. First, he has referred to s. 404. That section contains the following enactment: "The Sudder Court may, on the report of a Court of Session, or of a Magistrate, or whenever it thinks fit, call for the record of any criminal trial, or the record of any judicial proceeding of a Criminal Court, other than a criminal trial, in any Court within its jurisdiction, in which it shall appear to it that there has been error in the decision on a point of law, or that a point of law should be con- sidered by the Sudder Court, and may determine any point of law arising out of the case, and thereupon pass such order as to the Sudder Court shall seem right." That is, that in those cases where an .-ippeal is not expressly given by law, the Sudder Court may, of its own authority, or on the report of a Court of Session or of a Magistrate, call for the record of any criminal case for the purpose of setting the judgment right upon any point of law. But that does not apply to setting a judgment right upon questions of fact ; whereas, if the learned Counsel is right in his contention, the Court has the power of altering, ■upon review, not only a judgment of a subordinate Court, but also its own judgments, upon a matter of fact as well as upon a matter of law. S. 405 was also referred to. It says, " it shall be lawful for the Sudder Court to call for and examine the record of any ease tried by any Court of Session for the purpose of satisfying itself as to the legality or propriety of any sentence or order passed, and as to the regularity of the proceedings of such Court. If it appear to the Sudder Court that the sentence passed is too severe, the Sudder Court may pass any mitigated sentence warranted by law. If the Sudder Court shall be of opinion that the sentence or order is contrary to law, the Sudder Court shall reverse the sentence or order and pass such judgment, sentence, or order as to the Court shall seem right, or, if it deem necessary, may order a new trial." The Court has two jurisdictions : firstly, as a Court of Revision to set right matters of law, even though there may be no appeal ; and, secondly, as a Court of Appeal, where an appeal is properly preferred before it. S. 405 applies to the Court as a Court of Revision. There is another 442 FULL BENCH RULINGS. 1866 sectiou (439) which deals with cases whether brought before the Court Queen as a Court of Revision, or brought before the Court as a Court of Appeal. GoDAi Kaout. That section enacts : — " No trial held in any Criminal Court shall be set aside, and no judgment passed by any Criminal Court shall be reversed, either on appeal, or otherwise, for any irregularity in the pro- ceedings of the trial, unless such irregularity have occasioned a failure of justice." It is contended that the words "or otherwise" show that it is intended that the Court should have the power of reviewing its own judg- ment. But the section is not an affirmative one, giving jurisdiction, but a negative one, directing that a judgment shall not be set right, unless the grounds are such as show that a failure of justice has been occasioned. It appears to us, therefore, that none of the sections which have been cited show impliedly that it was the intention of the Legislature to give to the High Court a power of reviewing its own judgments after they have been duly recorded. We do not mean to say that, if, before a judgment has been recorded, the attention of the Court be called to any matter, showing that there is an error or mistake in the judgment pro- nounced, the Court has not the power of correcting such error or mis- take ; nor do we mean to say that the Court has not power to correct clerical errors in its judgments after they are recorded. But we are speaking of cases where the judgment has been recorded, and the Court is called upon to grant a review of its judgment, for the purpose of showing that it ought to have come to a different conclusion, either upon the facts or upon the law. The learned Counsel has pointed out that the consequences would be monstrous if this power of review were not given. But the same argument would apply to trials in the Courts of England. Suppose a jury should find a party guilty, there would be no appeal or writ of error, nor could the prisoner tender a bill of excep- tions. The only mode of remedying the evil would be by appealing to the mercy of the Crown. So in the present case, if it should be discovered that the Court has come to a wrong conclusion, either upon a matter of fact or upon a matter of law, the case may be brought to the notice of the Executive Government, either for the purpose of mitigating the sentence, or of pardoning the offender, as the case may require. There would be no end to cases of this kind, if, after the Court has duly recorded its judgment, the matter is to be reopened on the .ground that the Court has come to an erroneous conclusion. In civil cases, if au erroneous judgment could not be set right upon a review, there would be no one to appeal to for relief except the opposite party ; but in criminal cases the Executive Government can always grant relief where FULL BENCH RULINGS. 443 an error has been committed. It appears to us that it wag the intention iggg of the Legislature that the Court should not exercise the power of r,, „„„ ' reviewing its own judgments in oriminiil cases. In civil cases, where "• , .,,,.. GODAI Kaout. such a power was intended to be given, it was conferred by express words in the Code of Civil Procedure. We understand that, since the High Court has been in existence, there has been one case of a review by a Division Bench ; but that case was never argued, and one of the Judges who granted the review (Kemp, J.) when he declared that he did not wish to prevent the case from being reheard, expressly stated that he had doubts as to the power of granting a review. That, therefore, is no precedent : even if it were, it does not pre- clude the Court from considering the question in Full Bench. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Norman, Mr. Justice Campbell, Mr. Justice E. Jackson, and Mr. Justice Glover. THE QUEEN v. GORACHAND . GOPE and OTnEKS*(l). Code of Criminal Procedure {Act XXVof 1861), ss. 403, i04, 405, 407 §• iW—Pevi- ' sion by High Court — Enhancement of Punishment — Murder — Culpable Homicide. Under s. 404 of the Criminal Procedure Code (2) the High Court may set aside a judgment of acquittal for error in law. The High Court, as a Court of Revision, has power to enhance a punishment. The High Court may send the case hack to the Court of Session with an order to pass the proper sentence. The High Court may act as a Court of Revision after it has acted as a Court of Appeal in order to correcLan error which cannot he set right by appeal. Culpable homicide and murder distinguished. The prisoners were convicted by the Sessions Judge of Mymensingh of abetment of the culpable homicide of Amordi, not amounting to * Committed by the Magistrate and tried by the Sessions Judge of Mymensingh. (1) See QiMera v. Chundrahant Chucher- "If it considers that an accused person buttt/ylB. L. E., A. Cr., 9, and Queen y. has been improperly discharged, it may Gorachund Ghose, 3 B. L. E., F. B., 1. order him to be tried, or to be committed (2) Act X of 1872, s. 297.— "If, in any for trial ; case, either called for by itself or reported " If it considers that the charge has been for orders, or which comes to its knowledge, inconveniently framed, and that the facta it appears to the High Court that there has of the case show that the prisoner ought been a material error in any judicial pro- to have been convicted of an offence other eeeding of any Court subordinate to it, it than that of which he was convicted, it shall pass such judgment, sentence or order shall pass sentence for the offence of which thereoH as it thinks fit. he ought to have been convicted : 1866 March 3. 444 ^ULL BENCH RULINGS. .g murder, and were sentenced to seven years' rigorous imprisonment — -r— in transportation. Tliey appealed from tliat sentence to tlie High "■ Court. Ttie appeal was heard before Campbell, E. Jackson, and GORACHAND '^ GoPE. Glover, JJ., by whom it was afterwards referred to a Full Bench. The evidence proved that the prisoners went with a large body of men, in the middle of the night, to the house of one of the witnesses, Fagu ; that they seized Fagu, his brother Foggo, his stepson Kalu, and Amordi, who, with his family, was living in Fagu's compound, and carried them all away to a village called Bungatal, two or three miles distant ; that as they left Fagu's compound, all the houses in it were set on fire and burnt ; that iu Bungatal they took the above four persons to the house of one Boidonath, and tied their hands behind their backs, and severely beat them, so as to break the arms of Fagu, and to make Amordi senseless ; that they then took these four persons to the house of Faridha, Chowkidar of Bungatal, and charged them with theft ; that they carried Amordi on a bamboo with his hands and feet tied together, the result being that he was found, on reaching Fari- dha's house, to be dead ; and that they satisfied themselves that he was dead, by jumping on the bamboo which was lying across Amordi's body, and finding that he did not cry out. The Civil Surgeon deposed that Amordi had two of his ribs broken and his spleen ruptured, the latter injury being the cause of his death. The Judge of Mymensing acquitted several persons charged before him with having been con- cerned in the outrage, but convicted the prisoners. Jackson, J. (after stating the facts as above, continued). — I see no reason to doubt the truth of the evidence against these men. The cause of the attack was, in the Judge's opinion, some suspicion that the prisoners entertained that Fagu and his relatives had been guilty of some theft, but there is nothing to show where or when any theft took place. " Provided that if the error in the charge " If it considers that the sentence passed appears materially to have misled and pre- on the accused person is one which cannot judiced the accused person in his defence, legally be passed for the ofEeace of which the High Court shall annul the conviction the accused person has been convicted, or and remand the case to the Court below might have been legally convicted upon the with an amended charge, and the Court facts of the case, it shall annul such sentence below shall thereupon proceed as if it had and pass a sentence in accordance with law. itself amended such charge. "If it considers that the sentence passed is "If the High Court considers that any too severe, it may pass any lesser sentence person convicted by a Magistrate has com- warranted by law ; if it considers that the mitted an offence not triable by such Magis- sentence is inadequate, it may pass a proper trate, it may annul the trial and order a sentence." new trial before a competent Court. »*»«»** FULL BENCH RULINGS. 445 It appears to me far more probable that the cause was, as the witnesses igse dejiose, emnity between the prisoner Goracbnnd and the witness Fagu, Queen in consequence of tlie latter having been successful in obtaining tlie (JobJckasd farm of his villnge against Gorachand, who had also applied for it, Gofe. But whether there was any suspicion of theft or not, the attack made by these prisoners, the burning of the witnesses' houses, their seizure and severe beating, and the forcible carrying them off for several miles, as well as the manner in which Amordi was carried, resulting in his death, are all clearly proved ; and I would, therefore, dismiss the pri- soners' appeal. But there still remains for consideration the question whether' this Court ought, looking to tlie judgment of the Sessions Judge of Mymeu- singh, and the gross nature of the outrage which has been committed, for which the punishment inflicted appears to me most inadequate, to exercise the powers vested in it under ss. 403 and 405 of the Procedure Code. Tlie prisoners were charged before the Sessions Judge with murder and culpable homicide, but the Judge acquitted them of those offences, and convicted them of a charge which he directed to be added to the calendar, viz., — abetment of culpable homicide. He acquitted them of tlie charge of murder, because, as he stated, " there is not the smallest " reason to suppose that the prisoners wiih malice prepense killed " Amordi." He acquitted them on the charge of " culpable homi- cide, "because none of the witnesses can state which of the pri- soners actually struck Amordi and caused his death," but convicted them of abetment of culpable homicide, " because it is proved that some of the prisoners beat Amordi and caused his death, and that the prisoners who beat Amordi caused his death by culpable homi- cide, as he was, doubtless, beaten with the intention of causing such bodily injury as was liisely to cause death; and that the prisoneis were actually present assisting in taking away Amordi, and assist- ing by their presence in the beating of him ; but it is not clear at whose insiigation the crime was committed." The Judge is wrong in law on each separate point. It is not necessary, under the Penal Code, to prove malice prepense to constitute the crime of culpable homicide amounting to murder. The words "malice prepense" do not appear in the Penal Code, and the Judge should, as fur as possible, confine himself oa his trials to the language of the Code. S. 299 of the Penal Code lays down that whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide. S. 300 lays down that culpable homicide is murder, if 13 446 - FULL BENCH RULINGS. iggg the act by which the death is caused is done with the intention of causing QuREN such bodily injury as the offender knows to be likely to cause the death GoRACHAND '^^ ^^^ person to whom the harm is caused, except in certain special GoPE. cases. The Sessions Judge finds the offence which has been committed exactly in the above terms of the law which constitute the offence of murdei", and still records that the offence committed was only that of culpable homicide not amounting to murder. Here, then, it appears to me that there has been an error in the decision on a point of law, and that, in the express words of the Sessions Judge's judgment, the pri- soners should have been convicted of abetting murder, and not culpable homicide. But the Judge is equally wrong in finding the prisoners guilty of abetment. S. 114 of the Penal Code lays down that " wheneyer a person who, if absent, would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such an act or offence." The Sessions Judge distinctly finds that the prisoners were present wlien the offence was committed, and still convicts them of abetment. The Court has authority, under ss. 403 and 405 of the Proce- dure Code, to consider these points of law, and, where it finds that there has been error in the decision of the Sessions Judge on a point of law, to determine that point of law, and to pass such order as to the Court shall seem right. I would then annul the conviction of the Ses- sions Judge on the charge of abetment of culpable homicide, and con- vict the prisoners of the offence of murder ; and as it is not clear Tvhich of the offenders took the leading part in the crime, and caused the actual death, I would sentence them all to transportation for life. Gloteb, J. — That the Sessions Judge was altogether wrong in law, there can be no doubt ; he has convicted and sentenced the prisoners for abetment of culpable homicide not amounting to murder, whilst his finding, expressed in his own words, shows, as clearly as words can do, that the crime they had committed, and which he himself considered proved, was not culpable homicide not amounting to murder but murder itself. His reasons contradict his judgment. He is equally wrong in convicting of abetment. He finds that the prisoners were all enga<^ed in the assault, and they were, therefore, equally principals. But the question is, whether this Court has power to amend the Sessions Judge's conviction and sentence, and to substitute one that is legal and proper, propria motu. The words of ss. 403 and 405 of the Criminal Procedure Code are, doubtless, very wide, aud under them I have no FULL BENCH RULINGS. 447 doubt that we have power to amend the lower Court's finding, as being jgee altogetlier opposed to tlie evidence and to the Judge's own reasoning, Queen and, therefore, illegal ; but we are only, as it seems to me, empowered goraohand " to pass such order as may seem right " on the point of luw, and I do Gope. not see how we could go the length of amending the conviction in the present case, because we could not do it without, at tlie same time, enhancing the punishment from seven years' imprisonment to trans- portation for life, wliich would be contrary to the spirit of s. 419. The proper order, I conceive, would be to annul the Sessions Judge's conviction and sentence as illegal, and direct him to pass a legal order on the evidence aud to sentence the prisoners accordingly. For this Court to pass such an order would, I think, be contrary to regulations, and contrary to the opinion I have ah'endy expressed in a somewliat similar case — Queen v. Jaji Mahomed (1). Campbell, J. (after stating the facts). — The Court has not seen sufficient reason to interfere with the finding of ihe facts ; the appeal of the prisoners is rejected. The only question is as regards the legality of the finding and sentence, which we consider as a Court of Revision. The judgment of the Sessions Judge is full of illegality ; and it also appears that the lenient sentence is not only the result of an exer- cise of a disci'etion allowed by law to the Sessions Judge, but the direct result of a misapprehension of the law. The Sessions Judge has awarded the maximum sentence allowed by law for the offence of which (under his misview of the law) he has convicted the prisoners under 8. 1 15 of tlie Penal Code, vis,, " abetting of the commission of an offence punishable wiih transportation for life, if that offence be not committed in consequence of the abeiment,'' or, as he puts it, "the said offt^nce having been committed bot in consequence of that abetment." The "not" might be supposed to be a clerical error, but it seems to be intentional, for the section quoted refers exclusively to the case wheu the offence is not committed ; and in another place the Sessions Judge says : — "As it is not clear at whose instigation the said crime was com- mitted." What he means by saying that the offence was not committed in consequence of the abetment, after his circumstantial statement, that the convicted parties were actively participating in it, or how he con- victs of abetment, when the " instigation " is not proved, no one can guess : but setting aside other illegalities and absurdities, one illegality is quite patent in the judgment, which is directly at variance wiih s. 114. That section most clearly provides that a person who, if (1) 1 W. K,, Cr. Kul., 49. 448 FULL BENCH RULINGS. 1866 absent, would be liable to be punished as an abettor, if present when QuKEN the ofFence is committed, shall be deemed to have committed such GoRACHAND offencB, that is, he is not nn abettor, but a principal. The Sessions Judge GopE. gjj(3g i^ go many words that the prisoners were present, therefore the conviction for abetment is illegiil. The qiiesiion then is what can we do ? S. 419 of the Criminal Procedure Code, occurring in Chapter XXX — "Appeals," — and relating to the "Appellate Court,'' does not aifect Chapter XXIX, regarding revisions; it is merely intended to limit the power of an Appellate Court, upon the appeal of tlie party, by the provision that the order passed in appeal shall be " not so as to enhance any punishment that shall have been awarded." Tims, then, the appeal of the prisoner is simply dismissed. But the mere fact of an appeal having been preferred does not tiike away the power of the Court to act as a Court of Revision, and as a Court of Revision, when a sen- tence is clearly illegal, we can, under ss. 403, 404, and 405, revise tlie sentence, and pass a legal sentence, whether the legal sentence be more severe ov less severe than the sentence illegally passed by the District Judge. For instance, if the Court below hud in so many words con- victed the prisoners of murder, and the Sessions Judge had thereupon sentenced them to seven years' imprisonment, then I think that the said eentence being wholly illegal, this Court might have reversed the sen- tence, and passed one of the sentences warranted by law, viz., death, or transportation for life. Whether in the case of the Court below speci- fically finding that the prisoner had committed certain acts in the exact words used by the Penal Code to define one offence, and then choosing to call that act another offence, we could sentence for the right offence, might be more doubtful ; probably however, we might. But in the present instance we cannot follow this course for several reasons. First. — The Sessions Court is not composed of the Judge alone, but of the Judge and Assessors. The prisoner is entitled to the opinion of the assessors, and to the influence of that opinion. In this case, the illegality is confined to the judgment of the Judge. There is nothing to show whether the assessors were or were not misled by the same error of law, or whether they took another view of the facts. Their opinion, after a legal and proper charge, is necessary. Second. — It is not exactly the case that the Judge has found the facts necessary to make up the definition of murder. In regard to the difference between culpable homicide and murder, the Code itself is somewhat obscure. There seems to be some repetition and tautology in ss. 299 and 300. FULL BENCH RULINGS. 449 We may put ilie exceptions out of the questioa foi' the present. Sup- jgee posing that the culpable homicide comes within none of the exceptions, is qdben it then necessarily murder ? It appears not. By s. 299, whoever causes qorachand death by doing an act with the intention of causing death commits culpable ^°^'^" homicide. By s. 300 " culpable homicide is murder, if the act is done with the intention of causing death." So far the definition seems simply to repeat the same proTision regarding intention a second time. Then, in the second case, it is culpable homicide, if the act is done " with the intention of causing such bodily injury as is likely to cause death ;" but in (he second case of murder, in adding nearly the same proviso to culpable homicide, there is a slight variation in the words, the culpable homicide must be done, " with the intention of causing such bodily injury as the oifender knows to be likely to cause death ;" the words " offender knows " are added. It would seem that if a man scalps another, knowing that he will thereby probably or very likely cause death, he is guilty of murder ; but if he is a savage, who intends to scalp, but has no distinct knowledge that death will probably ensue, and death does ensue as a likely consequence, he is guilty of culpable homicide not amounting to murder. In the latter case, also if the injuries inflicted are so severe as not only to be likely to cause death, but almost of necessity to cause death in the ordinary course of nature, then again the case comes within the third class of murder, even with- out the knowledge. The difference seems to be when, in addition to want of knowledge of the probable ulterior results, the injuries intended to be inflicted are such as are likely to cause death, but not such as in the ordinary course of nature must necessarily cause death. Thus the difference i?, in fact, not very broad, that is in the absence of (he exceptions. Still it must be supposed that the law intended to make some difierence, and ihe words used by the Judge, "he was doubtless beaten with the intention of causing such bodily injury as was likely to cause death" by omitting the words "the offender knew to be," tally more exactly with the definition of culpable homicide than with that of murder. If the facts of this case be so, and the prisoners did not know that death would be the probable or likely result, they would liave the benefit of that difference or doubt, subject to the additional question, — were the injuries intended to be inflicted such that, in the ordinary course of nature, they must almost necessarily have caused death to a man in ordinary health ? Third. — The finding of the facts by the Judge being so contradictory and unintelligible, it would be most unsafe to assume that he has found anything distinctly. 450 FULL BENCH RULINGS, 1866 Tlie judgment and senteuce, being contrftry to law, must be reversed. QcKEN The Judge liaving left, we cannot order him to cliaige the assessors GoRACHAND ogii", Tecord a legal judgment, and pass a legal sentence ; and, therefore, ^°^''- annulling the proceedings, we must order a new trial. The Judge will, OQ the trial, consider, Isf.— Did the prisoners, either by their own hands or by such conduct, when present, as would have amounted to abetment if absent, intentionally inflict or cuuse to be inflicted such bodily injuiy as was likely to cause death ? 2nd. — If so, had they the knowledge that they were likely to cause death ? Srd. — If they had not the knowledge, were the inj uries intended to be inflicted so severe as, in the ordinary course of nature, must cause death to a he.altliy man ? If the first question is answered in the affirmative, the prisoners will be guilty of culpable homicide. If, further, either the second or third question be answered in the affirmative, the offence will be murder. If, both the second and third questions are answered in the negative, then the offence will be culpable homicide not amounting to murder. Glover, J. — As Mr. Dodson, the Sessions Judge who tried the case, has left Mymensingh, I concur with Campbell, J., in quashing the con- viction and ordering a new trial. Before issuing final orders, it was' thought desirable by Campbell and Glover, J J., to take the opinion of the Full Bench on the points of law involved. The case was accordingly referred to a Full Bench. The opinion of the Full Bench was delivered by Peacock, C.J. — There are, in my opinion, several important distinc- tions between murder and culpable homicide ; an offence cannot amount to murder, unless it falls within the definition of culpable homicide, for s. 300 merely points out the cases in which " culpable homicide is murder." But an offence may amount to culpable homicide without amounting to murder. Culpable homicide is not murder, if the case falls within any of the exceptions mentioned in s. 300. The causing of death by doing an act with the intention of causing death is culpable homi- cide. It is also murder, unless the case falls within one of the excep- tions in s. 300. Causing death with the intention of causing bodily iiijnry to any person if the bodily injury intended tq be inflicted is sufficient, in the ordinary course of nature, to cause death, in my opinion, falls within the words of s. 299—" with the intention of causing such bodily injury as is likely to cause death," and is culpable homicide. It FULL BENCH RULINGS, 451 is also murder, uuless the case fulls witliin one of the exceptions ; see 1866 s. 300, cl. 3. Causing deaili by doing an act with the liuowledge tliat Quken such act is likely to cause death is culpable homicide, but it is not Qorachand murder, even if it does not fall vviihin any of tl)e exceptions mentioned *^°™' in s. 300, unless it falls within els. 2, 3 or 4 of s. 300 ; that is to say, unless the act by which the death is caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or wiih the inten- tion of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient, in the ordinary course of nature to cause deati), or unless the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death. In speaking of acts, I of course include illegal omissions. There are many cases falling within the words of s. 299, — " or with the knowledge that he is likely by such act to cause death " that do not fall within the 2nd, 3rd or 4th clauses of s. 300, such for instance, as the offences described in ss. 279, 280, 281, 282, 284, 285, 286, 287, 288, and 289, if the offender knows that his act or illegal omission is likely to cause death, and if in fact it does cause death. But although he may know that the act or illegal omission is so dangerous that it is likely to cauae death, it is not murder, even if death is caused thereby, unless the offender knows that it must, in all probability, cause death, or such bcdily injury as is likely to cause death, or unless l)e intends thereby to cause death or such bodily injury as is described in cl. 2 or 3 of s. 300. As an illustration ; suppose a gentleman should drive a buggy in a rash and negligent manner, or fuiiously along a narrow crowded street. He might know that he was likely to kill some person, but he might not intend to kill any one, or to cause bodily injury to any one. In such a case, if he should cause death, I apprehend, he would be guilty of culpable homicide not amounting to murder, unless it should be found, as a fact, that he knew that his act was so imminently danger- ous that it must, in all probability, cause death or such bodily injury, &c. as to bring the case within the 4th clause of s. 300. In an ordi- nary case of furious driving, the facts would scarcely warrant such a finding. If fpund guilty of culpable homicide not amounting to mur- der, the offender might bB punished to the extent of transportation for life or imprisonment for ten years, wiih fine (see ss, 304 and 59) ; or if a European or American, he would be subject to penal ser- vitude, instead of transportation. It would not be right in such a case 4.52 FULL BENCH RULINGS. 1866 that the offender should be liable to capital punishment for murder. Queen The first part of s. 304 would not apply to the case. That applies GoRACHAND ""'j ^° oasBS which would be murder, if not falling withiu one of Go^^- the exceptions in s. 300. If a man should diive a buggy furiously, not merely along a crowded street, but intentionally into the midst of a crowd of persons, it would probably be found, as a fact, that he knew that his act was so imminently dangerous that it must, in all probability, cause death or such bodily injury, &c., as in cl. 4, s. 300. From the fact of a man's doing an act with the knowledge that he is likely to cause death, it may be presumed that he did it with the inten- tion of causing death, if all the circumstances of the case justify such a presumption ; but I should never presume an intention to cause death merely from the fact of furious driving in a crowded street, in wliich the driver might know that his acts would be likely to cause death. Presumption of intention must depend upon the facts of each particular case. Suppose a gentleman should cause death by furiously driving up to a railway station. Suppose it should be proved that he had business in a distant part of the country, say at the opposite terminus, that he was intending to go by a particular train ; and that he could not arrive at his destination in time for his business by any otiier train ; that at the lime of the furious driving, it wanted only two minutes to the time of the train's starting ; that tlio road was so crowded that he must have known that he was likely to run over some one and to cause death. Would any one under the circutnstances presume that his intention was to cause deatli ? Would it not be more reasonable to presume that his intention was to save the train. If the Judge or jury should find that his intention was to save the train, but that he must have known that he was likely to cause death, he would be guilty of culpable homi- cide not amounting to murder, unless they should also find that the risk of causing death was such that he must have known, and did know, that his act must, in all probability, cause death, &c., within the meaning of cl. 4, s. 300. If they should go further, and infer from the knowledge that he was likely to cause death, that he intended to cause death, he would be guilty of murder, and liable to capital punishment. It appears to me the rules contained in ss. 407 and 419 of the Code of Criminal Procedure are not applicable to a case_ which the Court, as a Court of Revision, thinks it right to take up. Aa appeal is matter of right in all cases in which an appeal is given ; but a revision is in the discretion of the Court. An appeal is for matter of fact as well as for matter of law. A revision is only on matter FULL BENCH RULINGS. 453 of law. The two cases, therefore, are very different. When s. 407 igee says that an appeal shall not lie from a judgment of acquittal, it Qj^^ra means that the prosecutor shall not, as a matter of right, be entitled to (Joraohand apply to reverse the judgment of acquittal, either upon the facts or Gopb. upon the law. But s. 404 authorizes the Court to call for and examine the record of any criminal trial in which it shall appear that there has been error in the decision upon a point of law, and may determine any point of law arising out of the case, and thereupon pass such order as to the Court may seem right. S. 403 enacts that " it shall be lawful for the Sudder Court to call for and examine the record of any case tried by a Court of Session, for the purpose of satisfying itself as to the legality or propriety of any sentence or order passed, and as to the regularity of the proceedings of the Court. If it appear to the Sudder Court that the sentence passed is too severe, the Sudder Court may pass any mitigated sentence warranted by law. If the Sudder Court shall be of opinion that the sentence or order is contrary to law, the Sudder Court shall reverse the sentence or order, and pass such judgment, sen- tence or order as to the Court shall seem right, or, if it deem necessary, may order a new trial." The word " sentence" in the latter section may mean the award of punishment merely, or the whole judgment, including the finding. If it refers only to the award of punishment, the finding would stand ; and I can scarcely see the necessity or use of the words " or may order a new trial." The words " sentence or order" are in many sections used as including the finding, and not merely the awards of punishments — ss. 415, 416,417, 420. But, whatever maybe the construction of the word " sentence," in s. 405, there can be no doubt that, under s. 404, the Court may set aside a judgment of acquit- tal for error in point of law. Suppose the decision of a Judge should be monstrously absurd ; suppose, upon an indictment for murdering a child, the Judge and the Assessor should find that the prisoner caused the death of the child by doing an act with the inten- tion of causing its death, and that the case did not fall within any of the exceptions mentioned in s. 300 of the Penal Code ; but suppose they should also find that the child was under the age of six months, and the Judge should hold that it was not murder to kill a child under that age, and should therefore acquit the prisoner and order him to be discharged,— could it be contended that the judgment of acquittal could not be set aside, and that the prisoner should go free for ever? I apprehend that the Court, as a Court of Revision, would clearly have the power to set aside the judgment of acquittal, and 14 454 PULL BENCH RULINGS. I8gg declare ibat, upon the facts found, the prisoner was guilty of murder, and — send the case back to the Judge, ordering him to apprehend the prisoner «• (if he had been discharged), and to pass the proper sentence upon him. GoPB. If, in the case above supposed, the Judge were to say, it is not neces- sary to try whether death was caused by an act done with the intention of causing death, because if it was so caused the prisoner was not guilty of murder : I find that the child was under the age of six months, and, therefore, acquit the prisoner — in such a case, there would be no finding on the facts, and the Court, as a Court of Eevision, would merely set aside the acquittal, and order a new trial. I have supposed an error in law, which is not likely to occur. I put it merely as an illustration ; there are many constructions of law equally erroneous, though not so clearly so. Again, suppose a Magistrate, in a case triable by him, should con- vict of an offence, and the Sessions Judge, on appeal, should, without going into the facts, reverse the decision upon a point of law, and order the prisoners to be discharged, stating that, assuming the facts to be as found by the Magistrate, the prisoner was not guilty of an ofieuce, this Court, if the Judge were wrong in point of law, could, as a Court of Revision, reverse his decision, and direct him to try the appeal upon its merits. If a Judge, on appeal, should uphold the finding of a Magistrate on the facts, and reverse his decision in point of law, and pronounce a judgment of acquittal, and order the prisoner to be discharged, then, as the acquittal would be merely on a point of law, this Court, as a Court of Revision, might reverse the judgment of acquittal, and order the sentence of the Magistrate to stand. There are also cases in which, notwithstanding s. 419 (1), the Court, as a Court of Revision, could enhance a punishment. In the case of The King v. Bourne (2), it was held that a sentence of transportation for an offence, for which the only punishment was death, was erroneous and must be reversed. The Court held that they could merely reverse the erroneous sentence, but could not pass the right one, and the prisoners were discharged. The law was amended by 11 and 12 Vic, c. 78, by which the Court, upon reversing an errone- ous sentence, may give the proper judgment. Here, under s. 403 of the Criminal Procedure Code, the Court, as a Court of Revision, (1) Act XZF 0/1861, s. 419.~"The Appel- sentence or order of such Court, but not so late Court, after perusing the proceedings as to enhance any pxmishment that shall of the lower Court, and after hearing the have been awarded." plaintiff or his Counsel or agent, if they (2) 7 A. &E., 58. appear, may alter or reverse the finding and FULL BENCH RULINGS. 455 1866 has a similar power ; but in order to do so, it may be necessary to en- haace the punishment. Iq the case suggested by Campbell, J., if a Queen Sessions Judge should pass sentence of rigorous imprisonment for v. fourteen years for murder, such a sentence would be bad ; for it is not • Gopk. authorized by law — s. 302 of the Penal Code ; or if he should pass sentence of transportation for seven years for the offence of murder, committed by a person under sentence of transportation for life, the sentence would be contrary to law ; sea s. 303, by which death is the only punishment which can be awarded. In such cases the Court, as a Court of Revision, could, under s. 405, reverse the sentence, and pass the proper sentence, notwithstanding that in such a case the sentence must be enhanced in order to pass a legal sentence, in ihe former case from four years' rigorous imprisonment to death or transportation for life, and in the latter from transportation for seven years to sentence of death. S. 405 says, if the Court shall be of opinion that the sen- tence or order is contrary to law, it "shall reverse the sentence or order, and pass such judgment, sentence or order as to the Court shall seem right, or, if it deem necessary, may order a new trial." In the case supposed, in which a prisoner under sentence of transportation for life should be found guilty of murder and sentenced to transportation for seven years, the Court might think the finding right upon the evidence, and there would, therefore, be no necessity for ordering a new trial. In such a case a question might arise, whether the Court would be bound to pass the only legal sentence, viz., death, or might send the case back to the Sessions Judge to pass the sentence. I am of opinion that the Court might send the case back with an order to pass the proper sentence, under the words " shall pass such judgment, sentence or order," &c. In the case supposed of a prisoner being sen- tenced to fourteen years' rigorous imprisonment for murder, upon set- ting aside the erroneous senience, the right sentence would be a discre- tionary one, 1)12;., "death or transportation for life." In such a case, I think the Court ought to send the case back for proper sentence to be passed, in the same manner as it would do under s. 402. By the statute 11 and 12 Vict., c. 78, s. 5, the Court, when it reverses a judgment, may either pass a proper judgment, or remit the case to the lower Court, in order that such Court may pass the proper judgment. It appears to me that in all cases in which the Court, as a Court of Revision, tliinks it right to reverse an acquittal on a point of law, or to reverse, as erroneous, a sentence, in order that the right sentence may be passed, if the right sentence would 456 FULL BENCH RULINGS. lygg enhance the one already passed, the oflPender should have an oppor- QuuEj, tunity of being heard by himself or his pleader or agent, either before GoKACHAND *^^ lower Court, if the case is remitted to it, or before the High Court, GopE. if the Judges pass the proper sentence themselves. The Court may act as a Court of Revision after it has acted as a Court of Appeal, if it find it necessary to do so, in order to correct an error in law which cannot be set right on appeal. For instance, if a man should be found guilty of a murder, and sentenced to seven years' transportation, if the prisoner should appeal on the facts, the Court might uphold the finding of guilty of murder on appeal, and afterwards, as a Court of Revision, might set aside the sentence of seven years' transportation, and pass a legal sentence for murder, or send it back to the lower Court to pass such sentence, pointing out, as they would in a case under s. 402, what is the proper punishment. As a Court of Revision the Court cannot reverse the finding of a jury. In the present case, the attention of the Judge should, I think, be called to another error which he committed. He says, the prisoners who were present, assisting in taking away Amordi and assisting by their presence in the beating of him, abetted the commission of culp. able homicide, &c. It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannnh on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me FULL BENCH RULINGS. 457 that those who have to deal with the facts might very propprly infer jggg that they were all assenting parties and acting in concert, and that the qu^en beating was in furtherance of a common design. I do not know what „ "■ ° ° GOKACHAND the evidence was, all that I wish to point out is, that all who are present Gope. do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, and Mr. Justice Phear. ANAND CHANDRA MAJUMDAR (Plaintief) v. GOBARDHAN KHAN, 18G6 alias EJATULLA (Defendant).* -April 17. Mofussil Small Cause Courts Act (XI of 1865), s, ^2— Reference to High Court for opinion. Under s. 22 o£ Act XI of 1865, only questions which arise in the trial of a snit, and not questions which arise on an application tor execution, can be referred by the Small Cause Courts to the High Court. The following case was stated for the opinion of the High Court by the Judge of the Court of Small Causes ut Jessore : — In this case the plaintiff obtained a decree for Es. 329-2 on 31st August 1861. At the time of trial the defendants were resident outside the local jurisdiction of this Court, but neither the parlies nor the Judge seems to have been aware of the fact. As far as appears from the record, no objection was raised on this score, nor is any allegation now made that any such objection had been raised, or that the defend- ants wexe, fur any other reason, subject to the jurisdiction of the Court. Execution was subsequently taken out and withdrawn at the instance of the decree-holder, who filed a receipt for a portion of the debt due under the decree. In June 1865, execution-proceedings were again commenced, and the property of the judgment-debtors was attached. It was then discovered that they were resident outside the jurisdiction. They appeared and objected on this ground, and the Court directed the moveable properly attached beyond the boundary to be released, as a Small Cause Court decree cannot, under the present law, be executed either by the Court passiug such decree or by any other Court, against moveable property not within the jurisdiction of the Court which tried the case. The decree-holder then applied for a certificate under B, 20, Act XI of 1865, with a view to proceed against the immoveable ♦ Reference from the Small Cause Court at Jessore. 458 FULL BENCH RULINGS. 1866 property of the judgment-debtors. They, however, object that the decree T was passed without jurisdiction ; that the whole of the proceedings are, Chandka therefore, null and void; and that this Court has no authority to grant Majumdar V. a certificate, or any other Court to act on it, if granted. The question Khan. thus raised, which is an important one, may be put as follows : — Can a defendant, by consent, or by silently acquiescing in the jurisdiction of a Small Cause Court, confer on such Court, as against himself, a juris- diction which otherwise would have been barred by reason of his not residing within the local limits to which the authority of the Court extends." This case came before the Chief Justice and L. S. Jackson, J., by whom the following reference was made to a Full Bench. Peacock, C.J. (Jackson, J., concurring) — It appears to us that this is not a case falling within s. 22, Act XI of 1865 (1), and that we cannot, therefore, express any opinion upon the case. The section in question applies to questions which arise in the trial of a suit, and not to such as arise on application for execution. We should be very glad to answer the question if we could pronounce a judicial opinion thereon. We observe that a question, on a point relating to execution, was answered under a similar clause in Act XLII of 1860, s. 13 (2). As it is important that all the Division Benches should act in the same way, I would refer it to a Full Bench, whether the question asked in the case stated is one which falls within s. 22 of Act XI of 1865. The opinion of the Full Bench was delivered by Peacock, C. J. — The Full Bench agree in the view expressed by the order referring this case, and think that the case does not fall within s. 22, Act XI of 1865, and that the Court cannot, therefore, express any judicial opinion upon the case. (1) jlcfX/of 1865, s. 22. — " If, in the trial tion, or on the application of any of the of any suit under this Act, any question of parties to the suit, and in suits for an amount law, or usage having the force of law, or any greater than five hundred rupees, shall draw question as to the construction of a doou- up a statement of the case, and refer It with ment, which construction may affect the the Court's own opinion, for the decision of merits of the decision, shall arise, the Court, the High Court." in suits for an amount not exceeding five (2) George Mears v. AckoTmr Sheik, Suth. hundred rupees, may either of its own mo- S. C. C. Rul., 29, FULL BENCH RULINGS. 459 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice Phear. THE QUEEN ». ELAHI BAX* (1). Accomplice, Testimony of^Corroboration — Criminal Procedure Code {Act XXV of ■ 1861), ss. 419 and 426 — Reversal of Finding. The tmoorroborated testimony of one or more accomplice or accomplices is sufficient in law to support a conviction (2). The evidence of accomplices should not be left to the jury without such directions and observations from the Judge as the circumstances of the case may require, pointing out to them the danger of trusting to such evidence when it is not corroborated by other evidence. The omission to do so is an error in law in the summing up by the Judge, and is, on appeal, a ground for setting aside the conviction, when the Appellate Court thinks that the pri- soner has been prejudiced by such omission, and that there has been a failure of justice. The nature and extent of the corroboration requisite explained and illustrated. The word " reverse " in ss. 419 and 426, Code of Criminal Procedure, means to make void, to set aside or annul, and not merely to change or turn into the contrary (3). The prisoner in this case was tried before a jury on a charge of dacoity, and was convicted. He appealed to the High Court, chiefly * Criminal Appeal No. 75 of 1866. 1866 May 29. (1) See Queen v. Gagalu Magalu, 4 B. L. R., App., 50. (2) See Act I of 1872, s. 133. (3) Act X of 1872, s. 297, provides as follows : — " If, in any case either called for by it- self or reported for orders, or which comes to its knowledge, it appears to the High Court that there has been a mate- rial error in any judicial proceeding of any Court subordinate to it, it shall pass such judgment, sentence, or order thereon as it thinks fit. " If it considers that an accused person has been improperly discharged, it may order him to be tried, or to be committed for trial ; " If it considers that the charge has been inconveniently framed, and that the facts of the case show that the prisoner ought to have been convicted of an ofEence other than that of which he was con- victed, it shall pass sentence for the ofEence of which he ought to have been convicted : " Provided that if the error in the charge appears materially to have misled and prejudiced the accused person in his defence, the High Court shall annul the conviction, and remand the case to the Court below with an amended charge, and the Court below shall thereupon proceed as if it had itself amended such charge. " If the High Court considers that any person convicted by a Magistrate has committed an offence not triable by such Magistrate, it may annul the trial and order a new trial before a competent Court. If it considers that the sentence passed on the accused person is one which can- not legally be passed for the offence of which the accused person has been con- victed, or might have been legally con- victed upon the facts of the case, it shall annul such sentence and pass a sentence in accordance with law. If it considers that the sentence passed is too severe, it may pass any lesser sen- tence warranted by law ; if it considers that the sentence is inadequate, it may pass a proper sentence, " Queen V. Elaiii Bax, 460 PULL BENCH RULINGS. 1866 on tlie ground that the Judge, in summing up, failed to warn the jury, that the evidence against him was that of approvers and accom- plices, not corroborated in any way, and that this omission amounted to a misdirection and an errorln law, so as to vitiate the conviction. The appeal was heard before L. S. Jackson and Glover, JJ., who referred the following questions to a Full Bench : L " Whether a conviction can be had on the uncorroborated evidence of one or more accomplices ? " 2. " If not, what is the nature of the corroboration required ? " The questions were referred with the following remarks by Jackson, J. — The Judge ought to have directed the jury that the evidence of approvers, and especially of such approvers, ought to be received with great caution, and thaf, under no circumstances, would it be legally sufficient evidence, unless it were in some way or other corroborated ; and he ought further to Lave told them that it was not corroborated in any way. Instead of thus directing the jury, the Judge simply left it to them to decide whether the approvers were speaking the truth or not. This misdirection we consider to have been an error of law, the result of which has been to convict Elahi Bax on what is not legal evidence. We think, therefore, that the finding and sentence should be reversed and the prisoner released. But it has been brought to our notice that there are conflicting decisions on the point, and that a Divisional Bench of this Court have ruled in the case of The Queen v. Godai Raout (1) that a jury may con- vict upon the evidence of an accomplice, though not corroborated, so as to show the prisoner's participation in the offence. They also ruled that s. 28 of Act II of 1855 did not apply to Mofussil Courts. And another Divisional Bench, consisting of three Judges, ruled, in the case of The Queen v. Dwarka (2), that the uncorroborated testimony of an accomplice was not sufficient for conviction. It has, moreover, it appears, since been laid down by a Full Bench of this Court in The Queen v. Lai Chand Kowrah (3) that s. 28, Act II of 1855, refers to all Courts, mofussil included. Under these circumstances, we are not, we conceive, at liberty to pass final orders in this case until the point in question, viz., whether or not the uncorroborated evidence of an accomplioe is legally sufficient for conviction, be settled authorita- tively, and we accordingly direct that this case be laid before a Full (1) 5 W. K., Cr., 11. (3) Ante, p. 417. (2) 5 W. R,, Cr., 18. FULL BENCH RULINGS. 461 1866 Bench of this Court for the purpose. As the prisoner Elahl Bax is under sentence of transportation, the Sessions Judge will be directed qxjeehi to suspend the execution of Lis sentence until the result of this "• n , , Elahi Bax. reference be known. Messrs. R. T. Allan, T. Barrow, R. E. Twidale, and C. Gregory, and Baboo Ramanath Rose, Munshi Amir AH and Moulvi Marha- mat Hossein for the prisoner. The following judgments were delivered : — Peacock, C.J. — I am of opinion that a conviction upon the uncorro- borated testimony of an accomplice is legal. This is not new law, nor founded upon a new principle. The point was decided in England as far back as the 10th December 1662, after conference with all the Judges. Several cases to that effect are cited by Sir Mathew Hale in his " Pleas of the Crown," Volume I, pages 303-304. He, however, remarks, — " Yet though such a party be admissible, as a witness in law, yet the credibility of his testimony is to be left to the jury, and truly it would be hard to take away the life of any person upon such a wit- ness, that swears to save his own, and yet confesseth himself guilty of so great a crime, unless there be very considerable circumstances, which may give the greater credit to what he swears." In The King v. Attwood (1), which is a leading case upon the subject, two prisoners were convicted of highway robbery upon the uncorroborated evidence of an accomplice as to their identity. The question was referred for the opinion of the twelve Judges, who were unanimously of opinion that an accomplice alone is a competent witness j and if the jury, weigh- ing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal. In sentencing the prisoners, Buller, J., made the following remarks : " Prisoners, you were convicted of a highway robbery at the last summer Assizes at Bridgewater. The material circumstances of the trial were these : The prosecutor gave in evidence that he was robbed by three men on the day laid in the indictment, mentioning the conversa- tion that passed during the robbery, and proving all the facts that are necessary in law to constitute that offence ; but as it was dark, he could rot swear to the person by whom it was committed. The accomplice was then called, who swore, that he and you had, in company of each other, committed this robbery ; and he mentioned all the circum- (1) 2 Lea, 521. 15 462 FULL BENCH RULINGS. 1866 stances that passed, •which exactly corresponded with those which the! Queen prosecutor had before related. On the testimony of these two witnesses Elahi Bax. the jury found you guilty; but on n doubt arising in my mind respecting the propriety of this conviction, I thought it proper to refer your ease to the consideration of the twelve Judges. My doubt was, whether the evidence of an accomplice, unconfirmed by any other evidence that could materially affect the case, was sufficient to warrant a convieiion ? — And the Judges are unanimously of opinion that an accomplice alone is a competent witness ; and that, if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal. The distinction between the competency and the credit of a witness has been long settled. If a question be made respecting his competency, the decision of that question is the exclusive pro- vince of the Judge ; but if the ground of the objection go to his credit only, his testimony must be received and left wiih the jury under such directions and observations from the Court as the circumstances of the case may require, to say whether they think it sufficiently credible to guide their decision on the case. An accom- plice, therefore, being a competent witness, and the jury in the present case having thought him worthy of credit, the verdict of guilty, which has been found, is strictly legal, though found on the testi- mony of the accomplice only." His Lordship then passed sentence of death upon the prisoners, but intimated that it was his intention to recommend them to mercy. In the case of liex v. Jones (1), Lord EUenborough says : — " No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only. Judges, in their discretion, will advise a jury not to believe an accomplice, unless he is conflimed, or only in as far as he is confirmed, but if he is believed, his testimony is unquestionably sufficient to establish the facts which he deposes : it is allowed that he is a competent witness, and the consequence is inevitable that if credit is given to his evidence, it requires no confirmation from another witness. Within a few years a case was referred to the twelve Judges, where four men were con- victed of a burglary upon the evidence of an accomplice, who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners ; but the Judges were unanimously of opinion that the conviction as to all the four was legal, and upon that opinion they all suffered the penalty of the law. Strange notions upon (1) 2 Camp., 131. FULL BENCH RULINGS. 463 this subject have lately got abroad, and I have thought it necessary to 1866 say so much for the purpose of correcting them ;" see The King v. Queen Durham (l). At the Old Baily Sessions, 1784, Smith and Davies were elahi'bax. tried for robbing Hunter. During the night the prosecutor was attacked by four ruffians, whose persons he was unable to identify ; but during the scuffle he had torn a piece of the coat which one of them had on, who, on being discovered by these means, turned King's evidence and implicated the two prisoners. But the Court, although it was admitted as an estab- lished rule of law that the uncorroborated testimony, of an accomplice is legal evidence, thought it too dangerous to suflfer a conviction to take place under such unsupported testimony ; and the prisoners were acquitted. The law, as above laid down, that a conviction is legal though supported by the uncorroborated evidence of an accomplice, has been admitted by Lord Denmau in Rex v, Hastings (2), by Alderson, B., in Rex v. Wilkes (3), and by many other learned and eminent Judges ; and it was so ruled by the Court of Criminal Appeal in Rex V. Stubbs (4). The law of England, therefore, upon this subject is beyond doubt. The law of America is the same, and in that country, where in most of the States new trials are granted in criminal cases, new trials have been refused even when the verdicts were obtained upon the uncorrobo- rated evidence of an accomplice. The cases upon the subject are collected in Wharton's Criminal Law of the Uuited States of America, page 366. It does not appear that in the cases in which new trials were refused, the Judge who tried the case had omitted to make such observations to the jury with reference to the evidence of the accom- plices as the circumstances required. But in civil cases it is clear that, both in that country and in England, a new trial will be granted where, from the absence of proper instructions from the Judge, the jury fall into an error. Formerly, the rule was that the mere commis- sion of a crime did not render a witness incompetent, but persons convict- ed of treason, felony, or certain other crimes, were rendered incompetent by conviction. The incompetency created by conviction was removed in England by Act of Parliament, and was subsequently removed here by Act XIX, 1837, by which it was enacted that no person shall, by reason of a conviction for any oflfence whatever, be incompetent to be a witness in any stage of a cause, civil or criminal, or before any Court in the territories of the East India Company. (1) 2 Lea., 538. (4) Dears, C. C, 555; S. C, 25 L. J,, (■2) 7 C. & P., 152. Mag. Ca., 16. (3) 7 C. & P., 272. Elahi Bas, 464 FULL BENCH RULINGS. 1866 It was contended in the course of argument in the present case, that, Queen ' in India, the rule of eTidence in the mofussil is different from the law of England with respect to the legality of convicting upon the uncorrobo- rated evidence of an accomplice. If there had been a long uniform course of decisions in the late Sudder Court, that the uncorroborated evidence of an accomplice was iasuflScient in law for the conviction of a prisoner, we should have been disposed to bow to those decisions, and to act upon the rule " stare decisis." One case only was cited from 7 Nizamut Reports, page 57 (1), in which a Judge of the Sudder Court stated that he did not think it legal to convict upon such evidence. There may be other cases to the same effect, but there is no uniform current of decisions which would justify us in holding that the law in this respect in the mofussil was different from the established law of England, and from that which was administered in the late Supreme Court, and is now administered by this Court, in the exercise of Original Criminal Juris- diction. It would require a uniform traia of decisions to justify us in holding that the law of evidence to be administered by the Court upon such a point as this is different in the exercise of the Appellate Criminal Jurisdiction from that which is acted upon in the exercise of Original Jurisdiction. When called upon to give effect to particular expressions ■which have been made use of by the Judges of the late Sudder Court with regard to the rules of evidence, we must bear in mind that, up to a very recent period, when trial by jury was established in certain districts, it was the province of the Sessions Judges, and of the Judges of the late Sudder Court, to determiue questions of fact as well as questions of law in criminal cases ; and that, in dealing with such cases, it was not very frequently necessary to determine whether the evidence of a particular witness was insufficient in law to justify a conviction, or merely insufficient to induce them, as Judges of fact, to declare that a prisoner was guilty. There is a wide distinction, however, between disbelieving evidence and determining that it is not legally sufficient if believed; but this distinction is not always sufficiently adverted to by Courts, which are Judges of fact as well as of law. Act II of 1855, s. 28 (2), was referred to by the appellant's pleader, by whom the case was very well argued, and it was contended that that Act rendered (1) There is no such case in 7 Nizamut cient for proof of any fact in any such Court Eep., 57 ; hut see Radhacant Doss w. Moha- or before any such person. But this provision deby, 1 N. A. R., 304. shall not afiect any rule or practice of any (2) Act II of 1855, s. 28. — "Except in cases Court that requires corroborative evidence in of treason, the direct evidence of one witness, support of the testimony of an accomplice or ■who is entitled to full credit,- shall be snffi- of a single ■witness in the case of perjury." Elahi Bax. FULL BENCH RULINGS. 465 corroboration necessary. Upon that point it is sufficient to say tliat it iscs was not the intention of the Act to reader inadmissible any evidence, q^^^ which, but for the Act, would have been admissible — see s. 58 ; nor was it intended to lessen the legal effect of any such evidence. We have, therefore, no hesitation in answering the first question in the affirmative, and declaring that a conviction may be legally had on the uncorroborated evidence of one or more accomplices. It is unnecessary, as regards this part of the case, to answer the second question. Holding that the Judge was not bound to direct the jury that the evidence was not legally sufficient for a conviction, we shall probably mislead if we do not go on to consider whether there was any error or defect in the summing up which constitutes a valid ground of appeal. The question of misdirection is raised by the Judges who referred the case, and is, I think, substantially before us, and ought to be considered, although there is no specific question as to whether there was a misdi- rection or not. I proceed, therefore, to consider whether there is any ground for setting aside the conviction upon the ground of error in the summing up. In the case of Regina v. Farler (1) a very learned and eminent Judge, than whom no one was better able to deal with evidence, and to determine the degree of credibility to which particular witnesses were entiiled, — I mean the late Lord Abinger, — in summing up the case to the jury, made the following remarks: — "lam strongly inclined to think that you will not consider the corroboration in this case sufficient. No one can hear the case without entertaining a suspicion of the pri- soner's guilt, but the rules of law must be applied to all men alike. It is a practice which deserves all the reverence of law, that Judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless he is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist of some circumstance that afiects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. If a man were to break open a house and put a knife to your throat, and steal your "properly, it would be no corroboration that he had stated all the fads correctly, that he had described how the person did put a knife to the throat, and did steal (1) 8 c. & P., 106. 466 FULL BENCH RULINGS. 1866 the property. It would not at all tend to show that the party accused Queen participated in it. Here you find that the prisoner and the accom- ELAm Bax P'^*'® ^^^ ^^^^ together at the house of the landlord — now look at his evidence. If they were seen together under circumstances that were extraordinary, and where the prisoner was not likely to be unless there were concert, it might be something. But he lives within one hundred and fifty yards, and there is nothing extraordinary in his being there ; and he left when they were shutting up the house. Therefore it is perfectly natural that he should have been there, and left when he did. The single circumstance is, that the prisoner was seen in a house which he frequents, where he may be seen once or twice a week, and there the case ends against him. All the rest depends upon the evidence of the accomplice. The danger is, that when a man is fixed, and knows that his own guilt is detected, he may purchase impunity by falsely accusing others. I would suggest to you that the circumstances are too slight to justify you in acting on this evidence." The prisoner was accordingly acquitted. In Eex v. Wilkes and Edwards (1), a similar rule was laid down by Alderson, B., in a case of sheep stealing. He said : — " There is a great diflerence between confirmations as to the circumstances of the felony, and those which apply to the Individuals charged ; the former only prove that the accomplice was present at the commission of the oflfeiice ; the latter show that the prisoner was connected with it. This distinction ought always to be attended to." In summing up, the learned Judge said : — " The confirmation of the accomplice as to the commission of the felony is really no confirmation at all ; because it would be a confirmation as much if the accusation were against you and me, as it would be as to those prisoners who are now upon their trial. The confirmation which I always advise juries to require, is a confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged. You may legally convict on the evidence of an accomplice only, if you can safely rely on his testimony; but I advise juries never to act on the evidence of- an accomplice, unless he is confirmed as to the particular person who is chaiged with the offence. With respect to the prisoner Edwards, it is proved that, meat of a similar kind was found in his house. The meat cannot be identified, but it is similar ; that is, therefore, some confirma- tion of the accomplice as to Edwards more than any one else. It is also (1) 7 C. & P., 272. FULL BENCH RULINGS. 467 proved that the skin was found in a whirley hole ; that is no confinnn- jggg tion, because it does not affect the prisoners more than it affects any ■ Elahi Bax. Queen other persons. With respect to the prisoner Wilkes, it is proved by the »• witness Meek that the prisoner Wilkes told him nearly the same story as the accomplice has told you to-day. If you believe that witness, there is confirmation of the accomplice as to the prisoner Wilkes : you will say whether, with these confirmations, you believe the accomplice or not. If you think that his evidence is not sufficiently confirmed as to one of the prisoners, you will acquit that one ; if you think he is confirmed as to neither, you will acquit both ; if you think he is confirmed as to both, you will find both guilty." T.'ie jury found both prisoners guilty. In the case of Rex v. Stubbs (1), ia the Court of Criminal Appeal above referred to, Parke, B., said : — " My practice has always been to tell the jury not to convict the prisoner unless the evidence of the accomplice be confirmed, not only as to the circum- stances of the crime, but also as to the person of the prisoner." And Creswell, J., added : — " You may take it for granted that the accomplice was at the committal of the offence, and may be corroborated as to the facts ; but that has no tendency to show that the parties accused were there." Jervis, C.J., in the same case remarked : — " There is another point to be noticed. When ao accomplice speaks as to the guilt of three prisoners, and his testimony is confirmed as to two of them only, it is proper, I think, for the Judge to advise the jury that it is not safe to act on his testimony as to the third person, in respect of whom he is not confirmed, for the accomplice may speak truly as to all the facts of the case, and at the same time, in his evidence, substitute the third person for himself in his narrative of the ease." In Rex v. Moores (2) indictment against A as principal, and B as receiver, where the evidence of an accomplice was corroborated as to A, but not as to B. Baron Alderson thought it was not sufficient as to B. Confiicting opinions have been expressed as to whether, in a case in which an accomplice accuses two persons, and is corro- borated as to one, but not as to the other, a jury ought to be advised to acquit the one as to whom there is no corroboi'atiou. The opinion expressed by Jervis, C.J., in Rex v. Stubbs (1), as (1) Dears, C. C, 555; S. C, 25 L. J., may, therefore, be no difficulty in corro- Mag. Ca., 16. borating him as to the facts ; but that has (2) 7 C. & P., 270. These words do not no tendency to show that any particular appear in the Law Journal Report, and in person who may be accused was there." Dearsley the words are : — " You may take it The remarks of Jervis, C.J., and of for granted that the accomplice was present Parke, B., are quoted from the Law when the offence was committed, and there Journal, 468 FULL BENCH RULINGS. 1866 Queen ». Elahi Bax, above-mentioned, appears to be the correct one ; for notLing is more ' easy than for an accomplice to accuse an innocent person, in order to get oflF his real companion in guiU, and to attribute to the person falsely accused acts which were really committed by the guilty companion. In the present case, two accomplices gave evidence against Elahi Bax ; but that does not seem to carry the case much further. In Bex Y. Noakes (1), in which two accomplices spoke distinctly as to the prisoner, Littledale, J., told the jury that if their statements were the only evidence, he could not advise them to convict the prisoner ; that it was not usual to convict on the evidence of one accomplice, without confirmation ; and that, in his opinion, it made no difference whether the evidence was that of one accomplice only, or of more than one. This, as a general rule, is correct, for otherwise two companions in guilt might get off by confessing and falsely accusing two innocent persons. But if two or three persons should be appre- hended at different places, at long distances from each other, and should each confess and give a similar account as to the persons associated with them in a particular dacoity, the statement of each, if made under such circumstances as not to raise a presumption of collusion, might be proved in corroboration of his evidence ; such statement being admissible as corroborative evidence, under Act II of 1855, s. 31. The evidence of several accomplices, so corroborated, might be sufficient to satisfy a jury, although the evidence of one of them alone could not have been safely acted upon. These are matters to which the attention of a jury ought, under all circumstances, to be specially directed, with proper remarks from the presiding Judge, according to the rule laid down by Buller, J., in the case already cited. The danger of acting upon the evidence of an accomplice, who is admitted to give evidence for the Crown, arises not merely from the fact of his having committed a crime, for that would go to the credit of every witness who had recently committed or been convicted of a crime, but from the fact of his giving his evidence under the hope or expectation of pardon, and of his obtaining immunity from punishment if his evidence be believed. Suppose, two gentlemen of previously undoubted honor and good character should in a moment of irritation, not amounting in law to provocation, get out of a dak-carriage, and thrash the coachman or syce for not giving them a good horse ; suppose the man should die, and that both should be convicted of culpable (1) 5 C. &, P., 326. ElAhi Bax. FULL BENCH RULINGS. 469 homicide, would any one say that either of them would be so wholly 1866 unworthy of credit as witnesses in any other case, that a jury ought to q^^^ be advised not to act upoa his testimony, except so far as it was corro- borated ? If he would not after coaviction be unworthy of credit, if called upon to give evidence against a stranger for another offence, why should he be unworthy of credit before coaviction against his own companion aud friend, if compelled to give evidence against his will ? Suppose that, immediately after the commiaaion of the offeace, one should be appre- hended, and the other should escape without being identified with sufficient certainty for conviction ; suppose that the one who escaped should be apprehended and brought to trial, and that the one who had been apprehended in the first instance should be called as a witness against his will, and being compelled to give evidence (as he might be, under Act II of 1855, s. 32), should identify his companion, would any Judge, in the exercise of a sound judicial discretion, feel himself bound to tell a j ury that, because the witness was an accomplice, it would be dangerous to act upon his evidence alone uncorroborated ? When the Judges speak of the danger of acting upon the uncorrobo- rated evidence of accomplices, they refer to the evidence of accomplices who are admitted as evidence for the Crown, iu the hope or expecta- tion of a pardon. If, in such a case, t,he accomplices admitted to give evidence act fairly and openly, and discover the whole truth, though, according to the law of England, they are not, except in certain cases, for which special provision is made by statute, entitled as of right to pardon, yet, the usage, the lenity, and the practice of the Court is to stop the prosecution against them, and they have an equitable title to a recommendation to the mercy of the Crown (Cowper's Reports, 334). The origin of the practice of admitting accomplices to give evidence for the Crown without approvement, is explained by Lord Mansfield in Rex V. Rudd (1). He there says :— A person desiring to be an approver, must be one indicted for the offence, and in custody on that indictment. He must confess himself guilty of the offence, and desire to accuse his accomplices. He must likewise upon oath discover, not only the parti- cular offence for which he is indicted, but all treasons and felonies which he knows of ; and after all this, it is in the discretion of the Court, whether they will assign him a Coroner, and admit him to be an approver or not ; for if, on his confession it appears, that he is a principal, and tempted the others, the Court may refuse and reject him as an approver. When he is admitted as such, it must appear that what he has discovered (1) Cowp., 331, at p, 335. IG Que EN V. Elahi Bax. 470 FULL BENCH RULINGS. 1866 is true ; aud that he has discovered the whole truth. For this purpose, the Coroner puts his appeal into form ; and when the prisoner returns into Court, he must repeat his appeal, without any help from the Court, or from any bystander. And the law is so nice, that if he vary in a single circumstance, the whole falls to the ground, and he is condemn- ed to be hanged. If he fail in the color of a horse, or in the circum- stances of time, so rigorous is the law, that he is condemned to be hanged; much more if he fail inessentials. The same consequences follow if he does not discover the whole truth ; and in all these eases the approver is convicted on his own confession. See this doctrine more at large in Hale's Pleas of the Crown, Vol. II, pages 226 to 236 ; Stan: Pleas of the Crown, Lib. 2 C, 52 to C, 58 ; 3 Inst., 129. A further rigorous circumstance is, that it is necessary to the approver's own safety, that the jury should believe him ; for if the partners in his crime are not convicted, the approver himself is executed. "Great inconvenience arose out of this practice of approvement. No doubt, if it was not absolutely necessary for the execution of the law against notorious offenders, that accomplices would be received as witnesses, the practice is liable to many objections. And though, under this practice, they are clearly competent witnesses, their single testimony alone is seldom of sufficient weight with a jury to convict the offenders ; it being so strong a temptation to a man to commit perjury, if by accusing another he can escape himself. Let us see what has come in the room of this practice of approvement. A kind of hope that accomplices who behave fairly, and disclose the whole truth, and bring others to justice, should themselves escape punishment, and be pardoned. This is in the nature of a recommendation to mercy. But no authority is given to a Justice of the Peace to pardon an offender, and to tell him he shall be a witness against others. The accomplice is not assured of his pardon, but gives his evidence in vinculis, in custody ; and it depends on the title he has from his behaviciur, whether he shall be pardoned or executed." Sir Mathew Hale, speaking of approvement, says : — " This course of admitting approvers has long been disused, and the truth is, that more mischief hath come to good men by this kind of approvements, by false accusations of desperate villains, than benefit to the public by the discovery and convicting of real offenders ; jailors for their own profits often constraining prisoners to appeal honest men, and, therefore, pro- vision made against it by I. E. 3, C. 7." (See 2 Hale's Pleas of the Crown, 226.) The modera practice of admitting accomplices to give evidence under a hope of pardon, though not so dangerous as tlie old FULL BENCH RULINGS. 47I practice of approvement, -would still be attended with the greatest dan- iggg ger, but for the safeguard which has to some extent been provided by — 7: r J Queen the practice of the Judges in recommending juries not to act upon such «• ., .,, , . . , .. Elahi Bax. evidence without requiring corroboration as to the identity of the person accused. The danger of acting upon the uncorroborated evidence of accom- plices is at least as great here as it would be in England, for here, as in England, the accomplices are not actually pardoned before they give evidence. In England, by confessing and giving evidence, they acquire an equitable right to a recommendation for the mercy of the Crown. Here the Magistrate is merely authorized to tender a pardon (1) ; and if it appear to the Court of Session at the time of trial, or to the High Court as a Court of Eeference, that the person who has accepted the offer of pardon has not conformed to the conditions under which the pardon was tendered, either by concealing anything essential or by giving false evidence or information, it is competent to the Court to direct the commitment of such person for trial for the offence in respect of which the pardon was tendered (2). The witness, therefore, does not give his evidence under an absolute certainty of immunity. In Scotland the law is different. There, as remarked by Mr. Alison (3), "it has been long an established principle of our law that by the very act of calling a socius and putting him in the box, the prosecutor debars himself from all title to molest him for the future with relation to the matter libelled." This is always explained by the presiding Judge to the witness as soon as he appears, and conse- quently he gives his testimony under a feeling of absolute security, as to the effect which it may have upon himself. This privilege is absolutely, and altogether independent of the prevarication or unwil- lingness with which the witness may give his testimony. Justice may, indeed, be often defeated by a witness retracting his previous dis- closures, or refusing to make any confession after he is put into the witness-box; but it would be much more put in hazard if the witness were sensible that his future safety depended on the extent to which he spoke against his associate at the bar. It is quite as necessary here as it is in England, if not more so, that the evidence of accomplices should not be left to a jury without such directions and observations from the Judge as the circumstances of the case may require. The question is, whether the omission of the presiding Judge, on a trial in (1) Crim. Pro. Code, s. 209. of Scotland, 453, cited by Mr. Eoscoe; (2) lUd, s. 211. Digest of Evidence in Criminal Cases, (3) Alison's Practice of the Criminal Law 6th Edition, page 126. Elahi Bax, 472 rULL BENCH RULINGS. 1866 the mofussil to make such observations, is not such an error in his Qjjgjjjj summing up as to justify the Court, on appeal or revision, in setting aside a verdict of guilty. It has been said by the learned author, Mr. Starkie (1), speaking of the administration of civil justice in England, that "it is the practice for the Judge at I^isi Prius not only to stale to the jury all the evidence that has been given, but to comment on its bearing and weight, and to state the legal rules upon the subject and their application to the particular case, and even to advise them as to the verdict they should give, so that it may accord with his view of the law and with justice." He proceeds : — "Indeed, without this assistance from the Judge, few juries would, in a contested case, be able to come to an unanimous opinion, being frequently left in a state of great perplexity by the influence of the speeches of the contending pleaders. The accuracy of the summing up by the Judge is, therefore, of the very utmost importance, because if the jury, after hearing the evidence and the powerful arguments which probably have been urged in favor of quite opposite views of the question, were entirely left to decide for themselves, without an impartial direc- tion as to what just and legal weight ought to be attached to this or to that view of the case, it would be difficult, if not impracticable, for them to come to a just conclusion; and hence, in the administration of civil justice, it is incumbent on the Judge correctly to state the law upon, the case, as well as the evidence and the bearings of the latter." If the above remarks as to the impracticability of juries coming to a just conclusion are correct as regards the administration of civil justice in England, they are still more ' so as regards the administration of criminal justice in the mofussil, where trial by jury is in its infancy, and where the persons of whom juries are generally composed are necessarily more dependent upon the Judge than they are in England for sound and proper advice and assistance as regards the degree of weight which may be fairly and safely attached to the testimony of particular witnesses. The jury, it is true, are not legally bound to act upon the advice or recommendation of the Judge, as there is no appeal from a verdict of acquittal or from a verdict of guilty upon a mere matter of fact. By s. 379 of the Code of Criminal Procedure it is enacted that, in a trial by jury, the Judge will sum up the evidence on both sides, and the jury shall then deliver their finding upon the charge, and " a state- ment of the Judge's direction to the jury shall form part of the record." There can be no doubt that that section requires the Judge to sum up (V) Starkie ou Evidence, page 472. Elahi Bax. FULL BENCH RULINGS. 473 properly, aud there would be very great danger in holding tliat (here is 1866 no remedy by appeal agaiast a verdict of guilty, if it appears clearly to qvee.n the High Court that failure of justice has been caused by improper advice 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 particular 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, however, to the limitation provided by the Code of Criminal Procedure in ss. 439 and 426, viz., that the Appellate Court is satisfied that the accused person has been prejudiced by the error or defect, and that a failure of justice has been occasioned thereby. It was said by Tindal, C.J., in Davidson v. Stanley (1), that "it is no objection that a Judge lets the jury know the impression which the evidence has made upon his own mind," and that "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." And it has been already shown that it is the practice of Judges in England to advise juries not to convict merely upon the uncorroborated evidence of an accomplice. If a Judge, in a criminal trial in the mofussil, were to tell the jury that, in his opinion, the evidence was suflScient to justify them in finding the prisoner guilty in a case in which, if the Judge had been trying the case with the aid of assessors, the High Court would on appeal have reversed his judgment if upon the same evidence he had convicted the prisoner, I have no doubt that the Court ought, on appeal, to set aside a verdict of guilty found by the jury, notwith- standing the advice was merely as to the weight of evidence. So, if a Judge, instead of advising a jury not to convict upon the mere uncorroborated evidence of an accomplice, were to advise them to convict upon such evidence, or were to tell them that the uncorrobo- rated evidence of an accomplice, given under a tender of pardon, was admissible, and that it was for them alone to form their opinion upon it, that a conviction founded upon such evidence would be legal, and that such evidence, without corroboration, might be acted upon with as much safety as that of any other witness, I think the error in the direction would form a good ground of appeal. Now, there are errors of omission as well as errors of commission, and I have no doubt that it would form a good ground of appeal against a verdict of guilty if a Judge were to call the attention of a jury to (1) 2M, &Gr.,721, 728. Queen V. Elahi Bax, 474 FULL BENCH RULINGS. iseg all the evidence against the prisoner, and to omit altogether to allude or call attention to the evidence in his favor. By such a summing up the Judge would not comply with the requirement of the Code of Procedure, and a verdict found upon such a summing up ought, I think, to be set aside, if the Court should be of opinion that the evidence was not sufficient to justify a conviction. I put the case merely to try the principle. It appears to me that such an omission, or an omission to follow a practice which is universally adopted by the Judges in England, and is described by Lord Abinger to be " a practice which deserves all the reverence of law" (1), would be a ground of appeal against a conviction upon a verdict of guilty based upon such evidence alone, and found by a jury upon such a summing up. So, also, I think it would be error in a summing up, if a Judge, after pointing out the danger of acting upon the uncorroborated evidence of an accomplice, were to tell the jury that the evidence of the accomplice was corroborated by evidence of a fact which did not amount to any corroboration at all. When Lord EUenborough said, — "Judges in their discretion will advise a jury not to believe an accomplice unless he is confirmed, or only in as far as he is confirmed" (2), he must have intended that it was their duty to do so. " Discretion," says Lord Mansfield, "when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague, and fanciful, but legal and regular." But although I am of opinion that the Legislature intended that the Sudder Court should have the power of setting aside a verdict of guilty, pronounced by jury upon an erroneous or defective summing up of the evidence by the presiding Judge, yet I think that it was not their intention that a verdict of guilty should be set aside in every case, in which there is a defective or erroneous summing up. It was their intention to provide protection for the innocent, but not chances of escape for the guilty. The power, therefore, of reversing a finding or of setting aside a trial was carefully guarded by ss. 426 and 439 of the Code of Criminal Procedure, by which it was enacted that " no finding or sentence passed by a Court of competent jurisdiction shall be reversed or altered, on appeal or revision, on account of any error or defect either in the charge or in the proceedings on the trial, * * « unless in the judgment of the Appellate Court the accused person shall have been prejudiced by such error or defect," and that "no trial, held in any Criminal Court, shall be set aside, and no judgment, passed by any (1) In Reg, v. Farler, 8 C. & P., 106, (2) In Rex, v. Jones, 2 Camp., 131. Elahi Bax, FULL BENCH RULIKGS. 475 Criminal Court, shall be reversed, either on appeal or otherwise, for igge any irregularity in the proceedings of the trial, unless such irregula- q^^^ rity have occasioned a failure of justice." The Code of Criminal Procedure provides that, if a person be con- victed on a trial by jury, the appeal shall be admissible only upon a matter of law. But it certainly is not against the principle, or even the letter of the Code, that the Court should have power to set aside a verdict of guilty, for an insufficient or defective summing up of the evidence, in a case in which, in their judgment, the verdict is not warranted by the evidence. If a verdict and conviction could not, under such circum- stances, be set aside, trial by a jury, in the Courts of Session in this country, would bs fraught with the most daugerous consequences. On the other hand, if every convict, against whom a verdict of guilty is pronounced by a jury, has a right to have that verdict set aside upon appeal, and to obtain his discharge, whenever it can be shown that the pre- siding Judge has not properly directed the jury as to the degree of weight which ought to be given to particular evidence, a wide door would be thrown open for the escape of guilty men, and the due administration of the criminal law of this country would be placed in the greatest jeopardy, in those districts to which trial by jury has been extended. A verdict of acquittal by a jury cannot be reversed, and ample protection is afforded to prisoners by allowing the High Court to reverse a verdict of guilty for any error or defect in the summing up, whenever the Court is of opinion that a failure of justice has been thereby occa- sioned. It has been suggested that the word "reverse " means to change to the contrary, and that to reverse a verdict of guilty is to change it into a verdict of not guilty, and that, although the Court, as a Court of Revision, may grant a new trial, as a Court of Appeal it has not power to do so. But I am of opinion that the word "reverse" is not used in so restricted a sense. The word " reverse," in ss. 419 and 426, is applicable not merely to findings or verdicts, but also to sentences ; and in s. 439 the same word is used with reference to judgments only. But if the word "reverse," when applied to a verdict, means, "to change or turn into the contrary," it must also mean the same when applied to judgments or sentences. Thus, a judgment of conviction must be turned into a judgment of acquittal. S. 420 shows that such was not the meaning of the word when applied to sentences, even if with- out that section it would have been possible to put such a construction upon it. The Court, upon revision, may grant a new trial (1). But the (1) Crim. Pro. Code, a. 405. Elaiii Bak. 476 I'ULL BENCH RULINGS. iggg person convicted caunot obtain a revisioa as a matter of right. I r~"^7^ ihiuk thttt the Court has as great a power in this respect on appeal, as it has on revision, and that it may set aside a verdict of guilty, and a conviction founded upon it, for any error in law, such as a misdirec- tion of the Judge in point of law, or an error or defect in the summing up of the evidence, or the improper rejection or admission of evidence : provided the Court is of opinion that the person convicted has been prejudiced by the error or defect, and that a failure of justice has been occasioned thereby. I am of opinion that the word " reverse " is used in its legal sense, and means " to make void," " to set aside," or " annul." The Legislature, when giving a power to a Court of Revision to order a new trial, may have thought it necessary to do so by express words, as a Court of Revision may act of its own motion and without any application or conseut of the person convicted, but an appeal must be preferred by the person convicted ; and it seems to follow that, if he asks to have a finding and conviction set aside for error in law, he cannot set up that conviction in bar of a second trial. That was the principle acted upon by the Judges in America, who held that a new trial might be granted in cases of felony notwithstand- ing the words in the Constitution, " nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," which words were interpreted by Mr. Justice Story to mean that " no person shall be tried a second time for the same offence, where a verdict has been given by jury." " I am aware," said Mr. Justice Kane, " that one of the most eminent of our jurists — Mr. Justice Story — has found an inhibition in the Constitution against the grant of new trials in cases involviug jeopardy of life. But I cannot realize the correctness of the interpretation which, anxious to secure a citizen against the injustice of a second conviction, requires him to suffer under the injustice of the first. Certainly, I would not subject the prisoner -to a second trial without his consent. If being capitally con- victed, he elects to undergo the sentence, it may be his right. When, however, he asks a second trial, it is to release himself from the jeopardy in which he is already, and it is no new jeopardy that he encounters when his prayer is granted, but the same divested of the imminent certainty of its fatal issue." The same distinction was noticed by other Judges between jeopardy incurred with the consent of a prisoner, and jeopardy incurred without that consent. If a new trial may be granted for error in law by a Court of Revision, even without the prisout-r's consent, can it be doubted that the same Court, FULL BENCH RULINGS. 477 as a Court of Appeal, may grant a new trial when an appeal is pre- iges ferred by a prisoner against a verdict and conviction ? It appears to Qokkn me that, in all cases in which finding of guilty is set aside upon elahi Bax. appeal, the Court, if it considers it necessary, may order a new trial. In some cases it may be necessary, for example, where evidence is improperly rejected, or where, for other reasons, the Appellate Court is. unable to form a correct opinion as to the guilt or innocence of the appellants. But when the finding and conviction are objected to upon the ground that the Judge did not properly direct the jury as to tha degree of weight which ought to be given to the evidence, it appears to me that this Court, sitting as an Appellate Court, is not necessarily bound to send the case back for a new trial. If the Court are of opinion that tha evidence could not, in any proper view of the case, support a conviction, it would be worse than useless to send the case back for a new trial, in order that a jury might have the opportunity of convicting upon such evidence under a proper summing up. S. 419 of the Code of Criminal Procedui-e allows the Appellate Court to alter or reverse the finding. It does not compel them to send tha case back for a new trial, in cases in which they see that it is useless, and may be injurious to do so. Regard for the prosecutor and witnesses forbids it ; the prisoner is amply protected by the section which prohi- bits an appeal from a judgment of acquittal, and a failure of justice is sufficiently guarded against by allowing the Court to order a new trial whenever, upon appeal, they are satisfied that there has been a failure of justice. It would tend to defeat, and not to promote justice, if a verdict of guilty were set aside, and a new trial granted, for a defective summing up with reference to the weight of evidence in a case in which the High Court would, upon the evidence given on the trial. Lave affirmed a conviction if, instead of a trial by jury, the trial Lad been before a Judge and assessors. In determining whether tha verdict ought to be set aside, and a new trial granted, for a defective summing up of the evidence, it appears to me that the question to be considered is not whether, upon a proper summing up of the whole evidence, a jury might possibly give a different verdict, but whether the legitimate eff'ect of the evidence would require a different ver- dict. If the evidence is such that the High Court would have affirmed the conviction if the trial had been before a Judge and assessors, I think that they ought not to set aside a verdict of guilty found by a jury, merely because the Judge has not, in summing up, given proper caution or advice to the jury as to the weight which 17 478 FULL BENCH RULINGS. 1866 tliey might properly give to the evidence. If a verdict is set aside for Queen Such a cause, upon the ground that the error of the Judge has caused a ElahiBax, failure of justice, and that the prisoner has been prejudiced thereby, it may be necessary in some cases to grant a new trial. But if the Court is satisfied that a failure of justice has been caused, and that the evidence is wholly insufficient to support any conviction against the prisoner, and would upon the same evidence have reversed a convic- tion if the case had been, tried without the intervention of a jury, there is no necessity, and I think it would be improper, to grant a new trial. In such a case, the Court having set aside the verdict, may order the prisoner to be discharged. (His Lordship commented on the evidence in the case, and pro- ceeded) : — The case should be returned to the Divisional Bench with an expres- sion of the opinion of the Full Bench : 1st, — That a conviction found upon the uncorroborated evidence of one or more accomplice or accomplices alone is valid in law. 2nd, — That, for the reasons above stated, there was error in law in the summing up of the evidence, which would warrant the Court in set- ting aside the verdict of guilty, if the Court is satisfied that the pri- soner was prejudiced by the error, and that there has been a failure of justice. 3rd, — -That the verdict and conviction ought not to be set aside, if the Court be of opinion that the verdict was warranted by the evidence, and that, upon that evidence, they would have upheld the conviction on appeal, if the trial had been by the Judge with the aid of assessors, instead of by jury, Eemp and Pheae, JJ,, concurred. Seton-Kaee, J. — I have previously read the exposition of the law by the learned Chief Justice with that attention which its full and exhaustive nature merits. There appears from this and from other cases to have existed soma slight doubts amongst us as to how the evidence of an accomplice or of two accomplices should be treated, and as to whether a conviction is legal, and ought to be affirmed, if founded on such evidence alone and uncorroborated. I have now, after full consideration, arrived, sub- stantially, at most of the same conclusions as the Chief Justice. I may observe, however, that on such questions we do quite right to search for information, guidance, and aid in the decisions of the FULL BENCH RULINGS. 479 highest judicial authorities in English as well as in American law books. 1866 But, as was remarked by Campbell, J., in a late case, I may take Queen the liberty of doubting whether dicta of English law, or even the ElahiBax. most elaborate English decisions, are imperatively to rule us on all points in the discharge of the Appellate Criminal Jurisdiction of this High Court. It is almost superfluous to observe that we deal hero with a state of society very different from any European society, and we must apply the law either of particular statutes, or that which is best suited to the people. We are not necessarily to be guided by English law on all points. The substantive criminal law of the Penal Code is unquestionably different from English criminal law. On tha other hand, I would observe that the utmost that the old Sudder decisions established is, to my thinking, that it was a rule of practice, i-ather than an established rule of law with Sudder Judges, not to convict on the uncorroborated testimony of accomplices. In this country such a rule may practically, in many cases, be a sound rule, though it is easy to conceive some cases in which there could be no reason why a conviction should not ensue on the uncorroborated evidence of an accomplice. I think it unnecessary, after a citation of so many high authorities by the Chief Justice, after his full statement of the particular casa before us, and after his general remarks, with many of which I entirely agree, to do mora than state my own conclusions, I trust that tha law on this important subject may henceforth be, in a great measure, settled. Some of the cases quoted, especially that in which Lord Abinger delivered judgment, were referred to by me on a very recent occasion. — The consideration, then, which I have given to this subject, has enabled me to arrive at the following conclusions: — 1st, — A conviction upon the uncorroborated evidence of an accomplice is legal, and failure in corroboration of the same is not a ground for refusing to convict, or for reversal of conviction. 2n(^,— Judges, for all that, ought to be most careful in this country to direct juries that the evidence of accomplices should be received with caution, and that, if possible, corroboration should be required. Tha extent of such corroboration should be matter for the jury. Incases tried by assessors and open to appeal on the facts, the Judge should himself, I think, act on the same principle. Zrd, — A new trial can be granted, if necessary, by a Bench of the High Court, sitting as well in appeal as on revision. In a late case 480 FULL BENCH RULINGS. jggg Kemp, J., aud myself, in this view, ordered a new trial on an appeal Queen f^'om a conviction by a jury. ElahiBax ^^^' — ^'^ '^^ ^'"'^^ ^^^ referred to us, the failure of the Judge to direct the particular attention of the jury to the nature of the evidence of the accomplices, did amount to an error in law ; and the Divisonal Bench mny deal with the case accordingly. 5tk, — Convictions ought not to be reversed, nor should new trials be granted, unless the accused has been really prejudiced within the meaning and scope of s. 426 of the Code of Criminal Procedui-e. Jackson, J. — Upon the pure legal point before us, I agree in the conclusions at which the Chief Justice has arrived, and generally in the reasons which he has stated. I think it must be admitted that a conviction by a jury upon the uncorroborated testimony of an accomplice is good in law. 1st, — Because the accomplice is a competent witness, even though he may have been previously convicted of an offence (1), and because a single witness, if entitled to full credit, is suflGlcient, except in cases of treason, to prove any fact, unless there be a rule or practice in our Courts that requires corroborative evidence in support of his testimony. 2nd, — Because cases are conceivable in which the accomplice would be thoroughly credible. 3rd, — Because there is no such established rule or practice as is referred to in the latter part of the section just cited. There can be no doubt that the Chief Justice has indicated how it is that we have no such rule. Tiiis cama about, first, because for many years exclusively, and until quite recent times, in a large proportion of cases, the procedure in criminal trials was governed by Mahomedan law, and the rules taken from that law and applied to particular cases were never accurately defined aud laid down for general adoption ; second, because the finality of tlie verdict of a jury has only arisen under the Code of Criminal Procedure, and the Judges of the late Sudder Court, or Nizumut Adawlufc, being supreme judges of fact as well as of law in criminal trials, were not under the necessity of dis- criminating between what was legally insufficient and what their judg. ment refused to accept. This being so, in the vacancy, as it were, of any rule upon the subject, we ought probably to adopt on the Appellate Side of this Court the same principles of evidence which are recognized in the exercise of Original Jurisdiction. At any rate, we aie not at (1) Act XIX of 1837 ; Act 11 of 1855, s. 28. FULL BENCH RULINGS. 481 18G6 V, Elahi Bax. liberty to adopt any principle of exclusion which is not admitted tiiere, and has not the sanction of ancient practice in the late Nizamut quebn Adawlut. And although I sliould fully adhere, as a Judge of fact, to the principle which I stated iu the case of Dwarka (I), who was tried by a Judge with assessors, and which iu tliat case had the concurrence of Kemp and Seton-Karr, JJ., yet, as matter of law, I am bound to say that a conviction by a jury founded upon the evidence of an accomplice without corroboration is not invalid. But before the jury can deliver any finding upon a charge, they must have the evidence on both sides summed up to them by the Judge, and this function, also called his " direction to the j ury " (s, 379, Code of Criminal Pro- cedure) must bo fully, discreetly, and conscientiously performed. A statement of the direction is to form ptirt of the record, and a report of it forms part of the matter for this Court's consideration when it acts as a Court of Revision. There can be no doubt but that an erroneous direction to the jury, where such direction has caused a failure of justice, is a ground for setting aside the verdict, and for either discharging the prisoner or ordering a new trial, as the circum- stances of the case may require. And I am not acquainted with any kind of error which is more important in criminal (rials tban a direction which misleads or omits to guide the jury as to the nature or the weight of evidence. I thinli it immaterial for the purposes of the present decision, whether the word " reverse," in the 419th and 420th section of the Criminal Procedure Code, means simply to " turn to the contrary," as in the natural sense, or " to make void," which is, no doubt, a legal interpre- tation, as convictions before a jury can only come up in appeal to this Court, as this Court under its powers of revision can order a new trial and can exert those powers upon hearing an appeal as well as on other occasions. Upon the duty of a Judge in summing up I need not add any- thing to what has been said by the Chief Justice. But upon the necessity for that duty being carefully performed, and upon the special danger of relying on approvers' testimony in this country, I think it right to say that which my official experience has suggested. It is not too much to say that native juries in the mofussil are generally quite incapable of appreciating evidence unaided, when the question before them is at aU critical. On the one hand, they readily, and even greedily, (1) 5 W. K,, Cr., 18, 482 FULL BENCH RULINGS. 1866 listen to positive assertions regarding the guilt or innocence of the QuEKN prisoner, frequently witliGut discriminating between that which the Elahi Bax. witness declares of his own knowledge and that which is pure hearsay. On the other hand, they commonly disregard circumstantial evidence, though it be of the strongest and most trustworthy character. And though it may come out in cross-examination that the statement is hearsay, though it may even be appai'ent at ouce, and the words might not be taken down, yet they have been heard by the j ury, and the impres- sion is made, and though the facts which constitute circumstantial evidence be well put together and their effect be obvious to the trained judicial mind, they will seem of little importance to the ignorant juror. With these proclivities the native juror plainly stands in need of intelligent guidance, and without that guidance, will, in difficult cases, often go entirely wrong. It is remarkable, too, as it is notorious, that the jurors are, as a rule, decidedly less intelligent, as well as less instructed, than the persons employed as assessors in criminal trials, and yet, by a strange anomaly of modern law, the verdict of the ignorant, inexperienced, unsworn jury, is final upon facts; while upon facts not only are the assessors overruled by the Judge, but the opinions of Judge and assessors together may be set aside by the Appellate Court. And then as to testimony : — I feel bound to say, after many years of conversance with Courts of Justice of India, that veracity is not regarded in this country as it is in the countries of Western Europe. Whether this be due to wilful falsehood, to imperfect memory, to inexact conditions of mind, to fear, or to all these causes combined, I am not called upon at present to enquire. I need only say that the care with which wit- nesses must be watched, and the deductions which have to be made from their credit, are much greater than in England. It must in fair- ness be remembered that, as witnesses, we have to do almost universally with the meaner classes ; that the respectable native avoids being made a witness, as we should shun the small-pox, and that witnesses, therefore, are scarcely a fair sample of the population. But the fact remains : and when the witness is, moreover, a person stained, by his own con- fession, with the commission of atrocious crimes, most of all, where to the desperate ruffianism of the dacoit he adds the depravity of the retained approver, can the unsupported word of such a person be a safe ground on which to convict any prisoner ? I need not say that this, (and not the unlucky gentleman who, in a moment of irritation, has committed an act of violence), is the kind of approver, or accomplice, whom we have in view when we speak of approvers' testimony. FULL BENCH RULINGS. 483 1886 The other case is of extremely rare occurrence — this of every ^^7' QOEEN Now, when in the course of a long trial in which many persons are elahi'bax on their defence, there is against particular prisoners only the kind of evidence we are speaking of, and the Judge in his direction, instead of pointing out the defect and warning the jury against the danger, actually throws a veil over that nakedness, and disguises the danger by the use of general words to the effect that " the tendency of the evi- dence is to establish the prisoner's guilt," in such a case can it be doubted that the Judge has greatly miscarried, that the jury have been wrongly directed, and that the prisoner has been seriously prejudiced ? I think not, and I am sure that the nature of both witness and juror, the finality of, and absence of sanction to, the verdict, make it even more incumbent on the Judge in this country, than it is in Eugland, to perform with care and fidelity the office of direction. I have heard it said that if the jury go wrong, it does not very greatly matter ; the prisoner can be pardoned. No doubt he can, and there may be persons so constituted as to find this a satisfactory assurance. It is not so to me. No doubt, after an improper conviction has taken place, when the matter can be properly represented through the proper channel, when the head of the Government can be communicated with at.Darjeeling or at Simla, the convict may, after weeks or months of unmerited suffering, receive a free pardon for an offence of which he ought never to have been found guilty. For my part, I should prefer to be tried by a careful and regular administration of justice. The Chief Justice has pointed out that the prisoner is not in every case of misdirection entitled to a new trial, and there has been some apprehension expressed that the admission of the principle we are laying down may open a door to the escape of criminals, merely by reason of some shortcoming of the Judge in point of form. But it seems to me that the simple test, "Has tliere been a failure of jusiice?" may be applied in most cases with perfect ease and perfect safety. In regard to the proposed rule, that we should not interfere in case of misdirection where the facts are such that, if the trial had been held before a Judge and assessors, we should have affirmed the sentence, I have only one misgiving. It is not always safe, I might say it is rarely safe, for an Appellate Court with papers before it, to put itself in the place of the Court below which has heard the witnesses ; and it might be that, in affirming the conviction on the faith of some unnoticed circumstance of corroboration, found in the evidence, we might be 484 I''ULL BENCH RULINGS, iggg using that which the Judge and jury would not have relied upon. Queen But this, perhaps, only suggests caution in the application of the rule Elahi Bax. ''"'''^^'" ^^^^ ^^ objection to the rule itself. With these observations, therefore, I concur both in the judgment on the general point, and in the course which it is proposed to take with the particular case before us. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice Campbell, and Mr, Justice Macpherson. 18S6 In the matter op the Petition of BISSUMBHUE SHAHA.* June 20. Sentence — Mitigation of Sentence — Criminal Procedure Code (.Act XXV of 1861), ss. 405, 428. The High Court can, under S3. 405 and 428 of the Criminal Procedure Code, mitigate a sentence passed by a Magistrate and contirnied or altered on appeal by the Sessions Judge, on the ground that the sentence was excessive (1). The petiiioner in this case, a landowner, was convicted of riot and Louse-trespass for entering the premises of his tenant with his retainers nnd dragging him out by force, and was sentenced by the Joint Magistrate to two years' rigorous imprisonment and a fine of five hun- dred rupees, and, in default of payment, to six months' rigorous imprison- ment in addition. The sentence was upheld by the Sessions Judge on appeal. Mr. Doyne (with him Baboo Olool Chunder MooTierjee) for the petiiioner. , The junior Government Pleader (Baboo Jugodanund Mookerjee) contra. Mr. Doyne applied to the High Court (Macpherson and Seton- Kake, JJ.) to reduce the sentence on the ground that it was excessive. It was not alleged that there was any defect in law in the conviction. Mr. Doyne contended that the High Court had the power to reduce the sentence. The Judges were of the same opinion, but, as it had been ruled otherwise in The Queen v. liamdhone Mundul (2), they referred the following question to a Full Bench : * Criminal Miscellaneous Case from an order of the Sessions Judge of Baokergunge. (I) See Act X of 1872, s. 297. (2) 4 W. R, Cr, R,, 15. FULL BENCH RULINGS. 485 *' Has tliis Court power to mitigate, on the ground of its being exces- i865 sive, a sentence passed by a Magistrate and confirmed on appeal by tiie lu the Sessions Judge, or a sentence passed on appeal by the Sessions Judge t^e petition altering a sentence passed by a Magistrate?" ""^ Bissdm- BHUR ShAHA. The following judgments were delivered : — Peacock, C.J. (Kemp, J., concurring). — I do not think that there is any doubt in this case, when wa read ss. 405 and 428 of the Code of Criminal Procedure together. There might have been some doubt if s. 405 stood alone. It says, — " It shall be lawful for the Sudder Court to call for and examine the record of any case tried by any Court of Session." The words " any case tried by any Court of Session " might mean only a case tried by a Court of Session in (he exercise of original jurisdiction. But when we read s. 428, all doubt is removed. It says,' — " except aa provided in s. 405 of this Act, sentences and orders passed by an Appellate Court upon appeal shall be final." When the Legislature refers to s. 405, we must construe the Act as meaning s. 405, and not s. 404. If " s. 404 " is in the original record of the Act, and " s. 405 " is merely an error of the printer, the case would be different, but we do not think it likely that the words " s. 405" are a misprint. We have not the original record here to compare it with the print. Then if we read "405" as the section referred to in s. 428, s. 428 shows that the Court, under s. 405, may be an Appellate Court. If so, then the words "tried by any Court of Session" must mean a Court of Session sitting either as a Court of original or as a Court of appellate jurisdiction, and the case becomes perfectly clear. If we look to the reason of the thing, I think it quite right and just that s. 405 should be read with the interpretation which I have put upon it. Suppose a man should be indicted before the Sessions Court for house-trespass in order to commit theft, under s. 451 of the Penal Code, and that it should be proved that he was a starving man in Cuttack or Pooree who was passing by a godown where there was rice, and that he went in and stole a handful. He would be guilty of house- trespass for the purpose of committing theft, and would be liable to imprisonment for seven years and also to fine. Suppose the Sessions Judge should try him and sentence him for such an offence as that to three years' rigorous imprisonment, this Court could call for the record and set the matter right by mitigating the sentence. But 18 486 FULL BENCH EULINGS. 1868 suppose anotlier man were tried for a similar offence committed under In the similar circumstances not by the Court of Session, but by a subordinate THE Petition Magistrate of the first class (as he might be) and should be sentenced ehubShaha. '" seven years' rigorous imprisonmen-t and to fine, and the Sessions Judge, on appeal, should mitigate the sentence by omitting the fine and leaving the seven years' rigorous imprisonment. If this Court could not interfere ia the latter case, this consequence would follow, that the Court could mitigate a similar three years' rigorous imprison- ment passed by a Court of Session as a Court of original jurisdiction, but that it could not mitigate a sentence of seven years' rigorous impri- sonment allowed by a Court of Session on appeal to stand for a similar offence. I think it very reasonable that whenever this Court is satis- fied that a sentence is wrong in point of law, or is too severe for the offence proved, it should have the power of setting that sentence right. It could not do so upon appeal in a case tried originally by a lower Court and appealed to the Sessions Court. But I think that the Legis- lature intended that the highest Court should have the power to grant relief in a case in which a sentence afiirmed by a Court of Session sitting as an Appellate Court, or altered by that Court on appeal, and therefore substantially passed by them, is either contrary to law, or improper as being too severe. In a case heard by a Sessions Court in appeal, the relief cannot be obtained as a matter of course, but the High Court must have such a case made out as to induce it to call for and examine the record. Seton-Kaer, J. — I wish to add nothing to what has fallen from the learned Chief Justice, with whom I entirely concur, except that I always entertained doubt which I expressed in the ease of Ramdhone Mundul (1) adversely to the opinion of my colleagues, that I still enter- tained those doubts when I referred the case to a Full Bench with Macpherson, J., and that I am confirmed in the opinion I entertained on both occasions after hearing the arguments on both sides to-day, which have converted those doubts into certainties. Campbell, J. — ^I also concur. I had a good deal of doubt in the case. It did not appear to me altogether so clear as it has been now put by the learned Chief Justice ; still, on the whole, I agree in the opinion expressed by my learned colleagues. Taking s. 403 alone, I should have been inclined to consider that the words " tried by any Court of Session " refer to the Court (1) 4 W. K,, Cr, E., 15. FULL BENCH RULINGS. 487 sitting ns a Court of original jurisdiction, because looking at Clmp- 1866 ter 25, there throughout, the word "trial" is used as referring to the jj, the proceedings in the Court of original jurisdiction, and to that kind of theVetition trial only. But as I think that the section admits of doubt, it may be °^ Bissum- ' ' •' BHUR ShAHA. construed by a reference to other sections. S. 428 is clearly inconsistent with the construction that s. 405 is restricted to trials by Courts of Session in original jurisdiction. At the same time I should like to point out that, in any construc- tion, there is some inconsistency in this part of the Code, because where a subordinate Magistrate has passed a sentence which has been appealed to the Magistrate of the district, and the Magistrate of the district, in deciding that appeal has committed, it may be a gross illegality, in that case, under s. 404, this Court has the power to set the matter right as respects the point of law, whereas s. 428 would seem to provide that sentences or orders of an Appellate Court shall be final, except as provided in s. 405, making no reference to s, 404. There, it seems to me, must necessarily be some contradiction. But because there is one inconsistency, that is no reason why we must also make another, and as I am not satisfied that in s. 428 the figure " 405 " is a misprint or mistake for "404," I think we must consider that " s. 405 " refers to the proceedings of an Appellate Court, vie., Court of Session, and that this Court has the power to interfere, as regards the decisions of a Court of Session sitting as an Appellate Court for the trial of criminal cases, to the full extent provided by s. 405. Macphekson, J. — I remain of the same opinion as that which I have already expressed. Whatever incousistencies there may be in the provisions of the Criminal Procedure Code, I think that, reading ss. 405 and 428 together, it is impossible to come to any other conclusion than that which has been arrived at to-day. 48S FULL BENCH RULINGS, Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Norman, Mr, Justice Kemp, Mr. Justice Seton-Karr, and Mr. Justice Campbell. 1866 THE QTJBEN v. RAMCHARAN KAIRI and anothek (Appellants).* Ja/y 9. Penal Code (,Aet XL V of 1860), ss. 380, 456, i&l— Lurking House-Trespass — Theft. The prisoner was c'onvicted by the Magistrate of two separate offences under ss. 456 and 380 of the Penal Code, and sentenced for both. On appeal the Sessions Judge, holding that the offence proved was under s. 457, ordered a new trial for offences under ss. 457 and 380. Jleld, that there ought not to be a new trial, but that the conviction and sentence under s. 380 should be set aside. In this ease the prisoner was convicted by the Magistrate of lurking house-trespass by night and also of theft as two separate offences, and sentenced for both. On appeal, the Sessions Judge found that the prisoner was not guilty of two offences, but of the offence of lurking house-trespass by night with intent to commit theft. The Sessions Judge set aside the convic- tion, and returned the case to the Magistrate to frame charges under ss. 457 and 380 of the Penal Code, with a direction that the prisoner should be retried. The Sessions Judge having afterwards found that his order was opposed to the ruling in The Queen v. Ichabur Dobey (1), sent it up to the High Court, in order that it might be quashed by the Court as a Court of Eevision. Tl»e case was heard by Norman and Campbell, JJ. Campbell, J., passed the following order : — This Court having sevei'al times ruled that it is illegal to convict and punish a house- breaker who also commits theft, for the separate offences of house- breaking and theft, the Judge's view of the law is correct. But his order questioning the proceedings of the Deputy Magistrate, and ordering a new trial, whereby the appellants are subjected to the peril of a still more severe sentence, seems to be beyond his power. The sentences both of the Deputy Magistrate and of the Judge are set aside as illegal. The Deputy Magistrate will again proceed to deal with the case upon the evidence recorded by him, and if he considers that the offence, when properly charged under s. 457, requires a * Reference from the Sessions Judge of Gya, dated the 7th February, 1866. (1) 4-W.R., Cr. Kal.,11. rUhh BENCH RULINGS. 489 punishment more severe than he can iuflict, he should commit the 1866 prisoners to the Sessions. Queen V. NoEMAN, J., ordered that the case be sent before a Full Bench. Eamcharan Kaiki. The following judgments were delivered; — Peacock, C. J. (after stating the facts). — We think that the Sessions Judge was wrong in sending the case back to be retried on tlie two charges mentioned in his order. The prisoner clearly could not be retried under s. 380, as he had already been tried, convicted, and sentenced under that section, as the Sessions Judge says, and properly says under the facts found by him erroneously. We think that the Sessions Judge was wrong in ordering the prisoner to be retried under s. 457, the prisoner having been already convicted and sentenced under s. 456. We think that the Sessions Judge ought to have set aside the conviction and sentence under s. 380, the con- viction and sentence under s. 456 would then have remained. The prisoner appealed upon the ground that he was not guilty of nn oflfence under s. 456. Upon that appeal the Sessions Judge could not set aside the conviction under s. 456, upon the ground that he was guilty under s. 457. If he was guilty of lurking house- trespass by night with intent to commit theft, under s. 457, he was guilty of lurking' house-trespass by night. Having been tried and convicted of the minor offence, the Sessions Judge could not, upon the appeal of the prisoner, set aside the conviction in order that he might be tried and punished for the aggravated offence under s. 457. The Judge's order should be altered accordingly, the effect of which will be that the sentence under s. 456 will stand, and the conviction and sentence under s. 380 will be reversed. The Magistrate should be cautioned to be more careful in future, and not to split up one single aggravated offence into separate minor offences. As regards the prisoner who has not appealed, he may have the benefit of a similar order by this Court as a Court of Revision. The case will go back to the Division Bench. Kemp, Seton-Kabr, and Campbell, JJ., concurred. NoEMAN, J. — I concur, though not without some doubts whether the ' Sessions Judge's order directing that the prisoner should be tried under s. 457 is not correct, whether we might have treated the splitting of the charge as an error in law justifying the Judge in revei'sing the whole sentence of the Magistrate. 490 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Fundtt, and: Mr. Justice Macpherson. 18G6 ISWAR CHANDRA DAS (Defendakt) v. NITTIANAND DAS ^"g- ^^- (PEAINTirf).* Enhancement of Rent — Forged Mohurrari Pottah — Dishonest Defence. In a suit for enhancement of rent, the ryot, defendant, set up a moknrrari pottah, which was foimd to be forged. Held, that the fact of the ryot having relied on a pottah which was found to be forged did: not entitle the landlord to a decree for enhancement of rent to the amount claimed (1). In this case the defendant, having relied upon a pottah which was found to be false, was not allowed by Teevoe and Campbell, JJ., before whom the case came on special appeal, to fall back upon the plea tliat he had been paying uniformly for more than twenty years, and was, therefore, entitled to the presumption under s. 4 of Act X of 1859. The case was remanded to try what rate of rent was fair and equitable. The Court below decreed the claim of enhancement, as brought by the plaintiff, without trying whether the rates demanded were fair and equitable. The ground upon which the lower Court proceeded was that the defendant set up a pottah whieh was afterwards found to be forged ; and, therefore, was not entitled to enquiry as to the proper rates. On special appeal, Batlet and Pundit, JJ., considered that there was no reason for refusing to try whether the rents claimed against the defendant by the plaintiff were fair and equitable, because the pottah which the defendant produced had been found to be forged. As, how- ever, there was a conflict of decision between the case oi Nobin Chunder Sircar v. Shama Soonderee Dabee (2) and the case of Gooroodoss V. Onotu Dhur (3), the case was referred to a Full Bench. The defendant also objected to the ruling of Teevoe and Campbell, JJ., * Special Appeal, No. 2461 of 1865, from a decision of the^udge of Jessore, dated the 6th Jmie 1865, affirming a decree of the Deputy Collector of that district, dated the 4th August 1864. (1) As to the effect of dishonest defences, Chandra Bose v. Kalihrisna Ealdar, post, and deciding cases upon suspicion, see Ranee p. 538 ; Feaz Box Chowdhry v. Fakiruddin Snrnomoyee v. Maharajah Suteeschunder Mahomed Ahasan Chowdhry, 9 'B.li,U.,i66. Roy Bahadur, 10 Moo. I. A., 123 ; Sreeman- (2) 31st March 1864, per Steer and Kemp, chunder Dey v. Gopaulchwnder Chuckerbutiy, JJ., Cases selected by Board of Kevenue, 11 M.OO.I. A,, 28; Pattaihiramier V. Ven- Vol. II, p. 58. catarow Naickeen, 7 B. L, R., 136 ; Girish (3) 1 W. K., 106. FULL BENCH RULINGS. 491 but the Court held that any objectioa to the order of the other igge Divisional Bench could be taken only by way of an application for Iswab review before that bench. Das The opinion of the Full Bench was delivered by Nittianahd Peacock, C.J. — This appeal must be decreed, and the case remanded to the Collector to try what are the fair and equitable rates with' reference to the grounds of enhancement. It is quite clear that if a ryot sets up a mokurrari pottah as an answer to the landlord's claim to enhance his rent, and the ryot fails to prove the pottah, or the pottah produced by him is held to be forged, the landlord is not necessarily entitled to enhance the rent to the full amount claimed : he is entitled only to a fair and equitable rate, having regard to the grounds of enhance- ment. If it were otherwise, a landlord might claim to enhance his rent to a crore of rupees for a biga of land, and if the tenant should set up a pottah which should be held to be a forgery, the landlord would be entitled lo enhance to the amount claimed. A ryot might purchase a holding or come to one by descent, and might receive with the land a mokurrari pottah, and, believing it to be genuine, might set it up as an answer to a claim to enhance his rent. It would be very unjust, under such circumstances, to hold that his rent might be enhanced to the amount claimed by the landowner, however exorbitant it might be. But even if a ryot sets up a mokurrari pottah, which he knows to be forged, he is liable to be punished crirainally for using as genuine a document which he knows to be false. But it does not entitle the landowner to enhance the rent beyond a rate which is fair and equitable. The crime of tlie ryot cannot entitle the landowner to more than his just right. We concur with the Judges who referred the case, and are of opinion that the judgment of the 31st March 1864 cannot be upheld. 492 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S, Jackson, and Mr. Justice Macpherson. 1866 RAM SAHAI SING (Judgment-debtoe) v. SHEO SAHI SING (Decree- ^"y- ^^- HOLDEE).* GURUDAS AKHULI (Decree-holder) ». GOBIN NAIK ahd others (JuDGMENT-DEBIOES).t Act XIV of 1859, s. 20 — Proceeding to enforce Judgment — Limitation — Execution of Decree— Act VIII of 1859, ss. 207, 216— Striking off. No proceeding will be effectual to keep alive a judgment, decree or order within the ■meaning of s. 20, Act XIV of 1859, unless it be hon&fide. The word " proceeding" in that section includes any honi fide application, or the last act done by the party, by the Court, or by the officer of the Court in furtherance of such application ; hence it includes the issue by the Court of a notice under s. 216 of the Civil Procedure Code and the service of it by the officer of the Court : but the mere pendency of an execution case struck off the file for want of prosecution, or the striking such case off the file, is not a proceeding within the meaning of the section (1). Case No. 778 of 1865. — In this case, the following question wtis referred by L. S. Jackson and Glover, JJ., to a Full Bench, on 5th March 1866. "Whether the notice, which is required by s. 216, Civil Procedure Code, to issue when application is made to execute a decree more than a year after its date, or against the heir or representative of an original party* to the suit, is a proceeding within the terms of s. 20 of the Limitation Act (XIV of 1859) (2), to enforce the decree, or to keep it in force." * Summary Special Appeal, No. 778 of 1865, from an order of the Judge of Bhagulpore, dated the 31st August 1865, reversing an order of the Principal Sudder Ameen of that district, dated the 10th July 1865. t Summary Special Appeal, No. 347 of 18S6, from an order of the Judge of West Burdwan, dated the 3rd March 1866, affirming an order of the Moonsiff of Benjra, dated the 31st August 1865. (1) See the new Limitation Act (IX of Eoy Bahadoor v. Mudhomotee DaUa, H 1871), Second Schedule, Third Division, B. L. E., 23. No. 167, which omits the word " proceed- (2) Act XIV of 1859, b. 20.—" No process ing," andallows execution within three years of execution shall issue from any Court, not from " the date of applying to the Court to established by Eoyal Charter, to enforce any enforce, or order, or keep in force, the decree judgment, decree or order of such Court, or order" or from "the date of issuing a unless some proceeding shall have been notice under the Code of Civil Procedure, taken to enforce such judgment, decree or s. 216," Ac. order, to keep the same in force within three See also Buldeo Narayan v. Scrymgeow, years next preceding the application for 6 B, L, S,, 611 i and Roy Dhunput Sing such execution." FULL BENCH RULINGS. 493 Case No. 347 of 1 866.— In this case the decree-holder attached certain iggg property belonging to the debtor on the 28th March 1862, and the EamSahai execution-case continued on the file till 28lh June of the same year, ^'J"* when it was struck off. On I7th May 1865, the decree-holder made a ^^^° S-^"' tresli application for execution, but on appeal the Judge held him to be barred by the law of limitation, considering that time began to run Akhuu against him from the date on which he had taken some proceeding in Gobik'naik. the case, viz., 28th March 1862, and not the date on which the case was struck off the file, i>i«., 28th June 1862. The following question was referred to a Full Bench by Loch and Macpherson, J J., on 31st July 1866 :— " Whether the period of limitation is to run from the date on which the decree-holder last did something to keep his decree alive, or whether, when nothing has been done, the decree-holder may have a new start from the time when the case was struck off the file." The questions in both cases were argued together. In case No. 778, Baboos Unoda Pershad Banerjee and Kali- prosonolDuti for the appellant. Baboos Anukul Chandra Mookerjee and Kali Kissen Sein for the respondent. In case No. 347, Baboo Kissen Succa Mookerjee for the appellant. Baboo Mohendro Loll Shome for the respondent. The following judgments were delivered : Peacock, C.J. — The answer to the questions stated for the opinion of a Full Bench depends upon the proper construction of the words " unless some proceeding shall have been taken to enforce such judgment, decree or order" in s. 20, Act XIV of 1859. It was contended, in the course of the argument, that the words " unless some proceeding shall have been taken" mean unless some warrant for execution shall have been issued. It is clear, however, that that is not the meaning of the words. S. 20 begins "no process of execution shall issue," whereas s. 19 commences with the words "no proceeding shall be taken," which shows that the Legislature did not consider the words "process of execution" and "proceeding to enforce such judgment" to be synonymous. The words used in s. 20, after the word "unless," are nearly the same as those used in the commencement of b. 19. The two sections are passed upon a different principle. S. 19 enacts, that " no proceeding 19 494 FULL BENCH RULINGS. jggg shall be taken to enforce any judgment, &c., but within twelve years Ram Sahai "^xt after a present right to enforce the same has accrued, &c., unless, &c." ^™° But according to the literal wording of s. 20 no process of execution SheoSahi could ever issue to enforce a iudgment, even within a week from Sing. j o > ^ . i the date of it, unless some proceeding was taken to enforce it, or keep Akhuli it in force within three years next before the application for execution. GoEiN Naik, '^^^ meaning of the section was doubtless to prevent process of execution being issued on a judgment, decree or order of a Court not established by Eoyal Charter after the expiration of three years from the date of it, unless some proceeding to enforce it, or keep it in force, should have been taken within three years next before the application for execution. We think that the words " some proceeding" in s. 20 include applications for execution bona fide made under s. 207 of the Code of Civil Procedure, and all acts done either by the Court, or by an officer of the Court, or by the hona fide applicant, for enforcing the decree or keeping it in force. For instance, if a decree or order of Court were more than one year old, an application made to the Court for execution would be a proceeding to enforce the decree, although it would be necessary to issue a notice to the judgment-debtor, or his representatives, to show cause why execution should not issue against him ; so also the service of such notice, if made bona fide : so also the issue of a process of execution ; or the execution of such process : these would all be proceedings ; but no proceeding would be eflfectual within the meaniug of s. 20 unless it were bond fide. If the party were to make an application to the Court for execution, and should neglect to lodge the necessary talabana, his neglect would be evidence from which the Court upon a subsequent application for execution, would have to decide whether the former application was bona fide or merely colorable for the purpose of keeping the decree alive. In all these cases the Court to which the application for execution is made must decide whether the former applicutiou, which is relied upon, was bona fide or not. We cannot lay it down as a rule of law that an application made without lodging talabana would not be a bona fide application, for it miglit be that immediately after the making of the application the defendant might die, and it might be necessary instead of lodging the talabana to make a fresh application for execu- tion against his heir-at-law. The Judges who referred the question in No. 778 appear to be riglit in considering that, in cases falling within s. 216 of the Code of Civil Procedure, the judgment-creditor should apply for the execution of the decree, and not for the issue of a notice, and that it FULL BENCH RULINGS. 495 is the duty of the Court to issue the notice. But ia such case the iggg application for execution, upon which a notice is issued, is just as much eam Sahai a proceeding to enforce the decree, as an application for execution of ^^^^ a decree not a year old in which a warrant is issued. The application Sheo Sahi in either case is a proceeding. It also appears to us that issue of the notice by the Court is a Akhuli proceeding, and that the service of the notice by the officer of the Court Gobin Naik. is a proceeding. The latter is as much a proceeding as a levying of part of the amount under an attachment in a case in which there are not sufficient assets of tlie debtor to satisfy the decree in full. If a question arises on any subsequent application from what period the three years will date, it will date from the last of the proceedings, either a bond fide application, or the last act done by the party, by the Court or by the officer of the Court in furtherance of the application. That disposes of the appeal No. 778 of 1865. As to appeal No. 347 of 1866, we think that the mere pendency of proceedings struck off the file for want of prosecution is not the taking of a proceeding. There must be some application made, or some act done, to enforce the decree, or to keep it in force, to constitute a proceeding. The striking an execution-case off the file is clearly not a proceeding for the purpose of enforcing the decree. In such a case, there- fore, the time would date from the period when the application was first made, or when the last bona fide act was done in furtherance of the application. From that time the period of three years mentioned in Act XIV of 1859 would count. We think that, in No. 778, the appeal should be dismissed without costs ; and in No. 347 the appeal should be dismissed with costs. Trevor, Loch, and Macpheeson, JJ., concun-ed. Jackson, J. — It is not necessary that I should attempt to add anything either to the judgment or the reasons which have been stated by the Chief Justice. But as I was one of the Judges who referred the case No. 778 of 1865, and as I then inclined to the opinion that the service of i^, notice might not be a sufficient proceeding to keep the decree in force, I think it right to state that I entirely concur in the judgment which has now been delivered. The principle which the Court has adopted in the present case both obviates the doubts and difficulties which I felt on that occasion, and also lays down a safe and intelligible rule for the guidance of the Courts below. I observed that the issue of notice under s. 216 was not so much the act of the decree-holder as that of the Court. That perhaps 496 FULL BENCH RULINGS. 186S is quite true. But it is neverthelesa the case that the issue of notice, Eam Saiiai although not the direct act of the party, springs from his application ; ^'^^° it is a legitimate consequence of his application. And the issue of a Sheo Sahi notice under the section cited, and the obtaining of an order to execute Sing. ' . . , the decree thereon, would afford an extremely good criterion of the Gdrddas Akhuh bona Jides of his application. GoEiN Naik. ^^^ these reasons 1 entirely concur in the judgment. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. 1866 GREDHAEI LAL EOT (Defendant) v. SUNDAR BIBI and others ^"g- 21- (Plaintlffs).* Appeal — Costs — Act VllI of 1859, ss. 187, 189, 193, 196 — Discretion, Exercise of. Held (Macpheeson, J., doubting), an appeal will lie on a mere question of costs. This case was referred to a Full Bench by Kemp and Seton-Karr, JJ. The point referred was — Whether there is or is not a right of appeal on a questiou of costs merely. The Judge of the lower Appellate Court, quoting the ruling of the High Court in The Collector of Dacca v. Kumalakant Mookerjee (1), said, that there was no appeal to him, and that he could not interfere. The learned Judges who referred the case doubted the correctness of this ruling, and finding a conflict of decision between that case and the rulings in Hureehur Mookerjee v. Abdool Huq Kazee (2), and the Government v. Maharaja Muhatah Chund Bahadoor (3), referred the case, remarking tliat the view taken in tliese latter rulings appeared to be that a right of appeal is not barred, though any interference with the order of the first Court as to costs should be exercised with discretion and for good cause shown. Baboos Kali Prasanna Diitt, Kissen Dyal Roy, and Shashi Bhusan Sein for the appellant. The respondent was not represented. * Special Appeal, No. 473 of 1866, from a decree of the Judge of Eungpore, dated the 22nd December 1865, affirming a decree of the Principal Sadder Ameen of t)iat District, dated the 9th June 1865. (1) 2 W. E., 33. (3) 3 W. E., 109. (2) 1 W. E,, 97. FULL BENCH RULINGS. 497 The following judgments were delivered : — 1866 SUNDAK BiBI. Peacock, C. J. (after stating the question and the remarks of the I'lT Roy' Judges in referring it, continued).— Speaking for myself, I have no doubt that an appeal will lie upon a question of costs, though any interference with the order of the lower Court upon that subject ought to be exercised with discretion. S. 187 of the Code of Civil Procedure says : "The judgment shall in all cases direct by whom the costs of each party are to be paid, whether by himself or by another party, and whether in whole or in what part or proportion, and the Court sliall have full power to award and apportion costs in any manner it may deem proper.'' The power given to the Court to award and apportion costs in such manner as it may deem proper is a power to be exercised according to law, and not according to mere caprice ; it is a power to be exercised subject to all the provisions of this Code : and a decree, so far as it relates to costs, is subject to an appeal in the same manner as any other part of the decree. Words similar to the words " in any manner it may deem proper" in s. 187 are also used in s. 193. There it is said, " the Court may order interest at such rate as the Court may think proper to be paid, &c.'' That does not mean any sum that the Court may think proper without any appeal, otherwise the Court may award 100 per cent, instead of the ordinary rate of 12 per cent., or the rate, if any, expressly agreed to be paid by the contract under which the principal became due. Similar words are used with regard to interest in s. 196. It appears to me that the discretion vested in the Court in all these sections is subject to the controlling power of appeal, whether regular or special, according to the nature of the case. The decree must specify the amount of costs and by what parties they are to be paid (s. 189), and the section which gives an appeal against a decree makes no exception as regards the award or no award of costs. Whether a special appeal will lie or not, must depend upon circumstances. If the lower Court should award costs to the losing party, it might be an improper exercise of discretion against which a regular appeal would lie, but it would not be a matter of special appeal, unless it should be held contrary to law to award costs under any circum- stances to the losing party. If costs should be allowed contrary to law, it would be subject of special appeal. For instance, if the Court should allow costs for three pleaders for one plaintiff where the law allows costs for only one pleader, or should allow costs for a pleader calculated according to a higher percentage than the law allows, it would be an error of law and a matter for special appeal. Many otlier circum- 498 FULL BENCH RULINGS. jggg stances might be cited in which the Court might exercise its discretion Gridhaki ^^ awarding costs contrary to the law laid down in some Act or Lal Ror Eegulation. In such a case a special appeal would lie, but where there SuNDAK BiBi. has been merely an unsound exercise of discretion, a special appeal will not lie. The first case referred to by the learned Judges — T/ie Collector of Daccav, Kumalakant Mookerjee (1) — appears to be a case of the latter sort. In that case the discretion exercised was not contrary to law. The first Court gave the plaintiff a decree, but released the Collector, and in so doing, refused to award any costs to him, thinking that it was necessary to join the Collector as co-defendant. The Collector appealed to the Principal Sudder Ameen for his costs. The Principal Sudder Ameen dismissed the appeal, and from that decision the Collector appealed to the High Court. The Court said that " as the awarding of costs is a matter left to the discretion of tiie Court, we are of opinion that no appeal lies,'' i. e., that a special appeal having reference to a mere matter of discretion would not lie in a case in which the Court was competent by law to refuse costs. In that case, it was not contrary to law to refuse to award costs to the Collector. The case of Hureehur Mookerjee v. Abdool HuqKazee (2) was one in which it was held that the award of costs was contrary to law, and therefore a special appeal did lie. In the latter case the decree of the Judge, reversing the decree of the lower Court as to costs, was reversed on special appeal for not stating the reasons for his judgment. In all cases it will be for the Appellate Court to determine whether an error in the award of costs is a matter of special or regular appeal. The question referred in this case is not whether a special appeal will lie under the circumstances. The Judge was wrong in holding that he had no power to interfere with the question of the award of costs. The case was hefore him in regular appeal ; the case upon which he relied was a decision in special appeal. The case must go back to the Division Bench which referred it, in order that the Court may determine the appeal with reference to this expression of the opinion of a Full Bench. Loch, J., concurred. Jackson, J. — I am of the same opinion. I would only add that it seems to me that the direction of the Court of first instance as to costs being, by s. 189, a part of the decree, must, in my opinion, be open at least to regular appeal. S. 189 says, that the decree "shall state (1) 2 W. K., 33. (2-) 1 W. K., 97. FULL BENCH RULINGS. 499 the amount of costs incurred in the suit, and by what parties, and in iggg what proportions, they are to be paid, and shall be signed by the Gridhari Judge and sealed with the seal of the Court.'' It appears to me that, '^^^_ °^ in many cases, not only in a matter of costs, but also in some small Sundab Bibi. matters, being a part of what is ordered by the decree, the plaintiff or defendant might be dissatisfied with the decision, and come up to the Appellate Court in appeal, although he might acquiesce in the prin- cipal part of the decree. Then, under s. 187, "the Court shall have full power to award and apportion costs in any manner it may deem proper." Now, the words just cited must be taken in connection with the words in s. 189. It does not appear to me that the words " shall have full power" mean anything more than the words " may order interest at such rate as the Court may think proper," in s. 193, or than the words " may provide for the payment, &c. ***** -with interest thereon at such rate, as the Court may think proper" in s. 196. In short, the award of costs appears to me to be, like the award of damages, in the discretion of the Court, but subject, as in the latter case, to any enquiry as to the mode in which that discretion has been exercised in all cases by regular appeal, and in certain cases also, as pointed out by the Chief Justice in special appeal. Campbell, J. — I also entirely concur with the Chief Justice. It seems clear that the discretion vested by law in the first Court with regard to costs is a discretion subject to regular appeal, and that the Appellate Court may exercise its discretion. The ground of special appeal is very much narrowed by the law which gives entire discretion to the lower Courts, and nothing within the limit of that discretion can be the subject of special appeal. But when in the matter of costs, the order is absolutely illegal, a special appeal also will lie. Macpherson, J. — I have, in more than one case, held there is no appeal on a mere question of costs. I considered that such appeals were undesirable in principle, and the words of s. 187 of Act VIII of 1859, namely " the Court shall have full power to award and appor- tion costs in any manner it may deem proper" were so wide as to give a discretion to the Courts which it was not intended should be the subject of appeal when no other ground of dissatisfaction with the decree of the lower Court was alleged. The matter, however, has always appeared to me to be open to doubt, and as the majority of the Court are unani- mously of opinion that an appeal will lie on a mere question of costs, I do not desire expressly to dissent from that opinion. 500 PULL BENCH JJULINGS. Before Sir Barnes Peacock, St., Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. 1866 MAHI SAHU AND OTHERS (Defendants) v. A. J. FOKBES '^"■^- ^^' (Plaintiff).* Limitation— Breach of Contract — Damages. In a suit for breach of a contract to be performed at different times, the period of limitation must be calculated from each breach of contract as it arises (1). Where there is a contract for performing certain duties in each of several years, each breach of the contract is a complete cause of action, and damages are recoverable for each breach separately. In this case the following questions were referred to a Full Bench by Bayley and E. Jackson, JJ. " Whether in a suit for breach of a contract, which in fact includes a series of contracts, limitation must be calculated from the first breach of the contract, or may be calculated from any breach of it ? " Whether damages can be awarded for each year, where the contract extends over several years, or must be confined to the first year ?" The questions were referred in consequence of an alleged conflict of decision in the following cases : — Oq the first point — Meer Mahomed Kazem Chowdhrt/Y. Forbes (2); Hills V. Alum Cazee (3) ; Smith v. Gopal Sheikh (4). On the second point — Meer Mahomed Kazem Chowdhry v. Forbes (2) ; Macrae v. Jhoomuck Misser (5). The following judgments were delivered : — Peacock, C. J. (Loch, Jackson, and Macphbkson, JJ., concurring). — In this case two points are referred for the opinion of the Full Bench, When this case was called on, there was no Counsel appear- ing for either side, and the Judges were obliged to argue the case amongst themselves. With regard to the first question, it appears to me that, in a suit for breach of a contract to be performed at different times, limitation must * Special Appeals, Nos. 970, and 994 to 1002 of 1866, from the decrees of the Judge of Purnea, dated the 27th November 1865, aflirmmg the decrees of the Officiating Principal Sndder Ameen of that district, dated the 31st March 1865. (1) See Limitation Act {IX of 1871), s. 23. (4) Suth. S. C. C. Rul., 148. (2) 5 W. K,, 277. (5) Maish. Kep., 386. (3) Suth. S. C. 0. Rul., 45. FULL BENCH RULINGS. 501 be calculated from each breach of contract as it arises. Thus, iu a suit igce upon a contract to pay by instalments or to perform certain acts at ji^hi Saiiu different periods, each breach would be separate, and limitation ^^ i i v j,-n„s to such breach would run from the date at which the money was to be paid or the duty to be performed. This would not apply to any contract which expressly provides that in the event of any breach the whole debt shall become due, or the whole damages shall be recoverable, or a sum certain shall be paid as compensation in respect of the whole contract, as in the case of Meer Mahomed Kazeni Chowdhry v. Forbes (1). The answer to the first question is substantially an answer to the second question, — namely, whether damages can be awarded for each year when the contract extends over several years, or must be confined to the first year. Where there is a contract for performing certain duties in each of several years, each breach of the contract would be a complete cause of action, and separate damages would be recoverable for each breach. The case will be sent back to the Court which referred the points to us in order that they may deal with it. There are several analogous cases which will be governed by this case. It will be for the Court which referred the questions to determine upon each particular contract with reference to the opinion we have now given, and to apply the law accordingly in each particular case. Campbell, J. — I have considerable misgivings about answering these questions in this very abstract form. It seems to me that the form in which they have been sent up is inconvenient. The practice has been that either the whole case is referred to a Full Bench, or particular points in a particular case are referred for the opinion of a Full Bench. I very much wish that the case had been argued before us, and that we had known exactly how the questions arose in the case before us the more so because there has, I think, been some error in the reference in regard to the variance supposed to have existed between the decisions quoted. On looking at these cases, I do not see that either of those points arises in any of them. With regard to limitation it seems to me that the only question which arose was as to the application of els. 2, 9, and 10, s, 1, Act XIV of 1859, and the question whether the cause of action arose from the breach of contract, or whether every subsequent (1) 5 W. K., 277, 20 Mahi Sahu V. A. J. FOBBES, 502 FULL BENCH RULINGS. i8Bg breach of contract was new ground of action, was not raised or dis- cussed in those cases. As respects the second question, it seems to me that the point which arose in the case previously decided was on the construction of a particu- lar contract, — i, e., whether the liquidated damages there specified were liquidated damages for the whole contract or damages for each year during which the contract lasted, that question was decided on the con- struction of the particular contract. That being so, and the question not having been argued, we have only to answer these abstract questions without reference to any particular ease, either to the present case or to those quoted in the order of reference. I have no doubt that the answer in reference to the abstract question on the first point must be that, where the contract does in fact contain a series of contracts, each of that series of contracts may constitute the subject of a fresh breach. I would only like to qualify that general answer, so far as I am concerned by this one observation, that it seems to me that if the parties have treated the contract as de facto wholly broken and at an end from the time of the first rupture, — if they have, as between themselves, wholly renounced the contract, reserving only the claim for damages, and not seeking to obtain specific performance, — then I have very great doubt whether a party claiming under that contract can, at the end of many years, bring up a stale claim for damages, on the ground that the contract made so many years ago was originally to be in part performed at a later date. But, on the supposition that either of the parties has treated the contract as a subsist- ing contract, then in each of the series of contracts (supposing there is such series) a new cause of action arises. As to the second question, there can be no doubt, I should think, supposing that there is no provision for liquidated damages, that the damages to be awarded in regard to any contract are for the whole contract, and not for a single year. If the contract is for several years, the damages cannot be limited to one year, but must cover the whole injury sustained ; such damage being reasonably assessed as a jury would assess it. FULL BENCH RULINGS. 503 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. GIBISHCHANDKA LAHURY (Judgment-debioe) v. PAKIK CHAND 1866 (Deceee-holdee),* ^"g- ^'^- Execution of Decree— Set-off— Civil Procedure Code {Act VIII of 1859), s. 209— Assignment of Decree — Question referred not answered. Act VIII of 1859, s. 209, which provides for the set-off of cross-decrees, applies only to decrees of the same Court or decrees sent to a Court for execution. Therefore when, on application for execution of a decree in the Court of a Principal Sudder Ameen, it was sought to set-off a decree obtained in the Judge's Court, which had not been sent to the Principal Sudder Ameen for execution, Held, that s. 209, Act VIII of 1889, did not apply. Question referred not answered on the ground that it did not arise in the case. This appeal came before Loch and Macphersoir, J J,, on 19th July 1866, by whom the following reference was made to a Full Bench : — The circumstances of the case are as follows : — Girish Chandra Lahury obtained a decree against Kasissori Debi in the Judge's Court, She subsequently obtained a decree against him before the Principal Sudder Ameen, and sold it to one Fakir Chand, who proceeded to execute it. When Fakir Chand attempted execution, Girish Chandra applied to the Judge to have the amount of his decree set-off against that obtained by Kasissori. The Judge directed the Principal Sudder Ameen to do £0 if there was no objeAion, but in reply that officer stated that the decree obtained by Kasissori no longer remained in her name, but had been assigned by her to Fakir Chand on 4th Sraban 1272 (18th July 1863), and, therefore, a set-off could not be made. An appeal is preferred on the ground that the transfer to Fakir Chand was made with the object of evading the set-off ; that, though Fakir Chand had purchased, he was in the place of Kasissori, and liable, as she would have been, to have the one decree set-off against the other. On the other hand a judgment of a Divisional Bench, dated 9th Febru- ary 1866, by Kemp and L, S, Jackson, JJ., in the case of Shaikh Bozeeooddeen v. Shaikh Jehangeer (1), is brought to our notice, which rules that where such an assignment has been made, it cannot be ques- * Miscellaneous Eegular Appeal, No. 277 of 1866, from the order of the Principal Sudder Ameen of Kajshahye, dated the 12th February 1866, (1) 5 W. K., Misc, 22, 504 FULL BENCH RULINGS. 1866 tioned, except on the ground of fraud ; and that, where the assignment is GiRisn- in good faith, the decree assigned cannot be used as a set-off to the detri- CHANDRA „ ., Lahuky ment ot the assignee. Fakir Chand. Now, looking at s. 208 of Act VIII of 1859, we find that a decree transferred by assignment " may be executed in the same manner as if application were made by the original decree-holder." These words intimate, we think, that the law looks upon the assignee as standing in the exact position of the original decree-holder, and liable, in regard to the decree assigned to him, to all the liabilities which rest on the decree-holder. Were it otherwise, fraudulent assignments could be made without difficulty, and it would be almost impossible to give even /irzma /acee proof of fraud. It maybe that attachment of the less decree may be made by the holder of the larger, but it appears to us that an assignee takes the decree subject to all the liabilities and equities of his vendor which attach to it. Differing therefore from the opinion expressed by the Divisional Bench in Shaikh Rozeeooddeen V. Shaikh Jehanjeer (1), we submit the following point for the decision of a Full Bench :— "In the event of there being cross-decrees, and one of these decrees being transferred by the decree-holder to a third party on a bona fide sale, without any special notice to the purchaser of the existence of the cross-decree, whether the purchaser does not take it with all the liabilities and equities of the vendor which attach to it." The opinion of the Full Bench was delivered by Peacock, C.J. — It appears that these two decrees were not decrees of the same Court. There was a decree of the Principal Sudder Ameen, and the other was a decree of the Judge. If one of these had not been assigned, the question would be, could the amount of the decree in the Judge's Court be deducted from that in the Principal Sudder Ameen's Court, under the provisions of s. 209 of the Code of Civil Proce- dure ? The words are : — " If there be cross-decrees between the same parties for the payment of money, execution shall be taken out by that party only who shall have obtained a decree for the larger sum, &c.'' In this portion of the section it is not expressly stated whether the section refers to cross-decrees of the same Court, or cross- decrees between the same parties in whatever Courts they may be. But the words of the first paragraph are explained by the second paragraph of the eame section, which says : — " The above rules shall apply to decrees (1) 6 W. K., Misc., 22, FULL BENCH RULINGS. 505 sent to a Court for execution, as well as to decrees of the same isee Court." That shows that the meaning of the whole section was ghush- that, if there be cross-decrees in the same Court between the same LAiruKr' parties, they shall be set-off one against the other, and that the same ,, "a rAKlU OH AND. rule shall apply to decrees sent to a Court for execution. In this case the decree of the Judge's Court was not sent to the Piincipal Sudder Ameen for execution, nor was the decree of tiie Principal Sudder Araeen sent to the Judge's Court for execution. The case, therefore, does not fall within the provisions of s. 209. It is, therefore, unnecessary for us to determine whether the assignment made any difference or not. If we were to determine that point, our decision would be a mere obiler dictum. If there had been no assignment of the decree in the Principal Sudder Ameen's Court, that decree might have been attached in execution of the decree of the Judge's Court. If the assignment was fraudulent, it would not affect the right to attach it. If the decree attempted to be set-off had been obtained in another zilla, and could not be enforced within the jurisdiction of that Court, it might have been sent for execu- tion to the Court of the Judge of Rajshahye, and the decree of the Prin- cipal Sudder Ameen might, in like manner, have been attached in execu- tion if it had not been assigned, or had been assigned for a fraudulent purpose. This decision renders it unnecessary for us to send back the case to the Division Bench who referred it. The appeal is, therefore, dismissed with costs. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson, BABOO CHINTAMUN SING (Plaintiff) v. MUSSAMAT UMA KUNWAB 1866 AND OTHERS (DEFENDANTS).* -^"ff- 23. Civil Procedure Code (Act VIIT of IS59), s. 327— Failing an Award~ Order — Appeal. No appeal lies from an order of Court rejecting an application to file an award (1). The question in this case was whether there is any appeal from an order rejecting an application to file an award under s. 327 of Act VIII of 1859. * Miscellaneous Appeal, No. 353 of 1866, prefei-red on 28tli May 186C, against the order of the Judge of Zilla Shahabad, dated the 28th February 1866, affirming an order of the Sadder Ameen of that district, dated the 5th February 1866. (I) See Sashii Charan CkaUerJee v, Tarah Chandra Chatierjee, 8 B. L, R,, 315. 506 FULL BENCH RULINGS. 1855 The question arose in an appeal before Loeh and Macpherson, JJ., Baboo Chin- o^ ^^^^ August 1866, and was referred by them to a Full Bench, as they tamunSing ^gj.g of opinion^ contrary to the decision in Hulodhur Sungiree v. MussAMAT Gunesh Santhal (1) and other cases, that no appeal lay. Baboo Ananda Chandra Ghosal for the appellant. Baboo Chandra Madhab Ghose for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — It appears to the Court that an order rejecting an application to file an award under s. 327, Act VIII of 1859, is not a decree ; therefore it is not appealable as a decree. It is simply an order rejecting an application to file an award. Then is it one of the orders in respect of which an appeal is provided by the Act ? We can find no right given to appeal against an order refusing to file an award. We do find a right of appeal given in certain other cases, and against certain orders, such as an order rejecting a plaint ; but no appeal given with regard to orders rejecting an award. Consequently it appears to us that the order is not appealable. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson. 186G MUSST. ANANDAMAYI DASI and others (Decree-holders) c.. PUBNA ■^'^- ^^' CHANDRA KOY and others (Jbdgmeni-debtoks).* Decrees of Her Majesty in Council — Decrees of a Court established (or not estab- lished) by Royal Charter— Act XIV of 1859, s. 1, cl. 16 and s. 20— Act XXV of 1852, ss. 1 §• 4—3 §■ 4 Wm. IV., c. 85, s. 43—3 §• 4, Wm. IV, c. 41, «. 21, Per Peacock, C. J., Tbevoe and L. S. Jackson, JJ. — A decree of Her Majesty in Coun- cil is neither a decree of a Court established by Koyal Charter, nor a decree of a Court not ■established by Eoyal Charter, within s, 20 of Act XTV of 1859. Therefore , that Act does not apply to such decrees. S. 1 of Act XXVIII of 1852 only prescribes the procedure for executing such decrees, and does not apply any law of limitation to them (2). Per iotam cwiam. — The legislature of this country has no authority to pass any law limiting the period during which decrees of Her Majesty in Council should be executed. The decree-holder in this case applied to the Principal Sudder Ameea of the 24-Pergunnas for permission to execute the decree of Her * Summary Regular Appeal, No. 569 of 1865, from decree of the Principal Sudder Ameen of the 24:-Pergunnas, dated the 16th June 1865. (1) 6 "W. R., 60. Roy v. Bwrodaoamt Singh Boy, 10 B. L, (2) See Bam Ckaran, Bysah v. LaiM Kant K., 101, Surni/e, 7 B, L. K., 719 ; liistokinker Ghose FULL BENCH RttLINGS. 507 18G6 Majesty's Privy Council in the matter of costs. The decree of the Privy Council was dated 30th November 1861. The application to Musst, enforce it was made on the 10th December 1864. The Principal Sudder "'^dasi'^^ Ameen rejected the application, holding that, as it was made after more p ^'' than three years from the date of the decree, it was barred under the Chandra Eoy. provisions of s. 20, Act XIV of 1859, On appeal to the High Court (before Kemp and L. S. Jackson, JJ.) it was contended that s. 20, Act XIV of 1859, did not apply, but that the Privy Council being a Court established by Royal Charter, s. 19 of the Act applied. The learned Judges were of opinion that s. 20 of Act XIV of 1859 did not apply, but in consequence of the decision in Dr. Alexander Wise v. Jogobundoo Baboo (1), they referred the question to a Full Bench. The judgments of the Full Bencli were as follows : — Peacock, C.J. (Teetoe and Jackson, JJ., concurring). — I am of opinion that a decree of Her Majesty in Council is neither a decree of a Court established by Eoyal Charter, nor a decree of a Court not established by Eoyal Charter, within the meaning of s. 20, Act XIV of 1859, and, consequently, that Act XIV of 1859 does not apply to it. It is contended that even if the decrees of Her Majesty in Council are not decrees of a Court not established by Eoyal Charter within the meaning of the latter section, they cannot be executed after the period limited by that section for the execution of decrees of the Mofussil Courts, and in support of that contention s. 1 of Act XXV of 1852 (2) is relied upon. That section enacts that : — " Every "decree or order in appeal of Her Majesty in Council, or of any Court " of Sudder Dewanny Adawlut, or of any Zilla or City Judge, which " shall be made after the passing of this Act, * * * * shall be " enforced and executed by the Court which made the first decree or " order appealed from, in the manner and according to the rules and laws " applicable to the execution and enforcement of original decrees or " orders made by such last mentioned Court." It is urged that the words "according to the rules and laws applicable to the enforcement " of original decrees of such last mentioned Court" extend to the decrees of Her Majesty in Council all laws, including the law of limitation, (1) 4 W. K., Misc., 10. decree or order made or passed by Her (2) ^csay that one or the other of the two statements was false, within the prisoner's knowledge. Looking, therefore, at the evidence which has been given in support of the charge, that the second statement wag false, I am doubtful under which of the two heads of the charge the ofience falls. I can only say that the prisoner has been guilty of intentionally giving false evidence ; I cannot say that she is not guilty of intentionally giving false evidence before the Judge, or that she is guilty of it ; and therefore I can only find that she is guilty either of the ofience charged in the first head of the charge, or of the ofience specified in the second head of the charge, namely, that she intention- ally gave false evidence before the Judge, or that she intentionally gave false evidence before the Magistrate.'' The eff'ect of that finding is that the prisoner is liable to be punished for the ofience for which the lowest punishment is provided, if the same punishment ia not pro- vided for both ; see Penal Code, s. 72. In the particular case referred to us, giving false evidence, intending to cause a person to be convicted of culpable homicide not amounting to murder, such as the evidence given before the Magistrate, would be punishable more severely than giving false evidence to procure his acquittal. The former would fall, under section 194 of the Penal Code, and the latter under s. 193 ; the maximum punishment being for the former ofience transportation for life, or imprisonment for ten years, with fine, and for the latter ofience imprisonment for seven years, with fine. The argument of Campbell, J., would lead to the conclusion that no indictment ought to lie for giving false evidence before a Judge, if it contradicts evidence previously given in the case before a Magistrate, inasmuch as the liability to be indicted, if the evidence given before the Judge difi'ers from that given before the Magistrate, would be an inducement to the witness to stick to the first statement. 23 1866 Queen V. MussT, Zamiban. 526 FULL BENCH RULINGS. 1866 Queen V. MussT. Zamiran. NoEMAN, J. — I do not thiak that the first point in this reference is " by any means clear. For myself, I still feel the doubts which are expressed in the order referring the case. S. 381 says, that the Court "shall distinctly specify the oiFence of which, and the section of the Indian Penal Code under which, the prisoner is convicted, or if it be doubtful under which of two sections the offence falls shall distinctly express the same and pass judgment in the alternative, according to s. 72 of the said Code." I should still doubt whether a finding "that a prisoner either gave false evidence before the Magistrate on the 1st February, or else, if that evidence be true, gave false evidence before the Judge on the 1st of May," can be properly said to specify the oflfenea of which the prisoner is guilty. It is very important that there should be a definite and well-understood rule on the subject, and I am quite satisfied to abide by the judgment of the majority of the Court, On the other point raised by Campbell, J., it appears to me perfectly obvious that one who makes a criminal charge against another cannot protect himself from a cross-examination on the direct question whether the charge was true or false, on any pretext whatever. Even assuming for the purpose of argument, that such a person could protect himself, still, if he answered voluntarily and without claiming protection, his answer would be admissible against him, and would not be excluded by the 32nd section of Act II of 1855, because it would not be "an answer which the witness had been compelled to give," within the meaning of that section. Indeed, if the witness claimed protection in such a case, and said, in substance, " I refuse to answer because the answer, if I speak the truth, will convict me of perjury before the Magistrate," the, objection would be almost as strono' evidence against him as if the witness had admitted by a direct answer that his former statement was false. If the evidence given in a sub- sequent case in answer to cross-examination, and under pressure, would be receivable as against the witness to show that his former statement was false, much more must it be admissible when the subsequent deposi- tion of the witness is given voluntarily, and without pressure of any sort, as in the present case. A subsequent deposition has always been received, both in England and in this country as evidence, upon a charge of perjury, to show the falsehood of the former contrary deposition by the same witness. There are numerous cases on the point ; and the propriety of admitting such evidence has never, as far as I am aware, been questioned by any one except Campbell, J., in this case. FULL BENCH RULINGS. 527 Kemp, J. — I entirely concur ia the j udgment of the learned Chief Justice. Seton-Karr, J. — T entirely concur with the learned Chief Justice. Indeed, I had always understood that our Court and the subordinate Courts acted on the principle laid down in the judgment with which I concur ; and, until this reference was made, I was not aware that there existed any very serious doubts on the points. Indeed, unless Courts did and could return an alternative finding in such cases of false evidence, the most disastrous consequences to the administration of justice would ensue. Violent crime and crimes of all kinds would go unpunished, and the witnesses who had been bought off to deny their statements implicatiug the' perpetrators of such violent or other crimes, would go unpunished also. I can conceive nothing more detrimental to society. On the second point referred to us, I regret that I cannot concur with Campbell, J. If I understand him aright, I think that the examination of the prisoner before the Judge and the statements of the prisoner before the Magistrate are admissible for the reason given by the Chief Justice, and are admissible to test the prisoner's guilt or innocence, Campbell, J. (after stating the facts) — In the view of the Judge, the deposition before the Magistrate was evidence to show that the deposition before the Judge was false, and the deposition before the Judge was evidence to show that the deposition before the Magistrate was false. On this Mussamat Zamiran appeals to this Court. The case came before a Division Bench consisting of Norman, J., and myself; and having doubts regarding the case, we referred it to a Full Bench. We had, in the first place, some doubts whether, under s. 381 of the Code of Criminal Procedure, it was not necessary for the Judge, in passing judgment, to specify the offence of which the accused person is convicted, and whether it is not only when the same facts constitute or form a part of an offence under one or other of two sections, or under one section, and the Court, from imperfect information, is unable to say under which head the offence falls, that it can pass judgment in the alternative. We doubted whether the law enables a Judge in such a case as the present to convict of either of two charges of false evidence in the alternative, when the facts constituting one of the alternative offences are wholly different from, and opposed to, those constituting the other alternative offence. 1866 Queen V. MussT. Zamikan. 528 FULL BENCH RULINGS. 1866 Queen V. MuSST. Zamikan. Another doubt was whether, with reference to the provisions of s. 32, Act II of 1855, the evidence given by Mussamat Zamiran before the Magistrate and before the Judge respectively could be used as evidence against her in support of a criminal charge of false evidence given upon another occasion than that on which the evidence so used was given, Mussamat Zamiran not having put herself forward as a witness of her own accord, but having been summoned, and in a manner compelled, to give evidence, first, before the Magistrate, and then before the Judge. With reference to the first point of doubt noticed by the Division Bench, I in some degree concur in the doubts which were suggested by Norman, J. I am not by any means clear upon the point. I will only express some doubts. But with regard to the second point — the construction of s. 32, Act II of 1855 — I have a strong opinion, which I will now proceed to express. S. 32 is as follows : — " A witness shall not be excused from answering , any question relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend, directly or indirectly, to criminate such witness ; or that it will expose or tend, directly or indirectly, to expose such witness to a penalty or forfeiture of any kind, provided that no such answer, which a witness shall be compelled to give, shall, except for the purpose of punishing such person for wilfully giving false evidence upon such examination, subject him to any arrest or prosecution, or be used as evidence against such witness in any criminal proceeding." In cases of false evidence formerly tried by me, I have expressed the opinion, with reference to the above provision, that, although the evidence of a witness taken before a Magistrate may be used to prove his subsequent perjury before the Judge, the evidence taken before the Judge cannot be used to prove a prior perjury before the Magistrate ; that, consequently, when there is no other evidence on the record, a charge of false evidence before the Magistrate, only supported by the . subsequent evidence of the same witness before the Judge, must fall to the ground. If so, an alternative conviction that the accused has committed one of two offences, of which the not-to-be-supported charge of false evidence before the Magistrate is one, cannot be sustained. Whether the conviction be on a single charge, or a double charge, no charge can be supported without evidence of some sort. As respects the charge of giving false evidence before the Judge, although the wording of s. 32 of the Act might leave some room for doubt, I do not think it oould haye been iuteaded to protect ^ witness against subsequent PULL BENCH EULINGS. 529 perj ury ; and, understanding that the other Judges of this Bench fully agree with me on the point, I may now hold with confidence that the evidence of a witness taken before the Magistrate may be used as pro tanto evidence on a charge of subsequent false evidence before the Judge. As respects the other charge of false evidence before the Magistrate, and the question of the admissibility as evidence against the prisoner of his subsequent evidence before the Judge, it seems to me that the policy of the law on this latter point is clear. The old English rule was that no one was compelled to criminate himself, and no man was obliged to answer a question if his answer would expose him to the risk of criminal proceedings. This system was attended with many inconveniences, and the Indian Legislature, by Act II of 1855, adopted another rule. S. 32 enacts that no witness shall be excused from answer- ing any relevant question, on the ground that the answer will, directly or indirectly, criminate such witness or expose him to a penalty of any kind; but then it goes on to provide that "no such answer which a witness shall be compelled to give, shall, except for the purpose of punishing such person for wilfully giving false evidence upon such examination, subject him to any arrest or prosecution, or be used as evidence against such witness in any criminal proceeding." Witnesses are bound over and compelled to give evidence at a Court of Sessions ; and, as I understand the present law, if a witness were to object, " I cannot state the truth, for that would disclose that I committed a murder, or that would disclose that I gave false evidence on a former occasion," the Judge would explain, " you need be under no apprehension ; you must answer ; but nothing that you say can be used against you in order to ooUvict you of the murder, or the false evidence on the prior occasion : you may therefore speak out without fear." If that be not the meaning of the law, I am quite unable to understand what is the meaning. It seems to me that a witness compelled to appear in a Session case is protected from any use against him of the evidence which he gives ; and that such evidence cannot be used against him in a criminal prosecution to prove that he committed perjury on a former occasion. If it were otherwise, witnesses, who had committed themselves to certain statements when first carried by the Police before the Magistrate, would be no longer free agents; they would go into the witness-box with halters round their necks. If they venture to speak freely, they may immediately be committed on an alternative charge of this kind without further evidence. The absence of any other evidence implies that if they stick to their original story they are safe, but if they say that which may be the truth, they are forthwith liable to be 1866 Qdeen V. MUSST. Zauiban. 630 FULL BENCH RULINGS. 1866 Queen V. MUSST. Zamiuan, indicted for perjury. If they give false evidence at the Sessions, by ' all means prove the charge and punish them. But to punish them on an alternative finding, which necessarily implies that the evidence before the Sessions Court may be true, without any other evidence to the prior perjury than the privileged evidence which they are compelled to give, seems to me contrary to the letter and the policy of the law. If that be lawful. Sessions trials must become a farce. Witnesses have no option but to repeat the story once told to the Police and the Magistrate. I do not think that it makes any difference that the witness did not go through the form of refusing to answer, and being told by the Judge that she must answer. She was, I think, in every sense compelled to give evidence. She was compelled to appear before the Sessions Court, and being there, the law by penal enactments compelled her to give evidence. Therefore, in my opinion, in this case the evidence taken before the Judge was improperly and wrongfully used in support of the charge of false evidence given before the Magistrate, and a convic- tion founded upon that evidence only cannot be sustained. The present case is somewhat complicated by this, that the prisoner has, in some sort, supplied what may possibly be considered evidence upon this head of the charge ; that is to say, the charge of false evidence before the Magistrate, inasmuch as two of her witnesses have stated before the Court, " I know that Mussamat Zamiran gave false evidence before the Magistrate." But it seems to me that a statement of this kind, without any particulars as to which the witness pledges himself to his means of knowledge, is no evidence, and certainly is totally insufficient evidence on which to convict a prisoner of giving false evidence. In my opinion, the conviction ought to be quashed and a new trial ordered. FULL BENCH RULINGS. 531 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. In the mattek of the Petition ot SUBJAN OSTAGAR. 1866 Aug. 31. Act XXIII of 1861, s. 35. The true construction of s. 35 of Act 5XIII of 1861 (1) is that the High Court may call for the record in any case in -which a subordinate Court exercises a jurisdiction when it has none, or exceeds it when it has jurisdiction. The words in s. 35 " the Sudder Court may set aside the decision passed on appeal in such case by the subordinate Court, or may pass such other order in the case as to such Sudder Court may seem right," mean that, where a Com't exceeds its jurisdiction, the High Court may set aside that part of the order which is in excess of jurisdiction, and that, where the decision of the subordinate Court is made on appeal in a case in which it has no appellate jurisdiction, the proper order is. to set aside the decision altogether. If an appeal be heard by a subordinate Court which has no jurisdiction to hear it, when it ought to be heard by another subordinate Court which has jurisdiction to hear it, the Court may set aside the decision of the Court which had no jurisdiction, and may, if it tliink right, refer the, case to the Court which had jurisdiction, even if it be too late to prefer a fresh appeal to that Court. The Judge having entertained an appeal where none lay, is no ground for interfering with a. decision which the Legislature intended to be final. Jackson, J., differed. This case was stated for the consideration of a Full Bench by Loch and Macpherson, JJ., in the following terms : — In this case three decree-holders took out executioa of their respec- tive decrees and attached the property of the debtor on various dates. The sale was made, but before the sale proceeds were distributed, it was found that the decree held by the decree-holder who had made the first attachment in order of time, was collusive, and he was declared incapable of partaking in the proceeds of sale ; the Moonsiff then distributed the proceeds rateably between the other two. An appeal was pre- ferred to the Judge, who held that, of the two other decree-holders, tha one who attached first was entitled to recover the whole of bis debt from the sale proceeds, the balance, if any, being paid to the other. From this order an appeal has been preferred to this Court, but we think that no appeal lies, for this is a dispute between rival decree- holders regarding the distribution of sale proceeds, and it has been ruled by a Full Bench (2) that no appeal will lie in such a case. But the petitioner urges that, if there is no appeal to this Court, there was equally no appeal to the Judge ; that he has acted without jurisdiction in accepting, and passing orders in,' the appeal ; that s. 35, Act XXIII (1) See 24 & 25 Vic, c. 104, s. 15. (2) In the matter of the VeiUion of Docowri Kaei, ante, p. 517. 582 FULL BENCH RULINGS, iggg of 1861, gives this Court power to send for the record in such cases, hTriiE ^^^ if tl^s Judge has acted without j urisdi'ction, to pass such order MATTER OF J J^f THE Petition ° OF SuBjAN \yg thiuk it advisable, coasidering how frequently a. 35, Act XXIII of 1861, is appealed to by petitioners as giving this Court powers of interference with orders passed below, to lay this case before a Full Bench, for an authoritative ruling as to the meaning of the above section. Two interpretations have been put on the words in the earlier part of the section, which we quote : — " The Sudder Court may call for the record of any case decided on appeal by any subordinate Court, in which no further appeal shall lie to the Sudder Court, if such subordi- nate Court shall appear, in hearing the appeal, to have exercised a jurisdiction not vested in it by law." According to one interpretation, the meaning of these words is, that if the Judge admits an appeal from the order of a lower Court where no appeal is allowed by law, and passes an order thereon, the High Court has, uader the provisions of this section, authority to call for the record and pass any order that may appear to be right, whether such order be for the setting aside or con- firming the order of the Judge, or for correcting any error made by the first Court. According to the other interpretation, the meaning is that the High Court can interfere only in cases in which an appeal is allowed to the Judge, but in which no special appeal is permitted by law, such as suits referred to in s. 27, Act XXIII of 1861. If, in disposing of such appeals, the Judge has exercised a jurisdiction not vested in him by law, this Court may interfere to correct his error. If the latter be the correct interpretation of the law, then this Court cannot interfere in the present case, though it is obvious that the Judge, in admitting the appeal and reversing the order of the first Court, has acted without jurisdiction, inasmuch as the law does not allow of an appeal in such cases ; and a decision of a Full Bench (1), followed in repeated instances by the Divisional Benches of this Court, has ruled that there is no appeal by one of several decree-holders from an order passed in execution regarding the distribution of sale proceeds. Here it is obvious that the Judge has acted illegally, and this Court is powerless to put him to rights. The present case is only one of many -v^hich have come before the Court, and sometimes the Court, consideriog the former of the two interpretations to be correct, has interpreted and cor- rected the error of the lower Court. Another question arises as to the scope of the latter words of s. 35, Act XXIII of 1861, which are as follows : " The Sudder Court (1) In the matter of the Petition ofDoaoviri Kazi, ante, p. 517. FULL BENCH RULINGS. 533 may set aside the decision passed on appeal in such case by the sub- jggg ordinate Coui-t, or may pass such other order in the case as to such i^ ^he — Sudder Court may seem right." - Do the words in the passa" e of the • ^^^'^ <"^ ^ t* o THE Petition law quoted enable this Court, whenever it has jurisdiction to act at Iof Subjan all, to interfere with the order passed by the first Court should it be erroneous, as well as with the order passed in appeal ; are the words " pass such other order in the case," restricted to correcting the error made by the Judge on appeal ? Baboo Abhai Charan Base for the petitioner. The following judgments were delivered : — Peacock, C.J. — (Loch and Macpheeson, JJ., concurring). — The first question referred to us is (reads). It appears to me that, under the section referred to (which is not very cleaiiy worded) this Court has power to interfere, either in a case in which the Judge exercises an appellate jurisdiction which he has no power to exercise, or iu a case in which, in the exercise of a jurisdiction which he has, he exceeds his jurisdiction. The words of the first portion of s. 35 are : — " The Sudder Court mny call for the record of any case decided on appeal by any subordinate Court in which no further appeal shall lie to the Sudder Court, if such subordinate Court shall appear, in hearing the appeal, to have exercised a jurisdiction not vested in it by law." The first word that causes ambiguity is the word "further." It is- considered by some that, by the words " in which no further appeal shall lie to the Sudder Court," the Legislature intended cases in which an appeal would lie to the suboi-diuate Court without a further appeal to the Sudder Court. It is contended, in support of this view, that the word " further" is not applicable to a casein which no appeal lies, either to the subordinate Court which exercises it, or to the Sudder Court; but the first -part of the section must be read in conjunction with the subsequent words, " if such Subordinate Court shall appear in hearing the appeal to have exercised a jurisdiction not vested in it by law." The words are not " if in deciding the appeal, the Court shall appear to have exceeded its jui'isdiction," but "if in hearing the appeal it shall appear to have exercised a jurisdiction not vested in it by law." If a Judge should hear an appeal in a case in which he has no appellate jurisdiction, he would appear to have exercised a power not vested in him by law ; and yet, if no appeal lay to the Sudder Court, no further appeal than that which the subordinate Court in fact heard would lie to the Sudder Court. 24 534 FULL BENCH RULINGS. 186G The thing to be looked to for the purpose of seeing whether the case In tub falls within the section, is rather the hearing than the decision. If the THE^ETiTioN li9'*r^°g was an exercise of a jurisdiction not vested by law, tiie decision OF SuBjAN consequent upon such hearing may be set aside, without reference to the decision itself. The section provides for setting aside the whole decision, not merely of any part of it which may be found to be in excess of jurisdiction. Looking at the whole section, and reading the words " in which no further appeal shall lie to the Suddder Court " together with the words " if such subordinate Court shall appear in hearing the appeal to have exercised a jurisdiction not vested in it by law," and the subsequent words of the section, I think the true construction is that the Sudder Court may cull for the record in a case in which a subordinate Court exercises an appellate jurisdiction where it has none, or in a case in which it exceeds its jurisdiction where it has. I think that the words " in which no further appeal shall lie to the Sud- der Court" means any case in which there is no appeal to the Sudder Court, or, in other words, no appeal in which the decision in the appeal heard de facto can be set aside. Where there is an appeal to the Sud- der Court, any part of a decision which is beyond jurisdiction can be set right on appeal. But if there be no appeal, then the Sudder Court is authorized to call for the record and set aside whatever the subor- dinate Court has done in excess of its jurisdiction. There are very few cases, beyond those in s. 27, in which an appeal is given to a subordinate Court without a speciiil appeal to the Sudder. But there maybe many cases in which appellate jurisdiction may, through error, be exercised without jurisdiction, in which there is no further appeal to the Sudder, because there is no appeal given by law either to the subordinate Court or to the Suddei: Court. Such cases were, I think, clearly intended to be included. As to the second question in In the matter of the Petition of Docowri Kazi (1), which was referred to a Full Bench, and was decided at this sitting, the Court considered that it would not be right to pass an order interfering with a decision which the Legislature intended to be final. In this case the order of the Moonsiff was intended by the Legislature to be final ; and therefore, so far from thinking that it would be right, I think it would be wrong for this Court, simply because the Judge did erroneously exercise a jurisdiction which did not belono- to him, to enter into the question whether a decision intended by the Legislature to be final was right or wrong. The words of the Act (1) Ame, p. 517. FULL BENCH RULINGS. 535 here are agaiu important. " Tlie Sudder Court may set aside tbe jggg decision passed on appeal in such case by the subordinate Court, or may I^Tthe pass such other order iu the case as to such Sudder Court may seem ™'^'^'"* ^^ right." It is not that the Sudder Court may set aside the decision of "f Subjan . OSTAGAE. the subordmate Court, and pass such other order in the case as it may think I'iglit, but that tlie Sudder Court may set aside the decision, or pass such other order as to it may seem right. It appears to me that, where a Court exceeds its jurisdiction, this Court may set aside that part of the order which is in excess of j urisdiction, and that, where tlie decision of the subordinate Court is made on appeal in a case in which it has no appellate jurisdiction, the proper order is to set aside the decision altogether. If an appeal be heard by a subordinate Court which has no jurisdiction to hear it, when it ought to be heard by another subordinate Court which has jurisdiction to hear it, the Court may set aside the decision of the Court which had no jurisdiction, and may, if it think it right, refer the case to the Court which had jurisdiction even if it be too late to prefer a fresh appeal to that Court. Jackson, J. — I regret to be obliged to differ from the judgment of the majority of the Court in this matter. It appears to me that the wording of s. 35, Act XXIII of 1861, does not permit the Court to interfere in cases where the lower Appellate Court has heard an appeal which it had no jurisdiction to entertain. I admit that this constructiou is of very much less convenience than that which has been adopted by the Chief Justice and my learned brethren. At the same time, I feel bound by the express words of the section itself. If we look at s. 35 and the sections which it follows, and look to the nature of Act XXIII and refer to the Acts which it supersedes, I think the meaning is clear enough. Act XXIII of 1861 was an Act for amending Act VIII of 1859 (for simplifying the procedure of the Courts of Civil Judicature not established by Eoyal Charter), and for consolidating the Acts previously passed for the amendment of the said Act. It appears to have gone over the whole ground which had previously been traversed by the amending Acts, to have thrown the whole of those Acts into one, and to introduce new matter which had been found necessary for the further amendment of the law of procedure. One of the Acts which were repealed by Act XXIII of 1861, was Act XLIII'of 1860. This enactment, following Act XLII (which was the Small Cause Courts Act for the iVIofassil), gave a certain finality to the decisions passed in regular appeal in cases of the Small Cause Court claSs tried, 536 FULL BENCH RULING8. 1866 not iu the Courts of Small Causes proper, but in the ordinary Civil In the Courts, and it provided the mode of stating a case and obtaining the THEtpifTiTioN opinion of the Sudder Court upon such case. " Ss. 27 to 34 of Act o'siagIr?' XXIII of 1861 exactly replace ss. 1 to 8 of Act XLIII of 1860. Then, immediately following those sections, 27 to 34, comes s. 35. I think, from the location of s. 35 immediately after those sections of the Act, and before s. 36, which relates to a subject wholly different, it is quite clear that that section was connected with the subject treated of in BS. 27 to 34. These, like Act XLIII, first provided that no appeal shall lie in cases of the nature described. They next provided the means of reference to the Sudder Court where a case should be stated ; and then, as if to provide against a failure of justice in cases where special appeal was taken away, and in which the lower Appellate Court did not think fit to submit a case to the High Court for opinion, it was provided that " the Sudder Court may call for the record of any case decided on appeal by any subordinate Court in which no further appeal shall lie to the Sudder Court, if such subordinate Court shall appear in hearing the appeal to have exercised a jurisdiction not vested in it by law." That seems to me to provide for cases in which special appeal is barred, and in which a case might not have been stated by the lower Appellate Court. I cannot get over the words " in which no further appeal shall lie to the Sudder Court." Those words indicate clearly to me the case of one appeal being allowed, and a second, or special, or further appeal not being allowed. Nothing has been suggested, as far as I have heard, to account for the use of those words otherwise than as I have suggested. Then the expression "in hearing the appeal" appears to me also to admit a construction quite consistent with the view I have taken. It seems to me that, if by these words a going beyond the proper jurisdiction of the Court in entertaining the appeal had been alluded to, the words " in hearing the appeal" would not have been used, but " in admitting the appeal." It appears to me that the word " hearing " is meant iu the sense of " determining," and that the section means I that when a subordinate Court hearing an appeal lawfully before it, in determining that appeal, grants some relief or makes some direction beyond its lawful competence to make, then the High Court may send for the proceedings, &c. That appears to me to be the meaning of the section, and then as to the concluding part of the section, "and the Sudder Court may set aside the decision passed on appeal in such case by the subordinate Court, or may pass such other order in the case as to such Sudder Court FULL BENCH RULINGS. 537 may seem right," that seema to me to meaa that this Court may either jggs wholly reverse the judgment, or pass such modified or other order as is the it may think fit, and as the lower Appellate Court might have passed, xhe^etitios If this section does include the case of appeals improperly heard by-the *^ Suejan lower Appellate Court, surely all that the High Court could properly do would be to affirm or leave undisturbed the decision of the Court of first instance which by law was final. It would then be out of place to use such words " pass such other order in the case as to such Sudder Court may seem right." I am, therefore, compelled to disagree with the majority of the Court in this construction of s. 35. But if it be held that cases of this kind are included in the section, then I agree that all this Court can do under the section is either in one case to pass the judgment which the lower Appellate Court ought to have passed, or in the other case simply to restore the decision of the Court of first instance. Campbeii, J. — I am of the same opinion with the Chief Justice. The contention which has been urged on the part of one of the parties in this suit, and which is supported by Jackson, J., is entirely new to me. I always supposed that s. 35, Act XXIII of 1861, was a general provision introduced into the Code of Civil Procedure, in order to rectify the injustice which might be done by the lower Appel- late Courts by exercising a jurisdiction not vested in them by law in cases in which no special appeal lay. It appears that when various amendments were made in Act VIII of 1859, among others, in 1860, a special Act was passed with a view to provide for a certain class of cases — money cases under Es. 500 — which were made final, and in which a special appeal was barred. That was the sole object for which Act XLIII of 1860 was passed, and that Act, which was passed with that object, contains no provision whatever of the character of s. 35, Act XXIII of 1861. I am, therefore, unable to see why s. 35 has any special connection with the sections which now stand as ss. 27 and 34, Act XXIII of 1861, and the origin of which has been traced by Jackson, J. S. 35 has an origin quite independent from ss. 27 to 34. S. 35 was an entirely new prov-ision, introduced, I think, into Act XXIII for the purpose of providing for all cases in which jurisdic- tion had been improperly assumed where no special appeal lay. I see no special connection between s. 27 and s. 3,5, such as to induce us to put a construction upon s. 35 different from that which we should put on it if read by itself. Read by itself, it would properly bear, it seems to me, the more liberal construction which has been put upon it. 538 FULL BENCH RULINGS. 1866 The wliole argument tbe other way seems to be based on the word In the " further." Now that word "further, " as it is placed, is, I think, not MATTKK OF i • i T i i • • -i ■ i ■ THE Petition very material. It may be that it is used in a somewhat in exact sense, OsTAGOEr ^^^ ^^^° ^* ^^y ^® ^^'"^ ^^^^ ^ de facto appeal having been preferred and heard, no further appeal lies, and s. 35 will be brought into play. The rest of the sectioa is plain enough. As respects the words "in hearing the appeal" it seems to me that these words could cover both cases in which there was no jurisdiction, and those in which juris- diction was exceeded. If the words "in deciding" had been used, it would have limited the operation of the section to the case in which an existing jurisdiction was exceeded. If the words "in admitting" were used, the section would be limited to cases in which there wag no jurisdiction whatever. But the words "in hearing" seem to me to apply to both classes of cases. On the other point, I am of the same opinion with the Chief Justice. I think that the latter part o" s. 35 can only be properly applied to questions affecting the jurisdiction whether the order of the Court below be upheld, modified, or otherwise dealt with. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. 1866 GIRISH CHANDRA BOSE (Defendant) v. KALI KRISHNA HALDAU Aug. 31, ,_-. . j| AND OTHERS (PLAINTIFFS).' Act X of 1859, ss. 3, i— Presumption— Uniform Bent— Failure to -prove Potta. In a suit for enhancement of rent, a ryot is not to be precluded from the benefit of the presumption under s. i of Act X of 1859 (1) on proof of having held at a fixed rent for a period of twenty years, merely because he has failed to prove a potta which he has set up not inconsistent with that presumption. This case was referred to a Full Bench by Seton-Karr and Pundit, JJ., in the following terms: — The point urged in special appeal is that the Judge is wrong in not allowing the defendant the benefit of the presumption from payment at one rate for twenty years, the Judge finding that a potta pleaded by him has not been proved. * Special Appeal, Xo. 1005 of 1865, from a decree of the OflSciating Judge of the 21-Pergunnas, dated the 16th January 1866, reversing a decision passed by the Deputy Collector of that district, dated the 31st August 1865. (1) See Bong, Act VIII of 1869, s i. FULL BENCH RULINGS. 539 In support of tlie Judge's ruliug, two decisions are quoted — Petumlur 1 8C6 Shaha v. Jebun Singh Burmonee (1) and Nobin Chunder Sircar v. Gutisii Shamasoonderee Dabee (2). Oa the other hand, the special appellant ^^se quotes the case of Ranee Surnomoyee v. Maharajah Sutteeschunder g^t,jj^,"iisHNA Roy Bahadoor (3), as showing that a forged document would not Haldar. prevent a party to a suit from claiming an adjudication, on other evidence, of such portion of his claim as was true (4), We observe tliat, in those cases decided by other Benches, the pottas were found to be fictitious or forgeries. In the present case, the Judge's decision does not appear to us to go beyond saying that the potta is not proved, or is not above suspicion. In those cases too the dates of the pottas are not given. In the present case, tlie potta declared to be not proved was one of 1192 (1785), or of a time anterior to the perpetual settlement. It could not, therefore, be a document setting up a rate of rent fixed after that settlement, and it is thus argued that, in the present case, the defendant ought not to be precluded from showing, by other evidence, that he has paid at one rate ever since the perpetual settlement, although he has failed to prove that his rent was fixed per- manently before that same perpetual settlement. We are informed that the case of Iswarchandra Das v. Nittanand Doss (5) somewhat bearing on this point, has been referred to a Full Bench, and we think this case ought to be referred to the Full Bench for its consideration at the same time. The points ou which we would ask the opinion of the Full Bench are these : — First. — Are those two decisions sound in law ? Second. — Supposing the two decisions of other Benches, above quoted, to be sound in law as regards the inability of a defendant, whose potta has been found fictitious or fraudulent, to fall back on the presumption from twenty years' payment at the same rate, would those rulings apply to a case in which a potta alleged to have been given before the permanent settlement has been merely found unproved, or would the defendant still have the right to claim an adjudication of any other proofs which he might have adduced in order to show that his rent has been unchanged from the time of the permanent settlement, and independently of any such potta. Baboo Chandra Madhab Ghose for the appellant. Baboo Anand Chandra Ghosal for the respondents. (1) 2 W. E., Act X Kul., 6. (4) See also, on this point, Patta Bhiramkr v. (2) 1 W. R, 106. Vencatarow Naicken, 7 B. L. R,, 136. (3) 10 Moo. 1. A,, 123. (5) Ante, p, 490. 540 FULL BENCH RULINGS. 1866 The opiaion of the Full Bench was delivered by Chandra Peacock, C.J. — In this case, which was a suit for enhancement of °^^ rent, it appears from the decision of the Zilla Judge that the defendant KaliKiushna pleaded that the tenure existed previously to tlie decennial settlement, and that the rate of rent had been uniform. The lower Court found that the receipts proved that the rent at which the land is held by the ryot had not been clianged for a period of twenty years before the com- mencement of the suit. If this is so, it is to be " presumed that the land has been held at that rent from the time of the permanent settlement, unless the contrary be shown, or unless it be proved that such rent was fixed at some later period" (I). If that presumption be made, the ryot is entitled to the benefit of the provision of s. 3, Act X of 1859, which enacts that " ryots who hold lands at fixed rates of rent, which have not been changed from the time of the permanent settlement, are entitled to receive pottas at those rates." Then comes the question what would comply with those words, " unless the contrary be shown, or unless it be proved that such rent was fixed at some later period." If a defendant sets up that he came in under a potta subsequent in date to the time of the permanent settlement, if, appears by his own showing that he has not held from the date of the permanent settlement. But if he should say "I hold under a potta prior to the time of the permanent settlement, and I have been paying rent for the last twenty years at an uniform rate," and should prove that he had held at the same rate of rent for a period of twenty years next before the commencement of the suit, the fact of his having stated that he held under a potta would not deprive him of the benefit of the presumption arising from the uniform payment of rent, even if he should fail to prove that his potta was genuine. So, if he were to say " I have held for a period of twenty years at the same rent ; I hold a potta of a date subsequent to the permanent settlement, but that potta was granted to me in confirmation of a prior holding ;" that would not rebut the presumption arising from the proof of his having held at a rent which has not been changed for a period of twenty years next before the commencement of the suit. It is only when, by evidence or by his own showing, it appears that his holding commenced or that his rent was fixed at a period subsequent to the date of the permanent settlement, that the presumption created in his favor by s. 4, Act X of 1859, is rebutted. A ryot is not precluded from the benefit of his having held at a fixed rate which has not been changed (1) Act X of 1859, s. 4. FULL BENCH RULINGS. 541 from the date of the permanent settlement, or of any presumptive iggg evidence to that effect, merely from the fact of his stating that be holds girish under a potta not inconsistent with that presumption, though he may 'bose"^ fail to prove the potta. „ J- Kam Krishna The case must go back to the Division Bench which referred it with Haldab. this expression of our opinion, in order that they may finally deter- mine it. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. J. P. WISE (Defendant) v. EAJKRISHNA ROY and othebs (Plaintiffs). 1866 Execution of Decree pending Appeal to Privy Council — Security — Reg. XVI of 1797 i. i—Act VIU 0/1859, ss. 221, 338, 362— Act XXIII of 1861, ». 36. In a suit in which an appeal to the Privy Council from a decree of the High Court has heen admitted, and is still pending, the Court of original jurisdiction, which made the decree first appealed from, has jurisdiction to issue execution. Although, as a general rule, the High Court will take security, under ». 4, Regula- tion XVI of 1797, before allowing execution of a decree while there is an appeal to the Privy Council pending, yet the Court may, under certain circumstances, allow execution without taking security. Where the lower Court is informed that there has been an appeal to Her Majesty in Council from the decree which it is asked to execute, the lower Court should, in the exercise of its discretion, allow time to the parties to apply to the High Court to stay execution or to require security from the party left in possession, before issuing execution unless it should see danger of the property being made away with in the interval. Loch, J., differed. In this case, a rule was granted by Kemp and Campbell, JJ., calling upon the plaintiffs to show cause why an order of the Principal Sudder Ameen, that execution should issue against the defendant Wise, should not be set aside. The original decree of the Court of the Principal Sudder Ameen in this suit came up on appeal before the High Court, which decided against Wise and other defendants. Wise thereupon appealed to the Privy Council, and his appeal had been formally admitted, and was, when the rule came on for hearing, still pending. After its admission the plaintiffs applied for execution to the Court of the Principal Sudder Ameen, by whom the decree first appealed from was made. The application was opposed on the ground (infer alia) that no Court except the High Court could issue execution after the appeal to the Privy Council had once been admitted. The application having been granted, the present rule was issued. It was argued before Loch and Macpherson, JJ. 25 5.12 FULL BENCH RULINGS. ijjgg Mr. Allan appeared ia support of the rule. J. P. Wise In support of the rule, it was contended that, by s. 4 of Regulation Eajkkishna XV'I of 1797, and according to the unvaried practice, the High Court KoT. alone could issue execution if an appeal to the Privy Council had been admitted, and it was urged that the provisions of Act VIII of 1859 were wholly inapplicable, as they relate exclusively to pro- ceedings up to the final decision by the highest Court of Appeal in India, and do not relate to appeals to the Privy Council, or any matter connected therewith. Mr. Montriou, for the plaintiffs, showed cause. He contended that Regulation XVI of 1797 did not deprive the lower Courts of their jurisdiction, and that, under Act VIII of 1859, execution ought to issue. The following questions were referred to a Full Bench : — " Whether, in a suit in which an appeal to the Privy Council from a decree of this Court has been admitted and is still pending, the Court, of original jurisdiction which made the decree first appealed from haa jurisdiction to issue execution ? Or whether, under such circumstances this Court alone has jurisdic- tion to issue execution ?" The questions were referred with the following remarks by Macpherson, J. — It appears to me that, as the law at present stands, the Court whicli made the first decree appealed from has power to issue execution, even after an appeal to the Privy Council has been admitted. Regulation XVI of 1797, s. 4, does not expressly take away jurisdiction from the lower Courts. It only says that, when appeals to the Privy Council are pending, the Sudder Court may either order the judgment which it has {lassed to be carried into execution taking security, &c. ; or it may suspend execution during the appeal, taking security from the judgment-debtor, &c. Certain powers are given to the Sudder Court, but none are, either directly or indirectly, taken away from any other Court. It is to be remembered that, when this Regulation was passed, and for many years afterwards, all the decrees of the Sudder Court (even when there was no appeal pending to the Privy Council) were executed by the order of that Court, and not by the order of the Court of original j urisdiction. This practice, however, was abolished by Act XXV of 1852, the first section of which expressly enacts that, for the future, every decree or order made in appeal by the Privy Council, or by the Sudder Court, shall be enforced and executed by the Court which made the first decree appealed PULL BENCH RULINGS. 543 from, ia the manner applicable to the execution of the original decree. 1866 S. 2 provides that any person who wishes to enforce such a decree j. p. Wise (e. g., a decree of the Sudder Court) shall apply by petition to the Rajkrishna Court which made the first decree appealed from. And s. 4 ^""^ declares that nothing in the Act shall be deemed to prevent the Sudder Court from executing any decree of the Privy Council, if the Privy Council shall order the Sudder Court to execute it. It appears to me that this Act expressly empowers the Court of original jurisdiction to execute a decree of the SuJder Court whether there is or is not any appeal pending before the Privy Council, and that, if it was intended to preserve to the Sudder Court, in the case of decrees under appeal to the Privy Council, the exclusive- power of executing them (which power the Sudder Court before undoubtedly had as regards all its own decrees), it was necessary to do so expressly. Act XXV of 1852 is repealed by Act X of 1861, except so far as relates to the execution of decrees made on appeal by the Privy Council ; in its room we have ^ s. 362 of the present Code of Civil Procedure (Act VIII of 1859). S. 338 of that Act, and Act XXIII of 1861, s. 36, practically enable the Courts to protect the rights of parties so far merely as the granting or refusing execution and taking security in respect thereof are concerned, as fully as s. 4 of Regulation XVI of 1797. And, in my opinion, the Court which made the original decree first appealed from has jurisdiction to entertain and dispose of an applica- tion for the issue of execution, even though an appeal to the Privy Council has been admitted. My opinion, however, seems to be opposed to what has always been the practice of the Court. I therefore think it desirable to refer for the decision of a Full Bench the following questions, viz. (reads.) Mr. Doyne (with him Mr. Allan) for the defendant (judgment- debtor). Mr. Montriou (with him Mr. Roch/ort) for the plaintiffs (decree- holders). The following judgments were delivered : — Macpherson, J. — I remain of the opinion expressed by me in making the order referring the case to a Full Bench that, so far as the mere question of jurisdiction is concerned, the Court which made the decree first appealed from has power to entertain and dispose of an applica- tion for the issue of execution, even though an appeal to the Privy 544- FULL BENCH RULINGS. iggg Council has been admitted. S. 362, Act VIII of 1859, expressly J. P. Wise enacts that " application for execution of the decree of an Appel- Eajkkishna ^^^^ Court shall be made to the Court which passed the first ^°^- decree in the suit, and shall be executed by that Court in the manner and according to the rules hereinbefore contained for the execution of original decrees." Those words are absolute, and contain no limitation of any description ; and so far as I can see, there is nothing in the fact of an appeal to the Privy Council being pending whicli will take a decree of the High Court out of the express words of this section. The doubt existing in the matter arises from the provi- sions of s. 4, Regulation XVI of 1797, which section, it has been argued, either vests the power of executing such decrees solely and exclusively in the High Court, or at any rate limits the power which is given to the lower Court by s. 362 of Act VIII of 1859. S. 4, Regulation XVI of 1797, says : " In cases of appeal to His Majesty in Council, the Court of Sudder Dewanny Adawlut may either order the judgment passed by them to be carried into execu- tion, taking sufficient security from the party in whose favor the same may be passed for the due performance of such order or decree as His Majesty, his heirs, or successors shall think fit to make on the appeal, or to suspend the execution of their judgment during the appeal, taking the like security, in the latter case, from the party left in possession of the property adjudged against him." It appears to me that that section, although it gives the High Court the power of acting as in that section is provided, does not, either expressly or impliedly, declare that no Court whatever, other than the Sudder Court, is to execute decrees in respect of which appeals are pending to the Privy Council. And even if it did so declare, the subsequent enactment of s. 362 of Act VIII of 1859 vested the lower Courts also with the power of executing such decrees. But as, notwithstand- ing s. 362 of Act VIII of 1859, the provisions of s. 4, Regulation XVI of 1797, still are in force to the extent of empowering the High Court to take security before execution is issued, and to restrain execu- tion when it shall see fit to do so, it appears to me that the latter section practically does very much modify the powers which are given to the inferior Courts by s. 362 of Act VIII of 1859. For although the lower Court has power, under s. 362, to execute the decree, still as there is always (as provided in s. 221 of Act VIII of 1859) a certain discretion in every Court as regards issuing execu- tion, the lower Court does not, in my opinion, exercise its discretion FULL BENCH RULINGS. 645 "wisely or properly, if, ia a case where an appeal is pending to the Privy igee Council, the lower Court, with notice of that appeal, issues execution j. p. Wise without reference to the High Court, or without at least giving the Rajkrishna parties, against whom the execution is sought, an opportunity of apply- ^°^' ing to the High Court in order that the provisions of s. 4, Regu- lation XVI of 1797, may be given effect to. Act VIII of 1859, s. 338, and Act XXUI of 1861, s. 36, con- tain provisions by which the local Courts can take security for the execution of any order which may be made in appeal. But those sections, when properly construed, cannot be considered to apply to oases under appeal to the Privy Council. They are manifestly intended to apply merely to cases where appeals are pending to some Court in India. On more careful consideration, I think that the opinion which I expressed recently to the effect that the lower Courts are by those sections empowered to take security pending an appeal to the Privy Council was erroneous, and that those sections apply exclusively to appeals to the Courts of this country. As the lower Court could not itself, in the present instance, take security, and as the uniform practice unquestionably has been always that applications for execution after the admission of an appeal to the Privy Council should be made to the High Court, and as the law expressly gives the High Court the power to take security or to restrain execution, it seems to me that the lower Court did not properly exercise its discretion in issuing execution without either referring to the High Court or giving the parties an opportunity of doing so. Under these circumstances, the proper order to make now will be to stay all proceed- ino-s in this matter until the further order of this Court. That is an order which will meet the justice of the case, and cannot possibly work injustice to any one. Meanwhile, it is open to either party to make such application to this Court as he may be advised. Campbell, J. — I am, for the most part, substantially of the same opiuion as Macpherson, J. I agree with that learned Judge that, in the case of an appeal, which is not an appeal from the order of the Court which originally passed the decree, tliat is to say, ia the case of an {fppeal to the Privy Council, the Court of original jurisdiction has no power to take security, and upon that security to stay execution. I think, however, that, as laid down by Macpherson, J., in the order which refers the case to the Full Bench, the Court which made the original decree first appealed from has jurisdiction to entertain and 54.G FULL BENCH RULIXGS. 1866 dispose of an application for the issue of execution even after an appeal J. P. Wise to the Privy Council has been admitted, provided that no order to the Eajkrishna contrary has been received from the High Court. I believe that there is a great deal of hardship in the practice that has hitherto prevailed in respect of appeals from this Court to the Privy Council. It frequently happens that a man who has carried his case through the Courts'for perhaps the greater part of his life may find that the fruit of his litigation is indefinitely postponed, although he has the clearest and best of cases, simply because the other party has thought fit to file an appeal to the Privy Council, in the decision of which there must be necessarily a considerable delay. I have heard, I know not whether true or not, that a great millionaire of this city, who had a very large litigation, was in the habit of appealing, upon principle, every case to the Privy Council, " because," said he, " I am only charged 5 per cent, so long as the appeal to the Privy Council lasts, whereas by keeping the decree-holder out of his money I can obtain 20 per cent, in the bazar." The practice of the lower Courts has no doubt hitherto been that, upon appeal to the Privy Council, execution has been stayed. I am very glad that this case has been referred in order that it may be decided whether the practice (as during the course of the argument was suggested by Jackson, J.) is founded only upon superstition, or whether it is really founded upon law. The general law of the country, applicable to all cases, is the law laid down by the Act of Civil Procedure, s. 338, and s. 36 of the amending Act XXIII of 1861. The general result of these pro- visions of the law is that it is entirely in the discretion of the Court to stay execution or not to stay execution, taking or not taking security. Well, I do not think that s. 4, Regulation XVI of 1797, is at all at variance with that general provision of the law. That section lays down that in cases of appeal to His Majesty in Council, the Court of Sudder Dewanny Adawlut may either order the judgment passed by them to be carried into execution, taking sufiicient security from the party in whose favor the same may be passed for the due performance of such order or decree as His Majesty shall think fit to make on the appeal, or to suspend the execution of their j udgment during the appeal, taking the like security, in the latter case, from the party left in possession of the property adjudged against him." ■ The word used both in. the first and second clauses is " may" and not " must." It seems that the provi- sions of that law do not msvke it compulsory upon the Sudder Dewanny FULL BENCH RULINGS. 547 Adawlut, now represented by the High Court, to adopt either of those iggg courses. There is also necessarily a third case in which neither party T . ^ ^ *' J. P. Wise may give security. In such cases I do not think that a. 4 of the «• Rl ^' t J • , -, . . * Rajkkishna egulation quoted can in any way be made to apply, and consequently Roy. such cases must be left to the operation of the ordinary law. There- fore, the law being, as it seems to me, in its literal reading plain, I do not think that we are bound to put upon it a forced construction which it does not literally bear, if that construction would work injustice, as I think must be worked by any construction which makes it compulsory to hang up a case upon appeal (with or without reasonable cause) in which the decree-holder is not in a position to give security. Where the literal interpretation is in favor of the poor man, we are not, I think, in any degree bound to put upon it a hard interpretation against him. Therefore, in the absence of any order of this Court, the Court below has, I think, jurisdiction to issue execution. With regard to the matter of discretion, it certainly seems that the lower Court, knowing the law and practice of this Court in such cases' ought not to allow the judgment-creditor, as it were, to snap execution. The proper course for him would have been to say to the judgment- debtor:— "I cannot refuse execution; I will not refuse execution, but you are entitled to apply, under s. 4, Regulation XVI of 1797, to the High Court ; and in case "it should see fit to pass an order under that section, I give you a reasonable time within which to obtain an order, if you can." In this case, we have not had the facts completely before us. We do not know what time elapsed between the filing of the appeal to the Privy Council and the application for execution, but it does not appear that the lower Courts ever proposed to give to the judgment-debtor such a time as I think might reasonably have been given to apply to this Court. Therefore, in my opinion, the proper order now to be passed would be this. That the order for execution passed by the lower Court should be stayed for, say two months, in order to give the judgment-debtor an opportunity of applying to this Court for the issue of any order which this Court may deem proper under s. 4, Eegulation XVI of 1797. I also think that any inconvenience which may be apprehended from the undue snapping of decrees, has been obviated by the late decision of the Privy Council (1). That decision rules that even although execution may have been already carried out, never- theless the High Court has power, under the general provisions of the (1) Miissumat Jariul-ool-Butool v. Mtissumat Bossinee Begum, 10 Moo. I. A., 19G. 548 rULL BENCH RULINGS. 1866 law, to lake such steps as it may deem proper for the proteetioa of J. P. Wise the properly. Therefore, if it should happpen that ia this case execution Bajkrishua has been carried out, still I believe that, on a proper application being made to this Court and good reason shown, the Court may nevertheless protect the property, if it is necessary to protect it. Jackson, J. — I am of the same opinion as Macpherson, J. I have no doubt that, under s. 362 of the Civil Procedure Code, the Prin- cipal Sudder Ameen had prima facie authority to execute the decree cf this Court even though an appeal against that decree to Her Majesty in Council had been preferred. At the same time, this Court is competent, under s. 4, Regulation XVI of 1797, to provide for the due protection of the property, the subject of dispute, pending the appeal to Her Majesty in Council. That power of protecting the property under such circumstances is not vested in the Zilla Court, or in any subordinate Court, but in the High Court only. That being so, and that power having invariably been exercised by the High Court upon application, it appears tome that, adverting to the language of s. 221 of the Code of Civil Procedure, the knowledge of the circum- stance (brought to his notice) that an appeal to Her Majesty in Council had been admitted, ought to have appeared to the Principal Sudder Ameen a " sufficient cause" for not issuing the warrant for execution of decree. He must have known that it was in the power of this Court to make an order, and that the Court, if applied to, would make an order, eitlier for execution of the decree upon the party executing it giving sufficient security, or for the suspension of that execution on security being given by the opposite party. It seems to me, therefore, that the Principal Sudder Ameen exercised, under the circumstances, an improper discretion in allowing execution to proceed. I think, therefore, that the proper order for us to make is that the order of the Principal Sudder Ameen directing immediate execution be set aside, and that the case stand over until the further orders of this Court. Loch, J. — It appears to me that until an appeal to the Privy Council is admitted, the first Court may deal with the application for the execu- tion of the decree of the Appellate Court as if it were an application for execution of its own decree. But where an appeal has been admitted, I think that the decree cannot bo executed except as provided by s, 4, Regulation XVI of 1797. If, therefore, execution of a decree from which an appeal to the Privy Council has been admitted is applied for, the Court whose duty it is to execute the decree should PULL BENCH RULINGS. 549 stay its hand, as it is empowered to do under s. 221, Act VIII of 1859, jggg leaving the parties to apply to the High Court, either the decree-hx)lder j_ x^ Wise for execution or the judgment-debtor to suspend exeeutiou ; and that k^j^kishna Court will be gaided by the rules laid down in &> 4, Regulation XVI 1^"^- of 1797. It is unnecessary in this case to express any opinion as to whether the terms of s. 4 of tlie above Regulation render it imperative upon this Court to take security in all cases. I think that in this case the order of the lower Court is wrong, and that it should be reversed. Peacock, C.J. — I am of opinion that, in a suit m which an appeal to the Privy Council from a decree of this Court has been admitted, and is still pending, the Court of original jurisdiction which made the decree first appealed from has jurisdiction to^ issue execution, but I agree with the learned Judges who are of opinion that in this case the proceeding ought to be stayed until further orders of this Court. One question for determination i& whether, under Regulation XVI of 1797, s. 4, it is compulsory upon' the High Court (who now represent the Sudder Court) either to take security from the plaintiff or from the defendant, or whether there may not be certain circumatrmces under which the Court, exercising a sound and proper discretion, may allow a plaintiff" to execute his decree without security, notwithstanding an appeal has been preferred from, that decree to Her Majesty in Council. As a general rule, no doubt, a decree of this Court ought not to be executed pending an appeal without security from one party or the other, but there may be cases in» which it would be unjust tO' prevent a plaintiff' from executing his decree without giving security even when the opposite party is willing to give security. It was contended that, as the Court is authorized to do one of two things, it must do one of them and that it cannot allow the decree to be executed pending appeal without taking sufilcient security. The word used in the Regu- lation is "may." The word "may" is sometimes read as "must "or "shall." But in this case it appears to me that it may properly be read in its ordinary sense, which leaves it to the discretion of the Court either to take security from, one party, or the other, or to allow the decree to be executed without requiring security at all, if, in the exercise of a sound discretion, it sees fit to do so. If we hold that in this case the High Court cannot, in its discretion, allow the decree to be executed without taking security, we shall, in effect, hold that this Court has a less discretion in the case of au iippenl to the Privy Council than the 26 550 FULL BENCH RULINGS. I86B lower Courts have in appeal from their judgments. If a lower Court J P WisK Passes a decree, it may, under a. 338 of the Code of Civil Procedure, _ "■ stay execution ; but it cannot do so, unless the party against whom the iCA JKRISHN A Boy. decree is given shall give security. The section says: — "Execution of a decree shall not be stayed by reason only of an appeal having been preferred against such decree ; but the Appellate Court may, for sufficient cause shown, order that execution be stayed. If application for execution be made before the time allowed for appeal has expired, and the lower Court has not received intimation of an appeal having been preferred, the lower Court, if sufficient cause be shown, may stay the execution." There the word " may " leaves it in the discretion of the Court to order execution to be stayed or not. But then the section goes on : — " Before making an order to stay execution, the Court making the order shall require security to be given by the party against whom the decree was passed, for the due performance of the decree or order of the Appellate Court." In the latter part of the section the word " shall " makes it compulsory on the Court to require security before staying the execu- tion. But the converse does not hold, and it is not compulsory on the Court to require security before it allows execution upon a decree against which an appeal has been preferred. By s. 36, Act XXIII of 1861, it is enacted that "when an order is made for the execution of a decree against which an appeal has bden preferred, it shall be lawful for the Court which pronounced the decree to require security to be given for the restitution of any property which may be taken in execution of the decree, or of the value thereof, and for the due performance of the decree or order of the Appellate Court. The Appellate Court may, in any such case, direct the Court which pronounced the decree to take such security." The words " it shall be lawful for the Court" leave it discretionary. I am of opinion that the High Court has a similar discretion vested in it. Before the passing of Act XXV of 1852, the Sudder Court executed its own decrees, but by that Act the decrees of the Sudder Court were to be executed by the Court which passed the first decree. That Act, as regards decrees of the High Court and of the Mofussil Courts, has been repealed, and s. 362, Act VIII of 1859, has been substi- tuted for it. By that section it is enacted — " that application for exe- cution of the decree of an Appellate Court shall be made to the Court which passed the first decree in the suit, and shall be executed by that Court in the manner aud according to the rules hereinbefore FULL BENCH RULINGS. . 551 1866 , p. Wise contained for the executioa of the original decrees." No order from this Court is necessary before the lower Courts can execute a decree passed in appeal. I am now speaking; of cases iu which no appeal has "• „ . r o ff Eajkkishna been preferred from the decree. The decree of this Court is sent Key. to the Court which passed the first decree, and, under s. 362, the Court has power, without any further order, to carry it into execution. It may be that, before the application to the lower Court for execu- tion of the decree, or pending the executioa of the decree, or even after the decree has been executed, an appeal may be preferred from the decree. It may be that, though such appeal has been preferred before the application for execution, the lower Court may not be aware of the fact. We cannot say that simply because an appeal has been preferred against the decree, the jurisdiction of the lower Court to execute the decree is at an end. The lower Court has power to execute a decree of this Court, whether an appeal has been preferred or not, unless restrained by an order of this Court, but then the question is, whether the Court, when it is informed that there has been an appeal to Her Majesty in Council from the decree which it is called upon to execute, would be exercising a sound discretion in issuing an execution without giving the parties an opportunity • of applying to tiiis Court for an order to stay the execution, or to require security from the party left in possession. Jackson, J., has referred to s. 221 of the Act, which enacts that, "when all becessary preliminary measures have been taken, where any such are required, the Court, unless it see cause to the contrary, shall issue the proper warrants for the execution of the decree." Well, then, suppose the lower Court is informed that since the decree was sent to it by the High Court, the parties have appealed against the decree to Her Majesty in Council, is not that a sufficient cause why the lower Court should, in the exercise of its discretion, stay its hand, and allow time to the parties to apply to the High Court, instead of proceeding immediately to issue a warrant of execution. I should say, as a general rule, that in such a case the Court ought to stay its hand, unless it should see danger of the property being made away with in the interval. I agree with Macpherson, J., that s. 338 of Act "VIII of 1859 and s. 36 of Act XXIII of 1861 do not give to the lower Courts power to take security in the case of an appeal from the decree of this Court to the Privy Council. It is quite clear, when we read the sections, that they were not intended to apply to such a case. Take s. 36 — " When an order is made for the execution of a 552 FULL BENCH RULINGS. 1885 decree, «gainst which an appeal has been preferred, it shall be lawful J. P. Wise ^°^ '^^ Court which pronounced the decree to require security to Rajkkishna ^^ given for the restitution of any property which may be taken KoY. in execution of the decree, or of the value thereof, and for the due performance of the decree or order of the Appellate Court." " The Court which pronounced the decree." The lower Court is not the Court which pronounced the decree, when the decree to be executed isB decree of a Court of Appeal. The section goes on to say that it may also take security " for the due performance of the decree or order of the Appellate "Court," that is, the Court of Appeal from its own decision. But the clause never meant that when a decree of the High Court is sent to the Mofussil for execution, that the Mofussil Court can take security for the due performance of the decree or order of the Privy Council. That must be done by this Court under s. 4, Regula- tion XVI of 1797, before it can allow the appeal, for that section declares that "in all cases security is to be given by appellants, to the satisfaction of the Sudder Dewanny Adawlut, for the payment of all such costs as the said Court may think likely to be incurred by the appeal, as well as for the performance of such order or judg- ment as His Majesty, his heirs or successors, may think fit to give thereupon." If this Court must take security, it could not have been intended that the lower Court may also take security for the same thing, for in that ease the security might be taken tw'ice over. In this case the Principal Sudder Ameen was informed that an appeal had been preferred to the Privy Council. He knew that he had no power to take the required security, and he must have known that the only Court which could take the required security is the High Court. Then was not that suiScient cause for staying his hand. It appears to me that it was, and that he ought to have stayed his hand until some orders were obtained from this Court. Under these circumstances, I think that this Court would have the power to reverse the decision of the lower Court on appeal, but it is not necessary to do that, because it may be that these proceedings will eventually go on, and therefore all that it is necessary to do at present is to stay the proceedings until the further orders of this Court ; that is the opinion of the majority of the Court. On the other hand Campbell, J., is of opinion that the order ought to be stayed for two months, to give the judgment-debtor an opportunity of applyin'' to this Court for the issue of any order which it may think proper to make ; and at the end of that time if no such order be made, the execution to FULL BENCH RULINGS. 553 go on. The majority of the Court think that we ought not to igee allow execution to go on witliout security on one side or the j p. vPisic other, unless we see good reason to the contrary. We ought to u.^jjiuignNA be satisfied either that the party who issues the execution of the ^^°^' decree is unable to give security, and that he will be injured by staying the execution upon security being given by the opposite party, or that there is some reason why he ouglit to be allowed to execute his decree without giving security. Until we know what are the actual circumstances of this case, we ought not to allow the execu- tion to go on without security. It is not shown to us that this is such an exceptional case as would justify us in jeopardizing the property by allowing the execution to be proceeded with without security. The order of the Principal Sudder Ameen in this case, for issue of the warrant of execution, will be stayed until the further orders of this Court. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Pundit. CHUNDER MADHUB CHUCKERBUTTY (Plaintiff) u. RAM COOMAR 1SG6 CHOWDRY AND OTHEKS (DEFENDANTS).* ^"^P'' '" Limitation — Non-suit—institution of fresh Suit — Act XIV of 1859, s. 14. The plaintiff instituted a sait under the old Law (Reg. Ill of 1793), and was non-suited on appeal, because the plaint was defective in not stating the boundaries of the land claimed. While the appeal was pending. Act XIV of 1859 came into operation. He instituted a fresh suit, and claimed to deduct the time occupied in prosecuting the former suit and appeal, under the provisions of Act XIV of 1859, s. 14. Held (by the majority of the Court) that the plaintiff was non-suited owing to his negligence, and the time sought to be deducted from the period of limitation could not be allowed. Per Loch and Pundit, JJ. — Under the circumstances the time should be deducted in computing the period of limitation (1). In this case the question was whether the plaintiff could deduct from the period of limitation the time during which a former litigation on the same subject was pending. He sued to recover possession of certain lands, and the Principal Sudder Ameen passed a decree in his favor; but on appeal the Judge ordered the plaintiff to be non-suited on the ground that the boundaries of the lands claimed had not been given in the plaint. Pending the appeal. Act XIV of 1859 was passed. * Special Appeal, No. 3296 of 1865, against a decree of the Judge of Zillah Tipperah, dated the 3 l3t August 1865, affirming a decree of the Principal Sudder Ameen of that district, dated the 9th March 1866. (1) See 3, 15 of Act IX of 1871. 554 FULL BENCH RULINGS. 1866 The plaintiff thereupon instituted the present suit against the same Chusoeb defendant on the same cause of action, specifying the boundaries of Madhub the land in question. That his suit might not be barred under the Chuckkb- ° BUTxr provisions of the new lavsr of limitation he claimed to be allowed to V. Kam Coomar deduct the time occupied by the former suit and appeal. In consequence of the conflict of decision in tlie cases of Nund Doolul Sircar v. Dwarkanath Biswas (1), Sha Keramut Hosein v. Golab Koer (2), and Shamboonath Biswas v. Kisto Dhun Sircar (3), the case was referred for the decision of a Full Bench with the following questions by Kemp and Campbell, JJ., before whom the appeal came : — 1. "Whether the time occupied by the non-suited case should be excluded ? 2. " Whether the time occupied by the appeal should be excluded ? 3. " Whether the time occupied between non-suit and filing of appeal (the appeal being filed within the prescribed time) should be excluded ?" Baboo Kalikishen Sein for the appellant. Baboos Dwarkanath Mitter and Romesh Chunder Mitter for the respondents. The following judgments were delivered :— Peacock, C.J. (Trevor, J., concurring). — This is a case which was brought whilst Act XIV of 1859 was the Law of Limitation, and there- fore that law is applicable to the suit. S. 14 enacts — " In computing any period of limitation prescribed by this Act, the time during which the claimant or any person under whom he claims shall have been engaged in prosecuting a suit upon the same cause of action against the same defendant, or some person whom ho represents bona fide and with due diligence in any Court of Judicature, which, from defect of jurisdiction or other cause, shall have been unable to decide upon it, or shall have passed a decision which, on appeal, shall have been annulled for any such cause, including the time during which appeal, if any, has been pending, shall be excluded from such computation." The first question is whether the time during which the plaintiff was prosecuting a suit in which he was non-suited comes within the words of s. 14 " the time during which the claimant shall have been engaged in prosecuting bond fide and with due diligence in any Court of Judicature, (1) 2W. B.,9. (3) 5 W. E., S. C. C. Ref., 8. (2J 3 W. K., 101. FULL BENCH RULINGS. 555 which, from defect of jurisdictioa or other cause, shall have been unable jges to decide upon it." It appears to me that, where n plaintiff is non- Chundkr suited, he cannot be said to have prosecuted bond fide and with due chuckkk- diligence ; further, I am of opinion that the words " or other cause " Buttt must mean a cause of like nature as defect of jurisdiction. Now a defect Eam Coomak Chowdry, of jurisdiction would be a cause that would not include any neglect on the part of the plaintiff either in stating his case or in other respects. , For instance, if the plaintiff should fail to appear or to produce his witnesses on the day fixed for the hearing, the Court would be unable to decide upon his cause of action. But that would not be a cause for which time ought to be deducted under the section, for it could not be said that the plaintiff was prosecuting his suit bond, fide and with due diligence, or that the Court was prevented by want of jurisdiction or other cause not connected with the plaintiff''s own negligence from deciding upon the case. I am of opinion that the time during which the plaintiff was prose- cuting a suit in which he was non-suited ought not to be deducted. It was contended that the plaintiff was non-suited merely because he neglected to state the boundaries of his land, but if the uncertainty of what the plaintiff was suing for was such as to prevent the Judge from deciding upon the case in the first suit, it must equally prevent the Court in the second suit from determining whether the former suit was for the same cause of action. Suppose a person were to sue for damages, and state that he has sustained damage by some act, without specifying that which the defendant committed. Suppose the Judge were to say " I cannot discover what it is for which the plaintiff claims damages," and should dismiss his claims ; I do not think that that would be a cause for deducting in a second suit, specifying the injury, the time occupied by the plaintiff in the former suit. Then, if the cause alleged in this case, namely, the non-statement of the boundaries of the land in question yjsA such as to prevent the Judge from knowing really what the plaintiff was suing for, I do not see how it can be shown in the present case that this suit is brought for the same cause of action. If the ambi- guity prevented the Judge from deciding that suit, how can it be said that the former and present actions were brought for the same cause. For these reasons I am of opinion that the time during which the plaintiff was prosecuting his former suit ought not to be deducted. Therefore, the question propounded may be answered thus, that the plaintiff is not entitled to deduct the time occupied by him in prose- cuting the former suit in which he was non-suited. If the time occupied 5 56 FULL BENCH RULINGS. IRHR in prosecutiug the suit cannot be deducted, it follows that neither Chundki: the time occupied in appealing from that decision, nor the time occu- Chuckbk- pisd between the non-suit and the filing of the appeal can be deducted. BUTTY jj. jg gjjjj jjj^j. jjjjg jg j^ hard case. It appears, however, that deducting all ]{am Coomab the time occupied in prosecuting the former suit and appeal, with the exception of the short period between the time of the non-suit and the filing of the appeal, twelve years and eleven days elapsed between the accruing of the cause of action and the commencement of the present suit. In fact, more than sixteen years and a half intervened between the date of dispossession and the commencement of the present suit. The plaintiff has only himself to blame for the delay. The appeal is dismissed with costs, and the decision of the lower Appellate Court affirmed with costs. Loch, J. — It appears to me that the peculiar circumstances of this case must be considered. The case was instituted under the old pro- cedure, and under that procedure, where boundaries were not given, the plaintiff was non-suited, and had to pay all the costs. That was considered the penalty for filing a defective plaint. During the pendency of that suit in appeal the new law has been passed, and the party now tries to bring in his fresh action uaderthe new law, and he finds that he is out of time, and he points to s. 14, Act XIV of 1859, and says : — " Allow me the time which is mentioned in this section, and I shall be in time. I formerly prosecuted the suit bona fide in a Court having juris- diction ; but I was non-suited under the then existing rules of procedure, but that rule did not dismiss my claim." Looking to tlie wording of s. 14, Act XIV of 1859, itappeai-s to me that the words " other cause" are large enough to embrace the present case. The absence of boundaries was a defect which had, under the old procedure, its peculiar penalties attached to it, but the defect was not considered of so serious a nature as to deprive the plaintiff of the benefit of the time during which the case had been pending. In this case all the circumstances which warrant a Court under the present law in granting time appear to meet. The parties are the same as in the former case, the cause of action is the same, the former suit was brought in good faith, and prosecuted with due diligence, to a successful termina- tion befoi'e thePrincipal Sudder Ameen,but in appeal the plaintiff was non- suited, not for want of jurisdiction in the Court, but from another cause, namely, the absence of boundaries in the plaint, — a defect wliich, under the former practice, was a sufficient ground for an order of non-suit with PULL BENCH EULINQS. 557 costs ; but which carried no further penally witli it. The plaintiff was iges not prevented from bringing a fresh suit, nor did he lose the lime while Chunder his former case was pending. It is difficult to understand the mean- ^adhub ing to be attached to the words " other cause" if they be not applicable butty to cases such as the present. Under this view of the case, 1 think this Eam Coomar suit IS within time. Jackson, J. — I concur with the Chief Justice in opinion. It appears to me that to entitle a plaintiff to the benefit of the terms of s. 14 of the Limitation Law, it must be shown that his suit had been prosecuted bona fide and with due diligence, and that the Court was unable to decide upon it from some cause quite unconnected with the default or negligence of the plaintiff. To hold otherwise would be inconsistent with the use of the words " bona fide" and " with due diligence." It does not by any means follow in every case that, because the Court have been obliged to refrain from deciding the case for want of juris- diction, the party would have been entitled to avail himself of the time during which the suit was pending, because it might so happen that the party knew well that the Court in which his suit had been brought was not the Court to which he ought to go. In that case the suit was not bona fide, fmA. he is not entitled to that time. It appears tome that the inability of the Court must be either from unavoidable circum- stance over which no one has any control, or something incidental to the Court itself and unconnected with the acts of the parties. Pundit, J. — I admit that the case of the appellant is to be guided and determined by Act XIV" of 1859, but hold that, when the former case brought by the special appellant on the appeal of the opposite party, the claim of the appellant was dismissed without a trial on the merits on the ground of the plaint being deficient in specifications of certain boundaries of the lands claimed, the appellant is entitled to a deduction of the period for which the former case was pending. When the Court hearing the appeal (in the former case) thought that the plaint in it was so defective that no decree could be passed upon it, the plaintiff is entitled to the benefit of s. 14 of Act XIV of 1859, because for want of boundaries the Appellate Court trying the former case had thought itself unable to try it on the merits. It is admitted that the deduction provided for in the above section of the law is not limited to cases dismissed without trial for want of jurisdiction, but is also intended to apply to many other cases decided without trial of merits for many other causes. 27 558 PULL BENCH RULINGS. 1866 Just as the institution of a case in a wrong Court not having jurisdic- Chundeb tion must necessarily be in the eye of the law an act of neglect of the Chuckek- plaintiff, so the .oraissioa of bouudaries by him is the effect of neglect. BUTTY J^ fjjQj. iumost of the cases decided without trial of merits, the cause of Eam Coomak the inability of the Courts to decide on merits must be the plaintiff's Chowdky. ... fault. When plaintiff had in right earnest brought his former suit, ana proceeded with it, the fact of a Court of Justice having considered itself unable to decide it on the merits owing to some mistake of the pl.iintiff would not be any good ground for denying to the said plaintiff the deduction allowed by the aforesaid section. The defendant did not object below that the present action is not for the same lands that the plaintiff had sued for before, and the details of both the claims distinctly show that the cause of action in both the cases was one and the same. Uuder the old law and practice, the mofussil Courts often non-suited plaintiffs for want of boundai'ies, — an accident not likely to happen under the present law, Act VIII of 1859. I admit that even, for cases dismissed for want of jurisdiction, the Court asked to make a deduction must be satisfied that the former case was a bona fide suit before it would be empowered to allow the deduction asked, but I am hot prepared to rule that in this case, the Appellate Court trying the first case considered itself and was therefore able to decide that suit on the merits, or that the omission of boundaries shows that the suit was not bona fide. We cannot in this case try whether that Appellate Court had rightly or wrongly non-suited the plaintiff, but cannot disavow the fact that that Court did not try the case on the naferits. We must hold that legally this decision of that Court amounts to an admission of its inability to try it on the merits, and if it held so, it should be held for the purposes of this deduction asked, that that Court was unable to decide the suit on its merits. I would therefore allow the deduction asked. PULL BENCH RULINGS. 559 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Pundit. BABOO KOOLDEEP NARAIN SINGH (Plaintipp) v. MOHADEO SINGH 1866 AND OTHERS (DEFENDANTS).* (1) ^^^*' ^■ Ghatwali— Hereditary Tenure—Words of Inheritance in Mussulman Grants— Ghatwal Services, Cessation of— Enhancement of Rent of Ghatwal—Act XI of 1859, «. 37. The plaintiff, an auction-purchaser of a zemindari at a sale for arrears of revenue sued, in 1863, to eject the defendants from certain mouzahs included in the zemindari and which were held by the defendants under a ghatwali tenure, on the ground that the service for which the grant was made was no longer required, and that the sunnud or grant, contained no words of inheritance. The defendants proved that the grant was made in the year 1743 to M,, after whose death the land was in the possession of M.'s heir-at-law prior to the permanent settlement ; that he and his ancestors had enjoyed uninterrupted possession in direct succession from a period prior to the permanent settlement at a quit-rent of Rs. 61 per annum. The Collector appeared on behalf of the Government, and stated that the ghatwali services had not been dispensed with by the Government, but might be required at any time. Held, the plaintifi was not entitled to eject the defendants (2). Per Peacock, C.J. — The case falls within, and is protected by, s. 37 of Act XI of 1859- Per Trevor and Jackson, JJ. — S. 37 of Act XI of 1859 does not apply to the case. Quare. — Is the zemindar entitled to enhance the rent of a ghatwal in lieu of service ? The plaintiflf ia this case sought to recover possession with mesne profits of certain mouzahs in Bhaugulpore. He based his title upon a purchase in 1863 at an auction-sale for arrears of revenue of the zemindari under which the mouzahs were held. The defendants alleged that the grant under which they held was dated 1150 F. (1743) ; that though words of inheritance were cot expressly inserted in it, yet as it had always been treated as one descendible to him by the former zemindars of Dustpore, the plaintiff had no right to eject him, and that, if the defendant was not entitled by virtue of his * Eegular Appeal, No. 290 of 1865, from a decree of the Principal Sudder Ameen of Bhaugulpore, dated the 21st June 1865. (1) See the Judgment of the Privy Council in this case on appeal — Kooldeep Narain Singh V. Government, 11 B. L. E., 71 ; S. C, 14 Moo. I. A., 250, (2) - See Forbes v. Mir Mahomed TaU, 5 B. L. R., 529. 660 FULL BENCH RULINGS. 1866 grant to hold at a fixed rate, still, on the ground of long possession, it ^7 ~ was not competent to the plaintiff to resume the tenure. KooLDEEP In his written statement, the plaintiff said : — " The sunnud waa NarainSinoh ,. 1 . , V. granted on condition of ghatwali service, the performance of which, SiNOH. in behalf of the defendants, has been dispensed with for a long time, nor is there any necessity for the service. Tour petitioner is entitled to take possession of the disputed mouzahs, in consequence of the same having been comprised in the property purchased by him, and of the service of ghatwali, wliich was a condition of the grant, having been dispensed with." It was contended on the part of the plaintiff that, as the services were no longer required, and had been dispensed with, he was entitled to put an end to the tenure, and to recover possession of the lands. It did not appear that the services had ever been expressly dispensed with by the plaintiff or his predecessors, or that any distinct notice was given to the defendants, before he commenced this action, that the services were no longer required, and that the plaintiff intended to treat the defendants as trespassers. The Collector appeared on behalf of Government, and put in a written statement to the effect that the Government had not renounced its claim to demand ghatwali services, and that it would enforce the demand when necessary. The sunnud used in which they held was in the following terms : — " Whereas the service of ghatwali of Tuppeh Dakhilgunge, pertaining to the said pergunnah (Bhaugulpore) and Mouzahs Khotul, &c., appertain- ing to the said tuppeh as ghatwali tenure, were conferred upon Mohadeo before ; and whereas at present also he has been confirmed as per detail below" (in the detail the two mouzahs, the subject of the present suit, were included) " in his post as before ; it is there- fore incumbent that, in the performance of the duties attached to the said service, he should guard and protect the roads, and watch over the tuppeh with great diligence, and should take care of the ghats or passes, so that travellers may travel without fear, and no thieves, highway robbers, nor murderers, by night, may obtain shelter within the said limits. If the property or cattle of any person be stolen or plundered, or murder be committed by night, he should find out the actual thieves with the property, and transmit them to the huzoor with proper care and precaution. Should he fail to trace out the property or cattle, he shall be answerable for value thereof, together with a fine, to the Sircar ; he should bring under cultivation the mouzahs aforesaid by proper efforts, and enjoy the produce thereof." It appears that there had been a quit-rent of Rs. 61 a year paid before the FULL BENCH RULINGS. 561 permanent settlement, which continued to be paid to present day, and 1866 that no other rent has been paid. The Principal Sudder Araeen Baboo dismissed the claim. He said :- ^^^^^JZa "As this case is on all fours with that decided by the Higli Court (1), ' Mohadko I have no alternative but to dismiss it. As in the case decided by the Singh. High Court, so in this, a sunnud by Mahomed Sadiq, bearing date 1150 F. (1743), as well as a decision of the Bhaugulpore Court by Mr. Fronbel of 1796, are produced. la the latter mention is made of sunnuds by Mahomed Sadiq of 1 150 F. (1743), and by Alia Koobee Khan in the fourth year of his reign, and of perwannahs by Messrs. Cleaveland and James Grant, dated 1198 F. and 1791. It further appears from it that this tenure was resumed by the Government in 1186 F. (1779), but was subsequently released, and that it has been paying a small quit- rent since its release. The plaiutiflf's pleader has made an attempt to change his cause of action by saying that the tenure is a common one, and therefore liable to cancelment under the provisions of the Sale Law, but the plaintiff cannot now be allowed to do so at the last stage of his case. Besides, as the tenure has been held at a fixed rent from before the permanent settlement, it is likewise protected under s. 37 of Act XI of 1859. It is therefore ordered that this case be dismissed with costs." This case came on for hearing before L. S. Jackson and Markby, JJ., by whom it was referred to a Fall Bench as follows : — Jackson, J. — It seems to me more convenient that this argument should not proceed further at present, because, although there are certain points of dissimilarity between this case and the case in which Trevor and Campbell, JJ., recorded their judgment in June last year, — Munrunjun Singh v. Rajah Lelanund Singh (1) ; — still the leading point in the case, namely, as to the nature of a ghatwali tenure, founded upon a sunnud such as that produced by the defendants in this case, is undoubtedly the same, and the leading point would have to be decided. But speaking for myself, I am not, as far as I am at present advised, prepared to concur in the judgment in that case, and looking at the extreme importance of the case, it appears to me that this case ought to be referred for the decision of a Full Bench. I therefore propose that the case be referred for the decision of a Full Bench. (1) 3W. B.,84, 562 FULL BENCH RULINGS. iggg Maukbt, J. — I entirely concur in the propriety of referring this z. case to the decision of a Fall Bench, Upon the case itself I express KooLDEEP no opinion. Nabain Singh V. MoHADEo Mr. Doyne (with him Baboos Dwarkanath Mitter and Unnodaprosad Banerjee) for the appellant. Baboos Kissen Kissore Ghose and Juggodanund Mooherjee for the Grovernment. Mr. Allan and Baboos Onoocool Chunder Mooherjee and Mohendra Lall Shome for the ghat wal respondent. The following judgments were delivered : — Peacock, C.J. (after stating the facts). — It appears to me that the Principal Sudder Ameen was right in dismissing the case, first, upon the ground that the defendants had a right in this tenure ■which it was not in the power of the zemindar to destroy ; and, secondly, that the plaintiff acquired no right to cancel the tenure by reason of his purchase under the auction-sale for arrears of revenue, and that he stood in no better position than the zemindar with whom the permanent settlement was entered into. From the deed, which we have before us, it appears that as far back as 1150 F., which corresponds with 1743, about twenty-two years before the East India Company obtained the Dewanny, a grant was made to Mohadeo of this tenure as a ghatwali tenure. It appears, further, that before the permanent settlement Mohadeo died, and his son succeeded to the ghatwali tenure ; for we find that a suit was brought in 1796, not against Mohadeo, but against his son, for the rent for four years from 1792, which was prior to the date of the permanent settlement. In that suit it was held that the plaintiff could not recover more than Rs. 61 a year, the rate at which rent had been paid up to that time. Thus we find that the estate was, in point of fact, in the possession of Mohadeo's heir-at-law before the date of the permanent settlement. (His Lordship read the sunnud, and remarked that it " was a confirmation, not the first grant of the gliatwali tenure," and proceeded). I have had the sunnud translated (reads). It is said that the sunnud contains no words of inheritance, and that the sunnud contains merely a life-grant to Mohadeo. It is unneces- sary to say what would have been the construction of this sunnud in the absence of usage, for it appears clear, from long uninterrupted usage, that these lands have passed from ancestor to heir, i.e,, from father to PULL BENCH RULINGS. 663 son, for two or three generations, and that it had passed, without objection isee on the part of the British Government, before the date of the perma- bIeoo nent settlement, to the heir of Mohadeo. In Mahometan grants it seems NAKAmSmoH that words of inheritance are not necessary. See Baillie on Land Tax of ,, "• •' Mohadeo India (Introduction, page 47), in which a distinction is drawn between Sihqh. such grants and jaghirs, or mere orders for payments out of the klieraj or revenue to a particular person. But, however this may be, I apprehend that, if there is no clear authority to show that a grant in lieu of services, authorizing the grantee to bring the lands into cultivation, and to enjoy the produce tliereof, season after season, and year after year, would not create a hereditary right, such a grant coupled witli long usage, such as that which has prevailed in the present case in which the tenure has passed from ancestor to heir without objection for several generations, would be sufficient to show that the grant was a grant of inheritance. But even if that were not so, speaking for myself alone, I should say that, when I find that there has been a grant ■which is not forthcoming, and the grantee has been confirmed in that grant with words such as those used iu the sunnud of 1150 F. (1743), long usage may be given in evidence for the purpose of explaining what would be the effect of the original grant if it had been produced, taken in conjunction with the grant of confirmation. The sunnud of 1150 F. (1743) refers to something which had taken place before; what that was is not precisely stated, but it is clear that it was intended to confirm Mohadeo in that which had been granted before. Surely, when he was confirmed in what had been granted before by a very old grant and the former grant is not forthcoming, usage is admissible for the purpose of explain- ing what that former grant was, and of showing that, whether under the sunnud by itself the party would or would not have been entitled to a tenure of inheritance, still he might be entitled to a heritable riglit by virtue of the sunnud, coupled with the furmer grant in wliich he was confirmed, as explained by the usage. There is no express law that a ghatwali tenure is not inheritable, and that it is a mere life-grart, nor is it even unreasonable to suppose that a ghatwali tenure may have been granted to a man and his heirs, because we have it expressly stated in the Bengal Regulation XXIX of 1814, with regard to the Beerbhoom ghatwals, that there is reason to believe that tbey held tenures from generation to generation. That is a distinct recognition on the part of the Legislature that a ghatwali tenure may be an inheritable tenure. A case in the Privy Council, Rajah Lelanund Singh v. The Government of Bengal (1), was referred to in course of argument, (1) 6 Moo. I. A., 101. 564 FULL BENCH RULINGS. 1866 in wliich it was held that ghatwali tenure was a tenure of inheritance, g^jjoQ not by the general heirs according to the Hindu law, but by the KooLDEBP eldest son alone. The marginal note of the case says, that " upon the "• death of the ghatwal, last seised, the lands descend entire to a male MOHADEO Singh. heir as ghatwal," but I do not find that the note is borne out to the full extent by the judgment. The right of the eldest son to inherit was laid down with reference only to the particular case under consideration, but it was not the intention, as I understand the j udgment, to lay down that the rule of primogeniture was applicable to all ghatwali] tenures. The case was one of the Beerbhoom ghatwali, but the present case relates to a tenure in Bhaugulpore. What Lord Kingsdown said was this : — " With respect to the ghatwali tenures in Beerbhoom, it is stated in a Regulation passed, with respect to them, in 1814 (Regulation XXIX of that year), that the class of persons called ghatwals in the district of Beerbhoom form a peculiar tenure, and that eveiy ground exists to believe that, according to the former usages and constitution of the country, this class of persons are entitled to hold their lands, generation after generation, in perpetuity, subject never- theless to the payment of a fixed and established rent to the zemindar of Beerbhoom, and to Ihe performance of certain duties for the main- tenance of the public peace and support of the Police. This .descrip- tion is confined in terras to the district of Beerbhoom ; but in the case of Hur Lall Singh y. Jorawun 5m^A (1), which occurred in 1837, a question arose as to the nature of these tenures generally, the point for decision being whether they were divisible on the death of a ghatwal or descended to his eldest son. One of the Judges states that these tenures are very common in the Nerbudda territory for the protection of the ghats. Another of the Judges seems to consider them as chakeran lands ; and the Court was of opinion that lands being held conditionally on the performance of certain defined duties, they were not divisible on the death of the ghatwal, but descended to the eldest son." The principle was there recognised that lands of this description were held by tenures created long before the East India Company acquired any dominion over the country, and that the nature and extent of the rights of ghatwals probably difiFerred in different districts and in difierent families, that the services were not merely for the mainte- nance of thannah or Police establishment ; and that although they would include the performance of duties of Police, they were quite as much in their origin of a military as of a civil character (pp. 124, 125). Even if the tenurecreatedby thesunnud of 1150 F. (1743) terminated (1) 6 S. D. A. Kep,, 1837, 169. FULL BENCa RULINGS. 565 on the death of Mohadeo, we still find that Monorath Singh, his son, was 1866 in possession before the time of the permanent settlement, and if neces- Baboo sary,it might be presumed from the subsequent usage of more than half a Nakain Singh century, that the tenure of Monorath Singh has a legal origin, and may hohadeo have been created by grant, made since 1150 F. (1743), which has been Singh. lost by time and accident, and is not forthcoming, but which from the fact of IVTouorath's having held from a time prior to the permanent settle- ment, as shown by the suit for the rent of 1792 and three following years,, must have existed before the permanent settlement. If a new tenure was created by the zemindar subsequently to the permanent settlement,, it would not be binding upon a purchaser for arrears of revenue ; but if Monorath Singh came in under a new tenure, and not under the sunnud of 1 150 F. (1743), it could not have been under a grant since the date of the permanent settlement, but must have been created anterior to it, inasmuch as Monorath was in possession of the tenure in 1792. It may be remarked here that the sunnud of 1150 F. (1743) was not merely a grant by the zemindar for the time being, but it appears to have been a grant by the Government of the time. We find that the tenure was created as far baclt as 1150 F. (1743), and that that was merely a confirmation of a still earlier giant ; that it was never disputed by the British Government, and that the heir of Mohudeo, who was the person holding the ghatwali tenure in 1150 F. (1743) was never objected to by the British Government, or by the zemindar with whom the permanent settlement was made. In point of fact, this ghatwali tenure existed long prior to the time of the grant of the Dewanny to the East India Company, and even if the sunnud of 1150 F. (1743) did not create an inheritable tenure, Mohadeo's heirs have in fact been holding from a period prior to the time of the permanent settlement to the present time. I think therefore that the evidence is sufficient to prove that the defendants have been holding under a valid tenure of inheritance upon gliatwali service and a quit-rent of Rs. 61 a year. It was contended that the lands comprised in this tenure were assessed at the time of permanent settlement. There is no doubt that they were so assessed, and were included in the raal lands of the zemindari. Previously to the permanent settlement there had been a quit-rent of Ks. 61 a year paid for these lands in addition to the ghatwali services. This rent has continued to be paid from the time of the perma- nent settlement, and no other rent has been paid for the lands from that date to the present time. In assessing the amount of revenue to be paid by the zemindar to the Government the amouut in respect of these 28 566 FULL BENCH RULINGS. iggg lands was fixed at the same amount as that which was payable by thee Baboo holders of the tenure, viz., Es. 61 a year. If, at the time of the per- Narain'singh manent settlement, the lands were held at Ks. 61 a year in addition „ "■ to the ghatwali services, and it was considered that the ghatwali SiKGH. services might be dispensed with, and the lands resumed by the zemin- dar whenever he might think proper to do so, it is not very likely that, in fixing the assessment for the zemindari, the value of the lands in question should have been taken at only Rs. 61 a year. In estimat- ing the lands at Rs. 61 a year in fixing the total assessment for the zemindari, the Government must have considered that the tenure was a permanent one descendible to heirs, and that the holders of the ghat- wali tenure would continue bound to perform the services. If the tenure was a valid heradiiary tenure at the time of the permanent settle- ment, and if the British Government could not have ousted the ghat- wali tenants from the tenure which had been created by the Native Government, the zemindar had no riglit, notwithstanding the lands were permanently settled with him by the Government, to do more than the Government themselves could have done. It is stated ou behalf of the plaintifiF, that if he recover possession of these lands and be allowed to turn the defendants out of possession, he will perform the ghatwali services if the Government requires the performance. But what security have the Government that the plaintiiF will perform the services ? If the lands are held subject to the services why should the plaintiff be allowed to resume them, and turn out those who hold by the ghatwali service. The lands are subject to the service, the defendants are entitled to the tenure ; the plaintiff is entitled to the quit-reut, and the Government to the revenue ; the services are public and for the benefit of the public, and not private for the benefit of the plaintiff alone, 'jphe plaintiff's offer shows that he does not look upon the services as mere private services. But it is contended on his behalf that the whole zemindari of the plaintiff of which these lands form part is a ghatwali zemindari. I confess that I do not perceive any force in the argument. If the whole of this zemindari, when it was assessed at the time of the permanent settlement, had been rendered subject to the performance of ghatwali services, then it might be called a ghatwali zemindari, but it is not because some lands in a zemindari are held upon a ghatwali tenure, and are subject to ghatwali services, that the whole zemindari is ghatwali. But if the zemindari was subject to ghatwali service, I should expect to find it distinctly recorded in the settlement that the zemindari was granted FULL BENCH RULINGS. 567 «ot merely subject to certain revenue, but also subject to the perform- jgee ance by the zemindar of those services. The Government would bIboo certainly not have left out of the records of the settlement such an w^KAiifs^iNab important provision as that the zemindari was settled upon condition of ^■ ^ MOHADEO the zemindars performing certain ghatwali services in addition to the Singh. payment of the revenue assessed. I am not aware that any such revenue settlement was ever made, but even if it was, it could not destroy the rights of those to whom valid tenure had been previously granted, either by the British Government or by the Native Government which preceded it. Some eases are cited to show that, even assuming these lands to be subject to a ghatwali tenure, the zemindar has a right whenever he pleases to dispense with the ghatwali services, and to take back the lands. Now I must say that this is the first time I have ever heard such a contention aa that a landlord can dispense with the services upon which lands are held, whenever he pleases, and take back the estate (1). It is not because the services are released or dispensed with or become unnecessary that the estate can be resumed. If a grantor release the services or a portion of the services, upon which lands are holden, the tenant may hold the land free of the services ; but the landlord cannot put an end to the tenure, and resume the lands. Many services upon which very valuable estates are held are of little value now. The estates may be very valuable, and the services almost valueless. But some large landed proprietors would be somewhat astonished if they were told that the services have been dispensed with, and their estates are liable to be resumed. It might as well be contended that, if lands were granted at a small quit-rent, the landlord might relinquish or dispense with the payment of the rent and take back the lands. It is said in the plaintiff's written statement that the sunnud was granted upon condition of rendering services. But even if it were so, the person to whom the condition is to be performed cannot, by dispensing with the performance of the condition, put an end to the grant. If lands were granted upon condition of paying a certain rent, the grantor or his representatives would have no right to say, when the lands are very valuable, "I will dispense with the performance of the condi- tion. I will exempt you from the payment of the rent, and I will take back the estate." If he could not do so in the case of rent, why . should he be able to do so in the case of services ? But even if the plaintiff could dispense with the services, how is it possible for him to (1) See Foibes v. Mir Mahomed Talci, 5 B. L, R., 529. 568 FULL BENCH RULINGS. iggg treat the defendants as trespassers, and turn them out of possession wheti Baboo ^^^ i'6nt of Rs. 61 a year .has been paid for tliem for a period cora- N^eTtoSingh raeiicing prior to the permanent settlement ? It appears to me that the ,, "■ defendants have as good a right and title to the lands, subject to the rent MOHADEO & to > J SisGii. and service, as the Government itself has to the revenue ; and the pliiintiff, as an auction-purchaser, cannot be in a better position than tlie Government was at the time when the zemindari of which the lands are held was permanently settled. The case of Tekayet Jugmohon Sing V. Netanund Sing (1) was cited in support of tlie doctrine that the grantor of ghatwali services could relinquish the services whenever he pleased, and take back the estate. In that case, it appears that the estate was forfeited, because the ghatwali holders refused to attend on the auction-purchaser. It is true that the late Sudder Court went further. They said : — " But admitting for argument's sake that the defendants were in possession from 1185 F. (1778), this fact would not entitle them to hold the lands at a fixed jumma, or retain possession of them after they had ceased to perform the duties for which those lands were assigned to them." They say, further: — " The condition on which the ghatwals held their lands is the performance of certain services, the rent paid by them is fixed with the object of preserving the connection between the ghatwali tenure and the parent estate, to show that the former is part and parcel of the assessed lands of the latter, let out to certain parties at a nominal rent, on condition of the performance of certain services in lieu of the full rent." And again, further : — " As the ghatwali lands are given as remuneration for services, when that service ceases or is no longer required to be performed, the title of the ghatwal ceases also, and the zemindar who has never given up his right to the lands has the right to resume possession of them." AH this, however, was a mere dictum of the Court ; and in a late case, Munrunjun Singh v. Rajah Lelanund Singh (2), Trevor, J. (who was one of the Judges in the case decided by the late Sudder Court in 1857, which I have just read) said: — "As to the ease decided by the late Sudder Court on the 11th December 1857 (1) that was one in which the ground of resumption was the default of the ghatwal. That being proved, the resumption was valid. To that extent the case is an authority, hut all the remarks beyond that point are obiter, and consequently not binding upon us in the present case ;" and the Court held that the ghatwals of Kurruckpore held a perpetual hereditary tenure at a fixed jumma, in money and service, and that, except for misconduct on their (1) 13 S. D. A. D. for 1857, 1812. (2) 3 W, R,, 84. PULL BENCH RULINGS. I part, they could not be evicted. In Rajah Lelammd Singh v. The igee Government of Bengal (1), it was held that the Government was not Baboo entitled to resume the ghatwali tenure, therefore that decision is not narainSingh one which bears on the present case. It is clear that in this case the jioh^vdeo Government are not suing to resume the lands. The zemindar is asking Singh. to recover possession of the lands on the ground that he no longer requires the services, though the Government, through the Collector, refuses to dispense with them. The case of Rajah Lelanund Singh v. Surwan Sing (2) was cited. The marginal note says tliat,'^"in the absence of express words to the contrary, ghatwali lands, held under a lease which neither confirms nor recognizes the preexisting status of the ghatwals, nor confers on them any right other than that of holding the lands at a fixed rate as long as ghatwal service is required for them, are resumable by the zemindar when that service is no longer required." In that case, the Government no longer required the services to be performed, and therefore it differs very materially from the present. But Kemp, J., does say in delivering his judgment: — "The contract was clearly one for service. Lands wore given in lieu of wages, the jumma was fixed, and was payable as long as service was rendered ; .and in the absence of distinct words to the contrary, the employer, the zemindar, is, we think, at liberty to determine the tenure, the services of the employe no longer being required." I cannot agree in that view of the case if, as stated in that case, the lands were granted to be held at a fixed rent so long as ghatwal services should be required : the rent might possibly be enhanced when the services were not required. But in this case, the sunnud expressly recites that a ghatwali tenure of the mouzalis in question had been conferred upon Mohiideo before, and that tenure has according to long usage descended from father to son without objection. Therefore, even if the Government had dispensed with the services, I should hold that the lands were not liable to be resumed, and the tenants turned out of possession. Clearly the zemindar had no right to dispense with those services which had been reserved by the former Government for the public benefit. Suppose the former Government had granted land for services of a religious nature to be performed, the British Government would not require those services, but that would be no reason for determining the tenure of the person who held the lands upon those services as long as he is willing to perform them. The tenure is not to be determined merely at the will or caprice of the landlord, when the land has become valuable (1) 6 Moo. I. A., 101. (2) 5 W. K,, 292. 570 FULL BENCH RULINGS. 1866 probably by the exertions and the expenditure of capital by the tenant. " Baboo Bat whatever may be the case as regards the ghatwal services, it -HakainSinqh ^PP^^rs to me that the plaintiff, as auction-purchaser, is not entitled to- ,, "• avoid the tenure altogether and to eject the defendants, MOHADEO ° •' SisGH. 'j'ljg |.g^j; of ]jg_ Qi has been paid for a period commencing prior to the permanent settlement. The case falls within a. 37, Act XI of 1859, which is as follows : — " The purciiaser of an entire estate in the perma- nently settled districts of Bengal, Behar, and Orissa, sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which mny have been imposed upon it after the time of settlement." The tenure, from what has been shown, is not an encumbrance imposed upon the estate after the time of settlement, but it is an encumbrance arising out of a grant made even before the East India Company acquired the Dewanny. The section goes on : — " And shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants with the following exceptions : — First, istemuraree or mokuraree tenures which have been held at a fixed rent from the time of the permanent settlement." Now it is clear tHat, as regards rent, the holders of these lands have never paid any higher rent, since the time of the permanent settlement, than Ks. 61. They have therefore been holding at a fixed rent, though subject also to the performance of ghatwali services. It never could have been intended that, if a man held at a fixed rent and ghatwali services under a tenure created before the time of the permanent settlement, and long before the East India Company came to the Dewanny, that he could be turned out of possession merely because the auction-purchaser thinks fit to dispense with the performance of the services. It is contended for the plaintiff that, because the land was held at a fixed rent and subject to the performance of certain services, the holder of the tenure might be ousted by an auction-purchaser. I should say that a holding at a fixed rent and other services would fall within the clause to which I have referred, and that if the other services are performed, or the holder of the tenure is willing to perform them, an auction-purchaser could not treat the tenure as an encumbrance which he is at liberty to set aside, notwithstanding that the previous holder of the zemindari could not have set it aside. The object of tlie Sale Law was to protect the Government revenue. It was to take care that zemindars should not create encumbrances which would make the estate not worth the revenue assessed upon it. If a zemindar creates eucumbrances after the date of the permanent settlement, as against ua FULL BENCH RULINGS. 571 nuction-purcliaser, those encumbrances, -with certain exceptions, are 1866 void. The next exception in the section is : — " Secondly, tenures exist- baboo ' ing at the time of settlement which have not been held at a fixed rent." jjARAiNSiNQit It is said that, in the present case, the tenure has been held at a fixed ,, "■ rent and something more. Still it is a tenure existing at the time of Singh. the permanent settlement. The case clearly falls within the first or second exception, and is one of those intended to be protected. Th© section says that an auction-purchaser shall acquire the estate free from encumbrances which have been imposed upon it after the time of settle- ment. The section then goes on : — " And shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants with the following exceptions." If the case falls within either of the two exceptions, the tenants are not liable to be ejected. This suit, as already pointed out, is for possession and mesne profits. It is not necessary to consider the question whether, if the Government chose to dispense with the ghatwali services, and to exempt the tenants from the performance of those services, the rent of the land might be enhanced to the extent of the value of the services dispensed with. The only question now before us is whether the zemindar has a right to treat the owner of this tenure as a trespasser and to say that he has been a trespasser and liable to mesne profits from the date of the auction- sale. It appears to me that he has no such right, and consequently that this action cannot be maintained, and that the judgment of the lower Court must be affirmed with costs. Tkevok, J. — I entirely concur with the conclusion a,t which the learned Chief Justice has arrived. (After staling the nature of the suit and the allegations of the parties, His Lordship continued.) It seems that the original grantee died before the decennial settlement, and at that time his son Monorath was in possession. Since then the grandson and great-grandson of Mohadeo have succeeded, and these direct successions have taken place, notwithstanding the estate has been sold three times for arrears of revenue, and the plaintiff is the fourth purchaser. On these statements the question before us is, whether or not the plaintiff has the right to treat the defendant, the ghatwal, as a trespasser, and to eject him from his tenure, simply on the ground that the perform- ance of the ghatwali services has been dispensed with for a long time, and that in his, plaintiff's opinion, there was no necessity for the service. In order to make good his claim, the argument of the learned Counsel, Mr. Doyne, on the plaintiff's behalf, was somewhat to the following 572 FULL BENCPI RULINGS. 18G6 effect: — Tliat the relationship which existed between the grantor of the Baboo defendant's grant in 1150 F. (1743), and (he ghatwal was simply that of NakainSihgh master and servant under a contract, the latter receiving land instead of J, "• money for his services ; that such as the relation was then, such it Singh. remains now ; that as there|are no words in the grant of a hereditary nature, and nothing fixing the grant even to the grantee's life, it remains competent to the grantor to determine the services whenever he thinks fit to dispense with them ; that he is the zemindar under the decennial settlement who has succeeded to the rigiits of the original grantor, and that consequently he can act as that party could have done ; that the responsibility to Government to keep up the ghatwals was in old time with the zemindar, and that the notion of any particular lands were set aside for that purpose, which purpose must be respected at the present day, is erroneous ; that that respoosibility of zemindars was continued at the decennial settlement, and the zemindari estate became security for the perforraanceof the duties ; that consequently, whether Government requires the services of the ghatwals or not, the plaintiff is at liberty to eject the defendant from his land at pleasure as being a mere tenant-at- will, holding himself responsible for the due performance of the duties of tlie ghatwal to Government. The contention of the learned Counsel seems to be altogether opposed to the view which the Privy Council took as to the nature of the Kurruckpore ghatwnli tenures in the case of Rajah Lelanund Singh v. The Bengal Government (I). And as the ghatwali villages in suit are situated in a pergunnah adjoining to Kurrnckpore, in the same tract of country, and within the same zillah, the reasoning which applies to the latter will apply legitimately to the former, especially as it has not been suggested to us that any difference exists between the tenures in the two pergunnahs. Their Lord- ships, in the course of that judgment, after entering into the mode in which these provinces were administered in 1765 and subsequent years anterior to the decennial settlement, and after remarking that many of the greater zemindars within their respective zemindaris were entrusted with rights and charged with duties which properly belonged to the Government, and describing what arrangements were made for the payment of public officers of the zemindari for the police and for the chowkeedars and others, proceed as follows : — "Besides the disorder which prevailed generally through the provinces, particular districts were exposed to ravages of a different description. (1) 6 Moo. I, A,, 101. FULL BENCH RULINGS. 573 The mountain or bill districts of India were at this time inhabited by iggg lawless tribes asserting a wild independence, often of a different race and Baboo different religions from the inhabitants of the plains who were frequently Narain'sinqh subject to miiraudiiiff exiieditions by their more warlike neiglibours. „ "• To prevent these incursions it was necessary to guard and watch the Singh. ghats or mountain passes, tlirough which ihese hostile descents were made, and the Mahomedan rulers established a tenure called ghat- Wdli tenure by which lands were granted to individuals often of high rank at a low rent, or without rent, on condition of their performing those duties, and protecting and preserving order in the neightiouring districts." And again in another part of their judgment alluding to land held by ghatwals, their Lordships observe : — "That they were held by a tenure created long before tlie East India Company acquired dominion over the country, and though the nature and extent of the right of the ghatwal in the ghatwali villages may be doubtful and probably different in different districts and in different families, there clearly was some ancient law or usage by which these lands were appropriated to reward the services of ghatwals ; services which although tliey would include the performance of duties of Police were quite as much in their origin of a military as of a civil character, and which required the appointment of a very different class of persons from ordinary Police officers." Such being the general nature of a ghatwali tenure in Bhaugulpore, as laid down by the Privy Council in a judgment in which an exami- nation of the nature of the tenure was necessary to enable their Lord- ships to determine the immediate point before them, namely, whether these tenures were included in or excluded from the zemindaris of the zemindar at the time of the decennial settlement and liable or not liable to resumption by Government. What do we find in the sunnud filed by the defendant, and dated 1150 F. (1743), the genuineness of which is not questioned ? (reads). Now some of the duties mentioned in this sunnud are of a semi-military nature,and this sunnud was, it seems clear, granted by the zemindar acting as an officer of Government and with tiie consent of higher authority; it consequently takes the nature of a grant by the State to the grantee, on the condition of the performance of certain public services. It is a grant in its express terras, personal to Mohadeo Singh, a life-grant, in fact ; and though it recites that tlie office of ghatwal and the lands had been assigned to Mohiideo before, it does not appear to me that, even by the light of the subsequent usage as to the grant, that the original grant can be presumed to have been hereditary 29 574 PULL BENCH RULINGS. iggg in terms ; but it is in my opinion, one of those grants which were ~ so common in Mahomedan times, in terms limited to the life of Baboo ' KooLDEEP the grantee, but which by usiige were considered to convey an Narain Singh ~" V. hereditary right, witii or without the payment of a fine. Moreover Singh, the oiiginal grantee died, it seems, before the decennial settlement and at that time his son Mouorath was in possession. Since then the grandson and great-grandson of Mobadeo have succeeded and as far as the evidence goes, as a matter of right. Thus the course of actual succession under it confii'ms the opinion expressed by me as to the nature of the original grant, and these direct successions have taken place notwithstanding the estate had been sold three times for arrears of revenue, and the plaintiff is the fourth purchaser. Under the grant propounded by them, the grantees therefore show uninierrupted posses- sion in direct succession of more than 100 years, going back to a period before the East India Company acquired the Dewanny. Turning then to the title of tlie plaintiff, it seems to rest on the presumed nature of the contract between the defendants' ancestor and the zemindar in 1743, and the fact that the plaintiff is an auction-purchaser is brought forward, rather it would seem to meet an objection which might have been taken by the defendants on the score of sixty years' uninter- rupted possession by them, than to fortify the plaintiff's which would be equally good on the reasoning of the learned Counsel, whether he was an auction-purchaser or not. Be that as it may, it seems to me that the claim of the plaintiff as put forward by Mr. Doyne, has no foundation either in reason or in fact. The zemindar in 1743 was a Government servant, and in that character, as before observed, the grant was made : and whatever character the zemindar may have filled from 1763 to 1790, he only in the last year became the owner, in a strict sense of the term, of tlie estate of which tliese lands form a part. There can be no doubt that before that date the grantee had paid, as he has paid up to the present time Es. 61 as rent, though under what circumstances that Rs. 61 was origi- nally assessed on his tenure, which originally bore no zemindari rasoom or rent, does not appear, but bearing that, jumraa at the decennial settle- ment, the land was included in the plaintiff's zemindari, and it became a dependent tenure therein, burdened with and appropriated to the ghatwali service, and bearing the money rent which it bore. The contention of the learned Counsel as to the effect of the decennial settlement on the parties seems to me as erroneous as his contention regarding the original contract betweeri" them. The settlement FULL BENCH RULINGS. 575 did not make the zemindar directly liable for anything, nor 1866 did it- make hia zemindari generally liable for the retention by baboo him of the ghatwals : it simply gave him the appoiotment, and, tliough Kooldekp ,.. ,,p, ,,..,„ Nahain Singh this IS more doubtful, the dismissal for misconduct, of those parties ». occupying his lands which had been devoted, before his rights accrued, Singh. to a particular object and which were still to be devoted to that object as long as the Government required it,— a requirement which as far as regards the defendants' land, exists up to the present day. As to any argument to be drawn against the plaintiff from s. 37 of Act XI of 1859, it appears to me that that law looks solely to tenures paying money rents alone, and is altogether inapplicable to the case of tenures burthened with a condition of service. I therefore forbear to make any further remarks upon it. Altogether restricting myself to the question which is alone before the Court, and looking to the title of the defendant and to the claim Bet up by the plaintiff, I have no hesitation in holding that the plaintiff is not entitled to eject the defendant on his own mere motion, and I would dismiss the plaintiff's claim with costs. Loch, J. — There is a difference between this case and Tekayet Jugmohon Sing v. Rajah Lelanund Singh (1) which must be noticed. In that case, the ghatwal had been dismissed for misconduct, and the zemindar then sought to take possession of the lands, in attempting 10 do whicli he was opposed by tiie ghatwal. lu that case, no opposition was offered by the Government to the proceedings of the zemindar. The expressions made use of in that judgment, though applicable to that particular case, are perhaps too general, and cannot properly be made to apply to other cases arising under a different set of circumstances. In that judgment also, no reference was made to the right of Government to insist on the performance of Police duties. But in a subsequent judgment of 1858, Tekayet Jugomohon Sing v. Itajah Lelanund Singh (2), it was held that so long as the Govern- ment claimed the right to have Police duties performed by the ghatwals, the zemindar could not resume the lands. In the present case, the zemindar seeks to evict the ghatwals and to take possession of their tenures. The ghatwals have not committed any act of misconduct, and have expressed no unwillingness to perform their Police duties, and the Government have expressed their intention to preserve their right to the services of the ghatwals. Even if the Government were (1) 13 S. D. A. D, fpr 1857, 1812. (2) 1* S. D, A. D. for 1858, 1471. 576 FULL BENCH KUHNGS. 1868 to g'^e up that right and declare that Police duties were no longer Baboo required from the ghatwala, I think that the utmost compensation the Nakain Singh zemindar could claim in lieu of the loss of service would be an enhance- MoHADEo "'®°* '^^ "'^ '^°'' ""'^ ''^^"^ ^y *''® ghatwal. He could not oust the Singh. ghatwal as a trespasser, and take possession of his land. T agree with the Chief Justice in thinking that this case should be dismissed with costs. Jackson, J. — I was one of the Judges who referred this case for the consideration of a Full Bench, and I think it right to state ray opinion separately, especially as, though I concur in the conclusion at which the Chief Justice has arrived in this particular case, I cannot concur in all the reasons which have led His Lordship to that conclusion. I need not say that if I differ from him in any respect, it is with great deference and with extreme reluctance. It is said that the Principal Sudder Ameen has decided this case upon two points, 1st, on the ground thut the defendants holding these lands under a tenure which commenced as far back as the year 1150 F. (1743), cannot now be ejected ; 2ndly, because they are protected under the clauses of s. 37, Act XI of 1859 ; and that in both points he was right. Taking the latter portion of (he case first, I must say it appears to me that s.37 of the present Sale Law does not apply to the case. It cannot be said that these ghatwali tenures are " incumbrances which have been imposed upon the estate after the time of settlement." In respect to the present tenure, it was one created undeniably before the date of the settlement, and it was the remuneration set aside, apparently by a person having authority in that behalf, for the performance of specific duties. As to the word " under-tenures," whicli the auction-purchaser is entitled to "avoid and annul," those, I think, must be rent-paying tenures where the rent is reserved as a consideration, more or less suflBcient, for the use of the land; and this deduction from the zemindari assets was undoubtedly considered at the time of settlement. I think, therefore, that neither the power of the auction-purchaser to avoid tenures, nor the protection given by the 1st and 2nd clauses annexed to that section, will apply to this case. It appears to me that the power of the original zemindar to assess or enter upon these lands would have been just as extensive and valid as the power of the auction-purchaser. The question, then, is as to the tenure itself. Now I may at once say that, when this case was referred for the consideration of a Full Bench, that order was made by myself and Markby, J., almost at the FULL BENCH RULINGS. 577 out-set of the argument. The facts of the case had not been fully gone igge into, and it was because this case appeared to raise precisely the point Baboo decided by the 2nd Bench in the case cited, Munrunjun Singh v. Rajah NAitAiN"siNQH Lelanund Singh (1), and because we desired to give an opportunity for „ "• considering the correctness of that decision, we thouglit it advisable to Sihqh. refer the case to a Full Bench But when we come to examine it more minutely, the present case appears to differ very materially both from the case decided by myaelf and Kemp, J., Rajah Lelanund Singh v. Surwan Singh (2), and from the former case ; and in fact, it is in holding this case to be on all fours witli Munrunjun Singh v. Rajah Lelanund Singh (1) that one principal error of the Court below appears to me to consist. The present suit has for its object to oust from possession, and recover mesne profits from, the defendants who are holding under title which commenced admittedly in 1743, that is to say, more than twenty years before the East India Company was invested witli the Dewanny of tlie Provinces. The grant, moreover, under which the defendants hold was not the mere grant of the zemindar, but it appears vei'y distinctly, both from the wording of the sunnud, and from the successive endorsements of various departments which it bears, that it was the act of some jierson who, for tliat particular purpose at least, exercised tlie powers of the existing Government. In considering this sunnud I feel myself liound to depart a little from the views taken by the Chief Justice. And in the first place it seems to me desirable to reject all analogies from feudal or other tenures in England. Institutions, tenures, Government, and laws in the two cases are widely different, and we shall only, I think, embarrass ourselves if we make use of arguments drawn from one system for the purpose of inferences as to the other. It: appears to me that there is a clear distinction between the grant of an estate burdened with a certain service, and the grant of an office the performance of whose duties are remunerated by the use of certain lands. The sunnud before us appears to me most unmistakeably to belong to the latter class. It confers on Mohadeo the khidmul-i- ghatwali, i. e., the service in office of ghatwal, with the mouzaha annexed, as remuneration, exhorts him to diligence in the performance of his duties, and enjoins the cultivation of the lands. Now, it is said, that this is a confirmation of a previous grant. I do not understand that ii; is, in the sense of the I'ecognition and renewal of a full grant, previously conferred. Oa the contrary, there is no (1) 3 W. B., 84. (2) 5 W. R., 292. 578 FULL BENCH RULINGS. ises reference to nny previous grant, and as far as I can j iidge, this was the Baboo fi""^* suniiud to Mohadeo or any of his family. I understand that NakaznIsingh Mo'^^deo, prior to the granting of this sunnud, was provisionally in the „ "• performance of tliis service, and I understand this confirmatioa (bahdl Mohadeo Singh. ddshtan) in a sense familiar enough in Indian practice, that is, to confer in permanence the office at first held temporarily. A person is placed on probation in charge of duties which demand the exercise of parti- cular qualities in order to their efficient discharge; he is found to possess those qualifications, and to perform those duties with efficiency. Upon that he has the kindmut formally conferred upon him with the tenure with which he is to support it, that is to say, he is confirmed in the office and declared entitled to hold the land. Then is the grantee entitled to hold for ever for himself and his heirs, or was the grant for his life ? Was it subject to be divested and under what circumstances ? Now there is a considerable distinction between the positions and the rights of ghatwals in different parts of the country. It appears from the public documents referred to in the decision of Rajah Lelanund Singh Y. Surwan Singh (1) and from the accounts given in Harrington's A'nidysis, Vol.11, p. 236, and Vol. Ill, p. 511, that ghatwali tenures in Bishenpore, Beerbhoom, Burdwan, and Bliaugulpore, vary in a great degree, both as to the extent and importance and as to the conditions under which they are held ; some being expressly declared hereditary, others not so. It may be worth while to mention that the case referred to by the Chief Justice in his judgment, Hut Lall Singh v. Joromun Singh (2), was a Beerbhoom case. In Beerbhoom we know that ghatwali tenures are hereditary; and in that case it was held that they descend to the eldest son, and not to sons generally. I do not find that it has been established either in this case or elsewhere that Bliaugulpore ghatwalis were ordinarily descendible. But certainly in this case we cannot but see that lands originally granted to Mohadeo as remuneration for his per- forming the duties of ghatwal by the sunnud of 1150 F. (1743), have been held in succession by himself, his son, grandson, and descendants to the present day. It appears also that some portion of the rights and inter- ests of his descendants has been sold in execution of a decree, and was pui'chased by some of the present defendants. This is a circumstiince which has not been insisted upon by the plaintiff, but it seems quite opposed to the nature of ghatwali holdings. I accept tins state of facts as explaining the nature of the sunnud, for it appears to me that (1) 5 W. R., 292. (2) 6 Sel, Kep., 169. FULL BENCH RULINGS. 579 the tertns of the sunnud are plain in themselves and require no explana- igge tiou. I cannot say either, without fuller evidence of the facts that Baboo the course of events or usaee has made that descendible which was not xi^"'"'''*^'^,^™ ^"^ iN ARAIN oINQH of itself descendible. I should prefer to accept tlie explanation wiiich '"■ ^ MOHADKO we fliul in the report cited in 3 Harrington's Analysis, p. 511, which Singh. states that, " altiiough the grant is not expressly hereditary, and the ghatwal is removeable from his office, and the lands attached to it for misconduct, it is the general usage, on the death of a gliatwal, who has faithfully executed the trust committed to him, to appoint his son, if competent, or some other fit person in his fnmily to succeed to the office." Still I think it would be a gi-eat deal too mucli to say that, when these defendants are holding as representatives of a former ghatwal, or by right of a person whose tenure commenced under a valid grant of ghatwali more than 100 years ago, and where it has been allowed since then to change hands by descent or purchase without question the zemindar should be competent of his mere motion without the assent and against the will of the Government, to put an end to the ghatwali to deprive the ghatwal and to treat him as a common trespasser. I am anxious in this case, as in the case of whicli Kemp, J., and myself decided, to avoid entering into larger questions than the case requires. In this present case, it appears to me, that the plaintiff can- not be entitled to possession of the land. Wiiether he can sue for the purpose of enhancing or assessing the rent, is another question. In the case decided by the late Sndder Court in 1857, Tekayet Jugmohon Singh v. Rajah Lelanund Singh (1), there was an alleged misconduct on the part of the ghatwal, and he was consequently dismissed from his office. Here there is no allegation of misconduct. The plaintiff simply says : — " I, the zemindar, have no further occasion for ghatwali service, and I dispense with your services accordingly." Whether the Govern- ment is itself competent to abolish the office which in the necessity of the times it created, and resume, or sanction the resumption of, the land which it assigned as a remuneration for that service, is a question which has once been considered, but which I am quite willing and ready to re-consider if the occasion should arise. Thus, while I fully concur in the dismissal of the plaintiff's suit, I do so for reasons which belong strictly to the particular case, and pot upon the wider grounds stated by the Chief Justice, and adopted by the majority of the Court. (1) S. D. A. D. for 1857, 1812, 580 FULL BENCH RULINGS. 1866 Pdndit, J. — The plaintiff, appellant, has not shown that he has any Baboo right to terminate the service with the condition of which the ghatwali NakainSixqh tenure in ilisputc was ori!;inally given to the ancestors of the defendants MoHADKO ^'^"S hffore the Dewanny, and wliich has since been held by them and Singh. their hnirs aRcorciing to the u8ao;e of the country, from generntion to generation. Grovernment is entitled to the service, and has the superin- tendence of it. It does not say that it lias dispensed wiih that service, nor does the appellant plead that Government has terminated the said service. On the contrary, we have got Government before us urging their riglit to claim the service of ghatwali from the defendants. Ill such a state of things it is sufficient to say that, the plaintiff has failed tn prove the very ground upon which he is suing to dispossess the defendants. I have no hesitation in declaring that, even if the termination of the ghatwali service had been prove'!, I would not have held that, owing to this determination, the plaintiff is entitled to dispossess the defendants of the lands in dispute. The fact of his being an auction-purchaser gives to the plaintiff no additional rights. It is unnecessary to decide in this case what could have been the proper order if a case for enhancement had been brought by the plaintiff, appellant. I entirely agree in dismissing the claim, and the appeal of the plaintiff with costs. FULL BENCH RULINGS. 681 Before Mr, Justice Norman, Officiating Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, and Mr. Justice Pundit. Iftfifi GOBINDO MAHAPATRO and others (Defendants) v. GOPEENATH g^pf^ iq. PUNDIT AND OTHBKS (PLAINTIFFS).* Amendment of Plaint— Act VIII of 1859, s«. 26, 29, 31, 139, 141. Where in the plaint the relief sought for was possession and mesne profits, and the plaint was in the course of the suit amended, and an additional stamp paid, so that the suit became one for resumption, held, the amendment was improperly made, and the suit must proceed as a suit for possession and mesne profits (1), This suit was brought to recover possession of certain lands with mesne profits from the defendants, lakhirajdars, who had been con- firmed in their possession of the same by an order under Act IV of 1840. While ihe suit was pending the pliiiniiffs petitioned the Court to have their suit converted into a resumption suit upon payment of the proper stamp duty. This was done, and the plaintiffs obtained a decree, which was confirmed on appeal. On special appeal the case came before Norman and Kemp, JJ., on the 5th May 1864, by whom it was referred to a Full Bench under the following order : — "To go before 'a Full Bench on the question of the power of the lower Courts to amend. This Bench being induced to think that the view taken by Trevor and Macpherson, JJ., in Nos. 1678 and 1679, unduly limits the power of amendment given by ss. 31 and 141 of Act VIII of 1859." Moonshee Ahmed Ali and Baboo Nilmadhub Sen for the appellant. Baboo Kishen Kishore Ghose for the respondent. The case was heard on the 12th August 1866, and on the 10th September 1866 the following judgments were delivered : — Norman, J. — In this particular case it was clearly improper to allow an amendment of the plaint, which was originally one for possession and * Special Appeal, No. 1553 of 1863, against the decree of the Judge of Zillah Cuttack, dated the 30th January 1863, affirming a decree of the Principal Sudder Ameeu of that district, dated the 29th May 1862. (1) See Eshanchunder Sing v. Shama- v. Gunga Dhye and others, 7 B. L. K., 333, churn, Bhutto, 21. J., M". S., 87; The East seeT^.SSi; S.M.NisiariniDasiv.Makhanlal Indian Railway Co. v, F. J. Jordan, Z>m«, 9B. L. K., U. 4 B. L.R, 0. C, 97 i Gobind Chandra DuU 30 582 FULL BENCH- BULINGS. 1866 mesne profits, by makiug it a suit for resumption. The suit was iusti- GoBiNDo tuted on the 4th May 1861, just ten years after the passing of Act Mahapatro -^lY of 1859. The additional stamp as in a plaint for resumption was GoPEBNATH put into Court on the 25th of April 1862, Whether the amend- ment would really have had that effect or not it was probably intended to secure to tlie plaintiff the beaeflt of s. 18 of that Act, by exempting the suit for resumption as a suit instituted within two years after the date of the passing of Act XIV from the operation of cl. 14, B. 1 of that Act. It is clear that no amendment should ever be allowed which might tend to deprive the opposite party of aright conferred on him by law. My learned colleagues, in quoting s. 32 of Act VIII of 1859, overlook the words "in any case." The language is "Pro- vided that the Court may ia any case allow the plaint to be amended if it appear proper to do so." Again by s. 141 "at any time before the decision of the case the Court may amend the issues or frame additional issues on such terms as to it shall seem fit, and all such amend- ments as may be necessary for the purpose of determining the real question or controversy between the parties shall be so made." These are large powers of amendment, and they should be construed as remedial provisions liberally. In case of fraud, especially when practised on infants, by agents in foreign countries, by trustees, or by directors of public companies or their shareholders, it constantly happens that the true facts of the case, the rights of the parties, and the remedies to which the complaining party is entitled, are discovered during the progress of tlie case, and from the answers and admissions extracted from the adversary. It is notorious to any one acquainted with Courts of Equity that in such cases repeated amendments of the bill are necessitated. The general power of the Court under Act VIII to amend a plaint in a case where justice required such an amendment at any time during the progress of the cause has been distinctly asserted by a Full Bench of seven Judges of this Court in Hera Monee Dabee v, Koonj Beharee Haldar {\) decided since this case was argued, and that decision has since been acted on in hundreds of cases. The result of our judgment in the case is that the decision of tho lower Courts will be reversed, and the suit will go back for trial as a suit for possession. The appellant will recover the costs of this appeal and in the lower Appellate Court, and the costs of the hearing which has already taken place in the first Court. (1) Appclx,, post. FULL BENCH RULINGS. 583 Loch, J. (Trevor and Pundit, JJ., concurring). — The cases alluded to in the above reference are of the same nature and with tlie same object as the present suit. No. 1553 of 1863. The plaintiff is the same in all the cases, but the defendants are different. The suit as brought by plaintiff in Nos. 1G78 and 1679 was to recover possession ■with mesne profits from the defendants, lakhii'ajdars of lands, the possession of which had been confirmed to the defendants under Act IV of 1840. While the suit was pending, the plaintiffs petitioned to have the case converted into a resumption proceeding, paying the necessary stamp duty. This was done, and the plaintiffs obtained a decree. The Judge admitted the change in the nature of the suit relying ou a precedent of this Court, dated the ISth July 1852 (1). The judg.' meut passed by this Court was in the following words : — " We think the whole proceedings below highly irregular. The suit originally was for possession of certain land with mesne profits. It was con- verted into a suit in which neither possession nor mesne profits could be given ; but in which a decree of quite a different nature must be passed. Again, in the suit as originally brought, a mere boundary dispute between two parties, the burden of proof lay primarily on the plaintiffs ; whereas in the second the burden lay on the lakhirajdars entirely." With regard to the points referred for the decision of the Full Bench, we find from s. 26, Act VIII of 1859, that the plaint is required, among other things, to contain the relief sought, the subject of the claim, the cause of action, and when it occurred. These we think must be distinctly specified in the plaint, so that the defendant may perfectly understand the nature of the suit that is brought against him. Section 29 prescribes that "if the plaint do not contain the several particulars hereinbefore required to be specified, or if.it contain particulars other than those required to be Specified, whether relevant to the suit or not, or if the statement of particulars be unnecessarily prolix, or if the plaint be not subscribed and verified, the Court may reject the plaint, or at its discretion may allow the plaint to be amended." By s. 31 the Court may reject if the plaintiff on being required by the Court to correct an improper valuation or to supply additional stamped paper shall fail to comply with the requisition. Under s. 32 also the plaintiff may be allowed to amend his plaint. When upon the face of it, or after examination of the plaintiff, the subject-matter does not constitute a cause of action, or the right of (1) Harhunth Sein v. KaliUslwre Roy Chowdree, S. D. D, for 1852, G90. 1866 GOBINDO Mahapatko V. GoPBENATa Pdndit. 584 FULL BENCH RULINGS. iggg action is barred by lapse of time. Tbe sections of the law above quoted GoBiNDo clearly indicate the time at which any ameadment in the plaint shall be ^''^B^*^"" ordinarily made, and the nature of that amendment which extends Gm-eenath nierely to the correction of any error in the plaint, not to an entire alteration of the claim. Again s. 139 says : — "At the first hearing of the suit, the Court shall inquire and ascertain upon what questions of law or fact the parties are at issue, and shall thereupon proceed to frame and record the issues of law and fact on which the right decision of the case may depend. The Court may frame the issues from the allegations of facts which it collects from the oral examination of the parties or their pleaders, notwithstanding any difference between such allegations of fact contained in the written statements, if any, tendered by the parties or their pleaders." And s. 41 enables the Court, " at any time before the decision of the case, to amend the issues or frame additional issues ;" and " all such amend- ments as may be necessary for the purpose of determining the real question or controversy between the parties shall be so made." These sections undoubtedly give the Judges who have to dispose of a case in the first instance great freedom to enable them to ascertain what is the real question at issue between the parties, but when the Judge, after examina- tion of the parties or their representatives, finds that the real dispute is one altogether at variance with the claim stated in the plaint, if for instance as in the case referred, we find the claim as shown in the plaint to be for possession with mesne profits, and the plaintifis at the first hearing convert this claim into one for resumption, we think that the Judge sliould not permit such an alteration, and that if the plaintifiTs be unable or unwilling to go on with the suit as originally brought, the Judge should dismiss the case with costs. The powers vested in a Judge under the above quoted sections, though extensive, are still limited by the nature of the suit as brought by the plaintiff. The Judge, pu the representation of tlie plaintiff, cannot alter the nature of the suit or change the cause of action. This however extends by means of a viva voce explanation to the elucidation of what is ambiguous in the claims of the contending parties, the amendment of what is erroneous, and the supplying of what is defective, but does not contemplate the conversion of a suit of one character into another inconsistent with, and that may be opposed to it ; and the issues we apprehend must be founded on the claim as brought in the plaint, and not on something else which the plaintiff'at some subsequent period may prefer to consider as his cause of action, but which is altogether at variance with the relief prayed for in the plaint. FULL BENCH RULINGS. 555 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson. SOUDAMINEE DOSSEE (Respondent) v. MOHARAJA DHERAJ MOHATAB 1866 CHAND BAHADOOR (Appellant).* ^^^'- ^'- Appeal to the Privy Council— Rules of liS^— Admission of— Order— Judgment, When an application to review a judgment is rejected by the High Court, the six months allowed for appeal to Her Majesty in Council run from the date of the judgment and not from that of the order rejecting the review (1). The question in this case was whether an appeal to Her Majesty in Council ought to be allowed to proceed. The appellant was a respondent in the High Court, against whom a Division Bench pronounced a judgment. An application to review that judgment was afterwards made. It was admitted to argument by the learned Judge who had written the judgment, and afterwards coming to be argued before the Division Bench which had pronounced it, the application was rejected. The petition of appeal to Her Majesty did not specifically state whether theappeal was against the original judgment or against the judgment on the application to review, or against both. If the appeal were directed against the judgment originally pronounced, then much more than the period of six months allowed by the order in Council of 1838 (2) had expired, and the application to appeal to Her Majesty was in fact presented precisely as the period of six months after the second judgment was about to expire. In Nazur Ali Khan v. Raja Ojoodhyaram Khan (3), a similar case to this, it was held by three Judges that an order of the High » Privy Council Appeal, No. 350 of 1864, in Special Appeal No. 781 of 1861. (1) See In the matter of the Petition of India Company, unless the petition for that EajUssen Sing, post, p. 605. purpose be presented within six calendar (2) Order in Council dated at the Buckin- months from the day of the date of the gham Palace, 10th April 1838. judgment, decree, or decretal order com- 1. " That, from and after the 31st day of plained of, and unless the value of the December next, no appeal to Her Majestj', matter in dispute in such appeal shall her heirs and successors in Council, shall amount to the sum of ten thousand Com- be allowed by any of Her Majesty's Supreme pany's rupees at least, and that, from and Courts of Judicature at Fort William in after the said 31st day of December next Bengal, Fort St. George, Bombay, or the the limitation of five thousand pounds Court of Judicature of Prince of Wales' sterling, heretofore existing in respect Island Singapore, and Malacca, or by any of of appeals from the Presidency of Fort the Courts of Sudder Dewany Adawlut, or by William in Bengal, shall wholly cease and any other Courts of Judicature in the terri- determine. " tories under the GoverAment of the East (3) 1 W. K., Mis. Kul, 13. 586 1866 FULL BENCH RULINGS. Court rejecting a review is a final order of the Court from which an SouDAMiNEE sppeal Ubs to Her Majesty under el. 39 of the charter, and that such ossEE appeal if presented within six months from the date of such order is MoHABAjA -^vithin time. Dheraj MoHATAB The question, as one of doubt and importance, was referred to a Full Bahadook. Bench by L. S. Jackson, J., before whom the petition for leave to appeal was heard. Baboos Anukool Chandra Mookerjee and Nilmadhub Sein for the petitioner. Mr. Doyne (with him Baboos Juggadanund Mookerjee and Chunder Madhub Gkose) for the respondent. The following judgment was delivered by Peacock, C. J. — The charter of the High Court allows an appeal to the Privy Council "in any matter not being of criminal jurisdiction from any final judgment, decree, or order of the said High Court of Judicature at Fort William in Bengal made on appeal." The question is whether an order of a Division Bench, rejecting an application for a review of a judgment passed on appeal, is a judg- ment made on appeal. In this case a Division Bench heard a special appeal and then passed a decree on the case. An application was afterwards made for a review of the judgment. Under s. 378 of the Code of Civil Procedure, no review of judgment ought to be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree of whicb a review is applied for. The applicntioa was made to a single Judge, and he thought it reason- able that the opposite party should be summoned. When the case came on to be heard, the Court rejected the applicution for the review ; in other words, they would not grant a rehearing of the appeal- .That was not an order made on appeal, but merely an order made on application to the Court to review their own judgment. If a review is admitted, then, under s. 380, the case is set down to be reheard, (1) and the order of the Division Bench upon the rehearing is a new decree, whatever may be the result of the rehearing. But as it is, the Court merely rejected an application to review their own judgment ; and that rejection is not an order made on appenl. Consequently, the Court is not in a position to admit an appeal against that order. It cannot admit au appeal against the original judgment of the Division Bench, iuasmuch (1) See 10 B. L, K. (High Court Rules), 16. FULL BENCH RULINGS. 587 as tJie petition of appeal was not presented within the period of six iggg mouths prescribed by the rules of Her Majesty in Council on the 10th Soudaminee April 1838, § 1. There is no hardship in this case. The learned Judge who referred the case has clearly pointed out that an application for review of judg- ment may be made after an appeal has been preferred to Her Majesty in Council, and before the proceediugs in the suit have been transmitted (see Act VIII of 1859, s. 378). If the parties choose, they may apply specially to Her Majesty in Council; but we have no power to admit the appeal. DOSSBK V. mohaeaja Dheraj MOHATAB Chand Bahadook. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson, In the matter of MADHOBEE DOSSEE (Petitioner).* Practice — Act VIII of 1859, s. 348 — Respondent's Objections. A respondent may file a notice with the Eegistrar, specifying therein the objections ■which he intends to take on the hearing of the appeal. In this case the following question was submitted by the Deputy Registrar for the decision of a Full Bench : — Whether an objection under s. 348, Act VIII of 1859, need be filed in writing, and if so, whether it may be filed before the hearing of the appeal,— a Division Bench having ruled that sucli objections should not be received in the office, but presented to the Judges hearing the appeal (1). Mr. R. E. Twidale for the petitioner. The opinion of the Full Bench was as follows : — ■ We think that, as a point of practice, there can be no objection to a respondent filing a notice with the Registrar, and specifying in the notice the objections which he intends to take on the hearing of the appeal. It is far more convenient, and far more fair, to the Court and to the parties that such notice should be given. The Registrar should in future receive and file any such notice. It is merely a matter of practice. The law does not prohibit such a notice, although the Court cannot compel the parties to give it. * Petition of objection under s. 348, Act VIXI of 1859, in Special Appeal, No. 778 of 1866. (1) See 8 Sevestre's Reports, 175. 1866 Sept. 11. 588 FULL BENCH RULINGS. Before Sir Barnes Peacock, Ki., Chief Justice, Air. Justice Trevor, Mr. Justice Loch, Mr. Justice X. S. Jackson, and Mr. Justice Pundit. 1866 BANEE MADHUB GHOSE (Plaintiff) v. THAKOOR DOSS MTJNDUI. ^^P'- 11- (Defendant).* Payment of Rent — Title — Estoppel — Possession ly Widow of a deceased Hindu. In a suit for rent by a pntneedar who claimed under a lease granted to him by a Hindu widow whose husband had died leaving a will, which gave the widow no power to alienate the property, held, the suit was properly dismissed, and that there was no necessity for the Judge to enter into any question of possession by the widow. A devisee under a will need not take out a certificate, and can sue for rent without having obtained possession. One who pays rent to another, believing him to be the landlord's representative, is not estopped from afterwards showing the want of title in that other : so here the defendant was not estopped from showing that under the deceased husband's wiU the plaintiff had no title (1). This was a suit for rent claimed by the plaintiff as putneedar of one-fourth share of certain property granted to him by Gobind Monee, the widow of Sreekissen. Sreekissen was one of four brothers. The tenant denied the widow's right to the rent, and stated that he had never paid rent either to the widow or to the plaintiff. He stated that no definite share of the rent was ever recovered on account of the widow after Sreekissen's death ; that the whole rent had been paid to Prankisto, one of the surviving brothers, who was the head member of the family. Prankisto and aaother brother Juggut intervened, but they failed to prove that they had been io actual receipt of the rent up to the commeticement of the suit. The widow Gobind Monee had obtained a certificate of administration to her husband's effects, but the interveners produced and proved a deed of Sreekissen's, under which the widow had no power to grant a putnee. The plaintiff's suit was dismissed by both the lower Courts. On special appeal, owing to a conflict betweea certain cases not specified in the order, Bayley and Pundit, JJ., referred the following questions to a Full Bench (1). First, whether the Court ought to order an inquiry regarding * Special Appeal, No. 3109 of 1865, against the decree of the Acting Judge of Zillah Beerbhoom, dated the 26th July 1865, affirming a decree of the Deputy Collector of that district, dated the 26th July 1864. (1) See Donzelle v. Kadamath Chuckerbiitty, 7 B, L, K,, 720 ; and Act I of 1872, ss. 115 and 116. FULL BENCH RULINGS. 589 the fact of possessioa by the widow, and as to the extent of the igge share held by her ; Secondly, whether tlie Court should hold her Banek entitled to collect separately the rents of the whole of her husband's Gi^(^E'' share, upon the assumption that she was in legal possession of her _, "■ husband's share as an admitted joint proprietor in possession ; Thirdly, Doss Mundul. what order should be given as to the share claimed by one of the intervenors to have been devised to him by the husband of Gobind Monee, i.e., whetlier the Court should, on the findings of the lower Appellate Court, and on the devisee's admission of not having taken out a certificate, consider that the said devisee is not in possession of the share said to have been conveyed to him, or whether the Court ought to dismiss the claim of the special appellant, on the ground that though lie may be in possession, still Gobind Monee, his lessor under the will of her husband, had no right to collect herself, although in fact there is no possession held as yet under the will by the said devisee. Baboo Chunder Madhub Ghose for the appellant. Baboo Onoocool Chunder Mookerjee for the respondent. Peacock, C.J. (after stating the facts and the questions referred).— First, as to whether the Court should remand the case in order to ascertain whether any enquiry is necessary as to the fact of the possession of tlia widow, and for an investigation of the extent of the share held by her. It appears that the tenant held originally under four brothers, of whom Gobind Monee's husband Sreekissen was one. They were a joint family, and the tenant was paying rent to them jointly. I should have thought myself, though it is unnecessary in this case to express any decision upon the point, that where rent is received by a joint family the tenant is not liable to be sued by each member of the joint family for a separate share of the rent. But if the estate is severed by partition, and, instead of being a joint estate, becomes separate estates, then the rent would be apportioned in respect of the several allotments, and each member would be entitled to sue for his separate share of the rent in respect of the lands allotted to him on partition. In this case there was no allegation that the widow, after her hus- band's death, had ever succeeded to, or obtained possession of, her hus- band's share in the property, either jointly or separately. The tenant said that it was the custom of the family for the elder member to collect the rents, but he did not admit that the widow was ever in sepa- rate collection of her husband's share of the rent. The Judge having found that the widow had no power under her husband's will to grant a putnee we do not think that the Judge was wrong in not finding 31 590 FULL BENCH RULINGS. iggg whethei' she was in possession or not. If the plaintiff had alleged that Baner the widow obiained separate possession of her husband's share of the Ghose'^ rent, and that being in sepamte possession of her husband's share "• she granted a putnee to the plaintiff, and that he as grantee of the putnee Doss MusDUL. liad the right to collect tlie rent which the widow had previously collected, the case might have been different. But even if the widow had been in receipt of her husband's share of the rent, that is to say, if after her husband's death the tenant had paid rent to her, speaking for myself alone, I should have been of opinion that neither she, nor her grantee, would be entitled in this suit to receive the rent after the will of her husband was established and her title disproved. According to Eng- lish law if a man takes land from another as his tenant he is estopped from denying the title of that person. But if he takes land from one person and afterwards pays rent to another, believing tliat other to be the representative of the person from whum he took the land, ho is not estopped, in a suit for rent subsequently coming due, from proving tiiat the person to whom he so paid rent was not the legal representative of the person from whom he took; for example, if a man pays rent to another believing him to be the heir-nt-law of his deceased landlord, and afterwards discovers that he is not the heir-at-law, or that the land- lord left a will, the tenant in a suit for subsequent arrears of rent would not be estopped from showing that he paid the former arrears under a mistake, and that the person to whom he so paid had no title. The admission of a man's representative character by payment of rent to him is not conclusive, although it may amount to prima facie evidence. It is, like all primd facie evidence, liable to be rebutted, and the tenant is not estopped from rebutting it if he can. Therefore, even if it has been proved that the widow in this case, after her husband's death, received one-fourth of the rent, that would not estop the tenant from afterwards proving that the husband had left a will by which he had devised his share of his estate to other persons in trust to apply a portion of the rents in a particular manner, and to pay over the residue to his widow. Therefore, speaking for myself alone, I should say that even if it had been proved that the widow had once or oftener received her hus- band's proportion of the rent, the tenant would not be estopped from setting up^ this will in answer to a charge by her or by any person claiming through her to continue to receive such share of the rent(l). When the Judge found, as he did, that the husband left a will under which the widow had no power to alienate the property, he in effect (1) SeeAct lof 1872, 33. llS&lie. FULL BENCH RULINGS. 591 found that the plaiatiff who claimed through an alienation by the widow 1866 bad no title. It was unnecessary therefore for him to go oa and inquire Banbk whether the widow ever had been in receipt of the rent, or to enter into (jnosBf an investigation as to the share held by her. The first question must be "• answered in the negative. Doss Mundcl, As to the second question whether tlie Division Bench ought to hold that the widow was entitled to collect separately the rents of the whol'e of her, husband's share upon th*e assumption that she was in legal possession of her husband's share as an admitted joint proprietor in possession. There was no admission that the widow ever was in possession of her husband's share of the rent, and no proof of it. Her prima facie title as heir to her husband was rebutted by her husband's will, and as I Lave already stated, I should have thought that when, upon the death of a member of a joint family, his interest in a joint estate passes to another as his representative, as for instance, when there is a joint family consisting of four brothers, one of whom dies leaving a son, or without issue leaving a widow, the son or the widow, as the case may be, is not entitled to sue separately for the share of the deceased member of rent reserved jointly. But I am speaking for myself alone, and I do not think it necessary to express any decisive opinion on that point now, because I tliiuk we may determine this case upon another point, namely, that as the will was proved, and the widow had no power under it to convey her husband's share of tiie property, the plaintiff had no right to sue for any part of the rent. That part of the third question, by which it is asked, what orders should be given as to the share claimed by one of the interveners to have been devised to him by the husband of Gobind Monee, the answer is, that the intervener not having proved that he was in receipt of the rent up to the time of the commeucement of the suit, ha is out of Court. But although the iatervenor is out of Court, still the plaintiff is bound to prove his title, and the will being proved shows that he had lio title. Then as to whether this Court, upon the finding of the lower Appel- late Court, and on the devisee's admission of not having taken out a cer- tificate, ouglit to consider that the devisee is not in possession of the share said to have been conveyed to him, it appears to us that, in a suit for rent by a devisee under a will, it is not necessary for him to obtain a certificate of will. A landlord dies having granted a lease to a tenant, and devises his estate to another person, that person has a right to come into the Collector's Court and to sue for the rent as represeutative of 592 FULL BENCH KULINGS. JR66 the original landlord. He is not bound to obtain a certificate, and the Banee Collector is competent to try his title. The Collector being the Civil Ghose Court for the purpose of trying actions for rent, he has power to try Thakoor '"'whether the person who claims the rent as legal representative of the Doss MuNDuL. landlord is the legal representative or not. A devisee who has not obtained a certificate is not out of possession. He has not a right to collect the debts due to the testator, but it is not contended that the devisee in this case claims to collect aty thing due to the testator. He only claims to collect the rents due since the death of the testator, for which the testator could never have sued. A devisee under a will can sue for rent without obtaining possession. The will gives him the same right as the testator had. We think that there is no necessity to remand the case to try any further issues. It appears that in point of fact there was a will made by the widow's husband, by which the plaintiff's title is disproved. That is an answer to his claim to the rent. The special appeal must be dismissed, and the decision of the Judge affirmed with costs. Teevor, Loch, Jackson, and Pundit, JJ., concurred. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson. 1866 DOYAMOYEE CHOWDRAINEE and another (Plaintiits) v. BHOLA- ^"P*- ^^- NATH GHOSE and others (Defendants).* Limitation — Cause of Action — Rent, Arrears of— Enhancement of. A suit for arrears of rent at an enhanced rate, brought more than three years after the rent had accrued due, was held to be barred by lapse of time under s. 32 of Act X of 1869, notwithstanding that it was commenced within one year from the date of a decree made in a suit brought in the Civil Court declaring that the plaintiff was entitled to enhance, The cause of action was the non-payment of the rent at the enhanced rates, and not the declaration of the Civil Court that the plaintiff had a, right to enhance (1). This suit was brought on the 9th August 1865 to recover arrears of rent at an enhanced rate for 1264, 1265, 1266, and 1267 (that is from 1857 to 1860 inclusive), the rents of the last two being arrears which accrued after the passing of Act X of 1859. * Regular Appeal, No. 41 of 1866, from a decree of the Deputy Collector of Jessore, dated the 10th November 1866. (1) See Beng. Act VIII of 1869, s.29. Chunder Roy v. Khqja Asanoolla, 8 B. L. R., Ranee Surno Moyee v. Shooshee Muhhi 537 ; Dindayal Paramanik v. RadhaMshori Barmani, 2 B. L. K., P. C, 10 ; Ishan Debi, 8 B. L. R., 536. FULL BENCH RULINGS. 693 A notice of enhancement was given on tlie 23rdCheyt 1264 (1857), 1866 and a suit was commenced for a declaration of the plaintiff's right to Dotamotee enhance. That suit was pending many years, and on the 31st August drainbe 1864 a decree was given which merely declared the plaintiff's right to bholanath enhance the rent and the rate to which he was entitled to enhance it ; but Ghosk. the decree did not make any order for the payment of arrears to the plaintiff. Within one year from the 31st of August 1864 the present suit was instituted to recover the arrears at the enhanced rate. The first Court dismissed the suit. The plaintifTs appealed to the High Court. The case was heard before Seton-Karr and Macpherson, JJ. On behalf of the plaintiffs, it was contended that, under s. 30 of Act X of 1859, the suit was within time, and they were entitled to recover all the arrears they claimed treating the date of their decree declaring their right to enhance as the date of the accruing of the cause of action, and they relied on Joymonee Dossee v. Hurronatk Roy (1). The respondents contended that the case fell under s. 32 of Act X of 1859 and relied on Hurronath Roy v. Gooroodoss Biswas (2). On account of tlie conflict the learned Judges referred the question to a Full Bench : — Whether the present suit for the arrears, which was commenced within one year after the decree in the former suit, and more than three years after the end of the year 1860 or 1267, the last year in respect of which any portion of the rent sued for is claimed, was barred by limitation or not. Baboo Onoocool Chunder Mookerjee for the appellants. Baboo Anund Chunder Ghosal for the respondents. The following judgment was delivered by Peacock, C.J. (who, after stating the facts, continued). — Section 32 of Act X of 1859 provides that suits "for the recovery of arrears of rent shall be instituted within three years from the last day of the Bengal year or from the last day of the month of Cheyt of the Fuslee or Willnyuttee years in which the arrears claimed shall have become due ;" and s. 30, Act X of 1859, enacts that, " except as otherwise herein provided, all suits instituted under this Act shall be commenced within the period of one year from the date of the accruing of the cause of action." If this is a suit for the recovery of arrears of rent, and if the case falls within s. 32 of Act X, it is barred. But it is contended that the cause of action did not accrue until the decree in the declaratory suit was passed, and that the case consequently falls within s. 30. (1) 2 W. K., Act X Cases, 51, (2) 3 W. R., Act X Cases, 19, 594 FULL BENCH RULINGS. 186S Two conflicting cases are referred to : first, Joymonee Dossee v. Hurro- DoYAMOYEE natk Roy {\) ; second, Hurronath Hoy v. Gooroodoss Biswas (2). DEAi^B "^^^ question is whether this is a suit for arrears of rent, or upon some „ "• other cause of action. But for the former of the two cases which have Ghose. been cited, I should have thought it clear that a decree declaring that the plaintiff had a right to enhance was not a cause of action. The non-payment of the rent at the enhanced rates, and not the declaration of a Civil Court that plaintiff had a right to enhance, was the cause of action. The action for that cause might have been brought if the decree had not been obtained. A suit for arrears of rent at an enhanced rate, after notice, may be brought without first obtaining a decree in a declaratory suit that the plaintiff has a right to enhance. Sec- tion 14, Act X of 1859, says — " Any under-tenant or ryot on whom such notice as aforesaid has been served may contest his liability to pay the enhanced rent demanded of hira, eitlter by complaint of exces- sive demand of rent as hereinafter provided, or in answer to any suit preferred against hira for recovery of arrears of the enhanced rent ;" and Regulation V of 1812 (the Regulation which was in force before Act X of 1859 was passed) also allowed the land-owner to sue for rent at an enhanced rate after notice, without previously obtaining a decree declaring that he had a right to enhance. The decree in the declara- tory suit may be used in evidence between the same pijrties, but it can- not constitute a cause of action. A decree in a suit instituted in 1859 declaring that the plaintifif had a right to enhance could not constitute a cause of action in respect of the rent for 1860. If a doubt existed whether the defendant held under a tenure liable to enhancement of rent or not it might be well to settle the question once for all by a declaratory suit. But there could be no decree in that suit which would bind the tenant to pay, or the landlord to receive, a parti- cuhir rate for ■ever, whatever might be the rates for adjoining lands or the value of the produce or productive powers of the land in time to come. Parties are often, I regret to say, put to much unnecessary expense and delay by these declaratory suits. There was no necessity in this case to bring a suit for declaration of the right to enhance, at least the arrears claimed might have been sued for without such a suit or a decree pronounced on it. The non-payment of the rent was the cause of action. The suit was for arrears of rent at an enhanced rate. Section 32 was the rule of limitation applicable, and s. 30 did not apply. (1) 2 W. K., Act X Cases, 51. (2) 3 W. R., Act X Cases, 19. FULL BENCH RULINGS. 595 Even if one year whs the period of limitation, the decree in 1864 was jgge not the cause of action, and the one jeur did not run from the date of Doyamoybis that decree. Chow- DKAINEK Witli regard to the rent for 1859 and 1860, which oecarae due after „ "• . Bholanatk Act X came into operation, the suit is clearly barred, whether the Ghosh. limit was three years uuder tlje first pari; or three months under the last part of the section. Probably three years was the period, as the notice of enhancement was not given under s. 13, Act X. As to the arrears for 1264 and 1263, or 1837-1858, the following part ofs. 32 is applicable:— " For arrears of rent due at the passing of this Act, the suit shall be brought within three years after the passing of this Act, or within the period now allowed for the institution of such suits in the Civil Court, whichever may first expire.'' Tiie period of three years from the date of the passing of the Act expired in April 1862, and conse- quently, as to arrears for 1837-1858, the suit was barred when brought on the 9th August 1865. We think that the ruling in the second of the two cases cited was the correct one. This appeal will be dimissed with costs. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Pundit, and Mr. Justice Campbell, In the mattek of the Petition of THA.KOOB CHUNDER PARAMANICK jggg AND otheks.* Sept. 12. Buildings on Land,— Land, Property, Ownership in Land and Building. According to the usages and customs of this country, buildings and other such improve- ments made on land do not, by the mere accident of their being attached to the soil, become the property of the owner of the soil. The general rule is that, if he who makes the improvement is not a mere trespasser, but is in possession under any bond fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building, if it was allowed to remain for the benefit of the owners of the soil; the option of taking the building, or allowing the removal of the materials, remain- ing with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate which he may possess (1). The plaintiff was the heir of one Manick Chunder, whose widow, Bhobosoondery, sold a portion of her husband's estate to one Gungadhur, from whom the defendant purchased it. After the death of Bhobosoon- dery the plaintiff' sued the defendant, alleging that the sale to Gungadhur * Application for Review, No. 108 of 1865, of a judgment of Bayley and Maopherson, JJ., dated the 26th January 1865, in Special Appeal, No. 2500 of 1864. (1) See Skibdas Bundapadhya v, Bumandas Mukhapadhya, 8 B. L. R,, 237. 596 FULL BENCH RULINGS. 1868 was void as having been improperlj made by the widow, the alleged In the mat- object of the sale having been to pay for the shradh of Manick Chunder's TER OP THE mother. The plaintiff got a decree, and the question before the Petition of r o ' i Thakoor Full Bench was whether he was entitled to certain buildings erected Chundee Paeamanick. on the laud by the defendant during the lifetime of Bhobosoondery, or whether the defendant should be allowed to remove them. Bayley and Macpherson, JJ., decided that the defendant was not entitled to remove the buildings, but afterwards, on review, referred tiie ease to a Fall Bench on account of the conflict between their decision and that in the case of Gobind Poramanick v. Gooroochurn Dutt (1) decided subsequently by Trevor and Campbell, JJ. Ml'. Montriou (with him Baboo Bama Churn Banerjee) for the petitioner. Baboos Kally Prosonno Dutt, Tarruck Nath Sein, and Romanulh Base, contra. The following judgment was delivered by Peacock, C.J. (after stating the facts). — We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed to, or built on, the soil becomes a part pf it, and is subjected to the same rights of property as the soil itself. Looking to the ancient Hindoo law, we find it laid down that " he who dwells in a house which he built on the ground of another man, and for which he pays rent, shall take with him, when he leaves it, the thatch, the wood, and the bricks. But if he live, without paying rent, on the ground of another without the owner's assent, he shall by no means, when he quits it, take away the thatch and the timber" (2). Looking at the Mahomedan law, we find in the Hidayah (3) it is said : — If a person hire unoccupied land for the purpose of building or plant- ing it is lawful (4), since these are purposes to which land is applied. Afterwards, however, upon the terra of the lease expiring, it is incum- bent on the lessee to remove the buildings or trees, and to restore the land to the lessor in such a state as may leave him no claim upon it, &c It is incumbent on the lessee to remove his trees or (1) 3 W. R., 71. (3) HamUton's translation. Vol. Ill, p. 325. (2) Nareda, Colebrooke's Digest, Book 3, (4) Apparently meaning, though no ch^p. 2, para. 99, Vol. II, page 398. Edition mention is made in the contract, of the use of 1798. to be made of the land. — Per Curiam, FULL BENCH RULINGS. - 697 houses from the laad, unless the proprietor of the soil agrees to pay jgee him aa equivalent, in whioli case the right of property in them In the mat- devolves to him (still, however, this cannot be without the consent of pk^jtion'ob' the owner of the houses or trees, except where the laud is liable to Thakoor sustain an injury from the removal, in which case the proprietor of the Pakamahiok, land is at liberty to give an equivalent, and appropriate the trees or houses without the lessee's consent), or unless the proprietor of the land assents to the trees or houses remaining there, in which case they continue to appertain to the lessee and the land to the landlord, &c." (1). In the case of Khoderam, Surma v. Trilochun (2) we find it laid down that " if a member of a joint Hindoo family build a brick house on ancestral land with separate funds of his own, such house would not be a property in which shares might be claimed by his coparceners. Coparceners in the land would only have a claim on him for other similar land equal to their respective shares." That the maxim quicquid plantatur solo solo cedit does not apply in such cases was recognized by the late Sudder Court in the case of Janh.ee Singh v. BukJiooree Singh (3). That was a suit for the demolition of build- ings erected on joint property by a member of a joint Hindoo family without the consent of his cosbarers. In W. G. Nicose Pogose v. Nyamutoollah Oslagur (4) ; Sudder Dewanny Adawlut, N. W. P., 25th November 18,63, p. 418, and Kaleepershad Dutt v. Goureepershad Dutt (5), are similar cases (6). They show at least that the English rule above alluded to does not prevail in this country. By Act XI of 1855 the Legislature made provision for mitigating the rigor of the English law on this subject, by securing to persons holding bona fide under defective titles the value of improvements made by them in cases to which English law is applicable. But by s. 3 it was enacted that nothing in that Act should extend to any case in which the English law was not applicable. According to the Civil law, if a person, building on the land of another, used his own materials not knowing that the land was not his own when the building was destroyed, he could reclaim the materials, or if he was in possession of the building, could refuse to deliver it to the owner, unless he was indemnified for his expenses, at least so far as ihey had been incurred profitably to the owner of the soil (7). (1) See also Translation, 284.— Per (6) We are not prepared to accept as Cwiam. law the rule laid down in these cases, that (2) Select Reports, 35. ^^^'^ co-proprietor has a right of veto to ^ ' '^ forbid anything being done to the common (8) S. D. A. R. for 1856, 761. property without his consent.-Per Curiam. (4) S. D. A. R. for 1858, 1517. (7) See Justinian's Institutes by Sandarst (5) 5 W. K., 108. book 2, tit, 1, para. 30. —Per Curiam. 32 598 FULL BENCH RULINGS. I8fi6 We tliiuk it clear that, according to the usages and customs of the ~Z country, buildings and other such improvements made on land do not by TEROFTHE the mere accidcDt of their attachment to the soil become the property Petitiok of Thakoor of the owner of the soil ; and we think it should be laid down as a Pakamaniok. general rule that, if he who makes the improvement is not a mere tres- passer, but is in possession under any bo7ia fide title or claim of title, he is entitled either to remove the materials, restoring the land to the estate in which it was before the improvement was made, or to obtain conlpensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking the building, or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess. With these observations, we remand the case to the Division Court, which will pass such orders as may be necessary on the review. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L, S. Jackson, and Mr. Justice Macpherson, 1866 ABDOOR RUHMAN (Defendant) v. KISTO LALL GHOSE (Plaintipp).* Sept. 12. Regulation I of \19%— Regulation XVII of 1806, s. 7— Tender. Where money was paid into Court by a person alleged to be a mortgagor of certain property after notice of foreclosure, without any actual restriction being placed on its being paid over to the alleged mortgagee, but the payment was made with a notice in these words : " I have shown the mortgage to be false and fraudulent, and to set aside the kabala and to get back the money I shall hereafter institute a regular suit ; " it was held that Regulations I of 1798 and XVII of 1806, s. 7, do not apply to such a case. Such payment gave no right to redeem. The plaintiff, who was a mortgagee of the property involved in the suit, sued the mortgagor, Mumtaz Hosain, after notice of foreclosure. The appellant who had intervened was made a defendant, as he claimed the property partly under a sale and partly under a mortgage from the original defendant, subsequent to the first mortgage to the plaintiff. The main contention on the appellant's part was that the money was, on notice of foreclosure, duly paid into Court hy Mumtaz Hosain, and that the plaintiff should have taken it, and that not having done so, the plaintiff had lost his rights altogether. While the plaintiff contended that tlie money was not paid into Court in a manner to amount to a tender in law, but was clogged with a condition. * Special Appeal, No. 153 of 186G, from a decree of the Principal Sudder Ameen of Beerbhoom, dated the 31st October 1865, affirming a decree of the Moocsiff of that district, dated the 23rd March 1865. FULL BENCH KULINGS. 599 It appeared that the money was paid into Court •without any actual jggg restriction or prohibition being placed oa its being paid to the mort- gagee; but in his petition to the Court on making the deposit the Kuhman mortgagor used words to the following effect :— " I have shown the KistoLall mortgage to be false and fraudulent, and to set aside that false kabala <5hosk. and to get the money back, I will hereafter institute a regular suit." Both the lower Courts decided the case against the appellant, holding that the deposit by Mumtaz Hosain was not a sufficient legal tender. The appellant preferred this appeal, which was heard before Macpher- son and Seton-Kerr, J J. Macpherson, J., after stating the facts, said :— " The lower Appellate Court has held this deposit to be bad, on account of the mortgagor having given this notice of his intention to bring a regular suit to set aside the kabala and to get the money back, and in so holding the Court has, as it appears to me, strictly followed the ruling of the Privy Council in the case of Prannath Roy Chowdhry v. Rookea Begum (1). The appellant, however, relies on the case of Hethan Singh v. Lekraj Singh (2), in which a Divisional Court subse- quently held that a deposit made under similar circumstances was good, and saved the right to redeem ; the ruling of the Privy Council in Prannath RoyChowdhry's case being declared to have been with refer- ence only to the special circumstances connected with the position of the person by whom the deposit was made, and not to have laid down any general rule to be accepted and acted on by this Court. " While I should certainly, but for the case of Prannath Roy Chowdry, have been prepared to agree with the Divisional Court in considering such a deposit to be sufficient as being in fact unconditional, it appears to me that in Prannath Roy's case the Privy Council have expressly ruled to the contrary, and that this Court is bound to follow that ruling. Reading the judgmeut of their Lordships of the Privy Council with the utmost care, I am unable to see that it turned on the special position of tlie person who made the deposit. His position is treated as a further and distinct reason why the mortgagee was not bound to accept tlie money which had been deposited, but quite independently of this, their Lordships seem to me to decide that the deposit was bad on account of the expressed intention to sue to recover back the money tendered which could not reasonably be regarded as idle words. There is, I think, a direct conflict between the decision of the Privy Council and the subsequent decision of this Court io Hethan Sing's case. I therefore (1) 7Moo. r. A., 323. (2) 3 W. K., 184. 600 FULL BENCH RULINGS. iggg am of opinfcn that this case should be referred to a Full Bench on the Abdook question whether the deposit was or was not such as to give the right EuHMAN ^f redemption. KisTo Lall Seton-Karr, J., agreed that the case should be referred to a Full Ghose. ' ° Bench. Mr. C. Gregory and Baboo Kishenkissore Ghose for the appellant. Baboos Dwarkanath Mitter and Sreenath Dass for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — The question submitted for the opinion of a Full Bench is whether tiie payment into Court by a person alleged to be the mortgagor of certain property was or was not a sufficient tender to prevent foreclosure. The money was paid into Court without any actual restric- tion being placed on its being paid over to the alleged mortgagee, but the payment was made with a notice in words to the following effect : — " I have shown the mortgage to ba false and fraudulent, and to set aside the kabala and to get back the money, I shall hereafter institute a regular suit." It appears to me that both Regulations I of 1798 and XVII of 1806 contemplate cases in which the relationship of mortgagor and mort- gagee is undisputed, and that s. 7 of the latter Regulation was not intended to apply to a case in which an alleged mortgagor makes under protest a tender of money claimed upon a mortgage which he disputes upon the ground that the deed is false and fraudulent, with notice that he intends to institute a suit to set aside the deed, and to recover back the money tendered or paid into Court, if accepted by the person claiming as mortgagee. But whatever might be our own view of this case, if it were res Integra it appears to me that we are bound by the ruling of the Privy Council in the case of Prannath Roy Chowdhry v. Rookea Begum (1). In that case two reasons were given why the payment into Court was not sufficient. Lord Kiugsdown, in delivering judgment, says at page 358 : — " The remaining objection relates to the payment into Court in the nature of a tender which was made by the defendant Ramrutton Roy. Ramrutton Roy directed the money to be paid out to the appellant, but at the same time in his petition to the Court he disputed the validity of the appellant's title to foreclose, and expressed an intention, amounting to a notice, to sue the appellant to recover back the very money which he was tendering. The meaning (IJ 7 Moo. I. A., 323, FULL BENCH RULINGS. 601 of the direction that the money be paid into Court clearly is tliat the mortgagor may have adequate and lasting evidence of that whicli is put ill place of a tender, and the mortgagee the security and advantage of a deposit in acknowledgment of the title. The mortgagee would have little inducement to take the money, waiving his lien by its acceptance if litigation on the very same subject were to recommence upon the acceptance of the money ; and though mei-e words in the form of a protest which may accompany a tender will not defeat it where they can reasonably be regarded as idle words, their Lordships think that the proceedings of Rararutton Roy with respect to the mortgngee's title to foreclose forbids such an inter- pretation of his language and his act." It is true that His Lordship went on to say that, independently of the objection to the payment, another and a graver reason (which he afterwards explained) existed for holding it not to be such a payment as the Regulations contemplated. But it is clear that the foreclosure was upheld for both the reasons given by the Lords of the Judicial Committee. It was urged that as two reasons were given, and one of them was said to be graver than the other, the graver one must be treated as the ground of the judgment, and the weaker one as an obiter dictum. When two reasons are given for a decision we cunnot say that one is obiter any more than the other. They were both directly to the point, and were the reasons upon which the judgment was given. The case will go back to the Division Bench which referred it, with this expression of our opinion. 1866 Abdoor fiUHMAN V. KisTo Lall Ghosb. 602 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Lock, Mr. Justice Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. 1866 MOSOODUN LALL (Decree-holder ) o. BEKAEEE SINGH (Judoment- Sept. 15. N * debtor) and others.* Execution of Decree — Interest or Mesne Profits — JuAsdiction of Courts executing Decrees— Act XXIII of 1861, s. 11 (1). When a decree is silent as to interest, the Court executing the decree has no power to award interest. Act XXIII of 1861, s. 11, refers only to questions of amount of interest or mesne profits which are left open and not determined by the decree (2). Thi8 was an appeal from an order of the Principal Sadder Ameen of Bhngulpore dated 3rd September 1864. On the 20th August 1865, Loch and Glover, JJ., dismissed the appeal, on the ground that the decree, the execution of which was sought, was barred by the law of limitation. On the 4lh August 1866 the appellant applied for a review of judg- ment, and on the 13th August 1866 the case was referred to a Full Bench by Loch and Macpiierson, JJ., under the following circumstances. The appellant held a decree against one Bekaree Singh. The respondent Joycoomaree, who also held a decree against Bekaree Singli, sold the property of the judgment-debtor under her decree and took away tlie proceeds on the ground that by her execution certain collusive transfers of the property had been removed, and the property had been rendered liable to sale for the debts of the judgment-debtors. The appellant brought a suit against Joycoomaree to recover a rateable portion of the sale proceeds, as under the course of procedure in force previous to the eniiQtment of Act VIII of 1859 he was entitled to a share, and he obtained a decree on 31st July 1857 (3), whicli, after deducting the * Miscellaneous Regular Appeal, No. 249 of 1865, from an order passed by the Principal Sudder Ameen of Bhagulpore, dated the 3rd September 1864. (1) Act XXIII of 1861, s. 11. — "All shall be determined by order of the Court questions regarding the amount of any executing the decree and not by separate mesne profits which by the terms of the suit, and the order passed by the Court shall decree may have been reserved for adjust- be open to appeal. Provided that if, upon ment in the execution of the decree, or of perusal of the petition of appeal and of the any mesne profits or interest vrhich may order against which the' appeal is made, be payable in respect of the subjectr-matter the Court shall see no reason to alter the of a suit between the date of the suit and order, it may reject the appeal, and it shall the execution of the decree, as well as ques- not be necessary in such case to issue a tions relating to sums alleged to have notice to the respondent before the order been paid in discharge or satisfaction of of rejection is passed." the decree or the like, and any other ques- (2) See Earomohini Chowdhrain v. tions arising between the parties to the Dhanmoni Chowdhrain, 1 B. L. R., A. C, 142. suit in which the decree has passed, and (3) S. D. A., 1857, 1366. relating to the execution of the decree, FULL BENCH RULINGS. 603 expenses to which Joyeoomaree had beea put in bringing her suit, whereby the obstructions to the sale of the property of Bekaree was removed, awarded a rateable share of the remaining sale proceeds to the appellant. The sale took place in or about 1850, "and in execution of the decree the Principal Sudder Araeen awarded a rateable share with interest up to the date of sale to be recovered from the respondent. The appellant now asked the Court to give him interest up to the date of realization, urging that he had been kept out of his money notwith- standing the decrees passed in his favor so far back as 1857. As the decretal order contained no provision for interest, the learned Judges thought that they could not in execution give that which was not awarded in the decree. But as there were former decisions against this view, viz., Hookun Bebee v. Khaja Mahomed Moosa Khan (1) and Beerchund Joobraj v. Ramcoomar Dhur (2), they referred the question to a Full Bench, viz. : — Whether if the decree itself is silent as to interest, the Court executing the decree has power to award interest ? Baboos Kishen Sakha Mookerjee and Moulavie Murhamut Hosein for the appellant. Baboos Onocool Chunder Mookerjee and Debender Narain Base for the respondent. Tlie opinion of the Full Bench was delivered by Peacock, C.J. — We have no doubt that, in executing a decree, the Court which executes it has no power to alter or add to it. In many cases a decree may lawfully order amounts which are uncertain to be ascer- tained in execution. Ss. 196 and 197 of Act VIII of 1859 furnish examples of cases in which the enquiry as to the amount of interest or mesne profits decreed may be reserved for the Court executing the decree. If a decree awards a certain amount for principal with interest thereon at a certain rate from a certain day to the day of realization, it is not possible for the Court passing the decree to fix the sum payable for interest, as it cannot know on what date the amount will be realized. Tlie period being fixed, or capable of being ascertained, for which interest is by the terms of the decree to be allowed, and the rate at which it is to be allowed being also fixed by the decree, it is a mere ministerial duty to ascertain the amount by calculation. The enquiry into tlie amount due for mesne profits is more of a judicial nature. But in both 1866 mosoodun Lall V. Bekakeb Singh. (1) 6 W. R., Mis. Kul., 14. (2) 6 W. K., Mis. Rul., 26. 604 FULL BENCH RULINGS. 1866 MOSOODHN V. Bekakke Singh. cases, by the express terms of the law, it may be left for the Court which executes the decree to ascertain what the amount is. But this is a very different thing from leaving it to the Court which executes the decree to discharge the judicial functions of the Court which passed the decree to the extent of awarding interest or mesne profits in cases in which the decree is silent in regard to interest or mesne profits ; or of awarding interest or mesne profits at a higher rate, or for a longer period than is warranted by the decree, or of awarding interest or mesne profits in cases in which the Court passing the decree has actually disallowed them. It is said that the power of allowing interest or mesne profits is delegated by Act XXIII of 1861, s. 11, to the Court which executes the decree. That section enacts (reads") : — It appears to us that the only question which is left to be determined by the Court executing the decree is the question of amount. The words "all questions regarding the amount of any mesne profits which by the terms of the decree may have been reserved for the adjustment in execution of the decree, or of" (tliat is to say regarding the amount of) " any mesne profits or interest which may be payable in respect of the subject- matter of the suit between the date of the suit and the execution of the decree, &c., shall be determined by order of the Court executing the decree." The latter branch of the section clearly refers to cases in which the payment of mesne profits or interest is provided for in the decree under s. 196 of Act VIII of 1859 ; the former branch to cases under s. 197. In both cnsos the mesne profits are payable within the meaning of s. 11, Act XXIII of 1861, the amount only remains to be ascertained according to the principles laid down in the decree. It clearly could not have been intended by words which convey a direction to determine all questions regarding the amount of mesne profits or interest payable in respect of the subject-matter of the suit between the date of the suit and the execution of the decree to authorize the Court executing the decree to determine, it may be, contrary to the terms of the decree, or in the absence of any decision upon the subject, whether interest or mesne profits due or were not payable at any rate for the period between the date of the suit and the date of the decree. Such a question is certainly one which would more properly be determined by the Court entrusted to pass the decree than by the Court authorised to execute it. But it may be said that the Legislature intended to give to the Court executing the decree power to determine not only the amount of, but the right to, interest or mesne profits between the date of the decree and the date of execution. But what- FULL BENCH RULINGS. 605 ever is the power givea to the Couit with refeieuce to the period between the date of decree and the date of realization, the same power is also given with reference to the period between the date of suit and the date of decree. Nay, further, the questions intended by s. 11, Act XXIII of 1861, whatever they are, which mny be determined by the Court executing the decree, must be determined by that Court. The words of the section are " shall be determined." It could not have been intended to prevent the Court passing the decree from determining as to the legal right of the plaintiff to recover interest or mesne profits. But whatever questions must be determined by the Court executing the decree cannot be determined by the Court which passes it. This shows that the questions intended are questions of amount only. If the amount is fixed by the decree, no question remains as to it. The section elearly refers to questions of amount upon the subjects mentioned which are left open and not determined by the decree. We are, therefore, of opinion that the question propounded by the Division Bench must be answered in the negative. ]8G6 mosoodun LaliT Brkabbb Singh. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Lock, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. In the matteb op the Petition of KAJKISSEN SINGH. Execution — Security — Regulation XVI o/"1797, s. 4. — Appeal to Privy Council. The plaintiff obtained a decree for possession of part of a zemindari in the Court below, and in execution obtained possession on giving security. On appeal by the defendants to the High Court, the decree was reversed and restitution ordered. Plaintiff then appealed to the Privy Council, and applied to the High Court to be left in possession upon his Ifirmer security. Held, that s. 4, Regulation XVI of 1797, did not apply, and the plaintiff was not entitled either to keep possession or to require the defendants to give security ; but the defendants were entitled to restitution of the property without security whether the judg- ment of the High Court ordered restitution or not : but that it was within the discretion of the Court to call upon the defendants to give security for costs, if any, awarded by the decree of reversal (1). The plaintiff brought this suit in the Court of the Principal Sudder Ameeu of Mymensingh for possession of part of the zenaindaii Milk Shooshung, and obtained a decree.- Possession was awarded to him in execution of the decree on his giving security under the provisions of s. 36 of Act XXIII of 1861 for the restitution of the property or the value thereof, and for tlie due performance of the decree of the Appellate Court in case his decree should be reversed on appeal. The defendants appealed (1) See Soudaminee Dossee v. Moharaja Dheraj MoJiatah Chand Bahadoor. ante, p. 685. 33 1866 Sept. 15. (306 FULL BENCH RULINGS. iggg to the High Court, and the decree was reversed nnd restitution was In the mat- ordered. The plaintiff having appealed to the Privy Council npplied Petition OF *" ''^® Court below to be allowed to remiiiu in possession of the property Kajkisskn upon the security which he liad ah'eady given. The lower Court refused to make any order, observing that as the decree of that Court had been reversed by a decree of the High Court against which an appeal had been preferred to Her Majesty in Council it had no longer any jurisdiction. The defendants then applied for execution of the decree of the High Court made in their favor on their appeal. The plaintiff then petitioned the High Court and obtained a rule calling on the defendants to show cause why the execution of the decree of the High Court in their favor should not be stayed pending the appeal to Her Majesty on the plaintiff giving security. Baboo Oaookool Chunder Mookerjee showed cause before L. S. Jackson, J., and contended tliat the High Court had no authority to make an order for taking security in a case like the present. He referred to the decision of Norman, Offg. C. J., and Pundit, J., in the case of Nilkishen Thakoor V. Beer Chunder Thakoor Gossain{\), in which the learned Judges laid down that tliere is no power to make such an order under s. 4, Regula- tion XVI of 1797. They observed that " the first clause of the section empowers the Court ' to order the judgment passed by them to be carried into execution on taking sufficient security from the party in whose favor the judgment may be passed: ' But that clause does not apply, because in the present case there is no judgment which is to be carried into execution ; the judgment of the lower Court whioli would have altered the state of things existing prior to tlie commencement of the suit, having been simply reversed and annulled by the order of tliis Court.'' Jackson, J., who heard tlie application, did not concur in this view; but observed that "there must be some judgment to be carried into execution, because if there had been no jud<;ment to be carried into execution, the plaintiff wlio had executed his original decree would then have retained [losaession of the property, and the defendant would not have recovered his costs of tliis Court or of the Court below. Consequently it seems to me there was a judgment and also an execution." He therefore referred the case to Full Bench. Baboos Kally Frosonno Dntt and Khetltirnath Base for thepptitioner. Mr. R. T. Allan, Baboos Onookool Chunder Mookerjee, Sreenath Dass, uud Nilmadhub Sein contra. (1) 1 T^'. K., Mis.,23. FULL BENCH KULINGS. 607 The foUowiug judgments were delivered : 186G Fn THP MAT— Peacock, C.J. (after stating tlie facts). — It is said, ia the plaintiff's tbrofthe petition to this Court, that the defendants have applied for execu- eajkisseh^ tion of the decree of the High Court made on nppeal. More correctly Singh. speaking, they are applying for restitution of the property from which they were ousted under the decree which has been reversed. The ques- tion is whether the case falls witiiin Regulation XVI of 1797, s. 4, and whether this Court can suspend the restitution upon the security which tlie plaintiff has already given, or upon his giving fresh security for the due performance of the decree which Her Majesty in Council may think fit to make on the appeal against the decree of reversal ; or whether they can compel the defendants'to give the like security before they are allowed to enforce restitution. In support of the contention of the defendants that this case does not fall within the section of the Regulation above quoted, the cuse o{27ilkissen Thakoor v. Beer Chunder Thakoor Gossain (1), decided by the OfiSciating Chief Justice and Pundit, J., is relied upon, in which it was laid down that there was no power to make such an order under s. 4, Regulation XVI of 1797. We are of opinion that the ruling in the case quoted is correct. Even if the decree reversing the decision of the lower Court had not contained an order for restitutiou, the defendants would have been entitled to be restored to the property of which they had been turned out of possession under the decree which was reversed. A writ of restitutiou cannot properly be said to be a writ of execution of the decree of reversal, and such a writ is never classed under the head of writs of execution. If a man is turned out of possession of property under a decree which is afterwards reversed on appeal, it would be very unjust nnd inequi- table to allow the party who obtained possession under that decree to retain possession of the property pending his appeal against the decree of reversal even upon his giving security ; it would also be unjust and inequitable to refuse restitution of the property to the party who had been turned out, unless he should give security. It is very just that where execution of a decree would change the state of things as they existed at the commencement of litigation, the party wishing to enforce that decree should give security, or that the party against whom an existing decree is given should not be allowed to remain iu possession of the property decreed against him, pending an appeal against that decree without security. These are the cases intended to be provided (1) 2 W, K., Mi.., 23. 608 I^'ULL BENCH RULINGS. I8gg for by the Regulation above quoted. Here there is no decree now in In the mat- existence against the defendants who were in possession at ihe time when Petition™f' the litigation commenced, the decree under which they were turned out Kajkissen \,j tijQ plaintiff having been reversed. Why, then, should the plaintiff retain the defendant's property upon giving security ; or why should not the defendants have their property restored to them without giving security? There being no decree against the defendants they ought to be put in the same position as they were in before the decree of the lower Court was given. This -will not be the case if they be required to give security which they may be unable to do, or if the plaintiff be allowed upon giving security to retain possession of that which by the decree of reversal now appears not to be his. The defendants must be restored without security to all that was taken fiom them in execution of the decree of the lower Court. In fact the plaintiff gave security for such, restitution before he was allowed to execute bis decree. There is no reason why he should be absolved from such security, because he has thought fit to appeal against the decree of reversal. As regards costs, if any, either in the lower or Appellate Court, awarded to the defendants by the decree of reversal, we think that the case comes within the Regulation, and that security may be required either from the one party or the other at the discretion of the Court. In this respect we also agree with the Judges who decided the case cited. They say " if the application had been simply for security to the extent of the decree, so far as it applied to the costs, we might have acceded to its prayer." Tlie case will go back to the Judge who referred it, in order that he may deal with the application so far as it relates to the costs, if any, awarded to the appellants by the decree of reversal. Loch, Campbell, and Macpherson, JJ., concurred. Jackson, J. — I do not dissent from this decision. rULL BENCH RULINGS. 609 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Loch, Mr. Justice L. S. Jackson, Mr. Justice Campbell, and Mr. Justice Macpherson. ISflfi In the matter of the Petition of BARODA SOONDREE DASSEE. Sept. 17. Practice — Hearing two Counsel — Motions, It is not the practice to hear more than one counsel or , vakeel in support of original motions or applications against which no cause is shown in the first instance. This was an application to the Court praying that steps should he taken with a vie^ to punish Hurry Hur Mookerjee, for having, with the intention of defrauding the petitioner of the property he sold to the petitioner, falsely stated, in a certain verified written state- ment filed by him in a certain cause on the 18th May 1865, that he had sold the property to another person and not to the petitioner, and for having falsely and fraudulently deposed on oath on the 11th Novem- ber 1865 in the cause — Baroda Soondree Dassee v. Hurree Hur Mookerjee — to the same effect, and also for having examined several witnesses to support that false statement, having thereby committed the offences described in s. 24 of Act YIII of 1859 and ss. 109 and 193 of the Indian Penal Code. The application was heard by Bayley and Campbell, JJ., who said that they saw no reason whatever for granting the application, which the Principal Sudder Ameen had already rejected ; and that their judgment showed nothing to lead them to suppose that the case was one calling specially for public example, and they would not interfere. At tliis stage the pleader for the appellant. Baboo Peary MohuQ Mookerjee, stated he wished to be heard as second pleader. He then wished to be heard still further on the facts as shown in the decision of the first Court, which he argued would prove the necessity of a reference to the Criminal Court for enquiry. Campbell, J., considering that the case had been sufficiently gone into by the first pleader, who was fully heard and had sat down, declined to hear the second pleader. Bayley, J., considered that he was entitled to be heard. The point, therefore, whether the second pleader ought to be heard or not, was laid before the Chief Justice, by whom it was referred to a Full Bench. 610 FULL BENCH RULINGS. 1866 Baboos Mohendro Lull Shome aud Peary Mohun Mookerjee for In thk mat- tte petitioner. TEK OF THE si^RomSooN- ^i"- ^- ^- ^"""^ "'id 'S«*''o /^t«/ie« Suckha Mookerjee, contra. DBEE DaSSEE, The opinion of the Full Bench was delivered by Peacock, C.J. — It is not the practice to hear more than one Counsel or Vakeel in support of original motions or applications against which CO cause is shown in the first instance. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Pundit. 1866 KALLY NARAIN EOY CHOWDHRY (Decree-holder) «. SREEMUTTY Sep*. 17. SADRUN NESSA KHATOON (Judgment-debtor).* Jurisdiction of Deputy Collector — Power of hearing Appeal— Act X o/1859, s. 150^ Beng. Act VI of 1862, ss. 1, 19. A Deputy Collector cannot, under s. 19 of the Bengal Act VI of 1862 (1), hear an appeal from the judgment of another Deputy CoUeotor, even if the case is referred to him by a Collector. Semhle. — The object of that section was to give to Deputy Collectors specially entrusted with such powers, all the powers which were conferred on Deputy Collectors upon reference by the Collector or on Deputy Collectors placed in charge of subdivisions without such reference. This case was heard before Loch and L. S. Jackson, JJ., Jackson, J., said that, before proceeding to hear the appeal upon its merits, he wished to state that the order of a Deputy Collector passed upon an appeal iav a case under Act X of 1859 appeared to him to be an order made without jurisdiction. But as there was a decision, Jossim Kazee v. Koylash Nath Haldar (2), of a Division Bench to the effect that a Deputy Collector, by virtue of s. 19 of the Bengal Act VI of 1862, may hear appeals upon reference by a Collector, he thought it would be advisable, in order to set this point at rest, to refer the question for the decision of a Full Bench. Loch, J., who was one of the Judges who passed the decision quoted above, said that he was perfectly willing that the question should be referred for the further consideration of a Full Bench in order that the point might be settled ; so that, if there had been any incorrect ruling, it miglit be corrected as soon as possible. * Miscellaneous Regular Appeal, No. 821 of 1865, from a decree of the Deputy Collector of Dacca, dated the 22nd September 1865. (1) The jurisdiction of Collectors and taken away by Bengal Act VIII of 1869. Deputy Collectors to try reut cases has beeu (■-') t W, R,, Act X Kul,, 10. FULL BENCH RULINGS. 611 Knboos Onoohool Cliunrier Mookerjee, Pear!/ Lall floy, and Sree.nath 1866 Bonerjee for the petitioner. . • Kat.ly Nauain Rot Mr. C. Gregory and Baboo Annoda Prasad Banerjee for the „ respondent. ^l^^Zl'Z. Khatoon. The opinion of the Full Bench was delivered by Peacock, C.J. — The questioa is whether, under s. 19 of the Bengal Act VI of 1862, a Deputy Collector can hear appeals upon reference by a Collector. It is contended that the words " all the powers vested in the Collector by any of the sections of this Act or of Act X of 1859" include the powers of hearing appeals. But it is clear what the object of the section was, and that it was never intended to authorize a Deputy Collector to hear appeals. S. I, Act VI of 1862, repealed s. 150, Act X of 1859, except as to cases which hud been instituted before the passing of that Act. By s. 150, Act X of 1859,' it was enacted that "all the powers vested in the Collector by the preceding sectioas of this Act may be exercised by any Deputy Collector in cases referred to him by a Collector, and in all cases without such reference by any Deputy Collector placed in charge of any subilivision of a district." The section-was, reenacied by s. 19, Act VI of 1862, with the addition of the following words : — " or who is specially authorized by Government to receive such cases." It was therefore intended to give to the Deputy Collectors who are specially authorized by Government to receive such cases all tlie powers which might be exercised by a Deputy Collector placed in oliarge of a subdivision or by any Deputy Collector in cases referred to him by a Collector. S. 19, Act VI of 1 862, is not very accu- rately worded. It uses the words "all the powers vested in the Collector by any of the sections of Act X of 1859," and not "all the powers vested in the Collector by any of the sections of Act X preceding s. 150," but it is perfectly clear that it was not the intention of the Legislature to give to a Collector the power of autliorizing a Deputy Collector to liear an appeal from the juilgment of another Deputy Collector. S. 154 of Act X enacts that "in suits in which the judgment of the Collector is final, as provided in the last preceding section, the Collector may, upon the application of eitiier party if preferred within thirty days from the date of decision, order the rehearing of a suit upon tiie ground of the discovery of new evidence, &c. By s. 20, Act VI of 1862, the Collector may withdraw a suit from any Deputy Collector and try it himself. If a Collector should withdraw a suit from a Deputy 612 FULL BENCH RULINGS. 1866 Collecfor in charge of a subdivisioQ and hear it himself, he would have Kallt power to order a rehearing of it under s. 154 of Act X ; but it cannot be Chowdhrt contended that the Deputy Collector in charge of a subdivision could Sreebiotty order a rehearing in such a case after it had been heard by tlie Collector. SadrunNessa jt must be borne in mind that whatever power is vested by the Khatoon. _ "^ section in question in a Deputy Collector in cases referred to him by a Collector, is also vested without such reference in a Deputy Collector in charge of a subdivision. S. 155, Act X of 1859, gives an appeal to the Collector from a judgment of a Deputy Collector in certain cases, and it therefore impliedly gives the Collector power to hear the appeal, but this implied power was not one of the powers iutended to be given to a Deputy CoUecto'r in charge of a subdivision. It is clear that the right of appeal given by s. 155 of Act X to a Collector from the decision of a Deputy Collector in charge of a subdivision has not been taken away, and that the power of hearing such appeal is still vested in the Collector. It cannot be supposed that the Legislature intended that a Deputy Collector in charge of a sub- division could exercise the powers of the Collector, and hear the appeal •from his own decision, or that the Collector should have power to refer it to another Deputy Collector in the same subdivision or in any other part of his district. It appears to me that the case is too clear for argu- ment, and that the object of s. 19 of the Bengal Act VI of 1862 was to give to Deputy Collectors specially entrusted with these particular powers, all the powers which were conferred on Deputy Collectors upon reference by the Collector or on Deputy Collectors placed in charge of subdivisions witliout such reference. We therefore think that the Deputy Collector cannot hear an appeal fi'ora another Deputy Collector, even if the case is referred to him by the Collector. This case will go back to the Division Bench to be finally determined. FULL BENCH RULINGS. 613 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jachsori, and Mr. Justice Macpherson. MAHARANEE WUZUROONNESSA cPlaintiff) v. BEBEE SAEEDUN 18G6 AND OTHEES (DEPENDANTS).* Sj L RAJAH JOYMUNGUL SINGH (Plaintiff) v. BEBEE SAEEDUN and OTHERS (Defendants).* Bedemption — Mortgage— Account — Regulations XV of 1793 and I of 1798 — Mesne Profits — Costs. A. granted a ziir-i-peshgee lease of certain lands to the defendants for a fixed term of years, which was to continue after the expiry of the term so long as the money advanced remained unpaid. Shortly afterwards A. evicted the defendants, and sold the land to C. and D. in the proportion of 12 annas and 4 annas. The defendants sued all the three and ohtaiaed a decree for possession and mesne profits. They never got back possession, hut recovered the mesne profits from A. On the expiry of the terra of the lease, C. and D. each brought a suit to redeem his own share of the estate after payment into Court of the money advanced in amounts proportionate to the share of the land purchased by each. The two suits were heard together. Held, they were entitled to redeem. Beld, also, that the defendants were not liable under Regulation 5V of 1793 or Eegula- tion I of 1798 to account for the mesne profits which they had recovered. These two appeals, and the original suits out of wliich they arose, were heard together before Morgau and Pundit, JJ., who differed in opinion from eacli other. It appeared that the owner of the estate, tliroiigh whom the plaintiffs in the two suits claimed separate shares by purchase, had, before the sales fo the plaintiffs, mortgaged the estate to the defendants. The mortgage was in the form of a zur-i-peshgee lease for a fixed term of years, and was to continue after the expiration of the term so long as the mortgage-money should remain unpaid. Sliorily afte>r the mortgage, the mortgagee, defendant, was evicted from the estate by the mortgagor. He subsequently brought a suit for possession and wasilat, in which he obtained a decree, the wasilat to be assessed in execution. The defendant never obtained posses- sion under the decree, and it did not appear that he ever attempted to do so ; but he recovered wasilat by execution. The term of the lease expired, and the plaintiffs each brought a suit to redeem his own share of the estate upon payment of a proportion of the mortgage-money equal to the portion of the estate which he had purchased, one of the plaintiffs being a four-anna, and the other a twelve-anna, shareholder. The mortgage was prior to the repeal of the usury law by Act XXVIII of 1855, and the principal had been deposited in Cpurt by the two plaintiffs * Regular Appeals, Nos. 443 and 449 of 1864, from the decrees of the Principal Sudder Ameen of Monghvr, Zillah Bhagulpore, dated 6th September 1864. Si WUZUKOON 614, rULL BIDNCH RULINGS. 18R6 ia separate proportions. One of the plaintiffs, jjiz., the four-anna sbare- MoHAEANEE holdev, claiiued to redeem his portion of the estate with costs, and the other, the twelve-auna shareholder, claimed to have an account of what „ f ■ the defendant had received under the lease ; and it was contended on his Saeedun. behalf that as the defendant had received wasilat in lieu of the usufruct Eajah .Jot- from which he was evicted, he was bound to account for the amount M ^GUL 1 received, and to return all that was in excess of 12 per cent, interest. Saeedun '^^'^ ^"''^ ^^''® dismissed ia the lower Court, and the plaintiffs appealed to the High Court. Morgan, J., held that the defendant was not a mortgagee in possession. " Ou the other hand," he said ; " the plaintiffs are no ordinary mortga- gors ; each of them has a share of the mortgaged property, but he holds it with this defect that he (or his vendor) acquired it by the illegal dispossession of the mortgagee. Therefore the suits were rightly dismissed. Pundit, J., considered that the plaintiffs had a right to' redeem. He said : — " I would decree that the plaintiffs are entitled to obtain an order for redemption, on both or one of them paying the ten thousand rupees of the principal, together with simple interest upon the same from the dale of the zur-i-[ieshgee up to the time of the paymeut of the principal. From this sum is to be deducted ia fuvor of the plaintiffs the principal that they may have deposited before, and Es. 500 which the mortgngee eays had been collected by him before his dispossession, as well as any thing which he may hiive realized besides in execution of his decree for mesne proiits from any one of the defendants liable to pay the same. The property is to be pronounced as redeemed, and the mortgagee is to be considered as relieved from giving any accounts as well as from all liability to pay any surplus collection. " The mortgagee is also to forfeit all claims to any mesne profits decreed as against any party liable under the decree. " The costs of the decree for possession will, however, be allowed to be realized by the mortgagee, as well as all the costs of these two cases for both the Courts from both the plaintiffs, appellants. This decree is, however conditional, one being limited to the contingency of the plain- tifia paying the sums required above within two months from this date. The payment by any one of the plaintiffs will entitle both of them to the decree recorded above. " If money is not paid as directed above, the lower Court will then withdraw the injunction passed by it for staying the execution of the former decree, and proceed to try this as a case for redemption, and call upon the mortgagee for aocouuts, ou the basis, however, of the FULL BENCH KULINGS. 615 mesne profit accounts adopted in the execution case, and to settle there- isee by, what, after deduction of the sum to be realized hereafter by the Moharanre mortgagee, or already realized before, is due in tlie account of principal messa and interest at 12 -per cent, from the date of the mortgage, up to the bee'ets date of the deposit below of the principal by the plaintiff. If a surplus Saeedun. is proved due to the plaintiffs, it may not be decreed to be realized un- Eajah Jor- -, -in- 1 1-1,1 •■ -.1 ■. MUKG0L Singh less the mesne pronts are paid oft and realized, but may be deducted i>. from the same debt to the extent not realized. The costs of these eases, Saeedun. in such a, state of things, are to be dealt with according to the result of the trial. If any sum be still found to be due to the mortgagee, the case of the plaintiffs should be dismissed, unless they, by paying the sum due, redeem the mortgage. In this latter case, the plaintiffs must pay all costs of these suits of both the Courts. No decree should be drawn up here, according to the first poition of the order, but in order to enable the lower Court to receive the payment provided for there, or to carry out the second part of the order, the case is to be remanded to the lower Court. That Court will record any decree necessary to be entered with all proper orders for costs as directed above." The ease was then referred to Peacock, C.J., by whom it was after- wards referred to a Full Bench, with the following remarks: — "In consequence of the difference of opinion, the case has been refer- red to a third Judge, but the point of law upon which the opinion of the third Judge is required has not been stated in pursuance of s. 23, Act XXIII of 1861. "I concur with Pundit, J., in thinking that the plaintiffs, as repre- sentino- the original mortgagor, are entitled to redeem their respective portions of the estate ; but as the mortgage was a mortgage of the entire estate, neither of the plaintiffs can re'deem upon pny- ment of any thing less than the full amount of the mortgage-money. Perhaps, in strictness, the suit should have been a joint one, and upon the whole mortgnge-money being brought into Court by the two plaintiffn, in whatever portions they might think fit to pay it, each might ask to redeem his own share of the estate. But as the whole mortgage- money has in fact been brought into Court, I think that the Principal Sudder Ameen was entitled to hear the two suits together, and to give to each plaintiff the same relief which he would have been entitled to in a joint suit. The defendant having got a decree for possession may enforce it at any time unless the estate is redeemed, and the lease will not be at an end until the mortgage-money is paid off. The plaintiffs have therefore, in my opinion, a right to redeem and to maintain a suit for redemption, but as neither plaintiff was entitled to redeem his 616 FULL BENCH RULINGS. 186C portioQ of the estate uopn payment of Lis proportion of the raortgage- ~r7 money, it appears to me that neither of the plaintiffs ought to be WuzuRooN- nllowed his costs of suit inasmuch as each of them claimed to redeem NESSA r. on payment of liis own proportion ; and I rather think that each Saeedun. should pay the defendant's costs in the suit below, for if only one of Eajah Joy- ''''® ®"i'® ^^^ been brought, and the plaintiff in that suit had paid mungulSisgh J^f;o Court only his proportion of the mortgage-money, liis suit must Bebee have failed. Saeedun. "I do not concur with Pundit, J., in thinking that the defendant is bound to account for the wasilat decreed to bim. Wasilat and usufruct (1) are not necessarily the same, and it appears to me that Regulation I of 1798 must be construed strictly, and as the defendant was evicted the plaintiffs are simply entitled to redeem upon payment of the principal, and not to an account of the wasilat. " As uo point of law was expressly reserved for the opinion of a tliird Judge, and as I do not concur entirely with the view taken by Pundit, J., I cannot finally determine the case. Under all the circum- stances it appears to me that the proper course is to refer the case for decision by a Full Bench of three Judges. " I was not aware of the case of Chutterdharee Kower v. Ramdoolun Kower (2) when I referred to three Judges. I think it had better go at once to a Full Bench. " It was contended iu the course of argument that as the lease was granted at an actual rent which was considerable in amount, the case would not foil at all wiihin Eegulaiion I of 1798, unless it were found as a fact that the lease was granted as a device to avoid the usury law, and that the transaction must be considered as one creating the relation of landlord-and tenant, and not the relation of morto-acor and mortgagee. The case of Syed Athar All v. Rai Nawazi Lai (3) was referred to as an authority, but it appears to me to be clear that the case was one of mortgage, inasmuch us it was expressly stipulated that the lease should continue until the loan should be repaid." Mr. Doijne and Mr. Peacock (with them Mr. Gregory and Baboo Onoocool Chunder Mookerjee) for the appellant in case No. 443. Baboos Dwarhanath Mlilter, AusJiootosh Dliiir, and Tarriwlmath Sein and Moanshee Ameer Ali, Khan Bahadoor, for the respondenis, (1) &Z& Chutterdharee Kower Y. Raindoo- (2) S. D. A., 1859 H81. lunKower,'S. D. A., 1859, 1181. (3) 5 gel, Eep,, 8. FULL BENCIi RULINGS. 617 Baboos Kishen Suhha Mooherjee and Onodaprosad Banerjee for iggg the appellant in case No. 449. ■" ' MoHAnANEE Wdzueoon- Biiboos Aiisliootosh Dhur and Tarrucknath Sein and Mooushee hessa Ameer All, Khan Bahadoor, for the respondents. Bbbbe Saeedun. The following judgment was delivered by Eajah Jot- MUNGUL Singh V. Peacock, C.J. — The plaintiffs in this case sued to redeem a mort- Bebee gage, and one of them sought to compel the defeudiints to account for the usufruct. The Principal Sudder Ameen decided the suit against the plaintiffs, and held that tliey were not entitled to redeem. la that respect we think that the Principal Sudder Araeen was wrong, and therefore that his decision must be reversed. But considering that the mortgage-money was paid into Court in two separate amounts, and that two separate suits were brought for redemption of the estate, that one of the plaintiffs sought to have an account of the wasilat which the defendants had recovered under their decree, and that we reverse the decision of the Principal Sudder Ameen altogether, we think that the plaintiffs must severally pay the costs of the suits below, and also the costs of these appeals. We think that the plaintiffs are entitled to redeem the mortgage upon payment of the principal sum of money which is due. It does not appear to be very clear whether the money which was brought into Court by the plaintiffs still remains there. If it has been paid out of Court to the defendants it must be deemed to liave been received by tliem from the plaintiffs in satisfaction of the mortgage debt. If it remains iu Court it will be paid out of Court in satisfaction of the mortgage debt. The only question now remaining is whether the defendants were bound to account for the wasilat. Witli reference to the whole case, I do not think that I can add anything to that which I recorded when the case came before me as a third Judge. There is a wide distinction between usufruct collected by a mortgagee iu possession, and damages which are awarded to a mortgagee in a suit brought by him against the mortgagor for evicting him. We think that the defendants were not bound, under the words or the spirit of Regulation XV of 1793 or Regulation I of 1798, to account for the wasilat or damages which they have received under the decree in the suit brought by them against the mortgagor for possession. If a mortgagor wrongfully turns a mortgagee out of posses- sion it is his own fault, and the mortgagee is entitled to retain any wasilat which he may recover against the mortgagor, and is not bound to account 618 FULL BENCH RULINGS. iSffS for it. To prevent an evasion of the usury laws the Regulation compelled MoHARANEE '^*^ mortgngee to account for the usufruct ; if that exceeded interest at WuzuRooN- 12 per cent., the balance was to be accounted for. We think that a HESSA «• Regulation of this kind must be construed strictly, and that we ought Bebee Saeedun. not so to construe it as to substitute wasilat recovered by a decree of Eajah Joy- Court for usufruct enjoyed by a mortgagee. The case of Chutter- MUNGci.SisGH^^j^,.gg Xower V. Ramdoolun Kower (1) is a case very much in point, Bebee though the question arose in a different form. faAEEDHN. ° I should atld thiit the defendants will be prevented by this decree from executing their decree for wasilat for any period subsequent to the date on which they miglit have received tlie principal. If they have take the money out of Court they must be deemed to have taken the princi- pal out of Court, and having had the principal in their hands from that time, they will be restrained from executing the decree for wasilat for any period subsequent to the date on which they received the money out of Court. But, on the other hand, if the money remains in Court, they will be entitled to proceed to execution under that decree up to the date of this decree, when the mortgage must be considered to have been substantially redeemed, and the defendants entitled to take (he money out of Court. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Norman, Mr. Justice Kemp, Mr. Justice L. S. Jackson, and Mr. Justice Markhy. 1867 HTJRRONATH ROY and others o. MAHEROOLLAH MOLLAH.* J any. 8. Limitation— Act XIV of \859, s, 1 — Instalment Bond — Cause of Action. Where a bondT payable by instalments, provided that, upon default of payment of any- one of the instalments, the whole amount secured by the bond should become payable, Ifeld, that a suit to recover the money due upon the bond, brought after a lapse of more than three years from the date when the first default was made, though within three years from the date of the last payment, was barred by lapse of time (2). The following case was submitted by the Judge of the Small Cause Court of Kooshtea for the opinion of the High Court : " The plaintiff sued on an instalment bond (kistbuudee) executed by the defendant on the 10th day of Srabun 1269 B.S. (25i.h July 1862), for the payment of Rs. 160-8-9, payable by instalments in the months of Bhadro (August — September) and Pons (December — January) of each year ; the first of such instalments being payable in the month of " Reference to the High Gourt by the Judge of the Small Cause Court at Koostea. (1) S, D. A., 1859, 1181. (2) See Act IX of 1871, Schedule II, No. 75. FULL BENCH RULINGS. 619 EoT V, Mahbr- OOLLAH MOLLAH. Bliadro 1269 (August— September 1862), and tlie last in the month of igg; Pous 1274 (December— January, 1867 and 1868). The bond proyided Hukkonath that, on the non-payment of any one instalment, the full amount secured thereby should become payable. The defeudant made a payment of Es. 25 on the 12tli Cheyt, 1271 (24th March 1865). This suit was instituted on the 15tli September 1867, corresponding with the 3rd day of Bhadro 1273, B. S., to recover Es. 140-9-9 as principal, and Es. 19-15 as interest, making a total of Rs, 160-8-9, the defendant being credited with the sum of Es. 25 paid by hira on the 12th Cheyt 1271 (24th March 1865)." The Judge held that the suit was barred by the law of limitation, three years having elapsed since the first default, at which date the bond became payable, and therefore the cause of action arose on Bhadro 1269 (August and September 1862). He referred to Hemp v. Garland (1) and HuUodhur Bangui v. T/ie Administrator General (2), The case was referred by Peacock, C.J., and L. S. Jackson, J., for the opinion of a Full Bench. The judgments of the Full Bench were as follows : — Peacock, C.J. (Kemp, L. S. Jackson, and Maekby, JJ., concurr- ing). — We are of opinion that the view taken by the Judge of the Small Cause Court is the correct one. The suit is brought upon the bond itself, and not upon any fresh agreement alleged to have been come to between the parties. Under these circumstances, we are of opinion that limitation did run from the time when default was made in the payment of the first instalment, in consequence of which the whole amount became due. It is unnecessary for us to express any opinion as to the correctness of the decision to which reference has been made by the Judge of the Small Cause Court. ' Norman, J. — I entirely agree. I had occasion to consider this ques- tion in the case of Breen v. Balfour (3). (1) 4Q. B.,519. (2) 1 W. K,, 189. (3) Bourke's Kep., 120. C20 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. 18G7 LUCHMEE PUESHAD DOOBEY and othees (Dependants) b. MUSSAMUT — — '. — KALLASOO AXD OTHERS (Plaintiffs) .* Jurisdiction — Valuation — Act VIII of 1859, ss. 1, 5, 6, 8, 9. A Principal Sadder Ameen was held to have jurisdiction under s. 8 of Act VIII of 1859 to try a suit for land and for mesne profits, the entire claim not exceeding liis jurisdiction, although the value of the suit, so far as the claim was for laud, was below the value cognizable by him (1), The plaintiff claimed land, of a value cognizable in a Moonsiff''3 Court, and wasilat iu excess of Rs. 1,000, and the whole claim being llius valued above Es. 1,000, he brought his suit in the Court of the Priocipal Sudder Ameen, by whom the case was tried and decided. The appellant urged that, by s. 10 of the Civil Procedure Code, a claim for the recovery of land, and a claim for the mesne profits of such land, are separate causes of action, within the meaning of ss. 8 and 9 ; and that, by s. 8, separate causes of action can be joined in one suit only when the different causes are cognizable in the same Court, and the com- bined value does not exceed the jurisdiction of that Court. He con- tended that in this case the suit for land should have been brought in the Moonsiff's Coui't, and the suit for wasilat in the Principal Sudder Ameen's Court. The case was referred to a Full Bench by Trevor and Campbell, JJ., who in referring it observed ; — " This (the appellant's contention) seems to be a very unnatural and improbable construction of the law, and we must see whether we are compelled to put such a construction on it. We are inclined to think that we are not ; that the words " cognizable by the same Court" refer to the subject and nature of the suit, and not to value ; that an action on combined causes, each of which is on a * Special Appeal, No. 2832 of 1864, from a decree of the Judge of Bhaugulpore, dated the 10th August 1864, aiErming a decree of the Principal Sudder Ameen of that district, dated the 19th January 1861. (1) By Act XVI of 1868 (Lower and tion of the District or Subordinate Judge North-West Provinces of Bengal), the ofBlce extends, subject to the provisions in the Code of Sudder Ameen was abolished, and the of Civil Procedure, s. 6, to all original suits designation of the officers styled Principal cognizable bj' the Civil Courts." Sudder Ameen was altered to Subordinate And by s. 20, " the jurisdiction of a Moon- Judges. The jurisdiction as regards amount siff extends to all like suits in which the however was not changed till 1871. Now, amount or value of the subject-matter in by s. 19, Act VI of 1871, "the juvisdic- dispute does not exceed Ks, 1,000," FULL BENCH RULINGS. 621 ground of action cognizable by the Court, in respect of the subject thereof, may be brought in that Court which has jurisdiction in regard to suits of tlie value of the causes combined. But as we find that ftuotlier Bench (Leviuge and Roberts, JJ.)) in DImrum Rawoot v. Ram- nutifh Sahoo (1), hiis ruled this point otherwise, we refer the case for tlie decision of a Full Bench." Mr. J, S. Rochfort, Baboos Mohini Mohun Roy, and Luckee Churn Bose for the appellants. Baboos Kally Mohun Doss and Romesli Chunder Mitter for tlie respondents. The judgment of the Full Bench was delivered by Peacock, C.J. — This case was referred to a Full Bench in consequence of a decision passed by Leviuge and Roberts, J J., on the 15tb of May 1863, in the case of Dhurum Rawoot v. Ramnaiith Sahoo (1), in which they said :— " We were flist of opinion that the objec- tion taken on special appeal to the jurisdiction of the Sudder Ameen was frivolous ; but, on reconsideration, we are of opinion that the Sudder Ameen had no jurisdiction to entertain this suit, inasmuch as the causes of action on the two bonds were cognizable in the Moonsiff's Court, and therefore could not be joined in the same suit and tiled in the Sudder Ameen's Court. We must therefore reverse the decree." It appears to us that that decision is not correct. Act VIII of 1859, s. 5, says : — " Subject to such pecuniary or other limitations as are or shall be prescribed by any law for the time being in force, the Civil Courts of each grade shall receive, try, and determine all suits hereby declared to be cognizable by those Courts," &c. Now what are the suits which are declared to be cognizable by the Civil Courts ? They are the suits mentioned in s. 1, vh. : — " All suits of a civil nature, with the exception of suits of which their cognizance is barred by any Act of Piirliament, or by any Regulation of the Codes of Bengal, Madras, and Bombay, respectively, or by any Act of the Governor-General of India in Council." As an instance of suits of which the cognizance is barred, we raay refer to s. 23 of Act X of 1859, which provides that suits for arrears of rent, &c., shall be brought before the Collector, and, except in the way of appeal, shall not be cognizable by any other Court. Now, the pecuniary limitation as regards a Moonsiflfs jurisdiction is 1867 LUCHMBE PURSHAD DOOBEY V. mussamut Kallasoo. (1) 2 Hay's Kep., 585. 35 622 FULL BENCH RULINGS. 1867 Es. 300. If a suit is for a sum exceeding Rs. 300, it is beyond tlie LucHMEE jurisdiction of tlie Moousiff, S. 8 provides lliut :— " Causes of action ■doobey '''y ^°"i against tlie same parties, and cognizable by the same Court, "• may be joined in the same suit, provided tlie entire claim in respect Kallasoo. of the amount or value of the property in suit do not exceed the juris- diction of such Courts." Causes of action on two bonds may there- fore be joined. The suit may be brought in the Moonsiff's Coiirt, provided the -whole amount claimed does not exceed the pecuniary limit of the jurisdiction of that Court. But if the amount claimed in respect of the two bonds exceeds Es. 300, the suit would be cognizable in the Principal Sudder Ameen's Court. S. 6 enacts that "every suit shall be instituted in the Court of the lowest grade competent to try it." Tliat amounts to no more than this, that if the aggregate amount of the causes of action joined in one suit is less, or, in other words, if the suit is for less than Es. 300, the suit could not be brought in the Principal Sudder Ameen's Court, because, by s. 6, "every suit is to be instituted in the Court of the lowest grade competent to try it." S. 9 has also been referred to. Its object IS to enable the Court, when different causes of action of different natures are joined, and the Court shall be of opieion that they cannot conveniently be tried together, with reference to the evidence for instance, to order each separate cause of action to be tried separately. Take the case of a suit for an account and partition between two brothers, who were also partners, and including a dispute as to the possession of land. The Judge might say, " I will try the title to the land first, and afterwards go into the partnership account :" and after trying both ques- tions, whether together or separately, he would give one decree in the suit. It would still be one suit, and cognizable as such. In the present case we think that the Principal Sudder Ameen has jurisdiction to try this suit for land, with mesne profits, notwithstanding that the value of the laud, standing by itself, was under the value cognizable by hira. FULL BENCH RULINGS. 623 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr, Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. HUKUYHUii MOOKERJEE (rLAiNiirr) v. MOHESIi OHUNDER 1867 BANEEJEE and others (Defendants).* ~ — '- Enhancement — Auction-purchaser at Revenue Sale — Act I of 1845, s. 26 — Act X of 1859, ss, 1, 3, 4 (1). Ryots who hold lands at fixed rates of rent which have not been changed from the time of the permanent settlement, are not liable to have their rents enhanced even at the suit of a purchaser at a sale for arrears of revenue under Act I of 1845 (2). The plaintiff, wlio had bought from an auction-purchaser of an estate, under Act I of 1845, the latter's rights and interests in the estate, sued for arrears of rent at enhanced rates after notice. The defendant pleaded payment of one uniform rate of rent from the time of the permanent settlement, and, having adduced evidence to show that the rent had not been changed for more than twenty years before the com- mencement of the suit, claimed the benefit of the presumption created by s. 4, Act X of 1859, viz., that the land had been held at that rent from the time of the permanent settlement. The Court of first instance held that, as the plaintiff bought the rights and interests of an auction- purchaser under Act I of 1845, he was entitled to enhance, and that the presumption claimed by the defendant could not bar his right. The Judge, on appeal, considered that the plaintiff's status, as purchaser from an auction-purchaser, did not give him the privileges of his vendor. He was of opinion that the ryot had proved uniform payment of rent for upwards of twenty years, and accordingly held that, by virtue of Act X of 1859, his holding was not liable to enhancement. On special appeal by the plaintiff it was urged on his behalf, that no difference ought to be made between an auction-purcljaser under Act I of 1845, and a purchaser from that auction-purchaser ; that both are equally entitled to the same privileges, and able, under s, 26 of that Act, to enhance the rents of all tenures not held at a fixed rate from twelve years anterior to the decennial settlement ; and that an auction-purchaser under Act I of 1845 is not affected by Act X of 1859, * Special Appeal, No. 146 of 1865, from a decree of the Judge of Hooghly, dated the 28th November 1864, reversing a decision of the Deputy Collector of that district, dated the 20th June 1864. (1) See Beng. Act VIII of 1869, ss. 3, 4. at sales under the latter Act are declared (2) Act I of 1845 was repealed by Act by S3. 37, 52, 53 and 64. XI of 1859, s, 1. The rights of purchasers 624 18S7 HURRYHUR MOOKERJEE v. MOHESH Chunder Bakebjee. rULL BENCH RULINGS. The cnse of Baboo Poolin Behary Sein v. Luteefoonissa Beebee (1) was relied upon. The Court (Glover and E. Jackson, JJ.), while they were of opinion that no difference could be made between an auction-purchaser under Act I of 1845, and a person privately purchasing from such auction- purchaser, considered that the provisions of s. 26, Act I of 1845, were altogether modified by Act X of 1859, s. 1 of which Act enacted that " such parts of s. 26, Act I of 1845, as relate to the enhancement of rents and the ejectment of tenants by the purchaser of an estate sold for arrears of Government revenue, are declared subject to the following modifications," — to the modifications, that is prescribed by Act X. But, as their opinion on this point was opposed to the decision in Baboo Poolin Behary Sein v. Luteefoonissa Beebee (1), they referred to a Full Bench the question " Whether before the passing of Act XI of 1859, Act I of 1845 was modified by Act X of 1859. In other words, whether an auction-purchaser under Act I of 1845 was entitled to enhance a ryot's rent, irrespective of the presumption raised in the latter's favor by s. 4 of Act X of 1859." 'Bi\hoo3 Dwai-kanath Mitter, Gopaul Lall Milter, and Kissen Succa Mookerjee for the appellant. Baboo Dtoarkanath Mookerjee for the respondents. The judgment of the Full Bench was delivered by Peacock, C.J. — It appears to us that ryots who hold land at fixed rates of rent, which have not been changed from the time of the permanent settlement, are not liable to have their rents enhanced even at the suit of a purchaser at a sale for arrears of revenue under Act I of 1845. In the case cited, Poolin Behary Sein v. Luteefoonissa Beebee {!), the attention of the Court was not drawn to that part of s. 1, Act X of 1859, which says, that "such parts of s. 26 of Act I of 1845 as relate to the enhancement of rents and the ejectment of tenants by the purchaser of an estate sold for arrears of Government revenue, are declared subject to the following modifications." One of those modifications is that contained in s. 3, viz., that a ryot who has held at a fixed rate of rent which has not been changed from the time of the permanent settlement is entitled to receive a pot^h at tliat rate. If he is entitled to receive a pottah at that rate he is not liable to have his rent enhanced. The a]ipeal will be dismissed with costs. (1) Marsh. Kep., 107. FULL BENCH RULINGS. 625 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. GUNGA DOSS DUTT (Plaintifp) v. KAM NARAIN GHOSE and others ]8G7 (Defendants).* ^e^y- 22. Act X of \?,59, ss. 106, 107, \5\—Sale of under-tenure under Act X o/ 1859— Jurisdiction of Civil Courts — Suit to set aside Sale under Act X of 1859. The purchaser of an under-tenure may sue in the Civil Court to set aside a sale of the under-tenure in execution of a decree for arrears of rent, under Act X of 1859, on the ground that such decree was obtained by fraud subsequently to his purchase (1). The plaintiff sued to set aside a sale of an under-tenure sold in execution of two decrees against the plaintiff''s vendor under Act X of 1859. He alleged that he had purchased the tenure from ti)e former holder of it in 1265, B, S. (1858); thiit he was in possession, and had paid the rents to the defendants as landlords, who had recognized him aa tenant ; and that the defendants afterwards fraudulently brought a suit for the rents of 1266 (1859) against the former owners, and in execution of au ex parte decree obtained in that suit, themselves pur- chased the under-tenure. The defendants denied the fact of the receipt of the rent from the plaintiff as alleged by him. In special appeal, the respondents contended that no suit to set aside a sale in execution of a decree for arrears of rent would lie. The appeal was heard by Bayley and E. Jackson, JJ., who, in consequence of a differ- ence of opinion, referred the case to a Full Bench. Bayley, J., considered that the plaintiff could uot sue ; he had only the riglit of his vendor, the judgment-debtor : he cited Ruttun Monee Dassee w Kalee- kissen Chuckerbutttj (2), which decided that the judgment-debtor could not sue to set aside a sale of his tenure by the Collector in exe- cution of a decree for rent. E. Jackson, J., was of opinion that the suit would lie : and that Act X of 1859 contains no procedure for such a casa *s the present, where the claimant was prevented from objecting to the sale before the day of sale. Baboos Rally Mohun Doss and Chunder Madhub Ghose for the appellant. The respondents were not represented. * Special Appeal, No. 315 of 1865, from a decree of the Principal Sudder Ameen of Backergunge, dated the 17th November 1864, affirming a decree of the Sudder Ameen of that district, dated the 10th March 1863. (1) See Bang. Act VIII, ss. 33, 63. (2) W. R., Sp. No., p. 147. 626 PULL BENCH RULINGS. 1867 Tlie opinion of tlie Full Beuch was delivered by CuTT Peacock, C.J. (who,after statingthe facts, eontiuued).— ^Wetliiuktlint Kam Narain *''^ "^"^^ ^"^"^ down in the case cited does not apply to the present case. Ghose. When the tenure of a tenant, admittedly in possession, is sold under Act X of 1859, in execution of a decree for rent, he has no right to sue for the reversal of the sale. The plaintiff did not, before the sale, appear under s. 106 to urge his claim before the Collector. If he hiid, on his objections being overruled, he would have been allowed to sue within a year from the date of the adjudication by the Collector upon liis claim. But as he did not so appear, his present suit is not affected by the provision of s. 107 (J). The plaintiff has a right to bring his action in the Civil Court to set aside the sale alleged to have been pro- cured by fraud, or to restrain the defendants from availing themselves of rights acquired by such sale. The case must therefore be sent back to the Division Bench for orders. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr, Justice Loch, Mr, Justice Norman, and Mr. Justice Pundit. ^1^"„„ GOBIND CHUNDER ilOOKERJEE (Plaintiff) w KALLA GA JEE and Feby. 22. OTHERS (Defendants).* Regulations VII of 1799 and VIII of 183l~Bepeal, Effect of— Act X of 1859, s. 1. A summary suit for rent under s. 15, Regulation VII of 1799, was pending when Act X of 1859 came into force, and was, therefore, governed by Regulation VIII of 1831, s. 4 of which declared that the decision in the summary suit should be final, subject to a regular suit. By a, 1, Act X of 1859, Regulation VII of 1799, ss. 1 to 20 and Regulation VIII of 1831 were repealed, except as to proceedings commenced before the date of the Act coming into force. Held, that the repealing section did not take away the right to bring a regular suit. In this case the question was whether a party aggrieved by the decision in a summary suit for rent, under Regulation VII of 1799, was debarred from bringing a regular suit by the provisions of Act X of 1859 (ss. 1, 151, 160), which came into operation while the summary suit was pending. The Court below held that the right of suit was * Special Appeal, No. 893 of 1 864, from a decree of the Principal Sudder Ameen of Jessore, dated the 26th January 1864, reversing a decree of the Moonsifi of that district, dated the 30th March 1861. (1) See Bcng. Act VIII of 1869, gs. 33, 34 and 63. FULL BENCH RULINGS. 627 tiiken awny by Act X of 1859, but the High Court (Morgan nnd i867 Pundit, JJ.)) on special appeal, were of a contniry opinion. As Gobind however their view was opposed to that of another Division Court in mookkkjbe tlie case of Jankee Ram Misser v, Ludhira Panday (1), they referred "^ the question to a Full Bench. Baboos Bailee Madhuh Banerjee and Anund Chunder Ghosal for the appellant. Baboo Kedei-tialh Mojoomdar for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — We quite agree with the two learned Judges who have referred this case to us. The summary suit is found by tliem to have been commenced before the passing of Act X of 1859, although the decision ia the summiiry suit was given after the Act came iuto operation. Tlie two learned Judges refer to the case of Jankee Ram Misser v. Ludhira Panday (1) as in conflict with the view they took. By • s. I of Act X of 1859, certain Regulations were repealed, except as to proceedings commenced before the date when that Act came into force. As the summary suit was pending when that Act was passed, it was governed by Regulation VIII of 1831, and it had all the incidents of such a suit before Act X, including the right of the unsuccessful party to contest its justice by a regular suit. S. 4 of Regulation VIII of 1831 is as follows : — " Summary claims connected with arrears or exactions of rent shall be preferred in the first instance to the several Collectors of land revenue, whose decisions in such cases shall be final, subject to a regular suit, unless the ground of appeal be the irrelevancy of the Regulation to the case appealed, on which ground only the Commissioner of Revenue for the division is authorized to receive an appeal, if preferred to him within one mouth of the date of the summary decision." That suit musf, under s. 6, be brought within one year from the date of the delivery, or of the tender to the party against whom the award is made of the Collector's decision. Tlie case will be sent back to the Court which referred it to us, with that expression of our opinion. (1) 2 W. R., ActXRuI., 27. 628 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr, Justice Trevor, Mr. Justice Norman, Mr. Justice Loch, and Mr. Justice Pundit. ise? GOOEOODOSS ROY and others (Dependants) v. EAMNAEAIN MITTER ■P'^%- ^^- (Plaintiff).* GOOEOODOSS EOT (Defendant) «. BISHTOO CHUEN BHUTTACHAR- JEE AND OTHERS (Fl.AINTIFFs).f Jurisdiction of Civil Court — Act X of 1859, ». 23, cl. 6— Landlord and Tenant- Possessory Action— Suit for Possession on Declaration of Title. The Civil Court has jurisdiction to entertain a suit by an under-tenant to establish Iiis title and for possession notwithstanding cl. 6, s. 23, Act X of 1859 (1). The words " suits to recover the occupancy or possession of any land" in that clause refer only to possessory actions against the person entitled to receive the rent, and not to suits in which the plaintiff sets out his title, and seeljs to have his right declared, and possession given him in pursuance of that title. The quesfcioa in these cases was as to the effect of cl. 6, s. 23, Act X of 1859. The pliiinliffs, who were under-tenants, sued in the Civil Court, after having been ten years out of possession, for a declaration of their title and for possession. It was contended that they ought to have brought (heir suit in iheCnUector's Court within one year of dispossession, under cl. 6, s. 23, and s. 30, Act X of 1859. Tlie question was referred to a Full Bench by Trevor and Campbell, JJ. Mr. 7?. T. Allan and Baboo Jugodamtnd Mooherjee for the appel- lants in the first case. Baboos Banee Madhub Banerjee and Sreenath Doss for the respondent. Baboos Mohendro Lall Shome and Hem Chunder Banerjee for the appellant in the second case. Baboo Bungsee Dhur Sein for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — We think that the words " suits to recover the occupancy or possession of any land," &o., in cl. 6, s. 23 of Act X of 1859, refer only to possessory actions against the person entitled to receive the rent, and not to suits in which the plaintiff sets out his title * Regular Appeal, No. 137 of 1864, from a decree of the Principal Sadder Ameen of Jessore, dated the 30th January 1864. t Special Appeal, No. 3130 of 1864, from a decree of the Principal Sudder Ameen of Jessore, dated the 1st August 1864, affirming a decree of the Sudder Ameen of that district, dated the 3rd March 1863. (1) See Beng. Act Vlir of 1869, ss. 27 and 33; see abo Chunder Coomar Nundul v. Nunnee Khanum, 11 B. L. E., 434. FULL BENCH RULINGS. 629 and seeks (o Imve Lis right declared, and possession given him in pur- ise? suauce of that title. Full meaning may, and we think must, be given QoouooDosa to the words "illegally ejected," witliout treating them as giving a ^^""^ wider sense to the words above mentioned. Ramnarahj MiTTEH. In many instances which may be suggested under this Act, a zemin- dar having a right to get possession would be guilty of an illegal act if lie ejected his ryot otherwise than by means of a decree of a Court. For instancs, s. 22 says that, " when an arrear of rent shall be adjudged to be due from any farmer, or other lease-holder, not having a perma- nent or transferable interest in the land, the lease of such lease-holder shall be liable to be cancelled, and the lease-holder to be ejected." Now, if the lease is liable to be cancelled and the lease-holder to be ejected, the lease-holder would liave no title, as against the zemindar seeking to cancel the lease. But it is xleclared that " no such lease shall be cancelled, nor the lease-holder ejected, otiierwise than in execution of a decree or order under the provisions of this Act." A zemindar therefore could not of his own authority cancel the lease and eject the ryot forcibly, but must get the lease cancelled by a decree of Court. If, regardless of the law, he, by force or otherwise, turned the ryot out of his field, the ryot might say: "You have ejected me out of my lands without a decree of Court, — I have therefore been illegally ejected by you, and notwithstanding that you may have the title to eject me according to law, I have a right to be restored to possession during the pendency of your action." That suit, which would be under cl. 6, s. 23 of Act X, must be brought within one year. But suppose the ryot sues, alleging tiiat he has committed no breach of the condiiions of his lease ; that, apart from the question of mere possession, the zemindar had no title whatever to eject him j and prays for possession with damages and mesne profits : no such suit is provided for by s. 23, and it is clear, therefore, that the ryot is left to his . remedy in the Civil Court in such a case. We think he has that right equally, whether he claims wasilat or not. Looking to the whole Act, it ap[)ears to us that cl. 6 of s. 23 does not take from the Civil Court the power to try the question of title as between a ryot, farmer, or tenant, and the person to whom he pays rent. It follows, therefore, that in this action, which is brought setting out a title by the plaintiff, and asking, " under the above facts," to be declared "entitled, on the strength of his documents to recover pos- session of the lands," he will be entitled, if he makes out his case, to a decree that he bo put into possession of the land with mesne profits, 36 630 1867 PULL BENCH RULINGS. and Imve compeusation ia damages to cover the expense of demolishing the houses and garden, and filling up the tanks which are said to have GoOliOODOSS ^°^ been excavated. Kamnarain The case will be returned to Trevor, J.'s Bench. MiTIEB. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. 1867 THE COLLECTOR OF PUBNA on behalf of Government (Dependant) Feby. 25. „_ ROMANATH TAGORE and another. Trustees op DWARKANATH TAGORE, Deceased (Plaintiffs).* THE MAGISTRATE OF MALDAH on eehalp op Government (Defendant) V. BBBEE GOLEBXJNNESSA and another (PLAiNTiPFa).t Ferrp — Besumption by Government— Compensation — Regulation VI of 1819— Regulation XVI J I of 1S06— Regulation XIX of 1816— ^c« VIII of 1859, s. 1. A suit for compensation for the loss sustained by reason of the resumption by Govern- ment, under Regulation Yl of 1859, of a ferry, is not cognizable by the Civil Courts (1). The first of these cases was a suit against the Collector of Pubna for compensation for the loss sustained by the plaintiffs in consequence of tlie Government having resumed a ferry, which had hitherto belonged to, or been under the private management of, the plaintiffs. An objection was taken at the hearing of the appeal, which had before been urged in the lower Courts, that the jurisdiction' of the Civil Courts was barred by Regulation VI, 1819, s. 6, and The Government V. Brijosoondree Dasee (2) was cited in support of the objection. The case came before Morgan and Pundit, JJ., on special appeal, who, being of opinion that the law did not exclude the jurisdiction of the Civil Courts in the manner stated ia that decision, referred the question for the consideration of a Full Bench. * Special Appeal, No. 3354 of 1864, from a decree of the Judge of Kajshahye, dated the 26th August 1864, reversing a decree of the Principal Sudder Ameen of that district, dated the 31st December 1863. t Regular Appeal, No. 71 of 1865, from a decree of the Principal Sudder Ameen of Dinagpore, dated the 11th January 1865. (1) Bys. 4, Beng. Act I of 1866, "All public as aforesaid, shall be enquired into claims for compensation which may be pre- by such Magistrate, who shall award compen- ferred by any person or persons for any loss sation to any person or persona who may which may be sustained by them in conse- appear justly entitled thereto." quence of any ferry having been declared (2) S. D. A., 1848, 456. FULL BENCH RULINGS. 631 The second case was of a precisely similar nature, the defendant being tlie Magistrate of Maldah. This case was referred to a Full Bench by Morgan and Glover, JJ., to be argued together with tlie first case. Baboo Kishen Kishore Ghose for the appellant. ' Mr. R. T. Allan and Baboos Unnoda Pershad Banerjee, AusJiotosh Dhur, Mohindro Lall Shome, and Tarrttck Nath Dutt for_ the I'espondents. 1867 The judgment of the Full Bench was delivered by Peacock, C.J. — The question in this case is, wliether, when a ferry, previously held under private management, has been declared to be a public ferry by the Government, under the provisions of Regulation VI of 1819, s. 3, nn individual claiming compensation for ttie loss alleged to have been sustained by him, in consequence of the extension of the nutliorily of tiie Government, can maintain any action in the Civil Courts to enforce his claim. In considering this question, it is necessary to remember that the Government of this country has, in various Regulations, and otherwise, always asserted its paramount right to deal witii ferries, and claims to take tolls at ferries, for providing passage aver rivers ; see Regulation XVIII of 1806, s. 2, cIs. 4, 5, 6; Regulation XIX of 1816 ; and Circular Order, Sudder and Nizamut Adawlut, 25th July 1845, No. 208. By Regulation XIX of 1816, s. 9, it was expressly provided that the Courts of Judicature should not take cognizance of any claims to deduction or compensation on account of the tolls levied at any ferry, &c. These Words are not found iu Regulation VI of 1819. It is argued that (he Civil Courts must therefore have Jurisdiction. S. 1 of Act VIII of 1859 has been referred to in argument as giving such right. It says that " the Civil Courts shall take cognizance of all suits of a civil nature." That is, the Civil Court is competent to investigate the complaint of the suitor, and determine whether he has a legal right or not. Although the Court has cognizance of tlie suit, it cannot decree for the plaintiff unless he has a cause of action. The ques- tion then arises whether there is a cause of action vested in the claimant. Regulation VI of 1819, s. 3, describes what ferries are to be consi dered public ferries. CI. 2 of that section reserves to the Government the power of determining what ferries shall be deemed public ferries, subject to the immediate control of the Magistrates. It prohibits Magistrates from assuming the management of ferries which have not Thk Collec- tor OF PUENA V. eomanath Tagore. The Magis- trate OF Maldah V. Beeisb GOLKBUN- KBS3A. 632 FULL 13ENCI1 RULINGS. 1867 been let ia farm or held klias, or otherwise subjected to assessment by The Collec- the Collector, &e., without the previous iiuthority of Government. TOK OF^ uBNA g g requires lists of all public ferries to be stuck up in the cutciierries ^Tagoee" ^""^ ihannas. S. 6 enacts that " such ferries shall exclusively belong to Government, and no person shall be allowed to employ a ferry boat. The Magis- . . ^_ _ ^ ■' . TKATE OF plying for liire at or in their immediiite vicinity, wiihout the previous p. sanction of the Magistrate or Joint Magistrate." If the Regulation GoLEBUN- stopped there, it is clear that the plaintitf would have no legal claim NE A. under this Regulation for compensation. But it was considered not right to deprive the party altogether of compensation for the loss of privileges which had been de facto enjoyed ; and the section goes on to provide, " that due attention sliall be paid to all claims for compensation which may be preferred by individuals for any loss which may be sus- tained by them in consequence of the extension of the authority of Government to ferries hitherto uuder their private management, and which may not have been heretofore let in farm or held khns, or otherwise deemed subject to assessment on account of Government." An Act, or Regulation, does not usually give a right to claim compen- sation by saying tiiat due attention shall be paid to a claim. But the Regulation goes further, and shows how such claims are to be enquired into: cl. 2 says : — "Claims of tliat nature shall be enquired into by the Magistrates and Joint Magistrates, and their opinion on the merits of each case shall be reported, through the channel of the Superintend- ent of Police, for the consideration and orders of Government." It appears to us, tlierefore, that when the Legislature said that these claims should receive due attention, it meant no more than that they should be enquired into in the manner provided by the Regulation, and that it did not intend to give any right enforceable by suits in Court. The case is analogous to that of Stevens v. Jeacoche (1) and Doe dem. The Bishop of 'Rochester v. Bridges (2), where the Court of Queen's Bench in England laid it down that if tlie Legislature creates an obliga- tion to be enforced in a specific manner as a general rule, performance cannot be enforced in any other way. We think that the rule laid down in the decision of the Sudder Court in The Government v. Brijosoondree Dasee (3) was right, though we do not aiiopt the reasons there assigned for the rule. Tlie decision of the lower Courts will be reversed, and a decree given for the defendants witli costs. This decision, it is admitted by all parties, will govern Regular Appeal No. 71 of 1865. (1) U Q. B., 731. (2) 1 B. k Ad., 847. (3) S. D. A., 1848, 456, FULL BENCH RULINGS, 633 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. liAKNAEAIN SINGH and otheks (Plaintiffs) v. MUSSAMUT RANEE 1867 MANKOER AND oTHEBs (Defendants).* " '''' L Act XIX. of \%i\. Summary Order -under — Suit for Possession— Limitation — Act XIV of 1859, s. 1, els. 5 §• 12. A summary order under Act XIX oJ 1841, for possession of property left by a deceased person, is no bar to a regular suit to try the title to auoh property and to obtain possession under tbat title ; it is, therefore, unnecessary to set aside the order before granting relief in the suit. Hence the period of limitation for such regular suit is that provided by cl. 12, a. 1, Act XIV of 1859, namely twelve years, and not one year as provided by cl. 5 of the same section (1). The plaintiffs in this case sued to set aside a summary order under Act XIX of 1841, for possession of the property of two deceased persons, Chaen Singh and Nepal Singh, and to establish tlieir own title to, and for possession of, such property as heirs of the deceased persons. Bayley and E. Jackson, J J., held tliat the suit was burred by cl. 5, s. 1, Act XIV of 1859 ; but, upon an application for review by Mr. Twidale, who conteuded that the period of limitation was that provided by s. 1, cl. 12, namely twelve years, they submitted the case for the opiuion of a Full Bench with the followiog remarks : — "After hearing the objections of the opposite party; we consider that this application for review ought to be admitted. Mr. Twidale for the applicants has shown to us that our decision as regards the applicaiion of cl. 5, s. 1, Act XIV of 1859, to awards under Act XIX of 1841, conflicts with the opinion of Steer and Glover, JJ., in the case of Mussamut 3Iomeedunnissa v. Mahommed Ali (2), and afain with the opinion expressed by Morgan and Shumboo Nath Pun- dit, J J., in Bipro Per shad My tee v. Mussamut Ranye Deyee (3). Under these circumstances, the point in question must be referred to a Full Bench for final determination." Mr. R. E. Tividale for the applicants. Mr. R. T. Allan, Moonshee Ameer Ally, and Baboos Kishen Kishore Ghose and Unnoda Pershad Banerjee contra. - * Review, No. 856 of 1864, from a judgment of Bayley and E. Jackson, JJ., in Regular Appeal No. 198 of 1864. (1) See Act IX of 1871, Sched. II, Nos. 15, (2J 1 W. R., 40. 43, & 145. (3) 1 W. R., 341. 65i PULL BENCH RULINGS, 1867 Lakharain Singh I). MtJSSAMDT Ranee Mankobr. Tlie opinion of the Full Bench was delivered by Peacock, C.J. — If this were a suit merely to set aside a summary decision as to the right of possession under Act XIX of 1841, we are of opinion that (if any such suit is maintainable) it should, under cl. 5, s. 1, Act XIV of 1859, be brought withia one year. Here the plaintiffs do not simply raise the question whether the Judge's^ order under that Act was rightly-made, but seek to establish their own title, and to be put into possession as the heirs of Chaen Singh and Nepal Singh. Tv7o cases have been referred to — Greedharee Doss v. Nund Kishore DuttMohunt (1) and Mussamut Momeedunnissa v, Mahommed Ali (2). The question is, does the summary order made under Act XIX of 1841, and intended only to affect the question of possession, operate as a bar to a regular suit to try the title ? The recital of that Act is as follows : — " Whereas much incon- venience has been experienced, where persons have died possessed of moveable and immoveable property, and the same has been taken under pretended claims of right by gift or succession ; the diflB.culty of ascertaining the precise nature of the moveable property in such cases, the opportunities for misappropriating such property and also the profits of real property, the delays of a regular suit when vexa- tiously protracted, and the inability of heirs when out of possession to prosecute tlieir riglits, affording strong temptations for the employ- ment of force or fraud, in order to obtain possession : and whereas, from the above causes, the circumstance of actual possession, when taken upon a succession, does not afford an indication of rightful title equal to that of a decision by a Judge after hearing all parties in a sum- mary suit, though such summary suit may not be sufficient to prevent a party, removed from possession thereby, from instituting a regular suit : . . . . and whereas it will be very inconvenient to interfere with succession to estates .... by summary suits, unless satisfactory grounds for such proceedings shall appear, and unless such proceedings shall be required by or on the behalf of parties giving satisfactory proof that they are likely to be materially prejudiced if left to the ordinary remedy of a regular suit : " Then s. I says: — "It is hereby enacted that, whenever a person dies leaving property, moveable or immove- able, it shall be lawful for any person claiming a right by succession thereto, or to any portion thereof, to make application to the Judge of the Court of the District where any part of the property is found or situate for relief, either after actual possession has been taken by another (1) 2 Hay's Rep., 633. (2) 1 W. R., 40. FULL BENCH RULINGS. 635 person, or when forcible means of seizing possession are apprehended." S. 3 says : " And it is hereby enacted that the Judge to whom such " application shall be made, shall, in the first place, enquire by the solemn declaration of the complainant, and by witnesses and documents at hia discretion, whether there be strong reasons for believing that the party in possession, or taking forcible means for seizing possession has no lawful title, and that the applicant or the person on whose behalf he applies is really entitled, and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit, and that the application is made bond fide." Then s. 4 enacts : " And it is hereby enacted that, in case the Judge shall be satisfied of the existence of such strong ground of belief, but not otlierwise, he shall cite the party complained of, and give notice of vacant or disturbed possession by publication, and after the expiration of a reasonable time shall determine summarily the right to possession subject to regular suit (as hereinafter mentioned) and shall deliver possession accordingly." S. 18 says: "And it is hereby enacted that the decision of the Judge upon the summary suit under this Act shall have no other eff'ect thau that of settling the actual possession : but that for this purpose it shall be final, not subject to any appeal or order for review." S. 17 says : "And it is hereby provided that nothing in this Act contained shall be any impediment to the bringing of a regular suit, either by the party whose ajiplication may have been rejected, before or after citing the party in possession, or by the party who may have been evicted from the possession under this Act." If the summary order made under this Act is to be no impediment to bringing a regular suit, there is no necessity for setting aside that order. Then the question is, within what time is the regular suit to be brought to try the title to land, and to be put into possession of it ? The summary order cannot be pleaded or set up as a bar to the maintenance of the suit to try the title, and to be put into possession under that title. CI. 12, s. 1, Act XIV of 1859, fixes the period of limi- tation in suits for the recovery of immoveable property, or of any interest in immoveable property, to which no other provision of that Act applies, at the peri(jd of twelve years from the time when the cause of action arose. We think, then, that the period of limitation in such a suit as this is twelve years, and not one year. The ease will be sent back to the Division Court which referred it to us with this expression of our opinion. We may add that we express no opinion as to the efiect of summary orders, other than those under Act XIX of 1841. 1867 Laknarain Singh V, McrssAMDT Kanee Mankoei!, 636 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Norman, and Mr. Justice Pundit. 1867 HURRONATH ROY and others (Defendants) v. R. W. SCOTT and Feby. 26. OTHERS (Plaintifps).* Act VIII of IS59, s. 14 — Survey Award — Order of Magistrate under Act IV of 1840 — Adjudication by competent authority. Neither an order by a Magistrate under" Act IV of 1840 as to possession o£ lands, nor an award by the survey authorities, is an adjudication by a competent authoiity within the meaning of the proviso in s. 14 of Act VIII of 1859 such as to preclude an enquiry by a Civil Court under that section as to whether lands in dispute are within the local limits of the Court's jurisdictipn. The plaintiflfs sueJ, in the Court of the Principal Sudder Araeeii of Backergunge, to recover certain lands. The defendants objected to the jurisdiction of the Court, alleging that the lands in dispute formed part of their zemindari which was in the district of Dacca ; and, in support of this allegation, they relied on an order by the Magistrate under Act IV of 1840, who found that they were in possession of the lands, and on an award by tlie survey authorities in which the lands were stated to be part of the defendant's zemindari. The Principal Sudder Aineen found that the lands were in the district of Backergunge and belonged to the plaintiffs, and this finding was confirmed by the Subordinate Judge. On special appeal to the High Court, Morgan and Pundit, JJ., considered themselves "compelled by the proviso of s. 14, Act VIII of 18j9, to set aside the judgments as having been passed by Courts not having jurisdiction, the land having been adjudged by competent authority to be within the Zillah of Dacca." On application, however, by the plaintiffs for a review, the learned Judges referred the case, together with others (Special Appeals, Nos. 2101, 2102, 2103, and 2104 of 1864) in which the same point arose, for the opinion of a Full Bencli, observing that their decision was in conflict with the ruling in Hurronalh Roy v. Anund Chunder Uoy (1). « Baboos Sreenath Dass and Bungshee Btiddun Sen for the appellants. Mr. A. F. Lingham, Baboo Onoocool Chunder Mookerjee, and Moulvi Aftaboodeen for the respondents. * Special Appeals, Nos. 2100 to 2104 of 1864, from the decrees of the Officiating Additional Judge of Bacltergunge, dated the 4th May 1864, affirming the decrees of the I'rincipal Sudder Ameen of that district, dated the 2nd May 1863. (1) 1 W. E., 329. EOY V. K. VV. Scott. FULL BENCH RULINGS. 637 The opinion of the Full Bench was delivered by ]gg7 Peacock, C.J. — The plaintiff in this case sued in the Backergunge Hukjionath Court for the recovery of certain lands, and the defendant objected that the lands in question were not in the district of Backergunge. By s. 5 of Act VIII of 1859, the Court has jurisdiction if the land is situate within the limits to which the jurisdiction of the Court extends. Under s. 14 the Court had power, before it proceeded to try the suit, to enquire and determine whether the lands were in Backergunge or not. The proviso to that section is as follows : — "Provided that, if it is shown that the land in dispute has been adjudged by competent authority to belong to an estate, village or other known division of land situate within the local jurisdiction of another Court, the Court in which the suit is brought shall reject the plaint, or return it to the plaintiff in order to its being presented in the proper Court." This seems to amount to no more than that if, on the presenta- tion of the plaint, the Court should find that the question has been already determined by any authority competent to try and decide it, the Court should reject the plaint or return it for the purpose of being presented in the proper Court. It cannot be said that either the decision of the Magistrate under Act IV of 1840, which found that the defendant was in possession of those lands, or the award of the surveyor, was a decision by a competent authority. Neither the Magistrate nor the Superintendent of Survey had power to determine the question conclusively. In order rightly to apprehend the meaning and object of the proviso it should be compared with s. 2. Two cases were cited : Shamkanto Lahoree Chowdry v. Hurrish Chunder Chowdry (1), as to which we need only observe that the rejection of a pluint under s. 14 cannot give jurisdiction to a Court which does not otherwise possess it ; and Hurronath Roy v. Anund Chunder Roy (2), which is similar to the present case. The point is a very clear one, and the papers must be sent back to the Divisional Court with an expression of our opinion that the lower Court had the power to tiy whether the lands were in Backergunge or not. The above order applies to Special Appeals, Nos. 2101, 2102, 2103, and 2104 of 1864. (1) 2 Hay's Kep., 485. (2) 1 W. E,, 329, 37 638 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson, 1867 PEOTAB CHUNDER CHOWDHRY and others (Plaintiffs) v. BROJOLOLL March 12. SHAHA AND 0THEE8 (DEFENDANTS).* ' Sale in Execution— Limitation— Act VIII of 1859, ss. 249, 259, 264 §• 269— Act XIV of 1859, s. 1, els. 3 §• 12 (1). In exectttion of a decree obtained against A, his right, title, and interest in certain property were sold, but the certificate o£ sale erroneously recited that A and B's ancestor were defendants in the suit, and that the interest of the defendants in the suit had been sold : and accordingly the purchaser was put in possession, under s. 264, Act VIII of 1859, of the right, title, and interest of B's ancestor as well as of A in the property. In a suit brought by B for confirmation of title and recovery of possession after the lapse of a year, but within twelve years, from the date of dispossession. Held, that the suit was not barred by lapse of time. A person dispossessed of property in execution of a decree against another person and claiming to be entitled to possession is not bound to proceed under s. 269 of Act VIII of 1859. A DECREE for the payment of money wns obtained against Shnmdyall in the Court of the Sudder MoonsiflFof Moorshedabad. The decree was sent to the Moonsiff of Beerbhoom for the purpose of being executed. In executing the decree, the proclamation, which was issued under s. 249, Act VIII of 1859, declared that the right, title and interest of Shamdyall in certain property specified therein would be sold. The property was put up for sale under this proclamation, and BrojoloU Sliaha became the purchaser. He obtained a certificate of sale under s. 259, Act VIII of 1859, but by some error it was recited in the certi- ficate of sale that the plaintiffs' ancestor Kristodyall as well as Shamdyall were defendants in the suit, and that the interest of the defendants in that suit had been sold. The property being in the possession of ryots, a notice under s. 264, Act VIII of 1859, was given on the 17th January 1863 to the occupants of the property, that the interests of the pei"sons who were described in the certificate of sale had been sold, and Brojolall thus obtained possession. The present suit was brought, on the 30th January 1865, by Protab Chunder Chowdhry and others, for confirmation of title and recovery of * Special Appeal, No. 1137 of 1866, from a decree of the Principal Sudder Ameen of Beerbhoom, dated the 31st January 1866, affirming the decree of the Moonsifit of that district, dated the 12th July 1865. (1) See Act IX of 1871, Schedule II, Nos. 14 & 145. FULL BENCH RULINGS. 639 possession of the shares which had been taken possession of by Brojo- loll under the certificate of sale, on the ground that Brojololl had pur- chased only the right, title, and interest of Shamdyall, and that the sale did not pass the rights of the plaintifiFs' ancestor. It was contended, inter alia, by the defendant that the suit was barred by cl. 3, s. 1, Act XIV of 1859. The Sudder Moonsiff of Beerbhoom held that cl. 3, s. I, Act XIV of 1859, was inapplicable, as the suit was not brought for reversul of a summary order but for establishment of title and as the suit had been brought within twelve years of dispossession, it was not barred. He dismissed the suit, however, on the merits. Both parties appealed. The Principal Sudder Araeen held that as the suit had been brought after a lapse of more than one year from the date of the defendant's possession, it was barred, and accordingly dismissed the plaintiffs' suit. In support of his judgment he cited Bebee Suboo- run V. Sheikh Qolam Nujee (1) and Ram Gopal Roy v. Nundo Gopal Roy (2). The plaintififi appealed to the High Court. The case was heard before Kemp and Markby, JJ., who, differing from the ruling in Ram Gopal Roy Y. Nundo Gopal Roy (2), referred the following question for the opinion of a Full Bench. " Where a party, purchasing the rights and interests in immoveable property of a judgment-debtor in execution of a decree, evicts, by act of the Court, a thii'd party whose rights are independent of the riglit of the judgment-debtor, in such case must the injured party sue within one year from his cause of action, or can he bring his suit within the ordinary period, viz., any time within twelve years from the date of his cause of action ?" Baboo Nilmadhub Sen for the appellants. Baboo Tarruck Nath Sen for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — In this case a decree for the payment of money was obtained against Shamdyall in the Court of the Sudder Moonsiff of Moorshedabad. The decree was sent to the Moonsiff of Beerbhoom for the purpose of being executed, and it appears that, in executing that decree, the proclamation, which was issued under s. 249, Act VIII of 1859, declared that the right, title, and interest of Shamdyall in certain property specified therein would be sold. The property was put up to sale 1867 Protab Chusdek Chowdhry ». Brojololl Shaha. (1) 2 W. E., 55. (2)4W. K., 42. 640 PULL BENCH RULINGS. 1867 Protab Chundee Chowdhry V. BllOJOLOLL SlIAHA. under that proclamation, and the defendant became the purchaser. At the time when he made the purchase, and when he fixed the amount which it would be worth his while to give for that which was about to be sold, he knew that he was purchasing only the right, title, and interest of Shamdyall. Proceedings went on until it came to the granting of a certificate of sale under s. 259, and then, by some error (whether intentional or not, it is unnecessary to decide), it was recited in the certificate of sale that the plaintiffs' ancestor Kristodyall, as well as Shamdyall, was a defendant in the suit, and that the interests of the defendants in that suit had been sold ; so that, in fact, instead of declaring that only Shamdyall's interests in the property had been sold, it was declared that the interests of the plaintiffs' ancestor, as well as Shamdyall's interests, had been sold under the decree. In carrying out the execution under s. 264 of the Procedure Code, the property being in the possession of ryots, a copy of the certificate of sale would have to be afiSxed, and a notice giren to the occupants of the land that the right, title, and interest of the defendants had been transferred to the purchaser, coupling the notice with the copy of the certificate of sale. It would appear that notice was given to the occupants of the property that the interests of the persons who were described in the certificate of sale as the defendants had been sold. By putting the auction-purchaser into possession in that manner, according to s. 264, it may be said that the plaintiffs, or their ancestor, were dispossessed of their interest in the property under the execution of the decree, and they might, if they had pleased, have applied within one month from the date of such dispossession to the Court by which the decree was executed, and complained of their having been so dispossessed, and the Court, under s. 269 of Act VIII of 1859, would have inquired into the matter and passed such order as it considered proper. If the Moon- siff, upon their making such application, had decided that their interest had been properly sold, or that that of which they had been dispossessed actually belonged to Shamdyall, they could not have appealed against the order, but might, within one year from the dale of that order, have brought a regular suit for the purpose of establishing their right. This suit is now brought by the plaintiffs for confirmation of their title, and to recover possession of the property of which they were dispossessed, and the question referred to us is whether the plaintiffs are barred by cl. 3, s. 1, Act XIV of 1859. That clause fixes the period of limitation to suits to set aside the sale of any property, moveable or immoveable, sold under an execution of a decree of any Civil Courts not established by Royal Charter, when such suit is maintainable, at one FULL BENCH KULINGS. 641 year from the date at which such sale was confirmed, or would other- wise have become final and conclusive, if no such s uit had been brought. But this suit is not brought to set aside the sale of the property. It is brought merely to confirm the plaintiffs' title, and to restore them to pos- session. It is contended ou the part of the defendants that the suit, although it has not been brought to set aside the sale, is substantially a suit to set aside the sale of the plaintiffs' interest, because the plaintiffs cannot be put into possession' until that sale has been set aside. It appears to us that the clause referred to does not apply to a suit for setting aside certificate? of sa^, but only to a suit for setting aside sales- The sale took place under the proclamation and was completed, and the certificate ought to have been a true certificate of the sale which actually took place. There was no necessity to set aside the sale because Shamdyall's interests alone had been sold, although the certificate stated that the plaintiffs' ancestor's interest had also been sold ; and in a regular suit for confirmation of title, and for restoration of possession, it was competent to the ' plaintiffs to show what the sale really was, and that the certificate was wrong. The period of limitation for the suit, and for confirmation of title, and for restoration of property, is twelve years under cl. 12, s. 1, Act XIV of 1859 : therefore, so far as Act XIV of 1859 goes, the plaintiffs are not barred by limitation. But it is further contended on behalf of the defendants that, according to a decision of Steer, J., in Bebee Stihoorun v. Sheikh Golam Nujee (1), the plaintiffs or their ancestor had no right, when they were dispossessed by the notice given to the ryots that their interest had been sold, to lie by, and that they ought, under s. 269 of Act VIII of 1859, to have complained of their dispossession to the Court by which the decree was executedj and that if they did not do so, they would have only the same period from the date of dispossession to bring their action as they would have had under that section from the date of the order, if they had complained to the Court under that section, and the Court had decided against them, i.e., one year. We are of opinion that the plaintiffs or their ancestor were not bound to complain under that section. If they were bound to complain, and had only the same time to bring their suit as they would have had if they had made their com- plaint, the period of limitation would seem to be one month from the date of dispossession, for a. 269 requires the person who is dispossessed, if he intends to make a complaint, to make that complaint within one 1867 Photab CHUNDER ClIOWDHKT V. BliOJOLOLL Shaha. (1)2W. K.,55. 642 FULL BICNCIl RULINGS. 1867 Protap Chunder cuowdiiky y. Brojolall SUAIIA, month from the time of his having been dispossessed. Steer, J,, does not say that they would be bound by the period of one month, but by the period of one year from the time of their dispossession. The period of a year, which is fixed by s. 269, is not to date from the time of dispossession, but from the date of the order made under the complaint. Wljere no complaint is made, there can be no order, and it would be impossible . to ascertain whether the suit was brought within one year from ^the time at which the order would have been made if a complaint had been preferred; and there is no reason for saying that if there is no order from which the year is to date, the period of one year must be reckoned from the date of the disposses- sion instead of from the date of the order, which, if a complaint had been made, must have been subsequent to the dispossession, and in some cases a considerable time after it. It therefore appears to us that the ruling of Steer, J., to this extent is not correct, and that a party is not bound to make an application under s. 269, unless he pleases. If he choose to make an application, and a decision against him is passed upon tliat application, he is not entitled to appeal against the order, but must bring a regular suit to establish his right within one year from the time of the order. But if lie does not choose to apply to the Court which is executing the decree for a summary decision, but prefers to bring a regular suit iu ordinary course, then the period of limitation prescribed by cl. 12, s. 1, Act XIV of 1859, ia the period by which ha is bound. It is also urged that the decision by Trevor and Campbell, JJ., in Ram Gopal Roy v. Nundo Gopal Roy (1), is rather opposed to the present view of the Court. But all that that case decided was that, when a man is dispossessed by a Court in execution of an auction sale, he must sue within one year to reverse the sale proceedings. The facts of that particular case are not sufficiently detailed to enable the Court to say precisely what was intended. If a person makes an application under s. 269 of Act VIII of 1859, and the Court decides agaiust him by holding that he was properly dispossessed, that may be said to be a dispossession by a Court. If that is what was intended by a disposses- sion by the Court, then the case is riglit. But the case would not fall within s. 1, Act XIV of 1859, but within s. 269, Act VIII of 1859. There may possibly be other cases of dispossession by a Court in which it may be necessary to set aside the order of the Court before a regular suit to recover possession can be maintained. It is not neces- siiry to express any opinion upon that point at present. It is sufficient (1) 4 W. R., 42. FULL BENCH RULINGS. 643 to say that, in the pi'esent case, the plaintiffs having been dispossessed 1867 under a certificate of sale, which was not conformable to or warranted by Puotap ^| the sale itself,-and having made no complaint to the Court which wns cn'owcHRY I executing the decree, have a right to brinjj their suit for confirmntion of „ "■ _ ° ° = ' Brojololl their title, and to be restored to the possession of the property from Shaha. which they have been ousted, within twelve years from the time of their dispossession. With this intimation of the opinion of the Full Bench, the case will be sent back for further orders to the Division Court which referred it for our opinion. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. JODOONATH CHOWDHRY and others (Defendants) v. RADHOMONBE 1867 DASSEE AND OTHERS (PLAINTIFFS).* ^''''''''' ^^- Sale in Execution — Limitation — Act XIV of 1S59, s. 1, els. 3 §• 12 (1). When a suit to establish his title and to recover possession of property is brought by a person who has been dispossessed under a sale in execution of a decree against other persons, and no summary order has been made declaring the propert y liable to be sold in execu- tion of such decree, the period of limitation applicable is that prescribed by cl. 12, s. 1, Act XrV of 1859, viz., twelve years from the date of dispossession. In execution of a decree obtained against one Hurreeram and others, the plaintiffs' property was seized and sold. There had been no sum- mary order declaring it liable to sale ; on the contrary, the Court executing the decree had refused to make any summary order, but stated that the rights and interests of the judgment-debtors in the property would be sold, and that intimation of the plaintiffs' claim would be given at the time of sale. The present suit was brought within twelve years from the date of dispossession to establish the plaintiffs' title and to recover the property. The Moonsiff passed a decree in favor of the plaintiffs. On appeal the decree was confirmed by the Principal Sudder Ameen. The defendants appealed to the High Court on the following grounds (inter alia) : 1st. — "That the cause of action arose to the plaintiffs on the 22nd January 1852, when the claim of the plaintiffs in the summary proceed- ings in the Execution Department was overruled, and that thus limitation bars the suit." * Special Appeal, No. 1625 of 1866, from a decree of the Principal Sudder Ameen of Eungpore, dated the 14th March 1866, affirming a decree of the Moonsiff of that district, dated the 11th September 1867. (1) See Act IX of 1871, Schedule II, Nos. 14 and 145. 644 FULL BENCH RULINGS. 18G7 2nd. — " That as plaiiitiflPs sue to recover property sold in execution JoDooNATH of ^ decree in the year 1854, they should, under cl. 3, s, 1, Act XIV Chowdhrt p£ 1859, have sued within one year from the date of sale, and not "having Eadhomonee done so are barred by the law of limitation." Dassee. The special appeal came on for hearing before Bayley and Pundit, JJ., when their Lordships referred the case for the opinion of a Full Bench with the following remarks : — " With reference to the first plea, we are of opinion that the miscella- neous order rejecting a claim would not be the date of the cause of action ; but with reference to the second plea, it is, in our view, a doubtful question if the dispossession following the sale in execution of a decree would or would not create the cause of action. On the one hand, a case is cited to us. Ram Gopal Hoy v. Nundo Gopal Roy (I), in which Trevor and Campbell, JJ., hold that a party dispossessed by tixe result of a sale ia execution must sue within one year of such dispossession. On the other hand, we presume from a judgment of Kemp and Markby, JJ., in Protab Ckunder Chowdhry V. Brojololl Shaha, that differing from the above cited judgment of the other Division Bench, they have referred the matter to a Pull Bench (2). We ourselves rather incline to agree with Kemp and Markby, JJ., considering that, only where the circumstances are such in each ■ individual case that the right sought cannot in any way be adjudicated by a Civil Court, except through the medium of a suit directly to reverse the sale, a suit must be brought within one year ; but that wherever the circumstances are such that the right sought can be adjudicated without a suit directly to reverse the sale, limitation under cl. 3, s. 1, should not be applied." Baboos Sreenath Das and Khetternath Bose for the appellants. The respondents did not appear. The opinion of the Full Bench was delivered by Peacock, C.J. — The plaintiffs in this case were dispossessed under a sale in execution of a decree against Hurreeram and others. The plaintiffs' property was not liable to be sold under that execution ; and they bring their suit now to establish their title, and to recover posses- sion. That suit is brought within twelve years from the time at which they were dispossessed. It appears to the Court that the suit is brought withia proper time, and that the period of limitation is twelve years from the time of dispossession, according to cl. 12, s. 1, Act XIV of 1859. (1) 4 W. R,, 42. (2; Ante, p. 638. FULL BENCH RULINGS. 645 It is said tliat there bad been a summary order made iu this case, jggy in whicli it was determined between the plaintiffs and the execution Joioonath creditor in the former case tlint tlie plain tiflfs' property was liable to be Chowdhry sold under the decree. But there was no summary order in this case. Eadhomonbk Dasseu. If the Court had summarily decided that the property was liable to be sold, then it would be necessary to get rid of tliat summary order, and tiie suit must have been brought within one year from the date of that order, according to cl. 5, s. 1, Act XIV" of 1859, or within two years from the time of the passing of Act XIV of 1859, under s. 18 of that Act. But so far from there being a summary order in this case, the CouFts refused to make any summary order, and they gave their reasons for such refusal. They referred to the Circular Order of the Sudder Court of the 10th June 1842, and stated that tlie rights and interests of the defendants in the property would be sold, and that intimation of the plaintiffs' claim would be given at the time of sale. The rights and interests of the debtors under the decree having been sold, that did not pass the plaintiffs' interests, if they had any, in the property ; and if tliey were dispossessed, haviug an interest in the property, 'they are entitled to bring their suit witliiu twelve years from tlie time of dis- possession ; consequently the suit is not barred by limitation. The 'Case of Ram Gopal Roy v. Nundo Gopal Roy (1) which was cited, and which was decided by Trevor and Campbell, JJ., to whiclv we have already adverted in the decision just passed in Protab Chunder Chowdry v. Brojolall Shaha (2), is not applicable to the present case. This case will be returned to the Division Bench which referred it for our opinion, in order that that Court may pass such further ordera as are necessary. (1)~ i. W. K., 42. (2) Ante, p. 638. 38 646 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson , 18S7 SHAHABOODDEEN (PiaintiffJ i.. FUTTEH ALI and another (Dbfendanis).* Under-tenure, Sale of— Arrears of Sent — Incumbrances — Act X of 1859, s. 10*— Beng. Act VIII of 1865, s. 16. Under-tenures sold for arrears of rent under s. 105 of Act X of 1859, other than tenures upon which the right of selling for arrears of rent has been specially reserved by stipulation in the engagements interchanged on the creation of th& tenures, do not pass free from incumbrances (l)u SemUe — It was to get rid of this that s. 1& of Beng. Act VIII of 1865 was enacted. This wns a suit for enliancement of rent of a nowabad tnlook in CliiitaL.'ong, brought by the purchaser of th« talook at a sale, under s. 105, Act X of 1859, for arrenrs of rent due ia respect of tlw talouk to the ijaradar under Government of the village in which tha talook was situate. The defence was that the tenure was not liable to enhancement,' inasmuch as the former holder of the Tulook, Hossein Ali, had, under » solehnnma granted to tlie defendant's predecessor, agreed to take no more rent from the latter than the amount which Hossein Ali paid to Government as revenue. The Deputy Collector held that the sale was free from incumbrances, and accordii'gly declared the defendant liable to pay what he considered to be a fair rent. On appeal; the Judge held that although the plaintiflf, as a pur- chaser at a sale held under s. 105, Act X of 1859, was not bound by the solebnama, still as there was a recital in the solehnama that the land had been held for more than twenty years upon the same terms, the defendant was not liable to have the rent enhanced. He accordingly dismissed the suit. The plaintiff appealed to the High Court. The case came on for hear- ing before Peacock, C.J., andL. S.Jackson, J., but there being conflicting decisions on the point their Lordships referred the following question to a Full Bench : — * Special Appeal, No. 992 of 1866, from the decree of the Judge of Chittagong, dated the lith December 1865, rerersing a decree of the Deputy Collector of that district, dated the 22nd March 1865. (1) See Beng. Act VIII of 1869, ss. 69 and 66; see also Miv Jansimuddin a. Sheikh Mansur Ali, 6 B. L, R., App., 150; Forbes v. Baboo Lutchmeeput Singh, 10 13. L. K., 141. FULL BENCH RULINGS. 647 "Whether a siile, under s. 105, Act X of 1859, is free from ige; incumbrances, or whether the (enure in the hands of the purchaser is "^ ■ ' OHAIIABOOD- su'iject to incumbrances created by the defaulter." dekn 111 referring the question Peacock, C. J., observed: — FutijshAli. " If tlie sale of the tenure in tliis case was free from incumbrances, it must also be free from admissions made by the former holder of the tenure, and the purchaser at the sale is not bound by them ; otherwise a holder of a tenure might create, by an admission, an incumbrance which he could not create by actual conveyance. It appears to me, however, that a sale of this under-tenure was not a sale free from incumbrances, and that the admission made by the former Iiolder of the tenure in the soLdinama was evidence as against the purchaser of the tenure, and that the decision of the Judge was right. Sathouree Mitter's case (1) seems to me to be a correct ruling. In that ease the Sudder Court held that s. 11, Regulation VIII of 1819, which says tliat the sale is to be free from incumbrances, applies to sales made under s. 8 of that Regulation. But ns there are several conflicting decisions — ■ Srishteedhur jMitndul v. Gobind Suruckar (2) and Dwnrkanath Doss V. Manick Chandra Doss (3) — we express no final opinion in the cnse, but refer it for the decision of a Full Bench." Baboo Greeja Sutiher Mozoomdar for the appellant. Baboo Nohohissen Mookerjee for the respondents. The opinion of the Full Bench was delivered by Peacock, C. J. (who, after stating the facts, continued) — Several Eegulations have been referred to. The first was Regulation VII of 1799, cl. 1, s. 15, of wiiich declares that " any zemindar, talookdar, or proprietor, or farmer of land, to whom an arrear of rent may be due from a dependant talookdar, kutkinadar, jotedar, or otiier under-tenant of whatever denomination, which cannot be realized by distraining the personal property of such under-tenant and his surety (if he shidl have given security), is at liberty, after demanding such arrear from the defaulter, and from his surety if forthcoming, or without any express demiind if he have reason to believe that the defaulter or his surely is prepared to abscond, to cause the immediate arrest of such defaulter and his surety in the manner following." Cl. 7 of the same section provides that, "if the defaulter be a dependant talookdar, or the holder of any other tenure which, by the title-deeds or established usage of (1) S. D._A., 1851, 626. (2) 6 W. R., Act X Kul., 15. (3) 3 W. R., 197. 64.8 FULL BENCH RULINGS. 1887 the country, is transferable by sale or oiherwise, it may he brought to 'T~~ snle, by apiilicntion to the Dewanny Adawlut, in satisfaction of the DEEN arrear of rent; and the purchaser will become the tenant for the new V, FuTitaAu, year." By Act VIII of 1835, the power of the Dewanny Adawlut to sell in satisfaction for arrears of rent was transferred to the Collectors of Revenue. CI. 7,8.15, Regulation VII of 1799, to which we have adverted, does not, in express terms, say whether, when a tenure is sold under its provisions, it is sold free from, or subject to, incumbrances which may have been created by the former holder. S. 8 of Regulation VIII of 1819, by which putnee talooks were recogoized, enacts tliat zemindars, i.e., proprietors, under direct engage- ments with the Goveruraeut, may apply in the manner therein pointed out "for periodical sales of any tenures upon which the right of selling or bringing to sale for an arrear of rent may have been especially reserved by stipulation in the engagements interchanged on the creation of the tenure." And cl. I, s. 11 of the same Regulation declares that any talook or saleable tenure sold under the rules of that Regulation, for arrears of rent due on account of it, " is sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives, or assigns, unless the right of makioi; such incumbrances shall have been expressly vested in the holder by a stipulation to that effect in the written engagements under which the said talook may have been held." Cl. 3 of the same section, however, provides that nothing therein contained shall be construed "to entitle the purchaser of a talook or other saleable tenure intermediate between the zemindar and actual cultivators, to eject a khoodkasht ryot, or resident and here- ditary cultivator, nor to cancel bo7ia fide engagements made with such tenants by the late incumbent or his representative, except it be proved in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rate would have been demandable at the time such engagements were contracted by his predecessor." So that, although sales of tenures for arrears of rent due under them, made under the provisions of Regulation VIII of 1819, were free from all incumbrances, there was the proviso which protected resident culti- vators who held under engagements made "bona fide with them by the former incumbent, provided that, at the time, when the engagements were made, as high a rent was reserved as was demaudable at that time. It is to be remarked that s. 8 applied to the sale of those tenures only upon which the right of selling or bringing to sale for arrears of rent FULL BENCH RULINGS. 649 has been specially reserved by stipulation in the engagements inter- ige? changed on the creation of the tenure. If the engagements contained a shahabood-' stipulation to that effect, then the proprietor might apply to have "'™'' the tenure sold in the manner provided by tlie section: and, by Futtich Ali. s. 11, the sale was declared to be free of incumbrances. It was not at that time expressly stated whether a sale of a tenure of the nature defined in s. 8 of Regulation VIII of 1819, if sold by any other process than that prescribed by els. 2 and 3 of that section, was free of incumbrances created by the former proprietor of the tenure or not, and consequently Regulation I of 1820 was passed to clear up any doubt upon that subject. That Regulation recited that " whereas it has been omitted to provide in the rules of Regulation VIII of 1819, whether, in case the proprietor of an estate paying revenue to Government should desire to bring to sale a saleable tenure of the nature defined in cl. 1, s. 8 of that Regulation, for the realization of arrears of rent due thereupon, by any legal process other than that prescribed by tlie 2nd and 3rd clauses of the said sectiou, such sale should be made in the public manner provided for the periodical sales therein described ; and whereas it is consonant with justice, and was intended by the said Regulation, that, in every case of the sale of such tenures for arrears of the zemindar'vS rent, the sale should be public, for the security of the interests of the owner of the tenure sold ; which object can in no manner be duly secured, except the sales to be so made be conducted by an officer of Government in the same manner as the periodical sales provided for by s. 8 of the said Regulation :" the following additional rule has accordingly been passed by the Governor- General in Council to take effect from the date of its promulgation." 01. 1, s. 2, enacted that, "whenever the proprietor of an estate, paying revenue to Government, shall desire to cause any tenure of the nature of those described in cl. 1, s. 8, Regulation VIII of 1819, to be sold for arrears of rent due to him on account thereof, and shall, under any summary process authorised by the general Regulations, have acquired the right of causing such a sale to be made, the same shall be conducted, after application from the zemindar, by the register or acting register of the Zillah or city Court, or, ia his absence, by the person in charge of the office of Judge of the district, in the mode prescribed by Regulation VIII, above quoted, for periodical sales." Cl. 2 of the same section enacted that ten days' notice of the sale should be given ; and then cl. 3 enacted that the " rules of ss. 9, 11, 13, 15, and 17, Regulation VIII of 1819, are extended to all sales made after the manner herein provided." So that, when- 650 FULL BENCH RULINGS. 1867 ever a sale of nny of the tenures of ihe nature described iu s. 8, SiiAHABooD- Regulntion VIII of 1819, took place, whether the sale was made ^^f'" under the provisions of that section, or under any summary process FhttkhAli. authorised by the general Regulations, the sale was subjected to the pro- visions of s. II, and was consequently free of all incumbrances, except those referred to iu cl. 3, and amongst others, the tenures of cultivating ryots wlio had engagemenls entered into with them by the former pro- prietor at rents wliich were as high as were demandable at the time when the engagements were entered into. Still the law which re:^dered the sale free from incumbrances was confined to tenures of the nature defiued in s. 8, Regulation VIII of "1819, viz., tenures upon whicli the riglit of selling or bringing to sale for arrears of rent had been specially reserved by stipulation in the engage- ments interchanged on Ihe creation of the tenure, and did not apply to the other class of tenures described in cl. 7, s. 15 of Regulation VII of 1799, viz., tenures saleable by the usnge of the country. That being tlie state of the law when Act X of 1859 was passed, it was enacted by s. 105 of tliat Act that, " if the decree be for an arrear of rent due in respect of an uuder-tenure, which, by the title-deeds or the custom of the country, is transferable by sale, the judgment-creditor may make application for the sale of the tenure, and the tenure may thereupon be brought to sale in execution of the decree, according to the rules for the sale of uuder-tenures for the recovery of arrears of rent due in respect thereof contained in any law for the lime being in force." That section in effect incorporated the provisions of s. 15, Regulation VII of 1799, and ss. 8 and 11 of Regulation VIII of 1819 ; and by incorporating those pi'ovisions, it substantially enacted that all tenures of the description mentioned in s. 8, Regulation VIII of 1819, were to be sold free from incumbrances, according to the stipulation of s. 1 1 of that Regulation. There was no law in force according to the i-ules of wliich any tenures other than such as were of the nature defined in s. 8 of Regulation VIII of 1819, viz., those tenures upon which the right of selling or bringing to sale for an arrear of rent had been specially reserved by stipulation in the engagements interchanged on the creation of the tenures, were to be sold free of incumbrances. S. 105, Act X of 1859, applies not only to the class of tenures specially mentioned in s. 8, Regulation VIII of 1819, but also to those which are transferable by the custom of the country. Those which / were transferable by express stipulation, and came within the class defined in s. 8, Regulation VIII of 1819, would be sold free from all incumbrances, except such incumbrances as were described in cl. 3, a. 11, FULL BENCH RULINGS. 651 Eegulation VIII of ] 819. There being uo provision thnt otlier tenures, iggy not so transferable, were to be sold free from all iucumbrsmces, they Shahabood- wouid, consequently, after the sale, be subject to incumbrances. ""^"^ There were two classes of tenures saleable for arrears of rent under FuttehAli. 8. 15, Regulation VII of 1799, viz., those in which the tenure was sale- able by the stipulations in the title-deeds, and those which were sale- able by the established usage of the country. The former only were included in s. 8, Regulation VIII of 1819 ; and it was only in respect of tbem that the sale was declared by s. 15 of that Regulation to be free from incumbrances. The question is, wliether the tenure in this case is one which falls ■within tiie class of tenures described in Regulation VIII of 1819, or not ? No evidence was given as to the terms of the document under which this tenure was created. It appears to be referred to by the record-keeper of the Collector as having been created in August, 1847. It appears to the Court that we ought to know whether a tight of sale for arrears of rent was specially reserved in the engagements inter- changed on the creation of the tenure. If such a riglit was specially reserved, then, coupling s. 105 with the other sections to which I have referred, the Court are of opinion that the sale would be free from incumbrances. If there was no such stipulation, then it would not ba free from incumbrances. We therefore think that the case ought to go back to the Division Bench, by wliich it was referred to us, iu order that it might be ascertained whether the lease contained such a stipula- tion or not. If it did not contain such a stipulation, the defendant is emitled to the benefit of the solehnama^ and, consequently, the plaint- iff's suit must be dismissed. If, on the other himd, the lease contains such a stipulation, then the sale under the decree was free from incumbrances^ and the defendant is not entitled to the benefit of the solelinama. But the defendant in his defence in this case set up that there was no bona fide sale of the tenure under the decree of the Court for arrears of rent. He set up that the decree and sale under it were all « pretence and sham, for the purpose of getting rid of the solehnama. Tiierefore, if it should appear to the Division Bench that there was a special reser- vation that the tenure was to be saleable for arrears of rent, then^ having been sold free from incumbrances, the case must go back to the first Court, to raise and try the issue whether or not the decree and sale under it were bona fide or fraudulent, for the purpose of getting rid of the solehnama. The law of this case does not depend merely upon our construction of the Regulations to which I have referred. There are decisions of 652 FUI.L BENCH RULINGS. lgg7 the SutUler Court upon the construction of tlieae Regulations, -which Shahabood- show what was considered to be the law at the time when s. 105, Act DEKN -^ ^f jg_-g^ ^^^ passed. The principal decision is the case decided FuttehAli. by the Sudder Court in 1851, Satkouree Mitter v, Useemuddeen Sirdar (1). lu that case the Court said : — *C1. I, s. 11, Regulation VIII of 1819 attaches extensive legal consequences, as regards the avoidance of under-leases or tenures, to sales made under the rules of that Regulation. Regulation I of 1820 applies the rules of s. 11, Regulation VIII of 1819, to sales of tenures of the nature of those described in cl. 1, s. 8, Regulation VIII of 1819, wis;., ' tenures upon ■which the right of selling or bringing to sale, for an arrear of rent, may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure.' The ganlee tenure referred to in this case does not come under the above description. The sale of such tenures is made under Act VIII of 1835, under wliicli no powers analogous to those of cl. 1, s. 2, Regulation VIII of 1819, are conveyed to their purchasers." That decision was in accordance with the view which we Imve now taken of the construction of the Regulations prior to Act X of 1859. In a subsequent case of Raj- kishon Dull v. Bulbhudder Misser (2), Mr. Sconce, differing from the other Judges, thouglit that the decision of 1851 was correct, and there- fore upheld it. The other two Judges, Messrs. Raikes and Loch, did not actually dissent ; but they said that it was unnecessary to decide the point, as it did not arise in that particular case, inasmuch as the certificate of sale expressly stated that it was the rights and interests of the defaulting tenant alone which had been sold. That decision cannot be taken as a decision in affirmance of this view, but only as a dictum of Mr. Sconce in affirmance of the decision of 1851. Several decisions have been cited to-day as being at variance with the decision of 1851 ; but, in most of those cases, the point does not appear to have been raised before the Court as to whether the tenure was one which came within the meaning of s. 8, Regulation VIH of 1819, as contain- ing an express reservation of the right to sell or not. At any rate the point was not brought to the notice of ti>e Court, nor was the case decided by the Sudder Court in 1851 referred to. In one of the cases to which reference has been made, Dwarkanath Doss v. Manick Chunder Doss (3), the matter was brought to the attention of the Judges ; and though the decision of 1851 was cited, they dissented from it, and, therefore, that case is in direct conflict with the decision of (1) S. D. A., 1851, 626. (2) S. D, A. Rep., 1859, 389. (3) 3 W. K., 197. FULL BENCH RULINGS. 653 1851. Bayley and Campbell, JJ., iu Ihat decision said : — "On a full ige? cousideration of this case, we dissent from the doctrine laid down by Skahabood- the decision of the late Sudder Couit iu the case o? Satkouree Mitter{\) "^™ to the efiFect that a sale of a tenure under Act VIII of 1835 does Futteh An.- not convey the tenure free from all incumbrances, but only the rights and interests of the debtors. Looking to the general policy of the revenue laws, to the terms of Regulation VII of 1799, s. 15, cl. 7, to those of Regulation VIII of 1819, s. 18, cl. 4, and Act VIII of 1835, also to the analogy and presumption derived from the re-enactment of those provisions contained in s. 105, Act X of 1859,— we think that the sale of a tenure for arrears of current revenue is a good sale of the tenure itself, and carries the rights of all interested in it, giving to the purchaser the tenure in the shape in which it was originally created, and destroying all rights of all persons holding either jointly with or under the debtor as undivided sharers, or sub-tenants not otherwise protected," Alihough the greatest respect is due to the learned Judges who decided that case, we cmnot concur with them in the reasons which they have given for dissenting from the decision of tiie Sudder Court of 1851. It appears to us that the case of a tenure, which is not expressly made saleable for arrears of rent by the documents by which the tenure was created, is not governed by the general policy of the revenue laws, nor saleable free from incumbrances by Regulation VII of 1799. We have shown that it does not fall within s. 8 of Regula- tion VIII of 1819. Act VIII of 1835 merely transferred the power of selling from the Dewanny Adawlut to the Collectors of Revenue. We cannot see what analogy or pi'esumption can be derived from the enact- ment contained in s. 105 of Act X of 1859. If Act X of 1859 was a mere re-enactmeut of the former laws, it does not extend the provisions of the old laws to cases which did not fall under them. Reading s. 105, Act X of 1859, as enacting that the under-tenures therein described may be brought to sale in execution of a decree for arrears of rent due in respect thereof, according to the rules " for the sale of under-tenures for the i-ecovery of arrears of rent due in respect thereof contained in any law for the time being in force ; " and referring to those laws to which we have adverted as the laws which were then in force, and to the Sudder decision of 1851, it appears to us that, unless there was a stipulation in the documents by which the tenure was created, providing for the sale of such tenure for arrears of rent, the tenure was not sold free from incumbrances. (1) S. D. A., 1851, 626. 39 654 FULL. BENCH RULINGS. ig67 It has been argued that s. 105, Act X of 1859, must have been intended Shahaeood- to t>e n general declaration by the Legislature that all sales, under the °^f^ provisions of that section, were to be sales free from all incumbrances. Fdttbh Ah. But if we were to give that construction to the section, we should have no means of protecting that class of tenants who are protected by the proviso in cl. 3, s. 11, Eeguktion VIII of 1819, which was extended to sales under Regulation I of 1820 by cl. 3, s. 2 of that Regulation. The question which we are determining is not so important now as it was before the passing of Act VIII of 1865 of the Bengal Council ; because, by s. 16 of that Act, it is enacted that "the purchaser of an under-tenure sold under this Act, shall acquire it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives, or assigns, unless the right of making such incumbrances shall have been expressly vested in the holder, by the written engagement under which the under-tenure was created, or by the subsequent written authority of the person who created it, his representatives, or assigns." That section contains a proviso in almost the same words as cl. 3, s. 11, Regulation VIII of 1819. "Provided that nothing herein contained shall be held to entitle the purchaser to eject khoodkasht ryots, or resident and hereditary cultivators, nor to' cancel bond fide engagements made with such class of ryots or cultiva- tors aforesaid by the late incumbent of the under-tenure, or his repre- sentatives, except it be proved, in a regular suit to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demandable at the time such engagements were contracted by his predecessor." S. 16, Act VIII of 1865 of the Bengal Council, seems to have been enacted for the very purpose of getting rid of the difficulty which has now arisen upon the construction of s. 105 of ActX of 1859. All tenures sold under the provisions of s. 16, Act VIII of 1865 of the Bengal Council, for arrears of rent, are sold free from incumbrances, but subject to the proviso in that section, which is in the same words as that contained in cl. 3, s. 11, Regulation VIII of 1819. It has been contended that, by virtue of Act VIII of 1865 of the Bengal Council, the sale in this particular instance was free from incumbrances. But B. 16 applies only to purchasers of under-tenures sold under that Act. The sale of the under-tenure in question was before that Act. That under-tenure was sold under the law as it then existed, that is s. 105 Act X of 1859. The case will go back to the Division Bench which referred it, with the above expression of our opinion, and the document by which the tenure was created will be sent for from the office of the Collector for FULL BENCH RULINGS. the purpose of being inspected by the Division Bench, who, after inspecting that document, will finally decide the case. 655 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. In the matter of the Petition of the COLLECTOR OF EUNGPORE.* Beg. V of lgl2, s. 26— 7?ejr. V of 1827— Management of joint undivided Estate hy Collector — Power of Judge to order Payment of Surplus Proceeds to Persons entitled. A Judge has power to order the person appointed under Eeg. V of 1812, s. 26, and Beg. V of 1827, to manage an estate, to make over the surplus, after payment of revenue and other outgoings, to the person or persons entitled to receive the same. Acting under the provisions of Regulation V of 1812, s. 26, and Regulation V of 1827, the Judge of Rungpore placed an estate called Mouziih Lithake under the management of the Collector of Rungpore, and ordered the Collector to pay the profits of the estate to the several shareholders according to their respective shares. The Collector petitioned the High Court to get rid of the latter order, on the ground that, under a. 26 of Regulation V of 1812, he was only bound to collect the rents and discharge the public revenue, and to provide for the cultivation and future improvement of the estate ; and that it formed no part of his duty to distribute the surplus proceeds to the several shareholders according to their respective shares. Upon this petition Norman and Loch, JJ., passed the following order : "Let the shareholders to whom the Judge of Rungpore has directed that the profits of the estate should be paid according to their respective shares, show cause on the 3rd day of December next why his order directing the Collector of Rungpore to pay the profits of the estate, which is under the raanngement of the Collector, under s. 26 of Regulation V of 1812, should not be quashed, being an oider which under that Regulation he had no jurisdiction to make. " Let this rule be sent to the Zillah Judge, who will cause it to be duly served on all the parses interested in the matter, and see that such service is properly made." As Loch, J., entertained some doubts as to whether the Court had power, under s. 15 of the Charter Act, to make the above order, it was directed that, on its return, the rule should be argued before a Full Bench. 1867 Shahaeood- FuTTEH All 1867 March 15, Rule No. 1090 of 1866. 656 FULL BENCH RULINGS. 1867 Baboo Kissen Kissore Ghase for the Collector. MATTKD OF Thc judgmeiit of the Full Bench was delivered by TUB Petition • or THE COI^ IT- • T i- i,ECTou OF Peacock, C.J.— We think that in this case the Judge had jurisdiction. KuNGPOKE. g_ gg^ Eegulation V of 1812, is in the following words: "In- convenience to the public, and injury to private rights, having been experienced in certain cases, from disputes subsisting among the pro- prietors of joint undivided estates, it is hereby enacted that, whenever sufficient cause shall be shown by the Revenue Authorities, or by any of the individuals holding an interest in such estates, for the interposition of the Courts of Judicature, it shall be competent to the Zillah and City Judges to appoint a person, duly qualified, and under proper security, to_ manage the estate; that is, to collect the rents and discharge the public revenue, and provide for the cultivation and future improvement of the estate." At that time tiie person put in to manage the estate was in the nature of an ordinary receiver ; and it appears to us that, without any express authority being given to the Judge, he would have power to control the receiver, by directing him to pay over any surplus which might remain in his hands after paying the Government revenue and providing for the cultivation and improvement of tlie estate. Tills section could never have intended that the receiver should retain in his hands any surplus profits of the estate, without being subject to the orders or control of the Judge by whom he was appointed. We think, therefore, that under the Eegulation to which we have referred, even without the interpretation which in practice has been put upon it, the Judge had jurisdiction over the receiver with regard to tlie disposal of the surplus profits. By Regulation V of 1827 it was enacted that, whenever the Zillah or City Courts sliould deem it proper, under the provisions of the Regulations therein mentioned, to provide for the administration and management of landed property, the Court should issue a precept to the Collector of Land Revenue directing him to hold the estate iu attach- ment. It could not have been intended that the Collector should hold all the surplus profits of the estate without being subject to the orders of the Court, In point of fact we find in this very case that, as far back as 1860, Mr. Tucker, who was then the Judge, made an order for the payment of the surplus proceeds, and that order appears to have been complied with until very recently, when the Board of Revenue passed a collection of rules, by s. 7 of which it was stated that "a Collector cannot, unless FULL BENCH RULINGS. 657 under the special orders of the Civil Court" (thereby recognizing the iggy jurisdiction of the Civil Court to make such orders) " disburse to any In the one any pnrt of the surplus proceeds from lands thus managed under th"Vetit'iok his superintendence ; and inasmuch as the disbursement of any portion "^"^^^ Col- of such surplus proceeds is opposed to one object of the law, and is Rungpore. illegal (1), the receipt of any order for the disbursement of such sur- plus from the Civil Courts, though it must be obeyed, should be imme diately reported with full particulars for the information of the Commissioner and the Board of Revenue." Tiie Government Pleader, who has appeared before us to-day on behalf of the Collector, has argued that the object of the law to which the disbursement of any part of the surplus proceeds is alleged to be opposed, was to compel the parties disputing to come to terms, or, in other words, to drive thera into a settlement of their disputes by withholding from them the' profits of their estates. We think it very clear that the object of the law was not to force the disputants into an arrangement, but to avoid inconvenience to the public, or injury to the parties, which might arise from their neglecting, pending their disputes, to pay the Government revenue, or to mannge their estates properly. The order of the Board of Revenue goes on to say that " surplus proceeds may, with the sanction of the Commissioner, be expended upon the improvement of the estate," and that any money not required for that purpose should " be held simply in deposit, and not invested so as to produce interest or profit." If the Judge has no power to make an order with regard to the surplus proceeds, the owners will not only be deprived of the present use of the surplus proceeds, but will also be deprived of all benefit which might accrue to them from having them profitably invested. In short, if tiie Judge has no jurisdiction, proprie- tors of the estates may, as long as their disputes continue, be left to starve, or be compelled to borrow money at a high rate of interest, whilst the surplus proceeds of their estate are lying without any advan- tage to them in the Collector's treasury. We think that the Judge had power to make the order. It is not necessary to determine whether the Judge was right in mak- ing an order that the Collector should pay the parties according to their i-espective shares. Tlie propriety of making such an order might depend upon the facts of the particular case. In this case it appears that a petition was presented to the Judge by the Collector, representing that the order of the Judge's predecessors ordering the Collector to pay (1) See Jugo Moyee Chowdhrain v. The Government, 3 W. K., Mis,, 17. 658 1867 FULL BENCH RULINGS. the profits of the estate to the zemindars, according fo their respective Z ~ shares, had been regarded by the Board of Revenue as contravening MATTER OF tJiQ Board's rule, and praying that the said order might be set aside, THE Petition ^^ •/ o OF THIS Col- and that the Judge, thereupon, requested the Collector to ascertain and KuHGPOKE. i'eport the number of shareholders, and the extent of the shai-e of each, if there was any such specification. The Collector reported that the profits had been paid according to the share of each shareholder duly specified, ■whereupon the Judge ordered that payment should be made to each separate shaieholder, meaning, as we understood, that payments sliould be made in the shares in which the shareholders had been in the habit of receiving them. But whether this was the meaning of the order or not, it appears to the Court that the Judge had jurisdiction to make an order with regard to the surplus proceeds. The High Court cannot therefore, under its general power of superintendence over the subordinate Courts, quash the order of the Judge. It is not necessary to send the case back to the Bench which referred it, but the application will be refused. 1867 March 19. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. KIRTEEBASH MAYETEE (Plaintiff) v. RAMDHUN KHOEIA (Defendant).* Evidence — Proof of Dakhilas. Dakhilas or rent-receipts filed by a lyot in a suit for arrears of rent or for enhance- ment must be proved, -whether denied by the zemindar or not. The plaintiff sued in the Collectorate Court for arrears of rent at enhanced rates. On a day subsequent to that on which the parties were examined, the defendant produced certain dakhilas for the purpose of showing that he had held at a uniform rate for upwards of twenty years. The plaintiff' sought to refute this by putting ia zemindari chittas and jummabundi papers, from which it appeared that the rent had varied. The Deputy Collector who tried the case, disbelieved the genuineness of the dakhilas, and decreed for the .plaintiff. On appeal by the defendant, the Judge, without entering into the question whether there was any evidence in support of the dakhilas, observed that * Special Appeal, No. 2779 of 1866, from a decree of the Judge of Hooghly, dated the 9th July 1866, reversing a decree of the Deputy Collector of that district, dated the 23rd AprU 1866. FULL BENCH RULINGS. 659 "the dakliilas produced by the defendant are not nny where denied by the plaintiflf, consequently, under the ruling in Kazee Khoda Newaz V. Nubokissore Roy (1), they must be accepted as true;" and he accord- ingly reversed the Deputy Collector's decision. The plaintiff appealed to the High Court. He contended that, from the judgment of the Deputy Collector, it was clear that the parties had joined issue on the question of the genuineness of the dakhilas, and that the Judge, therefore, was wrong in holding that the plaintiff had nowhere denied that they were genuine, and, further, that it was impossible for him to do so on oath, as they were not produced till after he had been examined. The case came on for hearing before Peacock, C.J., and L. S.Jackson, J., who referred it for the opinion of a Full Bench, with the following remarks : — Peacock, C.J. — I am unable to distinguish the present case from the two rulings, Rajessuree Debia v. SMbnath Chalterjee (2) and Kazee Khoda Newaz v. Nubokissoi-e Roy (1), which have been cited, and spe- cially from the last in date of those two rulings. But I confess I cannot discover in what stage of the cause the dakhilas, produced by the defendant in evidence, could have been denied upon the record by the plaintiff. Suppose the defendant had produced these documents in Court under suspicious ciieurastances, and the plaintiff had not been present, and his mookteai", not knowing whether the documents were genuine or not, could not deny them, would the Judge have been bound to believe them ? According to the rulings referred to, the Judge would liave been bound to believe them, there being no denial of them upon the record. My present impression is that these rulings cannot be upheld ; but as I cannot distinguish the present case from the rulings referred to, this case must be referred to a Full Bench for decision. Jackson, J. — I entirely concur. lam also at a loss to know at what stage of the proceedings, or in what manner, a denial is to be entered by the plaintiff of documents filed by the defendant, more especially when these documents are so filed by the defendant after the first hear- ing of the case, when an examination of the plaintiff in person has already taken place. It seems to me that the party who puts in dakhilas, as well as other documents, as evidence to support his cas6, is bound to satisfy the Court that those documents are genuine, and what they purport to be ; in other words, to prove them ; and that it cannot pos- 1867 KlUTEEBASH Mayktee' V. Kamdhun Khobia. (1) 5 W. R, Act X Eul., 53. (2) 4 W. K,, Act X Eul., 42. 660 FULL BENCH RULINGS. 1867 sibly be assumed, from the absence of a specific denial by the opposite KiRTicEBASH pai'lj, that such documents are genuine. JlAYliTEli V. Baboo Romesh Chunder Mitter for the appellant. Ramdhun Khokia. Baboo Poorno Chunder Shome for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — The Judge in this case says that the dakhilas pro- duced by the defendant are not anywhere denied by the plaintiff, and consequently, under the ruling in Kazee Khoda Newaz v. Nubokissore Roy (1), they must be accepted as true. He does not state whether there was or was not any evidence to prove that they were genuine, but he accepted them as true, merely because the plaintiflf had not denied them. The question came before the 1st Division Bench, who then thought that the rulings on wliich the Judge had relied iu support of his deci- sion could not be upheld, but as there are conflicting decisions upon the point, the case was referred to a Full Bench. I retain the opinion which I expressed on referring the case. In the second of tlie two cases, Kazee Khoda Newaz v. Nubokissore Roy (1) cited in the referring order, Bayley and Pundit, JJ., say : — "Further, it has been decided here that when the payment of rent is not a matter directly in dispute, and dakhilas are produced by the ryot to show that he is entitled to the presumption of s. 4, and these receipts are not denied by the landlord, the tenant is not required to prove them, but, by the non-denial, admission is legally presumed." We thiuk that the decision cannot be upheld to the extent that admis- sion is legally to be presumed from non-deninl. If a fact, or a document in support of a fact, is to be proved, it must be proved by legal evidence whether the fact is directly in dispute or not. If a fact is admittedj it need not be proved ; but if it has to be proved at all, it must be proved by proper evidence, whatever may be the purpose for which it is to be proved. The decision refers to a former case, Rajessuree Dabee v. Shibnath Chatterjee (2) decided by Bayley and E. Jackson, JJ., in which the Judges say : — " There is no doubt that dakhilas should, as a general rule, be attested or pi'oved by some oral evidence, in the same manner as all other documentary evidence. But there is a special difficulty for a tenant to prove dakhilas which are drawn up by his zemindar's agents and sio-ued by them, more particularly of long past days. The tenant cannot be expected iu every case to summon all the goraaslahs of his zemindar for the past twenty or thirty years to attest his dakhilas. He should (1) 5 W, R., Act X Kul., 53. (2) ' 4 W. E,, Act X Kul., 42, KllORIA. FULL BENCH RULINGS. 661 be required ia his examination to attest the dakliilas himself as far as jgey he can. All dnkhilas which have been siven to him personally he can "I prove as well as any other witness. The tenant having so far deposed Mayeteb to their genuineness, it will remain for the zemindar, or his agent who Ramdhun may depose on his behalf, lo deny their genuineness. He also should be examined regarding them. A mere general statement that they are false should not be listened to. If he states that they are false docu- ments, he should be required to detail bis reasons for so stating, and if they appear to have any foundation, an issue should be laid down, and both parties required to produce further evidence on the point." To the extent of saying that an issue should be laid down as to whether the documents are genuine or not, when they are produced in the course of a trial as evidence to prove an issue which has already been laid down, or any important fact in the cause, I think that the Judges were not right ; but I think they were right to this extent, that if a tenant produces dakhilas, and swears that they are genuine docu- ments which were delivered to him by the landowner or his gomastah, or gives other prima facie evidence to show they are genuine, whether the purpose be of proving that rent has been paid in a suit for arrears, or to prove that rent has been paid at a fixed rate for a certain number of years for the purpose of barring a landlord's claim to enhance, such dakhilas are strong evidence, if the landlord, or his agent, do not come forward and deny them. The Judges are right in saying that it cannot be expected that a ryot should in every case summon all the iicrents of his landlord who gave him the receipts : but the ruling in the last case, that if the landlord does not deny them they must be taken to be true, without any evidence on the part of the ryot, cannot be upheld. In many cases the landlord is not present at the trial, and does not even know what documents are intended to be produced. How, and in what stage of the cause, is he to deny them ? If a ryot produces dakhilas, and swears that he received them from the landowner, or his agent, or gives otliev prima facie evidence of their genuineness, and the landlord, or his agent, does not come forward and deny them, or give evidence to show that they are not genuine, they may be taken as prima facie evidence against him, if the evidence of the ryot is believed. In this case, as the Judge has not entered into the question whether there was any evidence in support of the dakhilas, the case must be i-emanded to him to enquire whether the dakhilas are genuine or not, and to determine the case after that question has been determined upou proper evidence. 40 662 PULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macplierson, 1867 KANHYA LALL and otheks (Plaintiffs) v. RADHA CHURN and otheks April 6. _: (Defendants).* Judgment in rem — Mofussil Courts — High Court — Evidence. In a suit by E. C. against D., the widow of E. N., to set aside alienations by D. and to establish his title as reversionary heir to the property left by E. N., on the ground that E. N. had been adopted by J. L., deceased, and that on the death of E. N. without issue, the right accrued to E. C. as an agnate of J. L., it was found that E. N. had been adopted by J. L. and that E. C. was reversionary heir. In a subsequent suit by K. L. against E. C. for a declaration of his right as heir to E. N. and for possession of the property on the ground that E. N. had not been adopted by, but took the property by gift from, J. L., Held, that the judgment in the former suit was not admissible in evidence on the question of the adoption. Semble. — There are no judgments in rem in the Mofussil Courts ; and, as a general rule, decrees in those Courts are not admissible against strangers, to prove the truth of any matter directly or indirectly determined by the judgment, or bj' the finding upon any issue raised in the suit, whether relating to status, property, or any other matter (1). Eadha Churn sued Mussaraut Deokoonwar, the widow of one Earn Nariiin Singh, deceased, to set aside certiiin alienations made by her, and to establish his title as reversionary heir to the property left by Ram Narain, on the ground that Ram Narain had been adopted by one Jlioomuck Lall, deceased, and that on the death of Ram Narain without issue, the right accrued to Radha Churn as an agnate of Jhoomuck Lall. The defence was that Ram Narain had not been adopted by Jhoomuck Lall, but that he took the property under a deed of gift from Jhoomuck Lall, and consequently Radha Churn was not entitled as heir-in-rever- sion. Kanhya Lall presented a petition asserting his right as the son of the natural brother of Ram Narain. But the Court held that no order was requisite on his petition, and he was not made a party to the suit. The Court, on the 26th September 1853, found that Ram Narain bad been adopted by Jhoomuck Lall, and that Radha Churn was the rever- sionary heir. The judgment was affirmed on appeal. The present suit was brought by Kanhya Lall for declaration of his right to, and possession of, certain lands with mesne profits as heir to Ram Narain. * Eegular Appeals, Nos. 158 and 226 of 1866, from tlie decrees of the Judge of Tii-hoot dated tlie 12th March 1866. ' (1) See Mahima Chandra ChucJcerbvity v. Roykut, 11 B. L. K., 246, 247 ; see also Act I Rajkumar Chuckerbutiy, I B. L. E., A. C.,5; of 1872 s. 41. and Jogendro Deb Royhut v. Ftmindro Vnb FULL BENCH RULINGS. 663 Kanhya Lall alleged that Ram Naraiu obtained the property from jggy Jhoomuek Lall, his maternal ffrand father, by deed of gift i that Ram ~ . ° ' ■' b r Kanhya Lall Naram died leaving Deokoonwar his widow, and that, upon her death, v. the property descended to tlie pliiintiflf as the nephew and heir of Ram Chubn. Narain, Kauliya Lall being the son of Ram Naraiu's natural brother. The other plaintiffs claimed a portion of the estate by purchase from Kanhya Lall. The principal defendant Radha Cliurn, the plaintiff in the former suit, claimed to be entitled upon the ground stated in the former case. The Judge, on the 12th March 1866, held that the judgment in the suit of Radha Cliurn against Deokoonwar was a judgment inrem, and, therefore, as to the adoption conclusive against the present plaintiffs. The plaintiffs appealed to the High Court. The appeal came on for hearing before (Peacock, C.J., and L. S. Jackson, J., who were of opinion that the judgment in the suit by Radha Churn against Deokoonwar was not a judgment in rem ; but as their opinion was in conflict with the decision in Rajkristo Roy v. Kishoree Mohun Mojoomdar (1), their Lordships referred the following question to a Fall Bench : " Whether the judgment of the 26th September 1853 w.as admissible as evidence against the plaintiff; and, if so, whether it was conclusive, or merely prima facie, evidence against him." Mr. Peacock (Mr. Allan and 'Ba.hoos Kissenkishore Ghose, Dioarka- nath Milter, and Onoocool Chunder Mookerjee with him) for the appellants. Baboos Mohesh Chunder Chowdhry, Chunder Madhtib Ghose, Romesh Chunder Mitter, Peary Loll Roy, and Bamachurn Banerjee for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. (who, after stating the facts, continued), — The case has been fully argued before us, and we are of opinion that the judgment was not a judgment in rem, and that it was not admissible in evidence against the plaintiff. The petition of the plaintiff in the suit brought by Radha Churn having been rejected, the plaintiff was no party to that suit. (1) 3 w. R., 14. . 664 FULL BENCH RULINGS. 1867 The general rule was clearly laid dowa by Chief Justice DeGrey KAHHYAl.ki.ij ia the Duchess of Kingston's case (1) in answer to certain questions Eadha put to the Judges by the House of Lords. He said — " It is certainly HUBN. ixae^ as a general principle, that a traasactioa between two parties in judicial proceedings ought not to be binding upon a third ; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine " (and he might have added to cross-examine) "witnesses, or to appeal from a judgment he might think erroneous ; and, therefore, the depositions of witnesses in another cause in proof of a fact, the verdict of a jury" (or in this country of a Court) "finding the fact, and the judgment of the Court upon the facts found, although evidence against the parties, and all claiming under them, are not in general to be used to the prejudice of strangers. There are some exceptions to this general rule founded upon particular reasons, but not being applicable to the present subject, it is' unnecessary to state them. "From a variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true ', first, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties upon the same matter, directly in question in another Court" (or he might have added in another action between the same parties in the same Court) ; " secondly, t\\a,t the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a diflPerent purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." The principle that a judgment is not to be used to the prejudice of strangers was adopted from the Civil law, of which the following were maxims: that res inter alios judicata nullum inter alios prejudicium facit, or res inter alios acta alteri nocere non debet. That principle was not applicable to judgments in actions in rem. The exception of judgments in rem in the Civil law was no doubt the foundation of the exception in the English law. The question as to what is a judgment in rem was fully considered by Holloway, J., in Yarakalamma v. Anakala Narama (2). Although (1) 2 Sm. L. C, 6th edit., 679. (2) 2 Mad. H. C. Rep., 276. PULL BENCH RULINGS. 665 I cannot concur in the whole of HoUoway, J.'s reasoning, I consider igg; that the full investigation which the subject received at his hands Kanhya Lall in that case has been of great benefit in removing many erroneous Rabha impressions which previously existed. I concur with him entirely in Churn. the conclusion at which he arrived, viz., thut a decision by a competent Court that a Hindoo family was joint and undivided, oi' upon a question of legitimacy, adoption, partibiliiy of property, rule of descent, in a particular family, or upon any other question of the same nature in a suit i7iter paries, or, more correctly speaking, in an action in personam, is not a judgment in rem, or binding upon strangers, or, in other words, upon persons who were neither parties to the suit nor privies ; I would go further and say that a decree iu such a case is not, and ought not to be, admissible at all as evidence against strangers. I do not think that Mr. Smith's definition of a judgment in rem is accurate. But Holloway, J., has not, I think, attached sufficient importance to the words used by Mr. Smith — " which very declaration operates upon the status of the thing adjudicated upon, and, ipso facto, renders it such as it is thereby declared to be." Tliis would not be the effect of a finding upon a question of status in a suit m personam, though it might have been so under the Civil law in a suit in rem, not for the purpose of asserting a right against a particular person, but for the purpose of adjudicating upon the status. I do not agree with Holloway, J., in his remark at page 281 of his judgment, "that the efi'ect of a decree of every competent Court is to render the person or thing that which it declares him or it to be." A decree, according to the nature of it, may prevent particular persons, or the subjects to a particular Government, or, it may be, the whole world, from averring to the contrary. According to the Civil law a suit in which a claim of ownership was made against all other persons was an action in rem, and the judgment pronounced in such action wasa judgment J« rem, and binding upon all persons whom the Court was competent to bind ; but if the claim was made against a particular person or persons, it was an action in personam, and the decree was a decree in personam, and binding only upon the particular person or persons against whom the claim was preferred, or persons who were privies to them. This will be made more clear by referring to the note of Mr. Sandars upon s. 1, Book 4, Tit. 6, of the Institutes of Justinian, a section which is quoted by Holloway, J., in his judgment above referred to. He says : — " The first and most important division of actions is that into actions in rem and actions in personam, by the first of which we assert a right over a thing against ail the world, by the second we assert a right 666 FULL BENCH RULINGS. 1867 agiiiust a particular person (see lutroductioii, s. 61). Aud, accordingly Kanhta Lall speaking techaically, an action was called real when the formula in Radha which it was conceived embodied a claim to a thing without saying Chubh, fj.Q|^ whom it was claimed, and personal, when the formula stated upon whom a claim was made. If Titius said that a piece of land belonged to him, there was no necessity that the name of the wrongful occupier should appear in the formula ; at any rate not in the intentio, the part of the formula always considered characteristic of the actio. " Si paret Tifii esse rem ;" this was all; the question to be decided was, does the thing belong to Titius. It was only as a consequence of his proprietorship being established, that the wrongful occupier, whose name might appear in the condemnalio, was condemned to lose the possession. But in an action arising on a contract, the name of a person was necessarily introduced into the intentio. Titius could not merely say that a thing was owed to him ; he must add that it was owed by a particular person. There are indeed some cases, as, for instance, a deposit, in which the action may be equally well shaped with or without the insertion of the name of a particular person. There may either be a real action in which the plaintiff claims the thing, or a personal one in which he says that the depositary ought to give it to him. Whenever the action is made to rest on an obligation, it is personal, when on a right of propiielorship it is real." The case is made still more clear in para. 61 of the Inti'oduction. There Mr. Sandars says : — " His special interests prompt each man to claim, as against his fellows, an exclusive interest in particular things. Sometimes such a claim, sanctioned by law, is urged directly : the owner, as he is said to be, of the thing publishes this claim against all other men, and asserts an indisputable title himself to enjoy all the advantages which the possession of the thing can confer. Sometimes the claim is more indirect : the claimant insists that there are one or more parti- cular individuals who ought to put him in possession of something he wishes to obtain, or do something for him, or fulfil some promise, or repair some damages they have made or caused. Such a claim is primarily urged against particular persons, and not against the world at large. On this distinction between claims to things advanced against all men, and those advanced primarily against particular men, is based the division of rights into real and personal, expressed by writers of the middle ages, on the analogy of terms found in the writings of the Eoman Jurists, by the phrasesy«?-a in re mxAjura ad rem. A real right, snjus in re, or to use the equivalent phrase preferred by some later commentators, jus in rem, is a right to have a thing to the exclu- FULL BENCH RULINGS. 667 sioa of all other men. A ptfrsoual right, jus ad rem, or to use a much iggj more correct expression, jus in personam, is a right in which there Kanhya Lall is a person who is the subject of the right as well as a thing as its eadha. object, a right whicli gives its possessor a power to oblige another Churn, person to give, or procure, or do, or not do, soraetliing. It is true that in a real right the notion of persons is involved, for no one could claim a thing if there were no other persons against whom to claim it ; and that in a personal right is involved the notion of a thing, for the object of the right is a thing ivhich the possessor wishes to have given, procured, done, or not done." Besides actions in rem, which related to property, there were certain actions called actiones prajudiciales. Of these it is said in the Institutes, Book 4, Tit. 6, s. 13, that they seem to be actions in rem : such as those by which it is inquired whether a man was born free, or had been made free ; whether he was a slave, or whether he was the offspring of his reputed father. These actions no doubt were the origin of the rule laid down as to judgments on actions in which questions relating to status were determined. Mr. Sandars in his note to that sectioa says : — " The object of a prcBJudicialis actio was to ascertain a fact, the establishing of which was a necessary preliminary to further judicial proceedings. Such actions differ from actions in rem, because in an actio preejudicialis no one is condemned, only the fact is ascertained ; but tliey are said in the text to resemble actions in rem because they were not brought on any obligation, and because in the intentio, which Indeed composed the whole formula in this case, no mention was made of any particular person. Questions of status, such as those of paternity, filiation, patronage, and the like were most commonly the subjects of actiones preejudiciales, but were by no means the only ones. We hear of others." In Austin on Jurisprudence, Vol. Ill, p. 165, it is said : — "In case the child (or ward) be detained from the father (or guardian) the latter can recover him from the stranger by a proceeding in a Court of Justice, which, let it be named as it may, is substantially an action in rem Incase the slave be detained from his master's service, the master can recover him in specie from the stranger who wrongfully detains him." It is a mistake, I think, to call such actions actions in rem, they are strictly actions in personam. An action by a person alleged to be a slave, claiming to have it declared as against all men that he was a free man, was an actio prajudieialis in which the judgment would have contained a declaration upon the status. Great misunderstanding and error has been caused, as is shown by Holloway, J., from the use of the words "status" and "judgment 668 FULL BENCH RULINGS. igg7 in rem" in some of our Englisli text-books without miy precise defini- Kahhya Lall tio°> ^^^ indeed in some cases •without any accurate conception of Radha *'''^^'" nieoning. For instance, I have seen it stated that judgments Churn. declaring personal status or condition, as judgments of adultery, are conclusive upon all the world (1). What a judgment of adultery is, or Iiow adultery can be said to declare a personal status or condition, it is difficult to conceive. Possibly it means a judgment of divorce on account of adultery ; but if so, it is not a judgment in rem, or con- clusive upon all the world of the fact of adultery. It is unnecessary to consider more minutely the civil law upon the subject of judgments in rem or of actiones prcejudiciales ; it is sufficient to say that they were not in personam, and that tlie claims in them were advanced generally against every one, and not against particular individuals. Prom what has been said it will be readily seen there are no suits in this couniiy, with the exception of those in the High Court in the exercise of admiralty and vice-admiralty jarisdietion, which answer to the action in rem of the civil law, and none corresponding with the actiones prcejudiciales. "We have little to do with foreign judgments. Suits in the Exchequer for the condemnation of goods are not applicable to this country, and it is therefore unnecessary to refer to them. We have not as yet any suits here for divorce a vinculo matrimonii, so far as Christians are concerned, so that no question can arise as to the effijct of judgments in such suits (2). Decrees by Courts of competent juris- diction for the absolute dissolution of marriages are no doubt binding upon third parties. If a Court of competent jurisdiction decrees a divorce, or sets aside a marriage, between Mahomedans or Hindoos, it puts an end to the relationship of husband and wife, and is binding upon all persons that, from the date of the decree, the parties ceased to be husband and wife. This, in my opinion, is not upon the principle that every one is presumed to have had notice of the suit, as HoUoway, J., appears to think, for if they had notice they could not intervene or interfere in the suit, but upon the principle that when a marriage is set aside by a Court of competent jurisdiction, it ceases to exist, not only so far as the parties are concerned, but as to all persons. A valid marriage causes the relationship of husband and wife, not only as between tha parties to it, but also as respects all the world ; a valid dissolution of a marriage, whether it be by the act of the husband, as in the ease of repudiation by a Mahomedan, or by (1) Norton on Evidence, 2nd edit., p. 42. (2) See now Act IV of 1869, and Hay v, Gordon, 10 B. L. E., 301; and as to certain otlier marriages, see Act III of 1872, s. 17, FULL BENCH RULINGS. 669 the act of a Court competent to dissolve it, causes that relationship to igs? cease as regards all the world. The record of a decree in a, suit for ;; T divorce, or of any other decree, is evidence that such a decree was "• Radha prououuced; see the Ciises referred to in the notes to the Duchess of Chuus. Kingsto7i's case (1) ; and the effect of a decree in a suit for divorce a vinculo matrimonii is to cause the relationship of husband and wife to cease. It is coaclusive upon all persons that the parties have been divorced, and that the parties are no longer husband and wife ; but it is not conclusive, nor even primd facie, evidence against strangers that the cause for which the decree was pronounced existed. For instance, if a divorce between A and B were granted upon the ground of the adultery of B with C, it would be conclusive as to the divorce, but it would not be even prima facie evidence against C that he was guilty of adultery with B, unless he were a party to the suit. So if a marriage between Mahoraedans were set aside upon the ground of consanguinity or affinity, as for instance, in the case of a Mahomedan, that the marriage was with the sister of another wife then living, the decree would be conclusive that the marriage had been set aside, and that the relationship of husband and wife had ceased, if it ever existed ; but it would be no evidence as against third parties, for example, in a question of inheritance, that the two ladies were sisters. It is unnecessary to consider the principle upon which grants of probate and of letters of administration have been held to be conclusive upon third parties. It would throw no liglit upon the present question ; and the Indian Succession Act, No. X. of 1859, s. 242, points out expressly the effect w^hicli tliey are to have over property, and the exient to which they are to be conclusive. It is quite clear that tliere are no judgments in ran in the Mofussil Courts, and that, as a general rule, decrees in those Courts are not admissible against strangers, either as conclusive, or even as prima facie, evidence, to prove the truth of any matter directly or indirectly deiei mined by tlie judgment, or by theflndiiig upon any issue raised in the suit, whether relating lo status, property, or any other matter. If a judgment in a suit between A and B, tliat certain properly for wliich the suit was brought belonged to A as the adopted son of C, wore a judgment inrem, and conclusive against strangers as to the fact and validity of the adoption, the greatest injustice might be caused. For instance, suppose that a Hindoo, one of four brothers, should be entitled to a separate share cousistiLg of a large zemiuduri yielding an (1) 2 Sin. L, C, 6th edit,, 714, 41 670 FVLh BENCH RULINGS. 1857 annual profit of two lacs of rupees, and nlso of a small piece of land iu Kanhya Lall " tlistiict zemindari, and that upon his death without issue, and with- _ "■ out leavino; a widow, the surviving brothers as liis lieirs should enter CnuuN. into possession and sell the small piece of land, and that, afterwards, a person claiming to be adopted son of tlie deceased brother sliould sue the purchaser in the Munsif's Court to recover tlie laud so sold, upon the ground that he being tlie heir by adoption, the brothers of tlie deceased had no title to sell it. The purchaser miglit be a poor man without the means of procuring or pnying for the attendance of the necessary witnesses, or of making a proper defence lo the suit, and tlie claimant, without any collusion in establishing the alleged adoption, miglit succeed and recover the land. Moreover the purchaser might not liave the means to enable him to a|)peal. Now if this judgment were a judgment iVi ?'em and conclusive against the brothers as to the status created by the alleged adoption in u suit brought against tliern for the zemindari, they would liave no means of - defending their possession, however clearly they might be able to prove tliat there was no foundation whatever in support of ihe claim of adoption. Assume that tlie put chaser in the Munsif's Court was perfectly honest and bona fide, and ihat the Muusif'ti Court was one of competent jurisdic- tion, having regard to the situation and value of the property, and hold that tlie decree was a judgment in rem, and there would be no means of getting rid of the decree of tlie Munsif's Court : and thus the decree of a Munsif in a suit for land within liis competency would finally and conclusively determine the title to the zemindari against persons who might never even have heard of the suit in Ihe Munsif's Court whilst it was going on. There is no ground upon which it could be held tliat in sucli a case it could be admissible, merely as prima facie evidence. It must eilher be conclusive as a judgment ira rem, or fall within the general rule, and not be admissible at all upon the question of adoption. If it could be admitted even as prima facie evidence, it miclit work tlie greatest injustice by throwing the burthen on tlie defendants and compelling thera to prove a negative, viz., that the claimant had not been adopted, and tliis probably after many years from the time at which the ado|)tion is alleged to have been made. The faet is that the Munsif in such a case would be competent to try (he rights of the parties to the land claimed, and incidentally to determine the question of adoption. But ho would have no power to entertain a suit merely for the purpose of determining a question of status. We have no hesitation in answering both the questions in the negative, and iu stating that the judgment of the 26th September, • PULL BENCH RULINGS. 671 1853, vfns not admissible, eiiher a,a prima facie ov conclusive evidence, jggy against the plaintiff upon the question of adoption. Kahhya Lall The decision is quite in nccordniice with the decision of the Privy padha Council in the Itaja of Shivagunga's case ( 1 ). In that ease their Lord- Chuen. ships remarked that a "judgment is not a judgment in rem, because in a suit by A for the recovery of an estate from B, it has determined au issue raised concerning the status of a particular person or family. It is clear that this particular judgment was nothing but a judgment i7iter partes." In the case of Rajkristo Roy v. Kishoree Mohun Mojoomdar (2), in consequence of which this casd was referred to a Full Bencli, tlie Judges, referring to the Shivagunga case (1) say : " In G-oodeve on Evidence, adoption, like marriage and bastardy, is expressly mentioned as one of the cases in which a judgment would be final and conclusive. The reasoning of their Lordships of the Privy Council in the Shivagunga case (1) seems to point to the same conclu- sion." So far from this being the case, the decision of the Privy Council appears to us to be in direct opposition to the rule laid down by Mr Goodeve (3). The case will be sent back to the first Bench which referred it (4). fl) 9 Moore's I. A., 539, 601. adoption. For the absurdity of holding that (2) 3 W. R., 14. A was at one and the same time » bastard (3) In the first edition of his work, p. 289, andnotabastard, adopted and not adopted, Mr. Goodeve, after quoting Smith's defini- -is manifest.' " tion of a judgment in rem, says : " Thus, (4) The views expressed by the learned were it a question of marriage or of adop- Chief Justice in the above judgment have tion, tlie validity or invalidity of the mar- lately been adopted by the Legislature, as riage or of the adoption would be what is appears from the following passage in the called its status." A little lower Mr. Draft Deport of the Select Committee on Goodeve observes : " The practical view of the Indian Evidence Bill, which subsequent- tlie subject is thus well put by Mr. Norton : Jy passed into law as the Indian Evidence — ' Certain classes of judgments are, how- Act (I of 1872): " For the sake of simpli- ever, conclusive upon all the world : this cit}', and in order to avoid the difficulty of from necessity, and also from regard to defining or enumerating judgments in rem, general convenience. Such for instance are we have adopted the statement of the law judgments ira rem: judgments declaring per- by Sir Barnes Peacock in Kanhya Loll v, sonal status or condition, as judgments of Radha Churn." — See also next case, bastardy, adultery, and in this country, of 672 FULL BENCH RULINGS. Before Sir Barnes Peacoch, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. 1867 GUNGADHUR ROY (Plaintifi-) v. WOOMA SOONDEREE DASSEE .April 6. AND OTHEKS (DEFENDANTS).* Judgment in rem — Evidence. The plaintiff sued to set aside a decree wliicli had been obtained against a co-sharer on a mokururee pottah. The decree, which declared the pottah to be a forgery, was in a suit to which the plaintiff was no party. Held, the decree did not operate as a judgment in rem. In this ease the plaintiff sued to set aside a -decvee which had been obtained by tlie defendants against a co-sharer of the pliiintiff, wlierebj it was declared that a certain mokururee pottah, under whicli the plaintiff and his co-sharer held a certain piece of land, was a forgery; and for a declaration oftlie plaintiff's rights and interests under the pottah. The plaintiff was not a party to the suit in wliich the decree was passed. The Judge, on appeal, held that the decree in the former suit '■' wa3 a judgment in rem regarding this mokururee pottah between a CO- sharer of the present plaintiff and the present defendants themselves; and as it was not shown eiiher that the Court whicli gave the judgment had DO jurisdiction, or that it was obtained by fraud or collusion, no evidence could be admitted in the civil suit for the purpose of disproving the facts adjudicated. The judgment was conclusive evidence, therefore, against the parties who were actual litigants in the former case, as well as against all others." He accordingly refused to enter into the merits of the case, and dismissed the plaintiff's suit. The plaintiff appealed to the ?Iigh Court. The appeal was heard before Kemp and Mnrkby, JJ., who referred the case for the opinion of a Full Bench. In referring the case their Lordships liiade the following remarks : — Maekbt, J. (after stating .the facts). — The paint to be now considered is whether the lower Appellate Court is right in this view. On the one hand, the vakeel for tlie appellants has produced a decision of this Court — Dost Mahomed Khan Chowdhry v. Soolochana Dalia (1), in * Special Appeal, No. 2622 of 186G, from a decree of the Judge of Eeerbhoom, dated the 28th July 1866, affirming a decree of the Principal Sudder Ameen of that district, dated the 9th February 1865. (1) 1 W. E., 270. FULL BENCH RULINGS. 673 wliich it appears that one Abbott, the liolder of aa eiglit-anna slmre ige? WOOMA SoONDEItEE Dasseb, in a putnee, having attempted to enhance the rents of the holders of Gungadhur the laud, was met by a claim of talookdaree rights on the part of the defendants, wliich they succeeded in establisliing. Subsequently, other persons, who it appears did not claim through Abbott, sued the same defendants for the purpose of enhanoing the rents of the same lands, when the defendants set up the same talookdaree rights. This Court held, on appeal, ia the latter case, that the decision in Abbott's suit was not conclusive as to the evidence of the talookdaree rights. On the other hand, the respondents have relied on a decision of the 9th August 1865, passed in the case oi Khoka Koonwur v. Jtigoo (I). That suit uliimately resolved itself into a suit to set aside, an alleged mokururee pottah : two of the plaintiff's co-sliarers had previously brought a Suit to set aside this mokururee pottah, in whieli they succeeded. This Court held that the mokururee pottah having been set aside by a judgment, as it ■were, in rem, in a case between the shareholders of the plaiiiiiif and the defendant, it was for ever inoperative against the plaintiff also. I entirely concur in the earlier judgment to which I have referred. I think it is impossible to consider a judgment pronounced under such circumstances as a judgment in rem. 'By a judgment in rem is meant a judgment binding against all the world, the words "in rem" being a phrase borrowed by modern civilians from the Roman law, and signify- ing general as opposed to special ; as in the following passages : prtstor hoc edicto generaliler et in rem loquitur, nee adjicit, a quo ^estum — Dig. Lib. iv, tit. 2, s. 9, § 1 ; specialiler exprimendum est de cujus dolo quis quceratur non in rem — Lib. xliv, tit. 4, s. 2, § 1, and if this be a judgment in rem, it would be binding, though all the parties, both plaintiff and defendants, were different. The reasoning founded on the form of the decree, that by it a particular document lias been declared to be spurious, and therefore that it is a judgment passed upon, what is sometimes called, the status of the thing itself, appears to me to originate in a misconception of the phrase in rem. A judgment in rem no more means a right of or concerning a thing than jus in rem means a right of or concerning a thing ; in both expressions the words " in rem" have precisely the same meaning, whicli may be best paraphrased by the words, " availing against all the world." The question whether or no the proceedings in the former suit against the plaintiff's co-sharer are evidence in this suit, does not now arise. (1) 3W. E,,192. 674 FULL BENCH RULINGS. 1867 The plaintiff has mistaken his rights in Ihis case in asking to have Gdngadhuu tlie former decree reversed. That cannot be done in this suit : but he v. ouglit to have his rights declared under the mokururee pnttal), if they WooMA exist; and Itliinkthe suit ought to be remanded to try the validity Dassee. of the alleged mokururee pottah and to declare the plaintifi's right accordingly. In consequence, however, of the conflicting decision in Khoha Koonwur v. Jugoo (1), we think this special appeal ought to be referred to the decision of a Full Bench. The point upon which we differ from the decision referred to is in considering that the judgment in that case was a judgment in rem, and as sucli binding and conclusive on persons not parties or privies thereto. Kemp, J. — I concur with my learned colleague. I was one of the Judges who passed the decision in Dosl Mahomed Khan v. Soolochana Dabia (2) alluded to in my learned colleague's judgment. Baboo Tarruchnath Sen for the appellant. Biiboos Kissen Kishore Ghose and Jugodanund Mookerjee for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. (after stating the facts). — The Division Bench con- sidered that the judguient was not a judgment in rem, but in conse- quence of the conflicting decisions of the High Court, dated 9th August 1865, in the case of Khoha Koonwar v. Jugoo (1), referred the question to a Full Bench. We are of opinion that the judgment was not a judgment in rem, and was not admissible as evidence against the plaintiff : see Kanhya Lall V. Radha Churn (3), decided to-day by this Bench. ^ In the case cited, the Court held that a mokururee pottah, which had been set aside in a suit brought by two shareholders in the estate against the defendant, would be inoperative against the plaintiff, who was also a co-sharer in the estate. It was said that the judgment was, "as it were, in rem ;" but, as I understand the case, the Court merely held that a mokururee under which the defendant claimed, having been wholly set aside in a suit against him, could not be set up against a third (1) 3 W. R., 192. (2) 1 W. K., 270. (3) Ante, p. 662. FULL BENCH RULINGS. 675 shareholder, although the former suit was brought by only two of the shareholders, and the third shareholder was not a party. But this is a very different case; for it must be remarked tliat the defendant in that case was a party to the former suit in which the mokururee under which he claimed hiid been set aside. Here the plaintiff who cliiimed under the mokururee was no party to the suit in which the mokururee under which lie chiimed was set aside. The case will go back to the Bench which referred it to us, in order that the appeal may be finally disposed of. 1867 QUNGADHUB liof V. WOOMA soondiskee Dassee, Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. RAMBUX CHITTANGEO v. MODOOSOODHUN PAUL CHOWDHRY AND OTHERS.* Act XI 0/ 1865, ss. 6, 12 — Small Cause Court — Jurisdiction — Suit for Contribution bif co-sharer who has paid whole Gooernment Revenue. Where one o{ several co-sharers in an estate paying revenue to Government has paid the revenue due upon the whole estate to prevent it from being sold, a Small Cause Court has no jurisdiction to entertain a suit brought by him against the other co-sharers for contribu- tion (1). The question whether a suit for contribution will lie in the Small Cause Court was referred by the Judge of the Small Cause Court of Kislmagliur for the opinion of the High Court upon tlie following case : — " The plaintiff, a co-sliarer in an estate pitying revenue to Government, deposited under s. 9, Act XI of 1859, the revenue due upon tiie whole estate to save the property from being put up for sale. He now sues his co-shiirers for contribuiiou. Upon a reference to the High Court by the Judge of the Small Cause Court of Hooghly, it was ruled, in September last, that in claims of this sort tlie Small Cause Court had no jurisdiction. The case of Modkoosoodhun 3Iozoomdar v. Bindoobashiny Dossee (2) is quoted, at page 17, Small Cause Court Cases, Revenue, Civil, and Criminal Reporter, volume II. I have ventured, however, to refer the matter again for the High Court's decision, and I hope the following reasons may be considefed sufficient to justify me in adopting the unusual course of submitting a second reference upon a point wliich has once been decided. It ajipears from the printed report that Counsel were not employed in the case, and the learned Judges had, therefore, merely before them tUe letter of * Eeference from the Small Cause Court of Kisnaghur. (1) See Khema Debea v. Kumolakant Bukshi, 10 B. L, K., 259 n. (2) 6 W. K., Civ. Eef., 15. 1867 April 15. 676 FULL BENCH RULINGS. iggy the Small Cause Court Judge upou which to base tlieir decisiou, and jj^j^j^^^ it is not improbable to suppose that if the case had been fully argued Chittangko before them they might liave arrived at a different conclusion. I pro- MoDoosoo- pose, therefore, to set briefly before the Court tlie reasons which induce Chowdiiuy, me to think that I have jurisdictioQ to entertain the present suit. " The plaintiff is a co-sharei' in an estate paying revenue to Govern- ment; and under s. 9, Act XI of 1859, he was authorized to deposit in the Collectorate the amount which his co-sharers had neg- lected to pay. The payment was not an officious payment, but was made to save his own interest in the estate. Of this payment, the defendants, his co-sharers, have reaped the benefit, for, in consequence of the payment of the revenue by the pluiutiflf, the entire estate was preserved from sale. Now, under s. 6, Act XI of 1865, the Small Cause Court can take cognizance of claims for money due, whether on bond or other contract, aud the question is whether the word "contract," is sufficiently wide to admit of the present claim being included within it. " There are many cases in which no express contract is made ; but where the law, from the relation in which the individuals stand to one another, implies a contract, where, for instance, the surety pays the delit of his principal, the law implies a contract that the principal will reimburse the surety; or again, where a joint contractor has satisfied the whole demand, the law implies a contract on the part of his fellow contractors to contribute their respective quotas of the joint liability. Upon the same principle, it is laid down that where one of two sharers in a farming lease takes upon himself to collect the rents, the law implies a contract on his part to pay to iiis co-sliarer the amount that is due — Macphersou on Contracts, 106. Now, cases of this description are daily tried by Small Cause Courts, for instance iu Joynarain Manjee v. Muddoosoodun Gorait (1), it was held that plaintiff who, with the defendant, was jointly entitled to the profits of certain lands could sue in the Small Cause Court for the recovery of the excess profits appropriated by the defendant. An exacily similar decisiou was given iu the case of Kandaree Joardar v. Manik Joardar (2). Now upon what principle weie these cases held to be cognizable by the Small Cause Court ? They must full under the head of money due on bond or other contract, for there is no other clause iu the Small Causa Court Act under which they could fall. But iu none of the case quoted was there any express contract, but such was the relation of the (I) 2 W. E.,.I34. (-2) Suth. S. C. C. Eef., 23. PULL BENCH RULINGS. 677 parties to each other, that the liiw, without the existence of a contract, iggy implied a contract. The present case, it appears to me, is of exactly eambox an analogous nature. Under s. 9, Act XI of 1855, a co-sharer Chittahqko in a joint estate is permitted to protect his own interest in the joint Modoosoo- DHUN Paul property by paying the revenue due upon the whole estate : and the Chowdhky. law enacts that such a payment is to be considered a debt recoverable from the joint sharers iu the estate; in other words, the law implies a contract on the part of the joint sharers to repay the sura which a joint sharer has paid on their account and for their benefit, and as the money paid is recoverable under this implied contract, the Small Cause Courts have, in my opinion, jurisdiction to entertain the claim. Indeed, the case of Boyhunt Nath Bhooya v. Ram Nath Bhooya (1) is exactly similar to the present case. In that case tlie plaintifi" sued his co-sharers for contribution, and though the reference was made merely on a question of limitation, yet it is but reasonable to suppose that if the lenrned Judges who decided that reference had been of opiuion that the Smtili Cause Court had no jurisdiction in the matter that they would have pointed out to the Small Cause Court Judge that he was entertaining a case which, under the law, he had no jurisdiction to try, " The question, therefore, which is now respectfully submitted for the High Court's consideration is. Whether a joint sharer in an estate paying revenue to Government, who has paid the revenue due upon the whole estate, can sue in a Small Cause Court his co-sharers for contribution." In consequence of the decision in Ram Money Dossia v. Pearee Mohun Mozoomdar (2) being opposed to the rulings in Modoosoodhun Mozoomdar v. Bindoobashiny Dossee (3) and Brommoroop Goswamee V. Prannath Chowdry (4), the question submitted was referred by Peacock, C.J., for the opinion of a Full Bench. The opinion of the Full Bench was delivered by Peacock, C.J. — The question which has been referred by the Small Cause Court Judge in this case is {reads). It is Slated that the plaintiff, a co-sharer, deposited the revenue payable upon the whole estate under s. 9, Act XI of 1859. Probably this is a (1) 4W. R., S. C. C. Eef,,9. (3) 6 W. R., Civ. Kef., 15. (2) 6 W, K., 325. (4) 7 W, K., 17. 42 678 FULL BENCH EULINGS. ]867 mistake, and s. 15 was the section intended. S. 9 applies only to ~ deposits made by a person not being a pi'oprietor of the estate, or share Chittakgeo of an estate, in nrrenr, and it gives an action to the depositor in certain V. MoDoosoo- cases. It is clear that an action founded upon that section could not Chowdhry. be brought in the Small Cause Court. It is founded on the statute, and not upon contract, express or implied. We will therefore consider the question propounded without reference to the fact alleged that the money was deposited under s. 9. No apology was due from the Judge of the Small Cause Court for respectfully laying before the High Court the reasons which induced him to think that he had jurisdiction to entertain the suit, notwithstand- ing a contrary decision of the High Court which is referred to in his judgment: but we think that the Judge ought not to have assumed that, if that case had been argued by Counsel, the Court would probably Lave arrived at a different conclusion. There can be no doubt that the Court derives great assistance from a careful and well considered argument of a learned and experienced Counsel, but it ought not to be assumed that such arguments are necessary to enable the Court to arrive at a sound conclusion. When a case comes before the Court for adjudication, whether it is argued by Counsel or not, the Court ought to give it full and careful consideration. They ought to ascertain accurately what are the facts of the case, and to apply their own knowledge of the law to the facts so ascertained, and, if the law ia doubtful, to search, if necessary, into the authorities before they pronounce a decision. We think that the decision referred to by the Judge of the Small Cause Court — Modoosoodhun MozoomdarY. Bindoohashiny Dossee(l) — is correct, viz., that a suit for contribution under the circum- stances stated is not maintainable in the Small Cause Court. That decision was brought to the notice of the First Bench in another similar case, and after full consideration it was uplield and acted upon ; see Brommoroop Goswamee v. Prannath Chowdry (2). At the time when the last mentioned case was determined, I was not aware of a case in which a different opinion had been acted upon by another Bench. The case of Ram Money Dossia v. Pearee Mohun Mozoomdar (3) had not then been reported. In like manner when that case was decided, the Judges who determined it were not aware of the previous decision of Modoosoodhun Mozoomdar v. Bindoo- (I) 6 W. R., Civ. Eef., 15. (2) 7 W. E., 17. (3) 6 W. R., 325. FULL BENCH RULINGS. 679 hashiny Z>os5ee (1) above meutioned. The case had piobiiblj not been igg? reported at that time. In the lost mentioned case it was held that a " Eambux claim for money, not exceeding Rs. 500, as contribution on account Chittangeo of revenue paid by one shareholder for the whole estate in order to Modoosoo- save the estate from sale for arrears, is a claim for money due under Chowdhky, an implied contract, and is therefore cognizable by a Small Cause Court. In consequence of the above conflicting decisions, the question has now been referred to a Full Bench. By Act XI of 1865 (the Mofussil Small Cause Courts Act), s. 6, claims for money due on bond or other contract, or for damages, when the debt or damage does not exceed in amount the sum of oOO rupees, are (subject to certain exceptions), cognizable in the Courts of Small Causes: and by s. 12, "no suit cognizable by such Court can be heard or determined in any other Court having jurisdiction within the local limits of the jurisdiction of such Court of Small Causes." This suit is not one for damages within the meaning of the section above referred to. One must assuihe that there was no express contract, as there is no mention of one, and the only question is whether there was an implied contract for contribution. It has been held by some of the Common Law Courts in England that a cliiim for contribution among sureties is founded upon implied contract ; see the case of Kemp v. linden (2). But it must be remarked that the Small Cause Courts in the MofFussil are bound to adjudicate according to the law which is administered in the other Courts of the Mofussil. In those Courts the rights of parties are to be determined according to the general principles of equity and justice, without any distinction, as in England, between that pariial justice which is administered in the Courts of Law, and the more full and complete justice for which it is frequently necessary to seek the assistance of a Court of Equity. The rules, and I may add the ficiions, which have been in many cases adopted by the Common Law Courts in England, for the purpose of obtaining jurisdiction in cases which would otherwise have been cognizable by the Courts of Equity, are not necessarily to be followed in this country where our aim is to do complete justice in one suit. It is not necessary for us to imply promises or requests, merely because they would be implied under similar circumstances by the Common Law Courts in England in cases in which, but for such implication, they would probably have no jurisdic- tion, and, especially where we find that the Courts of Equity and the (1) 6 W. R., Civ. Kef., 15. (2) 12 M. & W., 421. 680 FULL BENCH RULINGS. 1867 Courts of Lnw are in conflict upon the subject of such implications. rambux ^ ii&ve generally found that when fictions are resorted to, uncertainty Chittangeo ami confusion are the consequences. M°ifN°PAut ^^ Bering v, The Earl of Winchelsea (1), it was held that where Chowdhey. several sui-eties are bound by diflferent instruments, but for the same principal, and for the performance of the same engagement, and one of the sureties is compelled to pay the whole amount, he may recover contribution from the others. It was admitted that if the sureties had been bound by one bond there must have been contribution ; but it was contended that in the case of one bond, the liability depended upon contract and privity amongst the sureties, which did not exist in the case of separate bonds ; that where there were separate bonds, the case admitted of the supposition that the sureties were perfect strangers to each other, that each of them might be ignorant of the others and of their engagements ; that the undertakings were perfectly distinct, and witliout any connexion with each other ; and that no contract amongst the sureties could be implied. But Lord Chief Baron Eyre held that the obligation to CQptribute did not depend upon contract. He said, "If we take a view of the cases in law and equity, we shall find that con- tribution is bottomed and fixed on general principles of justice, and does not spring from contract, though contract may qualify it." Again, he says: "In Sir William Harbet's case (2), many cases of contribution are put and the reason giv»en in the books is that in csquali jure the law requires equality : one shall not bear the burden in ease of the rest, and the law is grounded in great equity. Contract is never mentioned." In Stirling v. Forrester (3), Lord Redesdale says, " The principle established in the case of Bering v. The Earl of Winchelsea (1) is universal, that the right and duty of contribution is founded in doctrines of equity. It does not depend upon contract." Cases of average rest upon the same principle ; and so in the case of land descending to several co-parceners subject to a debt, if the creditor proceeds against one of the co-parceners, tiie others must contribute. As regards contribution, the application is at law in many cases very different from what it is in equity. If there are several sureties, and one of them becomes insolvent, and anotiier pays tlie debt, the surety who pays cannot at law recover more from the solvent sureties than their shares wiiich they would have recovered if all the sureties were solvents. Thus, if there are four sureties and one is (1) 1 Wh. & Tu. L. C, 89 ; S. C, 2 B. (2) 3 Co., U 6, &P-.270. (3) 3 Bli., 575, at p. 590. FULL BENCH RULINGS. 681 insolvenf, a solvent surety wlio pays tlie whole debt can recover only jggy one-fourth part thereof, and not a tlih-d part from each of the two r solvent sureties, bat in a Court of Equity he would be entitled to recover Chittangeo one-third part of the debt against each of them, for in equity the Modoosoo- insolveni'p share is apportioned among all tlie other solvent sureties, cqowdhry. A similar rule applies to other cases of contribution. So if one of the sureties die, the remedy at law is only agiiiust the surviving parties for their respective proportions, whereas in equity contribution may be enforced against the representatives of the deceased sureties ; see Story's Equity Jurisprudence, ss. 496 and 497. We thiuk that, according to the law as administered in the Mofussil, the obligation to contribute is not founded upon contract, in the absence of an express contract ; and that no contract can be implied on the part of co-sharers of an estate to contribute towards the payment of the Government revenue. Further, we are of opinion that there is no implied contract for contribution on the part of sureties, any more than there is on the part of persons who are liable by law to contribute to general average. Imagine the difficulties which would arise if every person, liable to contribute to general average in respect of goods tlirown overboard at sea, were liable to be sued in a Small Cause Court in the Mofussil within whose jurisdiction he might be residing. Similar difficulties might arise in cases of contribution claimed against sureties ; see Story's Equity Jurisprudence, ss. 490, 491, 492, 493 and 498 ;— or amongst co-shareholders in an estate. For instance, in a case in which the estate of a Mahomedan has upon his death descended to numerous relations, — is each person said to be entitled to a shai'e (o be sued separately in the Small Cause Court, and compelled to pay contribution in respect of a share which may ultimately, in a suit in the Civil Court between the claimauis to til's estate, turn out not to be hia ; and this from time to time as often as the Government revenue falls due, pending the suit in the Civil Court for the adjustment of the shares ? Cases may be supposed in which it might be necessary amongst Hindus to try a question of adoption, before it could be ascertained whether a particular individual was a shareholder or not, or what share he was entitled to. Are all these questions to be tried by a Small Cause Court deriving its jurisdiction from the implication by law of a promise which never .existed in fact, and was never in the contemplation of the parties concerned? And is this jurisdiction of the Small Cause Court to oust the jurisdiction of the ordinary Civil Court having jurisdiction within the local limits of the Small Cause Court, although it may be necessary 682 FULL BENCH RULINGS. 1867 V, MODOOSOO- DHUN Paul Chowdhry. to resort to such Civil Court for tiie purpose of obtaining complete Eambux justice? lu Cornell v. Edwards (1), Lord Eldon said it was too Chittangeo latQ ^Q JjqJj tjj^j; j^Q action for contribution could not be maintained at law, though neither the insolvency of the priucifials, nor of any of the sureties, was proved : but in that case, in which there were six sureties, he held that at all events the plaintiff could not be entitled to recover at law more than one-sixth of tlie whole sum paid. He said that he had conversed wltli Lord Kenyon upon the subject, who was also of opinion that no more than an aliquot part of the whole, regard being had to tlie number of co-sureties, could be recovered at law, though if the insolvency of all the other parti(!s were made out, a larger proportion miglit be recovered in a Court of Equity. In the note to that case it is said that Lord Eldon also added a doubt of his own, whether a distinction might not be made between holding that an action at law is maintainable in the simple case where there are but two sureties, or where the insolvency of all the sureties but two is admitted, and the insolvency of the principal is admitted, and holding it to be maintainable in a complicated case like the case then before the Court, the insolvency of some of the sureties being neither admitted nor proved, and where the defendant, after a verdict against him at law, might still remain liable to various suits in equity witli each of his other co-sureiies, and where tlie event of the action could not deliver him from being liable to a multiplicity of other suits founded upon his character as a co-surety. If a contract is to be implied, it is necessary to ascertain what is the conlract which is to be implied : and is a contract to be also implied if the co-sharer expressly request the other not to pay his proportion of the revenue ? Is the contract which is to be implied a contract such as the common law in England would have implied^ or a contract which would create an obligation equal to that which the Courts of Equity in England would enforce ? that is to say, is it a contract by each contri- butory that he will pay his proportion only, or that he, and, in case of his death, his representatives, will make goed his own share, and will also bear his proportion of any loss which the insolvency of any other co-contributory may occasion ? If we are to follow the law of England as laid down by the Common Law Court?, the contract in the case of sureties would be limited to the surety and to his own share. But still, if the general principles of justice and equity, as adminis- tered in England, are to be enforced, the representative of a deceased (1) 2 B. & P., 268. FULL BENCH RULINGS. 683 surety must make good the pioportion of the deceased, and in case of I8fi7 the insolvency of one or more sureties, those who are solvent must Rambux make good their proportions of the shares of those who are insolvent. ^'^"■^;^'"^'=° If we are to hold that there is a contract, such as would be implied in ??"™''p°°: I- DHUN irAUL England, and nothing more, complete justice cannot be done by a Small Chowdhky. Cause Court in the case of death or insolvency, but further proceedings will be necessary in the ordinary Civil Court in order to compel the representative to pay the proportion whicli the deceased ought to have paid, or to make a solvent surety bear Lis proportion of an insolvent surety's share. Again, if there are several contiibutories, are they to be sued in the Small Cause Court jointly or separately upon the contract wliich is to be implied ? Lord Eldon in one case says, they may be sued separately (1), I would go further and say that they cannot be sued jointly. If there is a contract at all, it cannot be a joint contract ; for if there is a joint contract, each of the contribulories would be liable, not only for his own share, but for the shares of the other contributories. They cannot be sued jointly iu the Small Cause Court, unless the contract is joint, for the jurisdiction depends upon there being a contract. They might be sued jointly in the ordinary Civil Court, for in that Court the obligation is held to arise not from contract, but from general principles of equity, and in such suit the shares in which they are to contribute can be adjusted, and the several amounts for which they are liable can be decreed against them separately, according to their several liabilities — Bama Soonduree Debia v. Anund Moyee Delia (2). In that case it was held, in accordance with former rulings of the Court, that a decree for contribution cannot pass against the contributories jointly. In one of the cases which has been referred to us (3) twenty-three persons were sued for wrongly constructing a iMnt? and catching fish. A decree was obtained against them for Rs. 204-8 annas, and the amount was levied upon one of them. He, after deducting Rs. 8-14-6 as his one-twenty-third share of the amount decreed, sued the other twenty-two in the Small Cause Court for Rs. 195-9-6, being the remaining twenty two twenty-thirds of the amount decreed. If he is entitled lo contribuiion by virtue of an implied contract, it would be necessary in such a case to determine whether the twenty-two sureties contracted with the one who paid the decree to pay him twenty-two twenty-thirds of the amount which he paid, or whether each surety promised to pay one twenty-third.- If the joint action can be maintained upon tlie ground that (1) In Craythorne v. Swinburne, 14 Ves., 160, at p. 164. (2) 3 W. E., 170. (3) Post, p. 867. 684 FULL BENCH RULINGS. 1867 there was a joint contract, the decree in that suit will be against the jj^j,3yjj twenty-two defendants jointly, and the amount decreed in that suit Chittangeo foi- contribution may be levied against the property of any one of MoDoosoo- the twenty-two defendants. Suppose it be levied against one only, he DHON Paul ° Chowdhry. Will have to sue the others ; and if he can deduct his one twenty- third share, and sue the other twenty-one jointly for the remaining twenty-one twenty-thirds, as he and the others were sued for the twenty- two twenty-thirds, he will recover the twenty-one twenty-thirds against the defendants jointly. The amount may be levied upon one of them, and he in his turn may sue the remaining twenty to recover twenty- twenty-thirds, and so on ; and fresh suits may be brought until each of the twenty-three defendants in the original suit has paid his pro- portion ; and thus before the last suit is at an end, the last defendant may have been a co-defendant in twenty-two different actions for contri- bution arising out of one payment of a joint decree. It may so happen that of the twenty-two defendants in the first action for contribution ten may be insolvent : in that case, if the amount of the joint decree against the twenty-two for the twenty-two twenty-thirds be levied upon one of them only, he will be unable, in consequence of the insolvency of the others, to get back more than eleven shares. Thus the plaintiff who first satisfied the decree will, in effect, pay only one share, i.e., twenty-three shares minus twenty-two shares recovered back, whilst the defendant who satisfied the decree in the first suit for contribution will, in effect, pay eleven shares, viz., his own share and those of the ten insolvent coutributories, from whom he will be unable to recover any portion of the amount paid. Is he then to resort to the Civil Court against the defendant who first sued for contribution, in order to compel him to contribute his proportion of the amount due from the insolvent contributor ? It would be a violation of every principle of equity and justice that, of two solvent defendants, one should pay only one twenty-third, and the other eleven twenty-thirds of the whole amount; but this will be the effect of implying a joint contract. On the other hand, if separate contracts only be implied, the defendant who satisfied the first decree will in effect have to pay eleven twenty- thirds, and each of the other solvent defendants only one twenty-third, for he will be unable to recover back the ten twenty-thirds paid for the ten insolvent defendants. Besides this, if separate suits are to be brought on separate implied con- tracts, the evil pointed out by LordEldonin Craythorne v. Swinburne (1) (1) liYes., 160. FULL BENCH RULINGS. 685 will arise, viz., the multiplicity of suits, whieli will be necessary every ise? time a fresh paymuot of Goverameot revenue is made. Kameux Tiie truth is there is no implied contract, either joint or several, „. for contribution. The piiyment of revenue by one shareholder is made, ^i*^n°°Paul not at tiie instance or at the request of the others, or with their consent, Chowdhry. but to save the estate from being brought to sale for arrears. In some instances it may be made contrary to express directions. lu such cases there is an obligation to contribute, but surely not arising from an implied cootract. The duty of contributing is caused not by any conveniiou or agreement between the share holders, but arises from the principles of justice, which require that one shuU not bear the whole burthen in ease of the rest, and that all the co-sharers shall bear the burthen in proportion to their respective shares. These shares and the amounts to be contributed may be ascertained iu one suit in the ordi- nary Civil Courts, but not in the Small Cause Courts: and iu the case of sureties, the principal may be joined as a co-defendant, and ordered to indemnify the sureties ; and in case of the insoWeucy of any of the sureties, the shares to be contributed by those who are solvent will be equitably adjusted. The obligation arises from what in the civil law was described as a quasi-contract. Pothier in his treatise on Obligations, Parti, Chapter I, Section 2, says: "In contracts it is the consent of the contracting parties which produces the obligation ; in g'^a^e-contracts there is not any consent. The law alone, or natural equity, produces the obligation." They are called quasi-co'atracts, "because without being contracts, and being in their nature still further from injuries, they produce obligations in the same manner as actual contracts." In Austin on Jurisprudence, p. 133, it is said : " strictly, g-i^asi- contracts are acts done by one man to his own inconvenience for the advantage of another, but without the authority of the other, and consequently, without any promise on the part of the other to indemnify him, or reward him for Lis trouble. An obligation arises, such as would have arisen had the one parry contracted to do tlie act, and the other to indemnify. Hence, the incident is called a ' ^wasi-contract,' e. e., an incident iu consequence of which one person is obliged to another, as if a contract had been made between them. But g-waM-contract seems to have a larger import, denoting any incident by which one party obtains an advantage he ought not to retain, because the retention would damage another, or by reason of which he ought to indemnify the other. The prominent idea in quusi-contTa,ct seems to be an undue advantage would be acquired 43 686 FULL BENCH RULINGS. 1867 ^y '1'^ obligor, if he were not compelled to relinquish it or to Rambux indemnify ." Again at p. 138, under the heading Tendency to Chittangeo confound tacit contracts with quasi-contracts, Mr. Austin says : " Thia MoDoosoo- confusion is more likely to arise amongst English lawyers than others, DHUN Paul •' a o j Chowdhky. on account of their wanting a generic name (which, bad as it is, the Rcimans have) for marking this sort of obligatory incidents." The learned author of Ancient Law has also pointed out very clearly the dislinciion between implied contracts and (^wasi-contracts, and has shown that a quasi-aouivixot is not contract at all (I). He says: " The part of Roman law wliich has had most extensive influence on foieign subjects of inquiry has been the law of obligation, or, what comes neiiily to the same thing, of contract and delict. The Romans themselves were not uuaware of the offices which the copious and malleable terminology belonging to this part of their sysiem might be made to dischiirge, ami this is proved by them by their emplovmeut of the peculiar adjunct quasi in such expressions as g'z^asi-contract aud quasi-delict. Quasi, so used, is exclusively a term of classiflciition. It has been usual witli English critics to identify the 5'!numoyee jurisdiction. We ouglit to give liie words of cl. 15 their natural and Luchmkkput DoOQUli. ordiniiry meaning, unless we ciin ascertain beyond all doubt, from tlie wliole of the Chnrter taken togetlier, tliat it was the inieniion to use the words in a restricted sense. It would require very clear words to justify a decision which would siibstaniially eniible tlie senior Judge of Q. Division Court consisting of two or more Judges wiio are equally divided in ofiiuion to decide, without further appeal, a case according to bis view, tliough the effect of his decision might be to overrule the decision of one or two lnwer Courts with whom the junior Judge of the Division Court might concur. This, as regards cases in which the value is under Rs. 10,000, would be the result of a decision holding thiitcl. 15 does not apply to judgments given on appeal. It may be said that in such a cmsp, even under the value of Rs. 10,000, an appeal would lie 10 Her Majesty in Council if a Judge of the High Court should declare the ciise to be a fit one for appeal. But I doubt very much whether the mere fact iluit the case had been decided according to the opinion of the senior Judge, in a Division Court consisting of Judges who were equally divided in opinion, would be good ground for declaring a c:ise under the value of Re. 10,000 to he a fit oue for appeiil to Her Majesty in Council, if according to the Charter it wna intended that the Ciise should be decided according to the opinion of tho senior Judge, and that an ajipeal should not lie from such judgment to the Higli Court. But iit aDy rate in such a case the appeal would not lie as a matter of right. It appears to me that before an appeal is allowed to be filed in this case the opposite party ought to be heard. I am therefore of opiniou that a rule should be grunted ctilling upon the opposite party to show cause why the appeal should not be admitted. I have expressed my reiisons at length in order that, on showing cause, the opposite party may have an opportunity of meeting Ihem, and of satisfying me that I am wrong. If the view which I am at present disposed to take of the case is not a correct one, I am open to be couvinced by argument that my present impression is founded upon au erroneous construction of the Letters Patent. I may also remark that the High Court at Bombay has, apparently as a matter of course, treated cl. 15 as applicable to the Appellate Division Courts, as they Lave passed rules specially applicable to strcU appeals. 7Q4r: FULL BENCH RULINGS. Ig67 NoEMAiT, J. — This is an application for the admission of an appeal' Eanee from the decision of a Division Court composed of two Jud<;es, in „ wliich, the Judges, on the lieariiig of a special appeal, being divided in ^"dooguk."'^ opinion,judgment was given accordiug to the opinion of the senior Judge. The question we have to consider is, whether in such case an appeal to this Court is given by the Charter of the 28th of December 1865. Under ihe heading of " Powers of single Judges and Division Courts," the 36tli clause is as follows : "And we do hereby declare that any func- tion which is hereby directed to be performed by the said High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, under the provisions of the 13th section of the Act of the 24th and 2oth years of our reign : and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges shall be equally divided, then the opinion of the senior Judge shall prevail." Under the heading of " Power to High Courts to provide for exercise of jurisdiction by single Judges or Division Courts" s. 13 of the 24th and 25th Vic, c. 104, is as follows: " Sul jeet to any laws or regulations which may be made by the Governor-General in Council, tlie High Court established in any Presidency under this Act may, by its own rules, provide for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges of the said High Court, of the original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convienent for the due administration of justice." In the Charter of December 1865, els. 11 to 18 come under the general heading " Civil jurisdiction of the High Court." CI. 15 is as follows: "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court pursuant to s. 13 of the said recited Act, and that an appeal shall also lie from the judgment (not being a sentence or order as, aforesaid) of two or more Judges of the High Court, or of such Division Court, wherever such Judges are equally divided iu opinion, and do not amount in number to a majority of the whole of FULL BENCH RULINGS. 705 the Judges of the said Higli Court at the time being ; but that the iggy right of appeal from other judgments of Judges of the said High Ranee Court, or of such Division Court, shall lie to us, our heirs and "■'^°^'°''^^ successors, in our or their Privy Council, as hereinafter provided." ■'^^"^Jg"'^ Reading the language of this clause according to its plain grammatical construction, it would appear to include all judgments, without exception, other than those in criminal cases, either by one Judge, or where the Court is equally divided in opinion, unless such Court, so divided, consists of a majority of the Judges of the High Court. Cls. 11 to 18 come under a general heading " Civil jurisdiction of the High Court," therefore the language of cl. 15 being quite general, presumably deals with the civil jurisdiction generally. Cl. 15 follows three clauses relating to original jurisdiction. As if to remove all ambiguity and doubt as to whether in the 15th clause the Charter was still dealing with the original jurisdiction otjly, after the words "from the judgment" are inserted that which is the only qualification of the generality of the terms, viz., "not being a sentence or order passed or made in any criminal trial." The expression is perhaps larger and more comprehensive than if the words had been " all judgments in civil suits ; " see the discussion which arose in Sarodasoondery Dossee v. Tincowry Nundy (1). The appeal is given from every judgment of one Judge, or of a divided Court, whether strictly speaking in a civil suit or not, which does not fall within the definition of "a sentence or order passed or made in a criminal trial." The first clause is in express terms dealing with the judgments of Courts constituted under the 13 th section of the Act and decrees pronounced under the 30th clause of the present Charter. The 13th section of the Act, aud the 36th clause of the Charter, apply without distinction to Courts constituted for appellate, as well as for original, jurisdiction. The terms of the 15th clause include all judgments of such Courts, or pronounced in pursuance of such power, without exception. Some difficulty has been supposed to arise from a comparison of the language of the 39th clause. But the two clauses may be perfectly reconciled and made consistent with each other by reading the words "from which an appeal shall not lie to the said High Court under the provisions contained in the 15th clause of these presents," as overriding and applying to both members of the preceding portion of the sen- tence. This, though not the most natural construction, is one of which the language appears to me fairly capable. If the relative « which " (1) 1 Hyde's Rep., 70. 706 FULL BENCH RULINGS. 1867 is read ns applying only to the last antecedent, the consequence would Ranek l^e tliiit, in cases wiiere tlie Court is equally divided on tlie heaiing of P_ an appeal, the party against, wliom the decision is given in pursuance or ^"doogu«"'^ tlie provisions of the 36th clause would have a remedy either by appeal to the High Court or to tlie Piivy Council at his election. Either con- struction would give full force to every word both of the 15th aud 39th clauses. A comparison of the 14th clause of the Charter of 1862 with the 15th clauseof the preseiitCliarler, is useful as ihrowing light on the true mean- ing of the latier. Tlie 14ih clause comes under a heailing "Appeal from the Courts of original jurisdiciion to ihe High Court in iis appellate juri.-dictiim ;" and an appeal was given from the judgment " iu all cases of original civil jurisdiction" of one or more Judges of the High Court, or of any Division Court, pursuant to s. 13 of the said recited Act. The present Charter amends the provision as to these appeals ; and it is difficult to suppose that all ihe words in the Charier of 1862 confining appeals lo the High Court fromjudgments of Judges aud Division Courts of the High Court to cases of oiigiual civil jurisdiction, could have been struck out in the new Chiirter without good reason. One would say that the obvious intention of the framer of the Cliarter in sirikiug out the words of limitation must have been to extend the appellate jurisdiction which had been given by the former Charter. The construction adopted by the Judges whose views on this subject are opposed to those which ore here put forward narrows it; because it is admitted on all hands that no appeal to the High Court from the decision of two Judges sitting as a Court of original jurisdiction is given, unless they differ in opinion. It is always desirable when endeavouring to put a construction on the language of any document which is supposed to admit of more tliau one interpretation, to test that which appears at first sight to be the true meaning accoidiug to the grammatical coustruciion of the document, by enquiring what would be the consequences of that interpretation — whether its adoption would involve any manifest inconvenience or incon- sistency. Now it appears to me that when one Judge overrides the opinion of a colleague, or two or more override that of an equal number of theircolleagues, it may be reasonably thought that the decision is uot so completely aud conclusively that of the High Court that it is necessary to put the parties to the great expense of an appeal to the Privy Council. Nor do I see that there is any inconvenience if the person against whom a decision is given under cl. 36 has an alternative remedy. Cases may be supposed when the decision of the senior Judge is so far iu FULL BENCH RULINGS. 707 accordance with previous rulings of the High Court that the suitor i867 may know that a furtlier appeal lo tlmt Court woukl be useless. Wiiy Ranee should lie not at once appeal to Her Majesty in Council, instead of Suunomoyise going ihroush what lie may know to be the useless form of ureseniini' Luchmebput ° ° ^ •' _ f o DOOGUB. ^ second appeal to ihe Pligli Court in the first insiance. I am of opinion that an appeal lies to this Court in the present case. I think we ought to grant a rule calling on the other side to show cause why the appeal should not be admitted in order that the question may be fully discussed at the bai'. Kemp, J. (Loch and Macpherson, JJ., concurring) — I think that a rule should go. I reserve my opinion, Markbt, J. — I agree wiih the conslruction put upon ihe Letters Patent by ihe Chief Justice and Norman, J., and that a rule should be granted to show cause why the appeal should not be admitted. Jackson, J. — I heartily concur in thinking that the rule should go. I admit also that; the Chief Justice's reasoning disposes of the diffi- culty arising from the relative situation of cl. 15 and other clauses. But I still iliiiik that the argument from the words of cl. 39 is not merely a plausible, but a very forcible argument, and 1 must reserve my opinion whether it will prevail or no, till the respondent shall have been heard. As to the expediency and justice of allowing the appeal, if such considerations are to influence us, things appear to he nearly balanced. On one hand the case might be even stronger than stated by the Chief Justice, for in a Court consistin;; of Judges, an Officiating Cliief Justice, concurring with three Aciing Puisne Judges, miaht over- rule tiie four senior Puisne Judges in tlie oircurasiancps which the judgment of the Chief Justice so forcibly set forth. On the otlier hand, to allow an appeal to tlie Court at laige, wliere the senior Judge, a,i;iet'ing on the facts with the Court of first instance, overrules his junior and affirms the judgment, is a proceeding of which tlie advantage is not so obvious ; and the addition to the business of this Court is likely to be very considerable : while the machinery of A and B sitting in judgment on C to-day, and B and C on A to-morrow, is hardly satisfactory. There can be no doubt that the statement of the reasons which at present incline the Chief Justice and some of my colleagues to the admission of the appeal, is very convenient with a view to the full argument of the poiut at issue. 708 FULL BENCH RULING'S. 1867 A rule to show cause accordingly issued. SuRNOMOYEE Mr. 7?. T. Allan and Baboos Dwarhanath Miiter, Kallee Mohun LucHMEEPuT J^o^^t ^i*^ Taraprosonno Mookerjee showed cause. DOOGUR. Baboos Sreenath Doss and Bhuggobutty Churn Ghose in support of the rule. The judgments of the Full Bench were as follows : — Peacock, C.J. (Loch, Nobman, Kemp, Macpherson and Market, JJ., concurring). — Wlien this rule was moved for I expressed my views at length, not as binding upon me, in case I should be satisfied upon argument that I was wroner, but merely that Counsel might know the views which I took in order that they might point out, if they could, in what respect they were erroneous. No arguments have been adduced, and Mr. Allnn (who appears for the opposite party) says that he does not think he can sliow on behalf of his client that the reasoning in that judgment is unsound. Under tliese circumstances I think it unnecessary to go through thnt judgment again. I could not add anything to it. All that it is necessary for me to say is that I adhere to the opinion which I then expressed, that an appeal will lie. All my learned colleagues agree in this opinion, except Jackson, J- who has some little doubt in the matter. The rule is made absolute, and the petitioner will be at liberty to file an appeal within a month. Jackson, J. — I need hardly say that it is with very strong diffidence . as to the correctness of my own judgment, or of my own sentiments in this matter, that I venture to express even the slight degree of liesitation which remains on my mind in respect of the right decision of this point. I confess that some residuum of doubt remains in my mind, for this reason, that it seems to me that the whole subject of appeals from decisions of this Court, whether in its appellate or its original jurisdic- tion, is not contained in cl. 15 of the Letters Patent, but is contained in the two els. 15 and 39 taken together. In the conclusion of cl. 15 are these words "but that the riglit of appeal from other judgments of the said High Court, or of such Division Court, shall lie to us, our heirs or successors, in our or their Privy Council, as hereinafter provided." Tliose words appear to me to make it indispensably necessary (hat the two clauses should be considered together so as to afford a consis- tent interpretation. I am still inclined to think, with very great defer- ence, that cl. 39 appears to divide appeals from judgments of this Court FULL BENCH RULINGS. 709 deliyered on the appellate side, and appeals from judgments of this ige? Court in its original jurisdiction ; and that cl. 15 ought to be construed raneb so as to be in accordance with the meaning of cl. 39. But with the Suknomoyee weight of the unanimous judgment of six of my learned colleagues, Ldchmeeput including His Lordship the Chief Justice, against me, I do not think I shall be justified either in taking up the time of the Court or of the public, or in suggesting to the parties the taking possibly of still further proceedings in this case, by doing more than to throw out this expression of the slight hesitation which I still feel. I do not wish formally to dissent from the judgment of the Court. I therefore concur in it. Before Sir Barnes Peacock, Kt,, Chief Justice, Mr. Justice Trevor, Mr. Justice Lock Mr. Justice Kemp, and Mr. Justice MacpJierson. KANGALEE CHURN GHOSAL (Deceee-holdbr) v. BONOMALEE MULUCK j ggy AND OTHERS ( JUDGMENT-DEETORS).* May 31. MAHABBER PERSAD and others (Judgment-debtors) ^. MUSSAMUT PRANPUTTY KOER (Decree-holder).! Execution of Decree obtained before the passing of Act XIV of 1859 — Act XIV of 1859, s, 20 — Proceeding to keep Decree in force. Process of execution of a decree obtained before the passing of Act XIV of 1859 may be issued within the time mentioned in s. 21 of that Act without any prior proceed- ing having been taken ; but when it is sought to execute such decree after three years from the time of the passing of the Act, process of execution shall not be issued unless some proceeding within the meaning of s. 20 shall have been taken to enforce the decree or keep it in force within three years next preceding the~ application for execution (1). A regular suit by a decree-holder for a declaration that property released from attach- ment, under s. 246 of Act VIII of 1859, is liable to attachment in execution of his decree, is a proceeding to keep a decree in force within the meaning of s. 20, Act XIV of 1859. In the first of these cases (No. 445 of 1866), a decree had been obtained in 1844 against Bonomalee MuUick and others by certain parties, who shortly afterwards died, leaving minor sons. In 1846 some proceedings were taken by persons representing themselves to be entitled to execute the decree, but no effectual execution was had. The next proceedings taken were in September 1858 by one Mahamoya, who represented herself as being the person really entitled to the decree, the ostensible decree-holder being according to her statement a * Miscellaneous Appeal, No. 445 of 1866,' against an order passed by the Judge of East Burdwan, dated the 6th January 1866. t Miscellaneous Special Appeal, No. 719 of 1866, against the order of the Judge of Sarun, dated the 30th July 1866. (1) See Raja Satyasaran Ghosal Bahadoor y. Bhairah Chandra Brahmo, 2 B. L, K., A. C, 196. 46 710 FULL BENCH RULINGS. 1867 Kanoalee Churn Ghosal V. BONOMALEE MULLICK. Mahabeer Peksad V. MuasAMDT Pkanpuxty KOEU, mere farzi (fictitious parly). Her applicatiou was rejected in Decem- "ber 1859, but slie immediately afterwards instituted a regular suit against the present applicant, Kaugalee Churn Ghosal (who had pur- chased the decree about December 1859), to establish her right to the benefit of the decree. This suit was dismissed in January 1861, and the judgment of dismissal was confirmed by the Appellate Court in April 1863. In the meantime, Kaugalee Churn Ghosal, on the 30ih September 1862, applied to be allowed to execute the decree, but his application was rejected on the ground that he had not filed his bill of sale, and consequently did not show that he was entitled to execute the decree. His statement was that he was unable to file this docu- ment by reason of its being annexed to the record of the civil suit that was theu going on between himself and Mahamoya in reference to the right to execute the decree. On the 14th December 1864, he renewed his application, when it was granted ; but, on appeal, the Judge of Burdwan reversed the order of the lower Court on the ground that the application was out of time. Kaugalee Churn Ghosal then prefer- red a special appeal to the High Court. At the hearing, the question was raised whether, under the circum- stances, execution of the decree was barred by the law of limitation. The Court ^Loch and L. S. Jackson, JJ.) differing from a previous ruling in the case of Kashee Per shad Roy v. Shib Chitnder Deb (1) referred the question to a Full Bench. Ill the second case (No. 719 of 1866), certain property, alleged to belong to Mahabeer Persad and others, had been attached in execution of a decree made against them on the 19th November 1853. (Jn the objection of third parties, however, the property was released by a summary order dated the 31st December 1859. The decree-holder, Pranputty Koer, then brouglit a suit to set aside this order, and to have the property, thereby released, declared liable to be sold in execu- tion of her decree; and she eventually, on the 6tb September 1864, suc- ceeded in obtaining a decree from the High Court in the terms prayed for. On the 23rd of June 1865, she applied for execution of her decree of the 19th November 1853 by attacliment and sale of the pro- perty, and obtained an order for execution. Against this order, the judgment-debtors appealed to the High Court. A reference to a Full Bench having been made in the former case as to the meaning of s. 21 of Act XIV of 1859, the Court (Loch and Macpherson, JJ.) referred to a Full Bench the question whether, (1) 2W. P.., Mis. Eul.,3. FULL BENCH RULINGS. 711 under the circumstances, and with reference to tlint section, execution jgg^ of the decree could not issue. ""kangalee The two cases were heard together, Chuun V. Baboos Ohhoy Churn Bose and Gopeenath Mookerjee for the Bonomalee MULLICK appellant in the first case. Mahaeeek Peksad V. Baboos Kishen Kishore Ghose, Bamachurn Banerjee, Soshee Bhoo- sun Bose, and Greeja Sunkur Mozoomdar for the respondents. p^Tnputty KOEK. Baboo Kally Kishen Sen for the appellants iu the second case. Baboos Mohesh Chunder Ohowdry and Bhowany Churn Dutt for (he respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — The questions of law which appear to arise in these cases, which have been referred for the opioion of a Full Bench, are, whether the provisions of s. 20, Act XIV of 1859, are appli- cable to decrees recovered prior to the passing of that Act, or whether such decrees are regulated by s. 21 only, and if by s. 21 only, whether actual process of execution must be issued within three years from the date of the Act. The two sections above referred to are ambiguously and not very accurately worded. But we are clearly of opinion that the words " process of execution'' in s. 21 used as they are in conjunction witli the iutroductory words of the section, and following immediately after the word "but," are used in the same sense 03 that in which the same words are used in the first part of s. 20. We think that in both sections they ave used in the sense of warrant of execution under s. 221, Act VIII of 1859. In the case of Ram Sahai Sing v. Sheo Sahi Sing (1), the Court had occasion to remark that, " according to the literal wording of s. 20, no process of execution could ever issue to enforce a judgment, even within a week from the date of it, unless some proceedings were taken to enforce or keep it in force within three years next before the appli- cation for execution. The meaning of the section was, doubtless, to prevent process of execution from being issued on a judgment, decree or order of a Court not established by Royal Charter, after the expiration of three years from the date of it, unless some proceed- ings to enforce it or to keep it in force should have been taken within three yeaia next before the application for execution." We think (1) Ante, p. 492. 712 FULL BENCH RULINGS. 1867 Kangalee Chuku Ghosal V. BONOMALEE MULLICK. Mahabber Peesad V. MussAjrnT Pbanputty Koek. that is a proper construction of s. 20. It is important to ascertain " what is tlie proper construction of tiiat section, in order to arrive at a correct conclusion aa to the meaning of s. 21. S. 20 is as follows: — "No process of execution shall issue from any Court not established by Royal Charter to enforce any judgment, decree or order of such Court, unless some proceeding shall have been taken to enforce such judgment, decree or order, or to keep the same in force, within three years next preceding the application for such execution." S. 21 says: — "Nothing in the preceding section shall apply to any judg- ment, decree or order in force at the time of the passing of this Act." According to the strict and literal interpretation of those words, nothing contained in s. 20 is to apply to decrees obtained prior to the passing of Act XIV of 1859. But we must read those words coupled with the other words of the section, and we proceed to the following words, "but process of execution may be issued either within the'tima now limited by law for issuing process of execution thereon, or within three years next after the passing of this Act, whichever shall first expire." If the first words of tiie section are to be read literally, and nothing in s. 20 applies to decrees obtained before the passing of Act XIV of 1859, and if the latter portion of s. 21, commencing at the word "but,'' is also read literally, there will be no limitation whatever to decrees obtained prior to the passing of the Act, because the old law of limita- tion which was applicable to those decrees had been repealed, and there are no negative words with regard to the time within which those decrees can be executed. It is merely au affirmative statement, that process of execution upon such decrees may be issued either within the time now limited by law for issuing process of execution thereon, or within three years next after the passing of the Act, whichever shall first expire. But there is no enactment that process of execution shall not be issued after the expiration of that time. If we read tlie first part of s. 21 literally, and the words "may be issued" in b. 21 as "must be issued," there will be this difficulty, that, unless the actual warrant of execution is issued within the period allowed by the old law, or within three years from the time of the passinf of Act XIV of 1859, no process of execution can be issued upon a decree obtained before the passing of Act XIV of 1859, however active and diligent the execution-creditor may have been in endeavouring to enforce execution. The proper conslruciion of the two sections taken together appears to the Court to be this, that the words coming after the word "but" in s. 21 were intended aa a proviso to 9. 20 ; and by this construction all the difficulties are got rid of. The two sections read FULL BENCH RULINGS. 713 together thus will be to this eflfect, that no process of execution shall iggy Issue upon any judgment more than three years old, unless some proceed- kangalke ing shall have been taken to enforce it or to keep it in force within three Chuhn Ghosal years next preceding the application for execution ; provided that process v. of execution in respect of a decree obtained before the passing of Act XIV Mullick. of 1859 may be issued either within the time limited by law, or within mahabbkb three years next after the passing of the Act, whichever shall first Pehsad expire, even though no proceeding shall have been taken to enforce it Mdssamdt P KAN PUTTY or to keep it in force within three years next preceding the application Kobr. for execution. If this be the correct reading of the Act, a process of execution may be issued upon decrees in force at the time of the passing of Act XIV of 1859 witliiu the time mentioned in s. 21, ■without any prior proceeding having been taken ; but if an application is made to enforce such a decree more than three years after the passing of Act XIV of 1859, no execution shall be issued upon it, unless some proceeding shall have been taken to enforce it or keep it in force within three years next preceding the application for execution. If such proceeding has been taken, it is not too late, although the decree may be a decree which was in force at the time of the passing of Act XIV of 1859, and the application for execution may be more tiian three years after the passing of the Act. Reading 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. We think, then, with reference to the first case. No. 445, it should go back to the Division Bench which referred it, ia order that it may be determined by them whether any proceeding was taken by the person who claimed to enforce the judgment within the meaning of s. 20. This decision will also govern Miscellaneous Appeal No. 719 of 1866. But we think that in that case the regular suit, which was brought by the decree-holder to contest the validity of the decision made by the Court executing the decree, that the property was not the property of the decree-debtor and therefore could not be seized, was a proceeding for the purpose of enforcing the decree. The decree-holder having obtained a decree in that suit on 6tii September 1864, establishing her right to seize the disputed property, was not barred from proceedinc ou the 23rd June 1865 to execute the original decree. The appeal iu No. 719 must be dismissed with costs. 714 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. 1867 In the mattee of the Petition op GOBIND KOOMAE CHOWDRY.* May 31. 24 and 25 Vict.,c,10i, s. 15 — Powers of High Court — Execution Proceedings, Where a Deputy Collector refused to entertain an application by a defendant for realization of costs awarded by a Court of Appeal, and for refund of the amount which the plaintiff had realized from the defendant in execution of the decree of the lower Court, but which had been disallowed by the Court of Appeal, and where, on appeal, the Judge held that no appeal layunder s. 151 of Act X of 1859, Eeld, that the High Court had power, under 24 and 25 Vict., c. 104, s. 15, to order the Deputy Collector to enforce restitution of the amount realized from the defendant in excess of the amount allowed by the Court of Appeal, and also to execute that part of the decree which awarded costs to the defendant. This was a suit under Act X of 1859 for recovery of arrears of rent. The cnse was beard ex parte by the Deputy Collector ■who made a decree in favor of the plaintiff. The defendant appealed to the Judge, Pending the appeal, the plaintiff sued out execution and realized the amount decreed in his favor. Subsequently to this, the lower Appellate Court passed a decree whereby it declared that the plaintiff was entitled to something less than the amount awarded to him by the decree of (he Deputy Collector, with costs in proportion to the reduced amount, and awarding costs to the defendant in proportion to the part of the claim which was dismissed. Tliis decree was confirmed by the High Court in special appeal. The defendant then applied to the Deputy Collector for an order directing the plaintiff to refund what had been recovered by him in excess of the amount to which he was entitled under the decree of the Judge ; and he prayed that execution for such excess sum might issue against the plaintiff. The Deputy Collector rejected the application, being of opinion that a civil suit ought to be instituted to enforce the claim. On appeal the Judge held that no appeal lay under s. 151, Act X of 1859, from this order, as it was passed after decree and related to the execution thereof. The defendant then appealed to the High Court (Loch and Macpher- son, JJ.) who, after stating the facts, referred the question, whether the High Court, in the exercise of the powers of superintendence vested » Miscellaneous Special Appeal, No. 630 of 1866, from an order of the Judge of Mymensing, dated the 29th May 186C, aiTirming an order of an Assistant Collector of Jamalpore of that district, dated the 21st April 1866. FULL BENCH RULINGS. 715 in it by 24 and 25 Vict,, c. 104, s. 15, could entertain the application, igg; for the opinion of a Full Bench, with the following remarks : ', r ' o Xn the "Before US it is contended that even if no appeal did lie to the matthr of THE PkTITION Judge, still the original order of the Deputy Collector was wrong, and of Goeind this Court, in the exercise of the powers of superintendence vested in Chowdry. it by s. 15 of 24 and 25 Vict., c. 104, can direct the Court to entertain the petitioner's application and deal with it on its merits. I think that the question as to whether this Court, under the section just mentioned, has the power contended for, ought to be referred for decision to a Full Bench. Almost precisely the same point is involved in- the case of In the matter of the Petition of the Collector of Rungpore (1), which is now waiting the decision of a Full Bench. And the matter is one, any doubts as to which ought to be set finally at rest with as little delay as possible, with reference more especially to the judgment of a Full Bench in the case of In the matter of the Petition of J. Dacosta (2), and of a Division Court in the subsequent suit of Ehyrub Chunder Chunder v. Shama Soonderee Debea (3)." Baboos Khetter Mohun Mookerjee and Nulit Chandra Sen. for the petitioner. The respondent was not represented. The foUowiug judgments were delivered by the Full Bench: — Peacock, C.J. (Tiievor,Kemp, andMACPHERSON, JJ., concurring). — We think that in this case the Deputy Collector had power to enforce restitution of so much of tlie amount which was levied under the decree as it originally stood as exceeded that to which the plaintiff is entitled under the decree as modified. He was wrong in refusing the applica- tion to enforce restitution. He also appears to have committed a mistake with reference to the costs which were awarded by the decree of this Court to the defendant. The Deputy Collector ought to have enforced the decree with regard to those costs, and to have enforced restitution of the amount which had been levied in excess of the amount finally decreed. Under these circumstances, we think that this Court, under the general powers of superintendeuce vested in it, has power to order the Deputy Collector to enforce restitution, and also to execute that part of the decree which awards costs to the defoudaint. (1) Ante, p. 655. (2) Ante, p. 433. (3) 6 W. R., Act X Rul., 68. 716 1867 FULL BENCH RULINGS. Loch, J. — I think that, under the words " shall have superintendetice r over all Courts," used in s. 15 of 24 and 25 Vict., c. 104, this In the MATTER OF Qourt hus the DOWcr, lu casBS whers uo appeal lies to the Judge, of THE PeTITIOS OF GoBiND directing a lower Court to do that which is legal, and to correct that Chowdkt. which is illegal in its proceedings. 1867 May 31. Before Sir Barnes Peacock, Kt.,, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. In the matter or the Petition of JAKKEE BULLUB SEN.* 24 and 25 Vict., c. 104, c. 1,5— Powers of High Court— Act VIII of 1859, ss. 206, 363 — Execution Proceedings — Refusal of Party to attend as Witness. A Priocipal Sadder Ameen ordered the attendance as a witness oJ a person se'eking, by his vakeel, to enforce the execution of a decree, and, on his refusal to attend, sent him to the Magistrate. On an application to have the order set aside, a Division Bench of the High Court was of opinion that, under the circumstances, the order of the Principal Sudder Ameen was arbitrary, vexatious and unnecessary ; but being doubtful, in the absence of any provision in the Civil Procedure Code, of its powers of interference under the Charter, referred the point to a Full Bench. Beld, that the Principal Sudder Ameen had power to make the order, and that the High Court ought not to interfere with it. A SUIT was brought against one Jaukee Bullub and his adoptive mother to set aside a deed of adoption by virtue of which Jankee Bullub had been adopted. The suit was dismissed with costs. After attiiining majority Jankee Bullub applied for execution of the decree awarding him costs. The plaintiff opposed the application on the ground thut a compromise had been entered into by the adoptive mother of Jankee Bullub. The Principal Sudder Ameen ordered Jankee Bullub to attend as a witness, to show that he was entitled to represent the decree-holder, and to be examined as to the alleged compromise, and on his refusal to attend, sent him to the Magistrate. Mr. Allan, on behalf of Jaukee Bullub, applied to the High Court (Loch and Seton-Karr, JJ.) to set aside the order of the Principal Sudder Ameen. There being a doubt as to the power of the High Court to set aside that order, their Lordships referred the question, whether the High Court had jurisdiction under s. 15 of the Charter Act to interfere with the order of the Principal Sudder Ameen, to a Full Bench, with the following remarks : " Mr. Allan has argued the case before us on the ground that tho Principal Sudder Ameen had no right to summon his client, Jankee * Miscellaneous Appeal, No. 495 of 1866, from an order of the Principal Sudder Ameen of Kungpore, dated the 30th June 1866. FULL BENCH RULINGS. 717 BuIIub, to appear personally, ami that this order, being illegal and isGl unnecessary on the face of if, the High Court can, and are bound to In the take notice of, and to annul the same. t,[e petition "The Principal Sudder Ameen ordered Jankee Bullub to appear and i*"" "'*''g^,^ show, first, that he was entitled to represent the decree-holder, and secondly to enquire into certain adjustments of the decree said to have taken place out of Court. It certainly appears to us, on the fuce of the decision of the Principal Sudder Ameen, that the first point was wholly unnecessary. Jankee Bullub was already represented by his vakeel, and he had put into Court a decree of the High Court of 1863 recognizing him as the adopted son of his mother. On this decree the Court need not have had the slightest hesitation in acting : and it was the costs of this very decree that he was seeking to obtain in execution. As regards the second point the matter was clearly one in which, by s. 206 of Act "VIII of 1859, the Court had only to say that no adjustment of the kind alleged could be recognised by the Court. On both points, therefore, the order of the Principal Sudder Ameen for the appearance of the petitioner Jankee Bullub appears to us to have been arbitrary, and vexatious, and unnecessary for the ends of justice. At the same time we do not find any section in Act VIII which would enable us to interfere with or annul the order of the lower Court for the attendance of the petitioner. Under s. 363 an appenl would appear to be barred at least at this stage of the proceeding. Mr. Allan however contends that under s. 15 of the Charter Act this Court has the power to interfere, and presses us to refer the ques- tion to a Full Bench, As a similar question, relative to the jurisdiction of this Court where no appeal is specifically provided, has already been forwarded to a Full Bench (1), we submit the point raised by Mr, Allan on the facts as stated to a Full Bench also." Mr. Allan and Baboos Sreenath Doss and Kissendyal Roy for the petitioner, Baboos Kaliprosono Dutt and Nilmadhub Sen contra. The judgment of the Full Bench was delivered by Peacock, C. J, (who, after stating the facts, continued.) — We think that the Principal Sudder Ameen had power to do what he did. Whether he raised a right issue, with reference to the alleged adjustment or not, it is clear that he required the attendance of Jankee as a witness to ba (I) See I» (he matter of the Petition of Gobind Coomar Chowihry, ante, p. 7H. 47 718 FULL BENCH RULINGS. lgg7 exftmined as to tLe nlleged adjustment, and lliat Jankee, tlie witness, Ij, the refused to attend. The Principal Sudder Ameen tlierefore had a right TiiE?^imTioN *° ^^^^ ■"''''^' ^'™ according to law as a witness refusing to attend. OF Jankee Under these ciicumstances, we think that tliis Court, in the exer- BuLLUbSkN. ii 1 O j cise of its general power of superintendence over the lower Courts, ouglit not to interfere with the order of the Principal Sudder Ameen. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macplierson. 18G7 BIPRO DOSS GOSSAIN and otheks (Judgmeht-deetoks) v. CHUNDER iJaySl. SEEKUR BHUTTACHARJEE ODeckee-holdek).* Limitation— Act XIV of 1859, s. 20 (1) — Proceeding to keep a Decree in force. The words "judgment, decree, or order" in s. 20, Act 5IV of 1859, mean a judgment, decree or order, which can be enforced by execution. If, on appeal, the judgment of the lower Court be affirmed, limitation runs from the date of such judgment of affirmance; but if the appeal is di.smissed for default, limitation runs from the time of the original decree (2). An application for a review, or a petition of appeal by the person against whom the judgment was given, is not a proceeding by the decree-holder to keep the decree in force. But there is such a proceeding if he appear to oppose the application, or does any act to prevent the decree being set aside (3). This appeal came on for hearing before Loch and Macpherson, JJ., wheu the following question was raised : " Whether where a plaintiff obtains a deci'ee, and the defendant makes an application to the Court to review its judgment, which application is eventually refused, the three years' limitation, under s. 20 of Act XIV of 1859, is to be calculated from the date of the original decree, or from the date on which the application for review was rejected?" It did not appear whether the plaintiff opposed the application for review. In consequence of the decisions in the cases of Chowdhry Jun- menjoy Mullick v. Bissambhur Panjah (4), and Ram Jluttun Banerjee v. Maharajah Ameer-ool-molk Bunwaree Gobind Baha- door (5), being in conflict with those in Singh v. Lalla Kalee Churn (6), Shaikh Fuel Imam v. Doolun Singh (7), Huree Bungshoe * Miscellaneous Appeal, No, 583 of 1866, from an order of the Judge of Burdwan, dated the 28th July 1868. (1) Act IX of 1871, Sched. II, No. 167. DaUa, 11 B. L. R., 23. (2) See Bhubaneswari Deli v. Mahendra- (3) See Mussummat Bibee Luteefwi v. naih Chowdhry, 3 B. L. E., App., 33; Ram Rojroop Sing, 10 B. L. R., 361. Charan Bysack v. LaJchikani Bannik, 7 B. L. (4) 5 W. E., Mis., 45. R.,10i;KistoKinkurGhoseRmjv.Bm-roda- (5) 6 W. E., Mis., 95. cunt Singh Roy, 10 B. L. E., 101 ; and Roy (6) 3 W. R., Mis., 21. Bhunpui Sing Roy Bahadoorv. Mudhomotee (J) 5 W. R., Mis,, 6, FULL BENCH RULINGS. 719 Banerjeew Ramessur Bunerjee (1), and Chedoo Lai v.Nmid Conmar iggy Lai (2), their Lordships referrod the case for tlie opitiioaof a Full Bench. Bipro Doss Baboos Kishen Kishore Ghose and Kissendyal Roy for the uppellauls. Gos^sain Baboo Nilmadhub Sein for the respondent. Chunder Seekue The opinion of the Full Bench was delivered hj jee. Peacock, C.J. — We think that the words " any judgment, decree, or order" used in s. 20, Act XIV of 1859, must mean a judgment, decree, or order, which the person in whose fuvor it is given is at liberty to enforce by execution, and that it would not be less a judgment, decree, or order of this Court, because an application to review it, or » petition of appeal against it, had been preferred by the opposite party. If, in the case of an appeal, a new judgment of affirmance of the former decree should be given, then a new judgment would have to be executed, and the period for applying for execution would commence from the time of the new judgment of affirmance. But if tlie appeal were dismissed for default, there would be no new judgment, and the judg- ment of the lower Court would be the judgment to be enforced. The next question is, whether the words " unless some proceeding shall have been taken to enforce such judgment, decree, or order, or to keep the same in force, within three years next preceding the application for such execution," would include an opposition by the person in whose favor tiie judgment had been given to an application for review, or to a petition of appeal. We think that a mere application for a review, or a petition of appeal, by the person against whom the judgment was given, would not be an act done by the person in whose favor the judgment was given for the purpose of keeping the same in force. It would be an act done by the opposite party to destroy it, and not done by the person in whose fuvor it was given to keep it in force. But if, upon the application for review, or the peiitlou of appeal, the person in whose favor the original decree was given appears in person, or by vakeel, whether voluntarily or upon service of notice, to oppose the application and files a vakalutnamah or does any thing for the purpose of preventing the Appellate Court, or the Court of Review, from setting the judgment aside, we think tiiat, within the fair interpretation of the words, such act, being an act of the person in whose favor the judgment has been given for the purpose of preventing it from being set aside, is an act done for the purpose of keeping the judgment in force. If the party is successful in preventing the judgment from being set aaide, and does in fact keep the judgment (1) 6 W. K., Mis., 35. (2) 6 W. R., Mis., 60. 720 FULL BENCH RULINGS 1867 ill force and afterwards applies to execute it, his Application is iu time BiPKo Doss if made within three years from the time of tlie last act which he did GossAiN ^g j^ggp (.[jQ judgment in force or to prevent it from being set aside. Chundbr With tliis expression of opinion the case will be remitted to the Bhuttachar- Court which refei'red the questions for our consideration in order that '""^" they may finally deal with the case upon its merits. It does not appear ■whether the party, in whose favor the judgment was originally given, did oppose the review or not ; besides there are other facts in the case •which must be considered by the Court which referred it. 1867 'Before Sir Barnes Peaeoch, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. In the mattee op the Petition ob KHAJA SHURWAE HOSSEIN May 31. KHAN AND OIHEKS;* Act XL of 1858, ss. 7, 19, 21 — Recall of Certificate— Power of Court to ricall Certificate granted under s, 7, Act XL of 1859. A certificate granted under s. 7, Act XL of 1858, can be recalled summarily under s. 21. Where the application for recall is based on charges of waste and mismanagement, the certificate may be so recalled, if a sufiicient case is made out, without any account having previously been taken in a regular suit under s. 19. On the 30th December 1863, a certificate of administration to the estate of a deceased person, and of guardianship to his minor son, was granted by the Judge of Burdwau, under s. 7, Act; XL of 1858, to Khaja Shurwav Hossein Khan and Surroop Chunder Bose. On an application by Nunuee Bebee, the mother of the minor, under B. 21, Act XL of 1858, for recall of the certificate, upon tiie ground that the guardians had been guilty of breach of trust, waste, misappropriation of funds, and neglect; to provide for the education of the minor, the Judge found that the conduct of the guardians was not satisfactory and that they liad not exercised due diligence and caution. But, while warning them that iu the event of a similar complaint being brought against them, and proof being adduced of any mismanagement or bad faith on their part, the certificate would certainly be revoked, he dismis- sed the case of Nunuee Bebee. Boih the parties appealed to the High Court. The case came on for hearing before a Division Bench (Locli and Macpherson, JJ.) who referred the following questions for the opinion of a Full Bench. * Miscellaneous Ecgular Appeal, No. 710 of 186G, from au order of the Judge of East Biirdwan, dated the 30th July ISGB. FULL BENCH RULINGS. 721 1st. " Whether, under nny circumstances, a certificate granted under iggy s. 7 of Act XL of 1858, can be recalled summarily under s. 21 ? — ; ■' In the 2iid. Wlietlier such a certificate can be recalled summarily under matter of „ , . , , . , . , , ^HE Petition s. 21, Without any account having been previously taken in a regular op Khaja suit under s. 19, where the application for the recall is based on charges Hoas^nT of waste and mismanagement which cannot be disposed of without the Khan, accounts being enquired into and fully taken ?" In referring the questions their Lordships cited the following cases — Anundmoyee Dabee v. Hurrish Chundra Chowdry {\), Mudhoosoodun Singh v. The Collector of Midnapore (2), and Nund Coomar Gun- gopadhya v. Rukhal Chunder Roy (3). Mr. C. Gregory and Biiboo Jodonath Mookerjee for the guardians. Baboo Mohendro Lall Shome for Nunnee Bebee. The opinion of the Full Bench was delivered by Peacock, C.J. — The two questions which have been propounded for the decision of the Full Bench are: — {reads). We are of opinion that both tliese questions must be answered in the affirmative. By the grant of a certificate under Act XL of 1858, the person to whom it is granted acquires powers which he could not exercise without it. For instance, by s. 3, although he may have been appointed by a will to manage the estate, he is not entitled to institute or defend any suit connected with the estate of which he cluims the charge, until he shall have obtained a certificate. So bys. 18, every person to whom a certificate is granted has the same powers in the management of the estate as the proprietor might have had, if he were not a minor, except that he cannot sell or mortgage any immoveable property, or grant a lease thereof for any period exceeding five years, without an order of the Civil Court previously obtained. By s. 7, it is compulsory upon the Court to grant a certificate to any person who shall have been appointed to the charge of a minor's estate by will or deed, and who is willing to undertake the trust. Prima facie, a person who has been appointed the manager of a minor's estate, either by will or deed, is a proper person to be the manager, and, prima facie, there is no sufficent cause why he should not be the person to whom the certificate is to be granted. The law has therefore made it compulsory on the Court to grant him the certificate ; but it by no means follows that when a certificate has been granted to (1) S. D. A. Rep., 1861, 163. (2) Marah. Bep., 244. (3) 6 W. E., Mis., 123. 722 FULL BENCH RULINGS. 1867 In the matter of THK Petition OF Khaja Shurwak HOSSEIX Khan. him, and he has acquired the management, it may not be discovered that he is not a proper person to have the management. It is true, no doubt, that a person to whom a certificate is granted under s. 7 is not bound to render periodical accounts in the same manner as a public ofiicer to wliom such a certificate is granted, and tliat he can be compelled to do so only by suit. It was so lield in the case of Mussamut Soukolly Koon- war {\). The Court in that case said: — "After carefully examining the Act, we come to the conclusion that the law does not require a party holding a certificate under s. 7 to produce accounts, unless sued for such under s. 19 of the Act by any relative or friend of the minor. Public curators or administrators appointed under s. 10 are required by the provisions of s. 16 to put in annual accounts, to the accuracy of wiiich any relative or friend of the miuor may take objections. But where a party is appointed under s. 7 to administer to the estate, it appears to us that he is bound, as was the practice before the passing of the Act, to account only to the minor, on his attaining majority, and to no one else, though of course, he is liable to have the certificate withdrawn under s. 21, should any sufiicient cause for its withdrawal be proved to the satisfaction of the Court." That case is an authority to show that, although a manager, appointed by a will or deed, to whom a certi- ficate is granted, is not bound to render periodical accounts under s. 16, still, if there be any mismanagement or improper conduct ou his part, he is liable to be removed under the provisions of s. 21. S. 21 enacts that "the Civil Court, for any sufficient cause, may recall any certificate granted under this Act, and may direct tlie Collector to take charge of the estate, or may grant a certificate to the Public Curator, or any other person, as the case may be." It is only for sufiicient cause that a certificate can be recalled, but the words of the section are general, "that for sufficient cause any certifi- cate granted may be recalled," and there seems to be uo good reason for holding that a certificate granted under s. 7 of the Act, either to a manager appointed by will, or by a near relative, cannot be recalled for sufficient cause in the same manner as any other ceitificate, merely because such manager is not bound to render periodical accounts. By s. 28, all orders of the Civil Court are subject to appeal, subject to the rules in force in miscellaneous cases, so that if a manager be dis- missed summarily for insufiicient cause, he has a remedy by a()peal. The authorities upon the subject have all been very clearly set out in the statement by which the points were submitted or the opinion of (1) 6 W. &., Mis., 53. FULL BENCH RULINGS. 723 the Full Beucli, and tlie only case which appenra to throw any doubt i867 upon the right of the Judge to recall a certificate by a summary pro- ' 7"^; ceeding iu the case of a manager appointed under s. 7 is that of matteirof oil ^ijij. Petition Mudhoosoodim Singh v. The Collector of Midnapore (1) which was of Khaja. decided by Steer and Campbell, JJ. In that case the Judges observed : Hosskin "It is clear tiiat a regular suit for an account can be brought against "*"' such manager under s. 19 of the Act. As regards his removal, we would not, after the precedent quoted, now object to these proceedings under s. 21 ; but we think that in whatever form a suit instituted to cancel the certificate under that section may be instituted, it must be supported by such proof of malversation and misconduct as will afford sufficient ground for removal." To that extent we entirely concur. The Judges proceed : — " Looking to the nature of the title on which the certificate is held, there is a wide difference between a manager appointed by will or a near relative appointed in right of natural propinquity, and a mere officer of the Court appointed manager subject to the supervision of the Court. Tlie two former managers hold uuder s. 7, and render no accounts till their management is impugned under the provision of s. 19. The latter, appointed under ss. 10 and 12, is subject to a variety of special provisions, and is bound to render periodical accounts. As regards the grant of a certificate to a person claiming under a will, it is clear that, in the terms of s. 7, the Court has no option whatever. Hence we think that in such a case the Court cannot exercise any mere discretionary power under s. 21, the candidate not being absolutely and palpably incompetent." In this we also concur. Tlieie can be no doubt that it is obligatory on the Court to giant a certificate to a manager appointed by will, and the Court has no power to recall it, unless a sufficient cause is made out. But the Judges go on to observe : " There will be sufficient cause for removing a manager appointed as of right, only when there is such entire incompetency, or actual breach of trust, as would justify a Court of equity in depriving a man of the management of his own property, or a trustee of the manage- ment of a trust." There appears to be some inaccuracy in this statement, because we are not aware of any incompetency which would justify a Court of equity in removing a man from the management of his own property. A man may manage his own property as he thinks fit, and unless declared to be a lunatic, he has a right to manage his property as he pleases. So far as the Court speaks of the removal of a trustee, we think that they may be correct ; but it does not follow that, if a (1) Marah. Rep., 244. Khan. 724, FULL BENCH RULINGS I8g7 manager to whom a certificate has been granted under s. 7 should be Ijjthe compelled to render his accounts by a regular suit, and it should appear THE Petition ^^°^ those accounts that there has been embezzlement, or waste, or OF Khaja mismanagement, such as would justify the removal of a trustee, the HossEiN certificate cannot be withdrawn without a regular suit. There may be many cases in which, if a manager so appointed could not be removed summarily, the estate might be wholly lost. Suppose, if it were made out upon a summary application to the Civil Court that nn estate under a manager had realized more than sufficient to pay the expenses of management, and the public revenue, aud the allowance to the minor, and that the Government revenue was not paid, and the estate about to be sold, that the manager refused to render his accounts, and referred the friend to a regular suit, and would give no reason for his not paying the Government revenue; if the Court could not remove him summarily without a regular suit, the estate might be sold for arrears of the public revenue, and before a decree for his removal could be obtained the estate would be lost. We think it clear that in such a cnse the Courts ought to have, and would have, power to remove the manager by a summary proceeiling under s. 21, and put the management of the estate into tiie hands of the Collector or of the Public Curator, notwithstanding the manager could not be compelled to render his accounts without a regular suit. So, if the accounts rendered by such n manager, whether voluntarily or under a decree for an account in a regular suit, should be incorrect, and the manager should fraudulently omit to give credit for moneys received, it appears to us that the manager might be removed upon proof of the facts on a summary proceeding, and it would not be necessary to falsify the accounts in a regular suit. We make this remark because the Judges, in the case to which we have already referred, think that merely because the accounts were impugned, the Court could not remove the manager until those accounts had been impugned by regular suit. We think that, without compelling the minor or his friends to resort to a regular suit, tlie Civil Court has power, if a sufficient case is made by summary proceeding, to recall a certificate granted under s. 7 to a manager appoiuted by will or deed or a near relative, and to put the estate into the hands of the Collector, aud to exercise the other powers conferred upon the Court by s. 21, For these reasons it appears to us that both the questions ought to be Buswered in the affirmative. FULL BENCH IIULINGS, The case will be referred back to a Division Bench with this expression of our opinion, in order that the Division Bench may" determine the appeal. 725 1867 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. AJOODHIA PERSAD (Dependant) v. MUSSAMUT EMAMBANDEE BEGUM (Plaintiff).* Bight of Occupancy— Act X of 1859, s. 6 (1 )— Transferable Tenure. A tenure not originally transferable withoat the consent of the landlord does not become so merely because the tenant has obtained a right of occupancy under s. 6, Act X of 1869 (2). Qucsre per Peacock, C.J., whether a right of occupancy gained under s. 6, Act X of 1859, is necessarily heritable ? Ajoodhia Peksad, a tenant, having a right of occupancy, sold hia tenure, without tlie consent of the zemindar Emambandee Begum, to one Jugdeo Narain. Emambandee brought a suit for arrears of rent against Ajoodliia Persad, who pleaded that he had sold the tenure to Jugdeo Narain, and Jugdeo Narain, claiming the tenure, asked to be made a party. Tliis npplication was refused : and a decree was passed against Ajoodhia Persad. Thereupon Jugdeo Narain, in order to save the property from being sold, deposited the amount of the decree in the name of Ajoodliia Persad, and the sum so deposited was paid over to the zemindar. Jugdeo Narain then applied to the Collector to compe| the zemindar to register his name in her sheristah, but the application was refused on the ground that Jugdeo Narain was only a cultivating ryot, and not an intermediate holder of a transferable tenure, to whom the provisions of s. 27, Act X of 1859, were applicable. The present suit was subsequently brought by Emambandee against Ajoodhia Persad for recovery of arrears of rent at enhanced rates after service of notice. Ajoodhia Persad again pleaded that he had no interest in the tenure having sold his right to Jugdeo Narain ; and Jugdeo Narain again intervened claiming the property by virtue of the sale by Ajoodhia Persad. The Judge held that the defendant, Ajoodhia Persad, was liable for the rent as his tenancy had not been cancelled, and the landlord was not bound to look beyond him, so long as the tenant chose to let the tenure run on. * Special Appeal, No. 2609 of 1866, from a decree of the Judge of Patna, dated the 12th July 1866, reversing a decree of the Deputy Collector of that district, dated the 30th of AprU 1866. (1) See Beng, Act VIII of 1859, s. 6. Krishna Mookerjee, 7 B. L. E,, 152 ; Bibee (2) See 5erei Madhab Banerjee v. Jai SohodwaY. Smith, 12 B, L, R., 82. 48 In the matter- of THE Petition OF Khaja Shuewab HOSSEIN Khan. 1867 May 31. 726 FULL BENCH RULINGS. 1867 Ajoodhia Persad appealed to tlie High Court on the ground that, as Ajoodhia he had transferred his tenure to Jugdeo Narain, a substantial party, and Peksad ^g ^]^g zemindar was aware of such transfer, he could not any further be MussAMUT considered liable for the rent. Emambandee • Begum, The case came on for hearing before a Division Bench (Loch and Bayley, JJ.) who, differing from the ruling in Mussamut Taramonee Dossee v. Birressur Mozoomdar (I), referred the following question for the opinion of a Full Bench, viz. " Whether a tenure not originally trans- ferable without the consent of the landlord, becomes so, because the tenant has obtained a prescriptive right of occupancy." In referring the question their Lordships (after stating the facts) made the following remarks : "Before us it is not contended that the tenure was originally trans- ferable, but it is urged that it has become so, because the vendor tenant, Ajoodhia Persad, has a right of occupancy, and it has been ruled by a Division Bench of tliis Court, in Mussamut Taramonee Dossee v. Birressur Mozoomdar (Vj that a rigl>t of occupancy is a transferable tenure like the jotes of Rungpore and the howlas and neem-liowlas of Backergunge. We have some doubt as to the correctness of this ruling as generally applicable throughout the country. We do not understand how a tenure, not transferable in its nature, can become so by a right of occupancy, and we think it might be both inconvenient and injurious to landlords, were tenants having rights of occupancy allowed, without the consent of the landlord, to transfer their tenures to whomsoever they pleased. There would be no safety for the due realization of the rent. We know that in some parts of the country the tenant's jotes are transferable, but that is fi'om local custom, and not from a right of occupancy." Baboo Khetter Mohun Mookerjee fir the appellant. Mr. R. E. Twidale for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — As we understand the proposition, for which the vakeel for the special appellant has contended, it is this, that if a jote, which, so long as no right of occupancy existed in it, was not transfer- able, be held for twelve years, and a right of occupancy be acquired in it under s. 6, Act X of 1859, that which was a uon-trauaferable (1) 1 W. K., 86. PULL BENCH RULINGS. 727 tenure becomes a transferable one ; in other words, that every tenure ige? in which a right of occupancy is acquired under Act X is a transferable Ajoodhia , Persad tenure. „_ It appears to rae that there is nothing in s. 6, Act X of 1859, which e^ambIndL shows that it was the iuteation of the Legislature to alter the nature Bequm. of a jote, and to convert a non-transferable jote into a transferable one, merely because a ryot who held it for twelve years had thereby gained a right of occupancy under Act X of 1859. None of the cases which have been cited go to that extent. The only case which can bear an interpretation such as that now contended for, is the case referred to by the Judges who have referred this ques- tion tons — Mussamut Taramonee Dassee v. Birressur Mozoomdar {\). There the Judges say : " The question then arises, — ' Is a right of occupancy a transferable tenure ? ' We think that it is so transferable. A right of occupancy is after all a perpetual lease, the holder of which cannot be ejected so long as he pays a fair and equitable rent. There are many similar rights, common in different parts of Bengal, such as the jotes of Rungpore and the howlas and neem-howlas of Backergunge, which are in effect in no respect higher than that of a right of occu- pancy, inasmuch as they are mere personal rights which are, and have always been held to be, transferable as well as heritable." But even supposing that the Judges in that case tliought that a jote which was not transferable became transferable merely by reason of the tenants having held it for twelve years, and gained a right of occupancy in it under s. 6, Act X of 1859, it appears to us that their construction of that section was not correct. The case will go back to the Division Bench which referred it, in order that they may decide it. Speaking for myself, I am not at all sure that a right of occupancy gained under s. 6, Act X of 1859, is necessarily heritable. (1) 1 W. K., 86. 728 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. 1867 In the matter or the Petition op BROJENDER COOMAE ROY. May 31. Appeal — Time for preferring — Pendency of Application for Reoiew. In computing the period witliin which an appeal may be preferred, the time daring which an application for review was pending is to be excluded. On the 7th January 1866 one Eadhagobind Shah obtained a decree in a suit brought by him agaiust Brojendro Coomar Roy. The defendant appealed, but the Moonsiff's decree waa confirmed on the 31st August 1866 by the Principal Sudder Ameeu. On the 2nd October 1866 the defendant applied for a review of the Principal Sudder Ameen's judgment. This application was rejected on the 12th January 1867 ; and the defendant then, on the 12th March 1867, presented an application for special appeal to the Deputy Registrar of the High Court, who refused to register it on the ground that it was beyond the prescribed time. On tiie 16th March 1867 the defendant applied to the High Court (L. S. Jackson, J.), for admission of the special appeal. The learned Judge referred to a Full Bench the question whether under such cir- cumstances the entire period of ninety days was invariably to be allowed, excluding the time during which the application was pending ; or whether in each case the Court should consider whether, excluding such time, the special appellant had prosecuted his appeal with proper diligence. In referring the question His Lordship remarked : — " I have consulted my learned colleagues, and the result is, I think it right to refer the question for the consideration of the Full Bench now sitting. It will be observed that there is a very clear distinction between the case which has been brought to my notice under which this application and so many other applications have been made, and the case before the fourteen Judges, iVb66o .ffmew Singhv. Kaminee Dassee {\). That was a case of an appeal on the original side of the Court, where only twenty days are allowed. Probably in no case would there be very much time to spare if the appeal had to be preferred on the original side of the Court within those twenty days, but here, where one period of appeal has been allowed from all districts, whether in the immediate (1) Ante, p. 349. PULL BENCH RULINGS. 729 vicinity of the Appellate Court, or as many days', or even weeks' journey igg; distant, it is manifest tliat it would not be in all cases either reasonable j^ the or necessary to allow the full period of appeal, in addition to the time the*Vetition absolutely taken up whilst the application for review was pending. I "Jf Brojender am very doubtful vsrhether the Court intended to go so far in ruling as they did in that case, as to say that in all cases of appeal on this side of the Court that further period was invariably to be allowed. In the present case, it seems that the decision from which the petitioner now seeks to appeal was passed on the 31st August, five days having been consumed in obtaining a copy of the judgment for the application for review, which was put in on the 2nd October, imme- diately before the Doorga Pooja vacation began. It may turn out, though of course I am not disposed to prejudge that question, — it may turn out that that application was expressly put in with a view to delay. An application of that character, made just before the Court is closed for the long vacation, has very much the appearance of an application for delay. However that may be, this application having been more than three months pending, was disposed of on the 12th of January, when it was rejected. From the I2th January to this day tlie party has had sixty-three days to prefer his special appeal. It is true that the application is said to have been presented to the Deputy Registrar on the 12th of this month, but then the pleader who presented it must have been perfectly well aware that he was presenting it to the Deputy Eegistrar under circumstances which forbade the Deputy Registrar receiving it without the leave of the Court, I therefore look upon the application for special appeal as presented this day and not earlier ; that leaves, as I have said, sixty-three days. Now this is a case from the district of Dacca. Dacca is distant from this Court about two days post and not much longer for the traveller. It appears to me that it cannot have been intended that, under such circumstances, the entire period of ninety days was invariably to be allowed, excluding the time during which the application for review was pending ; but that the Court should consider in each case whether, after deducting the period during which the application for review was pending, the special appellant had exercised a proper diligence in prosecuting his appeal. I therefore wish the question to be referred to a Full Bench, in order that the Full Bench may decide for my guidance whether, in future, the full period is invariably to be allowed, or such further period as may appear to have been reasonably necessary. 730 PULL BENCH RULINGS. jggy Baboos Onoocool Ghunder Mookerjee and Sreenath Doss for i;;^^; the petiiioner. MATTKU OF THE Petition The opiniou of the Full Beach was delivered by OF Beojendek *• CooMAR Roy. 1. /. ii Peacock, C.J. — We think that we must uphold the ruling oi the fourteen Judges (1). Although it wnsamere dictum of the Judges that the decision of the Madras Sudder Court was right, still we think that we ought not to interfere with it. It was merely following a practice which had been adopted in IMadias from 1860 down to the present time. Probably the parties have been acting upon the dictum or ruling of the fourteen Judges. It is too late now to reverse it. Great inconvenience would probably be caused by our doing so. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. 1867 In the matter op the Petition of RADHA BINODE MISSER. May 31. "" " Appeal to Her Majesty in Council — Power of High Court to restore Appeal. After an appeal to Her Majesty in Council has been dismissed for default, or for any reason removed from the file of the High Court, under the law or under the rules of the Court, it is in the discretion of the High Court to restore the appeal after the period of six months allowed for preferring such appeals has expired. The following question was referred by L. S. Jackson, J., for the opinion of a Full Bench, viz. : — " Whether, after an appeal to Her Majesty in Council has been dismissed for default, or for any reason removed from the file of this Court, under the law, or under the rules of the Court, I have any power to restore such appeal, when the period of six months allowed for making appeals to England has expired." In referring the question his Lordship, after observing that he entertained some doubt on the point, and that his opinion and practice appeaffed to be at variance with the views entertained by some of the other Judges, and after stating ihe question, continued : — "My present opinion is that I have not the power. These are cases in which, as it seems to me, this Court acts altogether ministerially, and cannot go beyond the functions expressly committed to it. At the same time cases occasionally arise, — as where an appellant seeks to justify a default, — in which it would certainly be convenient and beneficial that the Court should exercise the power in question." (1) In Nobio Kisseti Singh v. Kaminee Dassee, ante, p. 349. FULL BENCH RULINGS. 731 Baboo Kallyprosonno Dutt for the petitioner. 1857 Bnboos Sreenalh Doss and Bhuqobutty Churn Ghose contra. In the ^ MATTER OF . . THE Petition The opmioa of the Full Bench was delivered by of Eadha. Pbacock, C.J. — We think that the Court has the power, and should exercise its discretion in each particular case. The case will go back to the Court which referred it, in order that it may decide whether there is^sufflcient ground. Hindoo Law — Mitakshara — Alienation by Father — Suit by Son to set aside Aliena- tions made by the Father — Limitation — Aot XIV of 1859, «. 1, cl. 12 — Cause of Action — Act VIII of 1859, s. 8 — Multifariousness. L.'s father, a Hindu living under the Jlitakshara law, alienated in 1848 ancestral immoveable property by deed of absolute sale, and possession was taken by the alienee at the time. In 1863 L., who was born in 1837, sued on his own account and as guardian of his minor brother E., who was born in 1856, to set aside the sale. The father died in 1857. Eeld, L.'s cause of action accrued when possession was taken under the deed of sale, and not at the father's death. R's birth did not create a new right of action in L. either alone or jointly with R. The suit, therefore, was barred by lapse of time. Where the alienation was by deed of conditional sale, followed by decrees for fore- closure and possession to which L. and R. were not parties. Held, the cause of action accrued when possession was taken under the decree. The suit, having been instituted •within 12 years of that date, was not barred (1). A plaint against several defendants for causes of action which have accrued against each of them separately, and in respect of which they are not jointly concerned, should be rejected (2). Jeetun Lall, a Hindu subject to the Mitakshara law, died on the 3rd Bhadro 1264 Fuslee (8tli August 1857) leaving two sons, Luchmun Persad, who was born about 1837, and Radhamohuu, who was born at the end of 1856 or the beginning of 1857. During his lifetime Jeetuu Lall had, on various occasions, alienuted portions of his ancestral * Regular Appeals, Nos, 228, 240, 241, 249, 252 and 255 of 1865, from the decrees of the Principal Sudder Ameen of Sarun, dated the 31st May 1865, (1) S&s Nat/m Lall Chowdhry v. Chadi (2) See Munshi Maniruddin Ahmed y. Sahi,i B. L. K., A. C, 15; arid Aghore Baioo Earn Chand, 2 B.L.'R., A. C.,342; Bamasarg Sing v. Cochrane, 5 B, L. E., App., and Imrit Nath Jha v, Roy Dhunpat Sing U, Bahadur, 9 B, L, K., 241, BiNODE MiSSEB. Before Sir Sarnes Peacock, Kt., Chief Justice, Mr, Justice Trevor, Mr. Justice Loch, Mr. Justice L. S. Jackson, and Mr. Justice Macpherson. EAJA EAM TEWARY akd others (Defendants) v. LUCHMUN PERSAD 1867 AND anothee ("Plaintiffs).* ""^ ' 732 FULL BENCH RULINGS. 18S7 immoveable property both by deeds of absolute sale and by way of raort- Kaja Ram S^S^- ^'^ ^^^ ^^^ of October 1863 Luchmun Persad, on his own Tewaby account, and as guardian of his minor brother Radhamohun, brought LuoHMusr a suit against the alienees for the purpose of setting aside the several alienations and to recover possession of the property, on the ground that the alienations were not j iistified by necessity, and had been made without his consent. The nature of the defence raised by the differ- ent defendants was the same, viz., that the alienations were made under pressing necessity, and that the plaintiff's cause of action arose when possession was taken under the deeds of sale, or on foreclosure of the mortgages, and, therefore, the suit was barred by the law of limitation. The Principal Sudder Ameen held that the cause of action did not accrue till Jeetun Lall's death, and he made a decree against all the defendants in the plaintiff's favor. The defendants preferred separate appeals to ihe High Court. The appellants in cases Nos. 241, 249 and 255 claimed under deeds of absolute sale, by virtue of which they had obtained possession in 1848, 1838 and 1845 respectively. In case No. 228 the appellant was the mort- gagee under a deed dated the 18th August 1847 ; in 1849 he had obtained a foreclosure decree, which was followed, on the 9th January 1852, by a decree for possession. The appellant in case No. 252 was also a mortgagee, who had foreclosed in 1854 and had not obtained possession till after that date. In case No. 240 the appellant claimed under an absolute conveyance dated the 11th July 1855. The different appeals came on for hearing before Peacock, C.J., and L. S. Jackson, J , who, with reference to the case immediately before them, viz., No. 228, remarked that their then impression was that the action was barred by the law ot limi- tation. But considering that a contrary view had been taken in a number of cases by the Sudder Court, and in the case oi Dabee Protab Narain Singh v. Monohur Doss (1) by the Higli Court, they referred the case, together with the other appeals, to a Full Beocli for a decision on the question of limitation. Mr. Allan and Baboos Dwarkanath Slitter and Nilmoney Sen for the appellants. Baboos Annoda Persad Banerjee&ni Mohesh Chunder Chowdhry for the respondents. (1) 8 Sev., 105, FULL BENCH RULINGS. 733 Tlie opiuion of the Full Bench was delivered by Peacock, C.J. — This is a suit brought by Luchraun Persad, the son of Jeetun Lall, on account of himself, and as guardian of his minor brother Radhamohun Persad. The appeal is from a decision of the Principal Sudder Ameen of Sarun. The suit was brought on the oth October 1863, and is to recover possession of certain lands by reversal of certain deeds, some of those deeds being deeds of absolute sale, and some of conditional sale. I wish to remark, before I enter into the merits of the case, that it is very inconvenient that a suit of this nature should be brought against a number of defendants whose interests are altogether distinct from each other. S. 8, Act VIII of 1859, allows causes of action to be joined in the same suit by and against the same parties. But there is no clause which authorises different causes of action to be joined in one suit against different parties where each of those parties has a distinct and separate interest. In this case the validity of the different deeds depends each upon its own merits. It would be just as reasonable to sue four different defendants on bonds given by each of them, or even to join them with a few other defendants for trespassing on the plaintiff's lands, as it was to join all the defendants in the present suit. Such a joinder in one suit of distinct causes of action against different defend- ants, each of whom is unconnected with tlie cause of action against the other, complicates the case before the Judge, and renders it exceedingly difficult for him in dealing with the case of each defendant to exclude from his consideration those portions of the evidence which may not be admissible against him, though admissible against one or more of the others. Moreover, it is vexatious and harassing to (he different defend- ants. Such a procedure renders it almost compulsory on all the defend- ants to be present, either in person or by their pleaders, whilst the case is going on against the others in respect of matters in which they are not interested ; and, moreover, it is harassing and inconvenient as regards the attendance of the witnesses of the several defendants, as it renders it necessary for the witnesses of each to be present aud to be detained whilst the case of the others is being heard and deter- mined. Again in appeal each case must be argued as a separate and distinct case. I think, therefore, that the Judges below ought to be more careful, and to reject plaints when brought against several defendants for causes of action which have accrued against each of them separately, and in respect of which tliey are not jointly concerned. 49 1867 Eaja Ram Tewaey V. LnCHMUN Persad. 7?A FULL BENCH IIULINGS. 1867 Raja Eam Tewaky V. lilTCIiafUN Fbbsad. In n case of this nature, wliicli was brought before the Court in the " exercise of original jurisdiction, Norman, J., rejected the plaint. An appeal was preferred toa Division Bench, and the decision of Norman, J., was upheld. I observe that, in this very case, one ground of objection was that the suit was informal, because some persona in whose favor deeds had been executed and their heirs were not made co-defendants, and a, distinct issue was raised upon the subject. Having made these remarks, I now proceed with the case with reference to the defendant in Appeal No. 241, which is a separate appeal, although the case is mixed up with others, and forms part of only one action in the Court below. The suit against this defendant is to set aside an absolute deed of sale of ancestral immoveable property executed by the plaintiff's father Jeetun Lall in 1848. Possession was taken by the pur- chaser at that date, so that more than twelve years from the date of the deed, and the taking of possession under it, had expired when the suit was commenced on the 5tli October 1863. Luchmun Persad was born about 1837, and, consequently, more than three years had expired since he became of full nge. The Principal Sudder Ameen decided upon the issue of limitation that the suit was not barred, upon the ground that limitation ran from the deiith of Jeetun Lall, the father, and not from the time of the execution of the deed of sale, or from the time when the defendant entered into possession under it. He puts the case simply on the ground that the statute of limitation commenced to run from the date of Jeetun Lull's death on the 3rd Bliadro 1264, Fuslee, corresponding with 8th August 1857. The case came before the first Division Bench, and the point being one of considerable importance with reference to which there were conflicting decisions, the Division Bench referred it for the decision of a Full Bench. The question has now been very ably and fully argued on both sides. The question turns upon the Mitakshara law, that being the law of the district in which the lands are situate. We are of opinion that Luchmun Persad's cause of action accrued at the time when possession was taken under the deed of sale, notwithstanding the father of Luchmun Persad was then living. It appears clear that, according to the Mitakshara law of inheritance, a son acquires a right in ancestral property during the life of his father ; see ch. i, s. 1 : " The term heritage signifies that wealth which becomes the property of another solely by I'eason of relation to the owner;" v. 2. "It is of two sorts, — unobstructed (apratibandha), or liable to obstruction {sapratibandha). The wealth of the father or of the paternal grandfather becomes the property of his sous or of his grandsons in FULL BENCH RULINGS. 735 right of thoir being Lis sous or grandsons ; and that is an inheritance not liable to obstruction. But property devolves on parents (or uncles), brothers, and the rest, upon the demise of the owner, if there be no male issue : and thus the actual existence of a son, and the survival of the owner, are impediments to the succession, and, on their ceasing, the property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstruction. The same holds good in respect of their sons and other descendants;" v. 3. The property ii^ this case was ancestral, and not the self-acquired, property of Jeetun Lall. The plaintiff, upon his birth, therefore, as the son of Jeetun Lall, acquired a right in the property, even during his father's lifetime ; for the case was one of unobstructed heritage. The author of the Mitaksliara goes on to speak of partition, and shows that rights acquired by unobstructed heritage exist before partition. He snys in V. 4; — "Partition is the adjustment of divers rights regarding the whole by distributing them on particular portions of the aggregate." V. 5 : — " Entertaining the game opinion Naradu says : ' where a division of the paternal estate is instituted by sons, that becomes a topic of litigation called by the wise partition of heritage,' " In v. 7 he discusses the question whether property arises from partition, or whether the partition is of pre-existent property. He says : " Does property arise from parti- tion ? or does partition of pre-existent property take place ? Under this head of discussion, proprietary right is itself necessarily explained ; and the question is, whether property is deduced from the sacred institutes alone, or from other and temporal proof." The author then examines the arguments as to whether property is temporal or not. In the course of the discussion, he states that "an owner is by inheritance," and that "unobstructed heritage is here denominated 'inheritance ;' " vv. 12 anject-ra!»tter of a suit between the date of FULL BENCH RULINGS. 749 institution of the suit and execution of the decree, as well as questions is67 relating to sums alleged to have been paid in discharge or satisfaction ""TJ ~ of the decree, or the like ; and any other questions arising between the Velaett Begum parties to the suit in which the decree was passed, and relating to the v. execution of the decree, shall be determined by order of the Court *Pebs*ai). executing the decree, and not by separate suit, and the order passed by the Court shall be open to appeal. Provided that, if upon a perusal of the petition of appeal and of the order against which the appeal is made, the Court shall see no reason to alter the order, it may reject the appeal, and it shall not be necessary in such case to issue a notice to the respondent, before the order of rejection is passed." Questions of the greatest importance may arise under that section ; and the order of the Court would be substantially a new decree in reference to such matters. Act VIII of 1859 was clearly before the Government when the Charter of the High Court was passed, inasmuch as the procedure of that Act is directed by the Charter to be followed. Therefore, whether they had s. 11, Act XXIII of 1861, or s. 283, Act VIII of ] 859 in view, they must have seen that, by the Code of Civil Procedure, several questions might arise for determination in the execution of a decree, which might involve matters of considerable importance and considerable value ; and having that Code before them they allowed an appeal "from any final judgment, decree, or order," leaving out the word " decretal " which was used in connexion with the word "order" in the Eules of 1838 relating to appeals to Her Majesty in Council. Under these circumstances, there is no doubt that an appeal will lie from an order made by this Court in a case in the miscellaneous depart- ment relating to the execution of a decree, provided the amount or matter in issue exceeds Es. 10,000 as well, as has already been stated, in any other case in which the Court shall, for any other reasons, admit an appeal when the amount or value is less than Es. 10,000. It does not matter whether we refer to the old Charter or to the present one, because on this point there is no substantial difference between the clauses of the old and new Charters. 51 750 ETSIiL BENCH EULINGS. Be/oi-i Sit Barnes Fkacock, Kt., Chief Justice, Mr, Justice Loch, Mr. Justice Kemp, Mr. Justice Seton-Karr, Mr. Justice Phear, and Mr. Justice Macpherson, 1867 QUEEN 0. SHEIKH BAZU and othees.* July 27. Power of High Court — Alteration of Verdict and Sentence — Criminal Procedure Code (Act XXV of 1861_),«s. 402 to 407— Joint Charges. The High Cotirt has no power, either as a Court of Appeal or as a Court of Eevision, to reverse, alter or set aside a verdict of acquittal even ii it be contrary to the evidence (1). A Magistrate should not send up joint charges to the Sessions Goart against persons who take part in a riot on opposite sides, as they have not a common object. But where a person had been So jointly charged, and rightly convicted by the Sessions Cotirt, Seld (Macpheeson, J., dissenting) that, as the prisoner had not been prejudiced by the mistake of the Magistrate, there was no sufficient ground for setting aside his conviction or ordering a new trial (2). The question whether, when a prisoner has been convicted and gentenced by a lower Court, the High Court, acting as a Court of Eevision under s. 104 of the Criminal Procedure Code, or as a Court of Appeal, has power to set aside the conviction and sentence, and to declare the prisoner guilty of a different offence and pass a different sentence upon him, or to send the case back for a new trial, was referred for the opinion of a FuU Bench by Loch and Macpherson, JJ., under the follow- ing circumstances : Moti Mondul, Seeboo and Megha were charged (among other charges) with the murder of Solim. There was on the evidence no doubt whatever that Solim died from the effects of a blow on the head which he received in the course of a riot in which the prisoners took part ; but it was not proved who struck the fatal blow. There was little evidence as to what occurred upon the occasion of the riot, beyond the fact that when the Police, on information received from the prisoner Bqzu (who had himself been wounded), repaired to the spot, they found Solim lying senseless on the ground, with Moti Mondul lying not far off with several very severe sword-cuts, Seeboo and Megha being also there, and wounded, though less severely. From tlie statements made by the prisoners themselves, as well as from other evidence, it appeared that quarrels, accompanied by litigation, had for some weeks been going on between Moti Mondul and the deceased. They lived in the same * Committed by the Magistrate and tried by the Sessions Judge of Mymensingh. (1) See Qtieen v. Chandrakani Chucherbuttt/, 1 B. L. R., A. Cr., 9; and Queen v. Garachand Ghose, 3 B. L. E;, F. B., 1; see also Act X of 1872, ss. 280, 297. (2) See Act X of 1872, ss. 283, 297. FULL BENCH KULINGS. 751 Tillage, and all the villagers appeared to have taken tJbe side of either the one or the other. Of the particular riot in the course of which Solim received the blow of which he died, the Judge said : " It would appear that the commoa object on Moti Mondul's side was to put an end to the case Solim had brought, and to punish liim and his witnesses. Murder probsjbly was never intended, but Solim met his death in the riot." The Judge's finding as to the prisoners Moti Mondul, SeebOja and Megha was as follows : — "I find that they were members of the same riotous party which, in prosecution of a common object, caused the death of Solim. I find no intention to cause death proved. I am unable to state with what weapon Solim waS killed. I con sider the crime does noit come under any of the clauses in s. 300, but think that there must have been a knowledge that death was likely to result from the proceed- ings in this riot, and I consider the prisoners all equally guilty under the latter part of s. 304, and sentence each of them to five years' rigorous Imprisonment." The conviction was for culpable homicide pqt amounting ito murder, the Court holding that the prisoners caused the death of Solim by acts done " witli the knowledge that their acts were likely to cause death, but without »ny intention to cause death, pr to cause such bodily injury as was likely to cause death." A fourth prisoner, Bazu, who had been one of Solim's party in the riot in which the latter met his death, was tried together with Moti Mondul, Seeboo and Megha, on a charge of causing grievous hurt to Moti Mondul, and being convicted was sentenced by the Judge. All four prisoners appealed to the High Court. The appeal came on for hearing before Loch and Macpherson, JJ., who were of opinion that, on the facts, as found by the Judge, the conviction of the first three prisoners ought to have been for murder. Locli, J., observed, that he saw no objection to the sentence passed on Bazu, and would confirm it. Macpherson, J., took a difiereut view. In consequence of this difference of opinion and a doubt as to tlieir power to alter the sentence passed on the first three prisoners, the learned Judges referred the case jto a Pull Bench. In referring it the following reraacks were piade by Macpherson, J. : "I am inclined to think that we ought to follow the rule laid down in Gorachand Gope's case (1), inasmuch as the Judge has not found an absence of the iutention mentioned in cl. 3 of s. 300, and inasmuch as the facts found by him clearly bring the case within the terms of this clause, and show that the conviction for culpable homicide not amounting (1) Ante, p. 443. 1867 «. Sheikh Bazu. 752 FULL BENCH RULINGS. 1867 to murder is, on the facts found by the Judge, wrong in Inw. It seems Q^jj,j,jj to me that we should, in reversing this conviction, be acting in V. accordance with the decision of the Court in the case which I have Sheikk Bazu. just mentioned. But I entertain doubts on the subject which arise chiefly from the decision in the case of Toy ah Sheikh (1), which in some respects conflicts with the decision in Gorachand Gope's case (2). I think that the question ought to be referred to a Full Bench. " As regards the prisoner Bazu, I think he ought not to have been tried along with the other prisoners. Bazu belonged to Solim's party, the common object of which party was the very opposite of the common object of Moti Mondul's party. Moti Mondul, Seeboo, and Megha are tried and punished for the murder of Solim : Bazu is tried and punished for a wholly different offence, the causing grievous hurt to Moti Mondul. These two charges cannot be properly lumped up together and tried as one offence in which all the prisoners are jointly concerned : and prisoners never can be rightly tried together unless for an offence in the commission of which they are all charged with being jointly implicated. In the riot Moti Mondul received several very bad sword-cuts, which might have caused his death. He has recovered ; and surely if Bazu is to be tried for the grievous hurt done to Moti Mondul, it is only reasonble, if not absolutely essential to the ends of justice, that the injured iflan should be examined as a witness, and that the Court should hear from the witness-box what he has to say on the subject. " It seems to me that, when there is a regular fight, as in this case, between two distinct parties, tho object of the one being directly the opposite to the object of the other, the two parties never can be properly put on their trial together when charged with culpable homi- cide of whatever kind. " I think that the conviction and sentence and all the proceedings as against Bazu ought to be set aside, and that a new trial should be had as regards him. As Mr. Justice Loch does not concur with me in the view I take as to the conviction of the prisoner Bazu, and as the question seems to me to be one of very great importance, I think that it is desirable that this question also should be referred to a Full Bench." The following judgments were delivered by the Full Bench :— Peacock, C.J. (Baylet, Kemp and Seton-Kake, JJ., concurring).— 1 cannot concur in thinking that the conviction of the prisoners of (1) 6 W. E., Cr., 2. (2) AnU, p. 443. PULL BENCH RULINaS. 755 culpable homicide not amounting to murder can be set aside, and the jgg_ conviction of murder substituted by this Court either as a Court of — •' Queen Appeal, or as a Court of Revision, and I am of opinion that the case "• 1 1 1 n . , Sheikh cannot be sent back for a new trial. Bazu. One of the leading principles of the Code of Criminal Procedure is, that there can be no appeal from a judgment of acquittal, and that this Court cannot, as a Court of Revision, alter the finding of a Court of Session upon any question of fact. An appeal lies upon law or fact : revision is only in respect of matters of law, or too great severity of sentence. On appeal, a judgment of acquittal cannot be reversed ; on revision it cannot be reversed upon the ground that the evidence would have warranted the Judge in finding the prisoner guilty of a more aggravated ofience than that of which he was convicted. If a prisoner is charged with murder, and also with culpable homicide not amounting to murder, with reference to one and the same act of killing, if he is convicted of culpable homicide not amounting to murder, he is substantially acquitted of murder, and the Court cannot, upon appeal, hold that tlie evidence was sufficient to warrant a conviction of murder, and alter the conviction accordingly, or reverse the findiig and send the case back for a new trial. In the case of Gorachand Gope (1), it was held that this Court, as a Court of Revision, might set aside a judgment of acquittal for error in law, and either pass a proper sentence, or order a new trial, according to the circumstances of the case. The case supposed was one in which the facts found would show that the acquittal was wrong in law, not that the evidence would have warranted a difierent finding on the facts. In that case the Court said : " Suppose the decision of a Judge should be monstrously absurd. Suppose, upon an indictment for murdering a child, the Judge and the Assessors should find that the prisoner caused the'death of the child by doing an act with the inten- tion of causing its death, and that the case did not fall within any of the exceptions mentioned in s, 300 of the Penal Code. But suppose they should also find that the child was under the age of six months, and the Judge should hold that it was not murder to kill a child under that age, and should therefore acquit the prisoner, and order him to be discharged, — could it be contended that the judgment of acquittal could not be set aside, and that the prisoner should go free for ever ? I apprehend that the Court, as a Court of Revision, would clearly have the power to set aside the judgment of acquittal, and declare that, upon (1) Ante,v,i43, 754 PULL BENCH RULlNGB. 1867 the facts found, the prisoner was guilty of murder, and send the case Q^^^jg back to the Judge, ordering him to apprehend the prisoner (if he had »• been discharged) and to pass the proper sentence upon him. If, in Bazu. the case above supposed, the Judge were to say, it is not necessary to try whether death was caused by an act done with the intention of causing death, because, if it was so caused, the prisoner was not guilty of murder. I find that the cliild was under the age of six months, and therefore acquit the prisoner. In such a case there would be no finding on the facts, and the Court, as a Court of Revision, would merely set aside the acquittal and order a new trial. I have supposed an error in law which is not likely to occur. I put it merely as an jjlustration ; there are many constructions of law equally erroneous, though not so clearly so." In the case of The Queen v. Toyab Sheikh (1), this Court held that, by finding the prisoner guilty of culpable homicide not amounting to murder, the Sessions Judge and Assessors had, in substance and effect, acquitted him of culpable homicide amounting to murder, and conse- quently acquitted him as well of any intention to cause death, as of the knowledge that the act done was so imminently dangerous as to bring the ease within the provisions of cl. 4, s. 300 of the Penal Code, They say : " It appears to us that by finding the prisoner guilty of culpable homicide not amounting to murder, the Sessions Judge and Assessors in substance and effect acquitted him of culpable homicide amounting to murder, and consequently acquitted him as well of any intention to cause death, as of the knowledge that the act done was so imminently dangerous as to bring the offence within cl. 4, s. ^00, in the same way as they would have acquitted him, if they had expressly found that he caused the death with the knowledge that the act was likely to cause death, but without the intention mentioned in cl. I, 2, or 3 of s. 300, and without the knowledge mentioned in ol. 4 of that section. If they had expressly acquitted him of murder in that way, it would not have been competent to this Court, either as a Court of Appeal or as a Court of Eevision, to find that, according to the evi- dence, the prisoner caused the death with the knowledge mentioned in cl. 4, for whether the death was caused with that knowledge or not, was entirely a question of fact. As a Court of Appeal they could not have done so, in consequence of s. 407. As a Court of Revision they could not have done so, as the error was not one of law, nor was the sentence illegar(see ss. 403, 404, 405 of the Code of Criminal Procedure). However wrong the Court may think that the Sessions Judge and (1) 6W.E„Cr.,2. QUBEN FULL BENCH RULINGS. 755 Assessors were in acquitting of murder, they have no powefj in our jggy opinion, to correct the error. However inadequate they may consider the sentence, they have not, in our opinion, any power to enhance it, as Sheiikh the sentence is one which is authorized by law, for the offence of which Bazd. the prisoner was found guilty." In that case the question had reference to cl. 4, s. 300. In this, to cl. 3 of the same section. If that decision is correct — and I, cannot doubt that it is so — the principle laid down applies equally to cl. 3 as to cl, 4. The present case falls within s. 299 ; it does not fall within any of tlie exceptions to s. 300. Still it is not necessarily a case of murder. It does not follow that a case of culpable homicide is murder, because it does not fall within any of the exceptions in s. 300. To render cul- pable homicide murder, the case must come within the provisions of cl. 1, 2, 3 or 4 of s. 300. In the present case it has been found that there was no intention to cause death. The case, therefore, does not fall within cl. 1. It is not contended that it falls within cl. 2 or cl. 4, consequently it is not murder unless it falls within cl. 3 of s. 300. Was then the act done with the intention of causing bodily injury, and if so, was the bodily injury intended to be inflicted sufficient, in the ordinary course of nature, to cause death ? The Judge has not found that the bodily injury intended to be inflicted was suflicient, in the ordinary course of nature, to cause death. He finds expressly that the case does not fall under any of the clauses of s. 300 : and the facta found do not show that he was wrong, in point of law, in holding that the case did not fall within any of those clauses. If he had found that the act was done with the intention of causing bodily injury to the deceased, and that the bodily injury iutended to be inflicted was sufficient, in the ordinary course of nature, to cause death, the facts so found would have shown that he was wrong in law in holding that the case did not fall within any of the clauses of s. 300 ; for the facts so found would have shown that it fell within cl. 3 of s. 300. If he had found that fact, the case would have come within the principle.of Gorachand Gope's case (1); not having found the fact, the case comes under the rule laid down in the case of The Queen v. Toyab Sheikh (2) above cited. The evidence might have justified the Judge in finding the fact : but that merely shows that his finding did not coma up to the point which the evidence would have justified ; it cannot authorize this Tourb to look at the evidence for the purpose of reversing the acquittal of murder, and of convicting the prisoner of that offence (1) Ante p. 443. (2) 5 W. R., Cr., 2. 756 PULL BENCH KULINGS. igg7 The finding of the Judge that there was no such knowledge as Qpj,j,j, would bring the case within cl. 2 or cl. 4, coupled with his omission to "• find that the bodily injury intended to be inflicted was not sufficient, Bazu. in the ordinary course of nature, to cause death, is not tantamount to a finding that the injury intended was sufiicient, in the ordinary course of nature, to cause death, nor can it authorize this Court to find that it was so, and to reverse the Judge's finding that the case did not fall within cl. 3 of s, 300, which was included in his general finding that the case did not fall within any of the clauses of that section. If the Court was right in Toyab Sheikh's case (1) in holding that the Judge and Assessors, by finding the prisoner guilty of culpable homicide not amounting to murder, not only acquitted him of an intention to cause death, but also of the knowledge that the act done was so imminently dangerous as to bring the offence within cl. 4, it is clear that a similar finding in the present case must amount to an acquittal of an intention to inflict such bodily injury as would be sufficient, in the ordinary course of nature, to cause death. It is said that the Judge has not found that the injury intended to be inflicted was not sufficient, in the ordinary course of nature, to cause death. Suppose that he had expressly found that it was not sufficient, it is clear that this Court could not have altered his finding, in that respect, for the purpose of altering his conclusion, that the prisoner was guilty of culpable homicide not amounting to murder, or in other words, of reversing his acquittal of murder, and of convicting the prisoners of that offence. Suppose a jury in a special verdict had found the facts as the Judge has done. It is clear that such a verdict would not have amounted to a verdict of guilty of murder, and that the Court could not have supplied the necessary fact by finding that the injury intended to be inflicted was sufficient, in the ordinary course of nature, to cause death. Nor could the Court have presumed that the jury intended to find that fact in the affirmative, merely from their omission to negative it. It would be much more reasonable to infer (if the law allowed inferences at all in such a case) that the jury considered that their omission to find in the negative would never be considered to amount to a finding in the affirmative. I am clearly of opinion that this Court cannot add a fact to the finding of a Judge or jury in the case of acquittal, even if the omission was contrary to the weight of evidence, any more than it can reverse or set aside a judgment of acquittal, if it is clearly contrary to the (1) 5 W. E., Cr„ 2, FULL BENCH EULINGS. 757 evidence. The appeal ■will therefore be dismissed as regards the three i867 prisoners named above. Queen The Magistiate was wrong in sending up joint charges against sheIkh persons who took part in the riot on opposite sides, for the two parties Bazu. had not a corannon object. Tlie Judge, however, took a right view of the case as regards the prisoner Bazu in deciding whether he was innocent or guilty. This prisoner has had a fair trial ; he has not been prejudiced by the error of the Magistrate ; and in my opinion there is no ground for setting aside the verdict, or reversing the conviction or sentence. The appeal must be dismissed as regards this prisoner. Pheab, J. — I agree generally in the judgment of the Chief Justice. We cannot interfere under the circumstances of the case of Motee Mondul, Seeboo, and Megha, unless we see, on the facts found by the Judge, that he has committed an error of law. It is said that he has committed such error by finding facts which amount to the crime of murder on the part of the prisoners, and yet acquitting them of that crime. I do not think that he has found facts sufficient to support a charge of murder. On the contrary, he finds expressly that this case does not fall under any of the clauses of s. 300. If this finding stood alone, it seems to me that it would, without doubt, be taken to amount to a negativing of the facts mentioned in those clauses as material to the, crime of murder. Then is there anything in the rest of the judgment to modify it ? I think not. The Judge no doubt goes on to expressly negative the facts of two of those clauses, and omits at the same time to say anything with regard to those of the third, although he finds that death was caused by the bodily injury intended to be inflicted ; and, no doubt, if that injury was in itself such as would, in tiie ordinary course of nature, be sufficient to cause death, the requisites of that third clause would be complied with j still he stops short of here saying in words that it was so sufficient. I cannot from his silence in this place, coupled though it be with his express denial of the facts in the other clauses, infer that he meant to affirm the sufficiency of the injury, in the ordinary course of nature, to cause death. This being so, it seems to me that his previous general finding is untouched, and therefore it is impossible for me to say tiiat he has made the error in law wliioh has been alleged. As to Bazu's case, I think it was extremely improper that this prisoner should have been tried jointly with the other prisoners. 52 758 FUJili BENCg f^ULINGS. 1867 T> 3 pee with Trhich hS was charged was entirely distinct from Queen ^^oS' ' '' ;ed against them. So far was he from having any common Shbikh purpose ith them in regard to the conduct which formed the basis Bazu. of p^Q (jIj rges, that he and they were clearly members of bitterly hostile pai ties respectively. However, I do not see from the materials before me, that any injustice has been done to the prisoner by reason of tljie irregularity of the trial ; and, indeed, I am disposed to believe that he has, under the peculiar circumstances of the case, been rather advantaged thereby than otherwise. I therefore do not think that there is here any sufficient reason for ordering a new trial. l^ACPHEESON, J. — On further consideration 1 think (as regards the first three prisoners) that, as the Sessions Judge has expressly said that the pase does not fall within any of the clauses of s. 300, he must be held to have found (however erroneously) such a state of facts as does not amount to murder, and to have acquitted the prisoners of that offence, nptwith Standing the apparent modification of his first finding by his subsequent more detailed finding as to the knowledge and intention with which the act which caused the death was done. I, therefore, concur in the opinion that we cannot, as a Court of Appeal or Eevision, !}lter the finding or acquittal, and convict the prisoners of murder. As regards the prisoners Bazu, I remain of the opinion which I expressed in referring his case to a Full Bench for decision. LoGH, J. — I concur with Mr. Justice iVTacpheraon regarding the three prisoners convicted of culpable homicide pot amounting to murder. With regard to the prisoner Bazu, I think the preferable course would have been to have committed hira separately ; but I see no sufficient grounds under the circumstances to order a new trial. FtJLt feENCH RtltlKfeS. 75^ Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Kemp, Mr. Justice L. S. Jackson, Mr. Justice Mdcpherson, and Mr, Justice Glover. PROSONNO COOMAR PAUL CHOWDHRY and another (Defendants) v. KOYLASH CHUNDER PAUL CHOWDHRY and otheks (Plaintiffs).* Jurisdiction — Collector — Estoppel— Question referred not arising in case. la executioa of a decree of the Revenue Court in a suit brought by K for arrears of rent of a certain putnee, the putnee was put up for sale and purchased in the name of G. The rent having again fallen into arrear, K. took proceedings against G., under Regulation VIII of 1819, for the sale of the putnee ; but the arrears having been paid, the putnee was not sold. In a suit for arrears of rent of the same putnee, subsequently brought by K. against G., P. and B. (the wife of P.) jointly, on the allegation that the putnee had been purchased by G. benamee for P. and B. Seld, first, that the Collector had no jurisdiction to try questions relating to rent depend- ing upcin equitable rights add liabilities arising from circumstances otlier than those of the relationship of landlord and tenant (1). Held, secondly, that the suit was not barred by the forrtter proceedings instituted by K. against G. under Regulation VIII of 1819 (2). Kemp and Maophekson, JJ,, were of opinion that the first question referred did not arise in the case, and therefore should not have been answered (3). The plaintiffs sued G-opaul Chunder Mookerjee, trosonno Cpomar Paul Chowdhrj and his wife Benodemonee Cbowdhranee m the Revenue Court for the rent due under a putnee, and obtained a decree, under which the putnee was put up for sale aiid purchased in the name of the defendant Gopaul Chunder Mookerjee alone. After the sale the plaintiffs treated Gopaul Chunder as their tenant, and, the rent after the sale having again fallen into arrear, presented a petition under Regulation VIII |of 1819 for the sale of the putnee for such arrears, which they alleged to be due from Gopaul Chunder Mookerjee. The rent having been paid, however, the putnee was not sold. The present suit was brought in ths Collector's Court by thb plaiht- iffs for subsequent arrears against Gopaul Chundet Mobkeijee, Prosonno Coomar Paul Chowdry and Lis wife Benodemonee jointly, it being alleged that the two last named defendaiits had pu';chased th^ estate in tiie name of* Gopaul Chunder Mookerjee bendtne for them. * Regular Appeal, No. 236 of 1866, from a decree of the Deputy Co ^' - of the 24-Pergunnahs, dated the 27th June 1866. (1) See Eoy Priyanath Chowdry V. Bipin- Khanum, 11 B. L. R., 434, --„i I of behari Chuckerbuity, 2 B. L. R., A. C, 237 ; 1872, ss. 40 & 43. and Bipinbehari Chowdhry v. Eamohandra (3) See Indra Chandra Dug- .' v, Brinda- Roy, 5 B. L. R., 234. ban Bhara, 8 B. L. R„ 251. (2) See Chunder Coomar Mundul v. Nunee 1867 ' Sept. 23. 760 1867 FULL BENCH KULINGS. Evidence was given to show that part of the purchase-money was Pkosonno paid with notes which were the proceeds of sale of a putnee which COOMAE Paul , , . ,, n t, , -r. , • n i Chowdhry stood in the name of Beiiodemonee. But there was no evidence as to KoYLASH ^^^ persou by whom the remainder of (he purciiaae-money was paid. Chundeb It ^ag further in evidence that the treasury of the husband and wife Paul •' Chowdhbyi was a joint treasury. The case came on in appeal before the High Court (Peacock, C.J., and Loch, J.) who, in consequence of a conflict of decisions, referred the following questions for the opinion of a Full Bench : 1. "Whether the Collector was competent to try whether Prosonno Coomar Paul Chowdhry ^lone was beneficially interested in the putnee which was bought la the name of Gopaul Chunder, upon the ground that whatever interest his wife might have had in it was benamee for him; or whether Prosonno Coomar and his wife were jointly beneficially interested in the putnee which was bought ia the name of Gopaul Chunder, or if not jointly what were their respective interests therein, for the purpose of ascertaining whether Prosonno Coomar and his wife were jointly liable for this rent, or whether they were to be rendered liable according to their respective beneficial intereists in it ? " 2. " Whether the lessors, having made their election to treat Gopaul Chunder as their tenant when they petitioned, under Regulation VIII of 1819, for the sale of the putnee for arrears of rent, can now elect to treat the persons beneficially interested as their tenants ? " The case was referred with the following remarks by Peacock, C.J. (who, after stating the facts and the first question to be referred, continued). — There are several cases to show that persons may be responsible in equity to pay rent, although they are not the legal ten- anls, or legally responsible. It is very doubtful, however, whether, in such cases the liability which would have to be enforced in a Court of Equity in England could be tried and enforced by a Collector under Act X of 1859. Two of the cases in which persons, not responsible at law, have been held responsible in equity for the payment of rent and performance of covenants in a lease are, Clavering y. Westley (1) and Lucas v. Comerford (2). In the first case cestuis qtte trust of a lease taken in the name of a trustee, were held liable to make good, according to their respective beneficial interests, the rent due from the trustee, in the event of the lessors being unable to recover it from him. In that case, the (1) 3 P. Wm,'s, 402. (2) 1 Yes., 236, PULL BENCH RULINGS. 761 equity agninst the cestuis que trust appears to have resulted from the fact ige? of their enteiing iato possession and talcing the profits. la Lucas v. Pkosonno Cower/brd (1), whicli is also referred to iu Wilkins v. Fry (2) as an Chowdhry authority, it was held that a person with wliom a lease had been koylash deposited as a security for a debt, and who had entered into possession CinjNDEK of the property, was bound to take a legal assignment of the lease Chowdhky. in order that he might be responsible in law for the performance of a binding covenant contained in it. There are other cases in which persons have been decreed to be equitably liable for rent'for which they could not be made legally responsible. In similar cases in this country, if the same equities could be enforced here as in England, there would be strong grounds for contending that those equities must be enforced in tlie ordinary Civil Courts, and not in the Court of a Collector under Act X of 1859. We will not express any opinion upon that point until it has been argued in the Full Bench. Several cases have been cited, from which it may be contended that the Collector has the power to try whether a person, who is not the actual tenant, is or is not equitably respon- sible for the rent. The first case is tliat of Goluck Chunder v. Teluck Ghunder (3) and the other Heeraloll Bukshee v. Rajkishore Mozoom- dar (4). There was also a case before Bayley and E, Jackson, JJ., decided on the' 17th December 1863, and another by Trevor and Loch, JJ., on the 6th June 1862, which bear upon this question, but which have not been reported. The second question, which we refer for the opinion of the Full Bench, is whether the lessors, having made their election to treat Gopaul Chunder as their tenant when they petitioned under Regulation VIII of 1819 for the sale of the putuee for arrears of rent, can now elect to treat the persons beneficially interested as their tenants. On this point, the case of Sheikh Kamyab v. Musst. Omda Begum (5), decided on the 27th June 1864, is an authority to show that, having once elected to treat the furzee as their tenant, they cannot now sue the beneficial owner. The. Deputy Collector, in his judgment in this case, has drawn a distinction between that case and the present. With regard to the case of Heeraloll Buhshee v. Rajkishore Mozoomdar (4), which was decided by rae among other Judges, there appears to have been no question raised as to the extent of the beneficial interests of the defendants, inasmuch as (1) 1 Ves., 235. (4) 1 Hay's Rep,, 449; S. C, W. K., (2; 1 Mer., 264. Spl. No,, 58, (3) S, D. A., 1862, 283, (5) W. K., January to July 1864, Act X Eul., 88. 762 ^ULL BENCiH RULmdJ^. ]gg7 there was only one person sued as the defendant in that case. The case ~ was one of special appeal, and was treated as if the person who took PuOSONNO , CooMAR Paul the lease in that case had taken it in his own naine, as agent for an Chowdhry V. unknown principal. That case was decided upon the rule applicable Chonder to contracts made by agents for unknown principals, and not upon the ChoWdhky. ground that the Collector could deal with equities, and adjust the pro- portions in wliich cestuis que trust can be made liable for rent for which their trustee is legally responsible. In this case, the lady denies having any right or interest. The pliiintiff is willing to abandon all claim against her. Tlie husband contends that the plaintiff cannot abandon his claim against the wife if she is liable for any portion of the rent, and miike him. liable for the wiiole if he is not liable for it ; that the question must be determined whether the wife is beneficially inter- ested in any, and what, proportion ; and that the Collector cannot try that question. It appears to us that the plaintiff has no more ri^ht to abandon his claim against the lady, and to say that the husband is wholly responsible, than he would have to abandon his righi against the husband, and say that the lady is solely responsible, Mr. R. V. Doyne (with him Baboos KiSsen Kishore Ghose and HeMi Chunder Barlerjee) for the appellants. Mr. R. T. Allan and Baboos Onoocool Chunder Mookerjee, ahd Otbol Chunder Mookerjee for the respondent. The opinions of the Full Bench were as follows : — Glover, J. — ^It appears to me that we ought to answer both the questions submitted by the Divisional Bench. It may be that they were not raised in the Courts below, and that the objection was not taken here when the appeal was first heard. But it cannot he said that the points are not deducible from the pleadings, and it is clear that they were taken and argued at considerable length before the Division Bench which heard the case after remand. It appears to me, further, tliat that Bench would have been justified in referring the question to the Full Bench of this Court, whether it had or had not been opened by the parties to the appeal, if it considered the point to be one of importance, and concerning which contradictory rulings of Division Benches were in existence. A Full Bench of this Court is, I conceive, bound to afford every possible assistance to the Division Benches, and to give them the benefit of its authoritative opinion on all points referred, which are in any way deducible from the case sent up. Indeed, I am by no means certain that it ought not to take iuto FULL BENCH RULINGS. 763 consideration any and every question of law whicli a case might involve, 1867 whether it were apparent on the pleadings or not. However, there Pkosonno is no necessity for my going so far in the present case, as the points Chowdhey''^ at issue, though not directly raised, are certainly to be found in the koylash pleadings. '^pXf" I think that the first question should be answered in the negative, and Chowdhey. that the Collector had no jurisdiction, under Act X of 1859, to decide as to the amount of beneficial interest, if any, possessed by the three co-defendants. The ptoper Court to decide the equities between them, and to fix their liability to pay rent, would be the Civil Court, and that Court would have to find the relationship of landlord and tenant, and the extent of each person's interest, before the Collector could come in and adjudicate the rent due under Act X. On the second question proposed, there can, I think, be no doubt whatever that a person suing a zemindar in the first instance is not estopped thereby from hereafter suing those whom a more correct and searching enquiry has shown to be the real beneficial owners. This question, therefore, should be answered in the aflirmative. Macpheeson, J. — The first of the questions raised on this reference is one upon which it appears to me that this Court ought not to give an answer (to the full extent of the question) inasmuch as the points raised do not properly arise in the case. 'Being of opinion that the question does not arise in the case, I am only following the practice which has been acted upon frequently by Full Bench Courts, if I decline to return any answer to it. In the case of Girishchandra Lahury v. Fakir Chand. (I), a reference was made to a Full Bench by Loch, J., and myself upon a most important question in which we difieted from a judgment of another Division Court. We referred a general question as to the position of the assignee of a decree. " In the event of there being cross-decrees, and one of these decrees being transferred by the decree-holder to a third party in a bona fide sale, without any special notice to the purchaser of the existence of the cross-decree, whether the purchaser does not take it with all the liabilities and equities of the vendor which attached to it." The case came on before the Full Bench, and the Court decline'd to answer the question which we put upon the ground that that question did not arise upon the facts as stated by us. The Court (of which I myself was a member) held that upon the facts us stated by us, it was unnecessary to answer the question, (1) Ante, p. 603. 764 FULL BENCH KULINGS. 18S7 remarking, " it is, therefore, unnecessary for us to determine whether Prosonno the assignment made any difference or not. If we were to determine Chowdhbt"^ ^^"'^ point, our decision would be a mere obiter dictum." _ "• In that case, the fact that a decision upon the particular point refer- , Chunder red was not absolutely necessary appeared from tlie statement of the Chowdhkt. case sent up by the Judges who referred it. So in the present instance; a decision on this first question (to its full extent) appears upon the face of the statement of the referring Judges to be unnecessary. The plaintiffs are, in the order of reference, stated to be suing, "alleging that the estate was purchased by Piosonno Coomar Paul Chowdhry and his wife in the name of Gopaul Chunder Mookerjee benamee for them." It appears to me that upon a plaint setting up * such a cause of action, the various issues as to remote beneficial interests and equities which have been suggested in the first question referred to us do not arise. And, as a matter of fact, no such issues ever were raised by any of the parties, whether plaintiffs or defendants, in their plead- ings, or before the lower Court, or before Loch, J,, and myself when the case was before us in January last, and we sent it back in order that further evidence might be taken on behalf of one of the defendants. Again the case of Gopal Chunder Roy v. Gooroo Doss Roy (I), in which the Full Bench was of opinion that the point which had been (1) Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Norman, Mr. Justice Loch, and Mr, Justice Pundit, The 10th February 1867. GOPAL CHUNDER ROY (Defend- ant) V. GOOROO DOSS ROY(Plain- TEFI').* Question referred not arising in Case. Qaestion referred not answered on the ground that it did not arise in the case. This case came on in special appeal before Bayley and E. Jackson, JJ., when the following question was raised : — Whether, where a pottah, purporting to he of a date anterior to the Decennial Settlement, is filed, and is found as a fact to be a forgery, the party propounding such forged pottah can have the benefit of the presumption arising from paying fixed rents for twenty years under s. 4, Act X of 1859. The ruling of Pundit and Morgan, J.T., on this point, in Sreenath Doss Moonshee V. Shibhristo Base (a), being in conflict with that of Steer and Levinge, JJ., in the case of Omeshchunder Biswas (6), their Lordships referred the case for the opinion of a Full Bench. Baboo Bhugobutiy Churn Ghose for the appellant. Baboos Kissen Kishore Ghose and Sree- nath Doss for the respondent. The opinion of the Pull Bench was delivered by Peacock, C.J. — It being admitted that this suit was brought before Act X of * Special Appeal, No. 3067 of 1864, from a decree of the Officiating Additional Judge of Jessore, dated the 13th August 1864, reversing a decree of the Sudder Ameen of that district, dated the 28th December 1861. (a) 1 W. K., 159. (6) Unreported. FULL BENCH RULINGS. 765 referred did not arise under the circumstances, and the Court declined iggy to give any opinion. Tliere the case, as stated by the referring Judges, ~~Z did not disclose such a state of facts as showed that the question Coomar Paul referred did not arise. lu the case of Ram Kanth Chowdhry v. Bhubun v. iJfoAwre jBmoa« (1) the Chief Justice, upon tiie ground that it did not Chundkb arise in the case, did not answer the question referred, but the rest chowdhrt of the Court did answer it. Upon these authorities, I think that we ought not to decide the first question to its full extent. But some part of the question does arise in the case, and that part I am prepared to answer. I think there is no doubt ■whatever, both on the authority of the decision in the case of Heeraloll Bukshee v. Rajkishore Mozoomdar (2) and of the other cases referred to, and on the general construction of Act X of 1839, that the Collector has power to try the question raised in the plaint in this suit, that is to say, to try the question v^hether or not Prosonno Coomar and bis wife, or either of them, purchased this putnee benamee in the name of Gopaul Chunder. I have no doubt the Revenue Courts have jurisdiction to try whether these defendants or either of them, by reason of their own possession, or that of their agent, are in the position of tenants towards the plaintiffs, whether, in short, they are substantially the tenants of the land and, as such, liable for the rent now sued for. As regards the second question, whether or not the plaintiffs are estopped in the present suit from proceeding against the defendants who are said to be principals, on the ground that they formerly took proceedings against the defendant, their agent, in order to recover rent for a period different from that the rent for which is now sued for, it appears to me that the former proceedings are no bar whatever. The present suit is no doubt wrongly brought, in so far as it is brought against both the principals and their agent, and the plaintiffs ought to have been put to their election as to whether they would proceed against the agent or against the principals. This is the only point (bearing on the second question) that was decided in the case of Sheikh Kamyab v. Mussamut Omda Begum (3). That case does not decide that, because the agent was formerly proceeded against, the ' 1859 came into operation, the question has been referred to us does not arise. does not arise whether a party who has The case will go back to the Division propounded a, forged pottah could have Bench which referred it. the benefit of the presumption arising (1) Ante, p. 25. from paying a fixed rent for twenty (2) Hay's Eep., 449. years, s. 4, Act X of 1859, applying only (3) W. E., January to July 1864, Act X to suits commenced under the provisions Kul,, 88. of that Act. Therefore the point which 53 766 FULL BENCH RULINGS. 1857 defendants whoare now discovered to be the principals cannot be sued for Prosonno I'^'i'' ^^^' ^ different period ; it merely decides that a suit is bad where ^^Ch^owdJiky^ the principal and the agent are sued together as jointly liable. ^^ "• An unreported decision of the late Sudder Court, dated 6th June KOYLASH Chundek 1862, in Special Appeal No. 336 of 1861, was referred to as showing that Chovvdiiky. the present suit is barred. But it appears to me that the ruling in that case is not correct : and however that may be, the circumstances of that case are very different from those now before us. As regards the second question, I would answer that the present suit is not barred by the proceeding under Kegulation VIII of 1819. Jackson, J. — I am of opinion that both the questions proposed to us by the Division Court ought to be answered. I entirely agree witli Macpherson, J., in thinking that the Full Bench, on having a question referred to it for the decision of a particular law point, if, on looking into the case as far as it is necessary for the purpose, it should find that that law point does not arise, ought to desist from answering it. Very serious inconvenience arises from following an opposite course. For , instance, not vei'y long ago a question was referred by a Division Bench to a Bench of five Judges, namely, whether a decision inter alios was admissible in evidence, and was conclusive evidence against parties in a suit before the Division Bench. The Full Bench went very fully into the whole matter and decided that the judgment in question was not conclusive evidence, and was not admissible in evidence at all. Subsequently the question of admissibility arose before a Division Bench, ■ andthat Division Bench looking into the question which had come before lie Full Bench, came to the conclusion that the point whether or not such a judgment was admissible in evidence had not fairly arisen upon the case in which the reference took place, and consequently declined to accept the decision of the Full Bench as conclusive authoiity upon that point, and went on to decide the point on its own view of the law in the opposite sense to the decision of the Full Bench (1 ). It is quite clear to me that decisions of a Full Bench, if they are to be useful, must be conclusively binding on future Division Benches of this Court until they are afterwards set aside by the authority of the full Court or of a Court composed of a larger number of Judges. Therefore I would abstain from giving an opinion on any point unless I saw that it clearly arose in the case referred, as in the present state of the law there seems to be no power to state cases for the opinion of a Full Bench. (1) In Gopeenath Singh v. Anundmoye Debia, 8 W. R., 167. FULL BENCH RULINGS. 767 The question refenecl, now is, {His Lordship road the first question, ige? nnd continued). — !Now, it is said, that tliis question does not actually arise Phosonno upon the plaint. That, no doubt, is so. The plaint has been framed entirely chowdiiry upon the allegation that those two defendants, Prosonno Coomar and „ *'• his wife, had employed the defendant Gopaul Chunder to purchase the Chundkr talook for thera, and that they had since been in possession of the talook, Chowduky. that is to say, a question of agency. But I observe that the Collector has gone into the question of beneficial interest. He has raised, though uot very distinctly, the issue whether the otiier two defendants were beneficially interested in the talook or not. I also observe, as far as I had an opportunity of looking into the evidence, that evidence upon such an issue was adduced before the Collector. Now I presume the Collector is authorized to frame the issues, under Act VIII of 1859, not only from the plaint, but from the written statements and from the examination of pleaders or persons who appear before him. I would, therefore, ratlier prefer to presume that the Collector had found, in some examination taken before him, or in the written statements, an allegation that these defendants were beneficially interested in the talook ; and I the more readily do so, because the plaintiff adduced evidence to support such an allegation. The question being to that extent raised, I think fairly enough arises in the case before us to justify the Full Bench in giving an answer. .As to the particular answers to be given to the questions, I am quite clear that the Collector would not be competent to decide such a question as that involved in the first put to us by the Division Bench. This appears to be precisely such a case as in England would oblige a plaintiff to resort to a Court of Equity to obtain relief, and in which he would have no remedy at common law; and in like manner it seems to me to be such a case as is not within the jurisdiction of the Collector, who is restricted to try questions between a landlord and his actual tenants, persons between whom directly or indirectly some engagement has been entered into. But where the landlord seeks to make other persons liable by reason of their having a beneficial interest in the tenure, he must resort to the assistance of the regular Civil Courts, which take cognizance of all causes of action of which their cognizance is not expressly taken away. As to the second question, it appears to me also perfectly clear, that the plaintiff is not estopped by reason of his former proceedings against Gopaul Chunder, from now suing in the proper Court the defendants whom, upon further information, he has discovered, and whom he now declares to be beneficially interested. 768 FULL BENCH RULINGS. J8g7 I would, therefore, auawer the first question in the negative, and the Prosonno second question in ihe affirmative. CooMAK Paul Chowdhey Kemp, J. — I am of opinion that the first question put to this Bench SoYLASH jg Qug ^ijat (jQgg j^Q^ griso itt tliB pleadltiss, er in the case as the parties Chundeu r a > Paul put the case in the Court below. I think, tliereforej that we should decline answering the question. I also observe that neither in the plaint, nor in the written statements, nor in the case made by the parties before the Court below, was any question of remote liability or equities raised ; nor does any such question appear in the . Collector's proceed- ings, as is quite clear on referring to tlio decision of the Collector, who says : — "The defence, therefore, set up is that the purchase in Gopaul's name was benamee, he being merely the servant of the other defendants who are solely liable for the rent. The purchase not having turned out so profitable an investment as was believed, the real proprietors are now anxious to disclaim all connexion with the nndertenure, and repi'esent the ostensible proprietor as solely responsible to the zemindar. This is the only issue in the case, and it is an issue which, it has been ruled, the Revenue Courts must try." Therefore, in my opinion, the first ques- tion put before us does not arise either in the written statements or in the case made by the parties before the Court below, and I would therefore decline to answer it. As to the second question, I am of opinion that the plaintifi" is not barred by any proceeding which was taken against Gopaul Chunder under Eegulation VIII of 1819. Peacock, C.J. — I quite agree as to the second question that the plaintiff's having treated Gopaul Chunder as the tenant when he was not aware of the whole circumstances of the case, would not estop him from treating other persons as his tenants afterwards when he knew of those circumstances, if the facts showed that the other parties, and not Gopaul Chunder, were the tenants. With respect to the first question, it appears to me that it ought to be answered, and that it was one upon which the Division Court might fairly and properly ask the opinion of a Full Bench in order to enable it properly to deal with the whole case with reference to other decisions which have been passed by Division Benches. The object of referring cases to a Full Bench is to prevent conflicting decisions between Divi- sion BencheB,/S0 that one Bench shall not be deciding a question one way on one day, a second Bench deciding the same question another way on another day, and a third Bench probably deciding it differently from the other two oa a third day ; and that when a Court finds two conflicting FULL BENCH KULINGS. 769 decisions, or a decision conflicting with its own view of the ease, jggy instead of overruling the decision of a Bench having concurrent juris- Pkosonno diction, it should refer the matter to a Pull Bench, so that the public '^ch'^w^'dhry'' should not be subject to have conflicting decisions issued from the High ^ "• Court. In carrying out that rule, I have always endeavoured, as far as it Chundeb has been in my power, to assist the Division Benches by which questions Chowdhrt. have been referred, by examining the authorities bearing upon the point and by explaining the law upon the subject to the best of my ability and giving reasons for my opinions so as to settle the point as far as possible for cases in which it might arise in future. In the case which has been referred to— Girishchandra Laliury V. Fakir Chand (I) — the case was tliis, A. had recovered a judg- ment against B. in tlie Judge's Court, B. recovered a judgment against A. in the Court of the Principal Sudder Ameen, B. sold his judgment to C. who wished to enforce it against A. A. asked to be allowed to set off the judgment which he had recovered against B. in the Judge's Court, notwithstanding the sale by B. to C, who was a bond fide purchaser of the judgment recovered by B. against A. The question which was asked of the Court was (his : " In the event of there being cross-decrees, and one of these decrees being transferred by the decree-holders to a third party by a bona fide sale, without any special notice to the purchaser of the existence of the cross-decree, whether the purchaser does not take it with all the liabilities and equities of the vendor which attached to it." In the statement of the case referred for the opinion of this Court, it was shown that the judgment which A. had recovered against B. was in the Judge's Court, whereas the judgment which B. had recovered against A. was in the Principal Sudder Ameen's Court, and the Court came to the conclusion, whether right or wrong, that the two judgments, not being in the same Court for execution, could not be set off one against the other. Under the terms of Act VIII of 1859. Being of opinion, therefore, (hat one of those judgments could not be set off against the other, and could not have been set off even if it had not been transferred, the Court answered the question, and pointed out that those two judgments could not be set off one against the other, whether transferred or not, and it did not go into the other question which became unnecessary. The Court said: — "In this case the decree of the Judge's Court was not sent to the Principal Sudder Ameen for execution, nor was the decree of the Principal Sudder Ameen sent to the Judge's Court for execution. The case, therefore, does not fall within the provisions of s. 209. It is therefore unnecessary for (1) Ante, p. 503. 770 FULL BENCH RULINGS. 1867 US to determine whether the assignment made any difference or not." Pbosonno The question as to the effect of the assignment did not arise in that ^TJ^omxY^ case, and the Full Bench would have misled tlie Division Bench if it "■ had simply answered the question propounded, without pointing out to Chunder the Division Bench that, in their opinion, the iudgments were not Paul . . r > J = Chowdhrt. judgments which could be set off against each other, independently of the question as to the assignment. I, therefore, think tliat the Court was right in that case in not going on to determine the second question, especially as some Division Benches do not consider themselves bound by what they call obiter dicta of a Full Bench. In another case — Kanhya Loll v. Eadha Churn (1) — the following question was asked, whether a decision upon the question of adoption was admissible in a suit between different parties. I was one of the Judges, and the learned Judge beside me (L. Jackson, J.) was the other Judge who referred the question. We asked a Full Bench whether the j udgment was admissible against the plaintiff who was not a pnrty to the former suit; and, if so, whether it was conclusive, or merely prima facie, evidence ngainst him. It was an important question whether it was admissible at all. even if it should be held that it was not conclusive as a judgment in rem. Two questions were referred : 1st, was the judgment admissible and conclusive ; 2nd, was it admissible at all for any purpose whether as prima facie evidence, or in any other way. The two questions were distinctly raised, and they were distinctly answered. But in a subsequent case it was held by a Division Bench that the answer that the judgment was not admissible at all, was an obiter dictum (2). If that ruling is to be acted upon, and if Judges of a Division Bench are to go into each case, and see whether the answer of a Full Bench is an obiter dictum or not, great difficulties will constantly arise. I say after careful reflection that the two questions were abso- lutely necessary to be determined. If uniformity of decision in the High Court is desirable, as it undoubtedly is, one Division Bench ought not to decide contrary to a dictum of another Division Bench, with- out referring the question to a Full Bench. Still less oujiht it to decide contrary to a dictum of a Full Bench, at any rate without referring the question. In the other case — Gopal Chunder Roy v. Gooroodoss Roy (3) — the question asked was, " whether, where a pottah purporting to be of a date anterior to the Decennial Settlement is filed, and is found as a fact to (1) Ante, p. 662. (2) In Gopeenaih Singh v. Anund Moye Deiia, 8 W. R., 167. (3) ^nte, p. 764. FULL BENCH RULINGS. 77I be a forgery, the party propounding sucli forged pottah can have tlie jgg^ benefit of tlie presumption arising from paying fixed rents for tweoty Pkosonno years, under s. 4, Act X of 1859." Tiie Fall Bench might have ^C^'owdhry'' said that the party was entitled to the benefit of that piesumotion „ "• r f KOYUSH and have answered that question aflSrmatively. If they had done so, Chundkr tliey would have led the Division Bench into a most serious error, for Chowdkry it was admitted on the argument before the Full Bench that the suit was brought before Act X of 1859 was passed; and therefore the Full Bench pointed out to the Division Bench that the question did not arise under the circumstances of the case. The Full Bench did not wish to mislead the Division Bench, as it would have done if it had merely answered the question ; but, finding that the Division Bench was under a mistake in supposing that Act applied to the case, when the words of s. 4 were "whenever, in any suit under this Act, it shall be proved" &c., said, "It being admitted that this suit was brought before Act X of 1859 came into operation, the question does not arise whether a party who has propounded a forged pottah could have the benefit of the presumption arising from paying a fixed rent for twenty years, s. 4, Act X of 1859, applying only to suits commenced under the provisions of that Act. Therefore the point which has been referred to us does not arise." Instead of answering the question, the Full Bench pointed out to the Division Court that the ease was not one in which s. 4, Act X of 1859, was applicable, or could be taken into consideration. I cannot think that the Bench was wrong in giving judgment in that way. For my own part, I can only say that I am always most desirous to give every assistance in my power to a Division Bench, by answering every question which is propounded for the opinion of a Full Bench, when it can be done without leading the Court which asks the question into error. Another case — Ram Kanlh Chowdhry v. Bhubun Mohun Biswas{V) — Las been cited. In that case the suit was brought to fix the rent of certain land, and to obtain a kabuliat from the defendant. It appeared to the Full Bench that the defendant was a mere trespasser, and not a tenant; and that the plaintiff could not therefore sue him to obtain i. kabuliat under Act X of 1859. The question whether a zemindiir could sue for a kabuliat at an enhanced rent without giving notice of enhancement, did not arise. If the Full Bench liad answered the question, they would have misled the Division Bench; as under the circumstances of the case, the zemindar could not, even if he had given notice of enhancement, have sued for a kabuliat. (1) Ante, p. 25. 772 FULL BENCH RULINGS. 1867 I lirtve made this explanation, because I think it ought not to go forth Prosonno 'hat a Full Bench is disinclined to answer any question that properly Chowdhky'' '""'sss out of a case before a Division Bench, or that it has ever inten- ^ "• tionally declined to answer any such question which has been referred Chundek for its opinion. It has always to the best of its ability answered such Chowdhry. questions, and endeavoured to throw as much light upon the case, and to give the Division Bench as much assistance, as possible. The only cases in which a Full Bench has not answered directly questions which liave been raised for its opinion, are those in which, by giving direct answers to the questions it would have been likely to mislead the Division Benches by which the questions were asked. In this case, finding that there were conflicting decisions, the Division Bench, of which I was one of the Judges, felt bound to refer the case to a Full Bench. The Division Bench, before sending the case back to the Collector to be determined finally, wished to know whether the parties were bound by equities, and whether the Collector had jurisdic- tion in sucli a case, or had power to determine mere matters of equity. Three of the Judges of the Full Bench have answered the question ; but the other two Judges think that they ought not to answer it. I regret exceedingly that the Division Bencli will not have the weight and benefit of the opinions of those two Judges ; but when the case goes back, the Division Bench will have the opinion of only a majority of Judges of the Full Bench, and it will have to deal with the case in the best manner it can under the circumstances, regretting that it has been deprived of tlie valuable opinions of the two Judges who have declined to express any opinion upon the case. In my own opinion, the Collector had no jurisdiction in the case. I am of opinion that, when tlie Legislature took away from the regular Civil tribunals of this country the right of determining questions with regard to rent, they intended to take away from them, and to vest in the Collectors, jurisdiction in those cases only in which the question might arise between a landlord and liis tenant. Two persons may be joiut tenants, and, as such, may be jointly liable for rent. ' A., and not B,, may be the tenant of certain lands. There may be circumstances under which B. mny be equitably liable to pay the rent legally due from A. But the liubility of B. does not arise from the legal relationship of landlord and tenant. I apprehend it was never the intentioD of the Legislature to empower the Collector to try questions relating to rent depending upon equitable rights and liabilities arising from circumstauces other than those of the relationship of landlord and tenant. FULL BENCH RULINGS. 773 An Act by which the jucisdiction of the ordinary Courts of Judicature i867 is takea away must be construed strictly. The jurisdiction of the Pbososno ordinary Courts of Judicature is not to be taken away by putting a chowdhky^ construction upon an Act of the Legislature which does not clearly _ "• say that it was the iutentiouof the Leifislature to deprive sucli Courts of Chundisi: their jurisdiction. Chowdhrt, Looking at Act X of 1859, I hold that it was not the intention of the Legislature to take away the jurisdiction of the orJiuary Courts of Juilicature of trying wlieiher, under paviiciibir circumstances, other persons thiin tlie actual temints of the liuid niiglit not, according lo the rules of equity, bj liable to pay ihe rent of that land. That is the question which I wished to have answered when the Division Bennh put the question in the form in which it v/as submitted. It appears to me that the question must be answered in the negative, aud tlint the Division Bench should be informed that the Collector was not competent to try the points involved in the first question. The case will go back to the Division Bench f )r the purpose of being determined by them, and I shall avail myself of the benefit which I have had of learning from my colleague (Kemp, J.) what the plaint actually states. The Division Bench may possibly have asked this question unnecessarily, and may have been the cause of fruitlessly and unnecessarily wasting the time of two of the Judges of this Court for four or five hours on a matter which may ultimately turn out to be immaterial. I endeavour to be as accurate as I can. But a preliminary question having been raised that the Collector could not deal with matters of equity, I wished to know, before I went into tiie whole case, both as to the plaint and the evidence, whether the Collector had jurisdiction to deal with mere equitable rights and liabilities, and whether the Division Bench, sitting in appeal from the judgment of a Collector, was entitled to deal with such matters before they had been tried in the first instance by a Court of ordinary civil jurisdiction. It appeared to me that the Collector had no such jurisdiction,' and that the case ought to have been brought before the proper Court of civil jurisdiction. Having now obtained the opinion of a majority of the Judges of a Full Bench, I shall be able to express my own judgment upon it when the case goes back to the Division Bench. Kemp, J. — The majority of this Bench is against me ; and the learned Judges constituting that majority have thought it right to answer the first question. I may add that, if I could bring myself to think that the question was raised, I should liave answered it; in the same maoaer as they haye done, H 774 1867 PULL BENCH RULINGS. MACPdEESON, J. — As tlie majority of tlie Court hold tliat the first Pkosonno question (ia its full exter)t) does arise in tliis case, I think it right to Chowdhuy^ ^^^ *^"*-' *"* I'l^gards the point of law involved, my opinion is the same "■ as that which is expi-essed in the answer wliich tlie majority of the Chunduh Court propose to give. I am of opinion that the Revenue Courts have Paul ..... Ohowdhky. no jurisdiction to (ry a suit for rent when the issue is not merely whether the defendants are, by reason of their own possession or that of their agent ( . , 1 1 Ses Gywal ptrson claiming under hiin, can treat the grant as void and turn the Dfshkak purchaser out of possession, or assess the lands at a full rent, notwith- •^°^' standing they have been sold rent-free. The two questions are very different. There can be no doubt that grants rent free are void as against a purchaser for am ars of revenue, unless they fall within any of the excepiions in tlie sale-laws. When a landlord re-enters and avoids a lease under a clause of forfeiture for non-payment of rent, or for breach of covenant, the title of the lessee is at an end, and all leases or other incumbrances created by him fall together with the lease out of wliich they were createil. So also, in the case of a sale for arrears of levenue under the power of sale expressly reserved to Government by the sale- laws, all leases and incumbrances, with cerlaiu exceptions, are void as against a purcliaser. If this were not so, the power of re-entry in the case of a landlord, and the power of sale for arrears of revenue, might in nil cases be rendered valueless by means of rent-free grants or leases, or other incumbrances, for the whole or greater portion of the estaie created by the lessee or zemindar during the continuance of his lease, or of his proprietary right in the estate. The cases are very different from that of a vendor's treating his own grant as voii', and taking away from the purchaser that wiiieh he has sold to him. A purchaser for arrears of revenue does not claim throngh the zemindar whose eslate is sold, but through the Government, under a power of sale adverse to the zemindar ; see s. 5, Regulation XLIV of 1793, amended and altered by sulisequent Regulaiions and Acts, of which the last is Act XI of 1859. Persons who purchase or take leases from a zemindar are cognizant of the sale-laws and are fully aware of the risk which they run, and that a zemindar cannot convey a title wiiich ■will stand good against a purchaser for arrears in default of payment of revenue. In dealing with this case, I refer to Regulation XLIV of 1793, because it firmed part of the same Code as Regulation XIX of 1793, and was the sale-law which existed under that Code. In construin<: o one of the Regulations of that Code, we cannot consistently take into consideration any Regulation which was passed subsequently. Theques'lou turns upon the construction of the words in s. 10, Regulation XIX of FULL BENCH RULINGS. 821 1793, " all grants for holding land exempt from the payment of revenue.'' 1857 Some of the Judges hold thut those words include giants or leases by ~~r, a zemindar to hold exempt from the payment of rent. In my opinion Akil the word "revenae" is used iu its ordinary and proper sense, and refers Asadunnissa only to grants for holding free from the payment of revenue to ' Government, Muttylall Skn Gvwal The Officiating Chief Justice (Norman, J.), in the second Full Bench „ "• ° V J /) Dkshkar considered that as a right was by the grant then under consider- Kor. ation reserved to some of the villagers of the estate to take water from the tank for the construction of which the grant was made, the water might be consideied as the produce of the land, and that the right to take it was in the nature of a reservation of rent in kind, but the other Judges did not concur with him in that view ; and with all deference I am clearly of opinion that if it was necessary to reserve rent in order to prevent the grant from being void as a grant for holding land exempt from the payment of " revenue," the right reserved to the villagers to take water from the tank was not a reservation of rent, and it was still less a reservation of revenue. If the right of the villagers to take water from the tank was Government revenue, it was a kind of revenue which was wholly useless to Government, and could not assist them in meeting the necessities of the estate ; and if it was rent, it could not assist the zemindar in providing for the payment of the revenue. In the case now under consideration, one of the grants was an absolute grant to the grantee and his heirs for digging a tank ; one was an absolute sale of land to the grantee and his lieirs for the purpose of building a house ; and others were sales of land generally to the grantee and his heirs. It is clear that if a reservation of rent was necessary, the erection of a dwelling-house on the land granted for that pur- pose could not amount to a payment of rent or revenue, whatever opinion may be entertained as to the water of a tank. As to the grant therefore for building a house, if the Judges who considered that a grant to hold free fjom tlie payment of rent to the zemindar or his heirs is a grant to hold exempt from the payment of revenue, and is therefore void, and that the grantor or his heirs may treat the grantee as a trespasser, are correct in their view of the law, the plaintiff is entitled to recover the lands which were sold by his ancestor and upon which the purchaser has expended his money in building a house. Such a grant would be binding even upon a purchaser under a sale for arrears of revenue ; Regulation XLIV of 1793, ss. 5 and 8; and with all respect for the opinion of my honorable colleagues, 1 have no doubt that it is also binding upon the grantor and his heirs. It would be a great anomaly 60 822 FULL BENCH RULINGS. J867 if such a grant were binding upon a purcliaser at a sale for arrears of TjJ^ revenue, and not binding upon the grantor Iiimself or his heirs. Akil I must admit thaf, before a revenue settlement, the Government's ASADUNNIS3A. sharo of the produce of every biga of land in cultivation, or the ■ rents paid in lieu of it, were treated as revenue. In the report of Skn^Gywal Messrs. Anderson, Crofts, and Bogle, the Commissioners appointed by "• Government in 1776 to collect materials for the settlement, and of DeSHKAK p 1 t> 1 KoY. which an extract is set out in 2 Harrington's Analysis of the Kegula- tions, p. 58, it is siiid : " Amongst all these various sources of revenue and profit, those which issue out of land form so capital and important a branch that comparatively speaking the revenue of Bengal may be said to consist of land rents." It is true that Mr. Harrington objects to the indefinite use of tie word " rent," and that in another part of the report it is said — "Al- most all the lands of Bengal are held under some person who collects the rents, pays the revenue, and stands between the Government and the immediate tenant of the soil." However indefinitely and inaccurately the word "rent "may have been used before the permanent settlement, and whatever may be the correct theory as to tlie proprietorship of the lauds previously thereto, it is clear from the recitals in Regulation XIX of 1793, and in several othei s of the Regulations of the Code which that Regulation formed a pan, that the Government claimed to be entitled to a proportion of the pro- duce of every biga of laud in cultivation, demandable in money or kind (according to local custom), unless it tiansferred its right thereto fur a term or in perpetuity or limited the public demand upon tlie whole of the lands belonging to an individual. This was the basis upon which the permanent settlement was founded. If Government made a lakhiraj grant for a term or in perpetuity, it transferred to the grantee its right to a share in the produce of tho lands during the existence of the grant. If it made a temporary settlement with a zemindar, it limited the public demand upon the whole of the lands included in the settlement to the amount of revenue wliich the zemindar engaged to pay for such lands during the continuance of the settlement. In cases in which there was no valid lakhiraj, and no tempo- rary revenue settlements, the rents or sliare of the produce payable by the occupiers of the land were treated as revenue belonging to Government. When a temporary settlement was made with a zemindar, he could not enter into any engagement with dependent talookdars, under-farmers, or ryots, beyond the period of his own engagement with Government ; see Regulation XLIV of 1793, s. 1. FULL BENCH RULINGS. 823 So long as that state of the law couuiiued, any grant to hold lands isqj free from the payment of rent, which included the Governmeat's share Mahomed of tlie produce, beyond the period of the zemindar's engagement, was ^_ liO doubt treated as an invalid lakhiraj grant, whether such grant was Asadhmnissa according to its language to hold free from the payment of "revenue" or free from the payment of "rent." In the Kegulation of the Ist Sen Gywal December 1790, grants to hold lands "rent-free" are treated as lakhiraj grants, or grants to lioid lands "exempt from the payment of revenue to Government." If such grants had been binding upon Government after the expiration of tlie zemindar's temporary engagement for revenue, the aggregate of the rents upon the estimate of which the amount of revenue would have had to be fixed at tlie next revenue settlement, would have been from time to time reduced, and doubtless would soon have dwindled to nothing. It is not necessary for the present question to determine whether before the permanent settlement the zemindars were proprietors of the soil or not. It is clear that they could not make grants for holding lands free from the payment of that proportion of the produce wliich was payable in money or kind to Government, and that the Government or tiieir duly authorized ofiicers, were alono capable of making such grants. The Government always assumed and exercised the power of making lakhiraj grants at their pleasure; and, after such grants, the lands were exempt from payment of rent to the zemindars. A great change however was effected by the permanent settlement. The two fundamental measures which were declared to be essential to the objects which the Government had iu view in settling the lands permanently, were that the soil should he vested iu the landholders, and that the revenue should be fixed for ever ; see Regulation II of 1793, s. 1. Eegulation VIII of 1793, ss. 4 and 5, laid down rules as to who should be considered the actual proprietors of the soil, and entitled to eii"ao-e with Government for the revenue. If that had not beeu done, there would have been great difficulty in determining who had the proprietary rights. Those who paid revenue immediately to Government at the time of the decennial settlement were ordinarily considered to have the proprietary rights, and were allowed to engage with Government for the revenue to be paid in perpetuity for their lands ; and the lands for which such engagement was entered into were called an estate. I shall henceforward use the word ''estate" in the sense iu which il; is defined in s. 2, Regulation XLVIII of 1793, viz., "laud sulyect to the Deshkar Roy. 824 FULL BENCH RULINGS. 1867 payment of puMic revenue for the discharge of which a separate eugage- Mahomed Kient has been entered into with Government." ^^"^ As soon as au engftgement for a settlement was entered into, the ASADUNNI33A amount payable to Government, and that alone, was ihe Government ' revenue, and the unpaid kists or instalments of that amount were alone iVTTrTTVT ATT Sen Gywal treated as arrears of revenue ; see Regulation XIV of 1793, s. 2. Deshkar '^^^ rents payable for the lands by the occupiers or cultivators were ^°^- vested in the zemindars as proprietors of the soil, and they were expressly authorized by Regulation XVII of 1793 to distrain for any arrears thereof, and such arrears were termed in tlie Regulation " the arrears of rent due from their under-farmers, ryots, and dependent talookdars." As soon as an estate was permanently settled, the revenue and rent became perfectly distinct, and were described throughout the Code of 1793 as two separate and distinct things. The revenue was not payable for each biga of land. No particular portion of the sum which the zemindar engaged to pay as revenue for the whole estate, was the separate revenue of any particular biga or portion of the estate. The whole revenue was assessed upon, and paid for ; the whole estate, and every biga of land in the estate, whether cultivated or not, was liable to be sold for any arrear of revenue. No distinct biga was liable to be sold separately for any separate or distinct portion of the revenue. The Government had no more power to alienate the zemindar's rents than the zemindars had to alienate the Government revenue. By Regulation I of 1793, ss. 9 and 10, the landholders were expressly authorized to transfer by sale, gift, or otherwise the proprietary rights in the whole or any portion of their estates, and the grantee of the whole of tlie proprietary rights in portions of the estates was entitled to have the revenue apportioned, and a separate portion of it charged upon the land ill which he had acquired the proprietary right, and to hold such land as a separate estate liable only for that portion of the revenue which was assessed upon it. By s. 52, Regulation VIII of 1793, the zemindars were also empowered to let their lands in whatever way they might think proper, or to grant dependent talooks, subject to certain exceptions and to the restrictions contained in that Regulation which are not material in this case. Now we find that in other parts of the Code of 1793 the words "rent " and "revenue" were used to designate two distinct and separate things, and that in s. 10, Regulation SIX of 1793, the word " revenue" was substituted for the word " rent," which had been used in the Regulation of the 1st December 1790 with reference to the same subject. This of itself is a very strong ground independently of the send D^SHKAfi FULL BENCH RULINGS. 825 ordiiiai'ily attaclied to the words " revenue" and " rent," for concluding iggy that ihe word " revenue " was not intended to be used as synonymous Mahomed witli the word " rent." ^^^^ The object of the Regulation of the 1st December 1790, and of Asadunnissa Regulation XIX of 1793, was ihe same. Each of those Regulations related to lakhiriij lands, or lands exempted from the puyment of revenue to Ses Gywal Government. Tiie Regulation of 1st December 1790 was entitled " Regu lations respecting lakhiraj lands, or lands paying no revenue to Governr ^°^ ment." Regulation XIX of 1793 was eniitled "a Regulaticm for re-enacting with modifications the rules passed on ihe 1st Decemljer 1790 for trying the validity of the titles of persons holding, or claiming a right to hold, lands exempt from ihe payment of revenue lo Government, not being of the description of those termed Badshahi or Royal," &c. Regulation XIX of 1793 contained the following recital, which shows that the object of it was to prevent unauthorized alienations of revenue payable to Government, and that it had nothing to do with the rents payable to the zemindars {reads). The recital then proceeded to show that numerous grants of the description above referred to had been made. It stated that the Governor-General in Council deemed it incumbent to recover the public dues thus alienated, and pointed out the grounds for legislating in the manner provided by the Regulation with reference to grants already made, and then it proceeded as follows: — " Upon the above grounds, and with a view lo facilitate the recovery of the public dues from lauds held exempted under invalid grants, as well as to prevent any similar alienations being hereafter made to the prejudice of the public revenue, the following rules have been enacted." The Regulation divided the grants intended to be dealt with into three classes : 1«/— Those which had been made prior to the grant of the Dewanny (12tli August 1765); 2ndly — Those which hud been made between that date and the 1st of December 1790 ; and Srdly — Those which had been, or should be, made after the 1st Decem- ber 1790. It must be lemarked that the same words are used in regard to all the three classes of grants, viz., " grants for holding land exempt from the payment of revenue, " from which, according to every sound principle of constiuction, independently of the rule expressly laid down in Regula- tion XLI of 1793, it ought to be concluded that only grants of same nature were intended, and that the word "revenue" was used in s. 10 in the same sense as that in which it was used in the title and in the other sections of the same Regulation. 826 FULL BENCH RULINGS. J857 Grants made prior to the 12th of August 1765 were deolaied to be Mahomku valid subject to certain conditions ; s. 2. Grants made between tlie 12th Akil August 1765 and the 1st December 1790, witii ceitain exceptions not AsAnuNNissA material to this case, as -well as grants which had been or should be Bebee. > & made subsequent to tlie 1st December 1790, were declared to be invalid. JVTtTTTYT ATT SEff Gywal There was, however, a great distinction made between lands includ- Deshkak ^^ '° invalid lakhiraj grants made prior to the 1st December 1790, and J^o'"'' those which had been or should be included in grants made subsequent to that date; the former were provided for by s. 3 and subsequent sections, the latter by s. 10. It is very important to attend to this distinction and to the reason for it, as it clearly explains the meaning of s. 10, and shows why the provisions in respect to grants made after 1st December 1790 were different from those which had reference to grants made prior to that date. The reason for the distinction was this. By the rules for the decennial settlement, it was directed that tlie assessmsut upon the settlement of an estate was to be fixed exclusive and independent of all the then existing lakhiraj lands, whether exempted from the khiraj or public revenue with or without authority. The rule was re-enacted by s. 36, Regulation VIII of 1793. Tiiat rule, like the rules made for the decennial settlement, did not extend to grants made after the 1st December 1790. Lands included in any lakliir.ij grants made prior to that date, whether such grants were made with or without due authority, were deemed to be separated from the estate in which they were situate, and the rents thereof were excluded from the estimate ; on the basis of which the amount to be paid as revenue under the permanent settlement was fixed ; see Regulation XIX of 1793, s. 4. If the grants were regis- tered, the lands included in them could not be assessed to tlie public revenue at all until the grants had been declared by a fiual judicial decree to be invalid. When such a decree was obtained, and tlie lands were resumed, they were assessed to the revenue as independent talooks. If the lands exceeded 100 bigas, they were held as separate estates under Government to whom the revenue was declared to belong ; see Regulation XIX of 1793, ss. 4, 7, and 8. If the lands did not exceed 100 bigas, the revenue, when assessed upon them, was to belong to the zemindar within whose estate they were situate ; see Regulation XIX of 1793, s. 6. Further, although it was declared that the Regulation respected only the question " whether the lands included in such grants were liable to the payment of revenue or otherwise," still the grant was considered to have such a prima facie effect as regarded the proprietor's rights in the soil, that it was expressly enacted that every dispute between the grantee and the grantor FULL BI'WCII RULINGS. 827 respecting the proprietary rights iu the lands was to be determiiied by the i867 Civil Court; nud tliat die grantees or possessors of tiie lands until mahomed dispossessed by a decree of the Civil Court were to be considered the ^^''^^ proprietors of tlie lands. Asadunnissa The case was however diiieront witli respect to grants made after 1st December 1790, and befoie a decennial or permanent settlement guj, Gywal of the lands included in them. Such grants liaving been declared null t> "' . , and void by the Regulation of the 1st December 1790 and by s. 10, Ko'^- Regulation XIX of 1793, were not lakhiraj grants witliin tlie meaning of s. 36, Regulation VIII of 1793, or ihe rule for the decennial settlement of which that section was a re-enactment. The lands included in such grants were deemed part of the estate to which they belonged, and the rents of them were included in the assets of the estate upon the basis of which the Goveri)ment revenue was fixed ; and tlie lands, notwiihst.anding tlie grants, were assessed to the public revenue as part of the estate. The zemindar's engagements for the revenue included such aiids, and tliey, as Wf^U as the other lands of the estate, were liable to be sold for any airear of revenue. The lands, therefore, were not lilse the lands included in grants made prior to the 1st December 1790 held free from the payment of revenue, until the grants should be declared invalid by a final judicial-j^decree, and the lands should be resumed. It was only reasonable and just when the grants were treated by Government as void as against Government, and no effect was given to them on fixing the amount of revejiuo to be paid for the estate, that the zemindars who were assessed and paid revenue for them should be allowed to treat the grants as void as against themselves, and should be authorized to collect the rents of the lands included in such giants in the same manner as they would have done if such grants had not been made. The grants could not with any justice be held void as against Government as regards the assessment of revenue, and valid as against the zemindars as regards the collection of the rents upon the faith of which they engaged to pay the revenue. It was not only considered right that the zemindars who had been assessed and had engaged with the Government for the revenue upon the faith that the grants were void, should, in lieu' of the revenue for wliich they engaged, be entitled to collect the rents of the lands ; but it was also considered right that they should have the same summary remedies for collectiug these rents as if the grants had not existed, and that they should not be compelled to resort to a Court of law to have the grants declared invalid before they could collect the rents. No one would liaveeii''acred 828 FULL BENCH RULINGS. 1867 ''y •■' peimanent settlement to pay revenue to Government for huids Mahomkd liicluded in lakhiraj grants subsequent to the 1st December 1790, Akil if lie iiad not been authorized to collect the rents before the grants V. AsADUNNissA should have been declared void by a decree of the Civil Court. No ' such decree was necessary before the Government could assess the Sen'^Stwal '^°'^s • ^^^ i*- ■^^s not considered necessary or expedient to require such _ "• a decree, as in the case of grants prior to the 1st December 1790, before EoY. the zemindar could collect the rents. It was, therefore, enacted by s. 10, Regulation XIX of 1793, that all granis for holding lands exempt from the payment of revenue, which had been made after the 1st Decem- ber 1790, or which should thereafter be made, by any other autho- rity, than that of the Governor-General in Council, should be null and void, and that no length of possession should thereafter be considered to give validity to such grant eitlier with regard to the property in the soil or the rents of it. The section then proceeded thus : " And every person who now possesses, or mny succeed to, the proprietary rights in any estate or dependent talook, or who now holds, or may hereafter hold, any estate or dependent talook iu farm of Goveramenr, or of the proprietor or any oiher person, and every officer of Govern- ment appointed to make the collections from any estate or talook held khas, is authorized and required to collect the rents from such lands at tlie rates of the Pergunnah, and to dispossess the grantee of thi; proprietary right in the land, and to reannex it to the estate or talook in which it may be situated, witliout making previous npplication to a Court of Judicature, or sending previous or subsequent notice of the dispossession or annexation to any officer of Government ; nor shall any such proprietor, farmer or dependent tulookdar be liable to an increase of assessment on account of such grants which he may resume and annul, during the time of the engagements that he may be under for the payment of tlie revenue of such estate or talook when the grants may be so resnined and annulled. The manager of the estates of disqualified proprietors, or of joint undivided estates, are autliorized and required to exercise, on behalf of the proprietors, the powers vested in proprietors by this section." It has been shown that, after a permanent settlement, the Governor General in Council could not alienate the rents whicli belonged to the zemindars as the proprietors of the soil. Tl>e words " by any other authority than that of the Governor-General in Council," in s. 10, were applicable to grants to hold exempt from the payment of Government revenue, but were wholly out of place if the words " exempt from the payment of revenue" are to be read as synonymous with the words FULL BENCH RULINGS. 829 " exempt from the payment of rent to the zemindar or his heirs," inas- much as such a grant would not have been binding if made by the Governor-General in Council. Grants made after the 1st December 1790, to hold lands exempt from the payment of revenue, being void, and the zemindars being assessed by the permanent settlement for the revenue whether the lands included in the grants exceeded 100 bigas or not, no such distinction was necessary, with reference to grants made after the 1st December 1790, between cases in which the lands should exceed and those in which tbey should not exceed 100 bigas, as was made by ss. 4, 5, 6 and 7 of Regulation XIX of 1793 in the case of grants made prior to the 1st December 1790. The words " whether exceeding or under 100 bigas " in s. 10 are clear and intelligible if the word " revenue" is to be read as I'evenue, but wholly useless and unintelligible if the word " revenue " is to be read as synonymous with " rent." Further it was considered right to give a zemindar who should engnge for the revenue the same benefit of nullum tempus as the Government itself would have had as regards grants exempt from the payment of revenue ; hence the use of the words " and no length of possession sh&U be hereafter considered to give validity to such grants,'' &c. These are intelligible if the section is read as applicable to grants to hold exempt from the payment of revenue, but not if the word "revenue " is to be read as synonymous with "rent." Again, it was fair and equitable that the zemindars, who were assessed and paid revenue for the lands included in their estates, should not only be entitled to the soil and to collect the rents, but that they should have the same power to collect the rents as they would have had if the grants had not been made, and that they should not be driven to a Court of law to declare the invalidity of the grants, either for the purpose of entitling themselves to the rents, or establishing their rights in the soil. Consequently s. 10 went on to declare that every person who should possess the proprietary right in the estate should be at liberty to collect the rents from the lands at the rate of the pergunnah, and to dispossess the grantee of the proprietary right in the land, and to reannex it to the estate or talook in which it was situate, without making any previous application to a Court of Justice. Again, it might have so happened that a zemindar would refuse to enter into a decennial or permanent settlement for his estate, or the lands might be let in farm or held khas, or a zemindar might become disqualified. To provide against these or other contingencies under 61 1867 Mahomed Akil V. asadujsnissa Bebee. muttylall Sen Gywal V. Deshkar EOY. 830 FULL BENCH RULINGS. 1367 which the estate might be let in farm or held khas, s. 10 enacted that Mahomed any person who might hold the estate in farm of Government, and every ^^"^ officer of Government appointed to make the collections from auy estate AsADUNNissA oj, talook held khas, and every manager of an estate of a disqualified proprietor, was authorized and required to exercise the power vested Sen Gywal in the proprietor. These words would not be applicable to a lease Deshkar granted by a zemindar after a permanent settlement to hold laud free ^°^- from rent, though they were peculiarly applicable to grants made before a permanent settlement. Campbell, J., says : — " It seems to me that, in regard to permanently settled eslates, if the word "revenue" be taken to mean the revenue payable to Government, the law treats of an impossible thing, and deals with it in a way which means nothing at all. It was quite impossible that a zemindar or any one else could grant away the Government revenue, that revenue having been already definitely fixed in a lump sum payable by the zemindar. To declare such grants invalid would be a most uncalled-for and meaningless provision." But it must be borne in mind that all the lands in the districts intended to be permanently settled h^d not been decennially or permanently settled when the Code of 1793 was passedj and consequently it was just as necessary to provide against lakliiraj grants which might be made between the 1st December 1790 and the permanent settlement, as it was to provide for the resumption of similar grants which had been made between the 12th August 1765 and the 1st December 1790. It does not follow that, because it would be difficult to evade the new law by making such grants after the Ist December 1790, such law was not directed against such grants ; otherwise it might be argued that the most effectual law was not directed against the acts which it was intended to prevent, and must be construed to apply to something else, because it had effectually prevented the mischief against ■which it was directed. If s. 10 did not extend to grants to hold lands exempt from the pay- ment of revenue made by a zemindar after the 1st December 1790, and before a permanent settlement of the estate to which the lands belonged, the Regulation contained no provision against such grants. The real question is not whether in regard to grants made after the 1st December 1790, and after a permanent settlement, the words "exempt from the payment of revenue" mean exempt from the payment of revenue to Government, but whether they also mean exempt from the payment of rent to the zemindar. It appears to me, that the word "revenue, " as used in the section, means revenue, and nothing else ; but FULL BENCH RULINGS. 831 that it includes -whatever was Government revenue at the time of iggy making the grant to be affected by the Regulation. If a law should Mahomed enact that whoever should clip the current coin of the realm should '^^^^ suffer a particular punishment, it would include the clipping of whatever Asadunnissa ■was current coin at the time of the clipping ; but it would not include , ,. . „ , . , . , . , . „ MUTTYLALL the clipping of anything which was current coin at trie time of passing Sen Giwai, the Act, and which should cease to be current coin before the time of Desiikar the clipping. So a grant to hold free from the payment of rent would ■^*'^" be a grant to hold free from the payment of revenue if made at a time when the rent was public revenue, but not if made after rent had ceased to be public revenue, and had been vested by law in the zemindars as proprietors. If the construction which I put upon the words of s. 10 is correct, the word "revenue" will be read in its ordinary and natural sense, the provisions of the section will be natural and consistent with justice, and force and effect will be given to every word in the section. But if the construction contended for by the plaintiff is the right one, the word "revenue" must be read in two different senses, — one its natural, proper, and ordinary sense, and the other, a sense in 'which it is never used; the greatest injustice will be done, and no force or effect can be pro- perly given to a great portion of the words which are used in the section. It has been urged that the recital and provisions of Regulation XLIV of 1793, show that it was the intention of Government to restrict the powers of the zemindars, and to prevent thera from making rent-free grants, in order to protect the heirs of tlie zemindars, and also the Government revenue. It appears to me that the argument to be drawn from Regulation XLIV of 1793, so far from being in favor of the construction contended for, is a very strong argument in support of the view which I take of the case. The recital is as follows {reads). This recital shows: \st. — That the Legislature drew a clear distinction between the Government demimdor revenue, and the rent payable to the zemindars. 2nd. — That they foresaw that the zemindars having been declared proprietors of the lands would probably grant dependent talooks or leases at an under-rate ; and that, by doing so, they would render their property of little or no value to their heirs, and occasion a permanent diminution of the resources of Government arising from the lands in the event of the rent or the revenue reserved liy such proprietors being insufficient for the discharge of the public demand upon their estates. Zrd. — That they did not consider that s. 10 of Regulation XIX of 1793 was sufiSoient to restrain the mischief so contemplated. 832 FULL BENCH RULINGS. iggy No one has ventured to suggest that a grant to hold land free from Mahomed the payment of all revenue, except a nominal revenue, would not be a ^'^ grant to hold exempt from the payment of revenue ivithin the meaning AsADUNNissA of s. 3 of Resulaiion XIX of 1793. Bebgr. ° If the word "revenue" in s. 10 is synonymous with rent, and if a MnTTTLALL . „ . , , , . „ . , Sen Gywal reservation or a nominal rent after a permanent settlement is sumcient Deshkar *o prevent the grant from being rent-free, it seems to follow that the ^°^- reservation of a nominal revenue in a grant made after the Ist December 1790, and before a permanent settlement, would be sufficient to prevent the giant from being a grant to hold exempt from revenue. Yet no one, I presume, would contend that a grant by a zemindar or an unauthorized officer of Go?ernment made before the 1st December 1790, or after the 1st December 1790 and before a permanent settlement, to hold lands of large annual value to a man and his heirs for ever at a nominal revenue, would not fall within the words "exempt from the payment of revenue" as much as a grant to hold wholly exempt from the payment of revenue would. It would be idle to contend that grants in perpetuity, made without the authority of Government at a mere nominal revenue or rent before the 1st December 1790, were not invalid lakhiraj grants, because they reserved some revenue, and were not therefore grants to hold wholly exempt from the payment of revenue. As I understand the words " exempt from the payment of revenue" in ss. 3 and 10, Regulation XIX of 1793, they mean exempt from the payment of the whole or any part of that which the grantee would have been bound to pay as revenue in the absence of the grant. If, then, s. 10, Regulation XIX of 1793, included grants to hold exempt from the payment of revenue, it operated to prevent grants to hold at a nominal or inadequate rents, and Regulation XLIV of 1793 was unnecessary. If however s. 10 did not extend to rent-free grants after a permanent settlement, there was nothing to prohibit such grants. Now there were two modes by which the Legislature might have provided against the mischief contemplated by them as recited in Regulation XLIV of 1793. They might have prevented grants at inadequate rents for long terms, or in perpetuity, either by compelling the zemindars to reserve adequate rents on all grants, or by restrictin<^ their right to make grants for any term exceeding a fixed period. The Legisliiture thought it right to adopt the latter course, and they fixed the term at ten years, and introduced Regulation XLIV of 1793 into the Code for that purpose. By the 2ud section they enacted : " That no zemindar, independent talookdar, or other actual proprietor of land, nor any person on their behalf, shall dispose of a dependent FULL BENCH RULINGS. 833 talook to be held at the same or at any jumma, or fix at any amount jggy the jumma of an existing dependent talook for a term exceeding ten ~ ■ years, nor let any lands io ftirm, nor grant pottaa to ryots or other Akil persons for the cultivation of the lands for a term exceeding ten years. " AsADnNsigsA The section then prohibited the renewal of leases or pottas at any ' period before the expiration of them, except in the last year; and it ^n^qywal concluded by declaring that " all evasions of the prohibitions contained *• in this section by entering into two separate engagements, leases, or Koy. pottas at the same time, dating an engagement, lease, or potta, subse- quent to the period at which it may have been actually executed, or by any other device, shall be considered as an infiingement of them ; and every engagement fixing the jumma of a dependent talookdar, Bnd every lease or potta which has been or may be concluded or granted in opposition to such prohibition, is declared null and void." I have set out the words of so much of the above section as bears «pon the point under consideration, as it is not printed in the ordinary collections of the Regulations. The section avoided all leases and pottas for the cultivation of lands for a term exceeding ten years, whether they reserved a full rent, or a nominal rent, or no rent at all. It did not require leases or grants for periods not exceeding ten years to reserve au adequate rent, or a nominal rent, or any rent at all. By s. 6 it was expressly enacted, " that nothing in the Regulation should be construed to prohibit a zemindar, independent talookdar or other actual proprietor of land, from selling, giving, or otherwise disposing of any part of his lands as a dependent talook." This provision was, however, subject to s. 2, which declared that the grant should not be for a term exceeding ten years. I have read the precise words of s. 6, inasmuch as the two Judges who formed the majority of the Court, and whose judgment prevailed in Raja ModhnarairCs case (1), to which I shall presently refer, declared that the power of creating dependent talooks, or granting leases at any rent, was fully accorded; and they referred to s. 6, Regulation XLIV of 1793, in support of that doctrine. Regulation XLIV then proceeded to declare that all grants to dependent talookdars, and all leases and pottas to ryots, witli certain exceptions, should stand cancelled by a sale for arrears of revenue. S. 8 provided that notiiing in the Regulation contained should be deemed to prohibit actual proprietors of lands from granting leases or pottas of ground for any terra of years, or in perpetuity, for the erection of dwelling-houses, or buildings for carrying on manufac- tures, or for gardens, or other purposes, or for offices for such houses (1) S. D. A., 1855, 395. 834 FULL BEN-CH RULINGS. 1867 or buildings. Grants for the purposes mentioned in s. 8 were amongst ~zz those excepted from the provisions of s. 5, and consequently were binding Akil upon a purchaser at a sale for arrears of revenue. The only distinction AsADUNNissA made by Eegulation XLIV between grants and leases for the purposes ■ mentioned in s. 8 and those for other purposes, was that the former MuTTTLALL njigjit \)Q granted for any term or in perpetuity, and were not invalidated "• by a sale for arrears of revenue, whilst the others could not be Deshkak , ,. JSoT. granted for a period exceeding ten years, and were, accordmg to s. 5, to stand cancelled in the event of a sale for arrears of revenue. So careful was the Legislature to protect leases, whether for a term of years or in perpetuity, for the erection of dwelling-houses, or buildings for carrying on manufactures, or for gardens, or other similar purposes, that such leases were expressly made binding upon a pur- chaser at a sale for arrears of revenue. Is it probable, then, that tlie Legislature would have authorized the grantors themselves or their heirs to treat such leases as invalid, if some rent, however nominal, should not be reserved ? It may be convenient if I allude in this place to an argument put forward with reference to the foUowiug words in s. I, Regulation XLIV of 1793: "Such engagements" (referring to engagements at under-rates or reduced rates), " if held valid, would occasion a permanent diminution of the resources of Government arising from the lands, in the event of the rent or revenue reserved by such proprietors being insufficient for the discharge of the amount of the puljlic demand upon their estates." It was contended that it was the intention of Government to compel the zemindars, after tlie permanent settlement, to continue to collect the Government's portion of the produce of each biga of land, in order that they and their heirs raiglit be in a condition to discharge the revenue, and that the aristocracy which the Government had created might be maintained, or, to use the words of Trevor, J., " that pre- vention was considered better than cure," that the Government might not wish to sell for arrears, or that the arrears might not be realized by the sale. I find no such intention declared or even implied in the preamble of Kegulatiou XLIV or in any other part of the Code. It appears to me to rest merely in imagination. The security and resources of Government would doubtless have been diminished, if grants for long terms or in perpetuity made after a permanent eettlemeut at nominal or inadequate rents, had been allowed to stand good as against a purchaser in the event of a sale for arrears of revenue. The mischief contemplated, as regards the injury likely to be done to heirs by improvident grants made by their ancestors, was provided FULL BENCH RULINGS. 835 against by s. 2, ■which rendered void all grants of leases or pottas for a iggr term exceeding ten years. The mischief, as regarded the diminution "f ^jThomed^ the security and resources of Governmenf, was provided against by Akil s. 5, which declared that all grants, except those included in ss. 7 and 8, Asadunnissa R w R rr ir should stand cancelled in tlie event of a sale for arrears of revenue. ' III considering the question whether the words " exempt from the q^^QywaL payment of revenue" in s. 10, Regulation XIX of 1793, were intended _ "■ to apply to leases or grants made by zemindars or other proprietors after Ko^- a permanent settlement to hold free from the payment of rent to them or their heirs, it is important to remark that by s. 14, Regulation XLI of 1793, it was enacted that, in framing the Regulations, the same description and terms were to be applied to the same descriptions of things, in order that rights, property, and all persons and things migiit be uniformly described throughout the whole of the Code, that in Regulation XIX of 1793 "revenue" and "rent" are used as designating two distinct things ; and that in that Regulation the words " grants to hold land exempt from the payment of revenue" were substituted for the words " rent-free," which were used in the Regulation of the 1st December 1790. The following propositions are, I think, clear as regards permanently settled estates : 1*^. — That the only revenue payable to Government for an estate is that which the zemindar has engaged to pay to Government. 2nd. — That the zemindars are proprietors of the soil ; Regulation II of 1793, s. I. 3rd. — That, as such, they are entitled to the rents of the lands included in their estates, and to distrain for such rents ; Regulations XIX of 1793, and XVII of 1793, ss. 1 and 2. 4th. — That such rents being the property of the zemindars, and not the property of Government, are not Government revenue, and cannot be alienated by Government, and that the zemindars are not bound to account for, or pay over to Government any portion of their rents. It seems to follow : 1st. — That, after a permanent settlement, a grant by a zemindar to hold lands "rent-free" is not a grant to hold free from the payment of revenue. 2rid. — That such a grant is void as against a purchaser at a sale for arrears of revenue ;but that, as long as the revenue is paid, it cannot be treated by Government as a nullity, as affecting their interests injuriously. 3i-d. — That a rent-free grant cannot be treated as a nullity by the grantor or his heirs, or by any . person claiming through him. I will now proceed to consider the authorities bearing on the question before us. 836 FULL BENCH RULINGS. 1867 It was said by Campbell, J., tha "there are very few eases "n on the subject, because no one ever thought of any other construction Akil than that s. 10 applies to rent-free grants made by a zemindar after a AsADUNNissA permanent settlement." I find no tradition to that effect in any reported 1 ' case, or ia any history of the permanent settlement. The assertion is ^n^Gywal ^"^ bo™e out by any treatise, or by the declaration or arguments of any "■ of the Judges or pleaders who were concerned in any of the cases in EoT., which the question arose. The earliest case which I have been able to find upon the subject was directly opposed to that construction, and I see no reason to think that the Judges who decided it were wanting in experience. The case to which I refer is that of Guruchurn Paramanik v. Odayenarain Mundal (1). That case, which was cited in argument before us, was decided in the year 1840 ; more than a quarter of a century nearer than the present time to the date of the enactment upon which we are now called upon to put a construction, and when the Judges must have had means, at least as good as we have at this day, of knowing what was the general opinion, if there was any, upon the subject. In that case the plaintiff purchased the rights and interests of one Doorga Dass in a patni talook, and sued to recover a tank within that talook. The land in which the tank was made was granted in 1217 B.S. (1809) before the patni was created, to the defendant's father by the zemindar to be " held rent-free." The Judge gave a decree for the plaintiff upon the ground that no such grant made after the decennial settlement could stand, but, upon appeal to the Sudder Court, the decree was reversed. Mr. Dick said : — " The argument of the Judge respecting rent-free grants made after the decennial settlement does not apply ; that will be applicable should the rights of the zemindar be sold for arrears of revenue, but can never apply to the case of a purchaser of the mere rights and interests of a patni- dar." The other Judge, Mr. Tucker, said : — " The tank has been improperly termed lakhiraj. It is not lakhiraj, for it has not been exempted as such from the general estate for which the zemindar pays revenue to Government. The zemindar himself gave a rent-free grant of it to the appellant's (defendant's) father, and subsequently sold the talook in whicli it is situated in patni. The respondent has succeeded to the rights of the patni, but cannot touch the previous grant to the appellant's father." Here, then, was an express decision, not based upon the ground that the land granted was for a tank, nor (1) 6 Sel. Rep., 281. FULL BENCH IIULINGS. 837 upon the ground tliiit tlio water of the tuuk was reut or revenue. It iRp,; was decideil upon general principles applicable to all rent-free grants ""T; " mad« after 1st December 1790 and after a permanent settlement. Akil V The rule hud down in thai; case was followed by that of Hurree Asadunnissa Mohun Das v. Prankishen Raee (1). In that case it was held that a '"°'" '' grant rent-free of laud upon which a tank had been dug was good, I^°^gywal even as against a purchaser for arrears of revenue. If s. 8, Regulation "■ ' ° Dkshkak XLIV of 1793, had required the reservation of a rent, the grant would Roy. have been invalid. The decision is an authority that a reservation of rent was not necessary. The case was decided upon general principles, and no doubt was correctly decided. S. 8, Regulation XLIV of 1793, allows grants to be made for long terms, or in perpetuity, for " other purposes" of a nature similar to those particularly described therein, and a grant for the digging of a tank was no doubt a grant for a purpose within the meaning of s. 8. There was clearly nothing in that section which rendered a reservation of rent necessary. The only question was whether s. 10, Regulation XIX of 1793, hnd the effect of requiring some rent. Leases under s. 8, Regulation XLIV of 1793, were expressly exempted from s. 5, and were, therefore, good as ngiiinst a purchaser for arrears of revenue, unless they were rendered void by s. 10. TheCourt held that it was not lakhiraj under that section. In the case of Baboo Modenarain Singh v. Ameeroonnissa Begum (2), the plaintiff claimed to recover certain laud which had been granted rent-free by his ancestor. It was contended that the grant was void under s. .10, Regulation XIX of 1793, but the Court held that the plaintiff could not repudiate his own act and- that of his ancestor?. That was decided upon a well-known general principle that an heir claiming through his ancestors cannot invalidate the grant of his ancestors of property wliich he claims by descent from tliem. In the case of Sheikh Kadir (3) the plaintiff sued for the resumption and assessment of certain lands granted rent-free for the purpose of digging tanks. The Principal Sndder Ameen dismissed the suit upon ihe grounds that the grants were good under s. 8, Regulation XLIV of 1793. The Judge reversed the decision on the ground that the sanad on which the lakliiraj depended was invalid. He held that the grant was void under s. 10, Regulation XIX of 1793. The Sudder Court held that the decision of the Judge was incorrect ; that the case was one between landlord and tenant under s. 8, Regulation XLIV of 1793, and not under the resumption laws, and they remanded the case. (1) S. D. A., 1847, 447. (2) S, D. A., 1852, 967. (3) S. D. A., 1856, 74. 62 AsADUNxissA thnt no one ever thought of any otlier construction than that which is " contended for. The only case in which I find that such a construction 838 FULL BENCH RULINGS. 1867 That case was followed by the case of Lalla Hnree Siiiihar ~T, Shaha v. Sheikh Bukhtear ( 1 ). Akil In the face of all these cases, I know not how it can be asserted V. MIUNXISSA Sen^g"" A^ was ever put upon the section is that of Eaja Modhnarain Singh v. ^ "• Ahmed Alee Khan (2). In that case Ahmed Alee Khan was plaintiff. EoY. He sued to recover possession of certain lands given to him by Kaja Miilerjeet Singh, the defendant's ancestor, in 1211 (1804) Hijree, ia exchange for a copy of the Koran, and from which the defendant, Enja Modlinariiin Singh, the heir of Raja Mitterjeet Singh, had ousted him claiming a right to do so under the provisions of s. 10. The Principal Sudder Ameen held that the grant of the defendant's ancestor was valid, and that it could not be ignored under s. 10, Regulation XIX of 1793, and he gave the plaintiff a decree for possession of the land to be lield rent-free. The AdditionalJudge, on appeal, held that the plaintiff was entitled to possession upon condition of his paying rent for the land, upon the ground that 8. 10, Regulation XIX of 1793, did not sanction the grant of any land made after 1st December 1790 exempt from the payment of revenue. On appeal, two of the Judges of the Sudder Court, Sir Robert Barlow and Mr. B. Cdvin, held that the grant was void under s. 10, Regulation XIX of 1793, that^the decisions of both ihe lower Courts were wrong, and that the defendant was entitled to take possession of the estate, notwithstanding the plaintiff had been in undisturbed possession under the grant for upwards of fifty years ; and they held that the plaintiff was not entitled to eitlier a proprietary right in the land, or to a right to possession upon paying rent for it. Mr. Dick, however, with his usual good, strong, common sense and earnest desire to do justice, said : — "I concur with the Principal Sudder Ameen that the grant is not resumnble by the heirs of the grantor, and that s. 10, Regulation XIX of 1793, does not apply to the case. The law could not intend to deelure that the party who had made the grant could at pleasure resume it, whether given for a valuable consideration or not, or" intend to entitle the heirs of such grantor to resume. This would be authorizing such persons to repudiate their own acts and the acts of their ancestors. Grants of the nature in question, quoad the gi aniors and their heirs, affect not the public revenue. They affect merely their own rental. The grantor continues himself to pay the revenue; and, if he do not, the estate ia sold ; and then the grant becomes null (1) S. D. A., 1858, 968. (2) S. D. A., 1855, 395. FULL BENCH RULING^. 839 and voi(1. Tlie law, s. 10, Regulation XIX of 1793, was enacted to iggy prevent alienations ' preiudiciul to the security of the public revenue,' not "^Tr ' '^ "^ ■' J V ' Mahomed to eiial)le the heirs of proprietors (whose ancestors' acts are theirs) to Akil v. profit by tlieir own wrong. The proprietors aud their successors, who Asadunnissa were auihorized to resume at pleasure, are not those who made the . " grants or their hereditary successors. An auction-purchaser can annul MuTTYLALt, ° •' ^ SitN Gywai. all grants and alienations. Tiiis tlie law declares. All bona fide "■ alienations aie binding on those who made them and their heirs. This Eov. justice requires, and our precedents have decided." By that decision the plaintiff was deprived of lands which he had obtained for a valuable consideration from the defendant's father, and of which he had held possession for thirty-four years in the lifetime of the father, aud seventeen in the time of the defendant himself after his father's deatli. The plaintiff's pleader, Moonshee Ameer Ally, cited on behalf of his client the case of Guruchurn Paramanik v. Odayenarain Mundal (1) to which I have referred ; yet the Judges did not in their judgment refer to that case, or give a single reason for holding that s. 10, Regulation XIX of 1793, was opposed to such alieniitions, notwithstanding it had been expressly decided fifteen years previously, in the case to which I have just referred and which was brought to their notice, that s. 10 did not apply to rent-free grants made by a zemindar after a decennial or permanent settlement. They added: — "But the power of creating dependent talooks, or granting leases at any rent, is fully accorded," and they referred in support of that proposition to s. 6, Regulation XLIV of 1793, and to Regulations V and XVIII of 1812, which do not even use the word " rent." This case seems to have been the origin of the inpression that grants not reserving any rent are void ; but that grants which reserve a mere nominal rent are valid .-ind binding. I cannot hold myself bound by such a decision. The two Judges, in their judgment, referred in support of tlieir construction of s. 10 to the language of the Sudder Court in the case of Sheikh Shufaetoollah v. Joykishen Mookerjee (2); but they appear to have entirely misunderstood the passage. It is as follows : — "In the absence, however, of any such provision as that of s. 10, Regulation XIX of 1 793, it appears to us that the Courts of Justice must have held that grants" (that is, grants to hold exempt from the payment of revenue) "made at a period subsequent to the date of the permanent settlement ore null and void. It is a narrow and contracted view to suppose that the permanent settlement consists in nothing more than (1) 6 Sel. Sep., 281. (2) S. D. A., 1848, 460. 840 FULL BENCH RULINGS. 1867 tll'e obligation on the part of the zemindar to pay a certain amount of ~^IiHo»iiiD i'S"^6nue annually to the Government. The settlement is a compact Akil by whicli the zeminJar engages on his part to pay a fixed amouut of AsADUNNissA rcveuue to the State, and the State on its part guarantees to the __1 ■ zemindar, by means of its judicial and fiscal administration, the integrity Skn^g\'"wal of the assets from which iliat revenue is derived, and which in fact ^ "■ constitutes the Government's own security for the reiilization of its KoY. revenue. The declaration to tlie zemindars and other proprietors of land tiiat the jumma assessed upon their lands is fixed for ever (s. 3, Regulation I, 1793) carries with it, by necessary implication, a rule of the nature laid down in s. 10, Regulation XIX of 1793." It is clear that the fixing of the revenue for ever could not have been held to have carried with it by implication a rule that all grants by a zemindar not reserving rent to himself should be void against the grantor himself and his heirs; and that he might consequently sell, and then take away from the purchaser that which he had sold. The suit in that case was to resume and assess invalid lakhiraj lands, not to recover lands which the zemipdar or his ancestor had sold. The Court entered fully into the whole case, pointed out tlie distinction between grants prior and those subsequent to 1st December 1790, and they held that the nullum tempus clause in s. 10 applied to such grants, and that the general provision as to twelve years in s. 14 of the Regu- lation for the limitation of suits (III of 1793) did not apply to a suit for resumption of lands held under invalid lakhiraj granls. The meaning of the passage referred to is very clear. It entirely corroborates my view of the case. It is this : that even without any express declaration such as that contained in s. 10, grants by unauthorized persons alienating the revenue of an estate would have been void as against Government and all persons who derived title through Government, and that Govern- ment guaranteed to the zemindar the integrity of the assets upon the basis of which the permanent settlement of their estates was made, and that the zemindars should be entitled to the rents of all lands in respect of which they engaged to pay revenue. It did not mean that the Government guaranteed to the zemindars that they might repudiate their own grants or those of their ancestors. The dictum in the second Full Bench case upheld the ruling in Jiaja Modhnarain's case (1). Norman, J., then officiating Chief Justice, after referring to the preambles of Regulation XIX of 1793, and XLIV of 1793, says: — "Reading these Regulations together, it seems to have been ihe intention of the Legislature to treat the zemindars as agents (\) S. D. A., 1855, 395. FULL BENCH RULINGS. 841 or trustees for the Government, and, as such, bound, to collect the ise? Government share of the produce from each and every higa of land ~^ within their zemindari," With all deference, this appears to me to be Akil in direct opposition to one of the fundamental principles of the permanent Asadunsissa Ti K Tt P* IT settlement, by which the zemindars were for the first time declared to be ' the proprietors of the lands. If the zemindars were agents or trustees ^h^qw!'? for the Government for collecting its share of the produce, they would "■ have been bound to pay over to Government tiie collections when made, Boir, and they would not have fulfilled their agency or trust by collecting a mere nominal rent for lands of large value. If they were trustees or agents for Government and not bound to account for, or pay over the collections when made, we have the anomaly of an agent or trustee bound to collect that which he is not liable to pay over, and for which he is not bound to accoun t. The fact is as soon as an estate was permanently settled, the Government became entitled to receive the amount which the zemindar agreed to pay as revenue for the estate, and so long as that amount was duly paid, the Government had no further interest in the lands or the rents of them. If the revenue fell into arrear, the Govern- ment had power to sell the estate free from all leases or incumbrances created by the zemindar. Norman, J., proceeds : — " They (that is the zemindars) are incapa- citated from depriving themselves of the right and obligation of collecting revenue which by Regulation XLIV is declared inalienable, i.e., by the zemindar, without the express sanction of Government ; and it is in accordance with that principle that all grant? by zemindars which exempt the grantees from liability to pay revenue to the zemindar, are declared null and void by s. 10, Regulation XIX of 1793. If therefore the grant now before the Court is to be considered simply as a rent-free grant created by a zemindiir since 1790, I should feel bound to agree with the Court below, and say that it is null and void." Here, again, there appears to be a mistake. Regulation XLIV of 1793 did not declare that the Government revenue was inalienable by the zemindars without the express sanction of Government. It merely declared that, according to the ancient and established usages of the country, the dues of Government from the lands were inalienable without the express sanction of Government, unless Government has transferred its rights thereto to an individual for a term or in perpetuity, or fixed the public demand upon the whole estate, &c. The ancient law, as I shall presently show, was subject to the exception expressed by the words " unless," &c., above referred to. The rule laid down in the second Full Bench case is not even confined 842 FULL BENCH RULINGS. ]8S7 to leases and grants of dependent talooks ; it exiends to grants iu fef- Mahomed simple, or to wliat may more properly be called grants of the whole Akil proprietary right in any part of an estate. Trevor, J., says : — AsADUNNissA " The iustrumfnt is a grant in fee-simple of 22 bigas of the grantor's revenue-paying estate to the grantee, to be held by him free of revenue Sbn^Gv WAL ^'"' ^^^^ ' ^"*^ i' ^^^ ■" "** ^^y ''® construed as a lease, for there is "• no annual return or rent made by the grantee as tenant, either in money, Eoy, labor, or kind. The condition in tlie grant, if condition it can be called, is only a condition subsequent, and there is no contention on the part of the grantor that the grant is liable to be defeated in consequence of a breacli of this condition. It is simply contended tbat the grant itself is of a nature contrary to the public policy, and one that by Statute has been declared null and void. Had it been a lease, however small the rent reserved, it would have been legal under the terms of s. 8, Regu- lation XLIV of 1793 ; but as it is a grant involving that -which the zemindar had no power to grant, «zz., the Government portion of the produce of the land, granted in perpetuity, it is altogether, it seems to me, illegal and contrary to the policy of the law as laid down in Eegu- lation XIX of 1793." He then refers to the recital in Regulation XIX of 1793 as declaratory of what the common law of the country was; and says : — "S. 10 of that law, in furtherance of this view of the common law of the country, declares that 'all grants for holding lands exempt from thti payment of reveuue, made by zemindars since the 1st December 1790, are null and void, and no length of possession shall be considered to give validity to any such grant either with regard to the property in the soil, or the rents of it." Although Trevor, J., speaks of the grant as a grant to hold revenue-free, it was in its terms, and, as I consider, in substance and reality, merely a grant to hold free from the payment of rent to the zemindar or his heirs. There is a slight difference in the terms of the grant as stated by the OflSciating Chief Justice and as stated by Trevor, J. That possibly arose from the translation. It was iu substance a grant of land to the grantee and his heirs for ever for digging a tank for the benefit of the villagers. The concluding words of the grant as stated by the Officiating Chief Justice are, "you will dig a tank in this land and make a reservoir of •water. We shall liave no right in the land. Being vested with the right therein, and bringing it under your possession and seisin, you will continue to distribute water. You will stock the tank with fish, plant on the raised and low banks thereof mangoe trees, &c., and enjoy the same down to your son's son, and so on in succession. No rent shall have to be paid for the land. Should we or any of our heirs ever prefer FULL BENCH RULINGS. 843 any claim to this, the claim will be void." In Ti'evor, J.'s statement jgez of the snnad, it appears tliat the land granted was a piece of marshy mahomed firound, for which no rent was paid at the time of tlie grant. The ■'^'''^ grantor declared that, after the grant, he would have no right, to the Asadunnissa , . Bkbue. land, and that the grantee and his heirs sliould hold possession in their . , /. .• . i- ] il ■,. • -J i MUTTYLALL own right from generation to generation, and then it is said no rent g^j, Gywal for the land will be cliarged, &c. The giant tlierefore appears to have t)hshkar been a grant, as Trevor, J., calls it, in fee-simple, or more properly, liof- to use the words of the Regulations when speaking of lands in the Mofussil to which the English law does not apply, a grant of the whole of tlie zemindar's proprietary rights in that part of his estate without reserving any reversion or any rent or condition. In short, the grantor parted absolutely witli all his interest in the land which was tlie su'iject of the grant. I should have thought it clear that s. 10 had nolhing to do with such a grant; that the grant was not wiihin the spirit of the the law, and most certainly that it was not witliin tlie letter of it. Trevor, J., however treats the grant as within the letter as well as the spirit; he says : — "It may be said that the grant in this case, though against the letter, is not against the spirit, of s. 10 of Regu- lation XIX of 1793, which prohibits only improvident grants," &c. It was certainly to my mind not -witiiin either the letter or spirit of the law. He then quotes the words of Mr. Dick in Raja Modhnarain's case (1), "grants of the nature in question quoad the grantors and their lieirs, affect not the public revenue. They affect merely their own rental. Tiie grantor continues himself to pay the revenue ; and, if he do not, the estate is sold; and then the grant becomes null and void;" and he proceeds thus : — '' This is no doubt in the main, true;'' and at the decenninal settlement, the Legislature might, had it chosen, have relied on the sale-law to remedy any improvident act done by the zemindars, and restore estates to their original state. But it considered prevention better than cure ; and with the former object, keeping in view the common law of the country and the probable improvidence and weakness of the zemindars it had then created, it enacted Regulation XIX of 1793, and thereby declared that all grants of the nature of that before us are null and void, and that no lapse of time shall cure them. It follows that, as they are null and void in their inception, they can be resumed even by the grantor or his heirs at pleasure." If this view of the law were correct, there would have been no necessity to pass Regulation XLIV of 1793. But Regulation XIX of 1793 had nothing to do with the improvidence of the zemindars. (1) S. D, A., 1855, 395. 844 FULL BENCH RULINGS. 1867 I' was pnsaed, as shown by its title and preamble, with reference to Mahomed *'i®°^*'ois of the revenue payable to Government. On the other hand, Akil Eegnlation XLIV of 1793 had nothing to do witli alienations of the AsADHNNissA public revenue, but had reference only to grants of leases or dependent ' talooks by the zemindars. Sen Gywal -^* ^^ beyond doubt that Eegulation XLIV of 1793 had uo reference Deshkak *° grants in fee-simple, as they are called by Trevor, J., or grants EoY. which passed the whole proprietary rights of a zemindar in the whole or in any particular portion of his estate. Such grants were expressly provided for by Regulation I of 1 793, ss. 9 and 10. The whole Code of 1793 was passed on the same day, the 1st May 1793. All the Regulations must be studied together and read as a whole. It is not safe or proper to take one enactment here and another enactment there, and to interpret them without reference to the whole Code : but it is not because the Code must be taken and studied as one entire system that the preamble of one Regulation of the Code is to be read as explanatory of the meaning and intention of a section in another Regulation. This is what was done in substance by one ov more of the Judges in the second Full Bench decision. They construed s. 10 of Regulation XIX of 1793 with reference to the preamble of Regulation XLIV of 1793, and not with reference to its own preamble. Such a mode of construing Regulation XIX is not only at variance with every sound principle of construction, but is in direct opposition to the rule laid down in Regulation XLI of 1793, which enacted, amongst other things, that every Regulation should have a title expressing the subject of it, and also a preamble stating the reasons for enacting it, in order that individuals might be able to make themselves acquainted with the laws, and that Courts of Justice might be able to apply the Regulations according to their true intent and import; see the preamble and ss. 4 and 5, Regulation XLI of 1793. Regulation XIX of 1793 and Eegulation XLIV of 1793, and every one of the forty-eight Regulations which were passed on the same day, had its own separate title and preamble. When Regulation XIX of 1793 and Regulation XLIV of 1793, each had its own title expressing the subject of it, and a preamble stating the reasons for enacting it as required by the Regulation XLI of 1793, ss. 4 and 5, it is only reasonable to suppose that those Regulations respectively contained all the provisions which the Legislature deemed necessary with reference to the particular subjects treated of in their respective titles and preambles. Yet the preamble of Eegulation XLIV, which alone speaks of the contem- plated impiovidence of the zemindars and of the necessity of protecting FULL BENCH RULINGS. 845 their heirs against it, is taken to explnia the meaning of s. 10, jgg^ Eegiilution XIX, wliich was passed to facilitate tlie recoveiy of the ~TZ ° ' •' Mahomed public dues from lands Iield exempted from the payment of revenue Akil V. to Government under invalid grants, as well as to prevent similar Asadunnissa alieuiitions from being thereafter miide to the prejudice of the security ' of the public revenue, Muttylall If the Leuislature intended to prevent zemindars from granting „ "• ^ bo Dbshkar dependent tidooks or leases at iundequate rents, and to allow them to Eoy. treat their own grants as nullities if tliey did not reserve at least a nominal rent, I should have imagined that, independently of the rules laid down in Regulation XLI of 1793, common fairness with regard to those who were to be bound by the law and who had to regulate their dealings according to its provisions, would have induced the Legislature to express that intention in clear and unambiguous language, especially when any violation of the law was to be attended with such serious consequences to unsuspecting purchasers : and I should have expect- ed to find that language iu Eegulation XLIV, and not in Regula- tion XIX of 1793, which related to an entirely different subject. Tiie zemindars, and those who purchased from them, had clear and express noiico by Regulation XLIV that, with certain exceptions, no grunts by zemindars of dependent, tnlooks or leases for periods exceeding ten years would be valid; and no grant by a zemindar of any part of Lis estate, whether on a term exceeding ten years or not, would be binding on a purchaser at a sale for arrears of revenue. Having that notice, it was for them to regulate their dealings accordingly. J3ut who, without the liglit of modern construction, could, on reading Regulation XLIV of 1793, have imagined tliat there was a section in another Regulation, XIX of 1793, passed with an entirely different object, which rendered a purchaser of a rent-free lease, or dependent talook, or even of an estate in fee-simple, liable to be treated us a tres- passer by the vendor or his heirs, and turned out of possession after any length of possession under his purchase. Trevor, J, iu the Full Bench case of Sonatun Ghose v. Moulvi Abdul Farar (1), afier showing that the grant was an alienation of part of a revenue-paying estate, goes on to say : — " Alienations after the 1st December were, ipso facto, null and void ; they were unauthorized alienations by the zemindar of the Government portion of the produce, as well as alienations of his ov\ n share, and were opposed to the common law of the country, by whicli a portion of the produce of every biga of land belonged to Goveru- ment. As, moreover, the Government demand on estates had become (1) Ante, p. 109, at p. 128. 63 846 FULL BENCH KULINGS. 1867 fixed in perpetuity, it became of the greatest moment to prevent, as far Mahomkd ^^ possible, the decrease of the security of the revenue, and hence the Akil power which was given to the zemindars enabling tiiem at once, witli- AsADONNissA ou t Tecourse to the Couits, to dispossess the grantee and assess the ' rents after any lapse of time. The grantee in short was considered aa Sen^gSwal ^ trespasser, who had, and could have, no right in the eye of the law. Desh ar ^' follows, that Regulation XIX of 1793 placed the possessors of EoY. grants subsequent to December 1790 in a very different position from that wiiich they held before the passing of that Act." In the second Full Bench case Loch, J., also seems to have considered that, upon the permanent settlement, the zemindars con- tinued to collect as revenue the Government's share of the produce, and he also relied upon the ancient common law of the country. He says : — "It has been asked why, if a zemindar is able, as unques- tionable he is by law, to alienate any part of his estate by sale or gift, he should be unable to create a rent-free tenure; that as he can give a perpetual lease at a quit-rent, there can be no good reason why he should not be able to forego his rent altogether; for if a rent-free grant be said to be injurious to the estate, a perpetual lease on a quit-rent, which the law allows him to mnke, might be equally injurious. The reason why such rent-free grants cannot be made is that they are entirely opposed to the theory of the permanent settlement; and it is very remarkable how guarded the law has been on the subject ; for while it allows the zemindar to give a lease in perpetuity, it never siinctions such an alienation as a lakhiraj or rent-free grant, and the reason is obvious when tbe principle of the permanent settlement is considered, which is clearly laid down in the preamble of Eegulation XIX of 1793." After reading that preamble he says: "It is obvious that if a zemindar grant lands to any one free of rent, he not only alienates that portion of the assessment on each biga of the land which the law per- mits hiui to appropriate, but he also gives up that portion which is the Government revenue, and thereby does a serious injury to tbe assets of the estate. He relinquishes the quota of the revenue with which each biga of a permanently settled estate was chargt-d at the time of tlie settlement ; and it is no answer to say that the whole estate is liable for the revenue, for it is not only that the integral estate is liable for the whole revenue, assessed upon it, but each biga of land is responsible for its own quota of that revenue." In another part of his judgment he says : " The reason why such rent-free grants cannot be made is that they are entirely opposed to the theory of the permanent settlement." FULL BENCH RULINGS. 847 The argument that after a permanent settlement the zemindars, when jggy tliey collected the rents of their estate, were collecting the Government's ~r ' •' ' ° Mahomed siiare of the produce of each higa, as well as their own, appears to Akil V. me to be founded upon a fiction, and based upon an erroneous view of Asaduhnissa i J It R K 1^ the object and intent of the permanent settlement. In niy opinion, it 1 ' is a mistake to suppose that after a permanent settlement the Govern- cIv^gywal ment continued to be entitled to a shure of the produce of every _ "• / -^ Dbshkar biga of land in the settled estate in addition to the amount which lior. the zemindar engaged to pay as revenue. It is an error to suppose that the Government was, according to the ancient law, entitled under all circumstances, and without any exception, to a certain proportion of the produce of every biga of land in cultivation. In stating what the ancient law was, the Legislature very clearly pointed out that it was subject to an exception. The law is defiued as follows : " By the ancient law of the country the ruling power is entitled to a certain proportion of the produce of every biga of land demandable in money or kind according to local custom" (1). The exception is also pointed ont in the following words : "Unless it transfers its rigiit thereto for a term or in perpetuity, or limits the public demand upon the whole of the lands belonging to an individual, leaving liira to appropriate to his own use the difference between the value of such proportion of the produce and the sum payable to the public, whilst he continues to discharge the latter." In construing the Regulations we must take the law as it was defined by the Legislature with reference to the enactments which they founded upon it ; and when they introduced into that definition an exception in the case of a transfer in perpetuity, or of the limitation of the public demand upon the whole of the lauds of an individual, we must understand to mean that, as soon as such a transfer should be made, or the public demand upon an individual should be limited in perpetuity, under^tiie operation of the laws which they were then enacting, the Government would cease to be entitled to the proporiioii of the produce of every biga to which they would have had a right under the ancient law of the country. When a zemindar entered into a temporary engagement to pay a certain sum as revenue for the whole of an estate which belonged to him,- and the Government limited the public demand upon the whole of the lands in the estate to the sum which the zemindar agreed to pay aa revenue, the Government, according to the law as defined in the Regu- lation, ceased during the term of the settlement to be entitled to a pro- portion of the produce of every biga of land in the estate. The public (1) Regulation XIX of 1793, s. 1. 848 FULL BENCH RULINGS. 1867 demand upon the whole of the lauds iu the settled estate was limited to ,, the sum which the zemindar ensaied' to pay as revenue, and he was Mahomed o '^ -^ •' Akil left to appropriate to his own use the difference between the value of AsADUNNissA that proportion of tlie produce to which the Government would have ' been eniiiled if the settlement had not been made, and tlie sum payable MUTTYLALL i.i ■, Ti- iTli.„1^™ Sen Gywai. "J '"^ zemuular as reveuue under his engagement. In short, so long jj "• as he continued to pay the sum wliicli he engaged to pay as revenue, lie KoY. was to be at liberty, during the period for whicii tlie settlement was made, to appropriate to liis own use the wliole of the assets or rents of the estate, and iu so doing, to appropriate to his own use the difference between the value of tlie Government's [iroportion of the produce, that is, the rents payable to the occupiers, and the amount which at the time of the settlement he engaged to pay as revenue. It seems to be a forced construction to hold that the Government continued entitled to its own proportion of the produce, or any part of it, when the zemindars were expressly authorized to appropriate to their own use the wliole difference between the value of such proportion and the revenue which they agreed to pay permanently in lieu of it. The revenue settlement seems to have been treated, so long as it continued, as a composition entered into by the zemindars for the revenue of the estate, and when the term for which the settlement, in temporary, was made, expired, tlie Government again become entitled to its proportion of the produce of each biga of land in cultivation, of which an estimate was made before a fresh settlement was entered into. That was the case under the old law, and then tlie zemindars were not entitled to enter into any engagemeuls with their dependent lalookdars, under-farmers, or ryots, for any period beyond the term of their own engagements with the Government; Regulation XLIV of 1793, s. 1. When, however, a permanent settlement was entered into, the Government ceased to be entitled to anytliing beyond the amouut whicii the zemindars contracted to pay as revenue, and the zemindars, accoril- ing to a solemn declaration, became the proprietors of the lands. The property in the soil was vested in them, and they were at liberty " to transfer by sale, gift or otherwise their proprietary riglits in the while or any portion of their respective estates" (Regulation I of J 793, s. 9), and to let their lands in whatever manner they might think proper, subject to the restrictions in Regulation VIII of 1793 ; see s. 52 of that Regulation. They were also authorized to grant dependent talooks; see s. 6 of Regulation XLIV of 1793; and to distrain for the rents due from their tenants; Regulation XVII of 1793, s. 2. Tliey PULL BENCH RULINGS. 849 were however expressly lestraiued at tlie time from granting leases or 1357 talooks for any period exceeding ten years, except for the purposes mahomkd mentioned in s. 8, Eegulution XLIV of 1793, for which they were ^^^^ allowed to make granls in perneluity ; and all leases and grants, wiih a Asadunnissa. ° . Bkbke. few exceptions, such as those made for the purposes mentioned in s. 8, Eegulution XLIV of 1793, were, in the event of a sale for arrears of y^j, gywau revenue, to sinnd ciuicelled from the day of sale. Des'mkak S. 6 of Regulation YIII of 1793, and s. 2 of Regulation XVII of Ko^f- 1793, show very clearly that the Legislature did not consider that the zemindars after a permanent settlement, when collecting tiie rents of their estates, would be collecting public revenue from their dependent talookdars, farmers, and ryots, or that such (alookdais, farmers, and ryots would he paying to Government, through the zemindars, the share of the produce to which under the ancient law the Government would have been entitled if a settlement hiid not been made ; for what was the use of declaring that the talookdars specified in s. 6, Regulation VIII of 1793, viz; those who by virtue of an express stipulaiion in tlieir sanads or title deeds then paid their revenue through the zemindar, should continue to pny their revenue through him, if it was contemplated or intendad at that time that every dependent talookdar or ryot or occupier of land who should pay renl^ to the zemindar should be deemed to be paying to Government through the zemindar the Government's share of the produce of the land. Moreover, the kists or instalments of revenue payable by the zemindar to Government were not necessarily due at the same time as the instalments of rent payable to them. By 8. 64, Regulation VIII of 1793, which was passed for tiie benefit; of the under-farmers and ryots, the zemiudars were required "to adjust the instalments of the rents receivable by them from their under-renters and ryots according to tiie time of tlieir reaping and selling the produce." In the present case, the grantor in some of the grants was not a zemindar but a mokuraridnr, and the question is whether his heir can resume lands granted by him rent-free, tliough he [lays rents to the zemindar, and the zemindar pays revenue to Government. It follows from whiit I have already staled that, in my opinion, the heir cannot resume tlie lauds. If a grant rent-free by a zemindar who pnys revenue to Government is not a grant to hold exempt fiom the payment of revenue, it follows that a grant made by a tenant of the zemindar to an under-tenant, rent- free, would not be a grunt to hold exempt from the payment of revenue. But some of my late colleagues have ex[iressed an opinion that reut-freo 850 FULL BENCH RULINGS; 1867 grants by mokuraiidars, as well as reut-free grants by zemindars nre Mahomed grants to hold exempt from tlie payment of revenue. Upon this ^^"^ subject Trevor, J., says: "The plain liff in this case is a mauriisi AsADiiNNissA ijaradar, or a person who holds the estate in farm of the proprietoi-. BeBKK. tt ^ b_ . T He is, therefore, under s. 10 of Regulation XIX of 1793, autlioiized Skn Gywal ^^^ required to collect the rent for the lands at the rate of the pergunna Dkshka ^^'^ *° dispossess the grantee," that is, the grantee wlio purchased lioY. from his ancestor, "of the proprietary right in the land," &c. Cum|)- bell, J., also says : "The word 'revenue' being in my view used in the sense of the khiraj payable by the ryot or cultivator, it seems to me to be quite immaterial whether the plaintiflf is the zemindar or the assignee of the zemindar of the first, second, third, or tenth degree of sub-infeudation. The suit may, I consider, be maintained by any person entitled to receive the khiraj." But, if there are sub-infeudations, as they are called, or rather trn dependent talooks or leases intervening between the zemindar and the culiivator, each of the talookdars collects rents from tlie holder of the tenure next below him, and it is only the last who receives rent, or a share of the produce of the soil, from the actual cultivator. The mere argument that the rents payable by each of the various under-tenants to the landholders under whom they respectively hold is revenue, seems to me to be a strong argument against the correctness of the doctrine that, after a permanent settlement, all rent is revenue within the meaning of s. 10, Regulation XIX of 1793. In Raja Modhnarain's case(l) it was held that the grantor could treat the grantee as a trespasser and turn him out of possession, and the Sudder Court went to the extent of reversing the decision of the Zilla Judge, because he held that the grantee to whom the rent-free grant was made was entitled to retain possession of the lands upon condition of his paying rent for them at the pergunna rate. In the Full Bench case of Sonatan Ghose v. Abdul Farar (2) Trevor, J., says : " The grantee, in short, was considered as a trespasser who had, and could have, no right, in the eye of the law." Norman, J., thenofficiating as Chief Justice, says : "S. 10 of Regulation XIX of 1793 authorized the zemindars to resume or, iu other words, to retake possession without a suit." Pundit, J., says : " The law could not provide rules for anytliing less than the power it had given, viz., that of ousting the lakhirajdar ; and so no provision was made for any other limited mode of exercising that power which the landlord may find it expedient to adopt." (1) S. D. A., 1855, 395. (2) Ante, p. 109. FULL BENCH RULINGS. 851 It was, howBTer, held by the .ludicial Committee ihnt n purchaser at n i867 sale for arrears of revenue could not, under s. 5, Regulation XLIV ^Ti, ' of 1793, treat a talookdar as a trespasser and turn him out of possession, Akil but that he could only recover the same rents from him as the former Asadunnissa proprietor could have done if the grant had not been made. '-' If the decision of the Sudder Court in Raja Modhnarain's case (1), ll^^wlt and the principles laid down in the second Full Bencii ciise, and in the case -^ "■ of Sonalan Ghose v. Abdul Farar (2), are correct, that the grantor of l^'O^f- a rent-free tenure and his heirs can, under s. 10 of Eegulation XIX of 1793, treat the grantee as a trespasser and turn him out of possession the grantor and his heirs will have n greater power as against a pur- chaser of lands for which no rent is reserved, than a purcliaser at a sale for arrears of revenue would have under s. 5, Regulation XLIV of 1793. It appears to me to be a great anomaly tliat a grantor should have a greater power against the grantee to whom he has sold lands rent-free than a purchaser at a sale for arrears of revenue who claims through the Government adversely to the grantor. It is a general principle of law that a man shall not avoid his own grant, and another that an heir is bound by the acts of his ancestor in respect of lands which he inherits from him. Those principles are founded upon justice and common sense, for law is intended to suppress fraud, not to encourage it. In the case to which I have just referred. Ranee Surnomoyee v. Maharaja Sutteeschunder Roy (3), the rule by which a bishop was not allowed to invalidate his own grant under the disabling Statute 1 Eliz., c. 19, was referred to for the purpose of illustrating a general principle of construction. The rule did not direcily govern the case before the Privy Council, for the question there was whether a purchaser at a sale for arrears of revenue, having a right to treata zemindar's engagement with a dependent talookdar as cancelled under the provisions of s. 5, Regulation VIII of 1793, could treat the talookdar as a trespasser, and turn him out of possession or merely enhance his rent to a fair rate. There was no doubt as to whether the auction-purchaser could treat the engagement under which the talookdar held as cancelled. But the principle referred to in the case in the Privy Council is peculiarly applicable to the present case, in which the question is, whether a zemindar can treat bis own grant as void, or whether an heir can avoid a grant made by his ancestor. The following remarks of Lord Justice Turner (4) in delivering the opinion of the Judicial Committee, are so pertinent to the present case that (1) S. D. A., 1855, 395. (3; 10 Moore's I. A,, 123. (2) Ante, p. 109. (4) AnU, p. 145, 852 FULL BENCH BULINGS. 1857 I need not offer any iipology for quoting them : — " English lawyers are Mahomkd '^*™i'i"r ""'ith the principle of construction applied as eiirly as the time of Akil Lord Coke (see 1 lust., 45) to the disabling Statute of 1st Eliz., c. 19, AsABUNNissA s. 5, and in several raodera reported cases between landlord and tenant, 1 — ■ ou clauses of forfeiture in leases. Words which make a bishop's giant Sbh Gywal 'utterly void and of noue effect to all intents, construction and purposes,' "• have been held not to prevent the grant from being: good and binding KoY. on the grantor, and in some cases confirmable by the successor ; and so a proviso in a lease, that it sliould be void altogetlier in case the tenant should neglect to do a certain act, has been held only to make it void- able at the option of the landlord. Their Lordships do not cite these as autliorities governing this case, but mention them only as illustrating a general principle of construction which for its justice, reasonableness, and convenience must be considered of universal application. In the present case, the object of the Government was tbat that the juroma should be duly paid, and that the means of paying it should not be wiihdrawn by the improvident giants of the zemindars who had made default ; but cases of default might often arise where no improvident grant had been made, where the talookdars and the ryots held at proper rents, and the default was owing to extravagance, mismanagement, or other causes, — in such cases the Government cannot be supposed to have intended a wanton and unjust disturbance of vested interests." It is to be observed that the principles laid down in the second Full Bench case apply not only to rent-free grants of dependent talooks and leases, but also to grants by a zemindar of the whole proprietary rights in a portion of an estate. This, if possible, carries the doctrine to a more dangerous extent than if it were confined to leases and independent talooks. Trevor, J., says : — •" The instrument is a grant in fee-simple of 22 bigas of the grantor's revenue-paying estate to the grantee, to be held by him free of revenue for ever ; and it can in no way be construed as a lease, for there is no annual return of rent made by tlie gj-aniee as tenant, either in labor, money, or kind Had it been a lease, however small the rent reserved, it would have been legal under the terras of s. 8 of Regulation XLIV of 1793; but as it is a grant involving that whicli the zemindar had not the power to grant, viz., the Govern- ment portion of the produce of the land granted in perpetuity, it is altogether, as it seems to me, illegal and contrary to the policy ■of tlie law as laid down in Regulation XIX of 1793." The grant, no doubt, conveyed all the grantor's interest in the estate to the grantee and his heirs for ever, and is what we should call in English law a grant in fee-simple, and what I should call in the words FULL BENCH RULINGS. 853 of s. 9 of Reguluiiou I of 1793, a gvaat of the zemindar'a proprietary ige? rights in a portion of his estate. It matters not whether the grant mahomed was for a large or a small portion of the estate, for half the zemindar!, Akil or for the whole or part of a village or mehal. The zemindar retained Asadunnissa . Bebeb. no right or interest, reversionary or otherwise, in the land granted, and he reserved no rent for it. Trevor, J., treats it as n grant in fee-simple g^j, gyv/al, without any reservation of rent. Such a grant conveys all the pro- "■ prietor's rights in the land. If the grant of the 22 higas of land for a Koy. tank, rent-free, was a grant of the Government's portion of the produce of the lands granted, and therefore void, and the grantee was a trespasser, because the grant did not reserve a rent, a similar grant by a zemindar of the greater part of his zemindari, or of a whole village or mehal, to a man and his heir for ever, without reserving a rent, would be void, and the grantee might be treated as a trespasser and turned out of possession, even though he might have paid a large sum as purchase-money for the grant. A grant in fee-simple or a grant of a zemindar's proprietary rights in a particular part of his zemindari, or in a particular village or mehal, to a purchaser and his heirs for ever, does not usually reserve a rent* or conditions. A mortgage by a zemindar of his whole proprietary rights in a portion of his estate by conditional sale would not reserve a rent. When foreclosed, the conditional sale becomes absolute ; but still it has only the effect of an absolute grant or transfer by the zemindar of his pro- prietary rights in a portion of his estate without any reservation of rent. Ss. 9 and 10, Regulation I of 1793, provide that the grantee in such a case is entitled to have the revenue apportioned, and to hold the lands included in his grant as a separate estate, subject to only that portion of the revenue which may be assessed upon it under the provisions of s. 10. But if the grant is void under s. 10, Regulation XIX of 1793, because no rent is reserved, the zemindar or his heirs may intercept the grantee, and before he can obtain a butwarra, or get the portion of the estate which has been conveyed to him converted into a separate estate, may treat him as a trespasser and turn him out of possession, and resume the lands which he or his ancestor had sold. Besides, if the grant, as held by Trevor, J., is null and void under s. 10, Regulation XIX of I793j the Government officers could not legally give effect to it by carrying out the provisions of s. 10, Regulation I of 1793, in respect of the lands included in it. It is clear that the Legislature never contemplated that such grants would be void if made rent-free. There could be no reason why a man who purchases the whole interest or proprietary right in a particular melial or other portion of an estate, 64 854 FULL BENCH RULINGS. 1887 or obtains a grant, as Trevor, J., calls it, in fee-simple, should pay rent ~z: to the zemindar as well as his portion of the Government revenue Mahomed '^ Akil to be assessed upon the lands conveyed to him. If that part of the AsADUNNissA zemindari which is sold to him is liable to have its own porlion of the ■ revenue assessed, what necessity can there be for any reservation of rent Si£™Gywal *'° ^^^ zemindar, who parts with all his interests in it ? There cannot be "• any greater necessity for the reservation of rent to a zemindar who sells KoY. all his proprietary rights in one-half of his zemindari, than there is for a reservation of rent by a zemindar who sells his whole interest. Eegulation XLIV of 1793 dees not apply to grants of proprietary rights but only to dependent talooks and leases. It has no reference to grants in "fee-simple," or, as they may be more properly designated in the mofussil, grants of the whole of a zemindar's rights and interests in a part of his estate. No one will, I think, after reflection and a careful consideration of Regulation I of 1793, ss. 9 and 10, hold that such grants are void under s. 10, Eegulation XIX of 1793, if no rent is reserved to the grantor. It is clear that cl. 3, s. 10, Eegulation I of 1793, which has been referred to by Norman, J., does not require a rent to be reserved to the zemindar upon the grant of his proprietary rights in the whole or in a portion of his estate ; it merely contains directions as to the apportionment of the Government revenue where an estate is divided into two or more distinct portions. The section has nothing to do with the reservation of rent upon the grant of a dependent talook or lease, which by the express terms of cl. 10, Eegulation I of 1793, Art. IX, is excluded from the provisions of that clause. Another theory, as regards the effect of s. 10, Eegulation XIX of 1793, has been propounded. Norman, J., says : — " If immediately after the settlement, the zeraindaris could have been split up and subdivided, and large portions of them disannexed from the parent estates by rent-free grants without notice to the Government, the security of the Government revenue would have been enormously imperilled. It may bo said that if the zemindar made default, the whole estate might be sold, and the grantees of the zemindar would have no title as against the auction-purchaser. If such grants had been permitted, it is by no means clear that zemindaris, when sold, would have realized prices suflScient to cover arrears. There would hav^ been great risk that the boundaries of zemindaris would have become confounded, and that in almost every case, a purchaser at a sale for arrears of revenue would buy little more than a crop of law suiis"(l). (I) Ante, p. 804. FULL BENCH RULINGS. 855 But a grant of a dependent tnlook or lease, whether a rent is reserved iggy or not, does not disaanex the lands included in it from the parent mahomed estate. The lands still remain a part of the estate liable for the &'«.ii- '^ V. revenue reserved for the estate, and to be sold wiihthe remainder of the Asadunnissa Bbbeb. estate for any arrears of such revenue, and when sold, the lease or talook flTTTT'PYr ATT stood cancelled by virtue of s. 5 of Regulation XLIV of 1793. I cannot sen Gywal see what interest the Government could have in compelling the zemin- deshkar dar to reserve a rent ; or how, if they had such an interest, it could ^°^- be protected by compelling the reservation of a mere nominal rent. As to the risk of confounding the boundaries of the zemindaris, I am at a loss to understand how the reservaiion of a nominal, or even of a substantial, rent would prevent such risk. Even if it would have done so, surely some belter contrivance than that of encouraging fraud and allowing the grantor or his heirs to commit the injustice of repudiating his own grant might have been devised for that purpose. It has been said by one of my colleagues that we are bound to administer the policy of the law if we can discover it, and he arrives at the conclusion that the whole policy of our revenue legislation is against the creation of rent-free grants. With all respect for tliat opinion, the doctrine of administering the policy of a law appears to me one of the most dangerous that I ever heard propounded as a rule of construction. We are bound to administer the law as we find it laid down, and not what we may imagine to have been the policy of the law-makers. We ought not to deprive a man of lands which he has purchased, and of which he and his ancestors have been in undisturbed possession for nearly half a century, by administering the policy of a law or of a system of legislation which is not expressed by the law-makers. The policy of our revenue legislation is to secure the revenue. I trust that it is not to be carried out without regard to justice. Who is to be the Judge of what grants are, and what are not, against the policy of our revenue legislation ? Is it to depend upen the opinion of each indivi- dual Judge, or only upon the declared intentions of the Legislature ? It was admitted by one of the learned Judges who delivered judg- ment in the second Full Bench case in 1865, that it might appear unjust and inequitable that any person should have a right to take advantage of his own wrong, and that grants made for consideration should be resumable by the party making them. But he added, "perhaps the policy which dictated the law preferred to protect the rights of the Govern- ment without any regard to the hardship or injustice noticed above." What man's property will be safe if such rules of construction be adopted ? Who is to decide whether it is against the policy of the revenue 856 FULL BENCH RULINGS. jgg7 laws to allow a man, for a valuable consideration, to grant a lease at a Mahomed """^i"^'^ "'^nt, and to repudiate all leases or grants which he himself Akil has made if they are rent-free ? Upon this point various opinions are AsADUNNissA entertained by diflPerent Judges. For my own part, I hold that it was , ■ not against the policy of the revenue laws, or of the permanent settle- Sbn^ Gywal ^^'i*) *o allow a zemindar to avoid his own or his ancestor's rent-free ^ »• grants. If the Legislature has declared that all rent-free grants are KoY. void, we must administer the law as we find it, however much we may reject it and disapprove of the policy. But the real question is whether, when the Legislature used the word " revenue, " they meant " rent, " or meant only that which they expres- sed. Loch, J., in his judgment in the 2nd Full Bench case, says ; — " The preamble (Regulation XIX of 1793) clearly lays down the principle upon which the revenue was assessed, what part of that revenue was to he considered as rent {viz., the difference between the assets of an estate and such portion of them as Government might think fit to appropriate), and it distinctly repudiates the zemindar's rights to make a grant exempt from the payment of revenue, such revenue necessarily comprising rent" (1). The argument fails to prove, to my mind, that that portion of the assets of an estate which Government does not appropriate, and for which the zemindar was not bound to account, is revenue. The argument is that the Regulation shows what part of the revenue was to be considered rent. The conclusion is that the part which was to be considered rent was intended to be included by the Legislature when they used the word " revenue." If the Regulation shows what part of the assets is to be considered as rent, and what part as revenue, why are we to hold that the Legis- lature intended to include in the word " revenue" that which they intended to be considerd as rent? Is it not more reasonable to suppose that the Legislature intended by the word " revenue" that part which was not rent, especially when in the same Code they use the word " rent" as something distinct from revenue : and Loch, J., admits that the zemindar may remit liis share of the rent, but he says he has " no authority to remit any portion of the revenue, and therefore that a perpetual lease or a quit-rent which does not provide for the full quota of revenue fi'om each biga of land is as invalid as a rent-free grant." If as stated by Loch, J., tiie difference between the whole assets of an estate and such portion of them as Government thought fit to appro- priate, was rent ; rent was the part not appropriated by Government, (1) Ank., p. SG, FULL BEITCIl RULINGS. 857 How tlien could revenue, which was the part appropriated by Govern- jggy raent, comprise rent, which was ilie part not appropriated by Govern- ~^, inent ? Akil V. The argument assumes that when a zemindar has engaged for and Asadunnissa pays a certain sum fixed permanently as the revenue of an estate, ^^" the Government still retain a share in the rent, on that part of the I^n^gywal assets of an estate which they have not appropriated. If this is so, "• what becomes of the declaration made at the time of the permanent Koy. settlement by s. 1, Eegulation II of 1793, that the revenue payable to Government had been fixed for ever ? If the assets for the sums paid by the ryots are part of the revenue, they surely had not been fixed for ever. It -was the very object of the permanent settlement to induce the zemindars to improve their estates, and thus from time to time increase the assets ; and for this purpose the Government appropriated as revenue a fixed sura, and left the remainder of the assets to the zemindars. Before the permanent settlement the Govern- ment's share of the assets was liable to fiequent variation. It may be asked, if Loch J.'s argument is correct, what part of the assets must be reserved as rent in order to prevent the grant from being exempt from the payment of revenue? If a question arises whether the share which belongs to Government of the assets has or has not been reserved under lease by a zemindar, how is that question to be determined ? If it belongs to Government one would imagine that when collected it must be*paid over to Government. Yet no one will, I think, contend that a zemindar is bound to pay to Government any portion of the rents reserved under leases or grants of dependent talooks. I concur with Loch, J., that if it is necessary to reserve a rent at all, it is not sufficient to reserve a mere nominal rent, but if it is compulsory upon zemindars to reserve a rent equal to that portion of the assets to which the Government would have been entitled if the lands had not been permanently settled, how is it to be ascertained whether such a rent was reserved or not, when it is clear that before the pefmanent settlement the amount payable for revenue was fluctuating and depended upon the will of Government? If a lease or grant after a permanent settlement is to be avoided by the grantor, because it does not reserve that which would have been the Govern- ment's share of the assets if the settlement had not been made, it will be impossible to ascertain whether such rent has been reserved or not. Even if it should be held sufficient if the rent reserved is equal to the full quota of revenue fixed by the permanent settlement for each bigii, inextricable confusion will arise, auil it will be necessary in 858 FULL BENCH RULINGS. 1867 every case in wliioh a grant or leiise is disputed fo raise an issue ~t; ■ wliether the amount reserved bears the same proportion to the actual Mahomed '^ "^ Akil produce of the land included in the grant as the assessment upon the AsADUNNissA whole of the estate bears to the whole of its actual produce ; and the trial 1 " of such an issue will involve the same inquiry as would be necessary if the Sen^Gywal grantee had had the proprietary right in the lands conveyed to liim and "• was applying for a butwarra ; and this will be the case even if the grant Ror. comprised only a few bigas or katas of land. Indeed, as it has been already shown, after a permanent settlement, no particular portion of the whole revenue is payable for any particular biga ; and even if it were so» it would be almost impossible after extensive improvements in an estate, to say what proportion the revenue of any particular biga of land bears to the' whole assets of the estate. In the second Full Bench case, the land in question was at the time of the permanent settlement a piece of low marshy land which yielded no assets. In such a case, it would be impossible to say what proportion of the revenue was payable for it. Pundit, J., with his great acuteness and experience, foresaw the difficulty — I may say the impossibility, — of compelling a zemin- dar to reserve on every grant a rent equal to the full quota of revenue for each biga of the lauds granted, especially when no rent for such lands was paid at the time of the settlement. He said :^ "During the progress of the decennial settlement and in 1793, when the laws of that year were enacted, it was thought to be a sufficient check against acts supposed to be injurious to the^public rights to declare that no grant or alienation should be made rent-free; and it was not considered at all expedient to rule further that the rent reserved iu 'a lease should be equal to the proportionate revenue due to the Government from the land leased out. It was not an easy matter to fix this proportion ; and it was not thought proper to impose such a troublesome condition, because it had already been ruled that the zemindars generally could not settle for more than ten years, and that fraudulent or wrongful settlements made by them were not binding upon auction-purchasers"(l ). I cannot discover what Pundit, J., relied upon, wh'en he stated that when the laws of 1793 were enacted, it was thought to be a sufficient check to declare that no grant or alienation should be made rent-free. He must, I presume, have relied upon the authority of the Sudder Court in Rajah Modhnarairi' s case (2), to which I have already adverted. Trevor, J., holding that a mere nominal rent was sufficient, had not to contend with the difficulty of deciding what amount of rent it would be (1) Ante, p. 89. (2J S. D. A., 1855, 395. FULL BENCH RULINGS. 859 necessary to reserve in order to prevent a grant from being void under jgg^ s. 10 as a grant exempt from the payment of revenue. He says : — "the mere fact of the land granted being unculturable at the time the grant was -Akil made, does not render that legal which, under other circumstances, would Asadunnissa. not be so. The fact of its unculturableness was an accident of the 1' moment, and as the land was a portion of the decennially settled estate, sen g\'wal the whole area of which forms the security for the Government revenue, ^ "■ ■^ Dkshkak it could not be alienated revenue-free without the consent of Government; Eoy. Neitlier can the fact of the grant being for the alleged benefit of the villagers render that legal which is illegal in consequence of its being to the detriment of the interest of the State." Tlie decision that a nominal rent is sufficient, gets rid of the difficulty of deciding what amount of rent would be sufficient to prevent a grant from being a grant to hold exempt from the payment of revenue, if such grants are at all within the meaning of s. 10, Regulation XIX of 1793. But the decision is open to this palpable objection, that, if a rent-free grant of lands of large value is void in consequence of its being detrimental to the State or to the interests of the zemindar's heirs, such interests would not be protected by the reservation of a merely nominal rent. A question also seems naturally to arise : — Were Lord Cornwallis and his Council so short-sighted as not to see that there could be very little diffisrence, as regards the interests of the State or those of the heirs of n zemindar, whether a grant was rent-free, or subject to only a nominal rent ? jVIoreover a zemindar has full power to assign by way of gift, sale, mortgage, or otherwise the rents of any of the dependent talooks or leases on his estate or any portion of them. There is nothing in s. 10 wliich, by any interpretation, can be held to prohibit this, although the grants would, as against a purchaser at a sale for arrears of revenue, convey no interest in the rents of the estate to the grantee. What good reason could there have been to compel a zemindar to reserve some rent from the tenant on the grant of a talook or lease when he could assign over to a third person the rent which he had reserved as soon as he had received it ? How much better would the state of the heirs of a zemindar be, if the zemindar should grant a lease reserving a full rent, say of Rs. 10,000 a year, for the lands, and should assign over the rent the next day to a stranger and his heirs for ever, than they would be if he were to grant a lease without reserving any rent at all. Further, if in consideration of a large premium, a zemindar should grant a lease at a nominal rent of land worth Rs. 10,000 a year, he 860 PULL BENCH IIULINGS. 1887 MUTTYLALL SisN Gywal V. Dkshkab KOT. woiilil be guilty of extortion, if he sliould collect more than the nominal „,„„,.„„ leut so reserved ; see Eegulation VIII of 1793, s. 52. But if. a lease Akil rent-free of such lands is void under s. 10, Regulation XIX of 1793, AsADDNKissA lie might, and indeed would, be required by that section to resume the ' lauds, and could then let it for a full rent. It was contended on behalf of the plaintiff, and it was held by some of tlie Judges in the second Full Bench case, and it is the opinion of some ■of the Judges of the present Full Bench, that the word "revenue" was used in s. 10, Regulation XIX of 1793, as well as in the laws before the decennial settlement, to express either revenue belonging to Govern- ment or rent belonging to the zemindars, or to use the words of Campbell, J., " in a shifting and interchangeable sense, and sometimes synonymously to mean the same thing." In the Regulations prior to the decennial settlement, no doubt, the word "revenue" included rent, not because the same word was intended to refer to two different things, but because at that time the rents of lands were Government revenue. The Regulation of 1st December 1790, in using the words " rent-free grants" included lakhiraj grants or grants exempt from the payment of revenue to Government, because at that time, if the rent was alienated, the revenue which belonged to Government was ipso facto alienated. I cannot find any inconsistent use of the word " revenue " in Eegulation XIX of 1793, or in any of the other Regulations of that Code, or any synonymous use of the words " revenue" and " rent." The instances which have been specified, in which it has been asserted that the word revenue was used in the sense of the zemindar's rent do not, in my opinion, support the assertion. The use of the word in s. I of Regulation XLIV of 1793, and in s. 11 of Regulation XIX of 1793, were the only specific instances given as regards the Code of 1793 in which it was said that the word "revenue" was used in a double sense. Regulation III of 1828 wns also referred to for the purpose of showing that the words " revenue" and " rent" were used synonymously, though that fact, if it had been so, could have but little bearing upon the question as to the sense in which the word "revenue" was used in Regulation XIX of 1793. Loch, J., in his judgment in the second Full Bench case, has very clearly shown that the word "revenue," as used in s. 11, Regulation XIX of 1793, refers to revenue in the ordinary sense of the word, and that it was used in that section to denote the revenue on resumed lakhiraj lands under 100 bigas, which was given up to the zemindars by s. 6 of that Regulation, and was assessed under s. 9. It was reveuile, and not rent, as a reference to ss. 6, 9 and 11 will show. PULL 13BNCH RULINGS. 861 The words wliich are refened to iu Eegulatioa XLIV of 1793 aie ige? those in wLicli it is said : — " It is at the same time essential that Mahomed proprietors of laud should have a discretionary power to fix the ^_ revenue payable by their dependent talookdars, and to grant leases, or Asadunnissa. fix the rents of their lauds, for a term sufiicieut to induce their MUTTYLALL talookdars, &c., to improve the cultivation of their lands, &c." The Sen Gywal word "revenue" is used in the passage above quoted iu the same Deshkak sense as that in which it is used iu s. 2, Regulaliou XVII of 1793, by ■^°^' Avliich zemindars are authorized to distrain upon their under-tenants and ryots and upon the talookdars paying revenue througli them for arrears of "rent " or " revenue." The word "revenue" iu both these Regulations refers to the dependent talookdars mentioned iu Regulation VIII of 1793, s. 6, who were to continue to pay their revenue through the zemindars. The word " revenue" both in Regulation XVII and in Regulation XLIV was tlierefore used in its ordinary and strict sense. Regulation III of 1828 referred to gi'ants of lauds which the Government were entitled to resume, and necessai-ily referred to grants made prior to the 1st December 1790, when, as I have already endeavoured to show, a grant rent-free was really and actually an alienation of the Government revenue. Loch, J., in his judgment in the second Full Bench, refers to the indiscrimiuate use of the word " revenue," but he does not concur in that use of it. He says : — " Another element of confusion must be got rid of, viz., the interpretation put upon the word ' revenue' in Regula- tion XIX of 1793. It has been said that the word is used indiscri- minately to mean either revenue or rent according to the context. This appears to be a mistake. The word ' revenue' is used in its proper meaning throughout the Regulation, and is not convertible with rent, though it comprises I'ent. A consideration of the purport of the law will at once show that the Legislature was dealing with a question of revenue only." ' The word " revenue" and the word " rent" were used in the Code of 1793, in many places, as I have already shown, in order to describe two very different things; the former meaning Government revenue, the latter meaning the rents payable to the zemindars by their talookdars, fanners, and ryots. It would therefore have been quite contrary to the rules contained in Regulation XLI of 1793, to use the word " revenue" as applicable to the zemindar's " rents" or the word " rent" to express the Government " revenue." By Regulation XLI of 1793, it was enacted that in the Regulations the same designations and terms should be applied to the same descriptions 65 862 FULL BENCPI EULINGS. 1867 of things, in order that rights, property, tenures, and, generally, all Mahommd psraona and things should be uniformly described by the same designa- ^^'^^ tions and terms throughout the Judicial Code : and so careful was the AsADUNNTssA LeglslaturG with respect to this important subject that it was directed ' by s. 16 that, in translating the Eegulations, the translator was to be Sen Gywal particularly careful to preserve the same uniformity. The Legislature „ "• knew full well what they were about, and, therefore, in re-enactinjj EoY. with modifications the Regulation of the 1st December 1790, they substituted tlie word " revenue'' in s. 10 for the word "rent," which was used in the corresponding section of the Regulation of the 1st December 1790. Notwithstanding the substitution of the word'" revenue" for the word "rent," for which the Legislature must be supposed to have had some good reason ; and notwiihstanding the preamble and enacfments of Regulation XLI of 1793, some of my colleagues held that the word "revenue" was used in s. 10 of Regulation XIX of 1793, to express two different things ; one of them in particular says : — ■ "I am compelled to conclude that the word 'revenue' at that time ■was not always employed to mean only the revenue demandable by Government, but that it was also loosely used to comprise the rent recoverable by the zemindar who was accountable for the revenue." To arrive at such a conclusion, we must hold that the Legislature were themselves violating in s. 10, Regulation XIX of 1793, a rule which, by another Regulation of the same Code, Regulation XLI of 1793, passed on the same day, they declared to be essential to enable Courts of Justice to apply the Regulations according to their true intent and import; see the preiimble of the Regulation XLI of 1793. But the use of the words "revenue" and "rent" in the same Code for the purpose of designating sometimes the same thing, and sometimes two distinct things, would have been not only a violation of the express rule laid down in Regulation XLI of 1793, but in contravention as well of the principles by which the scientific use of language is regulated as of the rules of legal construction. It was wisely remarked by Locke in his Essay on " the Human Understanding" speaking of the abuse of words, that " words fail to lay open one man's ideas to another's view, ^rst, when men have names in their mouths without any determinate ideas in their minds whereof they are the signs ; secondly, when they apply the common received names of any language to ideas to which the common use of that language does not apply them ; and thirdly, when they apply them very unsteadily, making them stand now for one, and by and by for another, idea" (1). He (1) Bk. iii, Ch 10, s. 23. FULL BENCH RULES^GS. 863 points out how great is the concernment of every man as to the meaning ise? of the laws which he is to obey, and which draw inconveniences Mahombd upon him when he mistakes or transgresses tliem. "It is hard," he says, «. " to find a discourse written on any subject wherein one shall not ^^^^^^^ observe, if he rend with attention, the same words (and those commonly ,, the most material in the discourse, and upon which the argument turns) Sen Gywal used sometimes for one collection of simple ideas and sometimes for Deshkar another, which is a perfect abyse of language. Words being intended for signs of my ideas to make them known to others, not by any natural signification, but by a voluntary imposition, it is a plain cheat and abuse when I make them stand sometimes for one thing and some- times for another" (1). I do not believe that either the Legislature of 1793, or the drafter of the Code of Regulations which was passed in that year, is open to tlie imputation of having used the word "revenue" in Regulation XIX of 1793, unsteadily in a double or sliifting sense. It was the very object and intention of Regulation XLI of 1793, to prevent any such abuse of words, and the Legislature appear to have had the remarks of Locke in their minds when they framed tliat Regulation. If any hardship and injustice has been caused from tlie use of the word "revenue" in s. 10, it is not, in my opinion, owing to the abuse of tlie word "revenue" by the Legislature or by the franier of the Regulation, but by the misuse of the word in the interpretation of the law. I have already quoted a passage from Locke on the abuse of words, I will now refer to another passage from the same author on the subject of interpretation of words. He says (still speaking of the abuse of words) : — " Nor hath this mischief stopped in logical niceties, or curious empty speculations ; it hath invaded the great concernments of human life and society ; obscured and perplexed the material trutlis of law and divinity ; brought confusion, disorder, and uncertainty into the affairs of mankind ; and, if not destroyed, yet in a great measure rendered useless, these two great rules, religion and justice. What have the greatest part of the comments and disputes upon the laws of God and man served for, but to make the meaning more doubtful, and to perplex the sense ? What have been the effects of (hose multiplied curious distinctions and acute niceties, but obscurity and uncertainty, leaving the word more unintelligible, and the reader more at a loss ? How else comes it to pass that princes, speaking or writing to their servants, in their ordinary commands, are easily understood ; speaking to their people, in their laws, are not so ? And, as I remarked (1) Bk. iii, Ch. 10, s. 5. 864 FULL BEJTCH RULINGS. J857 before, dolh it not ofien liappen tliat a man of an ordinary capncity Mahomed "^^U ^^'^ understands a text or a law that he reads, until he consults ^^^ an expositor, or goes to Counsel, who, by the time he hath done explain- AsADUNNissA iog them, makes the words signify either nothing at all or just whatever he pleases" (1). Again he says: — " Tiiere remains yet another more MOTTYLALL T i - 1 Sen Gywal general, though perhaps less, observed abuse of words, atid that is, that Deshkak ™^'^ having, by a long and familiar use, annexed to them certain ideas, '^°'^- they are apt to imagine so near and necessary a connexion between the names and the signification in which tliey use them, that they forwardly suppose one cannot but understand what iheir meaning is ; and, therefore, are apt to acquiesce in the words delivered, as if it were past doubt, that in the use of those common received sounds, the speaker and hearer had necessatily the same precise ideas. Whence presuming tliat when they have in discourse used any term they Jiave thereby, as it were, set before others the very thing they talk of, and so likewise taking the words of otliers as naturally standing for what they themselves have been accustomed to apply tliem to, they never trouble themselves to explain their own, or to understand clearly the meaning of others" (2). So it seems to have been in jRaja l^Iodhnarain's case (3). The Judges, having been in the habit iu resumption suits of treating rent-free grants, made between the 12th August 1765, and the 1st December 1790, before the decennial settlement as illegal alienations of the Government revenne, appear to have assumed, as a matter of course, that the word " revenue" in s. 10, Eegulation XIX of 1793, must necessarily have been used by the Legislature in the sense in which they had been accustomed co apply it, and consequently that all rent-free grants were grants to hold exempt from the payment of revenue. In construing a law, a Judge is bound to give effect io what he believes to be the intention of the Legislature. That intention, however, must be collected from the words which the Legislature have used, and not from importing into the law any of the Judge's own notions of policy, or any ideas of his own as to what may or may not have been the general policy or intention of the Legislature. He ought not, as was staled by the Privy Council in the case to which I have referred, " to suppose that the Government intended to sanction a wanton and unjust disturbance of vested interests." It was stated by the Leffislafure in 1793 that in consequence of the laws which were then enacted, "land must become the most desirable of all property.'' We ouwht not. without the clearest expression of the intention of the Legislature to (1) Bk. iii, Ch. 10, s. 12. (2) Id., s. 22. (3) S. D. A., 1855, 395. FULL BENCH RULINGS. 8G5 put a construction upon any pwt of the law whicli, to use the words of jge? KOY. tlie Judicial Committee in the case cited, "will render the title to iiAnoMKo landed properly necessarily uncertain ;" and thus to render it the least '"'' desirable investment for capital. Asadunnissa In Sheelui v. Lord Muskerry (1) in the House of Lords, Lord Cottenham says : — " Courts of Law and Equity can only discover the Sen Gywal intention from the terms used, and are not at liberty to speculate upon dkshkar the existence of any intention not consistent with the plain and obvious meaning of such terms." To use the words of Lord Brougham, in the case oi Fordyce v. Bridges {2), "we must construe a Statute hy what appears to have been the intention of the Legislature ; but we must ascertain that intention from the words used, and not from any general inferences to be drawn from the nature of the objects dealt with by the Statute." Campbell, J., says: — " Plard cases make bad law,'' but it must not be Bupposed that every decision which causes a hardship is necessarily good law. I wish I could say that no bad law had ever been made, except that which had its origin in an earnest desire to avoid a hardsliip. We should bear in mind the words of Lord Bacon: — " Let Judges beware of liard constructioits and strained inferences, for there is no worse torture than the torture of laws." And again: — "Let no man weakly conceive that just laws and true policy have any antipathy," and that " the principal part of a Judge's office is a wise use and application of laws." I have not alluded to Regulations V and XVIII of 1812, which repealed s. 2 of Regulation XLIV of 1793, and by which zemindars were declared competent to grant leases for any period which they might deem most convenient to themselves and their tenants, and most conducive to the improvement of their estates. Those Regulations, having been passed long after the Code of 1793, could have no luaterial bearing upon the question as to what was the real intention of the Legislature in 1793. The question, however, under consideration, is most important as regards leases granted under the provisions of Regula- tions V and XVIII of 1812, for if leases not exceeding ten years were rendered void by s. 10, Regulation XIX of 1793, if no rent was reserved, leases or other grants made under the subsequent Regulations for periods exceeding ten years or in perpetuity are also void if no rent is reserved. If it were necessary to reserve some rent in those grants or leases which, by virtue of s. 2 of Regulation XLIV of 1793, could be made (1) 1 H. L. Ca., 576, at p. 593. (2) Id., i. 866 FULL BENCH RULINGS. 1867 only for a term not exceeding ten years, it was equally necessary to Mahomed reserve some rent in those leases which, on account of the purposes for ^^^^ which they were made, were allowed by s. 8 of that Regulation to be AsADUNNissA granted for any term or in perpetuity; so with regard to all leases - — ■ which have beea or may be granted under Regulations V and XVIII of Sen Gywal 1812. If the decision of Trevor, J., is correct, every grant in fee- Deshkar simple by a zemindar or patnidar in which a nominal rent at least has not been reserved, is null and void. The purchase-money for the lands in the present case was not large, the sums paid for the several grants varying from Rs. 200 to Rs. 100 and less ; but that does not affect the principle. The small property involved in this decision is probably as important to the defendant as his vast possessions ave to the richest and proudest nobleman in the country. They are probably his biitli-right and inheritance upon which Le and his family are dependent, and of which tlie resumption may reduce them from comparative comfort to want and penury. It is my duty to give this case as calm and deliberate and careful a consideration as if the property were worth lakhs of rupees. The case will form a precedent for the future upon a most important subject, and much injustice may be caused by an erroneous decision. I have never entertained the slightest doubt upon the question, but considering that so many of my honorable colleagues entertained a different opinion, I have gone more fully into the case and expressed the reasons for my judgment at greater length thau I otherwise should have done. Since the second Full Bench case was decided, I find another case in which land granted rent-free for a tank was held liable (o resumption ; see Judoonath Sircar v. Bonomalee Milter (1). In that case a Division Bench of this Court held that a tank granted rent-free subsequently to the permanent settlement was liable to resumption, there being nothing to show that it was the intention of the grantor that the tank should be a public benefit : and the Judges in that case expressed an opinion that it was not desirable that the doctrine upon which the grant in the second Full Bench case was upheld, should be strained or carried too far. It is said by Trevor, J., that "the grantee may have a remedy against the grantor in some form or other." What that remedy is, is not pointed out, and from the use of the word " may," it seems very doubtful whether my late colleague who made the suggestion was very certain in his own mind that any remedy actually existed. It is evident tliat he had no very clear conception of the mode in which the remedy was to be obtained. For my own part I (1) 2 \Y, R., 295. FULL BENCH RULINGS. 867 cannot see what remedy the grantee or hia heirs could have, if the jggy heirs of the grantor beheld entitled to resume the lands, and to evict m^homed them after au undisturbed possession of nearly fifty years. At any ^^^^ rate, I should feel for a man who should be deprived of his estate under Asadunnissa Bkbice. such circumstances, and be driven to seek for a legal remedy in the Courts of Judicature, commencing with the Court of original jurisdiction g^^j^ Gvwal in the Mofussil, and probably, after long litigation and harassment, "• ending with a special appeal to this Court in which various opinions Koy. would probably be entertained. A zemiudar may have sold lands to be held rent-free for a term of years in order to raise money to improve other parts of his estate, and may have expended for that purpose every rupee of the purchase-money which he received ; or he may have let lands rent-free for a term of yeai's, upon condition that the tenant should clear jungle or otherwise improve them ; or he may have sold them for a long term of years for the purpose of erecting houses or manufactories, or other buildings upon them, and he may have expended the purchase-money in improving his estate ; or he may have granted lauds rent-free for a term of years, or for the life of a particular individual, or absolutely, iu order to make provision for a wife, or daughters, or other dependants, or for the purpose of erecting and maintaining a school, or a scholarship, or an hospital, or for some other charitable purpose. The zemindar himself may be too honest and too honorable to invalidate his own grant and to resume the lands ; but if the construction put upon Regulation XIX of 1793 by some of my colleagues in this case is correct, it will be compulsory upon the manager of his estate, if he should become disqualified by insanity or for any other cause, to resume the lands, to treat the occupiers as trepassers, and to turn them out of possession. The zemindar may die leaving his heir a minor, and the Court of Wards may be compelled to resume the lands, or he may die leaving a son less scrupulous and honest than himself, and such heir will be enabled to frustrate the intentions of his father and to resume the lands, although he mny, in some of the cases supposed, have received the whole benefit of the purchase-money expended by his father in improving the other parts of the estate which has descended to heirs. If Trevor, J., is correct in holding that the section extends to grants in fee-simple and to grants of proprietary rights in a portion of an estate, the above remarks will apply to all cases of the transfer of such pro- prietary rights for purposes such as those above-mentioned, and even to all absolute or conditional sales in fee-simple of parts of an estate upon which no rent is reserved. The grantee may, in addition to the 868 FULL BENCH RULINGS. 1867 purchase-money which lie paid, have expended largo sums in iraprove- Mahomed ments ; he may have counted upon tLe property which lie purcliased J,. as a provision for liimself and his family, uud yet, according to the '^'^ BebTk^^'*' construction contended for, he is liable to be treated as a trespasser, to be turned out of possession by the grantor or his heiis, and to be MUTTTLALL ^ J a Sen Gyvval exposed to all the misery, to all the harassment, and to all the torture, Deshkak of finding, perhaps iu his old age, that he is destitute, or upon his death- ■^°^" bed, that he is penniless, and that his wife and family are to be turned out of the dwelling-house which he had erected for their comfoft, and to be cast adrift upon the world without any provision for their maintenance ; and all this on account of some imaginary general policy of our whole revenue legislation, which is not expressed by the Legislature, and of some unknown and undeclared theory of the perma- nent settlement, of which he was not aware, and had no means of acquiring a isuowledge. In this very case the grants now sought to be set aside were made before the decision iu Raja Modhnarain's case (1), and when, according to the earlier decisions of the late Sudder Court, such grants were valid. If it had been expressly declared that a zemindar should not be allowed to grant a lease or a dependent talook without reserving a rent, either nominal or equal to the actual value of the land, I should not attempt to set up my own views of policy against the declared intentions of the Legislature. I have to determine what the law is which the Legislature has enacted, not what it ought to be, or whether it is just or unjust. But I am to judge of the intentions of the Legislature from the language which they have used ; and without the clearest and most unambiguous expressions, I cannot attribute, nay, I may say, I cannot impute to Lord Cornwallis and to the distinguished men who formed his Council, a policy so uarrow-minded, so obstructive of progress, so short- sighted, so mean and paltry, so utterly at variance with uU the solemn declarations of Government, so fraught with injustice, and so conducive to fraud, as that which has been contended for on the part of the plaintiff. I hold that s. 10, Regulation XIX of 1793, does not apply to rent-free grants made by zemindar after a permanent settlement of his estate ; that there is no law which prohibits a zemindar from making rent-free grants of permanently settled lauds, whether such grants are intended to pass the whole proprietary rights in the lands or merely to create dependent talooks or lease-hold interests, and that neither he, nor Lis heir, nor any person claiming through him, can invalidate such grants, or resume the lauds, or compel the occupiers to pay rent for them. (1) S. D. A., 1855, 395. PULL BENCH RULINGS. 8G9 1 am glad that I have been able to arrive at this conclusion, and 1 i8g7 tejoice that having regard to wliat I conscientiously believe to have Mahomed been the real inteution of the Legislature, I am able to pronounce a ^f^^ judgment consistent with justice and t'iehti Asadhnnissa The minutes of the thl'ee Judges which were sent in to the Reffisfrnr , . , , . , MUTTYLALI. having been held not to be judgments, and the remaining Judges of the SisN Gywal f"ull Bench being equally divided in opinion, the opinion of the Chief Deshkau Justice will prevail according to the provisions of s. 36 of the Letters Patent. The cases will be sent back to the Division Bench, who will be informed that a renti-free grant made by a zemindar of a specific portion of land after a permanent settlement of the estate to which it belongs, is valid as against the grantor and his heirs, or a purchaser by private sale of the estate. Kor. Sefore Sir Barnts Peacock, Kt., Chief Justice, Mr. J'astice Seion-Karr^ Mr. Jastict L. S. Jackson, Mr. Justice Macplierson, and Mr. Justice Hobhouse. THE QUEEN «. BOODHOOA.* 1868 Jany, 14> Act X.V of 1862, Si 1 — Powers under — Commutation of Sentence — Penal Code {Act XL V of 1860), s. 59. An ofScer, -who in tlie exercise of the powers described ins. 1, Act XV of 1862 (l),Iias {)assed a sentence of imprisonment for seven years, has power under s. 59 of the Penal Code to commute that sentence into one of transportation for the like period. Jackson, J., dissented. The Deputy Commissioner of Lohnrdugga being invested under s. 1, Act XV" of 1862, with power to try all oiJeuces not punishable with death, and, under the provisions of the Ciiminal Procedure Code, to pass sentence of imprisonment of either description for a term not exceeding seven years, tried the prisoner under the pro-* visions of s. 459 of the Pennl Code, and having sentenced liim to seven years' imprisonment, commuted that sentence, under s. 39 of the Penal Code, to transportation for a like term. The Judicial Commis- sioner was of opinion that the Deputy Commissioner had the power to commute tlie sentence, and acted rightly in so doing. Tiie legaliiy of the proceeding, however, appe.iring somewhat doubtful, the record was called for by the High Court under s. 405 of the Ciiminal Piocedure Code, and the question whether the Deputy Commissioner had power * Criminal Eeterence from the Deputy Commissioner of Lohardugga. 0) Act XV of 1862 was repealed by Act pealed by Act X of 1872. See now s. 36 of VIII of 1869, which in turn has been re- the latter Act. 66 870 FULL BENCH RULINGS. 1868 SO. to commute the sentence was referred for the opinion of a Full Bench QuEBN by L, S. Jackson and Mitter, JJ., with the following remarks by V, DHooA. Jackson, J. — The Judicial Commissioner appears to have advised his subordinate tliat he was competent to pass the sentence of transportation. It seems to me, that an officer exercising the power described in s. ], Act XV of 1862, is not competent to pass such sentence, not having been expressly authorized by the Act to do so. It is said that s. 59 gives the power. I should understand that section to be subject to the terms of s. 22 of the Code of Criminal Procedure, which defines and limits the power of the Courts, and with which the enactment first quoted must be read. If the power is given by the words "competent to the Court which sentences such offender," then it must be given to JMagistrates when sentenc- ing offenders under ss. 451, 457, 404, 393, 380, 325, and others, which all relate to offences punishable with seven years' imprisonment, and over which the Magistrates have concurrent jurisdiction with the Courts of Session ; for there are no words in s. 59 which limit the power to Courts which are competent to pass sentence of seven years' imprisonment or more. Act XV is to be read with the Code of. Criminal Procedure, and I think it must be read la this way, — first, that the officers referred to are inserted in s. 22 between the Court of Session and the Assistant Sessions Judges in Bombay, with the powers stated ; second, that the 7th column of the Scliedule is modified by inserting those officers against all cases, not capital, triable by the Court of Session, the result of which would be that the offender would be liable to a sentence of transportation, but that he would not be so sen- tenced by reason of want of power in the particular Court which tried him to pass such sentence. The following opinions were delivered by the Full Bench : — HoBHOUSE, J. (after stating the facts). — The question is, whether the Deputy Commissioner having, under the words of Act XV of 1862, only power to pass a sentence of imprisonment, was competent, under s. 59 of the Penal Code, to commute that sen- tence of imprisonment into one of transportation. It seems to me that he was competent. It is very true that the Deputy Commis- sioner, being a person who is the chief officer charged with the executive administration of the district la criminal matters, is not a person whose jurisdiction is specially provided for under s. 22 of the FULL BENCH RULINGS. 871 Code of Criminal Procedure. But Act XV of 1862, s. 3, must be ises laken and read as part of the Code of Criminal Procedure. Then, Queen under the Code of Criminal Procedure and that Act read together, the boodhooa. Deputy Commissioner was competent to punisli the offender in question under the provisions of the Penal Code. S. 59 of that Code runs in this ■way : — "In every case in which an offender is punishable with impri- sonment for a terra of seven years or upwards, it shall be competent to the Court which sentences such offender, instead of awarding sentence of imprisonment, to sentence the offender to transportation for a terra not less than seven years, and not exceeding the term for which by this Code such offender is liable to imprisonment." If, therefore, the Code of Criminal Procedure and the other Act read together do not expressly give jurisdiction to the Deputy Collector, I am still of opinion tliat s. 59 does, in so many words, give that jurisdicliou, because it says that the Court which sentences, that is, which under any law is competent to sentence, such offender, shall be competent to award a sentence of transportation instead of a sentence of imprisonment. I would, therefore, send the procedings back to the Judicial Com- missioner, with instructions that the Deputy Commissioner had power to pass the sentence. Macpherson, J. — I nm of the same opinion. S. I of Act XV of 1862 vests the officer who tried this case " with power to try all offences not punishable with death, and under the provisions of the Code of Crimi- nal Procedure to pass sentence of imprisonment for a terra not exceeding seven years." S. 59 of the Penal Code says (reads). It appears to me, reading these two sections together, that the officer who has tried this case, having power to pass a sentence of seven years, had equally power to pass a sentence of transportation for seven years. The words of s. 59 are distinct, and in my opinion say clearly that in every case in which a Court has jurisdiction to try the case and to sentence to seven years' imprisonment, the Court may, in its discretion, give seven years' transportation instead of imprisonment. It is said in the order referring the case to this Bench, that "if the power is given by the words " competent to the Court which sentences such offender," then it must be given to Magistrates when sentencing offenders under ss. 451, 457, 404, 393, 380, 325, and others, which all relate to offences punishable with seven years' imprisonment, and over which the Magistrates have concurrent jurisdiction with the Courts of Session ; for there are no words in s. 59 which limit the power to Courts which are competent to pass sentence of seveny ears' imprisonment or more." 872 FULL BENCH RULINGS. 1868 Butitappeatstome that there is no substantial foundation for this argument, Queen if the natural and reasonable interpretation is put upon the words of s. 59. BoouHooA. Magistrates trying offences under the powers given to them by the Code of Criminal Procedure (apart from the special provisions of Act XV of 1862) have undoubtedly jurisdiction to sentence offenders to imprisonmeut for no longer period than two years. In tlie cfise of a Magistriite exercising only sucli powers, there is nothing iu s. 59 which would warrant an offemler being sentenced to trausporuition. S.' 59 applies exclusively to cases in wliicli the offender miiy legally be sen- tenced by the Court trying him to imprisonment for seven years; therefore, a Magistrate, who can imprison for only two years, has ceriaiuly no power to transport at all. A further argument in favor of the contention that a sentence of transportation cannot be given in this case, has been drawn from the fact that, in s. 22 of the Criminal Procedure Code, a distinction is made between the powers of " the Court of Session" and of the " Assistant Sessions Judges" in Bombay, — the Court of Session being declared competent to pass sentence of " death, transportation, imprisonment of either description for a period not exceeding fourteen years," &c., while the Assistant Sessions Judges in Bombay are limited in their powers to "imprisonment of either description for a term not exceeding seven years," &c. It is argued that, because in the case of a Court of Session, the word "transportation" heads the list of punishments which may be inflicted by the Court, and as the word " transportation " is omitted in the case of Assistant Sessions Judges, therefore sentences of transportation cannot be substituted by the latter class of Judges for sentences of imprisonment. But in my opinion, the deduction thus made from the omission, in the second instance, of the word "transport- ation," is not correct : for, a very sufficient reason for its omission is to be found in the fact, that there are certain offences under the Penal Code for which transportation is either the only punishment which can be inflicted short of death, or for which tiansportation is a substantive punishment in itself, and not merely one convertible with, or to be awarded in lieu of, imprisonment. When the offence committed is murder, for instance, the sentence must be either death or ti-ansportation for life. There are many sections of the Penal Code in which transportation for life is mentioned, either as the only punishment, or as one of the punishments which may be awarded. Ss. 450, 459, and 468 are instances of sections which give the power of imprisoning only for ten years, but at the same time authorize a substantive sentence of transportation for life. Therefore, It seems to me, that there is a very FULL BENCH RULINGS. 873 sufficient reason (quite independently of any intention to prevent the ises Assistant Sessions Judges from sentencing to transportation in lieu of Qukbs imprisonment) wliy s. 22 of the Code of Criminal Procedure should BooDriooA. specifically name transportation as one of the sentences which Courts of Session are competent to pass. I see no reason to suppose it was intend- ed that the power of sentencing to transportation in lieu of impriaouraent for a term not exceeding seven years should not, under the provisions of s. 59 of the Penal Code, be exercised by Assistant Judges in Bombay. In my opinion, in every case in -wliicli the Court passing sentence has jurisdiction to sentence to imprisonment for seven years, the Court has also jurisdiction under s. 59, in its discretion, to pass a sentence of transportation for seven years. Jackson, J. — I am still of the opinion that I expressed in referring this case for the consideration of a Full Bench, and in which my learned colleague Mitter, J., agreed. My opinion is based chiefly upon the position that the Indian Penal Code is one that deals with the awards of punishment and tlie liability of the ofltanders to such punishment, while the Criminal Procedure Code is the one which indicates tiie Courts which are to apply these provisions and so award the several degrees of punishment. I am not aware that any section of the Indian Penal Code expressly defines, or in any way declares wliat the powers of any particular Court shall be. S. 53 details the several punishments to which offenders are liable under the provisions of the Code, and they are specified ; (1) as death ; (2) transportation ; (3) penal servitude; (4) imprisonment, whicli is of two descriptions, rigorous and simple ; (5 and 6), forfeiture and fine. S. 59 declares that " in every case in which an offender is punishable with imprisonment for a term of seven years or upwards, it shall be competent to the Court which sentences such offender, instead of awarding sentence of imprisonment, to sentence the offender to trans- portation for a term not less than seven years," that is, to transportation for not less than seven years, " and not exceeding the term which by this Code such offender is liable to imprisonment." I do not understand by that section that the transportation to be awarded in lieu of imprisonment was to be given precisely year for year, but there were certain limits fixed, namely, that transportation was to be for a term not less than seven years, and not exceeding the term for which the offender could be imprisoned. It is useful in considering the effect of this section, perhaps to refer to the sections of the original Penal Code prepared by the ludiau Law Commiasioners. By s. 43 of that Code, the 874 FULL BENCH RULINGS. 1858 Court bail not the power to commute or to pass Bentenee of transportation ' QuKKN if lieu of imprisonment, but the power was given to the Government of BooDHooA. *''® Presidency. The words are, " in every case in wliich sentence of imprisonment for a term of seven years or upwards has been passed on any offender who is not both of Asiatic birth and of Asiatic blood, it shall be lawful for the Government of the Presidency within which the offender has been sentenced, at any time within two years after the passing of sueli sentence, to commute the remaining imprisonment, without tlie consent of the offender, for transportation for a term not exceeding the unexpired term of imprisonment, to which may be added banishment for life, or for any term, from the territories of the East India Company." Apparently, in the long consideration which the Indian Penal Code underwent before it passed into law, it was considered that it would be more convenient to vest the power of passing sentence of transportation in the Court which tried the prisoner, instead of in the local Government : still I do not understand that change in the provision of the law, as in any respect importing any power as granted to the several Courts, or to any of the Courts, which they did not possess under the law which expressly regulated those powers. I am willing to construe s. 59, either strictly according to its words, or by what appears to me to be a reasonable construction. It seems to me that if that section is to be construed strictly by its own words, as I have stated in my minute referring this case to the Full Bench, there is nothing what- ever to prevent a Magistrate in those cases where be has concurrent jurisdiction over an offence with the Court of Session, and where an offender might be punished with imprisonment to the extent of seven years, from passing, under this section, a sentence of transportation. Nor, of course, is there anything to prevent an Assistant Sessions Judge in Bombay from passing a like sentence. This consequence is avoided in the opinion of my learned colleagues by stating that the Magistrate has no authority to pass sentence of imprisonment to the extent of seven years, but then, as I have already stated, it appears to me that transportation is not to be given in lieu of imprisonment year for year, but the law dislinclly says that, whenever an offender is punished with imprisonment of seven years or upwards, it shall be competent to the Court which sentences such offender, whether that be a Court capable of awarding seven years' imprisonment or not, to sentence that offender to transportation for a term of not less than seven years. S. 59 is a portion of the Indian Penal Code which is otherwise called Act XLV of 1860. The Criminal Procedure Code was passed in the year 1861: it may therefore be looked upon as an expression of the FULL BENCH RULINGS. 875 later opinion of the Legislature, and, if the provisions of these two laws iggg in any respect conflict, I presume that the provisions of the later law qi^^^ must prevail. Now Act XV of 1862, by s. 3, is to be taken and BoQ^JiooA. read as part of the Code of Criminal Procedure. I understand the mean- ing of that to be that the several parts of the Act XV of 1862 are to be taken and inserted in their appropriate place in the Code of Criminal Procedure, that,is to say, that the definition of the status and powers of the officer described in s. 1 of that Act is to be put; in its appro- priate place in the 22nd section of the Procedure Code. He would then probably take place after the Court of Assistant Sessions Judge in Bombay. Reading, then, the Courts referred to in that section in the order in which they come, we find first the Court of Session, next the Assistant Sessions Judges of thePresidency of Bombay; thirdly, theChief Officer charged with executive administration of a district in criminal matters in wliat may be called extra-Eegulation provinces. S. 22 says, "the offences mentioned in the Schedule annexed to this Act shall, subject to the provision contained in the third explanatory note prefixed to the said Schedule, be triable by the Courts specified in column 7 of the said Schedule, and such Courts shall be competent to pass sentence in respect of such offences within the following limits ;" that I understand to be a declaration of the powers of the several Courts, implying that the Courts specified in that section are to be restricted within the limits therein prescribed. A difficulty arises in respect of certain cases, which are not offences under the Indian Penal Code, but which are constituted and rendered punishable by later Acts, or by specia) or local laws. That difficulty does not occur in the present instance, as we are dealing with a case which is comprised in tlie Schedule annexed to the Code of Criminal Procedure, and is therefore governed by that section. And then I under- stand that in column 7 of the said Schedule, the Court of the officer described in Act XV is to be inserted in every place wliere a Court of Session is now to be found, except in cases where the offence is punishable with death. The effect of that would be, I think, that in all cases the particular offences would be punishable by that Court, and that the limits of the powers of that Court to pass sentence would be imprisonment of either description for a term not exceeding seven years, including such solitary confinement as is authorized by law, or fine, or both. I find myself unable to understand the argument which pro- poses to do away with the effect of the word " transportation" as used in the 22nd section in speaking of the powers of the Court of Session. Transportation, it appears to me it cannot be too often stated, is a 876 FULL BENCH RULlMGS. 1868 separnte deecription of punishment within the competency of one Couft, Queen and one Court alone, to award, namely, the Court of Session, and that BooDHooA. Court is, it seems to me, alone authorized by law to award tliat particulai* punishment | and, therefore, although, under s. 59 of the Indian Penal Code, particular oiFenders are made liable to transportation, that must be governed by the section of the Criminal Procedure Code which limits the power of the Courts. It appears to me, then, tliat taking the Penal Code together witli the Code of Criminal Procedure, it must be pre- supposed that the Court which sentences is one which is by law enabled to pass the sentence of transportation. I therefore think the Court of the Deputy Commissioner was not competent to sentence the prisoner to transportation, and that the sentence is not legal. Seton-Karr, J. — I concur with my colleagues Hobhouse and Mac|iherson, JJ. The position and duties of officers in Non-Regulation Provinces, vested with powers under Act XV of 1862, may, no doubt, occasionally appear somewliat anomalous, and it may be necessary to lookc losely, as iu this instance, into tlie extent of tlie powers witli whlcli they are vested by law. But when I see that by Act XV of 1862 the Deputy Commis- sioner is empowered to pass a sentence of imprisonment for a term not exceeding seven years, and when I consider that the punishments which he must award must be substantially the punishments of the Penal Code which he administers, I can come to no other conclusion than that, under s. 59 of tliat same Penal Code, he is empowered to pass sentences of transportation wliere he is empowered, as he undoubtedly is, to pass. a sentence of imprisonment. In this view I have only to say that I think the sentence of trans- portation passed by the Deputy Commissioner of Lohardugga is legal. Peacock, C.J. — I concur with the majority of my colleagues in thinking that the Deputy Commissioner in tliis case had power to pass sentence of seven years' transportation. His powex's were derived, not under tlie provisions of s. 22 of the Code of Criminal Procedure, but under s. 1 of Act XV of 1862. The substance of tiiat section is, that, whenever under tlie provisions of s. 445 of the Code of Criminal Procedure the Code has been, or shall be, extended to any part of the territories not subject to the general Regulations, it shall be lawful for the Governor-General in Council, or for the Local Govern- ment of such territory, to vest the Chief Officer charged with the exe- cutive administration of a district in criminal matters, by whatever FULL BENCH RULINGS. 877 designation such officer is called, with power to try all offences not iggg punishable with death, ami under the provisions of tlie said Code to pass Quken sentence of iraprisonment of eitiier description for a term not exceed- boodhooa, ing seven years, including such solitary confinement as is authorized by law, or fine, or both ; and by s. 3, " this Act shall be taken and read as part of the Code of Criminal Procedure." I assume that, under the provisions of this Act, the Deputy Commissioner of Loliardugga was vested with the power to pass sentence of imprisonment of either description for a term not exceeding seven years. Having that power, it appears to me that s. 59 of the Penal Code gave him the power instead of passing sentence of imprisonment for seven years to pass sentence of transportation for a term not less than seven years, and not exceeding the term for whicli the prisoner was liable to imprisonment. The Penal Code in that section, not only enacted what was the amount of punishment for particular offences, but it vested the Court whicli should sentence the offender with power to award transportation of not less than seven years, instead of awarding sentence of imprison- ment. It went out of tlie ordinary course adopted in otlier parts of the Code, and, instead of merely defining the punishment, gave a certain power to the Court which should pass the sentence to award a different kind of punishment from that specified in the Code. My colleague, Louis Jackson, J., has referred to the Penal Code as it was originally prepared by tlie Law Commissioners for the purpose of showing tliat, under that Code as it was prepared, the Court had not the power to commute or to pass sentence of transportation in lieu of imprisonment, but that the power was given only to tlie Government of the Presidency. He points that out to show tliat, under the Penal Code as originally prepared, the power of passing sentence of transportation instead of imprisonment was vested in the Government, and not in the Courts. Tliere was a very good reason for that, and for the alteration which took place in the Penal Code wlieu it was finally settled. At the time when the Penal Code was prepared by the Indian Law Commissioners, it was a rule of the Court of Directors of the East India Company that no native should bo sentenced to transportation for a period less than for life ; it being the opinion of that time that a native of India, if once transported, should never be allowed to return to this country. Tlie Indian Penal Code, as prepared by the Law Commissioners, did not provide transportation as punishment for any period short of life, and it did not give power to the Government to commute a sentence of imprisonment for seven years for transportation, except in cases wlteie the prisoner was not of 67 878 FULL BENCH RULINGS. 1868 Queen V. BOODHOOA. Asiatic blood and of Asiatic birth. But when the Pennl Code came to be altered, a diflPerent rule was thought necessary. It was thought reasonable that natives of India, as well as Europeans and others, should be sentenced to transportation for periods less than for life, and that ihe reason for not allowing a native who had once been transported to return to India no longer held good j and, therefore, as the Penal Code, as prepared by the Indian Law Commissioners, did not provide trans- portation as a punishment for any less period than for life, it was thought advisable, when the Code was altered, to enact by a general clause that, in all cases in which an offender should be punishable with imprisonment for seven years or upwards, the Court should have power to sentence liim to transportation instead of imprisonment, provided the term should not be less than seven years, and should not exceed the term for which the offender should be liable to imprisonment. That is the reason why s. 59 was introduced. It necessarily gave power to a Court which could sentence a prisoner to seven years' imprisonment to sentence him to seven years' transportation in lieu of it ; but it never intended to give power to a Court which could not sentence to imprisonment for more than two years to transport for seven. It appears to me to follow that, as the Deputy Commissioner is a Court which has the power of sentencing to imprisonment for seven years, he has power to sentence to transportation for a period not less than seven years. It is said that if this construction be put upon s. 59, then in very case in which a Magistrate tries an offence punishable with seven years' imprisonment, although that Magistrate could not sentence to the full extent of imprisonment, he would have the power instead of sentencing liim to two years' imprisonment to sentence him to transportation for not less than seven years. It appears to me that that would be a most unreasonable and forced construction of s. 59, and thiit such a construc- tion ought not to be put upon it. If a man is convicted before a Magistrate of an offence which is made punishable by the Penal Code with seven years' imprisonment, the offender is not punishable with imprisonment for seven years ; because, upon that conviction, tliere is no one competent to punish him with seven years' imprisonment, a Magis- trate not having power to imprison for more than two years. The words of s. 59 are " every case in which an offender is punishable," &c., not every person convicted of an' offence which by this Code is punish- able, &c. The meaning of the section clearly is that where the prisoner is punishable with an imprisonment for a term of seven years, it shall be competent to the Court, which has power to sentence bim to FULL BENCH RULINGS. 879 that punishmeat, to sentence him to transportation instead of imprison- iggs ment. In this view of the case, a Magistrate would not have power to Quben transport. It never could have been inteoded to give power to a Court eoodhooa. which has not power to sentence to imprisonment for more than two years to transport for seven years. It would not lie within either the words or the spirit of the section. Under these circumstances, it appears to me that the Deputy Com- missioner had the power to pass senteace of transportation fur sevea years ; tliat the Judicial Commissioner came to a right conclusion in telling him that he had that power ; and that he was right in passing that sentence. Consequently the sentence must be affirmed. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Hobhouse. SURWAR HOSSEIN KHAN and others (Dependants) v. SHAHZADA is68 GHOLAM MAHOMED and ahothek (Plaintiffs).* -^""y- ^^- Limitation — Uwegistered Bond charging Land with Repayment of Debt — Suit for Sale of Land — Interest in immoveable Property — Act XIV of 1859, o. 1, els. 10, 12, and 16. Where there is an unregistered bond to secure the payment of a sum of money with interest, by which bond also lands are charged by way of simple mortgage with the payment of the debt, a suit to have it declared that the lands are charged with the pay- ment of the debt, and lor an order for the sale of the lands in satisfaction of the debt, is a suit for the recovery of " an interest in immoveable property" within the meaning of Act XIV of 1859, s. 1, cl. 12 ; and the period of limitation is twelve years from the time when the debt became due (1). On the 9th December 1855, Khaja Ali Hossein executed a kistbun- dee bond in favor of his daughter, one of the respondents, Hazera Begum, to secure the payment to her of Rs. 10,250. The bond, which was unregistered, said : — " I have no means of disciiarging the said debt by one payment. Therefore, having paid Rs. 250 in cash, I execute a deed of instalment for the payment of the bahince of Rs. 10,000, with the following stipulation: — That I siiall pay from 1856 to 1861 at tlie rate of Rs. 1,500 annually, and iu the year 1862 I shall pay Rs. 1,000, and, after having repaid the said amount in full, I shall take back the deed of instalment," and by way of further security, and "in order to ensure the payment of the said amount," the landed property, the subject of the present suit, was charged with the payment of the debt (by way of simple mortgage). It was further stated in the bond " in default * Regular Appeal, No. 35 of 1867, from a decree of the Principal Sudder Ameen of East Burdwan, dated the 26th September 1866. (1) See Act IX of 1871, Sch. ii. No. 132 ; and In re Leslie, 9 B. L. K., 171, at p. 177. MAHOMIiD. 880 PULL BENCH RULINGS. 1868 of paypient of the said amount, agreeably to the terras of this deed of SuiiwAiR instalmeut, I shall pay ioterest at the rate of Us, 10 per thousand HossuiN pgp rnensem." Khan V- On the 2Qd September 1862, Hazera Begum instituted a suit for the Shaiizada Gholam recovery of the instalments whicii fell due in tlie years 1859, 1860, and 1861, and she obtained a decree, on the 8th April 1863, against (he representatives of Khaja Ali Hossein, who had died before the suit was commenced. On appeal, this decree was uplield by the High Court on the 4th of March 1864. On the 28th July 1863, Hazera Begum got a decree in another suit for the instalments which fell due in 1862. This decree was, on appeal, affirmed by the Zilla Judge on the 19tli August 18^4. Both these decrees were simply decrees for the payment of a certain sum of money out of the estate of Khaja Ali Hossein, deceased. Neither of tliem alluded to the fact that, by the bond, the lands then in dispute were pledged to secure the money due ; neither decree contained any declaration that the lands were subject to a charge for tlie payment of the instalment, or that they were to be sold in satisfaction of the decree. In November 1864, Hazera Begum, apparently after an iueffectual attempt to recover what was due to her under these decrees, assigned her rights aud interests under them botU to Shahanee Begum, since deceased, who was represented by the plaintiffs in the present suit. In execution of the two decrees, the plaiutiifs attached the mortgaged property, and were proceeding to have it put up for sale, when the appellant, Nunnee Bebee, on behalf of her minor childien, being the persons chiefly iutetested in the estate of Khaja Ali Hossein, claimed the property, alleging that the attachment was bad, as the decrees did not declare that the property which had been attached was charged with the debt, and as by a taidiatnama, dated the 27th December 1859, Ehaja Ali Hossein had settled the property as wuqf, appointing his grandson, the minor appellant, Syud Ali Hossein, the mutivalli of this endowment. The claim was considered to be good, and the property was released on the 5th September 1865. On the 21st December 1865, the present suit was instituted. Its object was to obtain a declaration that the property mortgaged by the kistbundee bond was charged with the amount which was due under the two decrees ; and that, being so charged, the plaintiffs were entitled to have it sold in execution of the decrees, notwithstanding the tauliatnama, or any other title which might be pleaded of date subse- quent to the kistbundee. The lower Court held that there was no doubt as to the execution of the tauliatnama, or as to the property haviug become loiiqf by reason FULL BENCH RULINGS. 881 of it. But the Court held that the mortgage took precedence of the iggg subsequent settlement, and ordered that the property should be sold in Surwae satisfaction of the decrees. ^Kh!™ The defendants appealed. They did not deny that the tauliatnama „ "• '^ _ "^ ■' Shahzada must be taken to be subject to the mortgage, so far as the mortage could Gholam then be enforced; but they contended, first, that as Hazera Begum assigned merely her right and interest in the two decrees, the plaintiiFs could not proceed under the mortgage, which was mentioned neither iu the decrees nor in tlie assignment under whicli the plaintiffs claimed ; and, secondly, that the suit was barred by limitation as regards the amount due under the first decree. By way of cross-appeal, Mr. Allan, for the plaintiffs, argued that the tauliatnama was void absolutely as against the plaintiffs, wliether the mortgage was barred by limitation or not ; that, even supposing the plaintiffs were entiiled to nothing more than wliat any person, holding an ordinary decree against the estate of the deceased, Khnja Ali Hossein, would be entitled to, the tauliatnama could act prevent the property being sold to satisfy the decrees, inasmuch as, according to Mahomedan law, all the property of the deceased is, in the hands of his heirs, charged with the payment of his debts. The appeal was heard by Seton-Karr and Macpherson, JJ., who referred the following question for the opinion of a Full Bench: — "Whether, as regards the instalments of 1859, 1S60, and 1861, included in the first decree (of 8th April, 1863, confirmed on appeal, 4tli March, 1864), the present suit is barred by limitation. And, in order to decide this point, the Court must decide whether, when tliere is an unregistered bond to secure the payment of a sum of money with interest, by wiiich bond also lands are charged (by way of simple mortgage) with tlie payment of tlie debt, a suit to have it declared tiiat the lands are charged with the fiayment of the debt, and for an order for the sale of the laai's (as subject to the charge) in satis- faction of the debt, falls, as regards the question of limitation, witliiu the provisions of cl. 10 of s. 1 of Act XIV of 1859, or within those of cl. 12 of that section. In other words, must the suit be brought within three years from the origin of the cause of action, or is it iu time if brought within twelve years." Macphekson, J., (in referring the question after stating the facts and arguments as above, observed). — It is enough for me to say that this point never was raised in the Court below, and that, in the absence of any evidence as to Kliaja Ali Hosseiu's position, as regards his being in 882 FULL BENCH RULINGS. 1868 SURWAE HoSSEIN Khan V. Shabzada Gholam Mahomed. embarrassed circumstances or otherwise when he made this tauliatnama, I know of nothing in the Maliomedan law wiiich would justify me in holding that the tauliatnama is not good against an ordinary creditor holding a common money decree. As regards the first point raised by the pleader for the appellants, I think that the plaintiffs have a right to enforce all the securities to which , Hazera Begum herself could have had recourse in order to recover her money. Moreover, Hazera Begum is a party to the present suit, and has filed a written statement declaring no title in herself, and stating that she has transferred all her interests in the subject of the suit to Shahanee Begum, through whom the plaintiffs claim. The second objection is less easily disposed of. All the instal- ments which were included in the first decree fell due more than three years prior to the institution of the present suit. In other words, the cause of action in the present suit, so far as it relates to the instalments for 1859, 1860, and 1861, arose more than three years before the com- mencement of the suit. The kistbundee not having been registered, the appellants contend that the case falls witliin cl. 10, s. 1 of Act XIV of 1859, and that the period of limiiation is three years. There are two decisions of this Court, which are directly in favor of this conteniion ; see Parushnath Misser v. Shaikh Bundah Ali (1) and Seetul Singh v. Sooruj Buksh Singh (2). But these decisions conflict with those of the Madras High Court. By that Court, it has been ruled in tlie case of Chetti Gaundan v. Sundaram Pillai (3) by Phillips and Holloway, JJ., and in the case of Krislna Row V. Hachapa Sugapa (4), by Scotland, C.J., and Frere, J., that a suit such as this is in the nature of a suit for the recovery of an interest in immoveable property, within the meaning of cl. 12 of s. 1 of Act XIV of 1859, and that the period of limitation is twelve years. The point is one of some difB.culty ; and as it is one which frequently arises, and on which this Court is in direct conflict with the Madras High Court, I think that it ought to be referred to a Full Bench that it may be finally set at rest. Mr. C, Gregory and Biiboo Unnoda Persad Banerjee for the appellants. Mr. R. T. Allan and Baboo Mohendro Lull Shome for the respondents. (1) 6 W. E., 132. (2) Id., 318. (3) 2 Madras H. C, 51. (4) M, 307. FULL BENCH KULINQS. 883 Tlie following judgments were delivered by the Full Bench : — Peacock, C.J. (Macpheeson and Hobhouse, JJ., concurring). — The plaintiff is the assignee of Hazera Begum, who is the obligee of the bond given to secure to her the payment of Rs. 10,250. The bond was executed by Khaja AH Hossein, and it stipulated for the payment of the balance specified in the bond by instnlments. It is found in the case which is submitted for our opinion that, by wny of further security, and in order to ensure payment of the amount, the landed property, the subject of the present suit, was charged with the payment of the debt by way of simple mortgage. Several suits were brought to recover the instalments ; but in proceeding to enforce the decrees against the land in question, a wuqf was set up as having been executed by E!haja Ali Hossein, by which the property was vested in a mutwalli free from the charge which had been created by the bond. In consequence, on the 2l8t December 1865, a new suit was brought for the purpose of declaring that the instal- ments which fell due upon the bond in 1859, 1860, and 1861, were included in the decree of 8th April 1863, which was affirmed on appeal, and that they were a charge upon the land in question as against the mutwalli. The question is whether that suit is barred by limitation or not. The suit was brought, so far as it relates to the instalment of 1859, after the expiration of six years, as the instalment was payable on the 9th December 1859, and the suit was not brought until the 21st Decem- ber 1865, — more than six years after the instalment became due. But it was brought within six years from the date on which the instalments for 1860 and 1861 became due ; and we are now asked to decide whether the suit to have the lands charged with the payment of the debt, and for an order for the sale of the lands in satisfaction of the debt, falls, as regards limitation, within the provisions of cl. 10 or of cl. 12 of s. 1 of Act XIV of 1859; in other words, whether the suit ought to be brought within three years from the accruing of the cause of action, or within twelve years. It appears to me to be clear beyond doubt that this case canoot fall within cl. 10 of s. 1. The suit was brought against the mutwalli. The mutwalli never entered into any contract with the plaintiff, and was not liable for a breach of contract. The suit was brought against him to enforce payment of the instalmerits which had been charged npon the land conveyed to him as wmq/. Cl. 10 says : — "To suits brought to recover money lent or interest, or for the breach of any 1868 Shkwar Hossein Khan ». Shahzada Gholam Mahomed. 884 FULL BENCH RULINGS. 1868 SUKWAR HOSSEIN Khan V. Shahzada Gholam Mahomed. contract in ofises in which there is a written engairement." It appears to rae clear that this is not a suit brought against tlie mutwalli for breacli of contract, but that it is a suit to enforce a charge upoa land. It, does not full within cl. 10. Tlie question then arises whetlier the suit falls within cl. 12 ; because if it does not, it is a suit not otherwise provided for, and falls wlt.hin cl. 16. It appears to me that this is a suit to enforce a charge upon immoveable property, and is a suit for the recovery of an interest in immoveable property within the meaning of cl. 12. I have no doubt that it falls within cl. 12, and not within cl. 16. The only cnse wliich tlirows any doubt upon it, in my opinion, is the case, which has been referred to, of Seetul Singh v. Sooruj Buhsh Singh (I). But I cannot concur in the view wliich was expressed in that decision. Trevor, J., who delivered judgment, says: — "The woi'ds of the law refer, it appears to us, to an interest residing of right in the party suing, for which lie may sue." It appears to me that a charge upon the land is an interest in Ihe party in whose favor that charge is made. It is also an interest for which lie may sue. Then, is it an interest in land, or is it an interest in something else? Trevor, J., says: — "In a suit like that before us, lie has simply a lien on the property for the amount of his debt, but lie has no interest of right in the property ; and in this view, the section of the law cited does notapply. But, again, the security is n mere incident to the bond. The debt acknowledged in the deed signed by the debtor, and to be payable at a certain time, is the principal, and the collateral security an incident, in the transaction. It follows on legal principle that the latter must follow the former, and not the reverse ; in other words, the incident must be sued for within the same time with the principal, or the collateral security be declared enforceable against property pledged within the same time that the debt can be declared due by a Court of Justice." I do not know where the legal principles to which Trevor, J., refers are to be found. There is no such principle in the English law. If land is mortgaged as security for a loan in addition to a covenant for payment of the money, the mortgagee may sue the mortgagor for a breach of the covenant ; and he may also bring an action of ejectment to recover the land mortgaged as a colla- teral security. It appears to me that the charge upon the land created an equitable interest in the land, and that a suit brought to enforce that charge is in substance and iu effect a suit for the recovery of that (1) 6 W. K., 318. FULL BENCH RULINGS. 885 interest. There are decisions of the High Court at Madras in accordance iggg ■with the view which I have now expressed, and I concur entirely in Surwar those cases. _ _ Hoss.^ The appeal will be dismissed with costs. „ "■ '^^ ShahzadA Gholam Seton-Kake, J. — In this case We have to decide whether the Mahomed. principle laid down by Trevor, J., in the judgment of the Court in Seetul Singh v. Sooruj Buksh Singh (1), or that laid down by the Chief Justice of the Madras High Court in Kristna Row v. Hachapa Sugapa (2), is the correct principle. I concurred at the time in tlie judgment delivered by Trevor, J., and thought that the enforcement of a lien on the property by the sale of it in satisfaction of a debt for which it was pledged could not strictly be termed "an interest in immoveable property, to whicli no other provision of tlie Act applies.'' Trevor, J., laid it down that the suit was not one for an interest as of right in the property, hut one to enforce a mere lien on a property pledged, and to have a sale thereof carried out. I am further of opinion that nothing that I have heard to-day, in the course of argument or otherwise, satisfactorily explains the inconsistency so forcibly pointed out by Trevor, J., in that decision, if a suit for a debt due had to be instituted within one certain and defined period, and a suit for enforcing the security of that debt, arising out of the same circumstances, had to be instituted within another period. The anomaly and inconsistency still remains as pointed out. On considering the sections of the law of limitation which are properly applicable to the case before us, I am clearly of opinion, as shown by the learned Cliief Justice, that cl. 10, s. 1, is not applicable to the present case. It cannot, by any possibility, be termed a suit for the "breach of contract, " as there was no. contract between the plaintiff and the mutwalli into whose hands the property hypothecated had subsequently passed. There remains, then, the only doubt in my mind as to whether it would be correct to say that the case fell under cl. 16, s. 1, and not under el. 12 of the same section of the same Act. It seems clear that, if the present suit had been one not for the sale of the property aa merely hypothecated, but for entering on the same property as held under a conditional mortgage, the words of cl. 12 would have been strictly applicable : and looking to the difficulty of drawing a very clear distinction between a suit for entering on a conditional mortgage, and a suit to enforce the mere sale of the property hypothecated, (1) 6 W. K., 318. (2) 2 Mad, H. C. 307. 68 FULL BENCH RULINGS, 1868 SURWAR HOSSKIN Khan V. Shahzada Gholam IIahombd, looking also to the opinion which I understand to be that of the mnjority of the Bench now sitting, I am riot prepared to dissent from the principle laid down by the learned Chief Justice on the present occasion, which principle has been also expounded and adopted by the learned Cliief Justice of the High Qourt of Madras, and has been enforced by another Bench of that same Court. I think that if it can be fairly said that the suit is one to enforce any kind of interest in immoveable property to which no other provision of the Act applies, if that can be fairly stated in interpreting the Act, we need not, and ought not, to have recourse to s. 16, as for a case for which no other limitation is expressly provided, and that we may say that the case is one to whicli the period of twelve years, from the time of the cause of action, applies under cl. 12, s. 1. For all these reasons, I am therefore prepared to record my opinion in accordance with that which I understand to be that of all my learned colleagues now sitting on this Bench. Jackson, J. — I concur in the judgment of the Chief Justice. I am not clear that, if the lender of the money in this case had sued to recover the principal money and interest, and at the same time to enforce his lien upon property pledged after the expiration of three years or six years, and before the end of twelve years, he would have been barred. 185S Jany. '29. Before Sir Barnes Peacock, Xt, Chief Justice, Mr. Justice Seton-Xarr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Hobhouse. ANONYMOUS CASE.* Mofussil Small CaMse Court — Ti-amsfer of Execution Proceedings- 1865, ss. 19 4- 20— Act VIII of 1859, *•. 286. -Act XI of S. 19, Act XI of 1865, provides merely for cases in which the party in whose favor a decree is given applies for immediate execution, either against the person or against the moveable property of the debtor. The provisions of s. 286, Act Till of 1859, apply to Small Canse Courts in the Mofussil; accordingly a Small Cause Court may send its decree to another Court for execution if there be not sufficient property within its own jurisdiction to satisfy the decree. It may send the decree to any other Court in the same district which the applicant may indicate; but if execution be sought in another district, the decree must be sent to the principal Court of original jurisdiction in that district. A judgment-creditor, who had obtained a decree in the Jessore Small Cause Court, being unable to execute it, as the debtor had * Reference from the Officiating Judge of the principal Court of Small Causes- at KrishDaghur. FULL BENCH RULINGS. 887 DO moveable property -wiibin the jurisdiction of tlie Jessore Court, iggg applied to that Court for, and obtained, a certificate under s. 20 anonymous of Act XI of 1865. This certificate be filed in the Krishnagbur '^■^^''• Court of Small Causes, and prayed for execution of bis decree. The clerk of the Kriabnaghur Court, as a matter of course, issued execu- tion, and caused the moveable property of the judgment-debtor situated ■within the jurisdiction of the Court to be attached. On the matter being brought to his notice, the Judge of the Krishnagbur Court caused the attachment to be withdrawn, on tlie ground that, by the express provisions of s. 20 of Act XI of 1865, which applied to immoveable property alone, his Court could take no action whatever under the certificate with respect to moveable property. The judgment-creditor then pressed on the Court the great hardship to which he was subjected in not being able to proceed against the moveable property of the judgment-debtor, as the latter bad no immoveable property in the Krishnagbur District. The Judge of the Krishnagbur Court referred the question for the opinion of the High Court, and in stating his reasons for the construction put by him on s. 20 of Act XI of 1865, cited two letters of the High Court, issued in answers to questions referred for its opinion, and in wliich it was slated that moveable property, outside tlie jurisdiction of the Small Cause Court which passed the decree, is not liable to be taken in execution (1). (I) The first of these letters, dated the perty of the judgment-debtor is situated, 28th April 1865, was as follows : — such Court shall proceed to enforce such " I am directed to acknowledge the receipt judgment according to its own rules and of your letter, No. 126, of the I2th instant, mode of procedure in like cases. It is clear and in reply to state that the question therein that the words ' general jurisdiction ' refer to submitted is very indefinitely put. Tlie the ordinary Civil Courts; and to them, Court do not think ». 286 . of Act Till therefore, the applications should be made. of 1859 is applicable to it. They observe Moveable property beyond the local limits that the law of the Small Cause Courts now of a Small Cause Court seems not to be liable is Act SI of 1865, passed on 15th March to be taken in execution." last. By. s. 19 of that Act, process may The second letter, dated 7th July 1865, first issue out either against the person was in answer to » question requesting or personal property, either general or speci- " instructions on a reference from the fied, within the local limits of the Court's Munsif of Khoolneah as to whether the jurisdiction ; and if, after the sale of the signature of a clerk of a Small Cause Court moveable property of a judgment-debtor, a to a decree certificate is sufficient to enable portion of the judgment remains unsatisfied, a Civil Court to execute the decree." and the holder of the judgment desires to After answering this question in the nega- issue execution on any immoveable pro- tlve, the Registrar of the High Court pro- perty, then the Court, on application of ceeded : — the decree-holder, can, under s. 20, grant " I am to add, for your information and him a copy of the judgment and a certi- that of the Munsif, that it has been ruled ficate of the sum remaining due ; and on that moveable property beyond the local presentation of the same to any Court of limits of a Small Cause Court is not liable Civil judicature having general jurisdiction to be taken in execution," in the place in which the immoveable pro- 888 FULL BENCH RULINGS. iseg Peacock, C.J., and Hobhouse, J., before whom this reference came Anonymous for consideration, after remarking that the answers on this point in the ^^^^' two letters cited were mere obiter dicta, and stating that " it would appear that s. 286 of Act VIII of 1859 is applicable to Courts of Small Cftuses, at least as to moveable property," yet, having regard to those two letters, submitted the following points for the opinion of a Full Bench : — " Whether moveable property in one district can, under s. 286, Jbe seized . in execution of a judgment of a Small Cause Court, situated in another district; and wliether the judgment of a Small Cause Court can be executed against moveable property by another Court within the same district, and if so whether it can be executed by another Small Cause Court, or only by some other Court having general jurisdiction ? " The opinion of the Full Bench was delivered by Peacock, C.J. — It appears to us that s. 19 of Act XI of 1865 provides merely for cases in which the party in whose favor the decree is given wishes to have immediate execution, and makes an application to the Court for it, either against the person or against the moveable property of the debtor. The Judge of a Small Cause Court, as regards immoveable property, has not the same power as the ordinary Courts. He is not authorized to seize or sell, or to deal with immove- able property in execution as the other Courts are. But if there is immoveable property within the district, and the moveable property within his district is not sufficient to satisfy the decree, then he may send a copy of the judgment, with a certificate of the amount which remains due under it, to any Court of Civil Judicature having general jurisdiction in the place in which the immoveable property of the judgment-debtor is situate, in order that it may be executed by that Court. By s. 47 of Act XI of 1865, the provisions of the Code of Civil Procedure are, so far as they are applicable, extended to all suits and proceedings in the Small Cause Courts in the Mofussil ; therefore, notwithstanding ss. 19 and 20, the provisions of s. 286 of Act VIII of 1859 apply to these Courts, and by virtue of that section, if there is no sufficient property within the jurisdiction of the Small Cause Court to satisfy the decree, the judgment may be sent by the Small Cause Court to any other Court indicated by the applicant for execution, if such Court be within the same district. If the Court to which the execution is sent is not within the same district, that is, not within the same zilla, then the Court of Small Causes is to send its judgment to the principal Civil Court of original jurisdiction in the district in which the applicant may wish to have his decree executed. FULL BENCH RULINGS. 889 In this case the decree was sent for execution from the Small Cause iggg Court of Jessore to the Small Cause Court of Krishnaghur. The Judge anonymous of the latter Court was very right in not executing the decree, inas- ^i^'^' much as the two Courts of Small Causes were not within the same district. Tiie decree ought to have been sent to the -principal Court of original jurisdiction of the district in which the property intended to be seized in execution was to be found, and that was the Court of the Civil Judge of ZiUa Nuddea. We think that tiie Judge of a Small Cause Court may send a decree to another Court for execution, if no property is to be found within the jurisdiction of his own Court sufficient to satisfy it. If the Court to which it is sent be not a Court in the same district, the decree must be sent to the principal Court of original jurisdiction in the district in which it is intended to be executed. An" expression of tliis opinion may be sent to the Judge of the Small Cause Court, but this decision will not be binding upon any individual party, as the case has been referred without giving the Court the names of the parties. The Judges for the future sliould be careful in sending up references to this Court in Small Cause Court cases to give the names of the parties, so that, by giving notice, they may Lave an opportunity of appearing and arguing the case before this Court. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Uobhouse. JANOKI SINGH ROY (Plaintiff) v. KALOO MUNDUL (Dependani).* 1868 Jany. 30. Execution of Decree — Arrest of Debtor — Discharge— Further Execution against ■ _ Debtor's Property— Act VlJl of 1859, s. 282. After a debtor has been arrested in execution of a decree and discharged at the request of the creditor, his personal property may be taken in execution under the same decree ^1). In this case the plaintiff, having obtained a decree for a sum exceed- ing Rs. 50 in the Small Cause Court at Meherpore, applied to the Judge to enforce the decree by imprisonment of the defendant ; and the defendant was accordingly arrested and imprisoned for a period of four months and twenty-five days, when he was, at the request of the plaintiff, set at liberty. The plaintiff then applied to the Judge for an attachment of the defendant's moveable property in execution of tha same decree. * Keference from the Judge of the Court of Small Causes at Meherpore. (i; See Seton v. Bijohn, 8 B. L. B., 255. 890 FULL BENCH RULINGS. 1868 The Judge of tbe Small Cause Court, on the authority of In re Janoki Singh Dwarkaloll Milter (1), refused the application, being of opinion °7 that a release at the request of the creditor amounted to a renuncia- Kaloo tioQ of the cause of action, whereas a discharge was merely a liberation from- custody ; but, on the application of the pluintiflfs pleader, he referred the case under Act X of 1867 for the opinion of the High Court as to whether, under the above circumstances, the attach- ment ought to issue. This reference was heard by L. S. Jackson and Markby, JJ., by whom, as they differed from the case relied upon, the following question was referred for the opinion of a Full Bench : — " Whether, after a debtor has been arrested by his creditor and set at liberty at the request of the creditor, an attachment in respect of the same debt can be issued, at the suit of the same creditor, against the debtor's personal property ?" The following judgments were delivered by the Full Bench: — Peacock, C.J. (Macpherson and Hobhouse, JJ., concurring) (after reading tbe question referred, continued) — The question seems to have been raised by the Judge of the Small Cause Court, and to have been referred to this Court for an opinion, in consequence of a decision in the case of Dwarkaloll Milter (1). I certainly was surprised to find that the question had been raised, for, so far as I was concerned, I never entertained a doubt upon the subject. The rule is very clearly laid down in s. 282 of the Code of Civil Procedure. It says that " a defendant once discharged shall not again be imprisoned on account of the same decree, except under the operation of the last preceding.section, but his property shall continue liable, under the ordinary rules, to attachment and sale until the decree shall be fully satisfied, unless the decree shall be for a sum less than Ra. 100, and on account of a transaction bearing date subsequently to the passing of this Act." In the case referred to, that of Dwarkaloll Mitter (1), the defendant in the suit had been arrested for non-payment of the amount of a decree, but, in consequence of the creditor's not having deposited subsistence money according to law, he was discharged ; and the question was whether he could be retaken. A rule issued calling on the prisoner to show cause why he should not be re-arrested on the old writ, or why a new writ should not be issued in execution of that decree. It appeared to me that the prisoner, having once been (1) Bourke's Kep., Ft. i, 109. FULL BENCH RULINGS. 891 discharged, came clearly within the rule laid down in a. 282, and that he iggs could not be retaken, and upon that question only I expressed my Janoki Singh opinion, I said : — " I am of opinion that the rule ought to be refused. ^°^ To grant the application would necessarily lead to great injustice and Kaloo oppression. It would enable a creditor to drag a debtor up before the Court, as often as* he pleased, simply for the purpose of harassing him. In the Mofussil, where the Courts are far apart and means of access difficult, this would be an intolerable hardship. The Legislature could never have contemjilnted such a state of things. In England, the discharge of a man's person once from execution is a discharge for ever. The principle applying here, that ' no man should be twice vexed on the same charge' is a very proper one, and the rule must be refused." These reraaiks were appliciible to the question then before the Court, namely, wiiether the prisoner could be retiiken, and his person seized in execution, he having been once discharged in consequence of the cieditor not having deposited subsistence money. Morgan, J., seems to have had some doubts upon the question, and according to the report as given in Mr. Bourke's reports, he ia made to say : — "I am not quite satisfied upon the point, and would like to have further time to consider whether there is any real distinction iu the Act between the words 'release' and 'discharge.' In England, when a capias issued, the plaintiff was supposed to be satisfied. That did not seem to be so here. The terms of Act VIII of 1859 seem to imply the power to arrest both person and property ; and it seems to me that the arrest of the person is not the full satisfaction here, that it is under English law. I have doubts upon the subject, but I do not wish to oppose the judgment of my learned brethren." Phear, J., ^aid : — " I concur with the Chief Justice. The rule, if granted, would have, as already pointed out, only one result. I think therefore it should be refused." So that really the question turned simply upon the point whether a prisoner, once discharged from custody for want of deposit of subsistence money, could be retaken. If he could be taken once, he might be discharged again the next day, or the next week, and then taken a third time and let out, and so on interminably, just as his creditor might choose. It appears to me that does not affect this case, where the creditor simply seeks to have his decree satisfied by levying execution upon the property. An answer will be sent to the Small Cause Court that, after a debtor has been arrested in execution of a decree, and discharged at the request of the creditor, his personal property may be taken in execution under the game decree. 892 FULL BENCH KULINGS. 1868 Seton-Kare, J. — I am of the same opinion. As I understand the Janoki Singh reference, the sections of Act VIII of 1859 applying to the case are 278 ^°^ and 282. The debt is for money exceeding Rs. 50, and, consequently, M^NDUL *''^ defendant was liable to be imprisoned for a period not exceeding six months. Hewasreleasedfromimprisonmentafterfour mouths and twenty- five days ; and, as I read those sections, tliis release of his person did not bar the attachment of his personal property to make good the debt. Jackson, J. — ■! am of the same opinion as the Chief Justice. I desire simply to add that I never should have entertained any doubts upon this point myself; but in consequence of the expression of opinion attributed to Morgan, J., and to the tenor of the decision, as we find it, in the somewliat obscure report of Mr. Bourke, it appeared to me that some doubt had been tiirowa upon the ability of the Court .to issue a warrant, either agiiinst the person, or the goods of the debtor under the circumstances stated, I entirely concur in the opinion that has been expressed by the Chief Justice. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Kemp, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Glover. 1868 SHAMACHURN OHUCKERBUTTY and otheks (Deiteitdants) v. ■^""'J- 30- BINDABUN CHUNDER ROY and another (Plaintii'i's).* Review, Application for, after Ninety Days — Just and Reasonable Cause — Act VIII 0/1859, ss. 363, 377, and 378— Appeal— Full Bench Rulings. The decision of a sabordinal;e Court as to wliat constil^utes " Just and reasonable cause " for admitting a review after the prescribed period is appealable ( 1 ). The words in a. 378, Act VIII of 1859, "its order in either case, whether for rejecting the application or granting the review shall be final," are applicable only to the order for rejecting the application or granting the review, and not to the decision as to whether there was just and reasonable cause for allowing the application to be made after the period of ninety days prescribed by s. 377 had elapsed. A new exposition of the law by a Full Bench after the passing of the original decree is not " just and reasonable cause" for admitting a review after the prescribed period (2). When a review has been granted, the Court is bound to decide the case according to any new exposition of the law by a Full Bench made since the original decision (3). In this case, the plaintiff sued to resume invalid lakhiraj granted subsequently to the 1st December 1790. On the 28th of April 1863, * Special Appeal, No. 1395 of 1866, from a decree of the Additional Principal Sudder Ameen of East Burdwan, dated the 27th January 1866, reversing a decree of the Sudder Ameen of that district, dated the 28th August 1865. (_l)Se&AjonnissaBiMY. Surja KantAchar- Mundid, id., i2i, note; Nolita Mohun Eoy ji, 2 B. L. R., A. C, 181; Mowri Bewa v. Chowdhry v. Denonath Mookerjee, id., 427, Surendranathlioy,id.,l8i,not&;Aszafanmssa note; axiiX Kheluf Chunder Ghosev. Pran~ Begum v. Syadlnaet Hossein, 5 B. L. R., 316 ; Icisto Day, id., 428, note. MaliOTned Gazi Chowdhry v. Srimati DuUah (2) See 8atto Saran Ghosal Bahadur v. Bin, id., 318, note; Bhyrub Chunder Swmah Tarini Charan Ghose, 3 B. L. R., A. C, 287, Chowdhry v. Madhubram Surmah, 11 B. L. (3) See Nizamat Ali v. Ramesh Chandra, R,, 423; Nudarchund Bhooya v. Eeedoy Roy, 3 B, L, E,, A, C, 78, PULL BENCH RULINGS. 893 lie obtained a decree in his favor. No appeal was preferred against. iggg that decision, ■which was in accordance with the law as it had been Shamachurs expounded by the late Sudder Court. Sometime after the decision BUTTY BlNDABUN of the 28 th April 1863, a case was decided by a Full Bench of this Court — Sonatan Ghose v. Moulvi Abdul Farar (1) — which Chdndkk expounded the law differently from the mode in which it had been laid down iu previous decisions of the late Sudder Court. In consequence of tiiat decision of the Full Bench, the defendant, against whom the decree of the 28th April 1863 was pnssed, applied to the Sudder Ameen to review his decision. The Sudder Ameen at that time was not the person who had decided the case originally, but was a new officer who had succeeded him. Tlie application for review was made long after the expiration of ninety days from the date on which the decision had been given, the Full Bench decision not having been given within that period. The Sudder Ameen admitted the review ; but it dees not appear upon what grounds he considered that the delay was excused. An appeal was preferred from the decision of the Sudder Ameen, and was heard by the Principal Sudder Ameen. He thought that the Sudder Ameen was wrong in applying the new exposition of the law to the old case ; he thought that the new exposition of the law was prospective, and not retrospective. He also decided that the Sudder Ameen was wrong altogetlier in admit- ting the review after the expiration of ninety days without suffi- cient cause, and held that the fact of the defendant not being aware of the law as newly expounded by the Full Bench was no excuse for the delay. A special appeal was preferred from the decision of the Principal Sudder Ameen to the High Court. The Division Bench (Kemp and Grluver, JJ.) which heard the appeal, differing from the ruling in Onoop Chunder Paul v. Ekhowree Singh (2), referred the case to a Full Bench to decide two questions : — ■ "First, who has tlie authority to decide what is just and reasonable cause for admitting an application for review after the prescribed ninety days have elapsed under s. 377 of Act VHI of 1859. And, secondly, the application being admitted, is not the case in all respects a new one, and liable to be governed by any exposition of the law by a Full Bench Ruling of the High Court which may have. been published since the original decision ? " Baboo Onoocool Chunder Mookerjee for the appellants. Baboos Romesh Chunder Hitter and Umbica Churn Banerjee for tho respondents, (1) Ante, p. 109. (2) 6 W. E., 167. 69 894 FULL BENCH RULINGS. 1868 The following judgments were delivered by the Full Bench : — Shamachurn Peacock, C.J. (Kemp, J., concurring') (after stating the facts as above, Chuckkk- °' BUTTY and observiug of the action of the Sudder Ameen with reference to the BiNDABDN second question that " having admitted the review, it appears to me Eor""'' *''^' ^® ^^T properly acted upon the exposition of the law by the Full Bench, because at the time when he reheard the case he was bound to act upon the law as laid down by the Full Bench case, which did not alter the law as it existed at the time when the cause of suit arose, bnt amounted merely to a new exposition of the law itself," continued)' — With regard to the second question, I have already expressed my opinion that, if the Sudder Ameen was right in admitting a review, he was right in acting upon the new exposition of the law. The only remaining question then is whether the Sudder Ameen was right in admitting the review after the expiration of the ninety days ; and, if he was wrong, whether the Principal Sudder Ameen or this Court can deal with this decision. That, as it appears to me, depends upon the construction of Act VIII of 1859, Ch. xi. The sections principally bearing on the case are 377 and 378. S. 377 says : — " The application shall be made within ninety days from the date of the decree, unless the party preferring the same shall be able to show just and reasonable cause, to the satisfaction of the Court, for not having preferred such application within the limited period." S. 378 says : — "If the Court shall be of opinion that there are not any sufficient grounds for a review, it shall reject the application ; but if it shall be of opinion that the review desired is necessary to correct an evident error or omission, or is otherwise requisite for the ends of justice, the Court shall grant the review ; and its order in either case, whether for rejecting the application or granting the review, shall be final." Now it appears to me that, in substance, there are two orders in this case : — First, the order that the application shall be received ; and, secondly, the order granting the review. We are now dealing with the first order, which, although not formally drawn up, is substantially included in the case. S. 363 of the Act says, that " no appeal shall lie from any order passed in the course of a suit, and relating thereto, prior to decree ; but if the decree be appealed against, any error, defect, or irregularity in any such order affecting the merits of the case or the jurisdiction of the Court, may be set forth as a ground of objection in the memorandum of appeal." It appears to me that the order admitting tiie application after the ninety days was an order prior to the decree upon the rehearing of the case upon review, and therefore, that under s. 363, FULL BENCH RULINGS. 895 that order was appealable, unless s. 377 lias left it wholly to the discretion ises BlNDABUN Chunder KOY of the Court to admit a review after the expiration of ninety days, when- Shamachurn ever that Court shall think a reasonable excuse for the delay is made out. butty"' It is suggested by my colleague by my side that there was no ground of appeal before the Principal Sudder Ameen, that the Sudder Ameen was wrong in admitting the review after the expiration of ninety days ; but the Principal Sudder Ameen, although thei-e was not that ground of appeal, did expressly decide the case upon that point, as well as upon others. Sitting here upon appeal from the decision of the Principal Sudder Ameen, and for the purpose of doing justice, we must, deal with the case as if the Principal Sudder Ameen had allowed the grounds of appeal before him to be amended, and an additional ground of appeal inserted, namely, that the Sudder Ameen was wrong in admitting the review after tlie expiration of ninety days without suffi- cient cause, and then iiis judgment would have been founded upon that ground of appeal. Therefore I think this case properly comes before us, although there was no special ground of appeal to the Principal Sudder Ameen that the decision of the Sudder Ameen was wrang in admitting the review. Then come the questions : — First, was there just and reasonable cause for not having preferred the application within the limited period ? Secondly, can this Court look to the reasonableness or sufficiency of the cause, or is that question left wholly and entirely to the discretion of the Court to which the application for review is made ? Now it appears to me that it would be very dangerous to leave the justness and reasonableness of the excuse for the delay to the discretion of the lower Courts. It is a ground of the greatest importance that decisions which have been passed for many years should not be opened unless some sufficient ground be shown for the delay in not having applied earlier. In a case before the Privy Council — Maharaja Moheshur Sing V. The Bengal Government (1) — one of the points was whether the Commissioners of Revenue were right in admitting a review of a decision in a resumption suit after the expiration of ninety days without sufficient cause. The Lords of the Judicial Committee treated the admission of a review after the expiration of three months, which was the time allowed by the Regulation XXVI of 1814, as an interlocutory order. At p. 302, they say : — "Before we enter into the particulars of that question, we deem it right to notice an objection which was taken at the bar on the part of the respondents, that it was too late now to impugn the regularity of the proceeding to grant the review ; that (1) 7 Moore's I. A., 283. 896 FULL BENCH RULINGS. 1868 BlNDABUN Chundek KOY if tlie appellant deemed liimself nggiieved by it, he ought to have Shamachuiw appealed at the time ; and thiif, he wns too late in doing so after a CiiucKEo- decision had been pronounced against him. We are of opinion that this objection cannot be sustained. We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from, every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the Appellate Court." The Judicial Committee thought that the appellant was in time, after the decree had been passed on the review, to take objection that the Court was wrong in admitting the review after the expiration of three months without reasonable ciiuse. The words of Regulation XXVI of 1814, so far as they refer to the admission of the review after the expira- tion of the time limited, are almost identical with those of s. 377 of the present Civil Procedure Code. The second clause (1) directs that the petition for review shall be presented within three calendar months. Tliia provision, however, admits of an exception, by providing that, if the parties preferring the same shall be able to show just and reasonable cause, to the satisfaction of the Court, for not having preferred such application within the limited period, such review will be allowed. The Privy Council did not think that the words " to the satisfaction of the Court," would prevent them from looking into the grounds which were urged as an excuse for the delay. The Lords of the Judicial Committee say : — " It necessarily follows that if the review was granted without due regard to the Regulations governing such proceedings, it, and all that has been done under it, must fall to the ground." That is at p. 309. It appears to me that that case is similar to the present, and that the words to which our attention has been called in s. 378, viz., " iis order in either case, whether for rejecting the application or granting the review, shall be final," are applicable only to the order for rejecting the application or granting the review, and not to the decision as to whether there was just and reasonable cause for allowing the applica- tion to be made after the period of ninety days mentioned in s. 377. Now, let us see what would be the consequence of holding that the new decision, or the new exposition of the law by the Full Bench, was a sufficient excuse for not having applied for the review of judornent within the period of ninety days. If it was a sufficient excuse for not having applied within the period of ninety days, it would be a sufficient excuse for applying (?o review every judgment which has been given on (1) Ofs. i. FULL BENCH RULINGS. 897 V. BlNDABUN Chundbk KOY. resumption suits witliin the last fifty years, and consequenily almost nil jggs the titles which depend upon decrees in resumption suits would be alfo- Shamachuhn gether upset ; because, if we hold that there were sufficient grounds to ^'b"tty"" apply for a review of this judgment in consequence of that decision, we must also hold that there would be sufficient ground for applying for the review of every judgment of the same character which has been passed within the last fifty years. No title, therefore, would be safe which depends upon a decree in a resumption suit. The Judicial Committee of the Privy Council say upon that point : — " Let us now address our attention to the Regulations which have hecn passed relative to the question of granting a review. It must be borne in mind that a review is perfectly distinct from an appeal ; it is quite clear from the Regulations that the primary intention of granting a review was a consideration of the same subject by tlie same Judge, as contradistin- guished to an appeal, which is a hearing before another tribunal. We do not say that there might not be cases in wlueh a review might take place before another and a different Judge, because death or some other unex- pected and unavoidable cause might prevent the Judge who made the decision from reviewing it; but we do say that such exceptions are allowable only ex necessitate." In this case, there was the exception ; for the Sudder Ameen who had passed the decision liad left the Station, and a new Sudder Ameen had been put in his place. The Judicial Committee go on to say : — " We do say that, in all practicable cases, the same Judge ought to review ; and that, for the attainment of that object expedition in presenting a petition for the review is indispensable, and the only practicable course for attaining that end by accelerating the hearing of the review before accident or unexpected events shall liave i-emoved the original Judge. Looking at all these circumstances, wo should naturally expect to meet in the Regulations upon this subject such provisions as would prevent the evils necessarily incidental to delay and procrastination;" see p. 304. In another part of their judgment they say (p. 308) : — " We are of opiuiou that for g'ranting a review in the cases we have just supposed to exist, the causes accounting for the delay, and intended to justify the grant of a review, ought to be of grave impor- tance." At p. 303, they say : — '"Before considering whether the review was granted in conformity with the Regulations, let us look a little to the principles upon which we think lapse of time is a most important consideration. In the present case, five years and a half had passed away since the original decision. Surely, whatever may be the true import of the Regulations, the parties interested in the decision which Lad beea made, were entitled, after the lapse of a sufficient period, no 898 FULL BENCH RULINGS. Chucker- BOTTY V. BiNDABDrf Chundisb Roy. 1868 appenl having been asserted or petition for a review presented, to Shamachurn conclude that the Government acquiesced in what had been done by tha Special Commissioners, and, in that rational conviction, to deal with the property upon the footing of the past decision." Now it appears to me thot all the principles to be deduced from the case to which I have referred are equally applicable to the present case, and that a new exposition of the law was not a just and reasonable cause for not having presented the review within the ninety days required by law. The new construction of the law might be a ground for review, but it was no excuse for not having applied before. If it was, cases which have been decided and acted upon for fifty years might be reopened, which never could have been intended. I think the review in this case ought not to have been admitted, and that we must follow the course which the Privy Council did in the case to which I have alluded, and hold that if the review was granted without due regard to the provisions of s. 377, it, and all that has been done under it, must fall to the ground. I am of opinion that there was no just and sufficient cause for not having preferred tiie application for a review within the limited period, and that the Sudder Araeen by hearing the review after the limited period did not preclude a Court of appeal from enquiring whether the excuse for the delay was sufficient. There was a case in this Court (1) in which Pundit and Glover, JJ., differed in opinion as to whether a decision which had been passed upon a rehearing under a review (the review having been granted after the expiration of ninety days, and the Judge having given no reason for the admission of the review), could be interfered with by this Court. Pundit, J., thought that, under as. 377 and 378, the decision of the Court admitting the review was final, although he gave no reasons for admitting it after the expiration of the ninety days. On the other hand, Glover, J., thought that an appeal would lie from the decision which took place on tne hearing on review, and that the question whether there was reasonable cause for the delay or not might be enquired into by this Court. The case was referred to a third Judge, and came before me, and I concurred with Glover, J., that the fact of the Judges having admitted the review after the ninety days was not conclusive upon this Court that there was sufficient excuse for the delay. I thought that the Principal Sudder Ameen was not authorized to enter into the ground for granting the review, until he was satisfied that there was reasonable cause for the delay. (1) Gunganarain Roy v, Gonomoonee, 8 W. R,, 184. FULL BENCH RULINGS. 899 If the Sudder Araeen liad tlie power to admit a review in this cnse, 1868 BiNDAEUN Chuhdkk Koy. his successor might review liis judgment twenty years hence, and auy Shamachurn CjH T'OK.lfiR~ Principal Sudder Ameen would have power to review a decision butty passed by his predecessor twenty years ago, without any cause for the delay in making the application being shown, and without pledging himself that the cause, if any, assigned for tiie delay is, in his judgment, sufficient. If such were the case, there would be an end to all finality in litigation. I am of opinion that an application for a review cannot be properly admitted after the limited period, unless there is just and reasouable cause for the delay, and that a decision as to what is just and rensonable cause for admitting an application for review after the prescribed period of ninety days is one upon whicli an appeal will lie. As to the second ground, I have already stated tliat, in my opinion, when a review is properly gianted, the case, upon the rehearing under the review, ought to be decided according to the last exposition ofthe law by a Full Bench As nothing remains to be done by the Full Bench, I may state that my opinion now is that this appeal, which has been preferred against the decision of the Principal Sudder Ameen, must be dismissed, upon the ground that the Principal Sudder Ameen was right in holding that there was no sufficient cause for admitting the review after the expira- tion of the ninety days. The special appeal is accordingly dismissed with costs. Jackson, J. — I entirely concur with the Chief Justice upon the two questions referred by the learned Judges ofthe Division Court. The second of these questions is extremely simple ; and, for tlie reasons stated by the Chief Justice, I am of opinion that when the review had been once admitted by the Sudder Ameen (and the sufficiency of the cause for which he admitted the review is not a matter for the consideration of any Appellate Court), then, undoubtedly, he would be right in deciding the case that was again before him for decision accord- ing to the exposition of law then governing the Courts, The first question is one of somewhat more difficulty. Applications for review presented to the Court after the expiration of ninety days stand upon wholly different grounds from applications presented within the ninety days. When presented within ninety days, they are presented as of right, and the Court has then to apply itself only to the reasons which the petition contains for review of judgment ; but when presented after ninety days have expired, quite an independent question presents itself in the first place for the decision of the Court, namely, whether the parties have shown a just aud sufficient cause, to the saiisfactiou of the &00 FULL BENCH RULINGS. 1868 Court, for the delay which has taken place. It appears to me that the SitAMAciiuitN decision of the Court upon that point stands quite apart from the deci- BUTTY ^'O"^ under s. 878, and that it is a matter wiiicli is for the consideration BiNDAEu:!^ of an Appellate Court, if an appeal should be afterwards made from Chcisdiis the decree. It seems to me that an order made upon that case comes clearly within the terras of s. 363 as an interlocutory order. It was so regarded by the Privy Council in the case to which the Chief Justice has referred, and is, therefore, clearly one to which objection may be taken on appeal against the final decree. Then it is said tliat no ground of appeal upon this pointwas presented to the Principal Sudder Ameen. It appears to me that this is wholly immaterial, not only for the reasons given by the Chief Justice, but also because, by s. 334, it is provided "the appellant shall not, without tlie leave of the Court, urge or be heard in support of any other ground of objection; but the Court, in deciding the appeal, shall not be confined to the grounds set forth by the appellant." It is therefore entirely within the competency of the Court to take into its consideration anything in the case which either affects the regularity of the proceedings of the Court below, or relates to the correctness of the decision upon the merits. It appears to me, therefore, tliat the Principal Sudder Ameen was entirely competent to take up this point, and to dispose of it on the appeal. I am of opinion that if the Sudder Ameen had entertained tliis petition of review presented after the expiration of ninety days, without stating that any just or sufficient cause had been shown, to his satisfaction, for the delay, I think that then the order would have been absolutely bad, and all tiiat would have been done under it would fall to the ground. I also think that if good and sufficient reason had been shown, and that reason had been such as the Appellate Court could not approve, the Appellate Court would be justified in setting it aside. I further think that the reason assigned in this case, namely, the promulgation of a new interpretation of the law, was not a good and sufficient cause for admitting or entertaining the application for review after the lapse of ninety days. Macphebson, J. — I think that ss. 377 and 378 of Act "VIII of 1859 must be read separately. The words in s. 378, which declare that " the order, whether for rejecting the application or grantinc the review, shall be final," must be read as applying solely to the applica- tion under s. 378, and not to the application under s. 377, which last section relates only to the question of the time at which the Court is first asked to review its judgment. I concur in the order dismissin-^ the appeal. FULL BENCH RULINGS. 901 Chucker- BUTTr V, BiNDABUN Chundbr EOY. Glover, J. — i concur generally in the judgment of the learned ises Chief Justice. It appears to me, on further consideration, that ss. 377 Shamachukn and 378 of the Civil Procedure Code refer to different things, and ought not to be read together, and that an order passed under the first- named section is an interlocutory order, which is subject to appeal — Maharaja Moheshur Sing v. The Bengal Government (I). And if this be so, the Principal Sudder Ameen's finding on the question as to whether there was j ust or reasonable cause for receiving the applica- tion for review after ninety days had elapsed, was a question of fact with which there would be no interference possible in special appeal. It does not seem to me necessary to go further than to declare that the first Court's decision as to what is "just and reasonable cause" is open to appeal. This was the question referred to the Full Bench. And I do not think that, under the circumstances of this case, we are called upon to say whether the Principal Sudder Ameen's opinion as to the sufficiency or otherwise of the Munsif 's reasons was a good one or not. As the second point referred has been given in favor of the opinion expressed in the referring order, I have only to say that, on this point, I concur with ihe learned Chief Juslice. Before Sir Barnes Peacock, Kf., Chief Justice, Mr. Justice Kemp, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Glover. LALL DOSS AND OTHERS qDefendahts) d. JAMAL ALI (Plaintiff).* Limitation— Act XIV of 1859, «. 1, els. 15 Sf 16 — Suit by Mortgagor for Possession of Mortgaged Property and Surplus Collections — Act XlVof 1859, <>. 2 — Trustee. In a suit by a mortgagor after a mortgage has been satisfied, for the recovery of the mortgaged property, the period of limitation applicable is that prescribed by cl. 15 of s. I of Act XrV of 1859 : but in a suit for surplus collections which have been received by the mortgagee, the limitation prescribed by cl. 16 of s. 1 is applicable (2). A mortgagee in possession after the mortgage has been satisfied is not a trustee for the mortgagor within the meaning of s. 2 of Act XIV of 1859. The plaintiff in 1854 purchased the equity of redemption of certain properties which had been conveyed to the defendants in ziir-i-peshgi in the year 1838, and in 1862, he sued tlie defendants for possession of * Kegular Appeal, No. 29 of 1867, from a decree of the Judge of Tirhoot, dated the 20th August 1866. (1) 7 Moore's I. A., 283. (2) See Act IX of 1871, Sch. ii, Nos. 105 & 148 70 1868 J any, 31, 902 FULL BENCH RULINGS. 1868 the mortgaged property, and for Es. 22,991-4 which he claimed as Lall Doss Surplus collections, on the allegation that the mortgage-debt had been Jamal Alt. satisfied from the usufruct of the property. The Judge found that the sums realized by the defendants since the date of the plaintiflE's purchase were not sufficient to liquidate their debt, and he dismissed the suit. The plaintiff appealed to the High Court, and was allowed by Treror and Campbell, JJ., who heard the appeal, to amend his plaint on payment of all prior costs, and to ask for an account from the date of the mortgage ; and the case was remanded to the lower Court to be decided in accordance with the result of such account. On remand, the Judge found that the mortgage-debt (principal and interest) had been paid, leaving a surplus in the hands of the mortgagee amounting to Es. 20,566-11-6. He gave a decree for possession and awarded the surplus collections as mesne profits. Against this decision the defendant appealed to the High Court. The appeal was heard by a Division Bench (Peacock, C.J., and Loch, J.) which confirmed the decree of the Court below for possession, and was of opinion that the plaintiff was entitled to recover "whatever might be found due upon a balance of account to be taken from the mortgagee for the last six years before the commencement of the suit." The learned Judges refused to express any opinion as to whether he could go beyond six years ; but in consequence of a decision by Morgan and Pundit, JJ., that the law of limitation did not apply to a case of this kind (1), they referred the point to a Full Bench. The Court, contingent upon the opinion of the Full Bench, determined the amount of surplus collections which the plaintiff was entitled to recover reserving the question of costs. As regards the points submitted for tlie consideration of the Full Bench, the following observations were made by Peacock, C.J. — The first question reserved, is whether a mortgagor is entitled to recover, as against a mortgagee, whatever may be found due upon a balance of account, for a period further back than six years before the commencement of the suit. CI. 15, s. 1, Act XIV of 1859, limits the right of action in suits against a depositary, pawnee, or mortgagee of any property, moveable or immoveable, for the recovery of the same, to a period of thirty years if the property be moveable, and sixty years if it be immoveable, from the time of the deposit, pawn, or mortgage. It must be remarked that cl. 15 does not say that all suits against a mortgagee are to be so (1) Reg, Ap. 233 of 1865, unreported. FULL BENCH RULINGS. 903 limited ; but only suits against a mortgagee of any property, moveable iggs or immoveable, for the recovery of tbe same. The question is whether lall Doss that applies merely to the matter which was pledged, such as the land j^mal Ali ia this case, or to money, which may be found upon account to have been received by mortgagee in excess of principal and interest. The Judge, OQ considering the question, has treated the mortgagee as a trustee for the mortgagor. We will not express any opinion upon the subject until the question shall have been fully discussed and argued by a Full Bench whether a mortgagee can be said to be a trustee for a mortgagor within the meaning of the Limitation Act, Mr. C. Gregory and Baboo Onoocool Chunder Mookerjee for the appellant. Mr. R. E. Twidale, Moonshee Amir Ali, and Baboos Obhoy Churn Base and Otool Chunder Mookerjee for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J.— It appears to us to be very clear that when a mortgagor, after a mortgage has been satisfied, sues for the recovery of the property mortgaged, the case comes within cl. 15, s. 1, Act XIV of 1859. But when he sues for surplus collections which have been received by the mortgagee, then the case falls under cl. 16. It lias been said that a mortgagee, after the mortgage has been satisfied, is in the position of a trustee for the mortgagor. We think he is not a trustee within the meaning of s. 2 of the Act. But even if he can be called a trustee, he is a trustee of the description falling within cl. 15, s. 1, and not a trustee of the description referred to in s. 2. We do not think it likely that the Legislature could have intended that a mortgagor, whose ease is provided for by cl. 15, s. 1, and who is thereby limited to thirty years, should have the election of treating the mortgagee as a trustee, and saying that he comes within s. 2 and is barred by no length of time. According to the decision of the Division Bench, the plaintiff will be entitled to a decree for Es. 2,616 with costs in proportion. In other respects, the decree of the lower Court will stand. 904 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bat/ley, Mr. Justice Seton-Karr, Mr. Justice Phear, and Mr. Justice Maopherson. 1868 PUXIN BEHARI SEN (Defendant) v. Messes. R. WATSON ""■'■^' AND Co. (Plaintiffs).* Act X of 1859, s. n,cl. 2 (l)— Evidence— Burden of Proof—Written Statement of Defendant — Admission — Suit by a Firm. Wtere, in a suit for enhancement on the ground that the- productive powers of the land have been increased otherwise than by the agency or at the expense of the ryot, the defendant admits the increase in productiveness, but denies the alleged cause, the onus of proving that the productiveness has been increased by other means lies on the plaintiff (2). Per Peacock, C-J., a suit by a firm should not be brought in the name of the firm, but in the names of the members who constitute the firm. This was a suit to recover enhanced rent from the defendant on the ground cf increase in the value of the produce and of the productive powers of the land held by hira. The defendant having admitted the increase in the productiveness of tlie land was called upon to show that it had so increased by his agency, or at his expense, and his proof on I his point being considered insufficient, a decree was made declaring the plaintiff entitled to enhance. On special appeal by the defendant to the High Court, Bayley and Pundit, JJ., held, in accordance with the decision in Dinonath Bose Mulliek V. Juggessur Mundul (3), that the burden of proving the cause of the increase and that it was not the result of the ryot's agency, lay on the plaintiff ; but as an opposite view had been taken in Nobeen Kishen Bose v. Shofatoollah (4), they referred the point for the opinion of a Full Bench. Baboos Aushootosh Chatterjee, Sreenath Doss, Kallee Kishen Sen, and Romanath Bose foi- the appellant. Messrs. E. T. Allan and G. S. Rochfort for the respondents. The following opinions were delivered by the Full Bench : — ■ Peacock, C.J. (Baylbt and Macpherson, J J., concurring). — The question which is submitted for the opinion of this Bench is whether, * Special Appeal, No 76 of 1867, from a decree of the Oliiciating Judge of Moorshedabad, dated the 4th December 1866, affirming a decree of the Deputy Collector of that district, dated the 24th July 1866. (1) See Beng. Act VIII of 1869, s. 18. (3) 1 W. E., 155. (2) See Bajkrishna Mooherjee v. Kali (4) l W. B,, 24. Charan Dobain, 6 B. L. E., App., 122. PULL BENCH RULINGS. 905 when a landlord sues for enhancement on the ground that the produc- iggs tlveness of the land has increased, the onus is on the plaintiff to proof Pulin Beham that the productiveness was increased otherwise than by the agency or at ^'^'^ the expense of the ryot, or on the defendant to prove that the productive- Watson. ness was the result of liis agency, or to show what was the cause of it. Mr. Eochfort has contended that it would be sufficient for the plaintiff to allege that there had been an increase in productiveness. But that, I apprehend, would not be a sufficient ground for enhancement. The title of the plaintiff to enhance depends upon the fact that the produc- tiveness has increased otherwise than by the agency or at the expense of the ryot. We cannot suppose that Messrs. R. Watson and Co. gave notice that they intended to euliance the rent, or came into Court to enforce their power to enhance, and made a declaration that the statement in their plaint was correct, that the productiveness had increased otherwise than by the agency of the ryot, without knowing the facts upon which they grounded their notice, their assertion in the plaint, and their verification of it. If they did so, they did that which they ought not to have done, and therefore we must suppose that, when they gave a notice to enhance, and claiuied the enhancement by their plaint, they knew upon what ground they alleged that the productiveness had increased otherwise than by the agency of the ryot. Mr. Rochfort also referred to the defendant's statement as what he called a confession and avoidance. What a defendant says, either orally or by a written statement, is not a plea in confession and avoidance . I asked Mr. Allan whether there was a written statement put in, or whether what the defendant stated was stated verbally in Court. But I do not think it makes any difference in point of law whether the statement is made by defendant verbally or in writing. Suppose a defeiidant comes into Court, and the Court asks him : — " What do you say to the plaintiff's claim?" and he says: — "I admit that the productiveness has increased, but not otherwise than by my agency." Such an admission must be taken altogether. So it is in the case of a written statement. A written statement put in by a defendant is not a plea by way of confession and avoidance ; it is a statement of the grounds of his defence, and he must verify the statement. It is like an answer in Chancery. If you read a man's answer, you must take the whole admission together (1). Taking the whole admission together in this case, the defendant says that " the productiveness has increased, but not otherwise than by my agency ;" and the plaintiff then has to prove his case. (1) See BaikanthnatJi Kumar v. Chandra, Mohan Chowdhry, 1 B. L. R., A. C, 133. 906 FULL BENCH RULINGS. 1868 The general rule of evidence is that if, in order to make out a title, PuLiN Behari it is necessary to prove a negative, the party who avers a title must prove „ " the title. That was laid down by the Privy Council ia the case of Khaja Watson. Mahomed Gouhur All Khan v. Ashrufoonissa (I). They say that the plaintiffs " have not only to prove their relationship, which is not dis- puted, but their heirship, whicli depends upon the illegitimacy of the appellant ; and th.ey must give sufficient general evidence to throw upon him the onus of proving his legitimacy.'' In Starkie, the rule is thus laid down at p. 588(2): — "It is to be carefully remarked that, although, as a general rule, the law neither presumes liability or discharge from liability, nor any fact or state of things essential to such liability or discharge,n ot established by competent means, the law does not in absence of proof of a negative, where it is material to a right, assume the affirmative to be true ; it is, on the contrary, frequently essential to the establishment of right to prove the negative of facts." The plaintiff alleged the right to enhance on the ground that the productiveness had increased otherwise than by the agency of the ryot. I am of opinion, therefore, that the onus lay on plaintiff to prove the ground of his right to enhance, namely, that the productiveness of the land had increased otherwise than by the agency of the ryot. . The case will be remanded to be determined upon the evidence as it stands. The appellant will have the costs of this appeal. We see that the suit was brought in the name of Messrs. R. Watson and Co. This Court has determined in a case in which Messrs. E. Watson and Co. were parties, that the names of the persons composing the firm must be given in the same manner as every firm is bound to give the names of its members. In future the Judges are not to receive plaints at the suit of Messrs. E. Watson and Co. or any other fiim, but should in all cases require the names of the parties constituting the firm to be stated. Seton-Kaer, J. — I am of the same opinion. Two main points were urged on behalf of the zemindar with the view of casting the onus on the ryot. Mr. Eochfort's argument was that, when the fact of a positive increase was either admitted or proved, this fact alone would entitle the zemindar to the benefit of the increase, unless the defendant could prove the special plea of avoidance. But this argument, though at first sight it may appear to deserve some consideration, seems to me to have been completely disposed of by the remarks of the learned Chief Justice, to the effect that, if you take the admission of a defendant at all, you are bound to take it altogether, and to its whole extent. (1) 9 Moore's I. A., 493. (2) 4tli Edition. FULL BENCH RULINGS. 907 Tlie otlier main argument dwelt upon by Mr. Allan, was to the effect iggs that, in this case, the onus ought to be shifted according as the means Pulin Behaei of facility of proof resides with one party or the other ; and that in suits ™ for enhancement, it is much more easy for the ryot to prove the special Watson. circumstances under which either the value of the produce or the produc- tive powers of the land have increased, than it would be for the zemindar; that it is fairer, in short, to require the ryot to prove his case with regard to his particular plots, which he is necessarily familiar with from constant supervision and inspection, than to require the zemindar to prove his case with regard to the lands of scores of ryots scattered probably over several villages, of which he or his agent can have but a partial knowledge. But there is nothing unreasonable in requiring the zemindar to prove his case. He has his gomasta or his local agents. He can call the defendant himself into Court and examine him, and he can summon other ryots to prove facts which must be widely known ; and he ought to have no difficulty in proving that the increase has resulted from additional productiveness in the soil, arising out of fertilizing deposits, or from increased facilities for disposing of the produce arising out of the construction of protecting embankments, or the introduction of railways, or the rise of new markets, or the gener- ally increased facilities of communication which are caused by the con- struction of ordinary metalled roads. Consequently, there is nothing which, in my opinion, should exempt the zemindar in this case from the ordinary liability which attaches to all plaintiffs. The case of Nobeen Kishen Bose v. Shofatoollah (1) was never properly argued. No one appeared for the respondents ; and it appears to have been assumed that, on the mere fact of increase being proved or admitted, the onus was necessarily shifted to the shoulders of the ryot. The two other cases, as far as the facts can be gathered from the reports, appear to me to favor the contention of the appellant in this case. But on general grounds, and looking to the purely legal question of the onus of proof, I am quite prepared to hold that, in such a case, it is justly laid on the party seeking to enhance. Pheak, J. — This is a suit to recover rent at an enhanced rate. The party claiming this must have given notice, under s. 13, Act X of 1859, of his intention to claim an enhanced rent, and the ground upon which that claim is based ; and under s. 17, if the claim be made upon the ground of increase of the productive powers of the land, or of the value (1) 1 W. E., 24. 908 FULL BENCH RULINGS. 1868 of the produce, it must include this further condition also, namely, that PuLiN Behaki these have been increased otherwise than by the agency or at the expense ^^^ of the ryot. Consequently, it is the basis of the plaintiffs claim in Watson. ^jjjg gyjj. ^^^^ either the value of the produce or the productive powers of the land have increased otherwise than by the agency or at the expense of the ryot. It is admitted by the plaintiffs counsel that ordioarily the rule of law- is that the plaintiff must prove that which is the foundation of his right. But it is said that, in this particular case, the burden of proof is shifted from the plaintiff to the defendant for tliis single reason, that it is easier for the ryot to prove his exception, than it is for the plaintiff to prove that the exception does not exist. To me it is somewhat novel to hear this enunciated as a rule of law, although I am familiar with the phrase that where the knowledge of the subject-matter of an allegation is peculiarly within the province of one party to a suit, the burden of proof must be there also. But that has a special meaning, aud applies to a very limited class of cases, the class of cases to which I alluded during the argument. I do not know if any case of that kind is to be found in this country, because they entirely depend upon the provisions of statute law. But the principle does not go further than those peculiar cases. Alderson, B., in Elkin v. Janson (1), even qualified ita applicability in regard to these ; and it appears by the quotation which I made from a judgment delivered by Lord Denman in Doe v. Whitehead (2) that, according to English rules, the place of the know- ledge does not affect the situation of the burden of proof. His words are : — " The proof may be difficult where the matter is peculiarly within the defendant's knowledge ; but that does not vary the rule of law." I have thought it necessary to make these remarks, although I fully concur in the judgment which has been delivered by my Lord, for the reason that this is not the first time I have heard that principle attempted to be used which Mr. Allan has endeavoured to use to-day, and therefore I think it desirable to say, as far as I am concerned, that it appears to me an erroneous application, if it has been here attempted to be made. For these reasons I concur entirely with the Chief Justice, that this is a case in which the plaintiff is bound to prove, not only that the value of produce and the productive powers of the land have been increased, but also to go further and prove what is termed a negative, namely, that they have increased otherwise than in consequence of the exertion of the ryot himself. (1) 13 M, & W., 665, at p. 662. (2) 8 A. & E., 571. FULL BENCH RULINGS. 909 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Seton-Karr, Mr, Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Hobhouse. LALMOHUN HOLDAB (Plaintifp) v. MAHADEB KATEE (Defendant),* 1868 Jany, 31. Limitation— Act XIV of 1859, s. 1, els. 9 §• 10 (\)—Sale hy Wholesale— Breach of : — Contract. A suit to recover the price o£ goods sold wholesale is a suit for a breach of contract within els. 9 and 10 of s. 1, Act XIV of 1859 (1), and if there be no written contract, the period of limitation is that provided by cl. 9, viz., three years from the time when the cause of action accrued. The plaintiff in this action sued to recover Es. 64, being the price of mustard seed sold to the defendant for making oil. The sale was made in Assin 1270 (September 1863), and the plaint filed in Clieyt 1273 (March 1867). The Officiating Judge of the Small Cause Court at Santipore held that the parties in this suit were not merchants or traders having mutual dealings within the meaning of Act XIV of 1859, s. 8, but that the sale of th,e mustard seed was a wiolosale transaction. In giving his reasons for coming to this conclusion, he referred to the case of Buldeo Doss Johurry v. Sreenauth Sein (2). Treating the transaction as a wholesale one, he held that the period of limitation was six years under cl. 16, s. 1 of Act XIV of 1859, but owing to conflict- ing decisions on this question, in the cases of Buldeo Doss Johurry v. Sreenauth Sein (2), Chunder Churn Paul v. Ramnarain Sen (3), Sonaton Goho v. Parhutty Churn Roy (4), and Mothoora Lall Paul v. Shrinebash Dutt (5), he passed his judgment contingent upon the opinion of the High Court on the two following points : — "First. — Am I correct in holding the sale of the mustard seed for the manufacture of oil to be a wholesale transaction ? " " Second. — Is six years the period of limitation applicable to whole- sale transactions ?" The Division Bench (Peacock, C.J., and Hobhouse, J.), which heard this reference, were of opinion that the Judge was right in holding the sale of the mustard seed in suit to be a wliolesale transaction, but owing to the conflicting decisions on the question of limitation, they * Reference from the Officiating Judge of the Small Cause Court at Santipore. (1) See Act IX of 1871, Sch. ii, Nos. 51 (4) Unreported : see Thomson on Limita- and 52. tion, p. 129. (-2) 1 I. J., lU. (3) Coryton, 8. (5) Sutherland's S. C. C. Kef., 170, 71 Katee, 910 FULL BENCH KULINGS. 1868 submitted, for the consideration of a Full Bench, the question whether Lalmohun the period of limitation for goods sold wholesale is six years or three HoLDAB ygj^j,g^ ^if]^ jjjQ remark :— Mahadeb << It will be important to consider, when that question comes to be decided, whether goods sold wholesale are not so far provided for by els. 9 and 10 of s. 1, Act XIV of 1859, as to prevent them from falling within the general rule of el. 16." The opinion of the Full Bench was delivered by Peacock, C.J. — Two questions were put to this Court by the Judge of the Small Cause Court (reads). The Bench before which the case first came decided that the Judge was right in holding it to be a wholesale transaction ; that the goods were not sold by retail, but were sold wholesale, and the question was referred to this Bench to know whether, if goods are sold by wholesale, and not by retail, six years or three years is the period of limitation. We are of opinion that three years, and not six years, is the period of limitation. CI. 8 of s. 1 of Act XIV of 1859 enacts that to suits to recover the price of any articles sold by retail, the period of three years, from the time the cause of action arose, is the period of limitation. Suits, therefore, for articles sold by retail, whether in writing, or not in writing, whether by a contract registered or not registered under the provisions of cl. 10, come within s. 1, cl. 8, and must be brought witliin the period of three years. Actions for goods sold wholesale do not come within cl. 8, and the question to be determiaed is whether they full under cl. 16, as being suits for which no other limitation is expressly" provided by the Act, or under els. 9 and 10 as being provided for by those clauses. It is clear that a suit brought for non- payment of the price of goods sold by wholesale is a suit for breach of contract. A suit brought for the non-delivery of the very same goods under the very same contract would be a suit for the breach of contract. A suit for the non-acceptance of these same goods under the very same contract would be a suit brought for the breach of contract. Therefore it appears to me that, whether the suit is for the price of the goods, or for the non-acceptance of the goods, or for the non-delivery, it is a suit for the breach of a contract, and falls within ols. 9 and 10, not within cl. 16. Cl. 9 says :—" Suits brought for the breach of any contract, the period of three years from the time when the breach of contract in respect of which the suit is brought first took place, unless there is a contract in writing signed by the party to be bound thereby, or by his duly authorized agent.'' FULL BENCH RULmGS. 911 An action for non-payment of the price of goods sold by wholesale is iges within s. 9, unless the contract is in writing, and the limitation is three ' years. If the contract is in writing, then we must go to el. 10 to see what is the period of limitation. That el. (10) provides that "to suits brought for the breach of any contract in cases in which there is a written engagement or contract, and in which such engagement or contract could have been registered by virtue of any law or regulation in force at the time and place of the execution thereof, the period of three years from the time when the breach of contract in respect of which the action is brought first took place, unless such engagement or ■ contract shall have been registered within six months from the date thereof." In this case, the Judge who referred the case has not found that there was any written contract, and, consequently, assuming that there was no written contract, the case does not come within cl. 10 of the Act. Under these circumstances, the Judge must be informed that the limitation in this case, provided there was no written contract, was three years from the time when the cause of action accrued. The Judge of the Small Cause Court will be told that the Division Bench have decided that he was right in holding that it was a sale of goods sold by wholesale, and that the Full Bench upon that finding have held that three years was the period of limitation under cl. 9, unless there was a written engagement. Lalmohun HOLDAK V. Mahadeb Eaibe. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Bayley, Mr. Justice Seton-Karr, Mr. Justice Phear, and Mr. Justice Macpherson. ABDUL HAYE and otheks (Plaintiffs) ». NAWAB RAJ and others (Defendants).* Suit to set aside Sale — Execution of Decree — Bondfde Purchaser. It cannot be laid down as a general proposition of law that under no circumstances can a sale in execution of a decree be set aside as against a bond fde purchaser for valuable consideration and without notice. In a suit brought to set aside such a sale, it is for the Court to determine whether it will be in accordance with the principles of justice, equity, and good conscience, that the sale qught to be set aside or not (1). Tms was a suit to set aside a sale in execution of a decree which had been obtained against the plaintiff in the Court of the * Special Appeal, No. 2362 of 1866, from a decree of the Principal Sudder Ameen of Bhaugulpore, dated the 15th May 1866, affirming a decree of the Munsif of that district, dated the 28th August 1865. 1868 Jany. 31. (1) See Sheikh Wahid Ali v. Mussamut Jiimayl, 2 B, L. B., F. B., 73. 912 FULL BENCH RULINGS. 1868 Munsif of Beliar in the district of Behar, and which had been sent with Aeddl Hate a requisition for the sale of the property now .in dispute, to the Nawab Kaj. MuDsif of Soorujgurrah in the district of Bhaugulpore. The sum due, liowever, was paid by the judgment-debtor into the Court of the Munsif of Behar on the 14th of January 1851, and an order by that Munsif, informing the Munsif of Soorujgurrah that there was no longer any necessity to sell, was issued. This order, however, reached the latter Munsif after the sale, which was held on the 3rd February 1851. The Court of first instance (the Muusif of Soorujgurrah) held that the money should have been deposited in his Court, and that as the order to stay the sale passed by the Munsif of Behar reached Soorujgurrah after the sale, the plaintiff was not entitled to have the sale set aside. But it was not found as a fact that the money was deposited too late, or that, in the ordinary course of business, the intimation of its deposit could not reach the Court of Soorujgurrah before the sale. The lower Appellate Court dismissed the appeal of the plaintiff on the latter ground, on the authority of the following decisions : — In re Shumboonath Roy (1), In re Chundernath Surma Lushkar {2), In re Nadir Beebee (3), In re Gunga Pershad Dutt (4), Bootan Singh v. Bhugwan Dutt (5), and the cases there cited. These decisions were relied on in special appeal as deciding that under no circumstances in a suit like the present could the sale be reversed. The appeal was heard by Bayley and Pundit, JJ., who, being of opinion that the decisions were not binding, and having doubts as to their correctness, so far as they were supposed to decide the above point, referred the question to a Full Bench " Whether and how far, in a regular suit, claims of a purchaser in execution of decree are to be respected and protected on grounds of his innocence and ignorance." In referring the question, the following remarks were made by Pundit, J. — When a sale is made in execution of a decree, there are certain rules according to which the sale can be set aside summarily; and the present law has definitely settled that when the sale is so reversed, the purchaser, however innocent or injured by the reversal of the sale, has no right to appeal against this reversal. It is, however, provided that when at such a stage a sale is ordered (1) Cairan'aSum, Ca,, 117. (4) Carrau's Sum. Ca., 74. (2) U, 39. (5) S. D. A., 1849, 283. (3) /d,,71. FULL BENCH RULINGS. 913 to be reversed, the purchaser is entitled to get back his purchnse-money, iggs and (if the circumstances of the case justify it) also interest. In abdhl Hate these summary proceeding's the sale, however, cannot be reversed ^^-^^b Raj. upon any other ground but of a material irregularity in carrying out the sale. Besides these summary proceedings, all persons injured by a sale have a right to contest, by a regular suit, the validity of a .sale. In some cases, for instance, a debtor may sue upon the ground of having paid the debt before the sale, or of having been told by the decree-holder that he would not execute the decree for some time, or on the ground of not being indebted for the sura for which the property was put up for sale, but for a smaller sum which lie had offered to give, or upon the ground of the decree against him being reversed in appeal or review : and in every one of these cases there may be no irregularity in the sale itself. We think that in such cases, where it is proved that the decree executed was set aside after sale, or the decree-holder had no right, or had no occasion to cause the sale when it was made, or the property was improperly sold, or hon&fide information of the necessity to post- pone the sale had been given in due form at a reasonable period before the sale, then (irrespective of any accidental delay or fraud in the transmission of the proper instruction to the selling officer) the sale should be set aside, and any objection on behalf of the purchaser as a party separate from the decree-holder, and ignorant of the proceedings of the decree-holder, should not be heard. Again, besides those cases in which reversal of sale is asked on the ground of the money having been paid by the debtor before the sale, there may be cases in which the debtor may ask for reversal, on the ground that the decree-holder promised to postpone the sale, and the debtor relying upon this promise took no steps, and the decree-holder, notwithstanding, fraudulently caused the sale of the property. There may be a case in which payment may be made too late to justify the setting aside a subsequent sale, which would not be prevented by such a deposit ; and in such cases, as in many other regular suits to set aside sales, the question of the propriety or impropriety of reversing the sale will necessarily depend solely upon the consideration of the same circumstances as in the cases on the summary side. But in cases of fraud, like that noticed above, if the fraud of the decree-holder is not to affect the right of the purchasers also, the debtor will be left merely to a suit for damages against the decree-holder. If a purchaser acquires the lights of a decree-holder by purchase to contest iuvalid 914 FULL BENCH KULmGS. jgfig and fraudulent transfers by the debtor, he might equally be affected Abdul Hate with the fraud of the decree-holder, when that has led to the sale asked Kawab Kaj *° ^^ reversed. If a sale took place owing to the neglect of others besides the purchaser, or owing to some accidental delay, why should not, in that case, a Court of Justice have power to reverse the sale, though the purchaser may be perfectly ignormt and innocent ? A purchaser in a sale in execution does not acquire any substantial rights which enable him to stay the reversal of the sale of the pro- perty, as between the decree-holder and the party asking the reversal of the sale. The latter proves that justice requires that the property unnecessarily and unjustly sold, though sold correctly as far as the proce- dure to sell is concerned, should be returned to the owner by such reversal of the sale. Equally, the purchaser has no right to plead his innocence and rights as purchaser, when the decree, in execution of which the sale may have taken place, is set aside. In this case the purchaser has, correctly speaking, no ground to rest his innocence ; for the pro- bability of a decree being reversed by appeal or review is a fact of which the purchaser is legally supposed to be aware. In all these cases the purchaser of course will get back his purchase- money, with or without interest as the case may require, provided it be possible to get back the money from the decree-holder to the extent that he may have taken in realization of his decree. Anything realized over and above that taken away by the decree-holder must always be available, even if taken away by the former proprietor. By Act VIII of 1859, discretion is given to the Courts executing a decree to decide how, in each case of execution, money due to the decree-holder should be ordered to be realized. It is, therefore, evident that the law does leave it absolutely to the decree-holder to decide whether the property of his debtor is to be sold or not, and we do not see why there should be any hesitation in holding that the purchaser, however innocent and ignorant of the facts not disclosed upon the execution case up to the time of sale, has no better right than the decree-holder. Further, if this is not the correct law, it will follow that a decree- holder may cause property of great value to be sold away for a trifling price, or for a price that may not represent the exact value of the property to the proprietor himself according to his value of his own property, even though the consideration of the sale may represent the market'-value of the thing itself ; and when the decree, in execution of which the sale was made, is set aside by appeal or review, the only satisfaction which the successful appellant, who may have been a ivictim FULL BENCH KULINGS. 915 of conspiracy supported by fraud and forgery, can obtain, would be to iggg be told that he has a right to sue for damages against, perhaps, a man Abdul Haye of straw, but that he cannot get back the property sold. Nawab Eaj We do not attach any importance to any argument that may be used on the ground that if sales in execution are held liable to be reversed for faults unconnected with the proceedings of sale, and within the knowledge of purchasers, few persons will venture to purchase, and the result will be a deterioration in price of property sold in execution. In many instances the sale is even now reversed, notwithstanding it being all right iu its proceedings ; and Courts of Justice need not feel much sympatliy for debtors who have property and will not, of them- selves, sell it to pay other debts due from them, but will try their utmost to see if they cannot, one way or another, defer payment till they find that they have been playing a losing game. Proprietors holding estates, and who find it difficult to sell for defect of title, convert Collectors into their agents for sale by falling into arrears of revenue ; but it is not at all the policy of the law that Courts of Justice should become public agents for the sale of private properties which can be sold for better consideration, and on better terms without the intervention of these Courts, notwithstanding the fact that they are attached by orders of Courts. A decree may be satisfied, and by an accident the order to stay the sale may not reach the officer conducting the sale in time to prevent the sale. It may happen that the debtor may settle with the decree-holder that he will not execute the decree at once, and by a fraud of the decree-holder any order to stay the sale may not be taken out in time. Now is it justice to decide that though in such cases the decree-holder had no occasion to sell, still the proprietor is to lose his property because it was sold, and has been purchased by a person who was not cognizant of the fact of the previous satisfaction of the decree. In reversal of sales, when such reversal is sought by regular suits, it may sometimes be difficult to provide for the safe return of the pur- chase-money to the purchaser from the decree-holder ; but it may be fairly provided that the debtor is to pay the whole or a portion of the purchase-money before he shall take back his property, and he may afterwards sue the decree-holder for the recovery of the same. Further, a purchaser in execution is always an adventurer, and knows that his purchase is attended with risk. Nothing is guaranteed to him by the sale, but expressly rights and interests, whatever they may be, and in many cases, where the sale is not set aside, he may often find that he has purchased rights not existing to the extent, or of the kind, 916 FULL BENCH RULINGS. 1868 represented to him by the proclamation of sale, or rights which he finds Abdul Hate to his loss are saddled with heavy liabilities. There will, therefore, be Na-wab Eaj. ^^ great hardship or any injustice if the accident of the purchase- money not being recovered entirely or in part, is added to the list of the numerous risks to which a purchaser in an execution case is naturally liable. The lower Appellate Court quotes In, re Shumboonath Roy (1), In re Chundernath Surma Lushkar (2), In re Nadir Beebee (3), In re Gunga Per shad Dutt (4) and the cases referred to in Bootan Singh v. Bhugwan Dutt (5). But the power of the Civil Court to set aside a sale summarily is limited to irregularities in the proceeding of the sale. The power of the said Courts in regular suits is limited only by justice and equity. We are not inclined to adopt invariably in regular suits for reversal of sales the precedents and rulings appli- cable to summary cases. A purchaser iu execution acquires no right and equities to oppose the reversal of the sale upon any grounds which the decree-holder cannot take, or to oppose, as a matter of right, the reversal of a sale, when a Court of Justice may hold it proper to reverse it. I do not deny that the purchaser has a right to see that all possible precaution is taken to secure to him a return of his purchase-money, with or without interest. In some cases of reversal of sale, it may be proper to hold that the purchaser is not obliged to give mesne profits. We think, however, that the purchaser is not entitled to plead a right to possession under his purchase, od the ground of innocence or ignorance of the previous proceedings of the debtor and the decree- holder, or of the Court executing the decree, preceding the date of his purchase. Mr. C. Gregory for the appellants. Baboos Chunder Madhub Ghose and Nilmddhub Sen for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — The substantial question of law, which has been referred for the decision of the Full Bench, is whether, having reference to the cases mentioned in the order of reference, a bona fide pur- chaser for valuable consideration, and without notice, at a sale in (1) Carran's Sum. Ca., IIT. (4) Carrau's Sum. Ca., 74. (2) Id., 39. (5) S. D. A,, 1849, 283. (3) Id., 71. FOLL BENCH RULINGS. 917 execution of a decree, is protected from having the sale set aside under iggg the present or former law. Abdul Hate We are of opinion that the decisions do not go to the extent of „ "' t, '^ " Kawab Raj. saying that, under no circumstances, can a sale be set aside as against a purchaser. In each case it will be for the Court which tries the case to determine whether it will be in accordance with the principles of justice, equity, and good conscience, that the sale ought to be set aside or not. Each case must be determined by the Court upon its own merits. This case will, accordingly, go back to the Division Bench which referred it, with our opinion that it is not bound by the decisions referred to. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Seton-Earr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Hobhouse, KOOLDEEP NAKAIN SINGH and others (Judgment- debtors) v. LUCKHUN 1863 SINGH (Decree-holder).* Feby.3. Special Appeal — Order under s. 257, Act Vlll of 1859. No special appeal will lie from the decision affirming or reversing an order under s. 257 Act VIII of 1859 confirming a sale. Jackson, J., dissented. This special appeal was preferred against an order of the Zilla Judge on appeal under s. 257 of Act VIII of 1859. At the hearing, the Court (L. S. Jackson and Hobhouse, JJ.), having doubts as to the correctness of the dictum in the Full Beuch decision in the case of Mahomed Hossein v. Sheikh Afzul AH (I), referred to a Full Bench the question whether a special appeal will lie from the order of a lower Court passed on appeal under s. 257 of Act VIII of 1859. The question was referred with the following remarks by L. S. Jackson, J. — A preliminary objection is taken to the hearing of this appeal on the ground that under a ruling of a Full Bench in the case of Mahomed Hossein v. Sheikh Afzul Ali (1), a ruling which has since been followed in several instances by Division Benches of this Court, a special appeal will not lie. I was one of the Judges who formed tiie Full Bench on the occasion when the case referred to was decided, * Miscellaneous Appeal, No. 17 of 1867, from an order of the Judge of Patna, dated the 22nd December 1866, affirming an order of the Principal Sndder Araeen of that district, dated the 11th August 1866. (1) Post, App., 1. 72 918 FULL BENCH RULINGS. 1868 *ii6 opinions of the Full Bench were as follows : — Peacock, C,J. (Baylet and Macpheeson, JJ., concurring). — In the first case (No. 890) certain plaintifis sued to enhance the rent of their estate. It ^does not appear what their respective interests in the estate were. But it appears that they failed in the suit, and were rendered liable for costs. But unless we know the extent of their respective interests in the estate, we cannot say in what proportion as between themselves they were each liable for those costs. One of the persons, however, against whom the decree was passed for costs, unknown to the others, purchased the benefit of that decree against himself and the others in the name of a third person benami, and then he attempted to issue execution against the others for the whole debt which was due from him and them jointly. The Judge held that he had a right to issue that execution. It is unnecessary for me to go through the several decisions of the Division Bench upon the subject. The last decision was this, that the party who purchased the decree had a right to issue execution against the others : but finding that the decision of Musst. Kishen- kaminee Chowdrain v. Mohima Chunder Roy (1) under which one of several judgment-debtors purchasing a decree against him- self and others was declared entitled to execute it against the others only after deducting his own share of the liability, and only to the extent of the respective liabilities of each of the other debtors, the Division Bench referred the case to a Full Bench. Under s. 208, Act VIII of 1859, the assignee of a decree has a right to issue execution if the Judge think it just and proper that he should be allowed to do so. The question then arises, whether it is proper to allow one of several debtors, who has purchased a decree against himself and the others, to issue execution against his co-debtors, and recover from them the whole amount ? The case not being provided for by any specific rule, it becomes necessary for the Court, under Eegulation III of 1793, to decide the Cl) 2 Hay, 459. FULL BENCH RULINGS. 941 cnse according to the prinoiplea of justice, equity, and good conscience. igcg Tlie Court muat therefore decide whether it is according to tiie princi- Tn t^k pies of justice and equity and good conscience to allow one of several rHK™.TiTU3K debtors under a decree to pnrchnse the decree, and levy the whole *"' Diqumbu- RKK DaBEK. amount against his co-debtors. If he could do so, one of nine several . In thk debtors, liable amongst themselves to pay eight-ninths of a debt, matter of might purchase the whole debt for one-ninth of the amount of it. ^of Soroop'* If he could buy tiie whole or even eight-ninths vrhen he had paid only Chundbk one-ninth as the purchase-money for the decree, instead of having to pay eight-ninths, he would pay one-ninth and put eight-ninths into his pocket, and by that means be a gainer of seven-ninths by the transaction. That would not be according to the principles of justice, equity, and good conscience. Now, having to administer equity, justice, and good conscience, vrhere are we to look for the principles which are to guide us ? We must go to other countries where equity and justice are administered upon principles which have been the growth of ages, and see how the Courts act under similar circumstances; and if we find that tlie rules which they have laid down are in accordance with the true principles of equity, we cannot do wrong in following them. If the decree had not been sold, the judgment-creditor might, in his discretion, have executed it against the debtor who has now purcliased it. Baboo Sreennth Doss, who argued this case very ably for the appellants, referred to Story's Equity Jurisprudence (1), and cited many cases to show tliat if a man, being one of several debtors, takes an assignment of a debt, he by so doing discharges the debt. There are also one or two other cases wliich were not referred to by Baboo Sreenath Doss. One is the case of Reed v. Norris (2) in which a son being indebted to his father upon a bond for £1,000, and in- terest, subsequently joined his fatiier as surety in a bond to Lord Vefnon for £500 and interest. A memorandum was endorsed upon the bond for £1,000, by which it was agreed between the father and son that the son should not be called on to pay the principal sum of £1,000, until the father should have paid all principal money and interest due on the bond for £500. The son compromised the claim of Lord Vernon's executors on the bond for £500, and the question was whether the son's executors could set off the whole of that debt against the bond. Lord Cottenham said : — " The question is how far the (1) Paras. 499 (i), (c) and (rf). (2) 2 M, i C, 361, see p. 374, 75 942 FULL BENCH RULINGS. I86R representntires of the son, the surety, having come to an arrangeitient In the ' with Lord Vernon's executors, by which the bond for £500 lias been got THP* Petition "dof nnd discharged, are entiiled, as ngainst the father's estate, to demand OF DiGUMBu- naore than they have actually paid to Lord Vernon's executors in RKE Dabice. ^ J r exoneration of the liability of the son's estate upon the bond for £500. MATTER OF Now, if there had been no authority upon this subjeci, I should OF Soiioop have found very little difiBculty in making a precedent for deciding Hazea" that, under these circumstances, the surety is not entitled to demand more than he has actually paid. I take the case of an agent. Why is an agent precluded from taking the benefit of purchasing a debt which his principal was liable to discharge ? Because it is his duty, on behalf of his employer, to settle the debt upon the best terms he can obtain; and if he is employed for that purpose, and is enabled to procure a settlement of the debt for anything less than the whole amount, it would be a violation of his duty to his employer, or at least would hold out a temptation to violate that duty, if he might take an assignment of the debt, and so make himself a creditor of his employer to the full amount of the debt which he was employed to settle. Does not the same duty devolve on a surety ? He enters into an obligation, and becomes subject to a liability upon a contract of indemnity. The contract between him and his principal is, that the principal shall indemnify him from whatever loss he may sustain by reason of incurring an obligation together with the principal. It is on a contract for indemnity that the surety becomes liable for the debt. It is by virtue of that situation, and because he is under an obligation .13 between himself and the creditor of his principal, that he is enabled to make the arrangement with that creditor. It is his duty to make the best terms he can for the person in whose behalf he is acting. His contract with the principal is indemnity. Can the surety then settle with the obligee, and instead of treating that settlement as payment of the debt, treat it as an assignment of the whole debt to himself and claim the benefit of it as such to the full amount, thus relievino' himself from the situation in which he stands with his principal, and keeping alive the whole debt ? " Applying the principle of that case to the present, let us see how it stands. In that case the surety could only recover the amount which he had actually paid. But in this case one of several co-debtors having paid less than the full amount of the debt seeks to recover the full amount of the debt from the others. At most, he is entitled only to an equal proportion with other debtors of the amount which he paid to get rid of the debt. FULL BENCH RULINGS. 943 The other case is Dowbiggen v. Bourne (1), which I think, is almost jggg a stronger case thaa the otlier. A, and B, as his surety, haviug given a liTl^HK ioint and several promissoiy note to C, the latter brought separiite '*"*'^tbh of •I r J J SI" THE PkTITIOS actions against A and B upon the note, and recovered judgment in both °^ Digumbu- . . .JO ^jjjjj Dabkb. actions. C afterwards issued execution upon the judgment obtained against B, whei'eby B was compelled to pay the whole debt and costs, matter of Upon a bill filed by the administratrix of B for the purpose of obtaining ^"^ So,"o'°^ an assignment of the judgment which had been recovered against A, the Chunder H.iZUA. principal debtor, it was held that such judgment, not being available at law in the hands of the creditor, was not available in equity in the hands of the surety, and consequently that the Court could not compel an assignment as sought by the bill. Alderson, B., in giving judgment in the case, said : — " I expressed my opinion on the hearing of this case that the plaintiff could not derive any benefit from the assignment of the judgmeut against Cawthorne ; and that, supposing that to be the case, there was not any ground for the interference of a Court of equity to decree that assignment. The question I desired an opportunity to consider was whether, under the circumstances, there would be any remedy at law, supposing an assignment of the judgment were actually executed to the executors of Mr. Dowbiggen. It is quite clear from the authorities, that a surety who pays the debt of the principal debtor is entitled to tlie benefit of all those securities which the creditor himself could render available against the principal debtor. That point was, in efiect, determined by Chief Baron Alexander on the argument of the demurrer in this case ; and I cannot help regretting that he did not then dispose of the question of law which is now raised, and which was as ripe for discussion seven years ago as it is at the present time. In this case the assignee, if he obtain an assignment of the judgment, must necessarily proceed in the name of the assignor to enforce that judgment. Now, what are the facts of the case? A joint and several promissory note was entered into by Cawthorne and Dowbiggen as his surety. The note when due was not paid, and the payee of the- promissory note brought an action, and obtained judgment for the full amount of the note and interest against Cawthorne, the principal debtor ; for I think it is fully established that Cawthorne was the principal debtor. The holder of the note, having obtained this judg- ment against Cawthorne, finding that it was not likely to be made available, brought another action, as he was entitled to do, against Dowbiggen, the surety, and recovered judgment against Dowbiggen (I) 2Y. &C., 462. 944. FULL BENCH RULINGS. 1868 '°'" *'''^ nmount of the note and interest. Dowbiggen paid the amount In the ^^ the principal money and interest due on the note and the costs of MATTKKOF j]^g actioH against him, and the holder of the note having been thus THK Petition " OF DiGUMBu- sfttisfled tiie whole of the principal money and interest, had no further KEB DaBKK. claim, except perhaps in respect of the costs of the action against MATTER OF Cawthorno, and if he had afterwards ventured to proceed on the judg- ' OF SoRoop*'' '"®°' against Cawthorne, the Court of King's Bench, in which the Chundkr judgment was recovered, would liave interfered in a summary manner to stay proceedings on the judgment, except for these costs. Tlie whole effect, therefore, of assigning the judgment to the plaintiff would be to give her that wliich would be wholly useless, except for the purpose of recovering the costs of the action against Cawthorne, and to which, as administratrix of Dowbiggen, she could not possibly have any right. And that it had been felt that she had no such right was evident from the tender to the defendants, tlie Bournes, of tliose costs. The case in substance is not distinguishable from the case (1) before Lord Eldon, in which he says that if a bond is given by principal and surety, and at the same time a morigage is made for securing the debt, the surety paying the bond has a right to stand in the place of the mortgagee ; but that if there is nothing but the bond, the surety, after discharging it, cannot set it up against the principal debtor. It appears to me that any assignment of the judgment would be entirely useless; and, therefore, under the whole of the circumstances, I think the bill must be dismissed ; but as the Bournes might, I think, readily have given to Mrs. Dowbiggen what she required, though it was perfectly useless, I think the bill must be dismissed against them without costs. Tliere is no ground or pretext for making tlie surety pay the costs of the principal : the bill must therefore also be dismissed without costs against the defendant Cawthorne." It appears to me tliat this case shows clearly that, if one debtor satisfies the judgment-debt, and takes an assignment of it, he cannot enforce it by execution, or in any way, against his co-debtors. His only remedy is to sue them for contribution, and to compel them to pay him their shares of the amount for which the decree was purchased, having regard to the proportion in which they were bound, inter se, to satisfy the original decree. It is said, if you do not allow the plaintiff to execute this decree, you will put him to all the inconvenience of insti- tuting a regular suit for contribution. But suppose you do allow him to execute it, you will force the defendants to sue for contribution. (1) Copis V, Middkton, Turn & Kuss, 231. FULL BENCH RULINGS. 945 It appears to mn tJiat that certainly would be a very inconvenient course, isgg and would lead to a multiplicity of actions, wliicli tlie law abliors. In the It appears to me, upon tlie general principles of equity, that tlie xHE^PEriTioir debtor in tliis case having taken an assignment of the judgment, was of Dioumbu- not entitled to enforce it by execution against his co-debtors. In the Then the question arises, what is to become of the sale which has matter op ^ T FT P* P K T ITT I O S taken place under the execution ? We ore asked whether tlie sale ^p, soroop ouo'lit to be reversed. It appears to me that the creditor who obtained Ch"k"=b the execution ought not to have the benefit of the moneys realized from the sale under that execution. But whetiier tlie sale is to be reversed, so as to deprive the purchaser under the execution of the benefit of that which he has derived from his purchnse, is another question. That is a question which the Court could not decide in tlie appeal under s. 256. All that the Court could decide under that section was whether the sale could be set .iside upon the ground of an irregularity in publishing or conducting tlie sale, not whether execution was granted after the judgment had been satisfied. Further, it appears to me that an appeal, under s. 11, Act XXIII of 1861, against the order for execution, would not affect a purchaser at a sale under the execution, inasmuch as he was not a party to the proceedings. The only way to raise the question between the co-debtors and the purchaser is by a regular suit. Whether the sale can be reversed, as against the purchaser, cannot be decided in this appeal, and we express no opinion upon it. The case must go back to the Division Bench which referred it for final decision. The same principles apply to case No. 854, which is the case of a surety. The last case will go back to the Division Bench which referred it. Seton-Karr, J. — I am of the same opinion. I was one of the Judges who passed the decision, in Musst. Kishenliuminee Chow- drain V. Mohima Churn Roy (1), already quoted. On that occasion it appears to have been assumed or admitted without argument that the decree was perfectly capable of execution in some way or other, and the only point that we decided was that, when one of several judgment- debtors purchased the decree, he could not, in execution thereof, realize from any one of them the whole of the debt minus his own share, but tliat he was, at the most, entitled to recover from each of them his (1) 2 Hay, 459. Hazua. 946 FULL BENCH RULINGS. 1868 particular quota of contribution to the common debt. After hearing jj, ^.jjj, tlie arguments, I am now prepared to go still further tlian the above MATTKKOF dgcisiou, which appears to me correct as far as it goes, and on the THB Petition > rf o » OF DiouMBu- particular point then raised before us ; and I am now prepared to say KBB Dabek. that the decree, under the circumstances, when purchased by one MATTER OF co-dcbtor, ought not to haye been executed at all, and that the only '^ofSoroop"* '"snisdy of the debtor-purchaser was to proceed against his co-debtors iu Chundek a regular suit for tlieir shares of tlie coatiibutiou to tlie common debt. I tliiuk a decision to this effect, shutting out the execution of the decree altogether, and declaring the debt extinguished as far as the original decree-holder was concerned, is one consonant to equity, to public policy, and to that which should be the aim of our Courts, namely the avoidance of multifarious aud harassing litigation. As regards the purchaser who is not properly before us, I also concur ia the conclusions arrived at by the learned Chief Justice. Phbar, J. — I agree so entirely with the judgment of the Chief Justice, that I do not propose to add anything to it, except so far as to say this, that it seems to me that a money decree may be treated simply as an order of the Court, as between the parties, directing that the one parity shall pay to the other a certain sum of money. Execution is merely a process provided for the purpose of securing obedience to this order. Therefore as soon as payment has been made by the person ordered to pay, there is iu one sense an end of the decree, and no further execution can be taken under it. I do not think it necessary to go further than that. If that is so, then the moment one of the joint judgment-debtors in the case before us, who was himself bound to pay the whole debt, did satisfy the judgment-creditor by purchasing the decree, — and as regards this result, it does not matter how many hands the decree had previously gone through, — the whole object of the decree was fulfilled, and process of execution ought not to have issued. It is another question how the judgment-debtor, who has in this way satisfied the judgment-creditor, is to get reimbursed by his co-debtors in the event of their declining to do so without compulsion. The obvious course for liim to take is to bring a suit against them collectively for conlribution. FULL BENCH RULINGS. 947 Before Sir Sarnes Peacock, Kt, Chief Justice, Mr. Justice Bnyley, Mr. Justice Seton-Karr, Mr. Justice Phear, and Mr. Justice Macpherson. RADHA BINODE CHOWDHRY (Plaintiff) v. BIGUMBUREE DOSSEE ]8e8 AND OTHERS (DEPENDANTS).* Feby. 3 NUND KISHORE DOSS MOHUNT (Defendant) v. THE MAHARAJA OF BURDWAN (PLAINTIEF.)t Act VIII of 1859, s. 119— ^c« X of 1859, s. 5%—Ex parte Decree, Application to set aside. Process for enforcing judgment is executed within the meaning of s. 119 of Act VHI of 1859 and s. 68 of Act X of 1859, when an attachment of the property of the defendant has taken place : and any application by the defendant under those sections to set aside an ex parte decree, must he made within thirty and fifteen days respectively from the date of the attachment (1). In the first of these cases, a question arose before the Division Bench which heard it (Bayley and Pundit, JJ.), as to the time or act- from which the period of thirty days allowed to a defendant, under s. 119 of Act VIII of 1859, to apply to the Court to set aside an ex parte decree against him, is to be calculated. The learned Judges, referring to the decisions in the cases of Kanhye Doss v. Nobin Chiinder Chowdhry (2) and Radha Binode Ohowdhry v. Modhoo Soodun Sircar (3), observed that they materially differed from each other as to the last date for such application, viz., as whether it were from the date of sale or from the date of other process in execution. They accordingly referred the question to a Full Bench. In the second case, the plaintiff, in execution of an ex parte decree under Act X of 1859, applied for attachment and sale of the defendant's property. On the day of sale, the defendant presented two petitions ; one to the Deputy Collector (the Court which was executing the decree) objecting to the regularity of the sale proceedings, and the other to the Collector (the Court which passed the ex parte decree) praying for a new trial on the ground that he had no knowledge of the * Special Appeal, No. 224 of 1867, from a decree of the Additional Principal Sudder Ameen of East Burdwan, dated the 18tb September 1866, reversing a decree of the Munsif of that district, dated the 24th February 1866. t Miscellaneous Appeal, No. 317 of 1867, from a decree of the Collector of East Burdwan, dated the 6th April 1867. (1) See Boro Khasia v. Jala Sirdar, 8 B. L. R., (2) 6 W. E. , Act X, 54, 78 ; and Act IX of 1871, Sch. ii, No. 157. (3) 7 W. K., 198. 948 FULL BENCH RULINGS. jggg suit. The Collector refused the ap|)lic«tion for a new trial, under s. 58 Radha °^ -^^^ -^ "^ 1859, as more than fifteen days had elapsed since the KiNODE attiichment of the defendant's property. Chowuhuy c f j V. Against the order of the Collector, the defendant appealed to the DossEE. High Court (L. S. Jackson and Hobhouse, JJ.), and contended on the jj~^ authority of Radha Binode Chowdhry v, Modhoo Soodun Sircar (1), ' that the per date of sale. KisHOKE Doss tijat the period for making the application must be counted from the MOHUST ' o rr The Maharaja op The learned Judges, however, doubted tlie correctness of that ruling, UKLiwAN. ^i^j expressed their opinion that, as soon as execution of some process or writ against the defendant had apprised him of the fact of tiie ex parte decision, he was bound thereupon to apply to tlie Court within fifteea days for a new trial ; and they cited the cases of Boido Nath Roy v. Brojo Kissore Chuckerbulty (2), Shih Chunder Bhadoory v. Luckhee Debia Chowdhrain (3), and Shaikh Golam Ahyah v. Sham Soondur Koonwarree (4) as supporting their view of the law. But as the case had not been fully argued before them, and as in the first case the same question had been referred for the decision of a Full Beach, they referred the present case also to a ITull Bench. The two cases were heard together. Baboos Mohesh Chunder Chowdhry and Mohini Mohun Roy for the appellant in the first case. Baboo Bamachurn Banerjee for the respondents. Baboo Umbica Churn Banerjee for the appellant in the second case. Baboos Juggodanund Mookerjee and Chunder Madhub Ghose, and Mooushee Ameer Ali for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — We are of opinion that, in cases falling under s. 119 of Act VIII of 1859, the application must be made within a reasonable time, not exceeding thirty days after process for enforcing the judgment has been executed. The question is, what is the mean- ing of the words " within thirty days after any process for enforcing the judgment has been executed ;" whether they mean, in the cases of property attached, within thirty days after the sale, or simply within thirty days after the attachment ? (1) 7 W. R., 198. (3) 6 W. R., Mis., 21. (2) 2 W. K„ Act X, 15. (4) 7 W. K., 37b. FULL BENCH RULINGS. 94,9 Kemp and Markby, JJ., have held that they mean within thirty ^ggg days after the property has been actually sold (1). If the time runs eIdhI from actual sale, I apprehend that they must run from the date of C]?™"^'" coufii'mation of sale ; for, until it is confirmed, there is no actual bind- «'■ . . DlOUMBtTKEB ing sale of the property in execution. Dossee. The case which is provided for is the case of decrees passed against Nund a defendant ex parte, and the object of the Legislature seems to have do^' Mohunt been to take care that, in the case of an ex parte decree, the party „"• against whom it is passed may have an opportunity of showing that Maharaja op he had no notice of the suit. The Legislature have fixed thirty days ^^ "' after process for enforcing the judgment has been executed. The Legis- lature provided that, before an ex parte decree should be given, the Judge should be satisfied that the defendant had been served with a sum- mons. S. Ill says : — " If the plaintiff shall appear in person or by a pleader, and the defendant shall not appear in person or by a pleader, and it shall be proved to the satisfaction of the Court that the summons was duly served, the Court shall proceed to hear the suit ex parte." The Court cannot pass an ex parte decree against a defendant until it is satisfied that the summons has been served, and it is only to provide for the contingency of the Judges being satisfied that the summons has been served when it has not been served, that this provi- sion is made for the defendants coming in and asking to have the ex parte decree set aside. If the plaintiff makes a false representation, he would be liable to punishment for perjury, or the fraud would itself vitiate the decree, and the other party might, on the ground of fraud, come in at any time to set aside the decree. But where a defendant is not served with a summons, he may not know of the decree. The first notice he may have of it is when his property is attached in execution. S. II 9 was to provide against the contingency of the defendants not being served with a summons, and it allows him to come in to set aside the judgment within thirty days after process for enforcing it has bean executed. By s. 232 it is provided : — " If the decree be for money, and the amount thereof is to be levied from the property of the person against whom the same may have been pronounced, the Court shall cause the property to be attached in the manner following." If the property consists of lands, houses, or other immoveable property, the attachment is to be made by a wriitten order prohibiting the defendant from alienating the property by sale, gift or any other way, and all persons (1) In Badha Binode Chowdkry v. Modhoo Soodun Sircar, 7 W. E., 198. 76 950 FULL BENCH RULINGS. 1858 from receiving the same by purchase, gift or otherwise ; see s. 235. radha When that- notice has been given, the process of attachment has been CHowDmiT executed. That is one process of execution. The plaintiff who ^ "■ executes the process is not to sell. S. 248 declares that " sales in DiGUMBUKEE '• DossEB. execution of decree shall be conducted by an officer of the Court, NuMD or by any other person whom the Court may appoint." Dobs' MoHUNT ^^ appears to us, therefore, that, as soon as the property has been „"• attached under the warrant of the Court, directing the bailiff to attach Maharaja of jt in execution, there has been a process of execution completely executed, and the party wisning to have the ex parte decree set aside must come in withia thirty days from that time. If he is entitled to wait until thirty days after the sale has been actually confirmed, then let us see what time he will get. By s. 246 it is enacted :— " In the event of any claim being preferred to, or objection offered against, the sale of lands, or any other immoveable or moveable property which may have been attached in execution of a decree, or under any order for attachment passed before judgment, as not liable to be sold in execution of a decree against the defendant, the Court shall, subject to the proviso contained in the next succeeding section, proceed to investigate the same with the like powers as if the claimant had been originally made a defendant to the suit, and also with such powers as regards the summoning of the original defendant as are contained in s. 220." He might be occupied six months (more or less) doing that. Then he is to proceed under s. 248, and after that there must be a proclamation under s. 249, and the sale cannot take place until after thirty daya from the date of proclamation. Under s. 256 before the Court can confirm the sale, thirty days are allowed for application being made to the Court to set aside the sale on the ground of irregularity ; and if no such application be made, the Court shall pass an order confirming the sale. So that the party gets thirty days after proclamation, and thirty days after the sale, before confirmation can take place, in addition to any time occupied in conse- quence of claims to the property. Then, in addition to that, under s. 256, he may come in and represent that there was an irregularity or any other matter, and thus occupy the Court for a considerable time • ,j,, ^ and then, if the construction contended for is correct, he is to have -r!' thirty days in addition to all this. In the order of reference in case No. 317, L. S. Jackson, J., has stated the point so clearly that we cannot do better than give his own words. He says:— "If we were to hold otherwise, it would follow FULL BENCH RULINGS. 951 that the defendant might raise, successively, a number of objections to the proclamation, or to the sale of his property, and contest these questions in every stage ; and finally, when tiie decision had been given against him, and the sale was confirmed, he might then turn round and, under s. 58, claim a new trial. It appears to me that the Legislature cannot have intended that ; but that, as soon as execution of some process or writ against the defendant had apprised him of the fact of the decision, he is bound thereupon to apply to the Court within fifteen days for a new trial." It appears to us, therefore, that process of execution is executed, within the meaning of s. 119, when an attachment of the property takes place, and that if the party means to contest the validity of the decree, on the ground that he had no notice of the summons, he must come in within thirty days from that time in cases under Act VIII of 1859, and within fifteen days in cases tried under Act X of 1859. Both cases will go back to their respective Division Benches for final determination, together with this expression of our opinion. 1868 Eadha BiNODE Chowdhry V. DlGUMEUEEE DOSSEE. Nhnd KiSHOKK Doss MOHUNT V. The Maharaja of BciKDWAN. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Phear, and Mr. Justice Macpherson. NASSIR V. CHUNDER and others* Cumulative Sentence — Whipping — Criminal Procedure Code (Act XXV of 1861 J, ■ s. 46 (X)^Act VI of 1864 (2). When a Magistrate, in exercise of the powers conferred by b. 46 of the Criminal Pro- cedure Code, passes a cumulative sentence against a person convicted at one and the same time of two or more offences punishable under the Indian Penal Code, Held per Peacock, C.J., and Phear and Seton-Kare, JJ., that he cannot, in addition to the penalties prescribed by the Penal Code, sentence the prisoner to whipping under A.ct VI of 1864, nor can he exceed twice the extent of his ordinary jurisdiction as defined by s. 22 of the Crimin al Procedure Code (3). Eeld further, per Seton-Kaee, J., that in the case of hardened offenders a Magistrate can award whipping in addition to the maximum of imprisonment which he is compe- tent to award (4). ficM per Macpherson and Jackson, JJ., that the Magistrate may in such case, in addition to awarding double the punishment which may be awarded for a single offence, award the punishment of whipping; but only one whipping can be awarded. The following judgments were delivered in this case by the Full Bench (5) : * Reference to the High Court, by the Sessions Judge of Mymensingh, under Circular Order No. 17, dated the 17th June 1863. (1) See Act X of 1872, s. 314. (4) See The Queen v. TJdai Patmh, 4 (2) Ss. 8, 11, and 12 of Act VI of 1864 are B. L. R ,A. Cr., 5, and The Queen v. Banda repealed by s. 2, Act X of 1872. Ss. 11 and Ali, 6 B. L. E., App., 95. 12 being re-enacted with some modifications (5) The referring order in this case not by S3. 312 and 313 of the latter Act. having been found, the judgments of the (3) But see Manwuddin v. Gow Chandra Full Bench are alone printed. Shamadar, 7 B. L. K,, 165. 1868 March 12. 952 FULL BENCH RULINGS. 1868 Nassir V. Chundek. Macpheeson, J.— This case has been sent to a Full Bench by a Division Court, before whom it came when sitting as a Court of Kevi- sion. As we, unfortunately, do not agree in the view we take of the point referred, it becomes necessary for me to express my opinion first. The question is what is the maximum of punishment to which a Magistrate of a district can legally sentence a person convicted at one time of two or more offences punishable under the same or different sections of the Indian Penal Code? S. 46 of the Criminal Procedure Code enacts that it shall be lawful for the Court to sentence such person for the offences of which he shall have been convicted to the several penalties prescribed by the Indian Penal Code, which such Court is competent to inflict ; " such penalties, when consisting of imprisonment, to commence the one after the expiration of the other Provided that, if the case be tried by a Magistrate, the punishment shall not in the aggregate exceed twice the extent of punishment which such Magistrate is, by his ordinary jurisdiction, competent to inflict." S. 22 prescribes the extent of punishment which a Magistrate was, at the time of the pass- ing of Act XXV of 1861, by his ordinary jurisdiction, competent to inflict, — " imprisonment of either description not exceeding the term of two years, including such solitary confinement as is authorized by law, or fine to the extent of Rs. 1,000, or both imprisonment and fine in all coses in which both punishments are authorized by the Indian Penal Code." When the Code of Criminal Procedure became law, whipping was not a punishment which could be awarded under the Penal Code. Subse- quently, however, Act VI of 1864 was passed, and the punishment of whipping was thereby authorized in certain cases. The question arises whether, in cases in which whipping may be awarded under Act VI of 1864, whipping can be said to be one of the penalties prescribed by the Indian Penal Code, which the Magistrate is competent to inflict within the meaning of s. 46 of the Criminal Procedure Code ? I thiuk it is one of these penalties. The preamble of Act VI of 1864 declares that "it is expedient that in certain cases offenders should be liable, under the provisions of the Indian Penal Code, to the punishment of whipping ;'' and s. 1 declares that, " in addition to the punishments described in a. 53 of the Indian Penal Code, off'euders are also liable to whipping under the provisions of the said Code." Beading the preamble and this 1st section together, it appears to me that their effect is this, — that s. 53 of the Indian Penal Code must be read as if whipping were mentioned in it as one of the punishments FULL BENCH RULINGS. 953 to which offenders are -liable under the provisions of the Code, and that all whipping under Act VI of 1864 is to be deemed to be whipping under the provisions of the Indian Penal Code. The Whipping Act is not very clearly expressed. But this appears to me the only mean- ing that can be attached to the words " under the provisions of the Indian Penal Code," which occur in the preamble and the 1st section. The 2nd section specifies the offences for which whipping may be awarded in lieu of any other punishment. It is as follows : — " Whoever commits any of the following offences may be punished with whipping in lieu of any punishment to which he may for such offence be liable under the Indian Penal Code, that is to say," &c. The effect of these words I understand to be that the sections men- tioned in this 2nd section are to be read respectively as if words J;o this effect had been added to each, " or in lieu of such punishment (or punishments), the offender may be puaished with whipping." It is argued that as this 2nd section says that whipping is to be in lieu of any punishment to which the convict may be liable under the Indian Penal Code, it is clear that tlie whipping itself cannot be under the Indian Penal Code. But it appears to me that " any punishment" must be read as "any other punishment :" and that this was the inten- tion of the framers of the Act is showa by s. 3, in which, under precisely similar circumstances, the word " other " occurs. Moreover, I have said that I consider that by reason of the preamble and the 1st section, all whipping under Act VI of 1864 is to be deemed to- be whipping under the Penal Code ; and, if I am right in that opinion, then the whipping under s. 2, as well as under the other sections of the Act, must be deemed to be under the provisions of the Penal Code. On the whole, I think that whipping is one of the penalties prescribed by the Penal Code within the meaning of s. 46 of the Criminal Proce- dure Code. Then is it a punishment which a Magistrate is competent to inflict ? At first I had doubts on this point, the powers of a Magistrate being defined in s. 22, and whipping not being one of the punishments there mentioned. But it appears from s. 8 of Act VI of 1864, that a Magistrate of a district has the power to punish with whipping ; for, unless the Magistrate was intended to have that power, it would have been quite unnecessary to enact that " no sentence of whipping shall be passed by any officer inferior to a Subordinate Magis- trate of the first class, unless he shall have been expressly empowered by the Local Government to pass sentences of whipping." The exclusion of inferior Magistrates from the exercise of the power would 1868 Kassik V. Chundek. Qoi FULL BENCH RULINGS. 1868 seem to import the possession of the power- by superior Magistrates. Nassir As a Magistrate may pass a sentence of whipping, and as a sentence Chunder, of whipping under Act VI of 1864 is to be deemed a sentence passed under the provisions of the Penal Code, I think, further, that whipping is a punishment which a Magistrate is (in the words of s. 46), "by his ordinary jurisdiction, competent to inflict ;" that is to say, I think that a Magistrate is, by his ordinary jurisdiction, competent to sentence not only to the punishments mentioned in s. 22 of the Criminal Proce- dure Code, but also to whipping, either as the only punishment, or as an additional punishment, as provided in Act VI of 1864. What, then, is the greatest amount of punishment which a Magistrate can award without exceeding "twice the extent of punishment which he is, by his ordinary jurisdiction, competent to inflict ?" There is no doubt that in cases of convictions at the same time of two or more offences punishable by imprisonment and fine, the Magistrate has power to sentence, in the whole, to four years' imprisonment and fine, with one year's additional imprisonment if the fines are not paid. But it is more difficult to say what is the limit in cases in which whipping has been awarded. According to the literal interpretation of s. 46 of the Criminal Pro- cedure Code, a Magistrate (in the view I take of his powers) might sentence, upon several convictions at the same time, to four years' imprisonment with fine, and another year's imprisonment in lieu of pay- ment, and two whippings : for s. 46 says only that " the punishment shall not in the aggregate exceed twice the extent of punishment which such Magistrate is, by his ordinary jurisdiction, competent to inflict. " But these words of s. 46 must be read with the provisions of Act VI of 1864; and under that Act it appears to me that in no case can more than one sentence of whipping be passed. Such a thing as double whip- ping is not contemplated by Act VI of 1864. This appears to me from the general tenor of the whole Act, and is shown more especially by the 9th, 10th, and 11th Sections, whicli provide that, when whipping is awarded in addition to imprisonment, the whipping shall be inflicted immediately on the expiry of fifteen days from the date of the sentence, or (in the case of an appeal having been made) immediately on the receipt of the order of the High Court confirming the sentence, that " in no case, if the cat-of-nine-tails be the instrument employed, shall the punishment of whipping exceed one hundred and fifty lashes, or, if the rattan be employed, shall the punishment exceed thirty stripes," and that "no sentence shall be executed by instalments." "With these provisions in the Act, and in the absence of any indication of an FULL BENCH RULINGS, 955- intention that a man should be liable to be sentenced at one time to more than one whipping, I am of opinion that under s. 46 only one ■whippping can be awarded. But although I think a Magistrate would be acting within the letter of the law in passing a sentence, amounting in all to four years' imprisonment with whipping, and a fine of Es. 1,000, or an additional period of imprisonment for one year, in my opinion he would not exercise his discretion wisely in passing such a sentence on any person who had not previously been convicted of the like offence. For it may be very much doubted whether it was the intention of the Legisla- ture to authorize whipping in the case of a second offence, except when the ordinary punishment had been tried and failed ; or, in the case of a first offence, if whipping was to be accompanied by imprisonment under a simultaneous sentence. The punishment of whipping for a first offence is one which recommends itself not only from its deterrent qualities, but from this, that it does not expose the offender to the risk of contamination and demoralization, which he necessarily incurs if sent to prison. The latter object is defeated, if one who has not previously been convicted (using the term in the sense of being convicted before the commission of the offence for which he is about to be punished) is sentenced to imprisonment as well as whipping. The Whipping Act is one in the construction and carrying out of which many very difficult questions arise : and it is impossible to warn Magistrates and other officers sufiiciently strongly to be cautious and moderate in acting under it. ' In no case can a Magistrate be justified in passing a sentence of whipping, if he has any doubt as to his legal competency to do so. The answer which I would give to the question put to us is : — A Magistrate is competent to sentence a person convicted at one time of two or more offences punishable under the same or different sections of the Indian Penal Code to imprisonment for four years with whip- ping, and to fine amounting to Rs. 1,000, or, in default of payment, to a furtlier period of imprisonment not exceeding one year. This would be the maximum aggregate punishment which any Magistrate could pass under s. 46 of the Criminal Procedure Code. Phbae, J. — The punishment of whipping is given by Act VI of 1864. It seems to me, upon consideration of the preamble and the words of the lat section, that the Legislature in passing that Act intended to make the punishment of whipping to be read thenceforth as if it had been included among the punishments prescribed by the Indian Penal Code. 1868 Nassiu V. Chunbisb. 956 FULL BENCH RULINGS. X868 The preamble is in these words : — "Whereas it is expedient that, in nIssir certain oases, offenders should be liable, under the provisions of the Chuhdeb. Indian Penal Code, to the punishment of whipping; it is enacted as follows:" S. 1 enacted that, "in addition to the punishments described in s. 53 of the Indian Penal Code, offenders are also liable to whipping under the provisions of the said Code." S. 8 of the same Act also seems to me by implication to give power to a Magistrate to pass sentences of whipping. "No sentence of whipping," it says, "shall be passed by any officer inferior to a Subordinate Magistrate of the first class, unless he shall have been expressly empowered by the Local Government to pass sentences of whipping.'' I cannot escape from the conclusion, that Act VI of 1864 intends to insert in the Penal Code, among tlie punishments therein prescribed, the punishment of whipping, and also to empower a Magistrate to pass sentences of •whipping. But this Act does not authorize a Magistrate to pass, simultaneously, several sentences which shall take effect in succession to one another. That provision is given solely by the Code of Criminal Procedure. The 46th section of that Act says : — " When a person shall be con- victed at one time of two or more offences punishable under the same or different sections of the Indian Penal Code, it shall be lawful for the Court to sentence such person for the offences of which he shall have been convicted to the several penalties prescribed by the said Code, which such Court is competent to inflict; such penalties, when con- sisting of imprisonment, to commence' the one after the expiration of the other. It shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which such Court is competent to inflict on conviction of a single offence, to send the offender for trial befora a higher Court. Provided that in no case shall the person be sentenced to imprisonment for a longer period than fourteen years ; and provided also, that, if the case be tried by a Magistrate, the punishment shall not in the aggregate exceed twice the extent of punishment which such Magistrate is, by his ordinary jurisdiction, competent to inflict." I think that a Magistrate has no power to inflict a succession of punishments, except under the provisions of this s. 46 of the Code of Criminal Procedure. It is, therefore, necessary to consider what are the sentences which that section authorizes a Magistrate to pass to take effect in succession. It is clear that, unless this Act has been altered by subsequent legislation, the different penalties of the Indian Penal Code to which this section refers, are the penalties prescribed by that FULL BENCH RULINGS. 957 Code at the time that the Criminar Procedure Act was passed. It is also clear that the proviso at the end of the section, unless similarly " altered by subsequent legislation, means now, as it meant when it was passed, ia referring to the ordinary jurisdiction of the Magistrate, the ordinary jurisdiction such as it then existed. I believe there is no contention, but that the ordinary jurisdiction of the Magistrate as it then existed is that wliich is mentioned in s. 22 of the Code of Criminal Procedure, viz., that he may inflict imprison- ment up to a terra of two years with a fine commutable to imprisonment for six months ; so that it appears tome, unless s. 46 of this Act has been altered by subsequent legislation, the Magistrate, while he has power of passing sentences simultaneously to take eflfect in succession the one to the other, can only in such accumulated sentences give the penalties which were prescribed by the Penal Code as it existed at the time of the passing of the Criminal Procedure Act ; and that he was then limited in the aggregate to a terra of four years' imprisonment, with two fines commutable into six months' imprisonment each, or twelve months' iu the whole. Now it is not suggested that the meaning of s. 46 of the Criminal Procedure has been changed by the Legislature otherwise than by the passing of the Whippiag Act, as it is termed, or Act VI of 1864, But I am unable to find anything in Act VI which goes the length of efiecting such a change. When the Legislature by that Act inserted the punishment of whipping into the Penal Code for the general pur- poses of that Code, it did not, as it seems to me, intend to alter the meaning or scope of any other existing Act of the Legislature. No doubt this Act gave powers which no previous Act gave, but, excepting the Penal Code, it did not make any other Act utter language which it did not utter before. If the Legislature had, when passing it, intended to do this, it could have done so expressly. It clearly to my mind has not expressly done it : and I do not think that there is anf such necessity arising out of the provisions of Act VI of 1864 (remembering that it ia a penal Aot)as to make us come to the conclusion that such a change was eff'ected by implication. On the whole, therefore, it seems to me that, if a Magistrate exercises the powers which are given to him by s. 46 of the Criminal Procedure Code, and passes an accumulated sentence, he must confine himself to the penalties prescribed by the Penal Code before it was altered by Act VI of 1864. He cannot include in that sentence the punishment of whipping, and he cannot exceed in the total twice the extent of his ordinary j urisdiction as defined bye. 22 of the Criminal Procedure Code. 77 1868 Nassib V. Chundee, 968 FUI'I' BENCH RULINGfS. jggg Jackson, J. — I have arrived at the same conclusion as my colleague nIssib Macpherson, J., and generally for the same reasons. f, *■ It is remarkable enough that Act VI of 1864, which legalizes the punishment of whipping, is expressly designed by its terms to become, I may say, a portion of the Indian Penal Code, but contains no reference whatever, from first to last, to the Code of Criminal Procedure. If the result of that omission were that neither the Criminal Procedure Code, nor any other Act, except the Indian Penal Code, were altered or affected by the provisions of Act VI of 1864, it seems to me that the result would be that no officer or any Court whatever would be competent to inflict the punishment of whipping : because if s. 22 of the Criminal Procedure Code were unaffected by the terras of Act VI of 1864, the several Courts and officers therein enumerated would still be bound by the limits of punishment laid down in that section, and would have no authority to go beyond those limits by awarding a sentence of whipping. But, looking to the terms of s. 8 of Act VI of 1864, it appears fo me that the Legislature intended to invest, and did invest, all officers not inferior to a Subordinate Magistrate of the first class with the power of passing sentences of whipping, and that it reserved to the Local Government the power of authorizing inferior Magistrates also to exercise the like power. The result, therefore, of the amalgamation so to say, of the Whipping Act with the Indian Penal Code, and of the operation of that Act upon the Code of Criminal Procedure, will be in my opinion, to insert in s. 53 the punishment of whipping as one of those to which offenders are liable under the provisions of the Code ; to insert in the several sections of the Penal Code enumerated in ss. 2, 3, and 4 of the Whipping Act, the punishment of whipping as a punishment to which a person committing the offences described in the respective sections, will be liable, either in lieu of another punishment or in addition to the other punishment, as the case may be ; also to add to s. 22 of the Code of Criminal Procedure the punishment of whipping as included within the ordinary jurisdiction of the Court of Sessions, of the Magistrate of the district, and of Subordinate Magistrates of the first class without condition, and Subordinate Magistrates of the second class when expressly empowered by the Local Government as punishments each was competent to inflict ; and lastly, to introduce into the Schedule annexed to the Code of Criminal Procedure, in the column of punishments, that of whipping, in the several cases and under the respective conditions which are prescribed by the Whipping Act. That being so, and the limit of the ordinary jurisdiction of the FULL BENCH RULINGS. 959 Magistrates being enlarged to the extent I have said, it seems to me to X868 follow that in the case of more than two convictions of the offences speci- nIssie fied in s.2 of the Whipping Act, a Magistrate would be within the strict chundbr. letter of the law, if he passed sentence of puaishment not exceeding four years' imprisonment, with fine as permitted by s. 22, and whipping not exceeding thirty stripes, if inflicted with the rattan ; for it appears to me that, in that respect also, there is a modification of s. 46 of the Code of Criminal Procedure in respect of this, that it would not be lawful for the Magistrate, or for any Court, to sentence an offender, no matter how many offences he might be convicted of, to more than thirty stripes, if the rattan be the instrument of punishment. This is the conclusion at which I have arrived after careful consideration of the subject ; and I only add that I entirely concur in the observations of my colleague Macpherson, J., both as to the very numerous and difficult questions of construction presented by the Whipping Act, and also as to the extreme caution which it behoves Magistrates and Courts of Justice to employ when putting in force the provisions of that Act. Seton-Kaeb, J. — There is no doubt, as has been very justly i-emarked by my learned colleagues who have preceded me, that there are several questions of nicety and difficulty arising in the construction of what is known as the Whipping Act. On the whole, I am inclined, substantially, to agree with the conclusions arrived at by Campbell, J., to be found in the printed papers furnished to us for , tiiis reference, which conclusions are dated the 24th of September 1866. The judgment is quoted in the margin (1). But of course it becomes necessary for me to state more particularly what my conclusions are. I deem it unnecessary to set out at length the various sections which have been already quoted by my learned colleagues. (1) The judgment quoted was appended When flogging is inflicted in lieu of any to a reference to the High Court by the other punishment, no other punishment can Joint Magistrate of Mymensing in a case of be inflicted for that offence. And when a The Queen v. Nahmut Ahmed, and was in Magistrate has punished otherwise for two the following terms: — " I think there is not offences, I think that he cannot flog for a the least doubt that a Magistrate can sen- third offence. But in cases in which flog- tence for offences so punishable to two years' ging can be awarded in addition to other imprisonment and fine, or six months' in punishment, it seems to me that the Magis- default of payment, total two and a half trate, having jurisdiction to try the case, can years ; and in case of two or more offences, inflict it in addition to the full measure oi^ up to four years and fine, and one year's his ordinary powers, e.g., to two years and imprisonment in default, total five years. six months and to stripes in addition, or to Flogging cannot be inflicted in lieu of five years and stripes in addition ; and the any part of the punishment or ptinishments maximum number of stripes cannot be which can be inflicted for any one offence, doubled." 960 PtJLL BENCH RULINGS. 1868 The first conclusion at which I have arrived is. that by s. 1 of Act Nassie VI of 1864, whipping is added to s. 53 of the Indian Penal Code, Chumdbr. ^°^ ^^^^ ^* thereby becomes a seventh punishment, which officers deal- ing with that Code are empowered to administer. Then comes the difficulty which has been already pointed out, viz., that the Whipping Act contains no reference to, or mention whatever of, the Code of Criminal Procedure, and yet that the Magistrate ought to be held to administer the Code of Criminal Procedure when he administers the Whipping Act. I cannot myself doubt that when a Magistrate administers any of the punishments defined in the Penal Code with the Whipping Act added to it, he does, at the same time, administer, and is bound by, the Code of Criminal Procedure. I do not think that he administers whipping under Act VI of 1864 alone, and not under the Criminal Procedure Code. But when we come to look at s. 46 of that Code, which is a very important section, altering, as I believe it does, the old criminal law of the country as formerly administered, and empowering Magistrates, .in certain cases and with certain restrictions, to give cumulative punishments, I do not think that we are justified in applying that particular section to the punishment of whipping, which can or may be administered by Act VI of 1864. I think that an express mention of this s. 46 would be necessary in Act VI of 1864 to enable a Magistrate to make whipping cumulative for first offences ; and with- out such a distinct proviso, I shrink from holding that offenders can be whipped and imprisoned for such first offences. I do not lose sight of the difficulty which arises if we lay it down that the Magistrate does administer the Criminal Procedure Code in all cases, and yet that he is shut out from one particular section of it in some cases ; but I am bound to look at the intention of the Legis- ture in making whipping a legal punishment at all. Looking to the objects of the Whipping Act, it is quite clear to me that that Act empowered Magistrates to administer the punishment of whipping to two broad and distinct classes of offenders; firstly, offenders whom it was thought necessary to punish with whipping in lieu of other punishments ; and, secondly, more hardened offenders who, on con- viction of certain specified offences, were thought fit subjects for whip- ping in addition to other punishments. But I am unable to come to the conclusion that Act VI of 1864 contemplated that whipping should be cumulative, except in the case of hardened offenders. For instance, a man, not being an old offender, is arraigned, tried and convicted on three distinct thefts, it appears to me that it would be FULL BENCH RULINGS. 961 competent for a Magistrate to iofliet on him two years and six months for one theft, and two years and six months for a second, and not more than this for three or four instances of theft tried together. I do not think that it could have been the intention of the Legislature, and it certainly is nowhere so expressly provided by Act VI of 1864, that a Magistrate, having given the maximum of imprisonment for two offences of theft, could flog for a third offence ; or that having given a sufficient amount of punishment for one offence, he could, in addi- tion to imprisonment, inflict a whipping for a second. I am quite clear, on the other hand, that in the case of hardened offenders contemplated by s. 4, he might give the maximum of imprison- ment which he was competent to award, and might give a whipping of thirty stripes in addition, because I think that the law itself expressly provides for this. Further, I do not think that in any case, looking to the provisions of s. 10 of the Act, he could give cumulative whip- pings, that is to say, he could not give thirty stripes plus thirty stripes. These are the conclusions at which I have arrived, after some dis- cussion and a full consideration of this question ; and it appears to me that my conclusions do not substantially differ from the practical effect of those arrived at by Phear, J., except in the instances of offenders previously convicted, and I may not take exactly the same view of every portion of the Act, or of all the nice questions which have arisen out of it. 1868 Nassib V. Chundee. Peacock, C.J. — There are two questions which have been sub- mitted for our opinion: first, what is the limit of jurisdiction of a Magis- trate with full powers in respect to imprisonment under s. 46 of the Criminal Procedure Code ? There seems to have been no difference of opinion upon this point, A Magistrate with full powers, upon convicting a prisoner at the same time of several offences, may sentence hira to twice the amount of punishment which such Magistrate is, by his ordinary jurisdiction, competent to inflict, that is to say, to punishment not exceeding in the aggregate four years' imprisonment, and fines not exceeding Es. 2,000, the ordinary limit of his jurisdiction being two years' imprisonment, and fine not exceeding Rs. 1,000 ; see s. 22, Code of Criminal Procedure. I am speaking merely of the extent of the jurisdiction of the Magistrates : the punishment for any one of the offences cannot exceed that for which the offender is liable under the Penal Code, and the punishments should be awarded severally. ^62 PULL BENCH EULINGB. 1868 Nassir V. Chundbr. The difficulty which seems to have occurred was whether, if each of two offences were puuishable with imprisonment of two years and fine, the Magistrate, if he should floe as well as imprison to the full extent of two years for each offence, could also direct by his sentence that, in default of payment- of the fines, the offender should suffer additional imprisonment. I have no doubt that he may do so. I take the case of theft as an illustration. Theft, by the Penal Code, is punishable with imprisonment of either description for a period not exceeding three years, or with fine, or with both. The ordinary jurisdiction of the Magistrate of the district is imprisonment of either description not exceeding the term of two years, or fine to the extent of Rs. 1,000, or both imprisoument and fine. Upon conviction of a prisoner of one offence of theft, the Magistrate could sentence him to two years' imprisonment, and to pay a fine of Es. 1,000. By the 64th section of the Penal Code, he might also direct by the sentence that, in default of the payment of the fine, the offender should suffer imprisonment for a certain term, regulated by the 65 th section, in excess of any other imprisonment to which he might have already sentenced the prisoner. By the 65tli section of the Penal Code, the term for which the Court directs tlie offender to be imprisoned in default of payment of fine, is not to exceed one-fourth of the term of imprisonment, which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. Thus, the Magistrate might for one offence of theft sentence a prisoner to two years' imprisonment, and a fine of Ks. 1,000, and direct that, in default of the payment of the fine, the prisoner should be imprisoned for a term not exceeding half a year, that being one-fourth part of the imprisonment to which the Magistrate might sentence him for the offence. S, 46 of the Code of Criminal Procedure directs that, " when a person shall be convicted ,at one time of two or more offences punishable under the same or different sections of the Indian Penal Code, it shall be lawful for the Court to sentence such person for the offences of which he shall have baen convicted to the several penalties prescribed by the said Code, which such Court is competent to inflict ; such penal- ties, when consisting of imprisonment, to commence the one after the expiration of the other. It shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which such Court is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that in no case shall the person be sentenced to imprisonment for a longer period than fourteen years, and provided also, FULL BENCH RULIN0S. 963 that, if the case ba tried by a Magistrate, the punishment shall not in the iggg aggregate exceed twice the extent of punishment which such Magistrate Nassir ia,.bjr his ordinary jurisdiction, competent to inflict." Chundek If he convicts at the same time of two offences of theft, he may sentence for each offence to imprisonment for twd years, and a fine of Es. 1,000, and he may direct, with regard to the fine in each case, that, in default of payment, the offender shall suffer imprisonment for half a year, which sentences, in effect, will subject the offender to two years, and a half iniprisonment in each case, unless the fines be paid. By payment of both the fines, the prisoner will be free from the imprison- ment awarded in default of the non-payment of the fines. The next question is — whether, if a person is convicted at the same time of two or more offences punishable under the Indian Penal Code, it is lawful for the Court, in addition to the penalties prescribed by the Penal Code, to sentence the prisoner to whipping. There is no doubt that, if the Magistrate sentences the prisoner for one only of the offences of which he is convicted, he may sentence him to whipping, if whipping is warranted by Act VI of 1864. But I am clearly of opinion that, if the Magistrate sentences the prisoner for botli offences, whipping cannot form a portion of the punishment for either. It is a rule of construction that penal Statutes, or Statutes whicli subject men to punishment, are to be construed strictly; and it appears to me that if there is in the whole Statute Book one Act more than another to which that rule ought to be applied, it is Act VI of 1864, wliieli subjects adults to the punishment of whipping. The recital in that Act is, that " it is expedient that in certain cases offenders should be liable under the provisions of the Indian Penal Code to the punishment of whipping." S. 1 enacts that, " in addition to the punishments described in s. 53 of the Indian Penal Code, offenders are also liable to whipping under the provisions of the said Code." The word "are" cannot have been intended to mean that whipping was one of the punishments which the Indian Penal Code authorized, because it was not so ; that punishment was purposely and advisedly omitted from the Code. The word is used in a future sense, and means that, after the passing of this Act, whipping shall be one of the punish- ments to which offenders shall be liable under the Penal Code. Tiie Act speaks from the time it took effect. The meaning is the same as if it had said, " offenders are now by virtue of this Act liable to whipping," &c. S. 53 of the Penal Code, which is the section referred to in 3. 1 of Act VI, contains merely a description of the punishments to which offenders are liable under the Code ; that is to say, that the 964 FULL BENCH RULINGS. 1868 punishments therein enumerated are the several classes of punishment jjj^ggijj to which, by the various sections of the Code, offenders of different y "• ^^ kinds are made subject. The eff'ect of s. 1 is to add whipping as one of the several classes of punishments, and instead of there being six, as there were under the Penal Code, there are now seven classes of punishments. Death is one of the punishments, imprisonment is another, fine is another, whipping is another. But it is not because death is one of the punishments enumerated in the Penal Code, that death is a punishment provided by the Code for every offence mentioned in the Code. Such also is the case as regards whipping. S. 2 of Act VI of 1864 says, that "whoever commits any of the following offences may be punished with whipping in lieu of any punishment to which he may for such offence be liable under the Indian Penal Code." It does not say, and it could not say, that by the Penal Code he was liable to be whipped. But it might say that, by the Penal Code, as amended by this Act, he shall be liable to be whipped. Take the case of theft. S. 2 of the Act does not say that, by the Penal Code a man who commits theft is liable to be whipped, but it says that iu lieu of giving him the punishment inflicted by the Penal Code, viz., three years' imprisonment and fine, he may be punished with whipping. Ss. 3 and 4 render offenders liable to whipping in lieu of, or in addition to, the punishments imposed by the Penal Code. S. 46 of the Code of Criminal Procedure says that, "when a person shall be convicted at one time of two or more offences punishable under the same or different sections of the Indian Penal Code, it shall be lawful for the Court to sentence such person for the offence of which he shall have been convicted to the several penalties prescribed by the said Code." But it does not say that, when a prisoner shall be coQvicted of two or more offences, it shall be lawful for the Court to sentence such person for the offences of which he shall liave been con- victed to the several penalties prescribed by any subsequent Act. The punishment of whipping is not one of the offences prescribed by the Penal Code, but it is a punishment prescribed by a subsequent Act in lieu of the punishment prescribed by the Penal Code, or in addi- tion to it, as the case may be. The proviso in s. 46 of the Code of Criminal Procedure declares that, if the case be tried by a Magistrate (he punishment shall not in the aggregate exceed twice the extent of punishment which such Magistrate by his ordinary jurisdiction is com- petent to inflict. The ordinary jurisdiction of a Magistrate with full powers is defined in s. 22, viz., imprisonment not exceeding two years, or fine to the extent of Es. 1,000, or both. If whipping be awarded in FULL BENCH RULINGS. 965 lieu of, or in addition to, any of the punishments prescribed by the Penal Code, the punishments for the several offences will in the Aggregate exceed the extent of punishment which a Magistrate by his ordinary jurisdiction is competent to inflict. S. 22 of the Code of Criminal Procedure is not intended to describe the punishment allotted to the several offences of which a man may be guilty, but merely the ordinary jurisdiction of the Magis- trate. Take theft, as an example. Theft, by the Penal Code, is punish- able with three years' imprisonment, or with fine, or with both ; but the Magistrate of the district, or a Magistrate with full powers, cannot sentence the prisoner, if he convicts him of the offence of theft, to three years* imprisonment, and fine without limit, because his jurisdiction is limited to two years' imprisonment, and a fine of Es. 1,000. The punishment to be awarded for the several offences is limited by the sections of the Penal Code which provide the punishment for them, I agree that, under Act VI of 1864, a sentence of whipping may be passed by an officer not inferior to a subordinate Magistrate of the first class. The extent of whipping to which a Magistrate may sentence is not limited except by s. 10 of Act VI of 1864, which-limits the amount of the punishment generally. It matters not wliether whipping is imposed as a punishment by a Magistrate or by a Sessions Judge : each of them, if he can pass the sentence at all, can impose it to the full extent authorized by tliis Act. Take theft, as an example. Theft is one of the offences for which an offender may be punished with whipping in lieu of the punishment awarded by the Penal Code. The limit of the punishment is contained- in s. 10 of the Act. " In no case, if the cat-of-nine-tails be the instrument employed, shall the punishment of whipping exceed one hundred and fifty lashes ; or if the rattan be employed, shall the punishment exceed thirty stripes." By the Notification as to the mode in which the punish- ment of whipping is to be inflicted in Bengal, it is directed that the rattan shall be the instrument used, and that the rattan shall not exceed half an inch in diameter (1). If a man is whipped with a rattan for one offence of tlieft, whetiier under the sentence of a Sessions Judge or under the sentence of a Magistrate witii full powers, he may have thirty, stripes with a rattan not exceeding half an incli in diameter. If he is flogged for that offence with the cat-of-nine-tails in those parts of the country where that instrument is allowed to be used, he may have as many as one hundred and fifty lashes. It cannot be supposed (1) See a Notification by the Lieutenant-Governor, dated 28th March 1864, published in the Calcutta Gazette of the 30th March 1864. 75 1868 Nassib V. Chundbb, 966^ PULL BENCH RULINGS. 1868 that it was ever intended that, if a man should be convicted of two Na^sir offences at the same time, he should be subject to one hundred and Chundbr. ^% lashes with a cat-of-nine-tails for each offence, amounting to three hundred lashes altogether, or to thirty stripes with a rattan half an inch in diameter for each offence, amounting in the aggregate to sixty stripes with such an instrument. If a man is convicted of a theft today by a Magistrate of a district, he may be sentenced to thirty stripes with the rattan; if that same man commits anotlier offence, and is convicted by the Magistrate of that second offence six months hence, he can have thirty stripes with a rattan for that second offence. The jurisdiction of the Magistrate, as regards whipping for those two offences, is limited to thirty stripes for each, or sixty stripes in the whole. If the Magistrate convicts the offender of two thefts at the same time, is he to be allowed to give twice the extent of the punish- ment which he could give for one of them ? When the Legislature in 1861 enacted by the Code of Criminal Procedure that, if a Magistrate should convict a prisoner of two offences at the same time, he should have power to sentence the offender to the several penalties prescribed by the Penal Code for the said offences, provided that he should not sentence to any punishment exceeding in the aggregate twice the extent of punishment which such Magistrate was by his ordinary jurisdiction competent to inflict, they knew what they were about. They knew what the punishments prescribed by the Penal Code were, and they knew that a Magistrate had not, by his ordinary jurisdiction, power to inflict more than two years' imprisonment with a fine not exceeding Ks. 1,000. They would have taken an unjustifiable leap in the dark in dealing with the subject of punishments, if they had extended the same power with respect to any new punishment which any succeed- ing legislative body might think it justifiable to impose. S. 46 of the Code of Criminal Procedure must be construed strictly, and limited to the penalties prescribed by the Penal Code and to the ordinary jurisdiction of the Magisti-ate as defined by s. 22 of the Code of Criminal Procedure. The Legislature, at the time when the Code of Criminal Procedure was passed, never intended by s. 46 to legislate beyond what they could foresee, and to give powers the result of which must have been unkown to them. The Code of Criminal Procedure did not intend to allow two punishments of whipping to be inflicted at the same time for two offences, of which an offender might he convicted at the same time. At the time when the Code of Criminal Procedure was passed, the punisliment of whipping did not exist. There is nothing in the Code of Criminal Procedure, or in Act VI of FULL BENCH RULINGS. 1864, from which the Legislature can be presumed to have intended that, if a man should be convicted of two thefts at the same time, " he might be seuteneed to stripes for the one, and to imprison- ment and fine for the other. The limitation in s. 46 could not have that eflfect j it is limited to twice the amount of punishment prescribed by the Penal Code, which the Magistrate can inflict according to his ordiuary jurisdiction. If it be held that he can punish for one offence with stripes when he punishes for both, I see no mode by which we can escape from holding that ha may punish for each by whipping. He has not, as it appears to me, the power of sentencing to whipping in lieu of imprisonment for each, and I do not see how he can have the power of sentencing to it in either. I do not believe that it was intended to sanction such a cruelty as to allow a double flogging to be inflicted upon a prisoner convicted of two offences at the same time. The object of s. 2, in giving whipping in lieu of any other punishment, appears to have been to avoid the crowding of jails, and the contamination to which offenders might be subjected by being inmates of jails. But this object would be frustrated if in the case of an offender being con- victed of three thefts he might have two years' imprisonment, and a fine for one, and stripes to the extent of thirty with a rattan half an inch in diameter for each of the others of which he might be convicted. Looking to the words of the several Acts and construing them accord- ing to the ordinary rules of interpretation, I am of opinion that, if a Magistrate proceeds under s. 46 of the Code of Criminal Procedure, he must confine his sentences strictly within its provisions. If he proceeds under Act VI of 1864, in the case of a conviction for two offences at the same time, he must be guided by that Act only, and cannot sentence the offender for more than one of the offences. 967 Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, Mr. Justice Macpherson, and Mr. Justice Mitfer. BISSESSUB MULLICK (Judgmbnt-debior) v. MAHARAJA DHIRAJ MAHATAB CHUND BAHADOOR (Decree-holdek).* Act XIV of 1859, s. 20 (1) — Execution of Decree — Limitation. The word " proceeding " in s. 20, Act XIV of 1859, means a proceeding not barred by the law of limitation, and under which process of execution might lawfully have issued if the proceeding had been opposed (2). The Maharajah of Burdwan obtained a decree on the 3Ist August * Miscellaneous Special Appeal, No. 436 of 1867, from an order of the Judge of East Burdwan, dated the 10th July 1867, reversing an order of the Principal Sudder Ameen of that district, dated the 6th AprU 1867. (1) See Act IX of 1871, Sch. ii, Nos, 166 and 167. (2) S6e also Oolam Ashgar v. Lahhimani DeU, 2 B. L. R, App., 224. 1868 Kassir V. Chundeb. 1868 March 19. 968 PULL BENCH RULINGS. 1868 BiSSESSUR MULLICK V. Maharaja Dhibaj Mahatab Chuhd Bahabook. 1859. On the 20th August 1861 he applied for execution of the decree, and in pursuance of this application notice was served on the judgment-debtor on the 24ih of June .1862 ; but no further steps to execute the decree were taken till the 13th September 1865, at wiiich time execution was admittedly barred. Od tlie 13th Septeniber 1865 a second applitaiion was miule fir execution, aud the judgment-debtor was again served with notice ; these proceedings were struck off the file on the 29th of March 1866. On the 13tli of August 1866 a third application was made praying for the arrest of the judgment-debtor: and this was followed by a fourth application. On this lust occasion the judgment-debtor opposed the execution on the ground that it was barred by s. 20, Act XIV of 1859. He admitted that he had notice of the previous proceedings, that they were real, effectual and bona fide, and that he had not opposed them, but he contended that, when once execution-proceedings were barred by lapse of time, the decree was dead, and could not be revived by any subsequent proceedings, even though the judgment-debtor had notice of them and did not plead that they were barred by the law of limitation. He cited Bharuth Singh V. Sadut AH (1), Baroda Delia v. Sreeram Chowdhry (2), and Kool Chunder Chuckerbutly v. Kumul Chunder Roy CS). The judgment- creditor, on the other hand, submitted that s. 20, Act XIV of 1859, must be construed literally ; and that the Court must allow execution to issue if it found that any real and effectual proceeding to keep the decree in force had been taken " within three years next preceding the application for execution." In support of this contention, he referred to the judgments in two unreported cases which were annexed to the record. In consequence of this conflict of decisions the Court (Loch and Hobhouse, JJ.) submitted for the opinion of a Full Bench the question "Whether or not the present application is barred by the terms of s. 20, Act XIV of 1859?" Baboos Romesh Chunder Mitter, Anund Chunder Ghosal, and Luchhee Churn Base for the appellant. Baboos Juggadanund Mookerjee and Chunder Madhub Ghose for the respondent. The judgments of the Full Bench were as follow : — Peacock, C.J. (Pheab, Macphekson, and Mittee, JJ., concur- ring). — We think that the case is a very clear one. On the 13th of (1) 5 W. B,, Mis., 20. C^ Ibid. (3) 6 W. K., Mis., 17. FULL BENCH EULINGS. 969 September 1865 an application for execution was made ; but at that jggg time execution of the decree was barred by limitation, Tlie proceed- Bissesshb inga under that execution were struck off on the 29fch of March 1866. Mullick Subsequently another application for execution was made within three Mahaeaja Dhieaj years after the 13th of September 1865, and the question is whether Mahatab the application which was made on the IStli September 1865, or the Bahadook. issuing of the process thereon, was a proceeding taken to enforce the judgment within the meaning of s. 20 of Act XIV of 1859 ? It appears to me that the application was not a proceeding within the meaning of that section. By the word " proceeding " in that section, I understand the Legislature to have intended a proceeding not barred by limitation, and under which process of execution might have been lawfully issued if the application had been opposed. If this were not so, a person, after a decree was barred, might make an application to enforce it by execution ; but upon that application it is clear that no process of execution could issue unless some proceeding had been taken to enforce the judgment within three years prior to it. Such applica- tion for execution ought, therefore, under s. 20 to be refused. If the argument in the present case is correct, the applicant might in such case make a fresh application, and in support of it avail himself of the one which had just been refused as an application which had been bona fide made within three years. The application, then, of the 13th of September 1865, was not a pro- ceeding within the meaning of the section. If that application was not a proceeding within the meaning of the section, at the time when it was made, it could not subsequently become so, merely because the judgment-debtor did not come in and oppose it. The non- opposition by the judgment-debtor clearly was not a proceeding, nor was the issue of process by the Court in a case in which that process ought to have been refused a proceeding within the meaning of the Act. Under these circumstances it appears that the application which was last made was barred by limitation. The appeal must be allowed. The judgment of the Judge is reversed, and the judgment of the Principal Sudder Ameen affirmed with costs in all the Courts. L. S, Jackson, J. — I entirely concur in the judgment which has just been delivered, and I have nothing whatever to add to the view of the law taken by the Chief Justice in the case before us. But it may be useful to advert to a class of cases, several of which have lately come before the Fifth Bench on which I was lately sitting, and which, though 970 1868 BiSSBSSCR MOLMCK V. Maharaja Dhiraj Mahatae Chuhd Bahadoob. FULL BENCH RULINGS. distinguishable from the present case, might perhaps have been cited as bearing upon the question referred to us — I mean cases of this des- cription, ia which execution had been applied for, a proceeding taken, the case then struck off, a fresh application made within three years from the date of the previous proceeding, fresh notice given, and, say, a process of attachment issued; shortly after, that is within three years after that attachment had taken place, a fresh application to execute is made, and the judgment-debtor coming forward seelis to raise a question as to the bona fides and the sufficiency of the pro- ceeding last taken before the preceding application. In such cases I have more than once felt obliged to hold that the question of the bona fides of such proceedings, being a matter of fact whicTa the judgment-debtor might have disputed on the occasion of the last notice, and he having, notwithstaading the service of notice, omitted to raise that question, and having submitted at that time to further proceedings in execution, he was thereafter barred from raising the question of limitation, and that the execution must go on. Cases of that descrip- tion, I need hardly say, are clearly distinguishable from a case like the present, in which there was a manifest bar of limitation at the time of the last application. 1868 March 19. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, Mr. Justice Macpherson, and Mr. Justice Mitter. LEAKE (Deckee-holdbe) v. DANIEL (Judgment-debtor).* Act VIII of 1859, ««. 284 to 2'ii— Execution of Decree — Transfer of Decree to another Court — Jurisdiction — Limitation. When a decree has been transmitted by the Court which passed it to another Court for execution, the latter Court has jurisdiction to try whether or not execution of the decree is barred by the law of limitation (1). Per Peacock, C.J. — When there are different laws of limitation in force in the two Courts, the law applicable to the proceedings in execution of the decree should be the law of the Court to which the decree is transmitted for execution. In this case a decree of the Azimghur Court (in the North-West Provinces) was transmitted for execijtioa to the Shahabad Court (in Bengal). There was no order for execution sent but merely a copy of the decree and a certificate that satisfaction had not been obtained by execution. On the application of the decree-holder to execute his * Miscellaneous Regular Appeal, No. 507 of 1867, from an order of the Officiating Judge of Shahabad, dated the 26th July 1867. (1) See Sheo Narayan Sing v. Eurhans Lai, 5 B. L. R., 497. Pa'niei. FULL BENCH EULlS[GS. 97l decree, the Judge of Shahabad refused to allow execution on the jggg ground that it was barred by the law of limitation (Act XIV of 1859, hwA-K-n B. 20). Against this order the decree-holder appealed to the High Court at Calcutta, urging that the Judge had no jurisdiction to make it, and that, under s. 290 of Act VIII of 1859, the Judge should simply have stayed execution pending orders of the Court of Azimghur by which the original decree was passed. The Court (Loch and Hobhouse, JJ.,) doubting the correctness of the decisions in the cases of Buzur Bebee v. Jackson (1), Luchmun Suhoy V. Bliugwan Chunder Dutt (2), and Bykuntnath Mullick v. Joygopal Chatterjee (3), referred the following point for the determina- tion of a Full Bench: — "When a decree is, under s. 284 and the following sections of the Code of Civil Procedure, transmitted for execution to any Court, has that Court jurisdiction to determine whether or not execution of the decree is barred by the application of the Statute of Limitation, or does not the jurisdiction rather rest with the transmitting Court ? " Baboo Otool Chunder Mookerjee for the appellant. Baboo Mohini Mohun Roy for the respondent. The following opinions were delivered by the Pull Bench : — Peacock, C.J. (Phear, Macpherson, and Mittee, JJ., concur- ring) (after slating the facts as above). — It appears to me to be clear that when application for execution was made in the Shahabad Court, that Court was bound by Act XIV of 1859, and had power to decide whether or not it was barred by that Statute from issuing process of execution. A question was raised in argument as to what law of limitation would apply, if the Court in which the decree was obtained, and that to which it was transmitted, were governed by different laws of limitation. It is unnecessary for us to determine what would be the law applicable to such a case ; but, speaking for myself only, I would say that it appears to have been the intention of the Legislature under s. 287 that the of law limitation by which the Court to which the decree was trans- mitted was bound should be the law. It is a general rule that Statutes of Limitation affect the remedy, and not the law. (1) 5 W. B., Mis., 14. (2) 6 W. K„ Mis., 118. (3) 7 W. R., 19. 972 1868 PULL BENCH RULINGS. The case will be sent back to the Division Bench to be dealt with Leake according to its merits. V. Daniel. Jackson, J. — I concur in this judgment, the question of diversity of laws of limitation not arising in this case. 1868 March 19. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, Mr. Justice Macpherson, and Mr. Justice Mitter. JAN ALI CHOWDHRT (Plaintdtp) v. NITTZENUND BOSK (Defendant).* " Act X of 1859, ss. 21, 22 §• 78 (1) — Suit for Cancelment of Lease — Condition for Forfeiture. S. 78, Act X of 1859, applies to all cases of suits for the ejectment of a ryot or the cancelment of a lease for non-payment of rent, whether such ejectment or cancelment be sought under the provision of ss. 21 and 22 respectively, or under an express stipulation in that behalf contained in the engagement between the parties. The defendant held under a lease from the plaintiff, which contained a condition for the cancelment of the lease on non-payment of rent for one entire year. The present suit was instituted in the Collector's Court under Act X of 1859 for cancelment of the lease on the ground of breach of such condition. The lower Appellate Court found on the evidence (after a remand from the High Court on a previous appeal) that the breach of the condition complained of had b6en committed by the defendant, and passed a decree for cancelment of the lease, subject to the proviso contained in the latter part of 8. 78 of Act X of 1859. Against this decree the plaintiff appealed to the High Court. He contended that the Court below should have passed an unconditional decree for cancelment of the lease, the proviso in s. 78 of Act X of 1859 being inapplicable to suits for cancelment of a lease, founded on the breach of express conditions in the lease. The Court (Loch and Mitter, J J.,) were of opinion that this contention was sound. They held that the proviso in the latter part of a. 78 of Act X of 1859 which declared that, "in all eases of suits for the ejectment of a ryot or the cancelment of a lease, the decree shall specify the amount of the arrear, and, if such amount, together with interest and costs of suit be paid into Court within fifteen days from the date of the decree, execution * Special Appeal, No. 1534 of 1867, from a decree of the Additional Judge of Chitta- gong, dated the 30th April 1867, affirming a decree of the Deputy Collector of that district, dated the 30th October 1865. (1) See ss. 22, 23 and 52 of Beng. Act VIII of 1869. FULL BENCH RULINGS. 973 shall be stayed," referred to decrees passed iu suits ia which the iges ejectment of the tenant, or the cancelraent of the lease is claimed under Jan Ali the statutory right conferred on landlords (independent of any contract *^""^™''"^ between them and tlieir tenants) by ss. 21 and 22 of the Act respectively, ^"g^^™""" and not to decrees in suits in which the ejectment, or the cancelment of the lease is based on the breach of an express contract in that behalf between the landlord and his tenant, the two classes of cases being distinguished by cl. 5 of s. 23 of Act X of 1859, and the mere fact that the breach in the present case happened to consist of non-payment of arrears of rent, not making any difference in their opinion, but as a contrary view Iiad been taken in Fitzpatrick v. Gowan (1), Sheikh Mahomed Hossein v. Boodhun Sing (2), and in Solano v. Mirza Hoormut Bahadoor (3), they referred the following point for the opinion of a Full Bench : — "Whether, in a suit for the cancelment of a lease on account of a breach of the conditions thereof, the lessee is entitled to avail himself of the proviso iu s. 78 of Act X of 1859, the breach complained of consisting in non-payment of rent for a particular period specified in the lease ?" Mr. R. E. Twidale for the appellant. Baboo Sreenath Banerjee for the respondent. The judgment of the Full Bench was delivered by Peacock, C.J. — I think that this is a cleat case. S. 78 applies to all cases of suits for the ejectment of a ryot or for the cancelment of a lease for tlie non-payment of rent. It applies not only to cases in which it is sought to eject a ryot under s. 21 for non-payment of rent or for the cancelment of a lease for non-payment of rent under s. 22, but also to cases in which it is sought to cancel a lease or to eject a ryot for non-payment of rent under an express stipulation contained in the engagement between the parties that, in the event of non-payment, the lease shall be forfeited. The words are general "in all cases of suits," and not in all cases of suits brought for the purpose of enforcing the provisions of s. 22. The appeal will be dismissed with costs. (1) 6 W, R., Act X, 65, (2) 7 W. R., 374. (3) 1 Hay's Rep,, 573, 79 974 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, ".Ir. Justice Macpherson, and Mr. Justice Mitter. 1868 GHOLAM MOHAMED and akothek (Defendants) v. ASMUT ALI KHAN March 19. CHOWDHRY (Plaintiep).* Landlord and Tenant— Kabuliat— Enhancement— Act X of 1S59, s. 13(1) ^«. 23, cl. 1 — Plaint — Decree. A landlord who sues for a kabuUat at a specified rate, but fails to show that such rata is fair and equitable, is not entitled to a decree for a kabuliat at a less rate, but the suit must be dismissed (2). Beld also (Phear, J., doubting) that in a suit for a kabuliat the plaint should specify the date for the commencement of the kabuliat. A plaint which does not specify sach date ought to be returned ; but if it has been admitted and the case heard, the Court may supply the omission by specifying in the decree the date from which the kabuliat is to commence. In this case, which was one of six appeals of a precisely similar character, the following questions were referred for the opinioa of a Full Bench by Bayley and Phear, JJ : — "When a landlord sues to obtain from his ryot a kabulint at a givea rate of rent, supposing the Court should arrive at the conclusion that that rate exceeds the rate which, in the judgment of the Court upon the evidence before it, would be fair and equitable, ought the suit to be dismissed ? " Also, if in a similar case, the plaint mentioned no date for the com- mencenaentof the kabuliat, would it disclose a sufficient cause of action ?" The facts appear fully in the following judgments delivered in referring the questions : Phear, J. — These six suits are brought, the first four by Asmut Ali, a shareholder in a zemindari, and the other two by Gun»a Churn Chatterjee, the remaining shareholder in the same zemindari, against six different ryots, to obtain from them respectively kabuliats at the rate of Es. 20 per kanee. * Special Appeal, No. 1175 of 1867, from a decree of the Judge of Backergunge dated the 3rd April 1867, affirming a decree of the Deputy Collector of that District dated the 1st December 1866. (1) See Beng. Act VIII of 1869, g. 14. Narattam Das Chowdkry v. Rosa Pyari (2) See Kasimuddi Khundkar v. Nadir Ali Chowdhrain, Id., 271 ; Shib Ram Ghose v. Tarufdar, 2 B. L, R., A. C, 265 ; Nizamat Ali Pran Pria, 4B. L. K., App., 89 ; Ramanatk V. Ramesh Chandra Roy, 3 B. L. R. , A. C, 78 ; Rukhit v. Chand Eari Bhuya, 6 B. L. R. , 356. FULL BENCH RULINGS. 975 In eacli case the Court of first instance framed one issue only, in the iggg following terms : — " At what jama and rate, and for what quantity Gholam of land, is the plaintiff entitled to get a kabuliat from the defendant ? " '"°«**"'i> And upon this issue, it gave decrees in favor of the plaintiffs, Asmut Ah '^ • " r Khan On appeal brought by the defendants, the Judge decided all six cases Chowdhry. by one judgment, the material part of which is couched in these words : — " When there was a local inquiry iu the present instance, that inquiry showed that the rate of Rs. 16 is that current in the neighbourhood, and I think the decree should issue for a kabuliat at that rate. Suit decreed accordingly. Defendants' appeal dismissed with costs. Order modified." I have no hesitation in saying that this concise and imperfect judg- ment is in the highest degree unsatisfactory. The Judge omits all inquiry as to whether the plaintiff was entitled, apart from liis co-sharer, , to a kabuliat from each ryot. But perhaps this right was not disputed by the defendants. However this may be, in proceeding to determine at what rate the plaintiff was eu titled in each case, if at all, to get a kabuliat from the defendant, the lower Appellate Court was bound to be guided by considerations of fairness aud equity, and whether the rent wag fair and equitable would depend upon the circumstances of each defendant's holding. No doubt these circumstances might be pretty well the same in all the cases. But if they were so, the Judge ought to have stated that fact. Not only however is he quite silent on this point, but there is not a trace to be found in his judgment of Ids having paid the least heed to conditions of any sort under which the ryot was cultivating his land. Not a word is said as to whether or not in any one of the cases the plaintiff had shown tiiat the ryot had con- tributed to the productive power of the soil by his own exertions. No reference is made as to whether or not that soil is in all the six cases uniform witii the soil in the neighbourhood, the current rent of which has been taken as a measure here. And further, although the Ameen, upon whose report alone the Judge based his decision, found that three different rates of rent were current in the neighbourhood corresponding with three qualities of land, the Judge has adopted the highest of those three,- and has awarded it as the rent for all the lands in all six different cases, without giving the least explanation of the reasons which induced him to do so. In truth, as far as I can discover, the Judge has altogether omitted to apply judicial discretion to the determination of the main issue which he had to try, namely, what was tbe fair aud equitable rent at which the plaintiff in each suit was entitled to obtain a kabuliat from the defendant ? 976 FULL BENCH RULINGS. 1868 And were this the only matter of objection to the decision of the Gholam Court below, I should feel obliged to say that the cases ought to be oHAMBD j-ejjjanded for re-trial on this issue. AsMDT Ali gy^ J am further of opinion, considering the evidence on the records Khan ^ ' ° Chowdhky. that in all the six suits the defendants are entitled to decrees in their favor, and therefore that the lower Appellate Court was wrong in giving judgment for the plaintiffs. Taking any one of the suits by itself, I find that it is a suit to obtain a kabuliat at the rate of Rs. 20 per kanee from the defendant. In other words, it is a suit to compel the defendant to enter into a contract of tenantry, which is to cover some future time. It is not merely a suit to recover past rent due after notice under s. 13 of Act X of 1859 or otherwise. It is not a suit for a money debt. In cases such as these, no doubt the plaintifi''s claim is divisible, and it is within the discretion of the Court to award him a less sum than that for which he asks. But when a plaintiff comes into Court to enforce specific performance of a contract, whether it be a contract of tenancy or of any other character, his cause of action stands or falls with his right to have the benefit of the particular contract which he sets out in the plaint. If he based his right to the benefit of the contract on the antecedent agreement of the defendant to execute it, then it is clear that he would fail in his suit unless he made out that this agreement extended to all the material terms of the contract, as he alleged it. He would not be allowed to fall back on such terms only as he succeeded in proving against the defendant ; for the alteration or omission of any material term changes the contract. And it would be a great hardship that a plaintiflF, on the foundation of a suit to obtain the execution of one contract, should obtain a decree against the defendant for the enforcement of another. There could be no assurance in such a case that the defendant would not have voluntarily executed this second contract, had it been proposed to him in the form in which it was decreed. I think that the same principle governs suits brought to obtain execution of a contract upon the title of fairness and equity. Whether the plaintiff claims the execution of the contract because the defendant has previously agreed to execute it, or because it is on the facts of the case fair and equitable that tlie defendant should do so, it is equally incumbent on him (the plaintiff) to state distinctly the terms of the contract, and he ought to fail as much in the one case as the other, if he does not support those terms by evidence of the agreement on their behalf, or their fairness and equity, as the case may be. This view is confirmed by the words of Act X of 1859, which in effect direct that a potta should be prepared and tendered to tlie ryot FULL BENCH RULINGS. 977; before the person to whom the rent is payable becomes entitled to iges require from him a kabuliat (1). This must mean a potta couched in Gholam definite terms (2), and the enactment would not be satisfied by the tender ohamkd of a potta in which, for instance, the amount of rent was made contiD- Asmut Ali '^ ' Khan gent on the decision of the Collector in a suit about to be brought for Chowdhky^ the determination of the sum which would be fair and equitable in that respect. I do not think that the words " for the determination of the rates of rent at which such pottas or kabuliats are to be delivered " in ss. 23 and 31 of Act X, refer to more than the determination of the issue between the parties as to tlie rate of rent, viz., whether or not the rata relied on by the plaintiff is fair and equitable. For all these reasons, then, I am of opinion that in suits like those which are now under our cousideration, the subject of the plaintiff's claim is siogle and indivisible. He must be treated as being ready to deliver to the defendant a potta corresponding in terms to the kabuliat which lie sets out, and asks for in his plaint ; and if a potta so drawn is not such as the defendant is entitled to receive, the plaintift's suit must be dismissed. There is, as I think, no warrant in law for permitting the plaintiff to say " If the potta which I tender in accordance with my plaint does not appear to the Court fair and equitable, then I am ready to tender such other potta as the Court may think fit, and I will alter my claim for a kabuliat accordingly.'' In short, he must stand or fall by the justice of his claim of right to impose the contract which lie specifies, on the defendant, and cannot, after coming into Court, mend his specification to make it suit the evidence. Now every potta and kabuliat must, of necessity, either expressly or impliedly, contain three material terms relative, respectively, to the commencement of the lease, to the termination of it, and to the rate of rent. Of course there may be many others at the option of the parties, but without these three the contract cannot be complete ; and, moreover, these three are so cardinal that an alteration in any one of them neces- sarily alters the whole contract. A lease to commeoce with the 1st Bysakh of a given year is quite distinct from a lease to commence with the 1st of Falgoon of the same year. A lease for five years involves a different contract from that exhibited in a lease from year to year as long as the parties shall choose. And a lease at a rent the rate of which is Rs. 20 per kanee, is not the same thing as a lease which gives the rate at Rs. 16. This leads me to observe that in none of the cases before us is the commencement of the kabuliat, which is sued for, mentioned or (1) See Act X of 1859, s. 9, (2) See Act X of 1859, s. V 978 FULL BENCH RULINGS. 1868 ascertainable. The plaintiflPa claim is, therefore, on this head indefinite, Gholam and for this reason alone the suit ought to be dismissed. Again in all the MoH^AMED pgggg jjjg j.^jg jjf ,.gjjj. ^j y^hich the kabuliat is sought is fixed by the AsMUT Ali pJaintifF at Rs. 20 ; but there is no evidence of any kind on the record Kuan ^ , . , , t ■ Chowdhky. to show that more than Rs. 16 would be fair and equitable. It is obvious that the plaintiff has utterly failed in every single case to make out that it would be fair and equitable that the defendant should be compelled to receive a potta and deliver a kabuliat at the rate of Rs. 20 rent ; consequently he has no right to the particular kabuliat which he seeks, aud the Court cannot in these suits grant him any others. In coming to this conclusion, I am fortified by the opinion of the Chief Justice, expressed in Special Appeal No. 2158 of 1866 (1). The decrees of botli the lower Courts ought in my judgment to be reversed, and the six above numbered suits all dismissed with costs in all Courts. Batlbt, J. — In the opinion expressed in the 1st to the 5ih paragraphs (inclusive) of the above judgment of Phear, J., I fully concur. I have, however, great doubts as to whether in suits brought under cl. 1, s. 23, Act X of 1859, for a kabuliat at a certain definite rate, nothing except the kabuliat at that exact rate can be decreed, that is to say, thai if plaintiff sues for the delivery of a kabuliat at Rs. 20, the Court cannot give Rs. 16 or any other sum which is fair and equitable, so long as it be not more than is prayed for in the plaint. The decision cited — Jaun Ali v. Jan Ali (2) — is not exactly in point, although in some degree supporting the view that if the plaintiff fails to prove a right to the exact contract he claims, he cannot have any other modified contract decreed. 1 can see no practical difference ordinarily in a suit for a counterpart lease at certain rates to be enforced as a contract, and a suit for enhancement to those rates under the provisions of ss. 15 aud 17 or other sections of Act X of 1859. My main doubt is whether in this class of cases under s. 23, cl. 1, that clause and section are not to be read together with s. 31, Act X of 1859, where the word "and" (not "or") is used, and the other terms are the same. S. 31 seems to ma to contemplate that the suit for tiie kabuliat, and the determination of the rates at which that kabuliat shall be given, are one and the same mutter, that is, that the kabuliat is only the resulting deed in which shall be recorded the rates deter- mined, whether these be the same as claimed by plaintiff, or other (1) Unreported. (2) 9 W. K., 119, FULL BENCH RULINGS. 979 lesser rates which ought fairly and equitably to be paid. Agiiin, if (he 1868 word " and " in s. 31 be read as " or," still suits for the determination of Gholam rates at which kabuliats shall be delivered may be brought under s. 23, Mohamkd cl. 1. Thus, if (referring to s. 31) in a suit for the determination of the Asmut An f ' Khan rates at which a kabuliat or potta is to be delivered, the plaintiff Chowdhrt* (whether landlord or ryot) may state in his plaint his claim to have a lease at a particular rate, and also (as he may under s. 31) ask the Court to determine what ought to be the proper rate, why should not the same party obtain on a suit for a kabuliat such relief as he might be found entitled to, although not the full amount he may demand ? I do not think it makes any difference in the case that the tender of a potta is essential to effect being given to a decree for a kabuliat. The two terms " potta " and " kabuliat " do not necessarily indicate more than one contract. They are papers of one contract of which the rent-payer holds one, viz. the lease, the rent-receiver the other, viz. the counterpart. If the view of Phear, J., prevail, there is this practical difficulty, viz. that it is hardly possible for a party suing for a kabuliat at a particular rate to discover exactly in each case what a Court might consider would be fair and equitable ; the meaning to be put on those words " fair and equitable " being so very vague and indefinite in each judicial mind. It might thus well be that a Court should think a plaintiff entitled to 19-15-1 If, and yet the suit be dismissed, because the plaintiff chimed a kabuliat for \ pie more. I must add there are cases— of the 12th January 1867, No. 2158 of 1866 (1), Chief Justice and L. S. Jackson, J., and also of 17th and 19th February 1868, Chief Justice and Mitter, J. (2), supporting Phear J.'s view, and, on the other side, the case of Sheodie Mnhatoon v. Huree Kishen (3) supporting my view, On the whole, then, I must with deference differ from Phear, J., in this case, and I presume a reference to the Full Bench should be made. On the other, point, I observe that it is true that the date of the commencement of the kabuliat is not indicated in the plaint. But the Full Bench decision in Thakooranee's case (4) lays down that such suits for kabuliats, if decreed, will take effect from the commeccement of the year following the decree, and this I think would suffice. • Baboos Shushee Bhooshun Base and Nilmoney Sein for the appellant. Baboo Romesh Chunder Mitter for the respondent. (1) Unreported. (3) 9 W. R., 81. (2) Boydonalh v. Ramjoy Dey, 9 W. R., (4) Ante, p, 202, 292. 980 FULL BENCH RULINGS. 1868 The following judgments were delivered by the Full Bench : — MoHAMED Peacock, C.J. (Jackson and Macpherson, JJ., concurring). — The AsMUT Ali question is whether when a landlord sues to obtain from his ryot a Khan kabuliat at a given rate of rent which in the iudgment of the Court CHOVfDHKY. ° . upon the evidence before it exceeds the amount which would be fair and equitable, ought the suit to be dismissed ? It appears to me that that question ought to be answered in the affirmative, and tliat when the plaintiff seeks to compel a tenaut to execute a kabuliat of a particular description, and fails to make out a right to a kabuliat of that description, he is not entitled to have a decree ordering the ryot to execute a kabuliat of the description to which he is entitled. This opinion is not founded upon a mere technicality but upon principles of justice. A man ought not to have a decree to compel a ryot to execute a kabuliat, unless, at the time when he commences the suit, he is willing to execute a corresponding potta. S. 9 of Act X of 1859 enacts that the tender of a potta, such as the ryot is entitled to receive, shall be held to entitle the person to whom the rent is payable to receive a kabuliat from such ryot. The Court went to a great extent when it held that a tender was not actually necessary : and I think that we ought not to extend the rule, and to hold that a landlord is entitled to obtain a decree against a ryot to compel him to execute a kabuliat, when from the plaint it is clear that the landlord was not ready or willing to execute a corresponding potta. If, instead of suing for a kabuliat, the landlord had by himself or his agent gone to the ryot and endeavoured to agree upoa the amount of rent which would be fair and equitable, the ryot would possibly have been willing to execute a kabuliat at the amount which the Qourt upon the evidence has considered reasonable. But apparently without any notice whatever to the ryot, without any notice of enhancement ia accordance with the provisions of s. 13 of the Act, the landowner commences a suit against the ryot, and asks that he may be compelled to execute a kabuliat at a rent much higher than the ryot was then paying, and much higher than that which the Court has considered that the landowner was entitled to demand. When a suit for a kabuliat at a given rent is brought, a ryot has no opportunity of avoiding litigation, unless he complies with the landowner's demand : and when the decree of the Court shows that the amount of rent demanded was more than that which, under the circumstauces, the ryot ought to pay, the suit ought to be dismissed. FULL BENCH EULINGS. 981 The facts of the present case afforH a good illustration. The landlord iggg demanded at the rate of Rs. 20 u kauee. The first Court awarded ^ Gholam a kabuliat at the rate of Rs. 12. The landowner apfiealed to the ^°^^^^° higher Court, which shows that he was not willing to execute a Dotta Asmut Ali Khan at Rs. 12, and to accept a kabuliat at that rate. The Judge increased Chowdhkt. the rate to Rs. 16, and the plaintiff says that he ought to have had a kabuliat awarded to him at the rate of Rs. 16. It does not appear that even then the landlord was willing to execute a potta at Rs. 16. But it is contended that that is immaterial, because he could not have obtaiaed execution against the ryot to compel him to execute a kabuliat at Rs. 16 until he had ofiered to give a potta at that rate. .This is the first time in which I ever heard it contended that a decree ought to be given against a ryot to compel him to execute a kabuliat at a given rate of rent, leaving it optional with the landlord to give a potta at that rate or not ; or that a decree ought to be given against a ryot which could not be executed, except upon the contingency of the landlord's doing something which the Court had no power to compel him to do. Such a decree would be a one-sided decree, binding the ryot but leaving the landowner free. These are my reasons with reference to the general question which has been propounded ; but I think that there is a still stronger reason why in tiie present case the landowner ought not to have a decree against the ryot ordering him to execute a kabuliat at the rate of rent found by the Court to be reasonable. , S. 13 of Act X of 1859 says, that a i-yot shall not be liable to pay any higher rent than the rent payable for the previous year, unless a notice of enhancement shall be served in or before the month of Cheyt. That section applies to all ryots, whether they have rights of occupancy or not. S. 17 lays down the ground upon which alone ryots having a right of occupancy are liable to enhancement. It has been held by a majority of Judges in a Full Bench, in the case of Thakooranee Dossee v. Bisheshur Mookerjee (1), that a suit for a kabuliat at an enhanced rate may be brought without notice of enhance- ment, but that, in such a suit brought without notice, the kabuliat cannot be decreed except from the year following that in virhieh the decree is given (2). In this case, the plaintiff, it is said, relying upon that ruling, brought his suit for a kabuliat at an enhanced rent without giving notice of enhancement. The suit was commenced on the 29th of August 1866. (1) Ante, p. 202. Sankar ChuckerbuUy v. Raja Intkra Bkman (2) But seeper Peacock, C.J., in AJelioy Deb Roy, i B. L. E., F. B,, 68, at p. 61. 80 982 FULL BENCH KULINGS. 1858 The suit was decided on 3rd April 1867. Assuming the commence- Gholam ment of the suit to be tantamount to notice of enhancement according to MoHAMKD ^jjg -pyjj Bench ruling, a decree could not, according to that ruling, be AsMUT An given for a kabuliat at an enhanced rate to commence before the year Khan ^ - \,- Chowdhrt, 1868. But upon what evidence could the Judge, on the 3rd April 1867, hold that iu coQsequence of the increase of produce the rent commenc- ing from 1868 ought to be enhanced beyond that which the tenant was then paying ? Could the Judge by anticipation, upon the evidence given in 1867, decree that the rent for 1868 should be at the rate of Rs. 16 ? Suppose, after April 1867, circumstances had arisen, such as one unfortunately saw in Orissa two years ago, suppose from drought at the end of 1867, or from other causes, a prospect existed of a total fnilure of crops in 1868, would the tenant be bound to execute a kabuliat at that rate for 1868? It is said that the tenant might bring a fresh suit under s. 18 for the purpose of showing that the produce had been reduced in 1868, by causes beyond his power. But was the Judge entitled, on the 3rd of April 1867, to pronounce a speculative decree as to 1868, which the tenant would have to get rid of by a fresh suit in 1868 when the cir- cumstances of 1868 became known. It appears to me that the plaintiff was no more entitled in 1867 to obtain a decree in 1867, declaring that he was entitled to a kabuliat for 1868 binding the tenant to pay Us. 16 a kanee, than he would have been to file a suit in 1867, without notice of enhancement, to declare that the fair rate of rent in 1868 would be Rs. 16 a kanee. I apprehend that such a suit Could not be maintained upon the ground that the Court could not speculate in 1866 or 1867 as to what would be the value of the land in 1868 ; nor would they allow a ryot to be harassed in 1866 by a suit for determining what would be a fair rent for 1868, when the tenant had a right, under s. 19, to give up possession at the end of either 1866 or 1867, and might never become liable to pay rent at all for 1868. I do not understand tlie majority of the Judges to have held that if a man sues for a kabuliat at a specific rent, and fails to prove that he is entitled to that rent, the Court will speculate as to what may or may not be the value of the land at the commencement of the year followino' their decree, in order that the landlord may have a decree for a kabuliat at a less rate of rent than he demanded. I am of opinion tliat the plaintiff, having asked for a kabuliat at a specific rate of rent, and having failed to show that he was entitled to that rate at the time of the decree, he was not entitled to a decree for a kabuliat at a less rate. It appears to me that he was entitled to a FULL BENCH RULINGS. 983 decree only upon proof that he was entitled to a kabuliat at the rate jges which lie demanded. Gholam As to the second point, it appears to me that the plaint, not specifying Mohambd the date for the commeueement of the kabuliat sought for, was not AsmutAli sufficiently specific, and tlint the Court in whicli it was presented ought Chowdhet, to have returned it; but that the plaint having been admitted and the case heard, the Judge might have supplied the oraisaion by the decree by specifying the time from which the kabuliat ought to commence. In this very decree the Judge has ordered a kabuliat at an enhanced rate, without specifying the date from which it was to commence. It the ryot were compelled to execute such a kabuliat from the date of the decree, he would in fact be compelled to pay an enhanced rent from a period earlier than that from which iu point of law he was bound to pay it. It is said that landowners will be placed in difficulties. But there will be no difficulty at all, if they will only follow the course which Act X points out. If they wish to enhance the rent of a ryot, they should give notice under s. 13 ; and if, after that notice takes effect, the tenant fail to pay the enhanced rent demanded, the landowner may sue for rent at the rate demanded by the notice. The Court will then determine whether the plaintiff is entitled to enhance and whether he has served the necessary notice, and then will decree payment tb him, either at the old rate, or at the enhanced rate demanded, or at the rate to which the Court may consider tlie landlord to be entitled to enhance the rent. It is by suits for kabuliats at enhanced rates without notice, suits for declarations of rights where relief is not necessary, and other pro- ceedings of that nature, that ryots are constantly harassed. In ray opinion suits of the nature which I have described, ought to be discouraged S. 23, cl. I, Act X of 1859, has been referred to. But that section was intended to point out the tribunals which were to have cognizance of suits of this nature, not to point out the cases in which such suits ought to be brought. The decision of both the lower Courts is reversed, and the suit of the plaintiff is dismissed with costs in all the Courts. Pheab, J. — I am of opinion that the first question must be answered in the affirmative ; but as I have given my views at length in the judg- ment which I delivered in the Division Bench, I do not think it necessary to repeat them now. I also think that the second question should be answered in the negative, for it appears to me that a plaintiff suing to obtain a kabuliat without specifying the time at which that kabuliat is to commence, 9U 1868 Gholau V. AsMtiT Am Ehak Chqwdhbt. MJLL BENCH RULINGS, fails to state a definite cause of action. I quite agree, therefore, with the Chief Justice in thinking that, in the Court of first instance, when a plaint of that character is presented, ifc would be the duty of the Court to reject it. But I do not at present feel myself justified in going so far as to say that that deficiency (supposing the plaint had been admitted and the case tried) could be supplied by the Court from the materials before it. At the same time, I have not that confidence in my own view on this point as would induce me to give a judicial opinion in opposition to that of the Chief Justice which he has just expressed in regard to it. MiTTER, J. — I concur generally in the judgment delivered by the learned Chief Justice. I think that a suit for a kabuliat at enhanced rates cannot be maintained without a previous notice of enhancement under s. 13, Act X of 1859. The unfairness of such a course on the part of the landlord towards the tenant has been already pointed out by the Chief Justice, and I do not wish to add anything to the remarks that have ah'eady been made by him upon that point. As however it has been previously determined by a majority of the Judges of this Court that a notice of enhancement is not necessary, I am bound to submit to that decision. But whilst submitting to it, I am not prepared to give to the landlord anything more than what he is strictly entitled to get under that decision. If the landlord chooses to avoid the ordinary pro- cess which is prescribed for him by the law, and thereby attempts to take an unfair advantage over his antagonist, he cannot in justice com- plain if he is held strictly to terms of the contract he wishes to impose upon the latter. Upon this ground I hold that the first question refer- red to us ought to be answered in the affirmative. With reference to the second point, I am also of the same opinion as the learned Chief Justice. I wish to add, however, that it is a point of little or no importance. According to the Full Bench case referred to by the learned Chief Justice, it has been decided that the kabuliat is to come into operation from the commencement of the year following that in which it is finally decreed by the Court. The landlord could not have possibly anticipated at the time when he filed his plaint as to when this decree would be passed in his favor, and the utmost that he could have done was to state therein that the kabuliat he sues for is to come into operation on some date unknown to himself, but depending upon the date when his suit will be finally disposed of. I think that the omission of such a statement is not of much consequence, and that, if any stress be laid upon the point upon purely technical grounds, the defect might be permitted to be rectified without dismissing the suit. POLL BENOa RULINGS; §85 Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Trevor^ Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. HURKO CHUNDER ROT CHOWDHRY and others (Deeendants) v. jggg SOORADHONEE DEBIA (PLAiNTii'i').t March 31. Limitation — Act XIV of 1859, s. 14 (1) — Execution Proceedings — Prosecution of Suit — Jurisdiction. Under a decree made in a suit bronght by A against B, A obtained possession of certain property. The decree was reversed on appeal, but no order was made by the Appellate Court with regard to mesne profits. After such reversal, B applied to and obtained an order from the Court of first instance for possession and mesne profits. This order, so far as it awarded mesne profits, was set aside by the High Court as being an order he had no power to make, no right to mesne profits having been declared by the Appellate Court, and as being made "altogether without jurisdiction;'' they held that B should have applied to the Appellate Court which reversed the decree, or should have brought a separate suit for the mesne profits. An application for review of this judgment being rejected, B instituted a suit for such mesne profits. Beld, per Peacock, C.J., Kemp, and Macphebson, JJ. (Loch, J., dissenting), that in the proceedings taken by B in the former suit to obtain the mesne profits she was engaged in prosecuting a suit upon the same cause of action against the same defendant within the meaning of s. 14, Act XIV of 1859. Held, per Kemp, Macphekson, and Loch, JJ. (Peacock, C.J., dissenting), that the order of the Court of first instance awarding mesne profits was not annulled from " defect of jurisdiction or for any such cause " within the meaning of s. 14, Act XIV of 1859; and consequently that the period occupied in obtaining and seeking to uphold such order could not be deducted in computing the period of limitations for the suit subsequently brought by B for the mesne profits. The appellant;, Hurro Chunder Roy Cliowdhry, was the defendant in this suit, which was brought against him by the respondent for mesne profits. It was held in the suit that the mesne profits amounted to Bs. 8,116, odd annas, and the plaintiff obtained a decree in her favor for the balance due to her. The decision of the Principal Sudder Ameen was affirmed as to the mesne profits by the Zilla Judge. The defendant appealed to the High Court on the ground, amongst others, that the suit was barred by limitation. It appeared that the present defendant, many years before this suit, sued the present plaintiff in the Principal Sudder Ameen's Court to set aside a deed under which she claimed power to adopt a son and also * Trevor, J., retired before judgment was delivered. t Special Appeal, No. 792 of 1866, from a decree of the Judge of Eungpore, dated the 28th December 1865, affirming a decree of the Principal Sudder Ameen of that district, dated the 14th June 1865. (1) See Act IX of 1871, s. 15. 986 STOiL BENCH RULINGS. jggg to recover possession of the lands which belonged to the husband, HtjRBo *** whom he claimed to be reversionary lipii- in the absence of a valid Chundbr po^er to the widow to adopt. He obtained a decree setting aside the Chowdhrt deed, and awarding him possession of the lands. He executed that SooBADHONEE dscreo in August 1857. The present plaintiff, then defendant, appealed to the Sudder Court, and that Court, on the 13th of May 1858, affirmed the decision so far as it related to the deed, and reversed it as to the award of possession to the then plaintiff, and directed that the property should remain with the present plaintiff, who, as widow in the absence of an adoption, was entitled to the estate during her life as heir of her deceased husband. After the decree of reversal by the Sudder Court, the plaintiff applied to the Principal Sudder Araeen for restitution of the property from which she had been ejected under the erroneous decree, and in November 1858 she was restored to possession of the lands. At the time when the plaintiff applied to the Principal Sudder Ame^n for restitution of the lands, she also applied to the Principal Sudder Ameea to enforce from the defendant restitution of the mesne profits which he had received whilst he was in possession of her estate under the erroneous decree. The Principal Sudder Ameen entertained her application, and appointed an Ameen to ascertain the amount of the mesne profits for the period in question. The proceedings before the Principal Sudder Ameen were pending from 1858 to tlie 19th March 1864, when the amount of mesne profits having been ascertained, the Principal Sudder Ameen ordered them to be paid to the plaintiff. From that order, an appeal was preferred to the High Court, and on the 6th of September 1864, it was held by the Court (Loch and Seton-Karr, J.T.) (1) that the Principal Sudder Ameen had exceeded his jurisdiction in giving mesne profits which the Sudder Court, passing the decree of reversal, had not provided for or had purposely omitted. They said : — ■ " The decree-holder may be entitled to mesne profits ; but when appli- cation was made to the Court below, it should have referred the applicant to the Court making the decree, or to a separate suit. * * * * As the Court below has in this matter acted altogether without jurisdic- tion, we quash the decree, and decree the appeal with costs.'' An application by the plaintiff for a review of that judgment was rejected on the 28th January 1865. -In February 1865, the plaintiff instituted the present suit to recover the mesne profits received by the defendant from her estate during the time he was in possession under the erroneous decree, and limitation was set up as bar to its main- tenance. (1) 1 W. R., Mia., 5. FULL BENCH RULINGS. 987 The lower Courts held that, in calculatinat the period of limitation, iggg a deduction ought to be made of the period between November 1858 hurbo and the 28th January 1865, during which time the plaintiflP was ^"g™'''* occupied in endeavouring to obtain the mesne profits by proceedings Chowdhky in the Court of the Principal Sudder Ameen, in which she was success- Sooradhoheb ful, and also in the appeal which the defendant preferred to this Court against the order of the Principal Sudder Ameen, in which the decision of the Principal Sudder Ameen was reversed. Against this decree tlie defendant appealed to the High Court, one ground of appeal being that the suit of the plaintiff was barred by the law of limitation, and the Courts below were wrong in making the deduction tliey hud, in accordance with s. 14 of Act XIV of 1859, in computing the perioJ of limitation. The question whether it was or was not so barred wiis referred for the decision of a Full Bench by Peaeocli, C.J., and Pundit, J. (who heard the appeal) with the follow- ing observations. Peacock, C,J. — As regards limitation, I think the point must be reserved for the consideration of the Full Bench, inasmuch as our view of s. 14 of Act XIV of 1859 conflicts with the view taken by Loch and Glover, JJ., in the case of Khetturnath Dey v. Gossain Doss Dey (1). In that case a decree passed by a Zilla Judge was sought to be executed in the Principal Sudder Ameen's Court, and the Principal Sudder Ameen struck off the case as beyond his jurisdiction. The learnedJudges held that the word"suit " ins. 14 did not apply to the case of an execution, and consequently that the plaintiff, having applied to a wrong Court for the execution of his decree, could not deduct the time occupied in that proceeding in calculating the time within which the application to the right Court for execution ought to have been made. If the construction of the learned Judges be correct, the time occupied by the plaintiff in this case, in endeavouring to recover the mesne profits in an execution-case, cannot bo deducted. If, on the other hand, the learned Judges are not right, and the proceedings to enforce an execution for the same amount against the person, who is now defend- ant, may be treated as a suit, &c., the plaintiff would be entitled to an allowance of that time. The words of s. 14 are: — "In computing any period of limitation prescribed by this Act, the time during which the claimant, or any person under whom he claim«, shall have been engaged in prosecuting a suit upon the same cause of action against the same defendant, or (1) 4 W. E„ Mis., 18. 988 FUJiL BENCH EUUNGS. 1868 some person whom he represents, bend fide and with due diligence, in HuBBo any Court of Judicature which, from defect of jurisdiction or other ^"roy"''' cause, shall have been unable to decide upon it, or shall have passed a Chowdhry decision whici), on appeal, shall have been annulled for any such cause SooRADHONEE including tiie time during which such appeal, if any, has been pending, shall be excluded from such computation." In this ease the plaintiff, who was the defendant in the former suit, having been ordered to restore the possession of the property taken in execution under a decree which had been reversed, sought, by exe- cution of the decree of the Appellate Court, to recover the mesne profits of the laud during the time they had been lield under the decree which was subsequently reversed. Having failed in that proceeding, she now sues by action to recover the same mesne profits, and in determining the question whether the action is barred by limitation, we have to decide whether she is entitled to deduct the time occupied in the execution-proceedings. The question is, whether the proeeeding in execution is the prosecution of a suit upon the same cause of action against the same defendant within the meaning of s. 14 of Act XIV of 1859. The words "against the same defendant," as my learned colleague Shuraboonath Pundit, J., suggests, mean the person who is now defendant. S. 20 says : — " No process of execution shall issue from any Court not established by Eoyal Charter to enforce any judgment, decree, or order of such Court, unless some proceeding shall have been taken to enforce such judgment, decree, or order, or to keep the same in force, within three years next preceding the application for sijch execution." The word " suit " does not necessarily mean an action in its ordinary restricted sense ; any proceeding to enforce a demand is a suit ; the person who defends himself against the enforcement of the demand is a defendant j and the demand is the cause. I therefore think that the endeavour to enforce a demand by execution may fairly be consi- dered as "the prosecuting a suit" for that demand. To show that the words " enforcing an execution" may be considered a suit within the meaning of s. 14, I would refer to the preamble and the title of the Act. The title is — " An Act to provide for the limitation of suits," and it recites that "whereas it is expedient to amend and consolidate the laws relating to the limitation of suits, it is enncted as follows." If, as held by the learned Judges in the case to which I liave referred, s. 14 does not include proceedings to enforce decrees by execution, one would have expected the title to be — " An Act lo provide for the limitation of suits and of the enforcement of decrees," and a FULL BENCH RULINGS. 989 . correspouding recital. Each of the sections ia one of the enactments jggs included in the recital under the words " it is enacted as follows," in the hurro recital. Suppose ss. 19 to 22 had been the first four sections of the Act, Chunder could it be concluded that a proceeding to enforce a decree was not a Chowdhry prosecuting of a suit for a cause of action within the meaning of Sooradhonee s. 14 ? I think not. I apprehend, therefore, that s. 14 was intended to apply to those clauses which related to the enforcement of decrees, and that the words "suit" and "cause of action" may very fairly be read as meaning an application to enforce an execution to recover the same subject-matter which subsequently forms the cause of action against the same person as the defendaut in the subsequent suit. Seeing that these clauses are introduced into an Act which is simply an Act for the limitation of suits, I think the above construction ia a very reasonable one ; and that unless such a construction be put upon the Act, the full object of the section will not be obtained. But I express no final opinion on the point ; and as the view I now take differs from that taken by my learned colleague Loch, J. (1) on that point, I shall leave my mind free for a fuller consideration of the question when it comes before a Full Bench, and I have had the advantage of conferring with tlie other Judges upon the subject, of discussing the matter with them, and of becoming acquainted with their views aud arguments. Mr. J. Cochrane (Mr. Twidale and Baboo Romanath Bote with him) for the appellant. Baboos Sreenath Doss and Nilmonee Sen for the respondent. The following opinions were delivered by the Full Bench. Peacock, C.J. (After stating the facts and the points referred, as above). — Six years from the time when the cause of action arose is the period of limitation fixed by law for suits for mesne profits. The plaintifi' was turned out of possession in August 1857. She commenced this suit in February 1865. If the period between Novem- ber 1858 and the 28th January 1865, when the review was rejected by the Division Bench, or even if the period between November 1858 and 6th September 1864, when the decree of the Division Bench was passed, be deducted, the suit is in time. The question as to whether either of those periods ought to be deducted depends upon the construction of s. 14, Act XIV of 1859 ; and (1) In Khettumath Dey v. Gossain Doss Dey, 4 W. R., Mis., 18. 81 1)90 FULL BENCH RULINGS. igng it Las been referred to a Full Bench for decision in consequence of the. HuiiKo case of Khetturnath Dey v. Gossain Doss Dey (1). At the time "rot'^" when the case was referred to a Full Bench, I gave my reasons for Chowdhey dissenting from that decision, in which it was held that an application SooRADHosEE for exccution was not a suit within the meanins: of s. 14, Drbia S. 14 enacts that (reads) the points for determination are, first, whether the prosecution of the claim for mesne profits in the miscellaneous pro- ceedings before the Principal Sudder Ameen was tlie " prosecuting of a suit" against the same defendant ; secondly, whether the mesne profits which the plaintiff then claimed, being the same as those for which she is suing iw the present action, can be said to be the same cause of action against the same defendant within the meaning of s. 14; and, thirdly, whether the Court of the Principal Sudder Ameen was a Court of Judicature, which, from defect of jurisdiction or other cause, was unable to decide upon the claim, or which had passed a decision which, on appeal, was annulled on account of any such cause. I have already expressed my opinion upon the two first points in the judgment which I pronounced upon referring the case to a Full Bench ; and I eutertain no doubt that tlie pros cution in a Court of Judicature of a summary application to enforce the restitution of mesne profits, received under an erroneous decree which has been reversed, is tlie prosecution of a suit within the meaning of the Act ; and that if the proceedings were for the same demand for whicli a suit is subsequently brought, and against the same person, the prosecution of the claim is a prosecution of a suit for tlie same cause of action against the same defendant within the meaning of the section. The word " suit " does not necessarily mean an action, nor do the words "cause of action" and "defendant" necessarily mean cause upon which an action has been brought, or a person against whom an action has been brought, in the ordinary restricted sense of the words. Any proceeding in a Court of Justice to enforce a demand is a suit ; the person who applies to the Court is a suitor for relief ; the person who defends himself against the enforcement of the relief sought ia a defendant ; and the claim, if recoverable, is a cause of action. The Legislature has clearly shown what it understood by the word "suit; "for the Act which provides a period of limitation in the case of proceedings by process of execution to enforce judgments and decrees, as well as periods for the limitation of actions or suits in the ordinary acceptance of the words, is described merely as " an Act to provide for the limitation of suits ;" and it recites that "it is expedient (1) 4 W. R,, Mis., 18. PULL BENCH RULINGS. 991 to amend the liiw relatiug to the limitation of suits." We ought not, igfig in my opinion, to fritter away tlie law by construing words according hukko to a mere techuiciil sense, instead of giving them a broad meaning, so '^Roy"" as to embrace all cases intended by the Legislature to be provided for. Chowdhky We should do well, in construing the Acts of tl)e Legislature, ,to Sooradhonee take for our guidance the following remarks, which are to be found in Domat's Civil Law, Ch. xii, s. 17, p. 88 : — " Since laws are general rules, they cannot regulate the time to come so as to make express provision against all inconveniences which are infinite in number, and that their dispositions should express all the cases that may possibly happen ; but it is only the prudence and duty of a law- giver to foresee the most natural and most ordinary events, and to form his dispositions in such a manner as without entering into the details of the singular cases, he may establish rules common to them all by discern- ing that which may deserve either exceptions or particular dispositions; and next, it is the duty of the Judges to apply the laws not only to what appears to be regulated by tlieir express dispositions, but to all the cases where a j ust application of them may be made, and which appear to be comprehended either within the express sense of the law, or within the consequences thiit may be gathered from it." The rule in s. 14 is as necessary in regard to miscellaneous proceed- ings as it is with regard to suits in the strict sense of the word : and I think we shall be giving only due effect to the law, and be putting a proper and reasonable interpretation upon it, by holding that the proceedings before the Principal Sudder Ameen for the recovery of the mesne profits in execution of a decree of reversal, was a suit within the meaning of s. 14 of the Act. I now proceed to consider whether the Court of the Principal Sudder Ameen was a Court of Judicature which, from defect of jurisdiction or other cause, was unable to decide upon the claim for mesne profits, or was a Court which had passed a decision which, on appeal, was annulled on the ground that, from defect of jurisdiction, it was unable to decide upon it. But for the decision of the Division Bench of the 6th September 1864 (1), I should have thought it clear that, as a matter of law, when the decree under which the plaintiff was turned out of possession was reversed by the Sudder Court, and it was ordered that the property should remain with the plaintiff, she had a right to be restored to the possession which she had lost, not only of the land, but also of the rents or profits which had been received by the defendant, whilst he was in (1) Between the present parties in the {ormer execution-proceedings, 1 W. R., Mis., 5. 992 FULL BENCH RULINGS. 18S8 possession of the land by force of the erroneous decree which was HuBRo reversed. When a decree orders a sum of money to be paid to a plaintifiF, Chundbr lie ia entitled to have that decree executed, altiiough the decree is silent Roy _ ' o Chowdhry upon the subject of execution. It is the legal effect of a decree that it SooRADHONEE is to be executed. It is the legal effect of a decree of reversal that the ^^'*' party against whom the decree was given is to have restitution of all that he has been deprived of under it. A Court of Appeal does not necessarily enter into the question, whether a decree, which it is about to reverse, has been executed or not. The decree of reversal neces- sarily carries with it the right to restitution of all that has been taken under the erroneous decree, in the same manner as an ordinary decree carries with it a right to hafe it executed ; and I should have considered that a decree of reversal necessarily authorized the lower Court to cause restitution to be made of all that the party, against whom the erroneous decree had been enforced, had been deprived by reason of its having been enforced. The Sudder Court ordered that the lands were to remain with the plaintiff. It did not order the lands to be restored to her ; but the neces- sary consequence was thut restitution was to be miide, and restitution of the lands was made by the Principal Sudder Ameen without any objec- tion. There seems to be no reason why he should not hiive restored to the plaintiff the rents and profits of which she was deprived during the time she was kept out of possession of her land under the erroneous decree. She applied for restitution of the lands and to have those mesne profits restored to her, and whether right or wrong, the Principal Sudder Ameen entertained her application, assumed that he had jurisdictioa to order restitution of the mesne profits, and proceeded to ascertain the amount, and awarded it to her. These proceedings, which were com- menced shortly after the reversal of the erroneous judgment in 1858, unfortunately lasted up to 1864, when the plaintiff obtained an order for the amount of the mesne profits of which she had been deprived. This order was reversed by a Division Bench of this Court iu September 1864. The proceedings, therefore, lasted between seven op eight years without any apparent neglect on the part of the plaintiff. In giving judgment, the Division Bench, consisting of Loch, and Seton-Karr, JJ., said : — •," The decree (meaning the decree of reversal) certainly gave Sooradhonee {i. e., the plaintiff) no mesne profits. It merely directed that she should be retained in possession. If she wished for mesne profits during the period she was out of possession, she should have applied to the Court passing the decree to give an order to that effect. But the lower Court had no authority to import into the decree FULL UENCH RULINGS. • 993 what was not tliere. It went beyond* its jurisdicliou in giving mesne jges profits wljich the Sadder Court, passing the decree, had not provided Huituo for, or had purposely omitted. The decree-holder may be entitled to ^"roy""' recover mesne profits. But when application for tliat purpose was Chowdhky made to the Court below, it sliould have referred the nppliennt to the Soohadhoneii; Court making the decree, or to a separate suit ; and we do not think tlint, though the opinion of the lower Court was expressed so far back as 1858, and no appeal was then preferred, we are prevented from taking up the point in the present appeal, whicli is from an order awarding the amount of those mesne profits ascertained by local investi- gation. As the Court below has in this matter acted altogether with- out jurisdiction, we quash the order" (1). The decree of the Division Bench, whether right or wrong, and we must assume it to be right, expressly reversed the decision of the Principal Sudder Ameen upon the ground that he had no jurisdiction. It would seem that the Judges considered that the Sudder Court, which reversed the decree, was the proper Court to determine whether the plaintiff was entitled to mesne profits or not. They, however, said that the Principal Sudder Ameen should have referred the applicant to the Court which made the decree, or to a separate suit. In England, if a judgment is reversed for error, the person against whom the judgment was given is entitled to a writ of restitution. It is not a mere matter of discretion with the Court which reverses a decree, wlietlier tlie party against wiiom it was given is or is not to be restored to what he has been deprived of under it. There can be no doubt that, in point of justice, the plaintiff was entitled to have the rents, which the defendant had collected from her land whilst he was in possession of it under the erronnous decree, refunded. Tliis case is not like the case of Mosoodun Lall v. Beka- ree Singh (2), in which it was held that it was discretionary with the Court wliicli passed the decree to award interest or not. In that case it was very properly held that the Court executing the decree could not award interest when the decree was silent as to interest. In the case of In re Rajkissen Singh (3) tlie Court said, with reference to a decree wiiich had been reversed : — The defendants must be restored, without security, to all that was taken from them in execution of the decree of the lower Court." The plaintiff ought to be put in the same position as she would have been if the decree which has been reversed had never been given. (1) 1 W. R., Mis., 5. ' (2; Ante, p. 602. (3) Ante, 605, at p. 609. 994 FULL BENCH KULINGS. 1868 The plaintiff was deprived for nearly a year and half of the rents HunRo and profits of her lanri, not on account of any fault of Iier own, but P^oy under the execution of an erroneous decree. She has not been guilty Chowdhry ^,f laches, nor has she been sleeping over her rights ; but she seems to SooFtADHONEE have been a victim to erroneous decisions of the Courts of Justice. Debia. Having got the erroneous decree reversed, she has been continuously, but unfortunately without effect, prosecuting her claim for nearly ten years ; and now, after she has been referred for redress to a civil action and has prosecuted it with success, and obtained a decree in her favor, which has been upheld by the Zilla Judge on appeal, she is to be told, upon special appeal to this Court, that she is barred by limitation. It is clear that, in the miscellaneous proceeding before the Principal Sudder Ameen in 1858, tte plaintiff", upon the reversal by the Sudder Court of the decree against her, applied for the same mesne profits as those which she seeks to recover in this action. The Principal Sudder Ameen awarded them to her, but his decision was reversed upon the ground that he had no power to award them. It is impossible, in my opinion, to say that the decision of the Principal Sudder Ameen was not reversed on the ground that, from defect of jurisdiction or other cause, he was unable to decide upon the plaintiff's claim to mesne profits. I am, therefore, clearly of opinion that the time during which the plaintiff was prosecuting her claim for these mesne profits, by pro- ceedings before the Principal Sudder Ameen and in the High Court, ought to be deducted in calculating the period of limitation, and that the suit is not barred by limitation. To come to a different conclusion would, I think, bring discredit upon the law and upon the administration of justice. I wrote my judgment before the judgments proposed to be delivered by my honor- able colleagues were written, and I may say that Trevor, J., concurred in my opinion that the plaintiff's suit is not barred. As he has retired, his opinion has not the effect of a judgment, and as there are three Judges of a different opinion, it does not make any difference. Having fully considered the arguments of my honorable colleagues, I still retain the opinion I have expressed. My honorable colleagues Kemp and Macpherson, JJ., agree with me in thinking that in the proceeding which the respondent took in the former suit to obtain the mesne profits, she was engaged in prose- cuting a suit upon the same cause of action within the meaning of s. 14, Act XIV of 1859. They admit that, although it is diflScult to understand how the proceedings before the Principal Sudder Ameen could have been protracted from 1858 to 1864, no case of want of FULL BENCH liULIKGS. 995 fwna fides ir of due diligence in the prosecuiion of tlie former pro- jggg ceedings oa the part of tlie respondent has been establislied. Hukho Their judgment is founded upon tliis, that tiie decision of the ^y"*" Principal Sudder Ameen awarding mesne profits to the plaintiff was CiiowDnrtY reversed, not because he had no jurisdiction to hear the proceedings Soohadhonke or suit then before him, but because he had no autiiority to import into the decree of the Sudder Court that which was not there. That is in effect deciding that his decision was reversed because be had no jurisdiction to go beyond the decree of the Sudder Court, and to exer- cise his own independent judgment as to whether the plaintiff was or was not entitled to recover mesne profits. The decision of the Prin- cipal Sudder Ameen was reversed, not upon the ground that the plaintiff was not entitled to mesne profits, but upon the ground that the Principal Sudder Ameen was not tlie proper Court to decide as to her right to mesne profits, and that he ought to have referred her to the Sudder Court or to a new aciion. The proceeding before the Principal Sudder Ameen is admitted by Macpherson, J., to have been a suit within the meaning of s. 14, Act XIV of 1859, and the cause of the plaintiff's application to the Principal Sudder Ameen is admitted to be the same as that for which the present action was instituted. If the plaintiff is not entitled to recover those mesne profits in tiiis action, she will fail on the merits. For the purpose of considering the question of limitation, it must be assumed that she is entitled to recover them. The Priucipal Sudder Ameen held that she was entitled to them, and awarded them to her. His decision was reversed by a Division Bencii of the High Court, whether right or wrong, upon the ground that he had no power to deal with the plaintiff's claim. The plainiiff's claim to restitution before the Principal Sudder Ameen was not upon the ground that the mesne profits had been awarded to her by tlie Sudder Court, but upon the ground that, upon the reversal of the erroneous decree, she was entitled to the mesne profits which the defendant had received while he was in possession of her lands under that decree. The Pi incipal Sudder Ameen thought that he had power to decide upon the plaintiff's claim, and he did so by awarding the amount to her. Tlie Division Bench thought that l^e had no power to decide her claim, and reversed his decision upon that ground. His decision upon the claim was, therefore, annulled upon the ground that, from defect of jurisdiction or some other cause, he was legally unable to decide upon it. 996 FULL BENCH RULINGS, 1858 If the decision of the Principal Sudder Ameen was reversed because HunRo he had not tlie power to award the mesne profits to the plaintiff, a lior'"' P"wer which, it wns admitted, the Sudder Court, or a Court in which a Chowdhky new suit might be instituted, would have had, it must have been SooRADHONEE because he had not the power to determine whether the plaintiff ought to have them or not, ; or, in other words, because he had not the power, for want of jurisdiction or for some otlier cause, to decide the plaintiff's claim. I know of no difference between not liaving power by law to determine or to decide upon a question, and being unable for want of jiirisdietioa to determine or to decide upon it. Macpherson, J., with wliom Kemp, J., concurs, says : — " The material point was that, though the lower Court had jurisdiction to deal with the application, the respondent wlio applied could not show her right to the mesne profits in the absence of a declaration of that right by the Sudder Court." I am at a loss to see how if she could not do so in the miscellaneous pro- ceedings, she could do so in a new action. But be that as it may, that was not the ruling of the Division Bench. They said she migiit have a right to the mesne profits, and that the Principal Sudder Ameen ought to have referred her to the Court which passed the decree of reversal, or to a separate suit. What was that but sayiug that the Principal Sudder Ameen had not the same power to determine as to the plaintitf 's right, as the Sudder Court, or the Court in which she might bring a separate suit, would have ? We are not sitting on appeal from the Division Bench. We are not to say whether their decision was right or wrong. We are not to decide whether the Principal Sudder Ameen had jurisdiction or not. We are merely to ascertain upon what ground the Division Bench annulled liis decision. If they had annulled it upon the ground that the plaintiff was not entitled to the mesne profits of which she had been deprived by the defendant under the erroneous decree, that would have been a different thing. But they did not do so ; they annulled the decision expressly upon the ground that the Principal Sudder Ameen acted without jurisdiction. My honorable colleague. Loch, J., in his judgment, says: — "In saying, as we did at tlie close of the judgment, that the lower Court acted altogetlier without jurisdiction, we meant only that it had exceeded its authority, not that it had no jurisdiction to try whether the plaintiff was or was not entitled to recover mesne profits, " But how could the plaintiff know what they meant, unless they meant what they said ? They held tbat the Principal Sudder Ameen exceeded his authority in deciding that the plaintiff was entitled to recover mesne profits, and they PULL BENCH RULINGS. 997 reversed his decision upon that ground. It appears to me that they igj^g annulled his decision upon the ground that he was unable, from want of m^ jurisdiction or other cause, to decide upon the pliiitiiiff's claim. They '^",™'"' would not have reversed the decision of the Principal Sudder Ameen CHowDnitY V. if he had rejected the plaintiff's claim and stated that, as the decree Sookadhonbe of reversal was silent upon the subject of the plaintifi''s right to mesne profits, he was unable to decide upon her claim. If lie had so decided, he would have held that, for want of jurisdiction or other cause, he was unable to decide upon it. His decision was reversed because he ditl decide upon it. It seems to me to have been the object of the Legislature to prevent suitors from being barred by limitation by reckoning against tliem time fruitlessly but in good faith occupied in litigation in a Court which, for want of jurisdiction or other cause, has no power to decide upon tlieir claims, or whose decision is annulled upon appeal' for such cause. The time is to be deducted not only when, from defect of jurisdiction or other cause, the Court in which the claim is preferred is unable to decide upon it, but also when the Court believing that it is able to decide upon it, passes a decision, and that decision is annulled upon appeal, upon the ground that it was not able to decide upon it, and was therefore wrong in so doing. It matters not for this purpose whether the Appel- late Court is right or wrong ; if wrong, it would be just as unjust to reckon the time against the suitor, as it would be if the Appellate Court was right. Parties are not to be ban'ed by limitation by reckoning against them time fruitlessly occupied whilst they are being lianded about from Court to Court by reason of doubts or erroneous decisions upon questions of jurisdiction, or of the powers of the Courts to entertain claims that are brought before them for decision, MacphersoD, J., says (and Kemp, J., concurs with him) that he fails to see that this case -is one of any special hardship so far as the respond- ent is concerned ; that 'her remedy byway of review of the Sudder Court's decision was suggested to her, but she did not avail herself of it. I cannot concur in this remark. At ' the time when the Division Bench suggested a review, they also suggested' the institution of a fresh suit as an alternative remedy. According to the view of the maj-.ority of the Judges, she was barred by limitation at the time when the suggestion was made. The plaintiff availed herself of one of the two suggestions, and commenced a fresh suit almost immediately. If she had adopted the other suggestioUj and had applied to the High Court to review the judgment of the late Sudder Court, she would probably have been told tiint it was mnttel' of discretion whether the 82 998 PULL BENCH RULINGS. 1868 application for review should be admitted after the regular time, and HuREo that she came too late. Chundeb rpjjg judgment of the Principal Sadder Ameen was in fact reversed Chowdhrt ^ipgj, jjjg ground that he had acted without jurisdiction j and the plaintiff SooEADHONEE has actod upon the faith of what the Judges said, and she brought a new suit according to the suggestion of the Court. How could she or her advisers have possibly imagined that., when she should seek to have the time deducted which she had spent fruitlessly in a Court whose decision had been expressly reversed because it had acted altogether without jurisdiction, she would be told that that was not the ground of reversal ? In my opinion a reversal of the decision of the Principal Sad- der Ameen expressed to be upon the ground of want of jurisdiction, was a reversal within the meaning of s. 14 of the Limitation Act, whether the Principal Sudder Ameen had jurisdiction or not. Even if it can be said that the decision was not reversed upon the ground of want of jurisdiction, it was clearly annulled upon the ground that the Principal Sudder Ameen, for some other cause, was unable to decide upon the plaintiff's claim. This case, like every other, must be determined according to law, and not with reference to hardshipi. Whether the case is one of special hardship or not, it is not for me to say ; but I must say that this lady has good grounds to complain either of the uncertainty of the law, or of the manner in which it has been administered in her case. She has been deprived of a large sura of money in consequence of an erroneous decree which has been reversed. She has been endea- vouring continuously for the last ten years to recover that of which she has" been so deprived. She has had three decrees in her favor. No laches are imputed to her. One decree has been reversed with costs, and now the other two are to be reversed, and she is to be turned round upon on the ground that she is barred by limitation. Since this judgment was delivered, I have been referred to the case of Doorgapersaud Roy Chowdry \. Tarapersaud Roy Chowdry (1). The case is somewhat analogous. The Privy Council hold that, under the old law of limitation, the time during which the plaintiff was fruit- lessly endeavouring to obtain mesne profits in execution of an erroneous order, which was subsequently set aside, was not to be reckoned against him in calculating limitation. Loch, J.- — It appears to me that the only safe course for a Court executing a decree to take, is to execute it strictly, without importing (1) 8 Moore's I. A., 308. FULL BENCH RULINGS. 999 into it anything that is not distinctly comprised in it. There can be no iggg doubt that the plaintiff in this ease, when she recovered possession of Hubro the property from which she had been evicted under the erroneous ^^^ decree of the lower Court, was entitled to the mesne profits for the Chowdhky period during which she was out of possession, but the decree of the Sooradhonee DEblA. Sudder Court was silent on the subject, and consequently I hold that the lower Court, in executing that decree, should have confined itself to what that decree gave the plaintiff, viz., possession. If the plaintiff required mesne profits for the period of dispossession, she had only to ask the Court which passed the decision to supply the omission, or she might have brought a suit to recover the amount. Either course was open to her, and when the order of the Principal Sudder Ameea awarding mesne profits was reversed by a Division Bench of this Court in September 1864, she had then plenty of time to make an application to the Court. In the Shoosung case (1), the Division Bench reversed the order of the lower Court, which had been executed before the appeal was heard, and directed that the appellant should be restored to possession, and recover from the respondent all sums realized by him during his possession under the erroneous decree, with interest. Such an order should have been made in the plaintiff's case, and till it was made, the Principal Sudder Ameen should have confined himself to giving back possession as decreed to the plaintiff. With regard to the word "suit," as used in s. 14 of Act XIV of 1859, if that and other sections, such as 1 1 and 12, had been placed after s. 23, there would, I think, have been little doubt as to the meaning of the word, and that the provisions of the sections applied equally to all the previous sections. Placed as it is in the middle of the Act, it appears to me to refer only to what has gone before, and to relate only to suits previous to judgment. S. 18 appears to me to draw a line between the two parts of the Act. Suits -are not mentioned again in the remain- der of the Act, and the words of that section certainly apply to what has gone before, and not to what follows. It may be said that proceedings in execution are only a continuance of the suit — that they are merely the necessary steps taken to secure the benefit of the suit which has been decreed, and, as such, are but the subsequent parts to make it complete. While I admit this, I must at the same time assert that in the Courts of this country not established by Royal Charter, the suit has always been considered to come to an end with the judgment, and applications for executioa were looked upon as (1) 2 W. K.,80. 1000 FULL niCNCII RULINC4S. isRg separate pi-oceeJings : and, looking at tiie Act, it appears to me to be I-IuiiRo drawn up witli a recogQiiiori of tliia distinction between the suit itself *^"roy' " '""^ ''"^^ proceedings whicli followed, and related to the execution of Cmowdhki' the decree passed in the suit. The judgment of the late Sudder Court SooRADHONEE in tlic caso -of Womesh Chunder Roy v. Bhugwan Chunder Roy (I) shows the distinction whioh used to be drawn between suits and proceed- ings taken in execatioo. I do not think that any argument in favor of the view taken of the word "suits" in the order of reference can be gathered from the title of this law, when it is remembered that, up to the passing of Act XIV of 1839, we had no statute law prescribing the time within ■which execuiion of decrees should be taken out, and that " limitation," when it is used in the Regulations, applies to suits in wiiich no judgment had been passed, and not to proceedings taken after judgment has been delivered. Wlierever the word "suits" is made use of in Act XIV of 1859, it means cases in which no judgment has been pronounced, and it appears to me that the word was not intended by the Legislature to be applied to proceedings to enforce execution of a decree. Holding the opinion I have expressed above, it is hardly necessary for me to say more, but, as I was one of the Judges who passed the order of September 1864, I think it proper to explain the meaning of the words " w.ant of jurisdiction" used in that judgment, and which may be gathered from the earlier part of that judgment. A Court may have no jurisdiction at all, or having jurisdiction, it may exceed its authority, and thus be said to act without or beyond its jurisdiction. The words used werej — " But the lower Court had no authority to import into the decree what was not there. It went beyond its jurisdiction in giving mesne profits, which the Sudder Court, passing the decree, had not provided for, or had purposely omitted." In saying as we do at the close of the judgment that the lower Court acted "altogether without jurisdiction," we meant only that it had exceeded its authority, not that it had no jurisdiction to determine whether the plaintiff was or was not entitled to recover mesne profits. The Full Bench, in its judgment of the 31st August 1866, In the matter of the Petition of Subjan Ostagar (2), in giving an explanation of the words " exercised a jurisdiction not vested in it by law," used in s. 35, Act XXIII of 1861, held that these words com- prised not only cases in which the Subordinate Appellate Court liad no jurisdiction at all, but also cases in which such Court having jurisdiction exceeds its jurisdiction. In this latter sense, I consider that the Principal Sudder Ameen acted without jurisdiction iu this case. (1) 2 S. D. A. Rep,, 17th Dec. 1860, 401. (2) 4n(e, p. 531, FULL RENCH RULINGS. 1001 Even if I concurred in tlie opioion expressed by my learned colleagues iges tliat the proceedings taken in execution of a decree were a suit within Bvrro the meaning and intention of the Act XIV of 1859, I should not be ^"rq""" prepared to allow the plaintiff the benefit of the time durin" which Chowdhry slie was engaged in carrying out the execution-proceedings in the Sooradhonkb Principal Sudder Ameen'a Court, unless the words " defect of juriadic- '*'*'*' tion or other cause," mentioned in s. 14 of that Act, can be held to apply to cases in which a Court has acted in excess of its jurisdiction. Macpheeson, J. (Kemp, J., concurring).— I concur with the Chief Justice in the opinion, and in tiie reasons given for the opinion, that in the proceedings wliich the respondent took in the former suit to obtain wasilat, she was, within the meaning of s. 14 of Act XIV of 1859, "engaged in prosecuting a suit upon the same cause of action." But I regret that I differ in the conclusions at which I have arrived upon the otiier questions which arise in this reference. S. 14 requires that tlie prosecution of the suit shall have been carried on bona fide and with due diligence. I cannot say that want of bona fides or due diligence in the former proceedings has been proved. Nevertheless, it is difficult to understand how tiie proceedings before the Principal Sudder Ameen, which had for their object merely the ascertainment of the mesne profits of less than two years, could have been protracted from 1858 to 1864, if any reasonable diligence had in fact been exercised by the respondent. Then, was the decision of the Principal Sudder Ameen awarding wasilat annulled by the High Court, on September 6th, 1864, from "defect of jurisdiction or for any such cause?" In disposing of this point, I shall express no opinion as to whether the Division Court was right or not in reversing the order of the Principal Sudder Ameen, for that question does not direcily arise on the present reference. It seems to me that the order of the Principal Sudder Ameen was not annulled for a defect of "jurisdiction" properly so called, or "for any such cause." No doubt, in the judgment of the 6th September 1864, the word "jurisdiction" is used. But it was not used then in its proper sense, or in the sense in which it is used in s. 14 of Act XIV of 1859. The Court said (1) :— " But the lower Court had no authority to import into the decree what was not there. It went beyond its jurisdiction in giving mesne profits, which the Sudder Court, passing the decree, had not provided for, or had purposely omitted. The decree-bolder may be entitled to recover mesne profits. But (0 1 W.E„Mis,,5, 1002 FULL 'BENCH RULINGS. 18S8 when application for that purpose was made to the Court below, it HuKEo should have referred tlie applicant to the Court making the decree, "roy"" "I" '^ ^ separate suit, and we do not think that, though the opinion Chowdhky of the lower Court was expressed so far back as 1858, and no .SooKADHONEE appeal was then preferred, we are prevented from taking up the Debia. . point in the present appeal, which is from an order awardmg the amount of those mesne profits, ascertained by local investigation. As the Court below has, in this matter, acted altogether without jurisdiction, we quash the order, and decree the appeal with costs." The sense in which the term "jurisdiction" was intended to be used is, I think, clear, and is to be found in the passage in which it is said that " the lower Court had no authority to import into the decree what was not there." It cannot be said that the lower Court had not jurisdiction, in the ordinary sense of the term, to deal with this matter. The original suit was one in which the Court admittedly had jurisdic- tion, and any application made in the course of the suit, whether with a view to execution or otherwise, was made to a Court having jurisdiction. It is one thing to say that a Court has not the power to make, or cannot properly make, a particular order in a suit, and quite another thing to say that the Court has not jurisdiction to entertain the suit, or the particular application which it ought not to grant. In disposing of the question properly before it and cognizable by it, — as to how effect was to be given to the decree of the Sudder Court, — the lower Court gave to the respondent more than it should (in the opinion of the High Court) have given ; and so far as it gave too much, its order was reversed. The lower Court might, beyond all doubt (even according to the ruling of the Division Court) have made the order which it passed, if the Sudder Court had declared the respon- dent's right to the wasilat which she sought. It was not because it had no jurisdiction, but because the Sudder Court had not declared the right, that the lower Court was deemed to be wrong in givin" tlie mesne profits. There was, in fact, no want of jurisdiction, nor anything of the kind ; and I think that the learned Judges, in their judgment of the 6th of September 1864, said no more than that the lower Court ought not to have acted as it did without a distinct declaration by the Sudder Court of the respondent's rio-ht to the wasilat. Tlie material point was, that though the lower Court had jurisdiction to deal with the application, the respondent who applied could not show her right to the mesne profits in the absence of a declaration of that right by the Sudder Court. FULL BENCH KULINGS. 1003 I tlnuk that the appellant's contention is right, and the respondent's ises suit is barred by limitation. Hukro The law of limitation often operates with much hardship upon ^"j^'^^'*'* individuals. But I fail to see that the present case is one of any special Chowdhry hardship, so far as the respondent is concerned. Her remedy by way SoortADHONEK of review of the Sudder Court's decision was suggested to her, but she did not avail herself of it, which, with refereuce to the provisions of Act XIV of 1859, if for no other reasons, she certainly ought to have done. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Htbhouse. BANI ASMUT KOOER and otheks (Jtogment-bebtors) v. MAHARANI 1868 INDUE JEET KOOER (Decree-holder).* ^P""^ 4. Mesne Profits, Calculation of — Cultivation of Lands by Person in Wrongful Posseesion. When a person in ■wrongful possession of land has himself occupied and cultivated it, the proper principle on which the amount of mesne profits is to be calculated is to ascertain what would have been a fair and reasonable rent for the land, if the same had been let to a tenant during the period of the unlawful occupation by the wrong-doer (1), The plaintiff having in a previous suit got a decree for possession of certain lands, now sued for mesne profits. In her plaint she alleged that the lands in question were kept by the defendant in his own khas possession, and were cultivated by him; and she prayed "for the recovery of Rs. 7,762-2-8 on account of pucca or boiled (manufactured) indigo, rubbee, and other crops," with interest, The lower Court was of opinion that, assuming it to be true that the defendant had himself occupied and cultivated the land as alleged, the plaintiff could recover as mesne profits only such a sum as might have reasonably been realised from tenants, supposing that the land had been let out to tenants. That Court accordingly gave the plaintiff a decree for Rs. 293-14, being the amount at which it estimated the rents which might have been realised from tenants. The plaintiff appealed to the High Court. At the hearing, while abandoning her claim to the value of the manufactured indigo, tlie plaintiff contended that she was entitled to the actual value (less cost of production) of the various crops of indigo, rye, muttur, &c., which had been produced in the lands during her dispossession. * Miscellaneous Appeal, No. 362 of 1867, from an order of the Principal Sudder Ameen of Gya, dated the 30th May 1867. (1) See Watson V. Pyari Lai Shaha,7B. L. E., 175; Ani Eibee Sohodwa v. Smith, 12 B. L. K., 82, at p. 88. 1004 FULL BENCH RULINGS, 1868 Rani Asml"t KOOBU V. Maharani IwnUKJICKT KOOEU. The case was lieanl before Macpherson and Setoii-Karr, JJ., who referred to a Full Bench the followiDg question — " What is the proper piiuciple OQ which mesne profits are to be calculated, when the person liable to pay the mesne profits has not let the lands to tenants, but has himself occupied and cultivated it, growing on it indigo and other crops ?" The reference was made owing to conflictiug decisions as to the mode of calculating mesae profits in the cases of Bessunnessooree Dabea V. Tarasoonderee Bhaminee (1), Ramnath Chowdhry v. Digumber Roy (2), Khemon Kuree Debia v. Moddhoomotly Debia (3), Bindabun Chunder Sircar v. Roberts (4), and Rughoonath Roy v. Bartiik Geeree- dharee Singh,{5). Tlie following cases were also referred to in tlie argument on behalf of the defendiini — Hunooman Doss v. Koomeeroon- nissa Begum (6), Smith v. Sona Bibee (7), Dinobundoo Nundee V, Keshub Chunder Ghose (8), Baboo Purmessuree Pershad Narain Singh v. Aghitr Singh (9), and Palmer v. Mohunt Balgobind Doss(\0). acting on his account, have made from ryots : and as to that part of the land (1) Marsh., 201. (2) 3 W. K., Mis., 30. (3) 4 W. K., Mis., 23. (4) Before Mr. Justice Steer and Mr. Justice Morgan. BINDABUN CHUNDER SIRCAR (jndgment-dkbior) v. roberts (Deckee-holdee). The nth November 1862. which has been used for indigo cultivation' the decree-holder is entitled in execution of his decree to receive on account of mesne profits, such a sum as a tenant using the land for the same purpose might be expected to pay as rent. The alleged wrongful act of Eamcoomar and the identity of Eamcoomar with the defendant Bindabun, being esta- The judgment in this case, so far it related blished to the satisfaction of the Principal to the mode of estimating mesne profits, was Sudder Ameen, he has awarded to the as follows : decree-holder as wasilat not only the oollec- " The Principal Sudder Ameen was of tions from, ryots, but also the value of the opinion that the decree-holder was entitled indigo produced and made during the time to the value of the indigo by reason of his of his dispossession. But the Principal having been deprived of a certain jote in the Sudder Ameen was not, in our opinion, land in the year 1853, when one ilamcoomar authorised in executing this decree to deter- Koondoo brought a suit and ousted him from mine such questions and to give to the decree- thelandonwhichhehadpreviouslyoultivated holder the profits arising from the skill and indigo plants. The Principal Sudder Ameen capital employed by, or on account of found that Bindabun, the judgment-debtor, Bindabun in making indigo, and the said Ramcoomar, were in truth one " We therefore remand the case .in order and the same person, and that the judgment- that the Court may determine the amount debtor having improperly deprived the of mesne profits in accordance with this decree-holder of the possession of the land, decision.'-' is bound to pay to the latter as mesne (5) 7 W. R., 244. profits the value of the indigo. " We think that the decree-holder is entitled, in execution of his decree in this suit, to recover as mesne profits from the judgment-debtor the collections which he. (6) W. E., Spl. No., 40. (7) 2 W. R., Mis., 10. (8) 3 W. E., Mis., 25. (9) 7 W. E., 78. or other persons in collusion witU him and (10) 7 W. R,, 230. KOOER. FULL BENCH RULINGS. 1005 Messrs. R. E. Twidale and C. Gregory for the appellants. Iggg Mr. R. r. Allan, Moonshee Ameer Ah, and Baboo Romanath Rose Kooer for the respondents. Maharani Indukjket The following opinions were delivered by the Full Bench : — Peacock, C.J. (Macpheeson and Hobhodse, JJ., concurring). — I think there is no doubt about this case. The plaintiff has "sued for the mesne profits of lands from which she has been turned out of possession. She says that the defendant, whilst he was in possession, grew indigo crops upon tlie land, and manufactured indigo from the crops. She claimed the value of the indigo as damages. It is clear that the value of the manufactured indigo was not the proper measure for her damages. On appeal, she abandoned her claim to the value of the manufactured indigo, and contended that she was entitled to the value of the indigo and other crops. The plaintiff did not sue for the crops, but for the loss which she has sustained in having been kept out of the land. There is a great dis- tinction between suing for crops which were grown upon, and taken from, her land during the time she was wrongfully kept out of possession, and suing for the loss which she had sustained by being deprived of the land. If she sued for the crops, she could not have the value of the crops as well as the sum for which the land would have let whilst the crops were growing. Slie must have been satisfied with the value of the crops, however bad they might have been. On the other hand, if she sued for the occupation of tiie land, she would have been enti- tled to it, even if the crops had wholly failed or the indigo had been spoiled in the course of manufacture. The defendant incurred considerable risk in growing indigo ; and if the cultivation succeeded, he was entitled to have the expense of culti- vation as well as the value of the risk deducted from the value of the Crop. The plaintiff ought not to be compensated for risk which she never ran or for expenses which she never incurred. If the whole of the indigo crops had been destroyed by rain or other cause, the plaintiff would not have been satisfied to give up the fair occupation value of the land, but would have thrown the whole risk of the cultivation upon the defendant. All that she is entitled to recover as damages is a fair and reasonable compensation for what she has lost by being deprived of her land. The question which has been referred to the Full Bench is, what is the proper principle on which mesne profits are to be calculated when 83 lOUG FULL nENCH RULINGS. 1SC8 tlis person liable to pay the mesne profits Las cot let the lands to tenants, JRani asmut but has himself occupied and cultivated it, growing on it indigo and ^°°'"' other crops. Maharani I am of opinion that the proper principle on which such damages Kooiiu. ought to be assessed is to ascertain what would have been a lair and reasonable rent for the land if the same had been let to a tenant during the period of the unlawful occupation by tlie wrong-doer. The case will go back to the Division Bench which referred it, in order to be determined upon the merits. Seton-Kark, J. — I am of the same opinion. There are only two cases which at all support the contention of the appellant. The case of Bessunessooree Dabea v. Tarasoonderee Bhaminee (1) is not at all. in point. The two cases which really do support the contention are those of Ramnath Chowdhry v. Digumber Roy (^2) and Khemon Kuree Debia V. Moddhoomotty Debia (3). Bat with all respect to the Divisional Bench which laid down the principle in those decisions, I cannot think tliat such a principle is correct. The sound principle appears to me to be laid down iu Baboo Purmessuree Pershad Narain Singh V. Aghur Singh (4), and that principle has also been followed on other occasions. I would carefully guard myself from expressing an opinion as to what the principle should be where a cultivating ryot holding yawiwjai or other lands which he has cultivated himself for a considerable period,' has been dispossessed by a wrong-doer. But in the present case I think the correct principle — and in fact the only principle — to be adopted, ia that of estimating the plaintiff's loss by the amount of rent which, if in possession, she would have received. There is an additional reason for adopting this principle, because if it were necessary, as it would be, to arrive at a calculation, by considering all the varying produce of a very considerable tract of country, the differences both in yield and ia price, and the fluctuations of the market at different seasons, the enquiry would certainly be harassing, and might possibly be inter- minable and infructuous. But this is only an additional reason for adopt- ing the principle that the rent should be the basis of calculation, and I rest my decision mainly on the simple ground that the measure of damages to the plaintiff (appellant) should be what she has actually lost and not what her adversary may have actually gained by his own endea- vours while in wrongful possession. Jackson, J. — I am also of the same opinion. On the general ques- tion, I entirely concur in the view expressed by the Chief Justice. (1) Marsh., 201. (3) 4 W. E., Mis., 23. (2) 3 W. K., Mis., 30, (4) 7 W. K., 78. FULL BENCH RULINGS. 1007 la respect of what the decision might have been if the plaintiff had jggg brought her action in the form of a suit for damages occasioned by the Eani Asmut defendant's trespass in carrying away the crop from the plaintiff's lanil, Kooer I would remark tliat suits in that form are not, I think, generally Mahakani ° •' INDURJ'ISKT known in* our Courts. This was clearly a suit in the ordinary form Kooek. for wasilat, — not a suit for damages on account of trespass. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Macpherson, and Mr. Justice Hobhouse. In the matter op the Petition of EANI ISMAID KOOER and another, ]8G8 April 4, Act VIll of 1859, ». 338 — Execution of Decree, Grounds- for — Stay of Execution Security. A party applying to stay execution of a decree under s. 338 on giving security, is bound to sliow sufficient grounds to the Court for staying it whether the decree is in respect of moveable or immoveable property. Upon an application to the High Court by Rani Ismaid Kooer and others, who had appealed to that Court against a decree for a sum of money, for stay of execution on security being given under s. 338 of Act VIII of 1859, the Court called upon the petitioners to show cause why execution should not be stayed on security being given. Mr. Doyne, on behalf of the petitioners, contended that as the decree was simply for a sura of money, it was not necessary for them to show cause at all, as the practice of the High Court in decrees for money, as interpreted by its decisions, was at once to stay execution, without cause shown, on good and sufficient security being given. He cited the case of Mohamed Wajeed Ally Shah v. Monohur Doss (I). The Court (Loch and Hobhouse, JJ.) not agreeing with the principle laid down in that case, referred the following question for the determina- tion of a Full Bench : — " Whether or not execution of a decree for money, may, on security given, be stayed without sufficient cause shown." Mr. Doyne (Mr. R. E. Twidale and Mr. C. Gregory with him) for the petitioners. The opinion of the Full Bench was delivered by Peacock, C.J. — I think it is quit? clear that, if a party wishes to stay execution under s. 338 of Act VIII of 1859, he is bound to show sufficient ground to the Court for so staying it. Under s. 36, Act (I) S. D. A, for 1861,210, 1008 PULL BENCH RULINGS. 1868 XXIII of 1861, wheu au order is made for the execution of a decree Ik thk against which an appeal has been preferred, the Court, if it thinks fit, t"e™itTon may "-equire security to be given for the restitution of any property OF Rani -which may be taken in execution of the decree, or the value thereof. ISMAID ■* 1. 1 1 • KooER. It may be very inconvenient to a plaintiff who has been looking forward to the receipt of a certain sum of money which is due to him, if, as soon as he obtains a decree for it, he should be prevented from levying the amount, merely on the application of the judgment-debtor, and upon his giving security. Such a measure might be most injurious to a plaintiff, who has depended upon the realization of debts due to him as a means of meeting his own liabilities. The foregoing remarks apply to money decrees, but the rule above laid down is equally applicable to decrees for immoveable property and to other decrees. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Phear, and Mr. Justice Macpherson. 1868 NOBIN CHUNDER CHUCKERBUTTY and others (Plaintifi's) v. GURU April 27. PERSAD DOSS and otheks (Dependants)* Hindu Law — Female Heir — Adverse Possession — Suit by Reversioner — Cause of Action — Limitation. Adverse possession against a Hindu female heir, which would bar her right of suit if she were alive, will equally bar that of the reversioner (1). Kamdoolltjb Chuckerbdttt, a Hindu, died leaving two sons, two daughters, and a widow, Dlione Mala. The two sons died without issue in the lifetime of the widow, and their respective estates descended to her as heir. The two daughters each had a son or sons, who, upon the death of the widow, succeeded to the estate of their uncles. After the death of the sons, a stranger entered, and the widow never took possession. After her death, which occurred in 1266 B. S. (1859-60), the two daughters' sons instituted the present suit to recover possession of their uncle's estate. The defendants objected that the suit was barred by the law of limitation ; but the objection was overruled by the Munsif, * Special Appeal, No. 460 of 1867, from a decree of the Judge of Backergunge, dated the 21st December 1866, reversing a decree of the Munsif of that district, dated the 2nd February 1865. (1) See GoUnd Chandra Surma Mazoom- Mohan Dhar v. Ram Das Deu, 3 B. L. R., dar V. Anand Mohan Sarma Mazoomdar, A. C, 362 ; Rajkishor Dull Roy v. Girish 2 B. L. R., A.C., 315; Gopal Sing v. Kanhya Chandra Roy Chowdhry, i B. L. K., A. C, Lalt Sahebzada, Id,, App., 14; Radha 136. FULL BENCH RULINGS. 1009 and a decree was given in the plaiutiffs' favor. On appeal, the lower jggg Appellate Court reversed the Munsif s decree on the ground that the suit Nobin was barred by tiie law of limitation. The plaintiffs preferred n speciiil Chundkb •^ r t r Chuckrr- appealto the High Court (Bayley and Mitter, JJ.), who were of opinion butty that the law of limitation did not affect the suit. In the course of the Guru Prrsad argument, the following cases were cited by the appellants iu favor of ^^^* their contention — Wooma Churn Banerjee v. Haradhun Mojoom- dar (1), Moonshee Syed Amer All v. Mohendronath Base (2), Kalee Coomar Nag v. Kashee Chunder Nag (3), liam Doollub Sandy al v. Ram Narain Mitter (4), Anund Mohun Roy v. Chunder Moni Dassee (5), and Peary Mohun Hoy v. Chunder Kanth Roy (6); and, on the other hand, the respondents relied on Doe d. Goluckmoney Dabee v. Diggiimber Day (7). The opinion of the Court on the question of limitation was thus expressed by Mitter, J. — The first point raised before us in this special appeal is, that the lower Appellate Court has committed an error in law in holding that the claim of the special appellants to the property in suit is barred by the Statute of Limitations, when their cause of action did not accrue until after the death of Dhoae Mala, which took place in 1266 B.S. (1859-60). We think that this objection is a valid cue. We are of opinion that limitation cannot run against a reversionary heir under the Hindu law until after the death of the female heir who succeeded to the estate of the deceased proprietor. There can be no doubt that the special appellants could not have maintained an action for the possession of the lands in dispute during the lifetime of Dhone Mala. Their right to such possession only accrued after Dhone Mala's death, and it would be contrary to the very principle upon which the Statute of Limitations is founded, to hold this right barred for a supposed neglect on their part to sue within a period during which they were not in a position to sue at all. In defining the status of a Hindu widow, their Lordships in the Privy Council remarked in the case of Katama Natchier v. The Raja of Shivagunga (8). " The same principle which has prevailed in this country as to tenants-in-tail representing the inheritance would seem to apply to the case of a Hindu widow." But it does not follow from this (as has been contended before (1) 1 W. E., 347. (6) Marsh., 33. (2) 2 W. K., 271. (7) 2 Boul., 193, and Macplierson on (3) 6 W. R., 180. Mortgages, 6th ed., 25. (4) 7 W. E., 453. (8) 9 Moore's I. A., 539, (5) 2 Hay's Kep,, 648. 1010 FULL BENCH RULINGS. BUTTY V. iHfjg US by the pleader for the respondent) that the reversionary heir is loBiN bound by the laches of the widow. Ou the other hand, we find it ucKKK- laid down in p. 446 of Angell on Limitation, that adverse possession for any length of time cannot affect the title of a claimant who GuKu Persad ijad no right of entry during that time, and in support of this position a case is quoted by the author in the same page, in which it was distinctly held that limitation does not run against a remainderman until after the demise of the last tenant-in-tail without issue. It has been held by the Privy Council in the case already referred to, that a decree obtained against the widow in connexion with the estate of her husband will bind the heirs of the husband claiming in succession to her ; but it has been held at the same time that the latter can always impugn the correctness of the decree upon special grounds. We think that the negligence of the widow is one of the special grounds con- templated by their Lordships. Owing however to the conflict of decisions in the cases cited, tlie Court referred the following question to a Full Bench for decision : — " Whether the sons of tlie daugtiters in this case had a fresh cause of action upon the death of the widow (their uncle's mother)." Baboos Romesh Chunder Milter and Kally Mohun Doss for the appellants. Baboos Hem Chunder Banerjee and Shoshee Bhoosun Base for the respondents. Tlie following opinions were delivered by the Full Bench : — Peacock, C.J. (after stating the facts, continued). — The question of law which is raised for our opinion is, whether, if a person dies leaving a female as his heir-at-law, the reversionary heirs have a fresh cause of action in regard to the estate of the ancestor at the time of the death of the female heir, or whether they are barred by limitation if the female heir would have been barred. The question is a very important one, and depends upon the proper construction of the Statute of Limitation, having regard to the nature of the respective estates under the Hindu law of a female heir and of the reversionary heirs. There are several conflicting decisions upon the point in this Court and it is upon the ground of those decisions that we have to determine the question. The arguments adduced by the Judges in support of their several views are of considerable weight, and they have been substantially incorporated in the argument of the vakeels before us. FULL BENCH RULINGS. IQll A case was cited — Doe d. Colly Doss Base v. Debnarain Kobe- rauj (1) — for the purpose of showing the opinion of the late Supreme no^^ 18G8 Chundek Chuckbb- Court upon the subject ; but it is not very clear what are the grounds upon which that case turned. The female heir in that case had entered butty into possession. Sir John Grant, who delivered the judgment, did not Guru Persad state whetlier his opinion was founded upon the point of limitation simply, or upon the ground that a grant by the female heir miglit be presumed, and, if so, that it would not be binding beyond her own life. He says : — I think that, if we were to presume a grant, it would not be binding beyond the widow's life. It is unnecessary for us to determine in this case when the cause of action of the reversionary heirs would accrue if the female heir were to sell the estate witliout lawful* cause. In that case, the purchaser entering into possession would not be a wrong-doer during the life of the female heir. No cause of action would accrue to the fema"le heir against him for entering under her grant, although it would not be binding as against the reversionary heirs, and possibly might not be so against creditors of the ancestor. In this case, a cause of action did accrue to the female heir, and the question is, wliether the reversionary heirs upon her death acquired a new and independent cause of action within the meaning of the Statute of Limitation, or merely succeeded to the same cause of action which was vested in the female heir in her lifetime. Whatever may have been the date of tlie decision in the case cited from Fulton's reports, it must have been before the decision of the late Supreme Court in Goluckmoney Dabee v. Diggumber Day (2), which , is set out in Mr. Justice Macpherson's book on Mortgages, 2nd edition, p. 20. Sir Lawrence Peel in that case says : — "It has been invariably considered for many years that the widow " (speaking of the widow succeeding as heir) "fully represents the estate ; and it is also tlie settled law that adverse possession which bars her,^ars the heir also afJEerJier, which would not be the case if she were a mere tenant for ' life as known to the English law." It was also held by the Privy Council in the Shivagunga case (3), that in the absence of fraud or collusion, a decision against a widow, with regard to her deceased husbaad's estate, would be binding upon the reversionary heirs. In The Collector of Masulipatam v. Cavaly Vencata Narraina- pah (4), it was said that comparing a Hindu widow to a tenant for (1) Fulton, 329. (3) 9 Moore's I. A., 539. (2) 2 Boul., 193. (4) 8 Mgore's I. A,, 500, at p. 650, 1012 FULL BENCtI RULINGS. igflg life was calculated to mislead, Iq the Shivagunga case (1), the widow Nobis was compared to a tenant-ia-tail ; but the heirs in that case were not ChucITk"^ likened to remaindermen, and must, therefore, have been in the position BUTTY (,f tenants-in-tail. Such heirs would be bound if the tenant-in-tail GuEu Persad vvas barred, though the remainderman might not be. If, then, in the Shivagunga case (1), the widow was like a tenant-in- tail, and the reversionary heirs were like the issue-in-tail, and the same likeness exists in the present case, the reversionary heirs would be barred by limitation which ran against the female heir. If the female heir in the present case had sued the wrong-doer, and, without fraud or collusion, had failed to make out her case to turn him out of posses- sion, the reversionary heirs would have been bound by the decision. I urn assuming that they are not claiming through the female heir. For instance, if the female heir had sued the wrong-doer, and he had set up a purchase from the ancestor, and had succeeded in that defence at the suit of the female heir, the reversionary heirs would be barred by the decision in the absence of fraud or collusion. The law of limitation is passed for the benefit of defendants, partly upon the grouud that after length of time they may have lost the evidence in support of their right ; and it would be anomalous to hold that a female heir was barred by limitation, lest the defendant should have lost his evidence to prove his right against her, and to hold that the reversionary heirs, who would have been barred by a decision against the widow if she had brought her suit in time, are not barred by limitation against her. Possibly, if we could trace the Hindu law to its origin, we should find that a widow did not succeed to her husband's estate as his heir. It was doubtful at one time whether she did so. It was supposed that she took, because she was part of the husband. In the Da'yabhaga, Ch. xi, s. 1, vv. 1 and 2, it is said : — "In regard to the wealth of a deceased person who leaves no male issue, authors disagree in con- sequence of finding contradictory passages of law. Thus Vrihaspati says : — ' In scripture and in the code of law, as well as in popular prac- tice, a wife is declared by the wise to be half the body of her husband, equally sharing the fruit of pure and impure acts. Of him whose wife is not deceased, half the body survives. How, then, should another take his property while half his person is alive ? Let the wife of a deceased man who left no issue take a share, notwithstanding kins- men, a father, a mother, or uterine brother be present.' This would (1) 9 Moore's I, A., 539. FULL BENCH RULINGS. 1013 have never Guru Peesad Doss. account for the rule which says that the reversionary heirs of the jses husband are those who would have been bis heirs if he had lived up to Nobis the time of the death of his wife. Chucker- It is difficult to reconcile the above priueiple with the fact of sons botty and grandsons taking during the life of the widow. I been able to fiad the principle accurately defiaed by which sons take in preference to a widow. The Dayabhaga rests the right of the sons upon the doctrine that succession is grounded solely upon the benefits conferred — Dayabhaga, Ch. xi, s. 1, vv. 32, 33, and 34 ; but, pro- bably, the right of the sons in preference to that of the widow depends upoa the doctrine, that a son or other desceadant is coasubstantial with the father or other ancestor. Menu says : — " The husband, after conception by his wife, becomes himself an embryo, and is born a second time here below" (1). See also 3 Colebrooke's Hindu Law, p. 459 ; 1 Vyavastha Darpana, 1st Edition, p. 33, note. However this may be, it is settled that the wife does take as heir to her husband in default of issue, and, that upon her death, those persons succeed as reversionary heirs who would have been the heirs of the husband if he had died at that time. It is a very anomalous position that a person should take as heir, and that his right to take as heir should be determined according to a state of facts not existing at the time of the death of the ancestor, but caused by events which may have occurred many years after his death. These considerations lead me to the conclusion that a reversionary ' heir, who is bound by a decision against a widow respecting the subject-matter of inheritance, is also barred by linlttation, if without \, fraud or collusion, the widow is barred by limitation. It has been contended that as the widow cannot absolutely convey away her husband's estate without sufficient cause, so as to be binding upon the reversionary heirs, they ought not to be barred by limitation against the widow, otherwise she will be able, if she lived a sufficient time, to do indirectly, by allowing adverse possession to be held aijaiiist her, that which she could not do directly, by a sale without sufficient cause. But reversionary heirs presumptive have a r'ght, although they may never succeed to the estate, to prevent the widow from committing waste ; and I have no doubt that if a proper case were made out, rever- sionary heirs would have a sufficient interest, as well as creditors of the ancestor, by suit against tlie widow and the adverse holder, to have the estate reduced into possession, so as to prevent their rights from becoming barred by limitation. (1) Chap. ix„ V. 8. 84 1014 FULL BENCH KULINGS. 1868 In the case of moveable property, such as Government paper, a IfoBiN Hindu, although he is not bound to do so, may obtain probate or letters (SicKEB- ^^ administration. Adverse possession or wrongfnl detention of Gov- BUTTY ernment paper, or the like, would give a cause of action to the heirs, GcRu Persad or in the case of probate or letters of administration, to the executor or administrator. If an executor or admiQistrator should fail to sue to recover the Government paper within the time limited by law, he would be barred by limitation, but I have no doubt that a suit could be maintained against him and the wrong-doer by legatees or creditors of the deceased owner, or by the heirs who are in the same position as the next-of-kin would be in England, to compel the recovery of the Gov- ernment paper, and the application of it in due course of law. The cause of action of the executor or administrator would arise from the time of the wrongful detention of the paper from him. But suppose he should die after the paper had been detained against him for five years, and the next person in succession should take out letters of administration with the will annexed, or if there were no will, simple letters of administrntion of the property not administered by the deceased executor or administrator, the cause of action of the administra- tor de bonis non would not accrue at the time of the death of the former executor or administrator, but he would merely succeed to the cause of action which was vested in the former executor, and limitation would date as against him from the same period as it would have dated if the former executor or ailministrator had lived. It has been held in England that an executor of an executor, or an administrator de bonis non, has a right to sue if he commences his suit witliin one year after the death of tlie preceding executor or adminis- trator, notwithstanding that period may exceed the period of limitation whicli the former executor or administrator had. It is unnecessary to say wliethera similar law would apply here. I mention it merely because I think it is an argument to show that in the case of representatives, where one is substituted for another in conse- quence of death or other cause, the substituted representative has only the same cause of action as the representative for whom he is substituted. Now, according to the Hindu law, it appears to me that the widow although she has a beneficial interest in the property, is still only to some extt-nt a representative, and holds the property, not merely for her own lieU' fit, but for the benefit of the deceased. It is said that the reversionary heirs could not sue during the life- time of the widow, and that, therefore, they ought not to be barred by FULL BENCH KULINGS. 1015 any adverse holding against the widow at a time when they could not iggg sue. But when we look at the widow as a representative, and see that Nobis the reversionary heirs are bound by decrees relating to hef husband's chucker- estate wiiich are obtained against her without fraud or collusion, we are butty of opinion that they are also bound by limitation, by which she, witliout Guru Peesad fraud or collusion, is barred. When, tlierefore, we construe the words " cause of action'' in the Statute of Limitation, we must consider them as referring, not to a now cause of action accruing to the reversionary heirs personally and individually, but to the cause of action which accrued to the heir or representative, for the time being, of the deceased. This is not the only instance in which a person may he barred by time which has elapsed before he has a right to sue. If an ancestor is dispossessed, the cause of action of his heir accrues, not at the time when the ancestor dies, and when he could sue, but at the time when the ancestor was dispossessed, and ought liimself to have sued ; and there is no more reason why a reversionary heir should have a fresh cause of actiou from the death of the widow, because he could not sue during her lifetime, than that an immediate heir should have a fresh cause of action commencing at the date of the ancestor's death because he could not sue during the lifetime of the ancestor. A reversionary heir cannot sue during the lifetime of the widow, because during her life the estate of the deceased is represented by her as the faeir-at-Iaw. I have spoken of a widow in many parts of this judgment, but the remarks which I have made apply equally to other female heirs, such as mothers, daughters, and the like. It appears to me that this case ought to go back to the Division Bench which referred it, with the expression of our opinion that the period of Limitation against a reversionary heir is not to be reckoned from the time at which he succeeded, viz., from the date of the death of the female heir, but from the date at which it would have been reckoned if the female heir had lived and brought the suit. L. S. Jackson, J. — I entirely concur in the opinion of the Chief Justice, that the plaintiff was barred in the present case. We sit here unquestionably to administer the Hindu law in those cases to which that law applies, and on all points not decided we are clearly bound to refer to the original sources of that law, and to interpret them to the best of our ability ; but where any point having already arisen has been decided by theauthority of the highest Court which takes cogni- zance of questions of Hindu law, we are, I think, as clearly bound 1016 FULL BENCH RULINGS. iggg implicitly to guide ourselves by the decisions of that tribunal. It has Nobis been distinctly held by the Privy Council in the Shivagunga case (1) Chundee ^j,j^^ g decision fairly arrived at without fraud or collusion in the BUTTv presence of a Hindu widow in possession of the estate will bind GuKu Peksad reversionary heirs. That being so decided, it appears to me impossible to escape the conclusion that an adverse possession which barred the widow will also bar the heirs, and in that opinion we are fully and strongly supported by the decisions of the late Supreme Court in the case to which His Lordship the Chief Justice has referred. It was an argument of the pleader for the plaintiff in this case that a widow who is incompetent, except in certain cases, to alienate the estate left by her husband, ought not to be allowed indirectly to do that which she cannot do directly. It appears to me incorrect to say that in such a case as this, ■ the widow has done anything in the nature of an alienation indirectly or directly. If, indeed, it could be shown that she bad colluded with the persons holding ad-verse possession, so that in fact a case of fraud could be made out, then no doubt she might be held to have done indirectly that which the Hindu law forbids her doing directly. But in such a case as this, undoubtedly, a reversioner aggrieved by such frauds would be entitled to bring his action. I state very shortly the principal reasons upon which my own conclu» sions are founded, because, although, I am very far from dissenting from any observations contained in the elaborate judgment which we have just heard, I am not at this moment prepared unreservedly to assent to the whok of them. Fbeab, J. — I too desire to avoid pledging myself to all the illustra- tions which have fallen from the Chief Justice ; but with this exception, I concur entirely in the reasoning which he has given in support of his conclusions, and I concur also in the remarks which have been made by Jackson, J. I will add that it seems to me that when a reversionary heir succeeds to the property of his ancestor on the death of an intervening female, heir, he takes substantially the same proprietary right as she enjoyed, and no more, though doubtless, she was fettered in a way that he is not, with regard to the dealings with the property, viz., her alienations are often liable to be avoided by him when he succeeds to the right of suc- cession. If, then, that proprietary right was invaded while in her hands, the cause of action accruing from the act of invasion can be none other when it comes to be pursued by the reversionary heir than it was when (1) a Moore's I A., 339. FULL BENCH KULINGS, 1017 the female heir herself was the person to do so. Both the right which igeg is infringed, and the act complained of as the infringement, are the same, ^^ whether it is he or slie wlio sues. It follows that if the reversionary Chundeb Ohitck.bk-' heir brings a suit founded upon that act of invasion of the proprietary butty right, tlie time prescribed in the Statute of Limitation runs against him Guru Pkksad from the date of the act. Of cour^, it may be that the possession of a °°^^" third party, which is no trespass oti the proprietary right when in the hands of the female heir, may, if persisted iu, become so when that propiietary right passes to the reversionary heir. In such a case, the infringement of the proprietary right first commences on the death of the female heir, and with it the cause of action arises. This is so wlien the female heir conveys under such circumstances that her alienation can be questioned by the reversionary heir. With these views, I entirely agree in the answer which the Chief Justice proposes to send to the Division Bench. Macpherson, J. — I also concur in the proposed answer. But a very great difference exists between the case immediately before us, and the case in which a mother (or other Hindu female having an estate similar to that of a childless widow) has herself alienated property belonging to the estate which she has taken as heiress, without sufficient reason for milking such alienation. In the latter case, the alienation is good as against her, and so far as her own life-interest is concerned ; therefore, in fact, no cause of action necessarily arises at all with respect to her alienation so long as she lives. The cause of action does not arise until her death, when the reversioner's cause of action for the first time accrues. In the case before us, the property having never reached the hands of the mother at all, having been throughout held adversely to her, the cause of action accrued in the mother's lifetime ; and therefore, a suit to recover possession, by whomsoever it may be brought, is barred, unless instituted within twelve years from the commencement of the adverse possessiou. 1018 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, Mr. Justice Macpherson, and Mr. Justice Mitter. 1868 MODHOO DYAL SINGH (Plaintiff) v. KOLBUR SINGH and othees ^^ (Defendants).* Hindu Law — Mitakshara — Ancestral Property — Alienation by Father — Refund of Purchase-money — Onus. Under the Mitakshara law, when a sale of ancestral property by the father has been set aside in a suit by the son, on the ground that there was no such necessity as would legalize the sale, and that the son had not acquiesced in the alienation, the son is entitled to recover the property without refunding the purchase-money (1), unless such circum- stances are proved by the purchaser as would give him an equitable right to compel a refund (2). In this case, in which both parties •were Hindus, subject to the Mitaksliara law, the plaintiff sued to recover possession of certain ancestral property which had been sold to the defendant by the plaintiff's father. The Court of first instance found that there was no necessity for the sale and no acquiescence on the plaintiff's part ; and neither the plain- tiff nor his father appeared to have derived any benefit from the sale which was made for the purpose of redeeming a mortgage which had still tliree years to run. The lower Appellate Court, relying on Muddun Gopal Thakoor v. Ram Buksh Panday (3), held that the plaintiff must refund to the defendant the purchase-money before he could recover possession of the property. Against this decision the plaintiff preferred a special appeal to the High Court. The Division Bench which heard the appeal (Kemp and Glover, JJ.); observed that a long current of decisions beginning with the case of Ameerul Misser v. Dabee fersaud (4), and ending with the Full Bench Ruling of the High Court in the case of Raja Ram Tewary v. Luchmun Pershad (5), had fixed it as settled law that by the * Special Appeal, Noi 1198 of 1867, from a decree of the Principal Sudder Ameen of Bhaugulpore, dated the 25th March 1867, reversing a decree of the Moonsiff of that distjricti dated the 31st May 1866. (1) See Bmoo Nund Coomar Loll v. 12 B. L. R., 90; and Jugdeep Naraiii Singh MovMe Nazeeoodeen, Hossdn, 10 B. L. R., v. Deendial, Id., 100. 183. (3) 6 W. R., 71. (2) See Hanuman Dvit Roy v. Baboo (4) S. D. A. for 1861, 193. Kishm kishor Narayan Sing, 8 B. L. R., (5) Ante, p. 731. 358; Mahaieer Persad v. Ramyad Singh, PULL BENCH RULINGS. 1019 Mitakshara a father cannot alienate ancestral property without the iggg consent of a son, unless for certain necessary purposes. In all other modhoo cases the son had an absolute veto in the sale, and must succeed in a ^'^^^ Singh suit to set it aside, and as they disagreed -with the principle laid down Kolbuk in Muddun Gopal Thakoor v. Ram Buksh Panday (1), they referred the following question for the opinion of a Full Bench : — "Whether, under the Mitakshara law, a son, who recovers his ancestral estate from a purchaser from the father on proof that there was no such necessity as would legalize the sale, and that he never acquiesced in the alienation, is bound in equity to refund the purchase- money before recovering possession of the alienated property ?" Baboo Mohini Mohun Roy for the appellant. Mr. C. Gregory for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — The question upon which the opinion of a Full Bench is asked is {reads). There can be no doubt that, although the word " recovers" is used in this question, the meaning is whether, under the circumstances stated, a son is entitled to recover, except upon condition of refunding the purchase-money. Assuming that to be the question, I think the answer should be that, in the absence of proof of circumstances which would give the purchaser an equitable right to compel a refund from the son, the latter would be entitled to recover without refunding the purchase-money, or any part of it. We express no opinion as to whether he would be entitled to recover the whole or only his share of the estate. Havin" answered the question propounded, I think we ought to add that if it is proved to the satisfaction of tlie Court that the purchase- money was carried to the assets of the joint estate, and that the son had the benefit of his share of it, he could not recover his share of the estate without refunding his share of the purchase-mnney ; so if it should be proved that the sale was effected for the purpose of paying off a valid incumbrance on the estate which was binding upon the son, and the purchase-money was applied in freeing the estate from the incumbrance, the purchaser would be entitled to stand in the place of the incumbrancer, notwithstanding the incumbrance might be such that the incumbrancer could not have compelled the immediate discharge of (1) 6 W. K., 71. 1020 FULL BENCH RULINGS. 1868 MODHOO Dyal Singh V, KOLBUK SiNOH. it, and that the decree for the recovery by the son of the ancestral property, or of his share of it, as the case might be, would be good ; but should be subject to such right of the purchaser to stand in the place of the incumbrancer. It appears to me, however, that the onus lies upou the defendant to show that the purchase-money was so applied. I do not concur with the decision which has been referred to (1) in which it is said that " in the absence of evidence to the contrary, it must be assumed that the price received by the father became a part of the assets of the joint family." If the father was not entitled to raise the money by sale of the estate, and the son is entitled to set aside that sale, the onus lies on the person who contends that the son is bound to refund the purchase- money, before he can recover the estate, to show that the sou had the benefit of his share of that purchase- money. If it should appear that he consented to take the benefit of the purchase-money with a know- ledge of the facts, it would be evidence of bis acquiescence in the sale. I think the case must go back with this answer to the Division Bench which referred the question to us, in order that the case may be finally determined upou the merits by that Bench. 1868 April 29. Before Sir Barnes Peacock, Kt, Chief Justice, Mr. Justice Seton-Karr, Mr. Justice L. S. Jackson, Mr. Justice Phear, and Mr. Justice Macpherson. JONARDUN ACHAEJEE (Plaintiff) v. HARADDN ACHARJEE and oTHEBs (Defendants).* Act X 0/1859, s. 23, cl. 6, and s. 25— Act XIV of 1859, s. 15— Ejectment— Suit for Possession by Eyot. When a zemindar, of his own authority, and without the intervention of the Collector under s. 25, Act X of 1859, ejects a tenant whose lease has expired, the tenant may recover possession, without reference to the title of the zemindar to eject him, in a suit under s. 15 Act XIV of 1859 ; but if the tenant sne under cl. 6, s. 23, Act X of 1859, the question is open as to whether the tenancy was at an end or not ; and if it was at an end, the tenant must fail in his suit (2). In this case the plaintifl', who described himself as a ryot, sued under cl. 6, s. 23, Act X of 18o9, to recover possession of ceriain lands from which he alleged he liad been illegally ejected. The defendant, the * Special Appeal, No. 689 of 1867, from a decree of the Judicial Commissioner of Chota Nagpore, dated the 15th January 1867, reversing a decree of the Assistant Commissioner of that district, dated the 29th August 1866. (1) Mudden Gopal I'halcoor v. Sam Buhsh Panday, 6 W. K., 71'. (2) See Chvinder Coomar Mundul v. Nurmee Khanum, 11 B. L, R., 434, FULL BENCH RULINGS. 1021 eemindar, while adijiitting the dispossession, deuied tlie phiinliff's right to occupy the land in dispute, he having lield under a lease for years ' which had expired before the date of dispossession. The Court of first instance made a decree in the plaintiff's favor, which however was reversed on appeal, and the pluintiff then preferred a special appeal to the High Court. On appeal he contended that the "act of dispossession being admitted by the landlord, the lower Appellate Court ought to have passed a decree in his favor without any enquiry into the question of title." On the other hand, it was argued for the respondent " tliat every act of ejectment is not necessarily illegal because it has been effected without the intervention of a Court of law, and that a zemindar or other person entitled to the receipt of rent is fully competent to dispossess a ryot (not having a right of occupancy either by law or contract) of his own authority without invoking the assistance of the Collector under s. 25, Act X of 1859. In the course of the argument the following cases were cited : Eughoo- nundun Sing v. Gopal Sing (1), S/ieo Pursun Lall v. Baboo Ram Narain Singh (2) and Sheikh Khossal v. Sheikh Shukhowdee (3). The Court (Bayley and Mitter, JJ.) were of opinion that the appellant's contention was sound ; they referred to the Full Bench decision in Gooroodas Roy v. Ramnarain Milter (4) as showing that a suit under cl. 6 of s. 23 of Act X of 1859 is merely a possessory suit in which no question of right or title could be gone into, but that "the result of the action depended entirely on proof of the fact of the illegal ejectment complained of, " and they expressed their assent to the doctrine laid down in Sheikh Khossal v. Sheikh Shukhowdee (3j that " in any case the zemindar is bound to proceed to the ejectment by due process of law, and not, propria motu." But as there was a conflict between tliis case and the two cases first cited, they referred the question for the determina- tion of a Full Bench. 1868 JONAHl>UN ACHARJKE V. Haradon achakjkis. Baboo Bama Churn Bannerjee for the appellant. Baboo Nilmadhub Sen for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. (after stating the facts and the subject of reference.)— The Full Bench case to which reference is made — Gooroodas Roy v. (1) 1 W. R., 191. (2) Id., 361 . (3) 1 W. R., 119. (4) Ante, p. 628. 85 1022 PULL BENCH RULINGS. 1868 JONARDUN ACHAEJEE V. Haradun acharjee. Ramnarain Mitler (4) — merely held that a suit for a declaration of right might be brought in the ordinary Civil Court. In suits under cl. 6, s. 23, Act X of 1859, it is necessary to determine whether the plaintiff has been illegally ejected, which involves the question whether the tenancy was at an end or not. If after the expi- ration of a tenancy a zemindar wishes to obtain possession without resorting to a Court of law, he may apply under s. 25 for the assistance of the Collector, who will thereupon summarily enquire into the case, and if he finds that the tenancy Is at an end will render assistance in turning the tenant out. If, however, the zemindar acts of his own authority and without the intervention of a Court of law or of the Collector, he comes within s. 15 of Act XIV of 1859 ; and if the ryot sue him in the Civil Court within six months he will be entitled to recover possession without reference to the title of the zemindar to eject him. If, however, be sue in the Collector's Court under s. 23, the question is open as to whetlier the tenancy was at an end or not ; and if at an end, he must fail in his suit. It appears to me that this case must go back to the Division Bench to be determined on the merits. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice L. S. Jackson, Mr. Justice Phear, Mr. Justice Macpherson, and Mr. Justice Hobhouse- 1868 April 29. GOGAEAM (Defendant) o. KARTICK CHUNDER SINGH (Plaintiff).* Right of Action— Act VIII of 1859, s. 270— Rival Decree-holders. A regular suit will lie at the instance of one decree-holder against another for a refund of money that has been erroneously paid away to the latter contrary to the provisions of s. 270 of Act VIII of 1859. The plaintiff and defendant in this suit had both obtained decrees against the same judgment-debtor, the former in the Munsif's Court and the latter in the Judge's Court. Certain properties beloncrino- to the debtor were first attached in execution of the decree of the Mun- sif's Court at the instance of the plaintiff. Subsequently the same properties were attached at the instance of the defendant in execution of his decree obtained in the Judge's Court, and sold by the Judge. * Special Appeal, No. 654 of 1867, from a decree of the Principal Sudder Ameen of Beerbhoom, dated the 15th January 1867, modifying a decree of the Sudder Ameen of that district, dated the 26th January 1866. FULL BENCH RULINGS. 1023 Immediately after sale the plaintiff applied to the Judge to have his decree first satisfied on the ground of his prior attachment. The defendant objected, and the Judge refused the plaintiff's application. The plaintiff appealed to the High Court, which reversed the Judge's order refusing to satisfy the plaintiff's decree first. While the appeal to the High Court was pending, the Judge paid away the money to the defendant. This suit was instituted by the plaintiff to recover from the defendant out of the money paid away to the latter by the Judge the amount of the plaintiff's decree, on the ground that his attachment of the property sold was prior to that of the defendant, and that he had therefore a preferential title to the sale-proceeds. The plaintiff being successful in the Courts below, the defendant preferred the present appeal to the High Court. He contended that an action like the present would not lie in the Civil Court, and in support of his contention relied on the cases of Hurish Chunder Sircar v. Azimooddeen Shaha (1) and Raja Earn Chowdhry v. Seetula Buksh Misser (2). The Court (Loch and Mitter, JJ.), expressing their dissent from the rulings in the two cases cited, referred the following question to a Full Bench : " Whether an action will lie in the Civil Courts on behalf of one decree-holder against another for obtaining a refund of money that has been paid away to the latter under an order passed in the Execution Department in contravention of the provisions laid down in s. 270 of the Procedure Code ?" Baboos Kally Kishen Sen and Kader Nath Chatterjee for the appellant. Mr. R. T. Allan and Baboo Ashootush Dhur for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. (who, after reading the question referred, continued.) — We are of opinion that the question ouglit to be answered in the affirmative ; but we must guard ourselves from being understood to determine that the plaintiff in such a suit would, under all circum- stances, be entitled to recover. There may be circumstances by which he may be equitably precluded from recovering ; and it will be for the Court which decides the suit to determine whether, having regard to all the equities between the parties, the plaintiff is entitled to recover or not. 1868 GOGAEAM V. Kartick Chondek • Singh. (1) W. R., Spl. No., 180. (2) 7 W. R., 113. 1024 FULL BENCH RULINGS. Kautick Chuhder Singh. 18S8 I concur in the view taken of this cnse by the decision of the Full GooARAM Bench of the Agra Sudder Court in Beharee Lallv. Thakoor Doss (1), to which we have been referred by Mr. Allan. S. 270, Act VIII of 1859, does not expressly give a right of appeal ; and by s. 364, it was enacted that " no appeal shall lie from any order passed after decree, and relating to the execution thereof, except as is hereinbefore expressly provided." It is clear, therefore, that no appeal lay against such an order, although in the case of Kartick Churn Singh v. Gogaram (2), the order was reversed by a Division Bench upon appeal. The Judges in that case held that the decree-holder, at whose instance the property was sold, was entitled to be paid first, and they' set aside the order of the Judge, declaring that payment should be made to the decree-holder who first attached the property. This is contrary to the ruling in Jungee Loll Mahajun v. Brijo Beharee Singh (3), where it was held that there was no appeal from an order directing the distribution of sale -proceeds. But the fact of the order having been set aside, does not, in my opinion, deprive the plaintiff of his right of action. By s. 1, Act XXIII of 1861, s. 283 of the Code of Civil Procedure was repealed; and by s. 11 of Act XXIII of 1861, s. 283 was re-enacted, with this addition, " that any question arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit, and the order passed by the Court shall be open to appeal." In cases between parties to the Suit, therefore, the order was made subject to appeal, and a right to bring a separate suit to reverse the order was taken away. In this case the question did not arise between the parties to the suit, and consequently the order was not open to appeal. At the same time there is no express provision by which the right to bring a separate suit has been taken away. When the right of appeal was taken away by s. 364, it appears to me that it was not the intention of the Legislature to take away the right of contesting the summary order by a regular suit, and that seems to be the view of the case taken by s. 11 of Act XXIII of 1861, which is to be read as part of Act VIII of 1859 ; for when, by that section, an appeal was given in regard to the matters to which the section referred, the right to contest the order by a separate suit was expressly taken away. (1) Agra S. D. D., Sept. 1864, 443. (2) 2 W. K., Mis., 48. (3) 2 W. K,, Mis., 21. FULL BENCH RULINGS. 1025 I am not sure that s. 270 of the Procedure Code applies to this case at all. The property was first attached under a decree of the Munsif 's Court at the suit of the plaintiff, and was subsequently attached and sold at the suit of the defendant under a decree of the Judge's Court, and the proceeds were made over to the defendant. It seems to me that whilst the property was under attachment by the Munsif's Court, it was not liable to be sold under the decree of the Judge's Court, although it might have been attached subject to the prior attachment of the plaintiff. I wish to make one remark with regard to the judgment of Trevor, J. (1). He says, " that as the action is for money had and received by the defendant to the plaintiff's use, it is necessary that there should be privity between the plaintiff and the defendant." The suit was simply to recover from the defendant a sum of money which the plaintiff contended had been erroneously paid over to the defendant, instead of being paid over to the plaintiff. The plaintiff said nothing of the money having been received by the defendant to the plaintiff's use ; and there is nothing more likely to mislead or to confuse than converting a suit brought in the Courts of Justice in the Mofussil in this country to the forms adopted according to the English procedure. If the order of the Judge had not been set aside, the suit would have been one to recover the money from the defendant which had been erroneously paid over to him under a summary order under the execution ; or, to use the language which is commonly applied to suits of this value, to recover the money from the defendant by setting aside the order of the Judge. In such a suit there is no privity between the complainant and the defendant. This case will go back for final decision to the Division Bench which referred it for our opinion. 1868 GOGAKAM V. Kastick Chundeb Singh. (1) In Eurrish Chwideir Sircar v. Azimoodeen Sliaha, W. K., Spl. No., 180, APPENDIX. Before Sir Sarnes Peacock, Kt., Chief Justice, Mr. Justice Raikes, Mr. Justice Bayley, Mr. Justice Kemp, and Mr. Justice L. S. Jackson, MAHOMED HOSSEIN (Plaintipp) v. SHEIKH AFZUL AI>I 1863 (Defendant).* ^^'''V- ^^- Special Appeal — Order in Execution — Act XXIII of 1S61, ss. 11 ,!• 44 — Act VIII of 1859, ss. 257, 269 §• 372. A special appeal will lie from au order passed on appeal in relation to the execution o£ a decree. In this case a special appeal liad beea preferred to the High Court (Campbell and Steer, JJ.) from an order regarding the execution of a decree passed by the Principal Sudder Ameen and confirmed on appeal by the Judge. The learned Judges referred to a Full Bench the question whether a special appeal would lie from such an order ; Campbell, J., considering thai it would lie, while Steer, J., held that it would not lie. Moonshee Ameer Ally for the appellant. Mr. G, Gregory and Mr. C. Gregory for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — Tiie question which has been reserved for the con- sideration of a Full Beuoli is wlietiier a special appeal will lie from an order regarding the execution of a decree passed by the Principal Sudder Ameen and confirmed on appeal by the Judge. One of the learned Judges (Campbell, J.) thinks that a special appeal will lie. The other Judge (Steer, J.) thinks that it will not. We are of opinion that reading Act XXIII of 1861 and Act VIII of 1859 together as one Act, a special appeal will lie from decisions passed on appeal under s. 11 of Act XXIII of 1861. S. 364 of Act VIII X)f 1859 enacts that " no appeal shall lie from any order passed after decree and relating to the execution thereof, except as is hereinbefore expressly provided." S. 283 is the section referred to by the words "except as is hereinbefore expressly pro- vided," and it enacts that " all questions regarding the amount of any * Miscellaneous Special Appeal, No. 300 of 1862, from the order of the Judge of Behar, dated the 9th April 1862. 2 FULL BENCH RULINGS. 1863 mesne profits which, by the terms of the decree, may have been reserved Mahomed for adjustment in the execution of the decree, or of any mesne profits HossEiN ^j, j^tgj.ggt -vyhich may be payable in respect of tlie subject-matter of a Sheikh Afzul suit between the date of the institution of the suit and execution Ali, of the decree, as well as questions relating to sums alleged to have been paid in discharge or satisfaction of the decree, or the like, shall be deter^ mined by order of the Court executing the decree and not by separate suit ; and the order passed by the Court shall be open to appeal." This section, it appears, was considered by the Legislature as not going sufficiently far, and therefore by the 1st section of Act XXIII of 1861 it was altogether repealed. S. 364 of Act "VIII of 1859, however, remains unrepealed. But in lieu of s. 283, a new clause was inserted in Act XXIII of 1861, namely, s. 11, which provides for a much larger class of cases than was provided for by s. 283, S. 11 enacts that " all questions regarding the amount of any mesne profits which, by the terms of the decree, may have been reserved for adjustment in the execution of the decree, or of any mesne profits or interest which may be payable in respect of the subject-matter of a suit between the date of the institution of the suit and execution of the decree, as well aa questions relating to suras alleged to have been paid in discharge or satisfaction of the decree, or the like, and any other questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit ; and the order passed by the Court shall not be open to appeal." There is therefore an addition in s. 11 of Act XXIII of 1861 to that which was originally included in s. 283 of Act VIII of 1859 ; the addition being "any other questions relating to the execution of a decree." With that addition, s. 11 of Act XXIII of 1861 was intended to be substituted for s. 283 of Act VIII of 1859 ; and s. 44 of Act XXIII of 1861 enacts that "this Act (that is Act XXIII of 1861) shall be read and taken as part of Act VIII of 1859." By taking the Act of 1861 and reading it as part of Act VIII of 1859, so far as this particular case is concerned, it is the same as if s. 283 had been struck out of Act VIII of 1859, and s. 11 of Act XXIII of 1861 had been inserted in its place, and it must therefore be read in conjunction witii s. 372 of Act VIII of 1859. That section, 372 of Act VIII of 1859, enacts that, " unless otherwise provided by any law for the time being in force, a special appeal shall lie to the Sudder Court from all decisions passed in regular appeal by the Courts subor- dinate to the Sudder Court, on the ground of the decisiou being contrary APPENDIX. 3 fo some law or usage Laviug the force of law, or of a substantial iggs error or defect in law ia the procedure or investigation of the case Mahomed which may have produced error or defect in the decision of the case Hossein upon the merits, and on no other arrouud." We must consider then SiiEiKHAifzut, 1 • ■ , •> All what 18 meant by the words " a special appeal shall lie to the Sudder Court from all decisions passed in regular appeal." Now is there any particular meaning to be attached to the words "regular appeal" which would have prevented a special appeal lying from an order passed under s. 283, or which would not prevent a special appeal from an order passed on appeal under s. 11 of Act XXIII of 186 1 ? We think that the words "regular appeal" in s. 372 must mean a general appeal, i.e., an appeal which will lie on any ground of error whether of fact or of law, in contradistinction to a special appeal which is limited to the particular grounds of error pointed out in s. 372, and which may be for this purpose shortly described as errors in law. If this were not so, a special appeal would not lie from a decree passed on appeal under s. 332 of Act Vm of 1859, for that section does not use the words "regular appeal" but merely the word " appeal," in the same way as the word appeal was used in s. 283 and is now used in s. II of Act XXIII of 186.1., S. 332 says, "except when otherwise expressly provided by this or any other Regulation or Act for the time being in force, an appeal shall lie from the decrees of the Courts of original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts." Yet it is from decisions passed in appeal under that section that most of the cases of special appeal which come before us arise. There appears to us to be no reason why a special appeal should not lie from decisions on appeal passed under s. II, Act XXIII of 1861, as well as from decisions on appeal passed under s. 332 of Act VIII of 1859. It has been very properly urged by the vakeel in support of the special appeal that, unless a special appeal will lie, there is uo remedy against errors or defects in law in decisions passed by the final Appellate Court ; inasmuch as s. 11 expressly provides that the questions therein mentioned shall be determined by the Court executing the decree and not by regular suit, and allows an appeal from the orders passed. Now difficult points of law may arise in the execution of a decree. It may be, as observed by the learned Judge, Mr. Campbell, that on the face of the proceedings there may be a glaring error in point of law and in the decision of the Appellate Court, and yet there would be no remedy if a special appeal does not lie. For instance, a decree might order that the dejitor's child should be taken and sold in execuiion of the 86 FULL BENCH RULINGS. ]g63 decree, and if the lower Appellate Court upheld that order, would Mahomed not a Special appeal lie to this Court ? We do not put this case as one HossEiN litely to occur, but merely to test the principle. We think that a SheikhAfzul special appeal would lie in such a case just as much as in the case of a decree passed in what is ordinarily called a regular appeal. There is nothing in s. 372 which would prevent such an appeal. The words of that section are very general, " all decisions passed in regular appeal." The words are not limited to decrees so passed, and apply equally to orders. It is certainly true that the words of s. 11 of Act XXIII of 1861 confine the appeal given by that section to orders passed by the Court executing the decree, for it says that all the questions referred to " shall be determined by order of the Court executing the decree and not by separate suit, and the order passed by the Court shall be open to appeal." Therefore it is only a decision of the Court pronouncing the decision with reference to the execution of a decree which is declared to be open to appeal. But then comes s. 44 of that Act which in eflFect says that s. 11 shall be read in the same way as if it had been intro- duced into Act VIII of 1859. It must, therefore, be read together with s. 372 of the latter Act, which says that a special appeal shall lie upon the grounds mentioned therein. Notwithstanding the wording of s. 11 of Act XXIII of 1861, we think that a right of special appeal was conferred by the effect of s. 372 of Act VIII of 1859 as much in cases falling under s. 283 as in those falling under s. 332, and that a special appeal now lies from orders passed on appeal under s. 11 of Act XXIII of 1861. S. 257 of Act VIII of 1859, to which our attention was called iu the course of the arguments, says, that "such order (i.e., an order confirming a sale) unless appealed from, and if appealed from, then the order passed on the appeal, shall be final." Here it is quite clear that a special provision is made that an order confirming a sale if not appealed from, or the order on appeal if the first order is appealed from, shall be final. There being that express provision, it falls within the excepting part of s. 372, which says that, " unless otherwise provided by any law for the time being in force, a special appeal shall lie, &c." A special appeal will not therefore lie from an order under s. 257 as that is a case otherwise expressly provided by the particular Act (1), and there is a similar section, 269. But the Legislature has not provided in a similar manner for cases falling under s. 11 of Act XXIII of 1861, or s. 283 of Act VIII of 1859, anymore than for the cases falling under s, 332 (1) See Kooldeep Narain Singh v, Luckimn Singh, ante, p, 917, APPENDIX. 5 of Act VIII of 1859. Tliose cases fall uuder the general law and are jggs not excepted from the provisions of s. 332. Mahomrd We are confirmed in our view that it was the intention of the Legis- ossein lature that a special appeal should lie in certain cases from orders as Sheikh Afzui. •well as from decrees by s. 27 of Act XXIII of 1861. That section speaks of special appeals from orders as well as special appeals from decrees. We think tliat the point which has been referred to us must be decided in accordance with the view of the learned Judge who thought tliat in cases of this description a special appeal would lie. £efore Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice L. S. Jackson, Mr. Justice Levinge, Mr. Justice Pundit, Mr. Justice E. Jackson, and Mr. Justice Roberts. KOMUL KISSEN SURKHUL and others (Plaintiffs) v. BISSONATH jggs CHUCKERBUTTY and oiheks (Defendants).* August 29. Limitation — Act Xlll of 1848 (1) — Settlement Award, Suit to set aside — Adjudication upon Contention. Act XIII of 1848 applies only to suits for contesting the justice of an award as between the contending parties, and not to suits for the purpose of amending a settlement and establishing the rights of persons who were not parties contesting between themselves before the Collector. In this case one Boirub, one Doyamonee, as mother and guardian of her minor son Komul Kissen Surkhul, and otliers, acting together as one party, applied under Regulation VII of 1822 for a settlement to be made with them. The application was opposed by one Eamjeebun, but after investigation the latter's claim was rejected, and a settlement made ■with the applicants. More than three years after the date of the order directing this settlement, Doyamonee sued to have the settlement set aside on the ground that she alone was entitled to a settlement ; that Boirub and the remaining applicants had used her name without her authority, and had thereby improperly acquired the settlement in con- junction with her. The lower Appellate Court held that there had been a judicial award after adjudication of the right to a settlement under Regulation * Special Appeal, No. 2067 of 1861, from a decision passed by the Judge of Backer- gunge, dated the 24th September 1861, reversing a decree of the Principal Sudder Ameen of that district, dated the 25th May 1860. (1) Repealed by Act VIII of 1868. See now Act XIV of 1859, s, 1, cl, 6, and Act IX of 1871, Sch. ii, No. 44. PULL BENCH RULINGS. ises KOMHI. KlSS3N SUKKHUL V. BlSSONATH Chuckkr- BUTTY, VII of 1822 between the contending parties, and that the suit was " therefore barred by Act XIII of 1848, which provides that a suit to set aside an award of Settlement authorities must be brought within three years from the date of the award. The suit was accordingly dismissed. On special appeal to the High Court (Bayley and Roberts, JJ.), it was contended on behalf of the special appellants that the award in the present case was not such an award as was contemplated by Act XIII of 1848, inasmuch as the settlement was made not after adjudication of a contention between Doyamonee on the one hand and Boirub and the other applicants for the settlement on the other, but between Doyamonee, Boirub, and others as one party, and Ramjeebun as the other party. For the special respondents it was urged that there was a contention before the Settlement authorities, and that the award, having been made after adjudication on the contention, was within the purview of Act XIII of 1848. The learned Judges differed in opinion, Bayley, J., holding that there was no such award as would bar the suit, while Roberts, J., was of opinion that there was a judicial award within the meaning of Act XIII of 1848. They therefore referred the point to a Full Bench with the following remarks : — Batlet, J. (after stating the facts). — After careful consideration, we are of opinion that as betweeen Doyamonee and Boirub and others who acted as the one party against Ramjeebun who acted the other, there was a contention, adjudication, and award by the Revenue autho- rities, — but as between Doyamonee and Boirub and others, acting as one party (whether fraudulently or not, was not the question adjudicated then) there was no contention or award as to the settlement. The rit^ht of settlement was awarded on that occasion to Boirub and others and Doyamonee, and refused to Ramjeebun, who alone had claimed it against thera. That was the contention and award ; and the only one then. Thus we hold there was no such award as will bar this suit, and we decree the appeal, and, reversing the order below, we remand the case for retrial on its merits. RoBKRTS, J. — I do not think that Act XIII of 1848, admits of any such distinction as that for which appellants contend. I a^ree with the Court below that the order of the Settlement Officer of 25th November 1847, rejecting the application of Ramjeebun, and admitting Doyamonee, the mother of plaintiff in this suit, and the present defendants, to settle- ments, was a judicial award within the meaning of Act XIII of 1848. The APPENDIX. mother of the plaintiff was a party to that suit, and the plaintiff himself had cognizance of it. It is not therefore now open to plaintiff to contest the award then made. The plaintiff's interests were represented before the Settlement Officer, and he, or his mother and guardian, was a party to the suit. I would make no relaxation of the law on the ground that there was no contention between plaintiff's mother and the defendants. It is sufScient that she was a party to a judicial award. I would therefore uphold the decision of the lower Court ; and I think that, as I differ from my colleague, and the matter is an important one, it should be referred to a Full Bench. 1863 KOMOL KiSSKN SURKHOI/ V. BiSSONATH Chuoker- BUTTY. Baboos Onoocool Chnnder Mookerjee and Dwarkanath Milter for the appellants. Baboos Kaly Mohun Doss and Hem Chunder Banerjee for the respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — The contest before the Collector was not between Boirub and Doyamonee and the infants on whose behalf the present suit is brought, but between Boirub and Doyamonee on the one part and Eamjeebun on the other. The award was made between the two con- testing parties, and no award was made between Boirub and Doyamonee and the infants. This is not a case to which Act XIII of 1848 applies. That Act applies only to suits for contesting the justice of an award as between the contending parties, and not to suits for the purpose of amending a settlement and establishing the rights of persons who were not contesting between themselves before the Collector. The real con- test before the Collector was whether the rnehal to be settled appertained to an estate alleged to belong to Doyamonee and Boirub, or to an estate alleged to belong to Eamjeebun. The decision having been given in favor of the former estate, the present suit was brought upon the ground that the estate did not belong to Doyamonee and Boirub jointly, but to Doyamonee alone by descent from her father, and that the infants were heirs in reversion. It is contended that Doyamonee having committed waste, the infants are entitled to immediate possession. Whether the suit can be maintained or not upon the merits is not the question before us. The only question which we have to decide is whether it is barred by Act XIII of 1848, and we hold that it is not so barred. FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Bayley, Mr. Justice Norman, Mr. Justice Morgan, and Mr, Justice Campbell. 1865 HEERA MONEE DABEE (Plaintiff) v. KOONJ BEHARY HOLDAR Feby. 22. ,t^ . , " (Defendant).* Resumption — Regulation 11 of 1819, ». SO^Lakhiraj — Limitation — Regulation XIX of 1793, «. 10 — Plaint, Amendment of, A suit for resumption under s. 30, Regulation II of 1819, must be assumed to refer only to lakhiraj created prior to the 1st of December 1790, and therefore is not exempt from I limitation under s. 10, Kegulatiou XIX of 1793 (1). This was an action for resumption under s. 30, Regulation II of 1819. The Principal Sudder Ameeu, instead of finding wliether the laud was held as lakhiraj before 1790, dismissed tiie suit on the ground that it had been held as such for a long time. On appeal by the plaintiff to the High Court (Loch and Seton-Karr, JJ.) who heard the appeal, remarked that this was no proper finding. They were about to remand the case when the respondent objected to the hearing of the suit at all, on the ground of its being barred by limiiaiion, urging that the form of the suit brought under s. 30 Regulation II of 1819, was of itself an admission of the existence of the tenure as lakhiraj in 1790, and that unless the plaintiff could show that she was an auction-purchaser, and that she had brought this suit within twelve years from the creation of her title, she was barred by the law of limitation. There being several contradictory decisions on the point, the learned Judges submitted the following questions for the decision of a Full Bench : " If a zemindar bring a suit for resumption under s. 30, Regulation II of 1819, to question the validity of the title of a lakhirajdar to hold lands rent-free, is the form in which he thus brings his suit au admission of the existence of the tenure in 1790 ? This question of course relates merely to the existence of the tenure and not to the validity or other- wise of the title. " If the above question be determined in the afiirmative, then limita- tion may be pleaded successfully against every claimant to resume " Special Appeal, No. 1290 of 1864, from a decision passed by the Principal Sudder Ameen of East Burdwan, dated the 8th February 1864, modifying a decree of the Mun- sif of that district, dated the 23rd April 1863. (1) See Harihar Mukhopadya v. Madab Chandra Babu, 8 B, L. K., 566. HOLDAK. APPENDIX. but an auction-purchaser. Hitherto, however, the burden of proving jggj the existence of the tenure up to 1790 has been thrown on the lakhi- heI^^ rajdar, and many suits have been decided on this principle, and special ^°m appeals are pending in this Court in which this new construction of »■ the law will be applied for the first time — Should it have retrospective Behary or prospective effect ? " Mr. B. T. Allan, Baboos Noho Kishen Mookerjee, Gopee Nalh Mookerjee, and Obhoy Churn Base for the appellant. Baboo Mohendro Lall Seal for the respondent. The opinion of the Full Bench was delivered by Peacock, C.J. — ^It has been decided in the case of Sonatan Ghose V. Moulvi Abdul Farar (1), that s. 30, Regulation II of 1819, reluied only to suits for resumption of lakhiraj created prior to the 1st Decem- ber 1790. That case was decided by a Full Bench, and we are there- fore bound by it. That being so, a suit alleged to be brought under s. 30, must be assumed to refer only to a lakhiraj created prior to the Ist December 1790, and is necessarily not one to which the rule, created by s. 10, Regulation XIX of 1793, of exemption from limitation, applies. If the plaintiff has erred in stating that the suit is brought under s. 30, and wishes to amend her plaint, we think that, under the peculiar circumstances, it would be reasonable to allow her to do so by striking out the allegation that the suit is brought under s. 30, and to send the case back to the lower Court for that purpose with a direction to the Court to proceed with the suit, after the amendment has been made, in the same manner as if the plaint had originally been presented in its amended form. If, however, the plaintifiF amend her plaint, she must comply with the provisions of cl. 3, s. 26, Act VIII of 1859, by stating when her cause of action accrued, and if the cause of actiou accrued beyond the period ordinarily allowed by any law for commencing such a suit, by stating the ground upon which exemption from the law is claimed. (1) Ante, p. 109. 10 FULL BENCH RULINGS. Before Sir Barnes Peacock, Kt,, Chief Justice, Mr. Justice Baylty, Mr. Justice Seton-Karr, Mr. Justice Pundit, and Mr. Justice Macphersan. ^J86^^ SREENATH GHOSAL (Plaintifp) v. BISSONATH GHOSE and otheks (Dependants).* Limitation — Cause of Action — Ineffectual Execution Proceedings in Summary Suit- Regulation VII of 1799— Regulation VIII of 1819, ». IS, cl. 4 In a summary suit under Regulation VII of 1799, tlie plaintiff obtained a decree against his gomasta for certain moneys due from the latter, bat failed in execution to recover the amount. He accordingly brought a regular suit under cl. 4, s. 18, Regulation VIII of 1819, in order to make the immoveable property of his gomasta available in satisfaction of the debt : Held, his cause of action in the regular suit was the same as his cause of action in the summary suit, and that the period of limitation must be reckoned from the time when that cause of action accrued and not from the date of the summary decree, or from the time when the plaintiff discovered that he could not obtain satisfaction of such decree. This was a suit against a gomasta and his sureties to recover certain sums of money alleged to be due from them. The plaintiff had already instituted proceedings under the old summary suit laws as contained in Regulation VII of 1799, but failed in execution to recover the amount. He now, under the power allowed to him by cl. 4, s. 18, Eegulation VIII of 1819, brought this regular suit in order to enable him to proceed against the defendant's immoveable property (1). The Judge on appeal held that the suit was barred as the plaintiff had allowed six years to elapse from the date on which the cause of action accrued to him. He considered that the cause of action on this regular suit was identical with the cause of action in the summary suit. On special appeal it was contended that the cause of action in this suit was the discovery by the plaintiff that he could not recover the money in the summary suit. The learned Judges who heard the special appeal (Bayley and E. Jackson, JJ.) differed in opinion, the latter considering tliat the Judge was right while the former held that the plaintiff's cause of action did not arise until the ineffectual process in execution of the summary decree. They accordingly referred the point for the opinion of a Full Bench. * Special Appeal, No. 2444 of 1865, against the decree of the Judge of Zilla Hooghly, dated the 21st June 1865, reversing a decree of the Sadder Ameen of that district, dated the 26th November 1864. (1) This was before the passing of Act X of 1859, s. 1 of which repeals s. 18, Regu- lation VIU of 1819. BiSSONATH Ghose. APPENDIX. 11 Baboo Taruchnath Sen for the nppellant. jggg Baboos Romanath Bose and Mohendro Nath Sliome for the Ghosal" respondents. The opinion of the Full Bench was delivered by Peacock, C.J. — We think it is clear that the cause of action accrued when the original demand accrued. CI. 4, s. 18, Regulation VIII of 1819, which was referred to, says "if the zemindar or other plaintiff should be desirous of having any other estate, or house, or landed property of a defaulter, brought to sale in satisfaction of his claim of rent, it will be necessary for him to institute a regular suit for the purpose, notwithstanding the existence of the summary award in his favor." It does not say if he is desirous to have his decree in tlie summary suit 'enforced against other land, but if he is desirous to have other land brought to sale in satisfaction of his claim. This is not a suit for rent at all. It is a summary suit against a gomaata. The party was at liberty to bring either a summary or a regular suit. It appears to us perfectly clear that the cause of action in the regular suit was the same as the cause of action in the summary suit, and that the period of limitation must be reckoned from the time when that cause of action accrued, and not from the time when the summary decree in respect of it was given, or the time at which the plaintiff first discovered that he could not obtain satisfaction of the decree in the summary suit. The case will go back to the Division Court for final decision. Before Sir Barnes Peacock, Kt., Chief Justice, Mr. Justice Norman, Mr. Justice Kemp, Mr. Justice Seton-Karr, and Mr. Justice Campbell. QUEEN V. KHYROOLLA and otheks* Evidence — Criminal Proceedings in the Mofussil — Admissibility of Wife's Evidence for _ or against Husband or Person charged jointly with him. Upon a criminal trial in the mofussil, the evidence of a wife is admissible for or against her husband or persons charged jointly with him (1). Norman, J., dissented. On the trial of Khyroolla and others for murder the wives of four of the prisoners were examined on behalf of the prosecution. All the prisoners were convicted and sentenced to death. Upon the seiJtence * Reference by the Sessions Judge of Tipperah, dated the 4th May 1866. (1) See Act I of 1872, s. 120. 87 18CC July 9, Khtboolla. 12 FULL BENCH RULINGS. 18GG coming before (he High Court (Norman and Campbell, JJ.) for con-~ Queen flrmation, the learned Judges were doubtful whether in criminal proceed- ings in the mofussil the evidence of a wife for or against her husband, or persons charged jointly with him, was admissible, and they accord- ingly referred the following questions for the opinion of a Full Bench : — " 1. Whether upon the trial in the mofussil of a person charged with an offence, his wife is competent to give evidence for or against him ? 2. Whether upon the trial in the mofussil of several persons charged jointly with an offence, the wife of one of them is competent to give evidence for or against the others ? " The questions were referred with the following observations : — NoBMAN, J. — I am of opinion that there ought to be'a new trial, as regards the prisoners KhyrooUn, Ainooddeen and Shahabooddpen. According to tiie cases of Govind and Ram Sahoo (1 ) and Reg. v. Noyaudee and Shodee (2), decided by Steer andL. S. Jackson, JJ., in this Court, on the 9th of September 1863, and The Queen v. Gour Chund Polie (3), the evidence of a wife is not admissible for or against her husband, or against a prisoner charged jointly with him. No doubt there are cases in the late Sudder Court in which this rule was not acted upon (4), and as tlie question is one of very great importance, I think that the opinion of a Full Bench should be expressed on the subject. .... Although the wives of the prisoners are not according to my present impression admissible witnesses against their husbands, or the supposed accomplices of their husbands standing on their trial at the same time, it would be a most important thing to show how and when the state- ments were made by them which led to the discovery of the several places in which the body of the deceased had successively been deposited. Campbell, J. — As it appears that there are some expressions of some Judges which may possibly give rise to doubt respecting the admis- sibility of the. evidence (notwithstanding all the authority on the other side) I have no objection to the reference to a Full Bench. (1) 1 N. A. Sel. Rep., 182. ChundeVs case, N. A., 1827, 10; Earn Lochrni (2) Unreported. Kyburt's case, N. A., .1835, 14 ; Ashoory (3) 1 W. K., Cr., 17. Ahkoond^s case, N. A.,1840, 197 ; Godye Mul- (4) See Hurrah's case, 1 N. A., Sel. Eep., lungy's case, N. A., 1843, 27; Sheikh Sheraj- 7; Ohanya's case. Id., 144 ; Lurrye Chung's dee's case, N. A., 1852, Pt. i, 156 ; Shibram case, 2 N. A., Sel. Rep., lid; Gunga C/mrej's case, N. A., 1857, Pt. i, 472. APPENDIX. 13 The following opinions were delivered by the Full Bench : — jggg Peacock, C.J. (after stating the questions referred, continued). — I am Qdeen of opinion that both of the questions must be answered in the Khyroolla. affirmative. It is a general rule of English law, subject to certain exceptions, that in criminal cases a husband and wife are not competent to give evidence for or against each othei*. But the English law is not the law of the mofussil. At the date of the grant of the Dewany to the East India Company in 1765, when the civil government of the Provinces of Bengal, Behar and Orissa was vested in the East India Company, the Mahomedan law was the crirainallaw of the country. That law was not abrogated on the accession of the British Government, and for some years afterwards the administration of justice in criminal cases was left to the Nazim. Even after the criminal law was administered by the Courts of the East India Company without reference to the Nazim, the Mahomedan law as modified by the Regulations und Acts of Government continued to be the general criminal law of the country. The proceedings of the Criminal Courts were regulated by the futwas or opinions of their Mahomedan Law Officers ; and it was expressly enacted, by s. 74 of Regulation IX of 1793, that the sentences of the Nizamut Adawlut should be regulated by the Mahomedan law, excepting in cases in which a deviation from it was expressly directed by any Regulation passed by the Governor-General in Council. la some cases provision was made with reference to the futwas to be given by the Law Officers in cases in which the evidence given on a trial would be deemed incompetent by tlie Mahomedan law. For example, s. 56,Regulation IX of 1793, enacted that "the religious persua- ' sions of witnesses shall not be considered as a bar to the convictioa or condemnation of a prisoner ; but in cases in which the evidence given on a trial would be deemed incompetent by the Mahomedan law, solely on the ground of the persons giving such evidence not professing the Mahomedan religion, the Law Officers of the Courts of Circuit are required to declare what would have been their futwa, supposing such witnesses had been Mahomedans. The Courts of Circuit are not to pass sentence in such cases, but shall transmit the record of the trial, with the futwa directed to be required from the Law Officers, to the Nizamut Adawlut, which Court, provided they approve of the proceed- ings held on the trial, shall pass such sentence as they would have passed had the witnesses, whose, testimony may be so deemed incom- petent, been of the Mahomedan persuasion." 14 PULL BENCH RULINGS. 1866 Further, by Regulation I of 1810, which authorized the Government Que UN ^ to dispense with tiie attendance and futwa of the Law Officers whenever KHYRodLLA t'l^re might appear to be sufficient cause, it was enacted that, " in the event of any question of Mahomedan law arising upon such trials, the same should be recorded upon the proceedings for the information and deci- sion of the Court of Nizamut Adawlut. But if the question refer to the competency of a witness, such witness shall be examined, leaving the admission or ultimate rejection of the testimony so given to the consideration of the Nizamut Adawlut " (1). Other modifications of the Mahomedan criminal law were made, and in some instances particular offences, such as perjury and forgery, &c., were defined, and* the punishment for them declared by Regulations of Government; see Regulation II of 1807, and Regulation XVII of 1817. In 1832 by Regulation VI s. 5, it was enacted that any person not professing the Mahomedan faith when brought to trial on commitment for an offence cognizable under the general Regulations, might claim to be exempted from trial under the provisions of the Mahomedan Criminal Code, and in such cases the prisoner was to be tried with the assistance of a panchait, assessors or a jury, and the futwa of the Law Officer was to be dispensed with. It is clear that the English criminal law was not the criminal law of the mofussil, and that the English law of evidence was never extended by any Regulation of Government to criminal trials there. S. 3, Act XV of 1852, did not render a husband or wife incom- petent for or against the other in criminal cases. It merely declared that nothing in the Act should render them competent. Act II of 1855 did not afi'ect the matter now under consideration. It is clear that s. 14 did not render a wife competent to give evidence against her husband in a criminal case. It declared that the persons therein mentioned only should be incompetent to give evidence. It rendered them incompetent in all cases, but it did not render any person competent or incompetent with reference to particular persons or particular cases. S. 20 applied' to civil proceedings only, and s. 58 declared that the Act was not to be so cousirued as to render inadmissible in any Court any evidence which but for the passing of the Act would have been admissible in such Court. It should be observed that at the time when Acts XV of 1852 and II of 1855 were passed, the Mahomedan criminal law as modified by the Regulations was the general criminal law of the country. (1)S. 4. APPENDIX. 15 As a general rule, women were incompetent witnesses under the isee Mahomedan law in criminal cases ; 2 Hedaya, p. 667. Mr. Beaufort, Quebn in his Digest, Vol. I, p. 118, par. 629, limits the rule which excludes khykoolla. the evidence of women to cases inducing hudd or kisas, but he does not cite any authority for that position. Zihra says, "In the time of the prophet and his two immediate successors, it was an invariable rule to exclude the evidence of women in all cases inducing punishment or retaliation ;" 2 Hedaya, p. 667. la Hurrah's case (1), it was held that the evidence of a wife or son was insufficient for a sentence of kisas, but sufficient for conviction on strong presumption and a sentence by siasat. In Mussamut Mughnee v. Okariya (2), the evidence of the prisoner's wife was admitted in corro- boration of other evidence against him to support a sentence of death or other punishment by siasat. In Shaikh Sherajdee's case (3), Mr. Mills in a case of culpable homicide says : — " Though the testimony of a wife against her husband may be received in our Courts, yet the practice of summoning a wife to give evidence against her husband has been always held to be objectionable, and it is one which should on no account be encouraged." In Lurrye Chung's case (4), the Court observed, "the wife of the prisoner was called to give evidence against him, though her testimony was wholly unnecessary; that the practice of summoning such a near relation to the prisoner as a witness for the prosecution, excepting in cases of urgent necessity, is considered highly objection- able, and the Court therefore directed that such practice should be discouraged." In 3 Macnaghten's Reports, it was held, contrary to the futwas of all the Law Officers, that the evidence of a son was admissible against his father in a criminal case (5). But it is not necessary to allude further to these cases except to show that it was the practice of the Nizamut Adawlut to admit the evidence of a wife against her husband, or a son against his father, in criminal cases, in cases in wliich the sentence was by siasat. I do not, however, place much reliance on those cases, as they were decided under a very different system of law from that which now exists. Still they show that, at that time, the evidence of a wife was legally admissible. The Mahomedan criminal law, including the Mahome- dan law of evidence, is no longer the law of the country. It has been (1) 1 N. A. Sel. Eep., 7. (5) The case referred to is probably (2) Id., 144. Suldu v. Gunga Singh, 3 N. A. Sel. Eep., (3) N. A., 1852, Pt. i, 156. 309, in which however the evidence admit- (4) 2 N. A. Sel. Rep,, 150. ted was that of the prosecutor's son. Khyroolla. 16 FULL BENCH RULINGS. I86e superseded by the Penal Code and the Code of Criminal Procedure so Queen far as they go ; but they do not touch upon the rules of evidence. After the passing of the Penal Code and the Code of Criminal Procedure, Regulation IX of 1793, by which the Mahomedan law as modified by the Regulations was established as the general criminal law of the country, and many other Regulations bearing upon the same subject, were repealed by Act XVII of 1862. A Code of Evidence has not yet been passed, and we have no express rule laid down by the Legislature in any existing laws upon the subject now under consideration. By the abolition of the Mahomedan law, the law of England was not established in its place. I know therefore of no law which renders a husband or wife incompetent to give evidence against the other, or which excludes the evidence of others who are bound by the closest ties of relationship. It has, however, been held by a Division Court that the evidence of a wife is not admissible against her husband in a criminal case, even in corroboration of other evidence given — Queen v. Gour Chund Polie (1). la that case the Judges say: — "We think that the evidence of the wife against her husband should not have been recorded. It is true that there are cases published in the earlier reports of the Nizamut Adawlut in which the evidence of the wife has been received against the husband in corroboration of other evidence ; but this practice has been reprobated by later decisions of the same Court, and is certainly opposed to the general principle of all criminal law. The Judge has quoted s. 20, Act II of 1855, but this section refers to civil proceedings. The Judge would hardly condemn a wife who committed perjury for her husband, and, on the other hand, he would most likely discredit her if she appeared too willing a witness against her husband." With reference to that part of the judgment in which it is said that the practice had been reprobated in later decisions, I would remark that it was merely the practice of compelling a wife to give evidence against her husband when her evidence was not necessary that was reprobated, and that it is to be inferred that the evidence is admissible, although the attendance of a wife against her husband ought not to be compelled when not necessary. In this I entirely concur. It is our duty to declare what the law is, not to make the law, — or as Lord Bacon expressed it, "jus dieere" not "jus dare." If Judges were at liberty to decide what the law is according to their notions of ■ public policy, the greatest confusion and uncertainty would necessarily (1) 1 W. K., Cr., 17. APPENDIX. 17 be caused. It is not for us to say whether the rule of English law is i86fi founded upon sound principles or not, although there are many eminent Qukkn jurists who consider that it is not. But I may say that I cannot concur Khykoolla. in the proposition enunciated in the case last cited, that it is contrary to the general principle of all criminal law to admit the evidence of a wife in corroboration of other evidence against her husband. "When the Judges of the Nizamut Adawlut spoke of a wife giving evidence in corroboration of other testimony against her husband, they no doubt had reference to the Mahomedan law, which did not allow a conviction upon the evidence of only one witness ; and, I presume, the Judges of the Division Bench who in the case last cited rejected the evidence of a wife in corroboration, would also reject it where the wife's evidence is uncorroborated. They do not allude to the exception in the English law by which a wife is compe- tent to give evidence against her husband upon a charge of personal violence committed by him upon her ; but I presume that they would admit of that exception. Bentham, speaking of the rule of English law which excludes the evidence of a wife against her husband, says : — " A law which should exclude the evidence of the wife in the case of a prosecution against her husband for ill-usage done to the wife, would be tantamount to authorizing the husband to inflict on the wife all imaginable cruelties so long as nobody else was present — a condition which, having by law the command in and over his own house, it would in general be in his power to fulfil. A law which excludes the testimony of the wife iu the case of a prosecution against her husband for mischief done to any other individual, or to the State, is, in like manner, in other words, a law autho- rizing him to do, in the presence and with the assistance of the wife, every kind of mischief, that excepted by which she would be a sufferer. The law which in the former case affords protection to the wife, — with what consistency can it, in the latter case, refuse its protection to every kuman creature besides ? " See Bentham's Works by Bowring, Vol. VII, p. 484. " Two men, both married, are guilty of errors of exactly the same sort, punishable with exactly the same punishment. In one of the two instances (so it happens), evidence sufficient for conviction is obtainable without having recourse to the testimony of the wife. While the one suffers, — capitally, if such be the punishment, — to what use, with what consistency, is the other to be permitted to triumph in impunity ? " — Idem. If these arguments are not sufficient to show that the rule of exclu- sion in England is merely a rule of positive law, and not one depending Khtroolla. 18 ^ FULL BENCH RULINGS. X8GG upou the fundamental principles of natural justice, I would adopt QoEEN the arguments of that eminent and highly distinguished jurist Mr. Livingstone. In his Introductory Report to the Code of Evidence, prepared by him for the State of Louisiana, he says : — " The exclusion of interested testimony having been examined and found to be injurious to the investigation of truth, and its admission to be attended with no inconvenience which may not be reduced to one of a quantity that has no assignable value, it of course finds no place in the proposed Code ; and with it disappears one of the most fruitful sources of uncertainty, expense, delay, and inconvenience in the law. If the search after truth requires that interested witnesses, and even the parties themselves, should be interrogated to discover it, are there any relations in which the offered witness may stand to the parties that exclude his testimony ? By the English law — and, of course, in the several cases which have been noticed, by ours — there are several : husband and wife, &c. " 1st. The Code now offered does not contain the exclusion of husband or wife, as witnesses, for or against each other ; because the reporter does not find any one sufficient among the reasons by which it is supported in the English decisions or commentaries. Thie first of these alleged reasons is, that their ' interests are identical ' — 2 Starkie, 706; 1 Bl., 443. But in a system which discards interest as an objection to competency, this reason falls of course. The second is said, by the same authority, to be ' on grounds of public policy ' to prevent distrust and dissension between them, and to guard against per- jury. " In the case before us the public evils are designated : first, the danger of domestic dissension ; secondly, the danger of perjury. • The first, if the evidence should be against the party connected with the witness, the second, if it should go to exonerate him. The argument supposes, that, if the husband or wife be called as a witness in a suit to which the other is a party, one of two things must happen ; either unfavorable truths will be told, which it is said will disturb the family peace; or perjury will be committed to preserve it. Now these are two opposite and contradictory reasons. If the danger be that family dissensions will grow out of the testimony, then that of perjury is avoided ; if the danger be perjury, then that of family discord need not be apprehended. But legislation must be founded on the general application of its reasons ; not on the tendency of its measures to good or evil in particular instances. If the connexion by marriage be so close as to make the parties incur the danger and disgrace of giving false testimony for the other, then let the case be examined solely with APPENDIX. 19 a view to the evil of placing the witness in a situation where strong isee motives are offered to him to commit a crime. If the predominant risk Quben be that of destroying domestic harmony, let that be assigned as the khyroolla. reason. But to allege both, when they are contradictory, is a strong presumption that neitiier can safely be relied upon. Both, however, will be examined, and both contrasted with the evils which attended the exclusion. "First, let us suppose that domestic dissension is the danger, — that is to say, that one spouse will quarrel with the other for telling the truth in a Court of Justice, when it makes against the interest of the other. But in most cases the interest is common between them, therefore, there is little probability that any ill-will can be created in the mind of the one against the other for not committing perj ury, in order to protect a common interest. The supposition that a domestic broil may ensue from a cause like this, is to suppose the party raising it corrupt in expecting falsehood from his or her spouse, and malevolent in resenting Ms disappointment; and the law cannot reasonably be required to make any great sacrifice for preserving the harmony of so ill assorted a union as that which such a case supposes. The dissension arises from the performance of a duty — bearing open testimony of the truth, and avoid- ing a crime — the commission of perjury. And because a brutal, corrupt or passionate husband may quarrel witii his wife for avoiding the crime, shall the law declare that the wife shall not perform the duty ? It will watch over domestic peace by punishing those that disturb it, and, for proper causes, by dissolving the bond of an ill assorted connexion, but it ought never to say, the one party shall be exempted from the per- formance of an important public duty, because the other is tyrannical and unjust. The argument supposes, too, that there is greater danger to domestic happiness from this than from any other source; but is there any foundation for the belief ? Not one case in a thousand, it is believed, will occur in practice where any improper excitement will be created by an adherence to the truth, although it should militate against the wife or the husband of the party who states it. Why should it more in this case than in that of any other witness ? Mutual affection, the knowledge that it was the performance of a duty required by law, and that it could only be avoided by a crime, are so many and such cogent reasons to prevent ill-will on the occasion, that it is astonishing how this reason could find favor with the great lawyers who have assigned it as an argument in favor of their rule; more especially when they them- selves most explicitly discard this reason by declaring that the wife shall not be allowed to appear as a witness against the husband, even if 88 20 FULL BENCH RULINGS. 1866 V. Khtroolla he consents, or after a divorce, tior against the interest of his heirs Quj.j,jj after his death — 2 Starkie, 706; 6 East, 192. How connubial happiness can be disturbed by a compliance on the part of the wife with her husband's request while united, or by any act after the connexion hns been dissolved by death or divorce, these learned doctors of the law alone can explain. " Examine the opposite reason — the danger of perjury. That is lo say the matrimonial union is so strict, that the one party to it will incur all the dangers of punishment and infamy rather than tell the truih wben it is injurious to the other : and the law, it is said, holds out irresistible temptation to the witness when it permits him to be examined. Yet by the preceding argument the temptation is easily resisted. The truth will be fold, and this strong connexion is so weak that it is broken merely on that account. "But the arguments must be destroyed not by opposing the one to the other, but both of them to the truth. There is no doubt that in this, as in many other cases, minds may be found that will waver between the declaration of a truth that may hurt their interests or their feelings^ and the assertion of a falsehood that, in their opinion, may secure both from injury; but can the law be said to hold out a temptation to per- jury when it orders a party, under those circumstances, to tell the truth ? If there were no temptations to conceal the truth, or assert a falsehood, there would be no need of oaths. Oaths and the penalties for breaking them were made for the purpose of counteracting that dis- position. If they were to be dispensed with in cases where that dis- position exists, there would be no need for them in any others. In every such case, then, it may with equal reason be said that the law holds out a temptation to perjury, because it exacts the oath to tell the truth, when there is an inclination to conceal it; and tlie argument would extend with equnl reason to the abolition of oaths and the penalties for the breach of them. This exclusion is at variance, too, with other provisions of the law as they already exist. The party himself may be interrogated in Chancery in England, and in all cases at law here. The wife may be interrogated to support an accusation made by herself against her husband for a personal injury, in some cases affecting his life, yet she is not permitted to prove a fact that would save him from an ignominious death on a charge brought against him by another. Now, in all these cases, the danger of perjury is equally great, or greater, unless we suppose the attachment of a wife to her husband's interest superior to his own, or her desire to make good her own charge less intense than that which she would feel to support the Khyuoolla.. APPENDIX. 21 accusatioa trougbt by another. The danger of perjury is no greater ia jggg this thau ia other cases ia whicli it is iacurred, without scrapie, in the QmtisN dearest connexions of nature, — 'father and son, mother and child, brother and sister, friendships of the most intimate kind, habits of intimacy during a long life — the parties to all these are every day arrayed for and agaiast each otlier as witnesses, and the law interposes no other safe- guard to their consciences thau its penalties and the danger of infamy by detection. No rule of exclusion protects the witness against the influence of his affections or his interest. He is heard, and the degree of connexion is weighed against his character and the probability of his story ; the Counsel cross-examine; the public inspect; tlie jury interrogate, and calculate, and determine, and no iucouveuience is felt in those oases. Why should there be in this ? " Having stated the general principle, that every party to a suit has a right to all the information in relation to his cause, of which he ought not to be deprived, but for reasons of great public or private incon- venience, and examined by discussing the reasons for exclusion in this case, whether it offers any- such inconvenience, let us now examine the particular evils attached to the rule as it now stands. "In criminal cases the evil is most apparent. Suppose the husband, accused by positive, but perjured testimony, of a crime affecting his life, and the wife the only witness of a fact that would prove his innocence — no matter what circumstances she could adduce to corroborate her testimony ; no matter what intrinsic evidence it contained ; no matter what perfect conviction it would produce of its truth, it is sternly excluded ; and the innocent husband is executed, because ' public policy requires that the peace of families should not be disturbed, and that no temptations should be held out to perjury.' In this case, by no means an improbable one, there is positive evil, cruel injustice, heart-rending distress ; in the case which the law attempts to guard against, incon- venience only, if it occurs — but an inconvenience highly improbable to happen, inasmuch as it is supposed to affect domestic union, and as it is believed to be a temptation to perjury, not one strong enough to produce the effect, or should it be yielded to, would be capable of detection by the usual means. But even without supposing the extreme case of life or death, the suppression of testimony is in all cases an evil ; and the law deprives a party of a certain right to avoid a problematical incoavenience. " On the other hand, suppose the testimony of the wife necessary to procure the conviction of the husband ; she is the only witness to a murder be has committed. This I consider the strongest ground for the exclusion ; 22 FULL BENCH RULINGS. 1866 it enlists the feelings, and they are most frequently found on the QuKEN right side. Shall a wife be forced to give testimony that will condemn Khykoolla. ''^i" husband, the father of her children, to infamy and deatli, or take refuge in the crime of perjury to avoid it ? I confess that, if the alter- native could be avoided, a humane law-giver would not enjoin it ; but if sympathy W individual distress should not be entirely rejected, it ought never to be entertained when its indulgence would lead to more extensive injuries to the community. A wise and provident legislator must have the consequences of every legal provision as present to his mind, as its immediate operation is to his senses ; and in applying this rule to the subject under consideration he should not, in tenderness to the feelings of conjugal affection, permit the husband or wife to escape punishment for a crime, or defraud another of his right, by declaring that the only witness of the offence, or the wrong, shall not be heard. Some crimes cannot be perpetrated without the aid of an accomplice. The accomplice may betray the principal. The fear of this treachery, in many instances, may prevent the crime ; or a person may not be found willing to engage in the enterprise. But, by the rule of exclusion, the law furnishes an assistant who can never betray, and one who is always at hand ; and thus gives a facility to the commission of offences which no other circumstance could possibly offer. Besides, public justice requires, and common sense would seem to point out, that those persons who are the most likely to be acquainted with the fact should be first called on to prove it : but who so probable to know the guilt or innocence of the party accused as the companion of all his hours, the depository of his most secret thoughts ; and what better calculated to prevent an intended crime, than the knowledge that those from whom it is so difficult to conceal it, may be made the unwilling witnesses of its disclosure ? Precisely in the proportion that a man would be encouraged to commit a crime by the knowledge that the person to whom he finds it necessary to confide it cannot become a witness against him, will be his fear of committing it when he knows that there is no person in whom he may confide that may not be forced or be willin"' to betray him. " So sensible of this have been the judicial law-givers of England that they have imposed no bar to the receiving the testimony of father and son, mother and daughter, brother and sister, and all the other relations of consanguinity or affinity. They have had no regard to the confi- dences of friendship, and have thought that the affections of nature, as well as those of habit and sympathetic feeling, should afford no obstacle to the attainment of the ends of public justice. They have gone farther, APPENDIX. 23 and made au exceptioa to the rule which they laid down, as one iggg inviolable even by consent in the case of husband and wife (Starkie, Quekn 706 ; Ca. Temp. Hard., 264,) ; and, as we have seen, have allowed khyuoolla. the wife to be produced as a witness against the liusband on a prosecution for an injury done to herself. Now mark the reason ! It is a convenient and a ready one, — ' from the necessity of the case ' — which must mean, if it mean anything, that there is a neces- sity that crimes should be punished, and that unless the testimony of the wife were admitted, they would, in those instances, be unpunished. Now, admit this reasoning, and see whether it does not go to the utter destruction of the rule to which it is offered as an exception. There is no greater necessity for punishing a crime committed by the husband against his wife than there is for punishing the same crime committed by him against another ; and if the wife is the only witness that can convict in the last case, her testimony is as necessary as it is in the first ; and being necessary in both, it should not be admitted in one and excluded in the other. But, in truth, the enquiry is never made ; and in this and in all the other cases founded on the convenient argument of necessity, although there may have been twenty other witnesses present, the pretended necessary witness is admitted, and although there may be none but him conversant of the fact, he is rejected where it has not yet been deemed convenient to admit the argument of necessity. " The advantages of receiving testimony from this source so greatly overbalance its evils and the incoaverliences, and the injustice of rejecting it are so manifest, that I have not hesitated to give this exclusion no place in the Code ;" see p. 271. In France, according to Art. 322 of the Code d' Instruction Crimiaelle, a husband and wife and other specifl.ed relations, if objected to by the accused or by the Procureur General, cannot be a witness for or against one another ; but the President may summon and examine any person, whether such person is comprised in Art. 322 or not ; see Art. 269. The witness in that case is not examined on oath. These are matters of detail to be provided for, if at all, by an express law, and not by rules to be laid down by Judges. But even if the rule of English law is founded upon sound and just principles with reference to the state of society iu England, it appears to me to be wholly inapplicable to the natives of this country and to their social institutions and relations. A law which may be politic and just in a Christian country in which a man is prohibited from having more thau one wife, and a woman from having more tlian one husband, may be wholly inapplicable to a country in which polygamy is allowed. Can the 24 FULL BENCH RULINGS. 186G legal fiction tliat a mau aud Lis wife are one person, apply to a Kuliii QuicKN Brahmin who bus fifty wives, or to a womaQ in Malabar aud her several Khykoolla liusbands ? Or should the evideuce of one of fifty wives against her liusband be excluded lest it should cause dissension in the family ? A law which should allow a wife to give evidence against her husband in a case of personal injury committed upon her, and would uot allow her evidence to be either corroborated or contradicted by other wives who were present at the time, would appear to me uot to be founded upon the soundest principles either of policy or justice. It would be obligatory upon the Judges to allow a wife to give evidence against her husband upoii a charge of an assault committed by him upon her, and to exclude her from testifying upon a charge against him of murdering their infant child wlieu no one was present but themselves. Or would it be just to allow from necessity a wife to give evidence against her husband upon a charge of personal violence committed by him upon her, and to refuse the evidence of another wife on his behalf ? If we liad to decide this case upon our own notions of policy, I should admit the evidence of the wife, and leave the Court to judge of her credibility as in all other cases : but even if my own opinion were against the policy of admitiiug such evidence, I should not feel justified in rejecting the evidence of a wife who was the only witness to the murder of her child by her husband, or in rejecting the evidence of a wife as a witness for her husband on a charge of a capital crime preferred against him by one who admits that no one was present when the alleged crime was committed except the accuser, the husband aud his wife. lu the case of European British subjects who are governed by the law of England, we must administer that law. But in the mofussil, where the law of England is not the law of the country, I consider that I should not be justified iu excluding any witness who was not clearly incompetent by law. Prima facie every one is competent and bound to give evidence ; and every one who is charged with a crime is entitled to adduce on his behalf tlie evidence of any witness who can throw light upon the facts in dispute, and who is not expressly declared by the law to be incompetent. Would any Judge, unless bound by the clearest and most indisputable rule of law, condemn a prisoner to death for murder upon the evidence of the wife of another man, and upon his own notion of public policy reject the testimony of the prisoner's own wife in his favor ? "Would he do so if it were proved that the three persons iu question were the only persons present at the alleged murder, or that the liusbiind of the witness was also present, and that he had fled ? Wb caaaot import one poitiou of the APPENDIX. " 25 English law and reject tlie remninder without taking upon ourselves the iggg duty of legislators. I think that the evidence of the wife is admissible Q^i^ in both cases, hecause I do not find any law of this country which Khyroolla expressly provides against it. The degree of weight to be attached to the evidence in such cases must, ns in every other case, be determined by those who have to decide upon it. It appears from a late edition of Mr. Norton's book upon Evidence that the Court of Foujdari at Madras sentenced a man to death who was found guilty of murder upon the sole evidence of his own wife ; 3rd edit., p. 41. There is also, I believe, a ruling of the Nizamut Adawlut at Agra to the same effect. The case in Madras appears to have arisen in Malabar where a woman has a plurality of husbands. I have not been able to refer to either of the two cases. The case should go back to the Division Bench by which it was referred with the expression of our opinion. Norman, J. — I regret that I am compelled to differ from the rest of the Court. In order to explain my views, it is necessary that I should go into the history of this question. Regulation IX of 1793 made provision for the trial of persons charged with crimes or misdemeanors. S. 47 enacts : — " The charge against the prisoner, his confession (which is always to be received with circumspection and tenderness) if be plead guilty, or if he plead not guilty, the evidence on tliepartof the prosecutor, the prisoner's defence and any evidence which he may have to adduce) being all heard before him, the Cauzy and Mufty (who are to be present during the whole of the trial) are to write at the end of the record of their proceedings the futwa or law as applicable to the circumstances of the case, and to attest it with their seals and signatures. The Court shall attentively consider such futwa, and if it shall appear to them consonant to natural justice, and also conformable to Mahome'dan law, they are to pass sentence in the terms of the futwa," &c. By s. 54 it is enacted " the Judges of the Court of Circuit are to refer to the Cauzy and Mufty of their respective Courts all questions on points of law that may arise during the course of any trial, and respecting which no specific rules shall have been enacted by the Governor-General in Council, and shall regulate their proceedings by the opinions which may he delivered by those oflScers. If such opinions shall appear to the Judges contrary to the principles of natural justice, or to the Mahomedan law, they are nevertheless to be guided by them ; and after completing the trial, 26 FULL BENCH RULINGS. 1866 nud obt»iiiing the futwa of the Law officers upon the ease, they shnll, Queen without pnssing sentence upon it, transmit the proceedings and futwa Khykoolia '^ *'^® Nizamut Adawlut, with a separate letter stating tlieir objections to such opinions or futwas, and wait the sentence of the Court." By s. 56, " in cases in which the evidence given on a trial would be deemed incompetent by the Miihoraedan law, solely on the ground of the persons giving such evidence not professing the Mahoraedaa reli- gion, the Law Officers of the Courts of Circuit are to be required to declare what would have been their futwa, supposing such witnesses Imd been Mahomedans. The Courts of Circuit are not to pass sentence on such cases, but sliall transmit the record of the trial, with the futwa directed to be required from the Law Officers, to the Niznmut Adawlut, which Court, provided they approve of the proceedings held on the trial, shall pass such sentence as they would have passed had the witnesses, whose testimony may be so deemed incompetent, been of the Mahome- dan persuasion." By s. 74, " the sentences of the Court (of Nizamut Adawlut) shall be regulated by the Mahomedan law, excepting in cases in which a deviation from it may be expressly directed by any Regula- tion passed by the G-overnor-General in Council." Under this Regulaiion, the Criminal Courts were bound by the Mahomedan law of evidence, except in the cases provided for by s. 56 or other special Regulation of the Governor-General in Council. The religion of the State in Hindustan was according to the tenets of the Sunnis. Amongst the Sunnis, the testimony of a wife was not admissible concerning her husband, or of a husband concerning his wife ; see 2 Hedayii, p. 685. This is a rule of evidence entirely apart and distinct from that by which the testimony of women was excluded in cases including punishment or retaliation ; as to which see 2 Hedaya, p. 667. The rule is clearly and shortly stated in Harington's Sketch of the Mahomedan Criminal Law taken chiefly from the Hedaya and Futwa-i Alumgiri ; see 1 Harington's Analysis, p. 278. " The testimony of near connexions such as father and son, grandfaiher and grandson, husband and wife, master and slave, in favor of each other, is not admissible in consideration of their relative interest." In 1809, in the case of Buncharam v. Govind Sahoo and Ram Sahoo, charged with the murder of Rnmnarain, the wife of the prisoner Ram Sahoo was considered to be not admissible as a witness for the prisoner to prove that Ramnarain was committing adultery with her (1). The probability is that in this case the prosecutor objected (1) 1 N, A. Sel. Rep., 182. APPENDIX. 27 to tlie evidence adduced by the prisoner, and that the point was distinctly igeg decided in the presence of Mr. Harington and Mr. Fombelle. Queen By the English law, as a general rule, husbands and wives cannot be khyroolla. witnesses for or against each other in criminal proceedings. In Staunforde's Pleas of the Crown, first published in 1557, p. 26 b, quoted in Balton's Justice of the Peace, p. 377, it is said, "the wife is not to be bound to give evidence, nor ought to be examined, against her husband ; for by the laws of God and of this land she ought not to discover his counsel, or his offence in case of theft, or other felony." I may observe that it is well established that, under the English law, a wife is not bound to disclose even her husband's treason. Sir Edward Coke, in Co. Litt., 6 b, says, that husband and wife are two souls in one flesh, and it might be the means of implacable discord and dissension between them, and the means of great inconvenience if such testimony were admitted. BuUer, J., says, if a wife were a witness for her husband, it would be a strong temptation to commit perjury ; and, if against the husband, it would be contrary to the policy of the marriage, and would create much domestic dissension and uuhappiaess — Buller's Nisi Prius, 286; see also Blackstone's Commentaries, p. 443; Best on Evidence 226, 694. Cases of injuries done to the wife by the husband, or the reverse, form an exception to the general rule. The law prevailing in the United States on this subject is similar to that of England; see 2 Kent's Commentaries, p. 184 ; Taylor on Evidence, 1062 ; Greealeaf on Evidence, 254. In America it has been held that the evidence of a wife cannot be given against a husband even by his owh consent, on the ground that the public have an interest in the peace of families. The rule of law which excludes the evidence of a wife in favor of or against her husband is no exceptional or arbitrary rule of Mahomedan and English law. I believe it will be found to exist in the jurisprudence of all the most enlightened and civilized nations of tho world. It is to be found in the Roman law — Digest, Lib., xxii. Tit. 5, which treats husband and wife as one person for this purpose. So in the French Law — Code d' Instruction Criminelle, Arts. 156 and 322. By Art. 322 it is provided that such testimony may be received before the Court of Assize, if no objection is taken to its admission by the opposite party. Further, Art. 269 of the Code empowers the President 10 summon any person whose evidence is not admissible and question them for the purpose of obtaining information. But he cannot administer au oath to them. He does not and cannot make them witnesses. 89 28 FULL BENCH RULINGS. 1866 By tlie law of Scotland, persons are rejected as witnesses ia the causes Queen of certain near relatives. Wives and children cannot be compelled to Khyroolla. give testimony against their husbands and parents ob reverentiamper- sonarum et metum perjurii; see 2 Eiskine's Institutes of the Law of Scotland, Bk. iv, Tit. 2, § 24, p. 979 of the edition of 1828. It appears, however,that there are some exceptions from the laws of exclusion '■introduced from necessity to the effect of reducing the objection from disqualification to credibility." Such is the case of penuria testium. This is confined chiefly to criminal acts whose secrecy is studied. Secondly to domestic occurrences which necessarily exclude the presence of strangers ; or, thirdly, to the case of witnesses necessary to the act in question ; see Bell's Principles of the Law of Scotland, s. 2256. Erskine gives an instance : " Children have been admitted as witnesses in an action brought by the mother against her husband for separation and maintenance on account of his harsh treatment of her, there having been no servants at the time in the family by whom the fact might have been proved. " A witness is rejected upon his propinquity of blood to him who produces him, though he stand in as near a relation to the party wlio makes the objection, insomuch that his testimony is not received even cum nota. If the rule of exclusion be established, and partial exceptions either created by express legislation as in this country and in England, or established by careful judicial decision as in England and Scotland, or compensations provided by legislation as in France, the benefits of the rule may be preserved, and all inconveniences arising from any deviations from the rule may be either entirely avoided, or incurred only in cases of absolute necessity, or reduced to a minimum. It has been well said that marriage is an institution of natural law antecedent to all forms of government, and even to the organization of civil society. The rule excluding the testimony of married persons against each other is one which maintains the inviolable sanctity of the confidences of married life. The rule has its foundation in the deepest, and purest instincts of human nature. We can trace it in the laws of almost all civilized nations ; differently expressed in the laws of different countries — sometimes laid down in distinct and formal pro- positions with reasons given for them, as in the law of England; sometimes as part of a lai'ger and wider rule of exclusion. It seems no unnatural inference that it has existed from a period prior to all legislation as one of those APPENDIX. 29 " Unwritten laws by all men recognized, 1866 " They are not of to-day or yesterday, Quheh " But live for ever; nor can man declare, " From whom or whence they sprang." See Sophocles' Antigone, line 450. Khyrooixa. Such was the character of the rule which was law in tliis country in 1809, and it appears to me to be one which could only be abrogated by an Act of the Legislature, and ought not to be lightly set aside by judicial decision. I proceed to examine the cases which have or are supposed to liave iufringed on the rule. In Hurrah's case in 1805 (1) the prisoner was charged with murder, and (he question was whether the widow of the deceased was a competent witness to sustain a claim for kisas or retaliation in which she as an heir was supposed to be interested. By the Mahoraedao Law Officer she was declared incompetent for tliat purpose, and his opinion is confirmed by that of the editor, apparently Mr. T. H. Harington (see Preface), in a note. The case therefore does not touch the question but supports the proposition that, by the Mahomedan law an interested witness is inadmissible. In Mussamut Mughnee v. Oliariya (2), two wives of the prisoner gave evidence against him. It does not appear that the question of the admissibility of the evidence was raised. The case is reported by Mr. Dorin, who in a note appears to have misunderstood Hurrah's case, and it is contrary to that reported at p. 182 of the same book (3). Regulation I of 1810 provided for dispensing with the attendance and futwa of the law officers in the Courts of Circuit, and by s. 4 enacted that, "in the event of any question of Mahomedan law arising upon such trials, the same shall be recorded upon the p.roceedings, for the information and decision of the Court of Nizamut Adawlut. But if the question refer to the competency of a witness, such witness shall be examined, leaving the admission or ultimate rejection of the testi- mony so given to the consideration of the Nizamut Adawlut." The result of this enactment would naturally be that, in all doubtful cases, the evidence whether admissible or inadmissible would be recorded, and would have to be dealt with by the Nizamut Adawlut. Kegulation XVII of 1817 recites that " the Mahomedan law of evi- dence in some cases (especially those of zina, including adultery, rape, and incest) is such as to render a legal conviction almost impossible, .... and its exceptions to the competency or credit of witnesses are Cl) 1 N. A. Sel. Kep., 7. (2) 1 N. A. Sel. Rep., 144. (3) Govind and Ram Sahoo's case. V, EUYBOOLLA 30 FULL BENCH RULINGS. 1866 iu some inatauces inconsistent with the ends of public justice " (and QuEBi, enacts, s. 5) — " If the evidence of a witness on a criminal trial before a Court of Circuit be declared by the Mahomedan Law Officer inadmissible on the ground of the witness being a police officer, or an officer of Government of any description, or any other ground of exception in the Mahomedan rules of evidence, which may appear to the Judge unreasonable and insufficient, the Judge shall cause the examination of the witness to be taken, notwithstanding the exception stated by the liiw officer, and shall require the latter, on the completion of the trial, to declare in his futwa the sentence to which the prisoner would have been liable, if the evidence of the witness objected to had been admis- sible under the provisions of the Mahomedan law." If the conviction of the prisoner depended wholly or exclusively on the evidence objected to by the Law Officer, the Judge was not to pass any sentence, but to refer the trial to the Nizamut Adawlut. By s. 4, if two or more Judges of that Court on a deliberate consideration of the evidence and circumstances of the case concurred in opinion that the proof against the prisoner was sufficient to convict, and that he was in every respect a proper object of punishment, the Judges were declared competent to convict and pass sentence upon him as if he had been convicted by the futwa of the Law Officer. This Regulation, as long as it remained in force, gave to the Courts a discretionary power to act on the evidence of interested and other witnesses whose testimony was excluded by Mahomedan law, and, amongst others, of the husband or wife of an accused party. In 1820 in Lurrye Chung's case (1) the Court found that the wife of the prisoner had been called to give evidence against him, though her testimony was wholly unnecessary. The Court say that the practice of summoning such a near relation of the prisoner as a witness for the prosecution, excepting in the case of urgent neces- sity, was highly objectionable. In Buldu v. Gunga Singh (2), the Court acted on the evidence of the son of the prosecutor against the opinion of the Mahomedan Law Officer. In Sheikh Sherajdee's case (3), Mr. Mills says, " though the testimony of a wife against her husband may be received in our Courts, yet the practice of summoning a wife to give evidence against her husband has always been held to be objectionable, and is one which should on no account be encouraored." In Shibram Chung's case (4), Loch and Bayley, JJ., expressed them- selves in similar terms, and on that ground considered it unnecessary (1) 2 N. A. Sel. Kep., 149, (3) N. A., 1852, Pt. i, 156. (2) 3 N. A. Sel. Eep., 309, (4) N. A,, 1857, Pt. i, 474, APPENDIX. 31 to refer to the evidence of the prisoner's wife. In the Nizamut iggs Adawlut Reports, 1855, p. 213, the wife of the prisoner was admitted Quken as evidence against him. Thq Nizamut Adawlut of the North- West khykoolla. Provinces acting on the authority of the cases of Mussamut Mughnee v. Ohariya (1) and of Lurrye Chung (2), while allowing that the evidence of a wife was admissible, stated that the summoning of the wife as a witness for the prosecution was higiily objectionable. I lay wholly out of consideration the authority of Mr. Bentham and Mr. Livingstone and attribute no special value to their opinions as to what should or should not be enacted as the law on this subject. Their views and opinions have been long and familiarly known to those employed in the business of legislation in this country. With full knowledge of those opinions and of what had been done under Eegulation XVII of 1817, the Government, by Act XV of 1852, in legislating for Her Majesty's Courts, declared that nothing in that Act contained should in any criminal proceeding render any husband com- petent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. Again Act II of 1855 (an Act to improve the law of evidence in all Courts of Justice) by ss. 14, 18, and 19, provided a remedy for the evils alluded to in Regulation XVII of 1817. By s. 20 it rendered husbands and wives competent to give evidence for or against each other in civil proceedings, subject to a proviso that any communication made by the one to the other during the marriage, should be deemed a privileged communication, and should not be disclosed without the- consent of the person making the same. It is clear that the Legislature deliberately refused to sanction the admission of wives and husbands as witnesses for or against each other in criminal cases. Regulations I of 1810 and XVII of 1817 were repealed by Act XVII of 1862, and by that repeal an end was put to any special and exceptional powers of the Zilla Courts to admit at their own discretion evidence whether admissible or not under Mahomedan law. But Eegulation IX of 1793 which made the Mahomedan law the law of the Criminal Courts was repealed at the game time. What then remained? If the ancient law as it prevailed in the conquered and ceded territories except so far as it is altered by the subsequent legislation of the conqueror is to remain, the evidence is excluded, because it would be excluded by Mahomedan law. If the (1) 1 N. A. Sel. Kep., 144. (2) 2 N. A. Sel. Rep., 149. 32 FULL BENCH RULINGS. 186G repeal of Regulation IX of 1793 is to be taken as a declaration tbat Queen the Courts are no longer to be guided by Mahomedan law in any Khyroolla. respect (and there is no doubt much to be said in favor of that view of the case), then I think, where we have no positive law to guide us, we must act upon those universal principles of right which are recog- nized by our own laws. If the conditions of the married life of the people of the country had been in all respects similar to those which exist in our own country, there would not in my opinion be a doubt on the present question. I cannot accept the loose practice of Zilla Judges under the exceptional powers of Regulation XVII of 1817, though sanctioned by the Sudder Court, as having established by judicial decision a rule on this subject. There is no instance in which the question has been raised and formally decided by the Court after argument, on a full consideration of all, that could be said on either side of the question. It seems to me that the Sudder Court always felt that in admitting the evidence it was on dangerous ground, and evidently saw the mischief likely to result from doing so. The Legislature in passing Act II of 1855 distinctly declined to sanction their practice. I must admit, however, first, that polygamy amongst the Mahomedans and Eulin Brahmins places wives in a relation to their husbands different from that occupied by a European wife towards her husband. Secondly, as I understand it, the ancient criminal law of the Hindus allowed the wife or husband to be called on to testify the one against the other, though such evidence was not admissible in civil cases ; see the Dharmasastra of Yajnyawalcya by Roer and Montriou, sloke 72, p. 28 ; Mitakshara translated by Macnaghten ; 1 Macnaghten's Hindu Law, p. 246. From these circumstances it has no doubt been the case that in this country the admission of such testimony has not been felt to be, and is not in fact, a violation of the law of the family in the same sense that it would be in a European community. Still the Mahomedans appreciated the wisdom of the rule as applicable to the state of their own society ; and for the Hindus they are now living under a rule wiser, milder, and more merciful than that of their own criminal law ; and the polygamy of Kulin Brahmins was an exceptional institution. I believe that in practice the cases where a crime is committed under such circumstances that it cannot be proved except by the testimony of husband or wife, are rare indeed. I do not recollect one such in the whole course of my reading. It is easy to suppose exceptional and extraordinary cases, as Mr. Livingstone and Mr. Bentham have done. It was said indeed that Rush would not have been convicted had he been APPENDIX. 33 married to the wretched woraau who lived with him. The arguments ^ggg of my learned brothers might have greater weight if the great object of Qvenn social life was to convict criminals, — if we were bound to presume that khyroolla every husband against whom a wife should be called was guilty, I believe that, if these suggestions were adopted in European communities, the peace and confidence of hundreds of houses would be interfered with for an advantage of most doubtful character. If I were at liberty to speculate on the subject, I might say that some rule for admitting the testimony of a husband or wife in exceptional cases, might be enacted by tUe Legislature. There is another point on which I have not yet touched, viz., the danger of perjury. Mr. FitzJames Stephen's observations on this subject appear to me full of good sense. He admits, as every one must, that, if considered merely with reference to the discovery of the truth, the exclusion of the testimony of husband and wife cannot be defended. At p. 201, (1) he says : — " The proposal to make a prisoner a competent witness in his own behalf has an appearance of system about it which at first sight is extremely plausible. It would no doubt harmonize with what I have called the litigious theory of criminal trials, but there are strong objections to it. In the first place the prisoner could never be a real witness; it is not in human nature to speak the truth under such a pressure as would be brouglit to bear on the prisoner, and it is not a light thing to institute a system which would almost enforce perj ury on every occasion. It is a mockery to sweaia mim to speak the truth who is certain to disregard it. " At p. 286, he says : — " The objections already stated to making the accused competent witnesses apply with greater force to the case of their husbands and wives, inasmuch as the conjugal love which would lead a person to lie to screen a wife or husband is a better motive than the self-love which would lead a man to lie in his own case, and one not less powerful. It is so important that perjury should not be committed, and especially that it should not be committed under circumstances which would lead the public to sympathiz'e with the criminal, and it is so much more important that the administration of criminal justice should harmonize with the public feelin", than that it sliould exhaust all possible means of convicting criminals, that I think the utmost raodifieation of the present law which would be advisable would be to permit an accused person to call husband or wife if he thought fit. " I may observe that in the case before us and in regard to which the reference was made, the wives of four prisoners were called for the (1) Stephen's Criminal Law. 34 FULL BENCH RULINGS. 1866 pi'oseoutiou, iLree of whom gave false evidence to save their husbands. QuKEu The same result followed from calling tlie wife in the case from the Ku^RooLLA. North- West Provinces and in the case cited from the Nizamut Reports of 18o5. I am of opinion that there is no law in this country which makes the evidence of a wife admissible for or against her husband in criminal cases other than charges of injuries or wrongs done by the husband to the wife,and as a consequence that such evideuce is not admissible agaiast the husband or for or against parties included in the same charge and standing on their trial at the siime time with her husband. As to the latter point, see the King v. Smith before the twelve Judges (1). Tiiere are two decisions of the High Court in accordance with my opinion, viz., that of Steer and L. S. Jackson, JJ., in the Queen v. Noyaudee and Shodee (2) decided in 1863, and that of Kemp and Glover, JJ,, in the Queen v. Gour Chund Polie (3). Campbeli,, J. — I entirely concur in the judgment of the Chief Justice. Any further question on the subject has been to my mind cleared up by the judgmeut of Norman, J. The question before us is not whether it is under certain circumstances expedient to examine the wife, or what questions she may be properly pressed to answer, but whether she is or is not absolutely inadmissible as a witness for or against her husband, and for or against any person tried jointly with her husband according to the strict rule of English law. I do not understand my colleague, Norman, J., to found his objection to the admission of the wife on a broad rule which would equally exclude the son, the father, and other near relations, as interested parties. He would not I believe exclude these other relations : the daily practice of the Courts and the necessities of justice render that impossible. The rule which he maintains is the English rule. That rule he looks at from two points of view, — first, that of natural justice, and secondly, with reference to the law and practice of the Indian Courts. As respects natural justice he coasidera the English rule to be one of those " unwritten laws " which prevail, or ought to prevail, all over the world: and although I have no doubt that our function is ia fact "jus dicere " not "jus dare," and apprehend that we can hardly at this time deliver unwritten laws of our own concoction, I notice this part of the subject merely to say that the authorities quoted by my (1) 1 Moody's Crown Ca.,289; Roscoe's (2) Unreported, Evidence in Cr. Ca., 117. (3) 1 W. K., Cr, 17. APPENDIX. 35 learned colleague ia regard to tlio piovisious of viirious laws, seem to me ibgb to show that the rule maintained by him, or anything like it, has never quues been adopted in any country whntever except England. By none of jjhykoolla. the authorities quoted is the evidence of the wife specially and abso- lutely excluded. They all, without exception, merely refer to certain cautions and restrictions in regard to the evidence of a large class of interested parties, including all near relations ; and none of them abso- lutely exclude such evidence. Some old Mahomedan law books seem to lay it down as a miixim, that the evidence of parties standing in certain positions of relationship " is not to be believed," because they are interested : for instance, parties related as father and son, grandfatlier and grandson, liusband and wife, master and slave. I doubt whether under this rule these parties were ever absolutely excluded. At any rate the Mahomedan law of evidence has been relaxed in India. In France again the rule applies to a similar large class of relations, and seems to amount simply to this: — tiiey are all prima facie admissible ; but if either party objects, then the President is to decide, at his discretion, whether the witness shall or sliall ntot be examined with reference to tlie circumstances of the particular case. There is no inadmissibility there. So again in Scotland, the practice, as set forth by my learned colleague is in brief this, — that certain near relatives are not to be examined except in case of necessity, when the case cannot be proved or disproved in any other way. That is in fact the rule laid down by the Sudder Court in this country. I conclude then that no consent of nations imposes on us tlie English rule absolutely excluding the wife, and the wife only. I next, look to Indian law and practice. I believe that thousands of cases might be found in which both wives and other near relations have been admitted as witnesses, but in which the point is not reported, because no one thought of objecting. That is the reason why the number of rulings on tiie point is comparatively small. I doubt whether the evidence of a wife was ever really excluded on the ground of Mahomedan law. There is only one case in the early reports — that of 1809. There the witness was in fact examined, and it seems to me that the Judges afterwards used the term " inadmissible" only in the sense that the evidence could not be admitted to full credit. But be that as it may, my colleague Norman, J,, has pointed out the important fact that, by a subsequentEegulation(XVIIof 1817), the restrictions of the Mahomedan law of evidence were by express enactment swept away. To use the words of my learned colleague, " This Regulation gave to the Courts a discretionary power to act on the evidence of interested and other wit- nesses, and, amongst others, of the husband or wife of an accused party." 90 36 PULL BENCH RULINGS. 1SG6 We are therefore, I thiuk, all agreed that, from 1817 onwards, the eVi- QuEEH dence of the wife was admissible ; aud a series of cases shows that tlie Khtroolla CJourts acted accordingly. What then has occurred to introduce a restriction ? Clearly nothing, as it seems to me. I cannot imagine that any argument can be founded on Act II of 1855 for excluding evidence which up to that time was admissible in the Company's Courts, since that Act in the most express terms provided tliat nothing contained in the Act should be construed to render inadmissible in any Court any evidence which but for the Act would have been admissible in such Court. The Act merely provided, as it were, a minimum of admissibility in all Courts, leaving to those Courts having more liberal rules the freedom ■which they before enjoyed. It was principally designed to relax the stringency of the English law of evidence in consequence of recent reforms in England. It did not exclude the wife in criminal cases, although it did not go beyond the reforms of English law in respect of Coui'ts governed by that law, so as to admit the wife in those particu- lar Courts. The real question seems in fact to be whether the most technical parts of the English law of evidence are to be introduced into our Courts. For that I think that there is not the least warrant of law. As respects the practice, I always feel that in these matters there is this difficulty — that tlie law of tlie mofussil Courts has been so indefinite and uncertain, that there is scarcely any doctrine popularly known as English law which, somewhere or other, in the course of a vast number of judgments extending over very many years, may not be found to have been somewhere quoted by one or two Judges for mere purposes of argument, illustration, or decision. But, in my opinion, such rare mis- quotations do not establish a law. The English law of evidence was notoriously, till within a recent period, one of the most barbarous and artificial in the world ; and though a gre^t deal of the worst part of it has now been swept away, a good many things still remain which many people think bad in England. At least they are only supported there, by the peculiar circumstances of English law, habits, and procedure, and are, I think, altogether inappropriate to a widely different country. I should think it a very great misfortune if, just when the English law is, bit by bit, approaching to complete reform, its most barbarous and technical portions could be imported into this country by the mere dicta of one or two Judges speaking loosely in the absence of definite law. In the present instance, however, it seems to me that Regulation XVII of 1817 and Act II of 1855, have settled the matter by Statute, and that there is really no decision from 1810 to 1862 which lays down the doctrine of the APPENDIX. 37 exclusion of the wife. Both the High Court of Madrns and the Sudder igge Court of the North- Western Provinces have recently ruled that her Quken, evidence is admissible. The only precautionary direction in which khyuoolla. both the conseut of nations and the practice of our Courts seem to agree, is that the Court should exercise its discretion, and not unnecessarily force a near relation to give evidence or to answer unfair questions. Tiiatis I think a very proper rule, and it will probably meet the diffi- culties which seem to have suggested themselves to the minds of some Judges ; but it is not exclusion by law. I would admit the evidence of the wife as not contrary to law, because it seems to me that there is no law to exclude it, and that, in the absence of such a law, all witnesses are admissible, sul)ject to objection to their credibility. Seton-Kare, J. — We have not had the advantage of hearing counsel on the important point submitted to us by the Divisional Bench as none appeared on either side, but we have discussed the reference together, and I, personally, have had the advantage of perusing the elaborate judgments recorded by my learned colleagues, the Chief Justice, and Norman and Campbell, J J. I lose no time in recording my own opinion, which is in unison with that of the learned Chief Justice and Campbell, J. First, it seems to me that the Mahomedan law can be no possible warrant for our sanctioning the exclusion of a wife from giving evidence in criminal cases as a witness for or against her husband, or for or against other persons than her husband charged jointly with him on a criminal trial. The Mahomedan law relative to the admissibility of evidence was eminently fantastic, barbarous, unjust, and capricious. Regulations were made, from our earliest days, in order to remedy or annul its most patent absurdities, and, of late years, it has been, as a Code, entirely swept away. It next seems to me that we can derive no warrant for the exclusion of the wife's testimony from any of the provisions contained in the well known laws passed for the improvement of evidence. Act XV of 1852, and Act II of 1855. The first of these laws, s. 3, merely enacts that nothing contained in the law shall render competent, or shall compel the wife to give evidence against the husband, and, vice versa, the husband against the wife. As remarked by the learned Chief Justice, this Act does not render either of these parties absolutely incompetent ; it merely leaves matters in this respect just as they were. 38 FULL BENCH RULINGS. 1866 QUBEN V, Khtkoolla The same remark applies to the later and the more comprehensive " enactment, Act II of 1855. S. 14 of this law, in declaring what persous are incompetent to testify, expressly mentions cliildren under seven years of age and persous of unsound mind as incom|jetent, but says nothing about wives. S. 20, indeed, does expressly recognize the com- petence of husband and wife in all civil proceedings to give evidence for or against each other. But s. 58, the last section of the Act, specifies that nothing in the law shall render inadmissible evidence now admitted in the Company's Courts, i.e., in the Courts of the mofussil. By this proviso, then, it seems clear to me that the law of evidence in criminal trials was left just where it was. The next question then is, whether, interpreting the law, and referring to the decisions of tiie late Sudder and of our own Court, we can say that there has been sucli an uniform and consistent course of decisions from the commencement of this century, as to warraut us in ruling that the wife has been held, and ought to be held, incompeterit to give evidence against or for her husband. The decisions referred to and analyzed by my learned colleagues suflGiciently show that there has not been any such uniformity. It was clearly the practice of the Courts to admit such evidence in cases of necessity, or when otlier evidence could not be procured. Opinions can no doubt be quoted in favor of the exclusion of the wife, but it is on account of this diversity of opinion, and possibly of practice, that we are now called on to say what is the correct rule and practice, or to lay down some rule for the future. The earlier authorities are in favor of the admission of the wife. Mr. Mills, an eminent public servant, expressly recognizes the practice; and, certainly, my own experience is that, in practice, the testimony of the wife is constantly admitted. But, it may be said, if there has been this uncertainty of law and this diversity of opinion, why not take the opportunity of ruling that the English law, tiie offspring of great intellects, of liberal institutions, and of humanity, and civilization, shall be our guide on this subject ? We seem all agreed that the English law of evidence is not the law appli- cable to the Courts of the mofussil ; but still it may fairly be contended that, in cases of doubt or difficulty, we may endeavour to arrive at a sound decision by reference to the analogies of a science, based on reason and ameliorated by the labors of jurists and philanthropists of acute analy- tical powers, wide sympathies, and liberal views. It may be said too in furtherance of this view, that the experience of other countries con- firms and strengthens the posiiion of those who feel inclined to resort to, or to rest their decisions on, the English law. APPENDIX. 39 In answer to this, I would observe that, as poiuted out by tlie Chief iggg Justice and Campbell, J., the laws of other countries are not abso- ' Quken lute and uniform on this point. The English law itself admits of khykoolla. daviatious from the rule of exclusion. At common law even and before certaiu enactments were passed, the rule did not apply where personal injury had been committed by the husband against the wife, and vice versa (Broom's Legal Maxims, p. 477). A difference of opinion clearly exists amongst the highest English authorities as to whether the wife can give evidence against her husband incases of higli treason (Taylor on Evidence, p. 1066); and other "necessary exceptions" says the same authority have been engrafted on the law of England, so as to admit of the wife's having a remedy against personal injury. In short it seems quite clear that the law of England, positive as it is in many respects, on this important doctrine does admit of exceptions and qualifications : while tlie opinion of several eminent jurists tends directly to controvert tlie soundness of the principles on which the exception is based, and to enforce, as desirable in the interests of justice, the admissibility of the •wife's evidence. i The long extract from Mr. Livingstone's writings quoted by the learned Chief Justice sets forth the arguments for the admission of such evidence with a logical force, with a breadth of view, and with a power of language, which I should think it would be difficult to refute or weaken. This is a task which I certainly shall not think of attempting. On this particular point, then, I may be warranted in at least con- cluding that the soundness of the Euglish doctrine is fairly open to some question. I have always understood that the basis of the English law in this respect is the maxim that husband and wife are " duos animcB in came una," and that the admission of the evidence of either would be against public policy, as leading to interminable discord, and to the disunion of familes. Then admitting, for the sake of argument, that much may be said in support of the exclusion of the wife, from a purely European point of view, we may fairly ask whether the circumstances Vhich distin- guish the marriage tie, and which regulate social life in this country, are on a strict parallel with those of civilized Europe. Our learned colleague Norman, J., has quoted some excellent lines from an ancient poet and moralist relative to those " unwritten laws " which are an emanation from the Deity himself, and to which no human intellect ever gave birth. I admit their force in some instances, and as the 40 FULL BENCH RULINGS. 1866 foundation of all law ; but for this matter before us I would venture QouBN to quote the language of another ancient author, the most eminent, Khyrooila jurist of his time, who tells us — Aecommodabimus, hoc tempore, leges ad ilium quern probamus civitatis statum (Cic. do Leg., Lib. iii, Cap, 2). And again — •" Constat profecto ad salutem civium, civitalumqae incolumitatem, vitamque hominum, quiefam et heatam, inventas esse leges. (Id., Lib. ii Chap. 5). We must interpret laws in conformity to the temper and constitution of the people with whom we are dealing, and we must not lose sight of the great objects of all criminal legislation. Now polygamy, we all know, is admitted and sanctioned by both the Hindu and the Mahoraedan creeds, and is daily practised in India. Let us take a few of the dilemmas which may any day arise, if we give sanction to the prevalence of the English rule on this subject. A Kulin Brahmin may have seventy, eighty, or a hundred wives. Are wa prepared to say that not one of these women is, under any circumstances, to give evidence for or against her husband in a criminal trial involving the most serious consequences ? It is true that it is not usual for such a husband to live with all the seventy, eighty, or hundred wives at one and the same time and place; and that, therefore, it is^not competent for us to base an argument on the supposition that all, or a majority, or half a dozen of the wives may be witnesses of the same crime, or of a series of crimes on the part of the husband, and that all the mouths of all these wives, of necessity, will be shut if the rule of exclusion is to guide the Courts. But it is common for a Hindu husband to live with more than one wife at one and the same time, and in the same household or place. We hear of the wife and of the co-wife, and of the elder rani and the younger ranis, living together with the husband in numerous cases. Suppose a Hindu or Mahomedan, in the secret privacy of his household, actuated by a fit of passion, or jealousy, or pique, to kill one wife or slay a daughter, after barring the doors and carefully excluding every other competent witness, are the mouths of the remaining wives to be closed, and is justice to be evaded ? Or, suppose the converse. In a family, where there are three wives, one is assassinated or poisoned by one of the others : suspicion, owing to circumstances which will suggest themselves to any mind, falls on the husband : of the two remaining wives, one knows that the other committed the crime, and her evidence may have the corroboration of tbe most important circumstantial evidence ; but she is not allowed to tender the deposition which would clear her husband and would convict the murderess, because she is the only witness, and bar evidence is not admissible by law. It would be very easy to go on and imagine scores of such probable and possible cases, marked by every variety and shade Khyroolla. APPENDIX. 41 of difficulty. Again we have the custom of polyandry ia the hills and jggg iu some parts of the plains. Are we prepared to lay down this rule of q^^jj^ ' exception, and to push it to its fartliest and remotest conclusion, by saying that when seven husbands commit a crime" in succession, or labor unjustly under the suspicion of having committed various sorts of crimes, the ends of justice are to be defeated, or the innocent are to suffer, because the wife of tiie seven may not be put into the witness-box to inculpate or exculpate any one of those seven, to whom she stands in tlie position, not of the half which is more than the whole, but of a seventh portion of a domestic partner ? But, it will be said, we increase the temptation to commit perjury, under which temptation would lie the wife who gave evidence against the husband whom she either loved or hated, and whom she might wish to save or to ruin. I confess that tliis is a danger whicli I am prepared to meet at all times in order to do justice ; and I cannot admit that the consideration is paramount to all others, or that the temptation would be of greater force in tlie case of wife versus or for tlie husband, than it would be, or is daily, in any case where passions are excited or sym- pathies are strongly enlisted on one aide or tlie other. Is it not fair to conceive that the tie which binds a son to a father, a disciple to a Brahmin, a Shagird to his Pir and Murshid, a i-etainer to a chief, might, in this country and climate, prove at least as strong agiiinst the truth, as the tie which binds a wife to a husband who has one, two, or a dozen other wives, and who, according to his Eitstera notions, does not assign to any of them that high place in the affections, or in the social circle, which is conceded to women in all Western countries ? At any rate, looking to the admitted prevalence of perjury in the Courts of this country, this appears to me a danger which we cannot get rid of, but which we must face boldly, and endeavour to expose by strict judicial enquiry in the case of a wife, just as we do in the case of any other person interested, connected, or influenced by peculiar motives and ties, personal and feudal, secular, social, or religious. ' On the whole, then, admitting the seriousness aud importance of this subject, as-well as the possibility of a fair and reasonable opposi- tion of judicial opinions, I have come to the conclusion that, looking to the law and practice, as well as to the ends of justice and to grounds of public policy, the questions referred to us by the Divisional Bench should be answered by us in the affirmative. My reasons I would sum up as follows : — - 1. The Mahomedan law, besides being barbarous and uncivilized, no lou"'ev rules or influences the decisions of our Courts on points of evidence. 42 FULL BENCH RULINGS. 186B 2. The evidence of a wife is not rendered inadmissible by any Queen eniictinent, of (he Anglo-Indian Legisbiture. Khyuoolla. ^- Tliere exists no sucli consistent and uniform current of decisions of the highest. Courts in the country, as would exclude the wife ; but, on the contrary, in spite of some diversity of opinion, tiie practice has been to take sucli evidence. 4. Granting that we may have recourse to the principles and analogies of English law in ciises of difiB.culty and doubt, tliere is some reason to think the state of the English law on this head not wholly nnassailable, and there is every reason to conclude that it would be highly inapplicable to the peculiar circumstances of this country, as well as that it might tend to defeat the ends of justice, and to encourage secret and violent crime. Kemp, J. — These papers have come to me after my learned colleagues have recorded their elaborate judgments. Tlie last word generally is an advantage; but in this instance so much as has been siiid, and so well said, on both sides of the question, that I feel that whether I agreed or differed with the majority, I could only give my simple concurrence with one view or the other. Whether ihe evidence of a wife for or against her husband, and, vice versa, that of a husband, is properly excluded in Courts which have to administer the law of England is a question upon which I feel that I am not competent to give any opinion worth having. My own feelings and impressions are that it is properly excluded, and when I find such eminent Judges as Lord Hardwicke, Lord Kenyon, Justice BuUer, and others of the like stamp, holding the same opinion, I am content to err in such company. But that is not the question before us. Our Courts are not bound to administer the law of England. Is there then any Regulation or Act of Grovernment which enacts that such evidence is not admissible in our Courts, and has such evidence been admitted or not in our Courts? T^he judgments of the learned Chief Justice, and Seton-Karr and Campbell, JJ., have fully convinced me that such evidence is not excluded by any Regulation or Act, and that the current of decisions in our Courts is on the whole in favor of its admission. It would be presumptuous in me to attempt to add anything to the able and elabo- rate arguments of those learned Judges, and I content myself with expressing my concurrence in the opinion expressed by tliem. I have held a dififerent opinion hitherto, but I yield to the new light which has been thrown on the subject, and frankly admit that I have hitherto taken a more impulsive than sound view of this question. APPENDIX. 43 Before Sir Barnes Peacock, Ku, Chief Justice, Mr. Justice Trevor, Mr. Justice Loch, Mr. Justice Kemp, and Mr. Justice Macpherson. In the matter op the Petition of.CHUNDER KANT BHUTTACHARJEE 1867 AND OTHEKS (PLAINTIFFS). March 15. Reference to Full Bench — Power of one Judge to refer, Whea the senior Judge of a Division Bench of the High Court composed of two Judges passes an order which he intends as a final judgment in a case, the junior Judo's cannot of his own authority refer the case to a Full Bench, In this case the plaintiflfs sued to recover possession of certain hind. While the suit was pending, the defendant, Biudabun Chunder Mooker- jee, in execution of an ex parte decree under Act X of 1859, for the rent of other property, caused the plaintiflTs right, title and interest in the present suit to be sold, and bought it himself, as the plaintiffs alleged, in the name of his nephew Juddu Putti Chatterjee. Oa tlie 23rd of April, Juddu Putti, in the presence of the plaiutiffs and defendants, applied to the Sudder Ameea to have his name substituted as plaintiff, and an order was thereupon recorded " that he be put in possession, and his name put oa the register." Later in the course of the same day Juddu Putti applied for a postponement, whicli was refused by the Sudder Ameen, who ordered that, for the present, the suit should be dismissed, but that Juddu Putti should be at liberty to proceed with the suit within the legal time, he paying half the defend- ants' costs. The plaintiffs, who were not in any way befoi'e the Court when this second order was passed, obtained a rule calling on the defendants to show cause why such order should not be set aside, and why the plain- tiffs should not be at liberty to proceed with the suit. " Upon the argument of the rule, which took place before Norman, and Seton-Karr, JJ., Norman, J., held that the plaintiffs' names never having been formally removed from the record, and no decree having been made against them, the Sudder Ameen's order could not be construed as in any way affecting or binding the plaintiffs, but must be treated as an order affecting only the parties in whose presence it was made ; that the striking the case off the file was simply an act which the Sudder Ameen had no ri^ht to do, until the plaintiffs' case was disposed of by a decree for or against them ; that therefore the case as regards the plaintiffs was in point of law still pending, and that the High Court, in exercise of the powers conferred on it by cl, 15 of the Letters Patent, 1865, ought to 91 44 FULL BENCH RULINGS. jgRY order the Sudder Ameen to take up and try the case, as one found to l7^^ ^^ still pending and undisposed of in his Court, and that the defendants MATTER OF sfaould pav tho costs of the rule. Seton-Karr, J., however doubted THE Petition ' " -d j. OP Chundeb whether the High Court had power to interfere under the Letters Patent, TACHAKJBE. Bud ho accordiugly referred the case for the opinion of a Full Bench. Mr. Twidale for the plaintiffs. Baboos Dwarkanath Mitter and Chunder Madhub Ghose for the defendants. The Full Bench expressed their opinion as follows : — As Norman, J., has written to the Chief Justice to say that his order in this case was intended by him as a final judgment, the Full Bench have no power to hear it, and Seton-Karr, J., could not of his own authority refer the case to a Full Bench (1). (1) No formal judgment was recorded in this case. The above observations are copied from a contemporaneous minute made in his book by the Clerk of the Court, GENERAL INDEX. ABATEMENT OF n^NT—Patnidar—Act X of 1859, s. ^Z-Land- ^^* lord and Tenant.^ A patuidar or any other lease-holder may bring a suit against the zemindar for abatement of rent under s. 23, Act X of 1859. Bamnabatan Banekjee v. Jatakbishna Mookebjbe ... 70 ABETMENT 443 See Revisiom. ACCOMPLICE, 'TESTIMONY OP 417,459 See Evidence. ACCOUNT 613 See Redemption. , ADJUSTMENT OP 3 See Evidence. ACCRETION— 2?e-/oma«o» of Zand on old Site— Regulation XI of 1825, s. 4, cl. 1.] Where new land is formed, whether it be a re-forrnation on an old site or whether it is formed where no land ever previously existed, ownership is determined by the ownership of the adjacent land to which it has accreted. To defeat or prevent the right by accretion, the person, who claims the land as a re- formation of his old land, is required to prove some continuing right of property in himself: it is not enough for him to rely merely on identity of site. Kattemonee DossEB ». Ranee Monmohinee Dabee ... 353 ACT— 1840— IV, ORDER UNDER 636 See Act VIH of 1859, s. 14. — ;: — 1841— XIX, SUMMARY ORDER UNDER— 5aiY/or Declara- tion of Title and Possession — Limitation — Act XIV of 1859, s. 1, els. 5 & 12.] A summary order under Act XIX of 1841, for possession of property left by a deceased person, is no bar to a regular suit to try the title to such property and to obtain possession under that title ; it is, therefore, unnecessary to set aside the order before granting relief in the suit. Hence the period of limitation for such regular suit is that provided by cl. 12, s. 1, Act XIV of 1859, namely twelve years, and not one year as pro- vided by cl. 5 of the same section. Laknaeain Singh v, Mdssamut Ranee Mankoee ... 633 — 1843— XIX 403 See Pbioeitt. A U GENERAL INDEX. Page ACT— 1845— I, s. 26 623 See Enhancement op Rent. 1848— Xni App. 5 See Settlement Awabd, Suit to set aside. 1852— XXV, ss. 1 & 4 ... ... 506 See Deckee of Phivy Council. 1855-11,8.28 ... ... 417 See Evidence. , ss. 28 & 58 ... ... ... ... ... 459 See Evidence. , s. 32 521 See Alternative Charge. — 1858— XL 199 See Court of Wards. , ss. 7, 19 & 21 — Certificate of Administration and Guardianship — Recall of Certificate.J A certificate granted under s. 7, Act XL of 1858, can be recalled summarily under s. 21. Where the application for recall is based on charges of waste and mismanagement, the certificate may be so recalled, if a sufficient case is made out, without any account having previously been taken in a regular suit under s. 19. In the matter of the Petition of Khaja Shurwar Hos£ein Khan ... ... ... ... 720 — 1859— Vm, ss. 1, 5, 6, 8 8e 9 ... ... ... ... 620 See Jurisdiction. , s. 8 731 See Hindu Law. , s. 14 — Survey Award — Order of Magistrate under Act IVoflSiO — Adjudication by competent Authority — Jurisdiction.'] Neither an order by a Magistrate under Act IV of 1840 as to possession of lands, nor an award by the Survey Authorities, is an adjudication by a competent authority within the meaning of the proviso in s. 14 of Act VIII of 1859 such as to preclude an enquiry by a Civil Court under that section as to whether lands in dispute are within the local limits of the Court's jurisdiction. HUERONATH KoT V. K. W. ScOTT ... ... ... 636 , ss. 26, 29, 31, 139 & 141 581 See Plaimt, Amendment op , s. 119 947 See Decree Ex-parte, Application to set aside. , ss. 187, 189, 193 & 196 ... 496 See Appeal. , ss. 207&216 492 See Act XIV op 1859, s. 20. GENEEAL INDEX. iji Page S03 ACT— 1859— Vm, s. 209 See Execution op Decree. . ss. 221, 338 & 362 ,.. ... 54I See Execution op Decree. -S.224 ... ■ 172 See Execution op Decree. , s. 237 ... ... .., ,._ 927 See Act XXIII op 1861, s. 11. -, ss. 249, 259, 264 & 269 ... 638 See Execution Sale. .8. 257 917 See Speciai. Appeal. , ss. 257, 259 & 372 ... ... ... App. 1 See Special Appeal. ,8.270 ... ... ... ... ... 1022 See tliGHT OP Action. , ss. 270, 271 ... ... ... ... 13 See Act XXIII or 1861, s. 11. ,8.282 889 See Execution op Decree. -, ss. 284 to 294 ... ... ... ... 970 See Execution op Decree. -, s. 286 ... 886 See Execution of Decree. -, s. 327 — Filing Award — Appeal.^ No appeal lies from an order of Court rejecting an application to file an award. Baboo Chintamun Sing v. Mussamut Uma Kunwab ... 505 , s. 338 ... ... ... ... ... 1007 See Execution op Decree. , s. 348 ... ... ... ... 429; 587 See Appeal, Objection on. See Practice. , ss. 363, 377 & 378 ... ... ... ... 892 See Review, Admission op apter prescribed Period. , s. 364 ... ... .. 432 See 24 & 25 Vict., c. 104, s. 15. — ,s. 372 1 See Lakhiraj. , S3. 375 & 376 ... ... ... ... 362 See Review. > , ss. 376 to 378 & 380 ... .. ... 367 See Review, Finality op Order rejecting. IV GENERAL INDEX, Page ACT— 1859— X 25 See Kabuliat, Suit for. , S3. 1, 3&4 623 See Enhancement of Eent. ,ss. 3&4 ... ... ... ... ... 538 See Enhancement op Rent. , S3. 5, 6, 9 & 13 - 202 See Kabuliat, Suit pok. — ,3.6 ... ,„ See Occupancy Kigut. , s. 13 & s. 23, cl. 1 See Kabuliat, Suit foe. , s. 17, cl. 2 904 See Onus Peobandi. , ss. 21, 22 & 78 • • 972 See Ejectment, Suit for. ,8.23 70 See Abatement of Eent. . , s. 23, cl. 5 & s. 25 ... ... ... ... 31 See Ejectment, Suit for. ,s. 23, cl. 6 628 735 974 See Suit foe Deolabation of Title and Possession. — , s. 23, cl. 6&S. 25 .. ... 1020 See Ejectment. 25 — Suit — Appeal — Jurisdiction of Revenue and of Civil Court.'] No appeal lies to the Civil Court from an order made by a Collector under s. 25, Act X of 1859, but only to the Commissioner. An application to the Collector, under that section, is not a suit. Phillip ». Shibnath Moiteo ... ... ... .. 21 , s. 28 ... . I; 109, 162; 774 iSeeLAKHiBAj. iSee Eesumption. See Eent-free Geant. — , ss. 28 & 160 — Suit — Appeal — Jurisdiction of Revenue and of Civil Court.'] Appeals from orders passed by a Collector, on applications under s. 28, Act X of 1859, lie to the Zilla Judge, unless the amount in dispute exceeds Es. 5,000, in which case the appeal will lie to the High Court. Applications under Act X of 1859, s. 28, are suits, and should be treated as such not only as regards procedure, but also as regards appeals. Eaikes and Trevor, JJ., dissented. Biswambhar Misse!r V. Oanpat MissGR ... GENERAL INDEX. V Page ACT— 1859— X, ss. 30 & Z2— Limitation— Suit for enhanced Bent- Cause of Action— Declaratory Decree."] A suit for arrears of rent at an enhanced rate, brought more than three years after the rent had accrued due, was held to be barred by lapse of time under s.32 of Act X of 1859, notwithstanding that it was commenced within one year from the date of a decree made in a suit brought in the Civil Court declaring that the plaintiff was entitled to enhance. The cause of action was the non-payment of the rent at the enhanced rates, and not the declaration of the Civil Court that the plaintiff had a right to enhance. DoY&MOYEE Chowdrainee V. Bholanath GaosB ... ... 592 , s. 32 ... ... ... ... ... 32, 101 See LiMiiATiON. , s. 58 .1. ... ... ... ... ... 947 See Decree, Ex parte, Application to set aside. , s. 77 ... ... ... ... ... ... 351 See Appeai,. , ss. 77 & 150 TO 159. — " Decision of Collector " — Juris- diction of Civil Court — Suit to establish title to Rent — Limitation.'] The year within which, under s. 77 of Act X of 1859, a party may sue in the Civil Court to establish his title to the rent of the land or tenure is one year from the date of the final decision against him. DiNANATH BosE V. Kalikdmab Roy ... ... ... 364 -, s. 105 ... ... ... ... 382; 646 See Rent Sale, Scit to set aside. See Under-tenueb, Sale of. -, S3. 106, 107, 151 — Suit to set aside Sale of^Under- tenure — Purchaser — Jurisdiction of Civil Courts — Fraudulent Decree.] The purchaser of an under-tenure may sue in the Civil Court to set aside a sale of the under-tenure in execution of a decree for arrears of rent, under Act X of 1859, on the ground that such decree was obtained by fraud subsequently to his purchase. GuNGA Doss DcTt ». Ram Narain Ghosb ... ... 625 ss. 106 & 151 — Suit to set aside Sale of Under- tenure— Unregistered holder— Jurisdiction of Civil Court.] The holder of an under-tenure, though his name has not been registered as the owner, may sue in the Civil Court to set aside a sale of the under-tenure in execution of a decree for rent against the former holder, on the ground that the money due under the decree had been deposited before the sale. Sheieh Apzal Am v. Lala GAdbnAbayan ... ... 519 Wl GENERAL INDEX. ACT— 1859^X, s. 108 See Act XXIII of 1861, s. 35. , s. 150 See Act VI of 1862 (B. C), ss. 1 & 19. , s. 151 See Rent Sale, Suit to set aside. 1859— XI, s. 37 See Ghatwal. XIV See Resumption. - — ' — ■■, Limitation-- Svmday, Holiday or Dies non.'] Under Aet XIV of 1859, a suit not brought within the period allowed for that purpose, wiU be barred although such period may expire on a Sunday, holiday or dies non. Rajeristo Rot r. DiNOBUNDO SuBUA ... „, ... DECREE OBTAINED BEFORE PASSING OP See Execution of Decbee. , s. 1 See ListiTATioN. ■ , s. 1, CLs. 9 &10 — Limitation— Sale by Wholesale — Breach of Contract.^ A suit to recover the price of goods sold wholesale is a suit for a breach of contract within els. 9 and 10, of s. 1 Act XIV of 1859, and if there be no written contract, the period of limitation is that provided by cl. 9, viz., three years from the time when the cause of action accrued. LaiiMohun Holdab v. Mahadeb Katee 1, els. 3 & 12 Page 517 610 379 559 109 360 709 618 , s. See Execution Sale. , s. 1, els. 5 & 12 See Act XIX of 1841, Summabt Obdeb undee. , s. 1, cl. 8 & ss. 14 & 18 See Limitation. , s. 1, els. 10, 12 & 16 ... See Limitation. , s. 1, cl. 12 ... See Hindu Law. , s. l,cls. 15 & 16&S. 2 iSee Limitation. , s. 1, cl. 16 ... See Limitation. , s. 1, cl. 16 & s. 20 .. 909 638,643 .. 633 .. 101 .. 879 731 901 506 See Decbee of Pbivt Council. GENERAL INDEX. VlX Page ACT— 1859— XIV, s. 2 901 See Limitation. ■ • , 8. 14 — Limitation — Nonsuit — Prosecution of Suit."] The plaintifiF instituted a Suit under the old law (Reg. Ill of 1793), and was nonsuited on appeal, because the plaint was defective in not stating the boundaries of the land claimed. While the appeal was pending, Act XIV of 1859 came into operation. He instituted a fresh suit, and claimed to deduct the time occupied in prosecuting the former suit and appeal, under the provisions of Act XIV of 1859, s. 14. Held (by the majority of the Court) that the plaintiff was nonsuited owing to his negligence, and the time sought to be deducted from the period of limitation could not be allowed. Per Loch and Pundit, J J. — Under the circumstances the time should be deducted in computing the period of limitation. Chcndeh Madhub Chdckerbcttz v. Ram Coomah Chowdet 553 ■ , s. 14 — Limitation — Execution Proceedings — Pro- secution of Suit — Jurisdiction,] Under a decree made in a suit brought by A against B, A obtained possession of certain property. The decree was reversed on appeal, but no order was made by the Appellate Court with regard to mesne profits. After such reversal, B applied to and obtained an order from the Court of first instance for possession and mesne profits. This order, so far as it awarded mesne profits, was set aside by the High Court as being an order he had no power to make, no right to mesne profits having been declared by the Appellate Court, and as being made "altogether without jurisdiction"; they held that B should have applied to the Appellate Court which reversed the decree, or should have brought a separate suit for the mesne profits. An application for review of this judgment being rejected, B instituted a suit for such mesne profits. Held, per Pbacock, C.J., Kemp and Macpheeson, JJ. (Loch, J. dissenting), that in the proceedings taken by B in the former suit to obtain the mesne profits she was engaged in prosecuting a suit upon the same cause of action against the same defendant within the meaning of s. 14, Act XIV of 1859. Held, per Kemp, Macpheeson, and Loch, J J. (Peacock, C.J., dissenting), that the order of the Court of first instance awarding mesne profits was not annulled from "defect of jurisdiction or for any such cause" within the meaning of s. 14, Act XIV of 1859; and consequently that the period occupied in obtaining and seeking to uphold such order could not be deducted in computing the period of limitation for the suit subsequently brought by B for the mesne profits. HuBBO Chundee Roy CHotVDHBY V. SoOBADHONEE Debia ... 985 VlU GENERAL INDEX. Page ACT— 1859— XIV, s. 15 1020 See Ejectment. , s. 20 709 See ExECDTiON of Decbee. s. 20 — Proceeding to enforce Decree — Execution of Decree — Limitation.'] The word "proceeding" in s. 20, Act XrV of 1859, means a proceeding not barred by the law of limitation, and under which process of execution might lawfully have issued if the proceeding had been opposed. BissEssvB Mdllick 2). Mahabaja Dhibaj Mahatab Chund Bahadoob ... ... ... ... ... ... 967 ■ .J The words "judgment, decree, or order'' in s. 20, Act XIV of 1859, mean a judgment, decree, or order, which can be enforced by execution. If, on appeal, the judg- ment of the lower Court be affirmed, limitation runs from the date of such judgment of affirmance; but if the appeal is dismissed for default, limitation runs from the time of the original decree. An application for a review, or a petition of appeal by the person against whom the judgment was given, is not a proceeding by the decree-holder to keep the decree in force. But there is such a proceeding if he appear to oppose the application, or does any act to prevent the decree being set aside. BiPBo Doss GossAiN V. Chondeb Seekub Bhuttachaejbe ... 718 , Act VIII of 1859, ss. 207, 216.] No proceeding will be efltectual to keep alive a judgment, decree, or order within the meaning of s. 20, Act XIV of 1859, unless it be bona fide. The word " proceeding" in that section includes any bona fide application, or the last act done by the party, by the Court, or by the officer of the Court in furtherance of such appli- cation ; hence it includes the issue by the Court of a notice under s. 216 of the Civil Procedure Code and the service of it by the officer of the Court : but the mere pendency of an execution case struck off the file for want of prosecution, or the strikino- such case off the file, is not a proceeding within the meaning of the section. Ram Sahai Sing v. Sheo Sahi Sing ; Gukudas Akhcli v. GoBiN Naik — 1860— XLII, s. 3 See Small Cause Cobet, Mopussil. — — — XLV. See Penal Code. -1861— XXin, s. 11 See Execution of Decree, 492 34 602 GENERAL INDEX. ix Page ACT— 1861— XXIll, s. U~Appeal— Parties to Suit— Sival Decree- holders— Act VllI of 1859, ss. 270, 271.] An appeal does not lie under s. 11 of Act XXIII of 1861, from an order made under ss. 270 and 271 of Act VIII of 1859, with regard to the claims of several rival decree-holders, in respect of the proceeds of property sold in execution of a decree. MisRi KooEE V. Mahaeaja Maheswar Buksh Sing ... 13 -Attachment under s. 237, Act VIII of 1859.] One of several decree- holders, who had obtained separate decrees against the same judgment-debtor, attached, under s. 237 of Act VIII of 1859, a fund in the hands of the Collector belonging to the debtor, being the surplus proceeds of a sale for arrears of Government revenue, and the fund was subsequently attached by the other decree-holdersr. The fund was not sufficient to satisfy all the decrees in full. The Principal Sudder Ameen, by order of the Judge, heard the various execution cases together, but recorded separate orders in each case for the rateable distribution of the fund amongst the creditors. On appeal by the first attaching- creditor, who claimed to be entitled to be paid the amount of his decree in full, to which appeal the rival decree-holders, as well as the judgment-debtor, were made parties. Held {per Peacock, C. J., and Seton-Kaer, Jackson, and Hob- HousB, J J.), that the several orders of the Principal Sudder Ameen were substantially only one order made upon one hearing in one case to which all the execution-creditors in the several suits were parties ; that the rival decree-holders were properly made respon- dents in the appeal and could not be struck out ; and that the question to be determined being one between the rival decree- holders, and not between the parties in each suit, the case was not appealable under s. 11, Act XXIII of 1861. Held, per Macpheeson, J., that though no appeal would lie as regards the rival decree-holders, the appeal was maintainable as regards the judgment-debtor alone. Deen Dtai, Sahoo v. Eadha Muddvn Mohun Doss ... 927 , S3. 11, 12 & 35 ... 432 See 23 & 24 Vict., c. 104, s. 15. , ss. 11&44 ... ... ... App. 1 See Special Appeal. , s. 23 182 See Adverse Possession. GENERAL INDEX. ACT— 1861— XXIII, 3. 35— Powers of High Court— Jurisdiction- Appeal.'] The true construction of s. 35 of Act XXIII of 1861 is that the High Court may call for the record in any case in which ' a subordinate Court exercises a jurisdiotioa when it has none, or exceeds it when it has jurisdiction. The words in s. 35 " the Sudder Court may set aside the decision passed on appeal in such case by the subordinate Court, or may pass such other order in the case as to such Sudder Court may seem right," mean that, where a Court exceeds its jurisdiction, the High Court may set aside that part of the order which is in excess of jurisdiction, and that, where the decision of the subordinate Court is made on appeal in a case in which it has no appellate jurisdiction, the proper order is to set aside the decision altogether. If an appeal be heard by a subordinate Court which has no juris- diction to hear it, when it ought to be heard by another subordinate Court which has jurisdiction to hear it, the Court may set aside the decision of the Court which had no jurisdiction, and may, if it think right, refer the case to the Court which had jurisdiction, even if it be too late to prefer a fresh appeal to that Court. The Judge having entertained an appeal where none lay, is no ground for interfering with a decision which the Legislature intended to be final. Jackson, J., differed. In the matter or the Petition of Sub j an Ostagae ... 531 — -^— ^^— Subordinate Court — Jurisdiction — ActX o/" 1859, «. 108 — Sale of Under-tenure, lf\nality of — Appeal.] A Deputy Collector sold an under-tenure in execution of a decree for rent. An appeal was made to the Collector on the ground that the tenure could not be sold unless execution had been previously issued against the moveable property of the judgment-debtor. The Collector affirmed the decision of the Deputy Collector, but on review set aside his former order, on the ground that he had no jurisdiction, the sale having taken place under the provisions of Act X of 1859. An application was made to the High Court under s. 35 of Act XXIII of 1861 to set aside the order of the Collector, on the ground that the Collector had no power to review his own judgment, and consequently his first order stood, which the High Court ought to set aside, and pass such order as it might think right, and reverse the order of the Deputy Collector. The question was referred to a Full Bench whether s. 35 applied to the order of the Collector. The Pull Bench refused to consider the question referred, on the ground that it was the intention of Act X of 1859 that the sale by the Deputy Collector should be final. In the matter or the Petition of Docowri Kazi ... .517 GENERAL INDEX. XX Page ACT-1861— XXIir, s. 36 541 See Execution op Decbbe. - XXV. See Criminal Prooedueb Code. ^^1862— VI (B. C), ss. 1, 19— Jurisdiction of Deputy Collector- Appeal— Act X of 1859, s. 150.] A Deputy Collector cannot, tinder s. 19 of the Bengal Act VI of 1862, hear an appeal from the judgment of another Deputy Collector, even if the case is referred to him by a Collector. Serrible. — The object of that section was to give to Deputy Collectors specially entrusted with such powers, all the powers which were conferred on Deputy Collectors upon reference by the Collector, or on Deputy»Collectors placed in charge of subdivisions without such reference. Kallt Naeain Rot Chowdhrt v. Sbeemcttt Sadeun Nessa Khatoon ... ... ... ... ... ... 610 X, ScHED. B, Art. 11, Note F ... ... ... 511 See Stamp Dutt. XV, s. 1 — Commutation of Sentence — Penal Code (AciXLV of \SGO), s. 59."] An officer, who in the exercise of the powers described in s. 1, Act XV of 1862, has passed a sentence pf imprisonment for seven years, has power under s. 59 of the Penal Code to commute that sentence into one of transporta- tion for the like period. Jackson, J., dissented. The Queen ». BooDHODA ... ... ... ... 869 XVII ... 436 See Review in Criminal Cases. — 1864— VI ... ... ... ... ... ... 951 See Whipping. — 1865— VIII (B. C), s. 16... ... 646 See Under-tenuee, Sale of. X I. s. 6 ... ... ... ... ... 675,687,691 See Contribution. ., ss. 19&20 ... ... ... ... ... 886 See Execution op Decree. -, s. 22 — Reference to High Court.} Under s. 22 of Act XI of 1865, only questions which arise in the trial of a suit and not questions which arise on an application for execution can be referred by the Small Cause Court t^o the High Court. Anand Chandea Mazumdae v. Gobaedhan Khan ... 457 ADJUSTMENT OF ACCOUNT 3 See JlviDESCE. Xll GENERAL INDEX. Page ADJUSTMENT OF KENT, MODE OF ... -. ... 202 See Kabuliat, Sdit toe. ADMINISTRATION, CERTIFICATE OP 720; 199 See Act XL op 1858, ss. 7, 19 & 21. See Couet op Wabds. ADMISSION BY DEPENDANT 904 See Onus Peobandi, ADVERSE POSSESSION ... 182 See Limitation. ' Hindu Law — Female Heir — Suit hy Rever- sioner — Cause of Action — Limitation.'] Adverse possession against a Hindu female heir, which would bar her ri^ht of suit if she were alive, will equally bar that of the reversioner. NoBiN Chundeb Chdckeebbity v. Guku Peesad Doss ... 1008 I . Limitation— Landlord and Tenant — Ohat- wal—Act XXIII 0/1861, «. 23.] .The owners of a patni of Bishenpore sued to set aside a survey award and alter a map (1855) which demarcated certain lands as cultivated and uncultivated belonging to Government, and in the possession of ghatwals. Cer- tain ghatwali lands, part of the zemindari of Bishenpore, had been given up to the Government, by the zemindars, in 1802, and the ghatwals had since paid a quit-rent to Government for the same. The plaintiffs became purchasers of the patni in 1839, under a sale for arrears. They admitted that, as to the uncultivated lands, they had never been in actual possession or in the receipt of any rents since they purchased, but they alleged that, from that time, the ghatwals fraudulently or dishonestly refused to pay them rents, in respect of the cultivated lands, as they had done to their pre- decessors ; and that the ghatwals had encroached upon the uncultivated lands. The ghatwals, on the other hand, stated that they never had paid rent to the patnidar, and that the lands were all included within those for which they paid a quit-rent to Govern- ment. Held (Loch, J., dissenting) that the ghatwals, if proved to have been the tenants of the plaintifis or their predecessors, could not ' acquire a title against them by adverse possession for twelve years. Per Pbacock, C.J. — The issues are : (1) whether the ghatwals paid rent for the cultivated lands to the patnidar ; (2) whether the cultivated or uncultivated lands form part of the patni estate ; (3) whether the ghatwals were in possession of the uncultivated lands from 1839, or for a period exceeding twelve years before the com- mencement of the suit ; (4) whether they paid rent for the same to the patnidar. R. Watson u. Tub GovEKNMEHT ... ... ... 182 GENERAL INDEX, Xlll Page AGREEMENT 383, 399 See Evidence. ALIENATION BY FATHER 731, 1018 See Hindu Law. HINDU WIDOW 48; 588 See Hindu Law. See Rent Suit. ALTERATION OF NATURE OF SUIT 581 See Plaint, Amendment of. ALTERNATIVE CHARGE AND CONVICTION— iTaZ^e Evi- dence— Penal Code (Act XLV of 1860^, s. 1^1— Criminal Pro- cedure Code {Act XXV of 1861), s«. 242, 381, 382, cl. 5— Evi- dence — Act II of 1855, s. 32.] The prisoner, who as a witness in a former case had made one statement before the Magistrate and a contrary one before the Sessions Judge, was tried and con- victed of having either given false evidence before the Judge or given false evidence before the Magistrate. Held (Nobman and CAMPBELii, JJ., doubting) the conviction was right. Held also (Campbell, J., differing) the evidence taken before the Judge was admissible on the charge of having given false evidence before the Magistrate. The Queen v. Musst. Zamiean ... ... ... ... 521 AMENDMENT OF PLAINT .. 581;App. 8 See Plaint. See Resumption. ANCESTRAL PROPERTY ... 731, 1018 See Hindu Law. APPEAL ... 505; 21; 5; 13, 927; 517, 531; 610; 750; 1; 694; 362; 892; 432 See Act VIII of 1859, s. 327. See Act X op 1859, s. 25. See Act X of 1859, ss. 28 & 160. See Act XXIII OF 1861, s. 11. See Act XXIII of 1861, s. 35. See Act VI of 1862 (B. C), ss. 1 & 19. See Ckiminal Pboceduee Code (Act XXV of 1861), ss. 402 & 407. See Lakhiraj. See Letters Patent,. 1865, els. 15 & 39. See Review. See Review, Admission of, after prescribed Period. See 23 & 24 Vict., c. 104, s. 15. Act X of 1859, s. 77 — Jurisdiction of Civil Court.'] No appeal lies to the Judge from the decree of a Collector passed tinder s. 77 of Act X of 1859 in a suit for a sum less than Rs. 100 in value. Sybd Hameedoodeen v. Sited Moulvie Rayeooddeen Ahmed ... ..< ... ... ... ... 351 Xiv GENERAL INDEX, Page APPEAL— Costs— Act VIII of 1859, ss. 187, 189, 193, 196.] Held (Macpherson, J., doubting), an appeal will lie on a mere question of costs. Gbidhari Lal KoT a. Sdndar BiBi ... ... ... 496 , OBJECTION ON ... 587 See Peactice Act VIII of 1859, i. 348.] The first Court held that the plaintifif 's suit was barred by the law of limitation, but the decision was reversed on appeal, and the case was remanded by the lower Appellate Court for trial on the merits. The first Court then gave a decree for the plaintifi, but on appeal the lower Appellate Court dismissed the suit on the merits. The plaintiff preferred a special appeal to the High Court. Held, it was competent to the defendant, on such appeal, under s. 348 of the Civil Procedure Code, to raise the objection that the suit was barred by the law of limitation. In the matter or the Petition op Mieza Himmat Bahadur 429 , RESTORATION OP ... 730 See Appeal to Privy Council. , TIME EOR PREFERRING— Limitation— Pendency of Application for Review.] In computing the period within which an appeal may be preferred, the time during which an application for review was pending is to be excluded. In the matter of the Petition op Brojender Coomar Rot 728 NoBBO KissEN Sing v. Kaminee Dassee... ... ... 349 -Reasonable Ground for enlarging Time— Review. ] The plaintiff, against whom a decree had been given, did not appeal within the twenty days allowed for that purpose ; but after the expiration of more than a month, he made an application for a review of judgment, which was refused after nine months. Nineteen days later he applied to have the time for filing his appeal enlarged. Held, that the application was not made in time. Sufficient cause was not shown for not having presented the appeal within the limited, period. NoBBO KissEN Sing u. Kaminee Dassee ... "... ... 349 APPEAL TO PRIVY COUNCIL 605; 744 See Execution, Restitution op Property taken in. See Reg. XIV op 1797, s. 4. Letters Patent, 1865, els. 39 Sf 40 — Order in Execution.} An appeal lies to Her Majesty in Council from an order passed by the High Court in a case of execution of decree in which the amount involved exceeds Rs. 10,000. MussAMAT Velaety Bjsgum v. Rugghonatu Persad ... 747 GENERAL INDEX. XV — " Page APPEAL TO PRIVY COUNCIL— Zetor.? Patent, 1865, cl. 39.-Eules of 1838 — Limitation — " Judgment made on Appeal."'] When an application to review a judgment is rejected by the High Court, the six months allowed for appeal to Her Majesty in Council run from the date of the judgment and not from that of the order rejecting the review. " SOUDAMINEE DoSSEE V. MaHAKAJA DhERAJ MaHATAB ChAND Bahadoor ... ... ... ... ... 585 ■ — Powers of High Court — Resto- ration of Appeal."} After an appeal to Her Majesty in Coun- cil has been dismissed for default, or for any reason removed from the file of the High Court, under the law or under the rules of the Court, it is in the discretion of the High Court to restore the appeal after the period of six months allowed for preferring such appeals has expired. In the mattee or the Petition op Radha Binode Missee... 730 , PENDENCY OF 541 See ExECDTioN or Decree. ARREARS OF RENT, SUIT TO SET ASIDE SALE FOR 379, 382 See Rent Sale. ARREST 889 See Execution of Decree. ASSIGNMENT OF DECREE ... 345; 503 See Deceee. See Execution or Decree. ASSIGNEE OF INDIGO FACTORY, LIABILITY OF ... 54 See Indigo Factory. ATTACHMENT, SUIT FOR DECLARATION OF LIABILITY TO ... ... — •■■ ••• — ••• "^^^ See Execution op Deceee. UNDER ACT VIII OF 1859, s, 237 927 See Act XXIII op 1861, s. 11. AWARD, REJECTION OP APPLICATION TO FILE ... 505 See Act VIII op 1859, s. 327. OF SETTLEMENT AUTHORITIES, SUIT TO SET ASIDE App. 5 See Settlement Award. OF SURVEY AUTHORITIES 636 See Act XIV op 1859, s. 14. BAI-BIL-WAFA 166 Seg Mahombdan Law. BOND, UNREGISTERED, CHARGING LAND WITH REPAY- MENT OF DEBT - 879 See Limitation. XVI GENERAL INDEX. Page BREACH OF CONTRACT 500; 909 See Limitation. See Act XIV or 1859, s. 1, cls, 9 &10. BUILDINGS, REMOVAL OV— Landlord and Tenant— Improvement by Tenant.'] According to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their being attached to the soil, become the property of the owner of the soil. The general rule is that, if he who makes the improvement is not a mere trespasser, but is ia possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain com- pensation for the value of the building, if it was allowed to remain for the benefit of the owners of the soil ; the option of taking the building, or allowing the removal of the materials, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate which he may possess. In the matter op the Petition op Thakoor Chunder Fabamanice ... ... ... ... ,,, 595 CANCELMENT OF LEASE, SUIT FOR 972 See Ejectment, Sdit pob. CAUSE OF ACTION 592; 1008; 500, 618, App. 10 See Act X of 1859, ss. 30 & 32. See Adverse Posses- sion. See Limitation. CAUSES OF ACTION, JOINDER OF 620 See Jurisdiction. CERTIFICATE OF ADMINISTRATION ... 199 See Court op Wards. AND GUARDIANSHIP, RECALL OF ... ... 720 See Act XL of 1858, ss. 7, 19 & 21. UNDER WILL 588 See Rent Sdit. CHARGE ... ... ... ... ... ... ... 521 See Alternative ■ ■ CHARGES, JOINT 750 See Criminal Peoceditrb Code, ss. 402 — 407. CIVIL APPELLATE JURISDICTION OF HIGH COURT ... 694 See Letters Patent, 1865, cls. 15 & 39. GENERAL INDEX. XVll CIVIL COUXT, JURISDICTION OP ... 636; 21; 5; 364; 625; "^"^ 519; 351; 630; 379, 382; 109; 628 See Act VIII of 1859, s. 14. See Act X op 1859, s. 25. See Act X of 1859, ss. 28 & 160. See Act X of ' 1859, ss. 77 & 150 to 159. See Act X of 1859, ss. 106, 107 & 151. See Act X of 1859, ss. 106 & 151. See Appeal. See FEBar. See Rent Sale, Suit to set aside. See Resumption. See Suit foe Declaration of Title akd Possession. CO-DEFENDANTS ... ... ... ... ... 687, 691 iSee Coktkibution. COLLECTOR, MANAGEMENT OP JOINT ESTATE BY ... 653 6'eeREG. V of 1812, s. 26. COMMUTATION OF SENTENCE ... ... ... ... 869 See Act XV op 1862, s. 1. COMPENSATION 630 See Feekt. CONDITIONAL SALE ... ... ... 166 See Mahomedan Law. CONFIRMATORY GRANT ... ... ... 559 See Ghatwal. CONSTRUCTION 1341 OF 17th June 1842 ... ... ... 345 See Decree, Assignment of. CONTRACT, BREACH OP ... ... ... ... 500; 909 See Limitation. See Act XIV or 1859, s. 1, cls. 9 & 10. CONTRIBUTION ... ... ... 938 See Decree, Satisfaction of. Co-defendants — Payment of Amount of Decree — Small Cause Court Jurisdiction — Act XI of 1865, s. 6.] A suit for contribution, where there is no contract express or implied, cannot be entertained by a Small Cause Court. SBEEPUTry Rot v. Lohaeam Rot ... ... ... 687 Co-sharers — Payment of Government Revenue — Small Cause Court Jurisdiction— Act XI of 1865, s. 6.] Where one of several co-sharers in an estate paying revenue to Govern- ment has paid the revenue due upon the whole estate to prevent it from being sold, a Small Cause Court has no jurisdiction to enter- tain a suit brought by him against the other co-sharers for con- tribution. Rambux Chittanged u. MODOOSOODIIN Padl Chowdhrt ... 675 C XVIU GENERAL INDEX. Page CONTRIBUTION — Principal and Surety— Co-defendants— Small Cause Court Jurisdiction — Act XI of 1S65, s. 6.] A suit by a surety for recovery of a sum not exceeding Ks. 500, which he had to pay on account of his principal, is cognizable by a Small Cause Court. A suit for contribution is not cognizable by a Small Cause Court, unless there is a contract, express or implied, between the parties. Shaboo Majeb v. Nooeai Mollah ; Sheikh Joneep v. Sheikh Noboo ; Bhaeut Chdndek DniT v. Dengak Gopb 691 CONVICTION 521 See Alteenative Charge. ■ ■, ERRONEOUS ... ... 488 See New Tkial. CORROBORATION 417, 459 See Evidence. CO-SHARERS 675 See CONTKIBCTION. COSTS -^ 496 See Appeal. COURT EXECUTING DECREE, JURISDICTION OF 602, 970 See Execution op Deceee. OF WARDS — Certificate of Administration — Act XL of 1S5S— Regulation VI of 1822.] The Court of Wards is not pre- vented by Act XL of 1858 from taking an infant and his estate under its protection by reason of a certificate of administration to the estate having been granted by the Civil Court. The Court of Wards has a right to assume charge of the estate although origin- ally it may have refrained from acting. Madhusudan Sing v. The Collector or Midnapore ... 199 COUNSEL, HEARING TWO 609 See Peacticb. CREDITOR OP INDIGO FACTORY 54 See Indigo Factokt. CRIMINAL CASES, REVIEW IN 436 See Review. PROCEDURE CODE (ACT XXV OF 1861), s. 46 ... 951 See Whipping. See Cbiminal Pkoceedings, Stat op. -, s. 171 ... 426 -, ss. 242, 381 &382,cl. 5 ^. 521 See Alternative Charge. GENERAL INDEX. XIX ' Page CRIMINAL PROCEDURE CODE (ACT XXV OF 1861), ss. 402—407 — Powers of High Court — Appeal — Revision — Alteration of Verdict and Sentence — Joint Charges."] The High Court has no power, either as a Court of Appeal or as a Court of Revision, to reverse, alter or set aside a verdict of acquittal even if it be contrary to the evidence. A Magistrate should not send up joint charges to the Sessions Court against persons who take part in a riot on opposite sides, as they have not a common object. But where a person had been so jointly charged, and rightly convicted by the Sessions Court, lield (Macphebson, J., dissenting) that, as the prisoner had not been prejudiced by the mistake of the Magistrate, there was no sufficient ground for setting aside his conviction or ordering a new trial. Queen j;. Sheikh Bazu ... ... ..- .. 750 . . ^ ' , ss. 403— 405, 407 & 419 ... ... ... ... ... ■•• 443 See Revision. . ■ , ss. 404, 405 &43^9 ... ... ... ... ... ... ... 436 See Review in Ckiminal Cases. , _, ■, ss. 405 & 428 484 See Revision. ^ , ss. 419 & 426 459 See Evidence. CRIMINAL PROCEEDINGS IN THE MOPUSSIL ... App. 11 See Evidence. , STAY OP— Power* of High Court— Perjury — Forgery— Criminal Procedure Code {Act XXV of 1861), s. 171.] When a Civil Court directs that criminal proceedings be taken against a party to a suit before it for perjury or forgery, the High Court has no power, on an appeal being preferred against the decision of that Court, to direct that such proceedings be stayed until the appeal shall have been heard and determined. In the matter of the Petition or Ramprasad Hazea . „ 426 CROSS-DECREES ... ^^^ See Execution of Decree. CULPABLE HOMICIDE 443 See Revision. CULTIVATION BY PERSON IN WRONGFUL POSSESSION ... 1003 See Mesne Profits, Calculation of. CUMULATIVE SENTENCE ... 9^^ See Whipping. DAKHILA, PROOF OF ■• 658 See Evidence. XX GENERAL INDEX, Page "DECISION" 1 See Lakhibaj. OP COLLECTOR" ... ... 364 See Act X of 1859, ss. 77 & 150 to 159. DECLARATION OP LIABILITY TO ATTACHMENT, SUIT FOR 709 See Execution op Decree. TITLE AND POSSESSION, SUIT FOR ... 628 See Suit DECLARATORY DECREE ., ... ... ... 592; 15 See Act X of 1 859, ss. 30 & 32. See Rent at enhanced Rates, Shit fok. DECREE. See Execution. ... ... .. ... ... ... 974 See Kabuliat, Suit for. , ASSIGNMENT OF ... 503 See Execution of Decree. • • Fraudulent Execution by Assignor — Execution Sale, Suit to set aside — Construction 1341 of 17th June 1842.] The plaintiff purchased lands which had been pledged to the defendant on a bond, and, subsequently, in order to prevent their being taken in execution of a decree obtained by the defend- ant for the amount of the bond, the plaintiff purchased the decree from the defendant, who, notwithstanding, took out execution against the lands and sold them as though the decree had never been sold. In a suit by the plaintiff to recover possession of the lands and for reversal of the execution sale, Held, it was no defence that the plaintiff had not notified this purchase of the decree to the Court in compliance with Construction 1341 of 17th June 1842. Sitaham Sahu K. Mohan Makdar ... ... ,.. 345 , EX PARTE, APPLICATION TO SET ASIDE— ^ci! VlII 0/1859, s. 119 — ActXoflS5S, o. 58 — Process to enforce Judgment — Limitation.'} Process for enforcing judgment is executed within the meaning of s. 119 of Act VIII of 1859 and s. 58 of Act X of 1859, when an attachment of the property of the defendant has taken place : and any application by the defendant under those sections to set aside an ex parte decree, must be made within thirty and fifteen days respectively from the date of the attachment. Radha BiNODE Chowdrt v. Digumbubke Dossee; Ndnd KisHORE Doss Mohunt v. The Maharaja op Burdwan . 947 FOR MONEY ... 72 See Mortgagee. . .FRAUDULENT ... 625; 379,382 See Act X of 1859, ss, 106, 107 cSc 151. See Rent Sale, Suit to set aside. GENERA.L INDEX. XXJ Page DECREE HOLDERS, RIVAL IS, 927 ; 1022 See Act XXIII of 1861, s. 11. See Right or Action. ■ OF PRIYY COUNCIL— Limitation— Act XIV of 1859, s. 1, d. 16 & s. 20— Act XXV of 1852, ss. 1 ^ 4—3 ^ 4 Wm. IV. ,c. 85, s. 43—3 §-4 Wm. IV, c. 41, ,v. 21.] Per Peacock, C.J,, Trevor and L.S.Jackson, J J. — A. decree of Her Majesty in Council is neitlier a decree of a, Court established by Royal Charter, nor a decree of a Court not established by Royal Charter, within s. 20 of Act XIV of 1859. Therefore, that Act does not apply • to such decrees. S. 1 of Act XXVIII of 1852 only prescribes the procedure for executing such decrees, and does not apply any law of limitation to them. Per totam Curiam— The legislature of this country has no authority to pass any law limiting the period during which decrees of Her Majesty in Council should be executed. MussT. Anandamati Dasi v. PnRNA Chanbra Rot ... 506 , PAYMENT OF ... ... ... 6S7 See Contribution. . , PROCEEDING TO ENFORCE ... ... 718, 967; 709 See Act XIV or 1859, s. 20. See Execution or Decree. .PURCHASE OF, BY ONE OF JOINT JUDGMENT- DEBTORS • ■•■ 93S See Decree, Satisfaction of. , SATISFACTION OF ... , 18 See Summary Suit for Rent. Purchase of, hy one of joint Judg- ment-debtors— Execution — Suit for Contribution.^ One of several joint judgment-debtors who has taken an assignment of the decree cannot execute it against liis co-debtors. His only remedy is to sue them for contribution towards the amount he paid for the decree in the proportion in which they were bound, inter se, to satisfy the decree. In the matter of the Petition of Digiimburee Dabee; In the matter of the Petition of Soroop Chunbbr Hazra DEED, PAROL EVIDENCE TO VARY 383, 399 See Evidence. OP SALE 403 See Priority. DEFENCE, FAILURE TO PROVE .''38 See Enhancement of Rent. 938 XXU GENERAL INDEX. Page DEFENCE, DISHONEST 490 See Emhancement of Rent. DENA POWNA, CONTRACT TO TAKE OVER ... ... 54 See Indigo Factoet. DEPUTY COLLECTOR, JURISDICTION OF 610 See Act VI or 1862 (B. C), ss. 1 & 19. DEVISEE 588 See Rent Suit. DIESNON 360 See Act XIV of 1859. DISCHARGE FROM ARREST ... ... 889 See Execution of Decebe. DIVISION BENCH OF HIGH COURT 694 See Lettbks Patent, 1865, els. 15 & 39. EJECTMENT ... 559 See Ghatwal. Act X of 1859, s. 23, cl. 6, §• s. 25— Act XIV of 1859, s. 15 — Suit for Possession by Ryot — Landlord and Tenant.'} AVhen a zemindar, of his own authority, and without the interven- tion of the Collector under s. 25, Act X of 1859, ejects a tenant whose lease has expired, the tenant may recover possession, with- out reference to the title of the zemindar to eject him, in a suit under a. 15, Act XIV of 1859: but if the tenant sue under cl. 6, s. 23, Act X of 1859, the question is open as to whether the tenancy was at an end or not ; and if it was at an end, the tenant must fail in his suit. JONAEDAN ACHARJEE ». HaEADUN AcHAEJEE ... ... 1020 SUIT YOK— Lease, Expiry of—ActXof 1859, s. 23, cl. 5, §■ s. 15— Landlord and Tenant.^ S. 25, Act X of 1859, does not preclude a zemindar or other person seeking to eject a tenant upon the ground that his lease has expired, from asserting his rights in the Civil Courts, instead of applying to the Collector for assistance. MuDUN Mohan Rot v. Gouemonee Goopto ... ..,, 31 Suit for Cancelment of Lease — Act X of 1859, ss. 21, 22 Sf 78 — Condition for Forfeiture — Landlord and Tenant.'] S. 78, Act X of 1859, applies to all cases of suits for the ejectment of a ryot or the cancelment of a lease for non-payment of rent, whether such ejectment or cancelment be sought under the provision of ss. 21 and 22 respectively, or under an express stipulation in that behalf contained in the engagement between the parties. Jan Ali Chowdhry w, Nittyehukd Bose .. ... 97 GENERAL INDEX. XXlll ENHANCEMENT, NOTICE OP 25, 202 See Kabuliat, Suit foe. ENHANCEMENT OF RENT 559 Sec Ghatwai. Purchaser at Revenue Sale — Act I of 1845, s. 26— Act X of 1859, ss. 1, 3 ^ 4:— Landlord and Tenanf] Ryots who hold lands at fixed rates of rent which have not been changed from the time of the permanent settlement, are not liable to have their rents enhanced even at the suit of a purchaser at a sale for arrears of revenue under Act I of 1845. HUEETHUB MOOKEEJEB V. MoHESH ChCNDEE BaNBHJEE ... 623 -, SUIT FOB.— Act X of 1859,ss. 3 Sr4 Presumption as to fixed Rent — Failure to prove Potta — Landlord and Tenant-I In a suit for enhancement of rent, a ryot is not to be precluded from the benefit of the presumption under s. 4 of Act X of 1859 on proof of having held at a fixed rent for a period of twenty years, merely because he has failed to prove a potta which he has set up not inconsistent with that presumption, GiEisH Chandra Bosb v. Kali Krishna Haldae ... ... 538 Forged Potta — Dishonest Defence — Landlord and Tenant.'] In a suit for enhancement of rent, the ryot, defendant, set up a mokurrari potta, which was found to be forged. Held, that the fact of the ryot having relied on a potta which was found to be forged did not entitle the land- lord to a decree for enhancement of rent to the amount claimed. IswAR Chandra Das v. Nittianand Das ... ... 490 ENHANCEMENT OP SENTENCE 443 See Revision. ERRONEOUS CONVICTION 488 See New Teial. ERROR IN LAW , 358 See Local Investigation. ESTOPPEL ^^8' -^59 See Rent Suit. evidence' 521; 559; 662,672 See Altbenativb Chabge. See Ghatwal. See Judg- ment IN eem. XXIV GENERAL INDEX. Page EVIDENCE — Accomplice, Tesiimomj of—Corrohoration — Act 11 of 1855, ss. 28 Sf 58 — Misdirection — Criminal Procedure Code (Act XXV of 1861 J, ss. 419 Sj- 426— Reversal of Finding.'] The uncorroborated testimony of one or more accomplice or accom- plices is sufficient in law to support a conviction. The evidence of accomplices should not be left to the jury without such directions and observations from the Judge as the circum- stances of the case may require, pointing out to them the danger of trusting to such evidence when it is not corroborated by other evidence. The omission to do so is an error in law in the summing up by the Judge, and is, on appeal, a ground for setting aside the conviction, when the Appellate Court thinks that the prisoner has been prejudiced by such omission, and that there has been a failure of justice. The nature and extent of the corroboration requisite explained and illustrated. The word " reverse" in ss. 419 and 426, Code of Criminal Procedure, means to make void, to set aside or annul, and not merely to change or turn into the contrary. The Queen v. Elahi Bax ... ... ... ... 459 s. 28 — Perjury.'] A person cannot be convicted in the mofussil of giving false evidence upon the uncorroborated evidence of a single witness. Campbell, J., dissented. The Queen v. Lalchand Kowbah, Chowkeedab ... ... 417 Account, Adjustment of.] The adjustment of an account may be proved by verbal evidence, and need not necessarily be in writing signed by the party to be bound. Pdknima Chowdbain v. Nittananb Shah ... ... 3 Criminal Proceedings in the Mofussil — Admissibility of Wife's Evidence for or against Husband or Person charged jointly with Mm.] Upon a criminal trial in the mofussil, the evidence of a wife is admissible for or against her husband or persons charged jointly with him. NoEMAN, J., dissented. Queen b. Khteoolla ... ... ... ... App. 11 Proof of Dahhila.] Dakhilas or rent-receipts filed by a ryot in a suit for arrears of rent or for enhancement must be proved, whether denied by the zemindar or not. * Kibtebbash Matetee v. Kamdhuh Khokia ... ... 658 GENEIUL INDEX. XXV P;ige EVIDENCE — Written Agreement— Contemporaneous Verbal Agree- ment — Parol Evidence to vary deed."] Per Peacock, C.J., Batlet and Campbell, JJ. — Verbal evidence is not admissible to vary or alter the terms of a written contract where there is no fraud or mistalie, and in which the parties intend to express in writing what their words import. The parties cannot show by mere verbal evidence that, at the time of the agreement, what they expressed by their words to be an actual sale was intended by them to be a mortgage only. It is, however, material to enquire whether, having regard to the acts and conduct of the parties, and having reference to the amount of the alleged purchase-money and the real value of the interest to be sold, the parties intended the writing to operate as an absolute sale, and treated the transaction as such, or as a mortgage only. Per Nokman and Pundit, JJ. — Parol evidence is admissible to show that a bill of sale, though absolute in its terms, was a mortgage. Kashi Nath Chattbrjee v. Chandi Chaban Banebjee ... 383 -.] A., by a deed purporting to be a deed of absolute sale, conveyed certain property to B. The deed was registered. C. claimed a right of pre-emption. Held, per Peacock, C. J., Batlet, and Campbell, J J. (Noeman and Pdndit, JJ., dissenting) that the acts of the original parties or their statements could not be admitted as against a third party to prove that their intention was different from that which their written deed expressed and was intended by them to express. MoLCK Chand Surma v. Eablu Chandka Surma ... 399 EXECUTION OP DECREE ... ... 492, 718, 967; 938; 72 See Act XIV op 1859, s. 20. See Decree, Satisfac- tion OF. See Mortgagee. Act VIII of 1859, s. 'm— Hindu Family Dwelling-house.'] A decree-holder purchased, in execution of his decree, the right, title, and interest of the judgment-debtor, a member of a joint Hindu family, in the family dwelling-house and land attached thereto. Held per Norman, Trevor, Loch, and Batlet, JJ., that s. 224 of Act VHI of 1859 did not apply; that A. was entitled to actual possession of the share of his judgment- debtor in the house as well as in the land, but his share must be marked out so as to cause the least possible inconvenience to the other members of the family. Per Kemp, J.— An equivalent in value of the share in the house should be apportioned to him out of the land, which greatly exceeded the dwelling-house in value. Kowak Buoi KiiSAL PioT Bauaduu v. Sama Sundabi ... 172 D XXVI GENERAL INDEX. Page EXECUTION OF DECREE— 4c< VIII of 1859, s. S38- Slay of Execution.'} A party applying to stay execution of a decree under s. 338 on giving security, is bound to show sufficient grounds to the Court for staying it whether the decree is in respect of move- able or immoveable property. In the mattek of the Petition of Rani Ismaid Koobk ... 1007 Act XIV of 1859, s. 20— Decree obtained before passing of Act XIV of 1859 — Proceeding to enforce — Declaration of Liability to Attachment, Suit for — Limitation.^ Process of execution of a decree obtained before the passing of Act XIV of 1859 may be issued within the time mentioned in s. 21 of that Act without any prior proceeding having been taken; but when it is sought to execute such decree after three years from the time of the passing of the Act, process of execution shall not be issued unless some proceeding within the meaning of s. 20 shall have been taken to enforce the decree or keep it in force within three years next preceding the application for execution. A regular suit by a decree-holder for a declaration that property released fi-om attachment, under s. 246 of Act VIII of 1859, is liable to attachment in execution of his decree, is a proceeding to keep a decree in force within the meaning of s. 20, Act XIV of 1859. Kangalee Chcrn Ghosal b. Bonomalee Mullick; Maha- BEER Persad v. Mussamut Pkanputti KoEtt ... ... 709 ' Arrest of Debtor — Discharge — Further Execution against Debtor's Property — Act VIII of 1859, s. 282.] After a debtor has been arrested ia execution of a decree and discharged at the request of the creditor, his personal property may be taken in execution under the same decree. Janoki Singh Roy v. Kaloo Mundul ... ... ... 889 ■ Crosi-decrees — Set-off— Act VIII of 1859, s. 209 — Assignment of Decree — Question not arising in. case.'] Act VIII of 1859, s. 209, which provides for the set-oiFof cross-decrees, applies only to decrees of the same Court or decrees sent to a Court for execution. Therefore when, on application for execution of a decree in the Court of a Principal Sudder Ameen, it was sought to set-off a decree obtained in the Judge's Court which had not been sent to the Principal Sudder Ameen for execution. Held, that s. 209, Act VIII of 1859, did not apply. Question referred not answered on the ground that it did not arise in the case. GiRISHCHANDBA LaHURY V. FaKIR ChAND ... _^, 503 .FRAUDULENT ... ".'. 345 See DiiCBEE, Assigkment of. GENERAL INDEX. XXVJi EXECUTION OP DBCR E^- Jurisdiction of Court executing Decree - ^"^^ Interest— Mesne Profits-Act XXIII of 1861, s. 11.] When a decree is silent as to interest, the Court executing the decree has no power to award interest. Act XXIII of 1861, s. 11, refers only to questions of amount of interest or mesne profits which are left open and not determined by the decree. MosooDUN Lall a. Bekahbe Singh ... ... ... 602 Limitation— Act VIII of 1859, ss. 284—294.] When a decree has been transmitted by the Court which passed it to another Court for execution, the latter Court has jurisdiction to try whether or not execution of the decree is barred by the law of limitation. Per Peacock, C.J. — When there are different laws of limitation in force in the two Courts, the law applicable to the proceedings in execution of the decree should be the law of the Court to which the decree is transmitted for execution. Leake ». Daniel ... ... ,„ ... ... 970 ■ ' Mofussil Small Cause Court — Trans- fer of Execution Proceedings — Act XI of 1865, ss. 19 Sj- 20 — Act VIII o/ 1859, s. 286.] S. 19, Act XI of 1865, provides merely for cases in which the party in whose favor a decree is given applies for immediate execution, either against the person or against the moveable property of the debtor. The provisions of s. 286, Act VIII of 1859, apply to Small Cause Courts in the Mofussil. Accordingly a Small Cause Court may send its decree to another Com-t for execution if there be not sufficient property within its own jurisdiction to satisfy the decree. It may send the decree to any other Court in the same district which the applicant may« indicate ; but if execution be sought in another district, the decree must be sent to the principal Court of original jurisdiction in that district. Ahonymocs Case ,,, ... ... ... ... 886 ' -Jurisdiction — Pendency of Appeal to Privy Council — Security — Stay of Execution — Reg. XVI of 1797, s. 4:— Act VIII of 1859, ss. 221, 338, S&i—Act XXIII of 1861, s. 36.] In a suit in which an appeal to the Privy Council from a decree of the High Court has been admitted, and is still pending, the Court of original jurisdiction, which made the decree first appealed from, has jurisdiction to issue execution. Although, as a general rule, the High Court will take security, under s. 4, Regulation XVI of 1797, before allowing execution of a decree while there is an appeal to the Privy Council pending, yet the Court may, under certain circumstances, allow execution ''^'ithout taking security, xxviii , GENERAL IN0EX; Page Where the lower Court ia informed that there has been an appeal to Her Majesty in Council from the decree which it is asked to execute, the lower Court should, in the exercise of its discretion, allow time to the parties to apply to the High Court to stay execu- tion or to require security from the party left in possession, before issuing execution unless it should see danger of the property being made away .with in the interval. Wise v. Rajkbishna Rot ... ... ... 541 EXECUTION OF DECREE, SUIT FOR 18 See Sdmmaby Suit fob Rent. , ORDER IN ... ... 747 ; App. 1 See Appeal to Fbitt Couhcii.. See Special, Appeal. PROCEEDINGS 985 See Act XIV of 1859, s. 14. IN SUMMARY SUIT... App. 10 See Limitation. TRANSFER OP 886 See ExECOTioN of Deceee. — , RESTITUTION OF AMOUNT REALIZED IN 714 See 24 & 25 Vict., c. 104, s. 15. PROPERTY TAKEN IN— Security — Regulation XVI of 1797, s. 4 — Appeal to Privy Council.'] The plaintiflf obtained a decree for possession of part of a zemindari and in execution obtaiifed possession on giving security. On appeal by the defendants to the High Court, the decree was reversed and restitution ordered. Plaintiff then appealed to the Privy Council, and applied to the High Court to be left in possession upon his former security. Held, that s. 4, Regulation XVI of 1797, did not apply, and the plaintiff was not entitled either to keep possession or to require the defendants to give security ; but the defendants were entitled to restitution of the property without security whether the judgment of the High Court ordered restitution or not : but that it was within the discretion of the Court to call upon the defendants to give security for costs, if any, awarded by the decree of reversal. In the matter op the Petition op Rajkissen Singh ... 605 - SALE 432 See 24 & 25 Vict., c. 104, s. 15. GENERAL INDEX. XXIX Page EXECUTION SALE— SmjV for Possession— Limitation— Act VIII of 1859, ss. 249, 259, 264 §■ 269— ^c< XIV of 1859, s. 1, els. 3 Sf 12.] In execution of a decree obtained against A, his right, title, and interest in certain property were sold, but the certificate of sale erroneously recited that A and B's ancestor were defendants in the suit, and that the interest of the defendants in the suit had been sold : and accordingly the purchaser was put in possession, under s. 264, Act VIII of 1859, of the right, title, and interest of B's ancestor as well as of A in the property. In a suit brought by B for confirmation of title and recovery of pos- session after the lapse of a year, but within twelve years, from the date of dispossession. Held, that the suit was not barred by lapse of time. A person dispossessed of property in execution of a decree against another person, and claiming to be entitled to possession, is not bound to proceed under s. 269 of Act VIII of 1859. Pkotab Chundeb Chowdhby v. Beojo Loll Shaha ... 638 Act XIV of 1859, s. 1, els. 3 Sj- 12.] When a suit to establish his title and to recover possession of property is brought by a person who has been dispossessed under a sale in execution of a decree against other persons, and no summary order has been made declaring the property liable to be sold in execution of such decree, the period of limitation applicable is that prescribed by ol. 12, s. 1, Act XIV of 1859, viz., twelve years from the date of dispossession. JoDOONATH Chowdhrt V. Radhomoneb Dassee ... ... 643 , SUIT TO SET ASIDE 345 See Decree, Assignment of. Bona fide PurcJiaser.J It cannot be laid down as a general proposition of law that under ' no circumstances can a sale in execution of a decree be set aside as against a bond fide purchaser for valuable consideration and with- out notice. In a suit brought to set aside such a sale, it is for the Court to determine whether it will be in accordance with the principles of justice, equity, and good conscience, that the sale ought to be set aside or not. Abdttl Hate v. Nawab Raj ... ... ... ... 911 EX PARTE DECREE ... ... ... 947 See Decree. FALSE EVIDENCE 521 See Alternative Charge. FAMILY DWELLING-HOUSE 172 See Execution or Decree. XXX GENERAL INDEX. Page FATHER, ALIENATION BY 731, 1018 See HiND0 Law. FEMALE HEIR 1008 See Adverse Possession. FERRY — Resumption — Compensation, Suit for — Jurisdiction of Civil Court— Regulation, VI of 1819— Regulation XVIII of 1806— Regulation XIX of 1816.] A suit for compensation for the loss sustained by reason of the resumption by Government, under Regulation VI of 1859, of a ferry, is not cognizable by the Civil Courts. The Collector of Pobna on behalf of Government v. RoMANATH Tagore... ... ... ... ... 630 FINDING, REVERSAL OP ... ... ... ... ... 459 See Evidence. FIRM, SUIT BY ... ... 904 See Onus Probandi. FORFEITURE OF LEASE, CONDITION FOR 972 See Ejectment, Sbit for. FORGERY .= 426 See Criminal Proceedings, Stay of. FRAUDULENT DECREE 625; 379, 382 See Act X of 1859, ss. 106, 107 & 151. See Rent Sale, Sdit to set aside. FULL BENCH, REFERENCE TO ... ... ... App. 43 See Reference. FULL BENCH RULING 892 See Review, Admission of aptek prescribed Period. GHATWAL 182 See Adverse Possession. . Hereditary Tenure — Words of Inheritance, Absence of — ' Mahomedan Grant — Confirmatory Grant — Evidence — Ejectment — Ghatwali Services, Cessation of — Enhancement of Rent — Act XI of 1859, s 37.] The plaintiff, an auction-purchaser of a zemin- dari at a sale for arrears of revenue, sued in 1863 to eject the defendants from certain mouzas included in the zemindari, and which were held by the defendants under a ghatwali tenure, on the ground that the service for which the grant was made was no longer required, and that the sunnud, or grant, contained no words of inheritance. The defendants proved that the grant was made in the year 1743 to M., after whose death the land was in the pos- session of M.'s heir-at-law prior to the permanent settlement ; that he and his ancestors bad enjoyed uninterrupted possession Fn GENEEAL INDEX. XXxi direct succession from a period prior to the permanent settlement ^"^^ at a quit-rent of Rs. 61 per annum. The Collector appeared on behalf of the Government, and stated that the ghatwali services had not been dispensed with by the Government, but might he required at any time. Held, the plaintiff was not entitled to eject the defendants. Per Peacock, C.J.-The case falls within, and is protected by s. 37 of Act XI of 1859. Per Tkevor and Jackson, JJ.— S. 37 of Act XI of 1859 does not apply to the case. Qucere.— Is the zemindar entitled to enhance the rent of a ghatwal in lieu of service ? Baboo Kooldeep Naeain Sing v. Mohadeo Sing 559 G^^^NT ... :;; ;;; ,^^ See Ghatwai. GUARDIANSHIP, CERTIFICATE OP 720 See Act XL op 1858, ss. 7, 19 & -21. HEREDITARY TENURE _ 559 See Ghatwal. HIGH COURT, DIVISION BENCH OF 694 See Appeal. ■ ,POWERSOF 531; 730; 750; 426; 436; 443,484; 432,714, 716 See Act XXHI of 1861, s. 35. See Appeal to Privy Council. See Criminal Procedure Code (Act XXV OP 1861), ss. 402 to 407. See Criminal Proceedings, Stat op. See Review in Criminal Cases. See Revision. See 24 & 25 Vicr., c. 104, s. 15. HINDU FAMILY DWELLING-HOUSE . . 172 See Execution of Decree. LAW ... 1008 See Adverse Possession. • Miiahshara — Ancestral Property — Alienation by Father — Cause of Action — Limitation — Act XIV of \S5d,s. \, cl. 12 Act VIII of 1859, s. 8 — Multifariousness.] L.'s father, a Hindu living under the Mitakshara law, alienated in 1848 ancestral immoveable property by deed of absolute sale, and possession was taken by the alienee at the time. In 1863 L., who was born in 1837, sued on his own account and as guardian of his minor brother R., who was born in 1856, to set aside the sale. The father died in 1857. Held, L.'s cause of action accrued when possession was taken under the deed of sale, and not at the father's death. R.'s birth did not create a new right of action in L. either alone or jointly with R. The suit, therefore, was barred by lapse of time. XXXU GENERAL INDKX. Page Where the alienation was by deed of conditional sale, followed by decrees for foreclosure and possession to which L. and R. were not parties, Held, the cause of action accrued when possession was taken under the decree. The suit, having been instituted within 12 years of that date, was not barred. A plaint against several defendants for causes of action which have accrued against each of them separately, arid in respect of which they are not jointly concerned, should be rejected. Raja Ram Tewaet v. Luchmun Peesad... ... ... 731 HINDU LAW — Mitahshara — Ancestral Property — Alienation hy Father — Refund of Purchase-money — Onas.] Under theMitakshara law, when a sale of ancestral property by the father has been set aside in a suit by the son, on the ground that there was no such necessity as would legalize the sale, and that the son had not acquiesced in the alienation, the son is entitled to recover the property without refunding the purchase-money, unless such circumstances are proved by the purchaser as would give him an equitable right to compel a refund. MoDHOo Dtal Singh v. Kolbub Singh ... ... ... 1018 — — Succession — Step-Mother — Step- Orandmother.J According to the Mitakshara, in a divided family, a step-mother cannot succeed to the estate of her step-son, or a step-grandmother to the estate of her step-grandson. Lala Joti Lal v. Mussamat Durani Koweb ... ... 67 Widow, Alienation by — Right of Action — Rever- sioner."] A conveyance by a Hindu widow, for othej: than allow- able causes, of property which has descended to her from her husband, is not an act of waste which destroys the widow's estate and vests the property in the reversionary heirs, and the conveyance is binding during the widow's life. The reversionary heirs will not be precluded, even during the life time of the widow, from commencing a suit to declare that the conveyance was executed for causes not allowable, and is, there- fore, not binding beyond the widow's life ; nor will the reversionary heirs be deprived, during the widow's life, of their remedy against the grantee to prevent waste or destruction of the property, whether moveable or immoveable. GoBINDMAHI DasI U. ShAMLAL BysAK ... ... ... 48 HINDUS, PRE-EiMPTION AMONG 35 See Pee-emption. HINDU WIDOW, ALIENATION BY 48 ; 588 See Hindu Law. See Rent, Suit for. HOLIDAY 360 See Act XIV op 1859. GENERAL INDEX. xxxiii- Page INCUMBRANCE 646 See Under-tenuee, Saxb op. INDIGO FACTORY, ASSIGNMENT OF— Assignee, Liability •■ 166 ... 655 602; 7; ; 613 .See Person in Wrongful Possession.] When a person in wrongful possession of laud has himself occupied and cultivated it, the proper principle on which the amount of mesne profits is to be calculated is to ascertain what would have been a fair and reasonable rent for the land, if the same had been let to a tenant during the period of the unlawful occupation by the wrong-doer. Rani Asmut Kooer v. Mahakani Ihdbbjeet Kooek ,,. 1003 MISDIRECTION 459 See Evidence. MITAKSHARA 67,731,1018 See Hindu Law. GENERAL INDEX. sliil Page MITIGATION OF SENTENCE 484 See Revision. MOPUSSIL SMALL CAUSE COURT. See Sm&tt Cause Cocbt. MONEY DECREE 72 See MOBTQAGEB. MORTGAGE ... ... ... ... 166; 403 ; 613; 415 See Mahomedan Law. See Pbioeity. See Redemption. See Statute, Promulgation of. MORTGAGEE , 901 See Limitation. •Money-Decree — Execution — Bona fide Purchaser.'^ When a person to whom pi'operty ia pledged for a debt obtains a simple money-decree against hia debtor, in respect of the debt, he cannot execute that decree against the property pledged, where it is in the possession of a subsequent bond fide purchaser. GupiNATH SiJJG ». Sheo Sahai Sing. ... ... ... 72 MORTGAGOR, SUIT BY, FOR POSSESSION OF MORTGAGED PROPERTY AND SURPLUS COLLECTIONS 901 See Limitation. MOTION 609 See Practice. MULTIFARIOUSNESS 731 See Hindu Law. MURDER 443 See REVisio-Ni NEW TRIAL — Erroneous Conviction — Revision.'] The prisoner was convicted by the Magistrate of two separate offences under ss. 456 and 380 of the Penal Co^je^ and sentenced for both. On appeal the Sessions Judge, holding that the offence proved was under s. 457, ordered a new trial for offences under ss. 457 and 380. Held, that there ought not to be a new trial, but that the conviction and sen- tence under s. 380 should be set aside. The Queen K. Ramch ARAN Kaibi ... .,. ... 488 NON-SUIT 553 See Act XIV of 1859, s. 14. NOTICE • 15 See Rent at Enhanced Rates, Suit fob. OF ENCUMBRANCE 403 See Pbioeity. ENHANCEMENT 25, 202 See Kabuliat, Suit foe. OBJECTIONS ON APPEAL 429; 587 See Appeal. See Practice. xliv GENERAL INDEX. OCCUPANCY BIGHT 202 See Kabuuat, Suit foe. » " ActXof 1859, s. 6— Transferable Tenur^.'] A tenure not originally transferable without the consent of the landlord does not become so merely because the tenant has obtain- ed a right of occupancy under s. 6, Act X of 1859. Qucere per Peacock, C.J., whether a right of occupancy gained under s. 6, Act X of 1859, is necessarily heritable? AjooDHiA Pbesab o. MnssAMni Emambandee Begum ... 725 ONUS PKOBANDI 1018; 162; 415 See Hindu Law. See Kesumption. See Statute, Pko- MULGATION OF. Act X of 1859, s. 17, cl. 2— Written Statement of Defendant — Admission — Suit hy a Firm.'\ Where, in a suit for enhancement on the ground that the productive powers of the land have been increased otherwise than by the agency or at the expense of the ryot, the defendant admits the increase in produc- tiveness, but denies the alleged cause, the onus of proving that the productiveness has been increased by other means lies on the plain- tiff. Per Peacock, C. J., a suit by a firm should not be brought in the name of the firm, but in the names of the members who con- stittite the firm. PuLiN Behabi Sen v. Watson ... ... ... ... 904 PAROL EVIDENCE TO VARY DEED 383,399 See Evidence. Parties TO SUIT 13,927 See Act XXIH oe 1861, s. 11, PARTY, REFUSAL OF, TO ATTEND AS WITNESS 716 See 24 & 25 Vict., c. 104, s. 15. PATNIDAR 7n See Abatement op Rent. PAYMENT OP DECREE 687 See Contribution. ' ^RENT 588 See Rent Suit. REVENUE 673 See Contribution. PENAL CODE (ACT XLV or 1860), s. 59 869 See Act XV op 1862, s.. 1. -.S.122 521 See ALTEENAtivE Chaeoe. GENERAL INDEX. xl^ MEJUKY ... ... 426; 417 See Criminal Proceedings, Siat of. See Evidbnce. PLAINT 974 See Kabdliat, Suit tor. . , AMENDMENT OF App. 8 See Resumption. Alteration of nature of Suit — Act Vttlof 1859, ss. 26, 29, 31, 139, 14I.J Where in the plaint the relief sought for was possession and mesne profits, and the plaint was in the course of the suit amended, and an additional stamp paid, so that the suit became one for resumption, held, the amend- ment was improperly made, and the suit must proceed aa a suit for possession and mesne profits. GOBIND MaHAPATRO V. GOPEENATH PcNDIT ... ... 581 POSSESSION, ADVERSE 182, 1008 See Adverse Possession. -, SUIT BY KYOT FOR 1020 See Ejectment. FOR, ON DECLARATION OF TITLE ... 628 See Suit for Declaration op Title and Possession. POTTA, FORGED 490 See Enhancement op Rent. , .TENDER OF ... ., 25,202,974 See Kabuliat, Suit for. PRACTICE— ^c< VIII of 1859, s. 34S— Objections on Appeal.^ A respondent may file a notice with the Registrar, specifying there- in the objections which he intends to take on the hearing of the appeal. In the ■matter or the Petition op Madhobbe Dossee ... 587 -Hearing two Counsel — Motion.] It is not the prac- tice to hear more than one counsel or vakeel in support of original motions or applications against which no cause is shown in the first intance. In the matter op the Petition op Baroda Soondrbe Dasseb ... ... ... ... ... ... 609 PRE-EMPTION ... ... ... ... 166 See Mahomedas Law. xlvi GENERAL INDEX. PRE-EMPTION AMONG HINDUS— Mahomedan Law.] A right or custom of pre-emption is recognized as prevailing among Hindus in Behar and some other Provinces of Western India. In districts where its existence has not been judicially noticed, the custom will be matter to be proved ; such custom, when it exists, must be presumed to be founded on and co-extensive with the Mahomedan law upon that subject, unless the contrary be shown. The Court may, as between Hindus, administer a modification of that law as to the circumstances under which the right may be claimed, where it is shown that the custom in that respect does not go the whole length of the Mahomedan law of pre-emption ; but the assertion of the right by suit must always be preceded by an observance of the preliminary forms prescribed in Mahomedan law. Fakir Rawot v. Sheik Emambaksh ... ... ... 33 PRESUMPTION AS TO FIXED RENT 538 See Enhancement of Rent, Suit foe. PRINCIPAL AND SURETY « 691 See CONTKIEIITION. FRlOlilTY- Registration—Act XIX of 1S43— Deed of Sale— Mori- gage— Notice.'] A registered deed of sale has not priority under Act XIX of 1843 over an unregistered deed of mortgage of an earlier date. Per Peacock, C.J., Nobman and Pundit, JJ. (Batlet and Campbell, JJ., dissenting). — The fact of a purchase of land under a deed of sale being bond fide, and without notice of a prior charge, does not pass the land free from the prior charge. Maharaja Maheswar Bax Sing Bahadur v. Bhikha Chowdrt ... ... .„ ... ... ... 403 PRIVY COUNCIL, DECREE OF 506 See Dbceee. PROCEEDING TO ENFORCE DECREE ... 492, 718, 967; 709 See Act XIV of 1859, s. 20. See Execution of Decree. PROCESS TO ENFORCE JUDGMENT .. ... ... 947 See Decree, Ex parte. Application to set aside. PURCHASE OF DECREE BY ONE OF JOINT JUDGMENT- DEBTORS ... ... ... ... 938 See Decree, Satisfaction op. PURCHASER AT PRIVATE SALE 774 See Rent-free Grant. REVENUE SALE ... 623 See Enhancemeht. , BONA FIDE... 911; 72 See Execution Sale, Suit to set aside, See Mortgagee. GENERAL INDEX. xlvU Page PURCHASER OF UNDER-TENURB 625 See Act X op 1859, ss. 106, 107 & 151. QUESTION REFERRED NOT ARISING IN CASE ... 503; 759 See Execution op Decree. See Rent Suit. — — .j Question referred not answered on the ground that it did not arise in the case. GopAL Chcnder Rot v. Gooeoo Doss Rot ... 764 note REDEM.TTIOI^— Mortgage— Zur-i-peshgi— Account— Regs. XV of 1793 ^ I of 1798— Mesne Profits.'] A. granted a zur-i-peshgi lease of certain lands to the defendants for a fixed term of years, which was to continue after the expiry of the term so long as the money advanced remained unpaid. Shortly afterwards A. evicted the defendants, and sold the land to C, and D. in the pro- portion of 12 annas and 4 annas. The defendants sued all the three and obtained a decree for possession and mesne profits. They never got back possession, but recovered the mesne profits from A. On the expiry of the term of the lease, C. and D. each brought a suit to redeem his own share of the estate after pay- ment into Court of the money advanced in amounts proportionate to the share of the land purchased by each. The two suits were heard together. Held, they were entitled to redeem. Held, also, that the defendants were not liable under Regulation XV of 1793 or Regulation I of 1798 to account for the mesne profits which they had recovered. MOHABANEE WuZUROONNESSA V. BebEE SaEEDUN ... ... 613 , RIGHT OF 598 See Tender. REFERENCE TO FULL BENCH— Power of one Judge to refer.} When the senior Judge of a Division Bench of the High Court composed of two Judges passes an order which he intends as a final judgment in a case, the junior Judge cannot of his own authority refer the case to a Full Bench. In the matter op the Petition op Chunder Kant Bhutta- CHAEJEE ... .-■ ... ... ... -App. 43 HIGH COURT ... 457 See Act XI op 1 865, s. 22. REFORMATION OP LAND ON OLD SITE 353 See Accretion. REFUND OF PURCHASE-MONEY 1018 See Hindu Law. STAMP DUTY 511 See Stamp Ddtt. xlviii GENERAL INDEX, Page REGISTRATION 403 See Priohitt. REGULATION— 1793— III, s. 14 7 See Limitation. IX, s. 73 436 See Review in Cbiminal Cases. -XV „ 613 See Redemption. . XIX, s. 10 ... 1; 75, 774; 109, 162, App. 8 See Laehibaj. See Rent-free Grant. See Resumption. XLIV, s. 8 75 See Rent-free Grant. 1797 — XIV, s. 4 — Appeal to Privy Council — Secu- rity.'] The plaintiffs, in execution of a decree, which had been affirmed by the High Court on appeal, obtained possession of the land decreed, and realized their costs. The defendant afterwards filed an appeal to the Privy Council against the decree of the High Court. After admission of the appeal he applied that the plaintiffs might be called upon to furnish security. Held, that under s. 4, Regulation XIV of 1797, the application could not be entertained. JoYNARAiN Pattur V. RossiCK MoHnN Banerjeb ... ... 744 XVI, s. 4 541 ; 605 See Execution op Decree. See Execution, Restitution OF Property taken in. 1798—1 613; 598 See Redemption. See Tender. — 1799-VII App. 10 See Limitation. -I806-XVII 415 See Statute, Promulgation op. , s. 7 ... ... ... ... 598 See Tender. xvm 630 See Pebet. i 1810— XIV, ss. 3 & 4 ... ... ... 43g See Review in Criminal Cases. -1812— V, s. 26— Beg-. V of nit— Management of joint Estate by Collector — Power of Judge with respect to Surplus Proceeds.} A Judge has power to order the person appointed under Reg. V of 1812, s. 26, and Reg. V of 1827, to manage an estate, to make over the surplus, after payment of revenue and other outgoings, to the person or persons entitled to receive the same. In the matter op the Petition op the Collector op RUNGPOBE ... m, ». ... ... ,,, 653 GENERAL INDEX. xlix REGULATION-1816-XIX ^^Tc See Feeky. 630 1819-11, s. 30 See Lakhieaj. See Resumption, -VI See Feeet. 1 ; 109, 162, App. 8 ... 630 See Limitation, VIII, s. 18, cl, 4 App. 10 - -1822— VI See CouET op Waeds. ■ Notices-Declaratory 199 1825-XI, s. 4, cl. 1 353 See AccEETiON. ■ 1827-V 655 See Regulation V op 1812, s. 26. REMAND . 511 See Stamp Duty. REMOVAL OF BUILDINGS BY TENANT 593 See Buildings. RENT, ABATEMENT OF 70 See Abatement. AT ENHANCED RATES, SUIT FOR 592 See Act X of 1859, ss. 30 & 32. Decree — LaTiMraj.l PJaintifi sued for arrears of rent at enhanced rates, without notice. Held, that the plaintiff was not entitled to recover rent at the enhanced rate, but the question as to the liability of the tenure having been fuUy tried, he was entitled to a decree declaratory of his right to enhancement. That the Court had no power in this suit to try the validity of the lakhiraj tenure set up by defendant as to some of the land ; plaintiff should have proved that it was his mdl land, and that defendant had paid rent for it. He had failed to do so, and the Court refused, therefore, to declare his right to enhance the rent of such land. GUMANI KazI i;. HaeIHAE MOOKEEJEE ... ... ... 15 RENT AT "FAIR EQUITABLE RATES" ... 202 See Kabuliat, Suit foe. ENHANCEMENT OF. >See Ehhahcemeht. G GENERAL INDEX. RENT-FREE ORAST— Reg. XIX of 1793, s. 10— Resumption— Act X of 1859, s, 28 — Lakhiraj — Rent — Revenue — Purchaser at Private Sale — Judgment — Memoranda of Opinions.'] Held per Peacock, C.J., and L. S. Jackson and Macpherson, JJ. (Batlet, Noeman, and Sbton-Kare, J J., dissenting), — The words "exempt from revenue" in s. 10, Regulation XIX of 1793, refer only to grants free from the payment of revenue to Govern- ment, and do not include grants or leases by a zemindar exempt from the payment of rent. Thetefore, a rent-free grant made by a zemindar, and a fortiori one by a maurasi ijaradar, of a specific portion of land after a permanent settlement of the estate to which it belongs, is valid as against the grantor and his heirs, or against a purchaser of the estate by private sale, and is not liable to be resumed under that section. Held per Batlet, Norman, and Seton-Earb, JJ., contra. Held per totam curiam. Written opinions sent to the Registrar by Judges who had retired or died before the judgment in the case was pronounced in open Court, are not judgments but merely memoranda of the opinions and arguments of the Judges.. Mahomed Akh v. Asadunnissa Bebee ; MuTTriALi, Sen GwTAL ». Deshkab Rot, ... ... ... ... 774 Reg. XLIV of 1793, s. 8 — Rent — Revenue."] A zemindar in 1830 granted rent-free 22 bigas of land out of his zemindari to A, who was to make a tank, the use of which was to be devoted to the public. In February 1 862 a successor to the grantor in the zemin- dari sought to resume the land, on the ground that the original " rent-free" grant was null and void, it having been made without the sanction of Government. Held, per Noeman, Pundit, and Levingb, JJ. (Tbevoe and Loch, JJ., dissenting), such a grant was valid. It was not within the meaning of Regulation XIX of 1793, s. 10. " Rent to the Zemindar " and " Revenue of Government" distin- guished. PiZIEItDDIN V, MadHDSUDAN PaIi ChOWDHEY ... .., 75 RENT, MEANING OP 75,774; 109 See Rent-free Grant. See Resumption. , MODE OF ADJUSTING RATE OF 202 See Kabuliat, Suit por. .PAYMENT OF 588 See Rent Suit. PRESUMPTION OP FIXED 538 See Enhancsubmi. ©EN-&KAL INDJ^iX. li Page KENT SALE, SUIT TO SET ASIDE— Fraudulent Decree— Jurisdic- tion of Civil Court and of Revenue Court— Act X of 1859, s. 151.] An action lies in the Civil Court to set aside a purchase fraudulently made at a sale in execution of a decree of a Eevenue Court which had been obtained by fraud. NiLMANI BUKMK V. PuDDO LoCHAN ChTJCKBEBUTTY ... 379 ■ '■ Jurisdiction of Civil Court.^ The Civil Court has jurisdiction to entertain a suit instituted by A, to set aside a sale of his tenure under s. 105 of Act X of 1859, on the ground that the sale was held under a decree obtained fraudulently against B, who was not the real owner. Kamscndar PoRAMANiCK ». Pbasanna Kumar BosE ... 382 RENT SUIT 32, 101 ; 18 See Limitation. See Summary Suit. Jurisdiction of Revenue Court — Estoppel — Landlord and Tenant — Question referred notarising in case.'] In execution of a decree of the Revenue Court in a suit brought by K. for arrears of rent of a certain patni, the patni was put up for sale and purchased in the name of G. The rent having again fallen into arrear, K. took proceedings against G., under Regulation VIII of 1819, for the sale of the patni; but the arrears having been paid, the patni was not sold. In a suit for arrears of rent of the same patni, subsequently brought by K. against G., P. and B. (the wife of P.) jointly, on the allegation that the patni had been purchased by G. benami for P. and B. Held, first, that the Collector had no jurisdiction to try questions relating to rent depending upon equitable rights and liabilities arising from circumstances other than those of the relationship of landlord and tenant. Held, secondly, that the suit was not barred by the former pro- ceedings instituted by K. against G. under Regulation "VIII of 1819. Kemp and Macpherson, JJ,, were of opinion that the first question referred did not arise in the case, and therefore should not have been answered. Peosonno Coomar Paul Chowdhry b. Koylash Chunder Paul Chowdhry ... ... ... ... ... 759 -Limitation— Act X of 1859, s. 32.] The period of limitation within which a suit might be brought for rent due at the time of the passing of Act X of 1859, must be reckoned from 29th April 1859 (the date of the passing of the Act), and not from let August 1859 (the date on which the Act came into operation.) Baboo Lachmipat Sing u, Mahomed MooNEEH ... ... 32 Hi GENERAL INDEX. Page RENT SUIT— Limitation— Act XIV of 1859, s. 1, cl. 8, s. 14 Sr s. 18.] The provisions of the Limitation Act, XIV of 1859, do not apply to suits for arrears of rent under Act X of 1859, nor are the pro- visions of Act X of 1859 in any way afiected by the provisions of Act XIV of 1859. John Poulson v. Madhusudan Pal Chowdhbt ... ... 101 — — — Payment of Rent— Landlord and Tenant— Title- Estoppel— Hindu Widow, Alienation by— Devisee— Certificate under will.'] In a suit for rent by a patnidar who claimed under a lease granted to him by a Hindu widow whose husband had died leaving a will, which gave the widow no power to alienate the property, Held, the suit was properly dismissed, and that there was no necessity for the Judge to enter into any question of posses- sion bj the widow. A devisee under a will need not take out a certificate, and can sue for rent due since the testator's death without having obtained possession. One who pays rent to another, believing him to be the landlord's representative, is not estopped fi-om afterwards showing the want of title in that other : so here the defendant was not estopped from showing that under the deceased husband's will the plaintiff had no title. Banee Madhub Ghose v. Thakooe Doss Mundul ... 588 -.SUMMARY 18 See SnMMART Sdit. RENT, SUIT TO ESTABLISH TITLE TO 364 See Act X or 1859, ss. 77 & 150 to 159. RESTITUTION OF AMOUNT REALIZED IN EXECUTION 714 See 24 & 25 Vict., c. 104, s. 15. PROPERTY TAKEN IN EXECUTION 60o See Execdtion. RESUMPTION 630; 1; 75, 774 See Fbeet, See Laehiraj. See Rent-pree Grant. ■ Lakhiraj — Limitation — Regulation XIX of 1793, s. 10 — Regulation II of 1819, s. 30 — Plaint, Amendment o/.] A suit for resumption under s. 30, Regulation II of 1819, must be assumed to refer only to lakhiraj created prior to the 1st of December 1790, and therefore is not exempt from limitation under s. 10, Regulation XIX of 1793. Heeba MoNBE Dabee w. KooNj Behaet Holdak ... App. 8 GENERAL INDEX. Hii WESUMTTIOTS—Lahhiraj— Limitation— Regulation XIX of 1793, s. IQ— Regulation II of 1819, s. ZQ—Act X of 1859, s. 28— Onus - Frohandi.'] In a suit brought in the Civil Court, before Act XIV of 1859 came into operation, to enforce a right under s. 10, Regulation XIX of 1793,— that is, to resume lands alleged to be held by the defendant under an invalid lakhiraj grant,— fle/rf, that the suit was not barred by s. 28, Act X of 1859. The onus is on the plaintiff to prove that the case falls within s. 10, Eegulation XIX of 1793, i. e., that the grant was made subsequent to December 1st, 1790. Pakbati Chaban Mookerjee v. Rajkrishna Mookeejee ... 162 -Act XIV of 1859 — Rent — Revenue — Jurisdiction of Civil and of Revenue Courts.2 The plaintiflF, the purchaser of a patni lease, sought to obtain a declaration of his mM right, by setting aside an alleged rent- free tenure, in certain lands which the defendant claimed to hold under a lakhiraj title prior to 1765, or 1st December 1790. The plaint was filed in the Collector's Court on 31st December 1861, but was referred to the Civil Court under the Bengal Act VII of 1862, and the plaintiff obtained a decree in the lower Courts. Held, by a majority of the Court (Trevor, Seton-Karr, and Glover, JJ., dissenting), that the Civil Court had jurisdiction to try the suit, notwithstanding s. 28 of Act X of 1859. Per Trevor, Seton-Karr, Pundit, and Glover, JJ., s. 30, Eegulation II of 1819, did not apply to cases within s. 10, Regulation XIX of 1793.— Norman, Phear, and Jackson, J J., contra. "Rent" and "Revenue" distinguished. SoNATAN Ghose B. MouLvi Abdul Farar ... ... 109 _. , — Under-tenure, Preservation of — Landlord and Tenant.'] The mere resumption of a lakhiraj tenure by Government does not dissolve the contract between the zemindar and tenant. The tenant has the option to determine bis tenancy, or he may consent that the amount of revenue. which the landlord must pay to Government, or a portion of it, shall be added to his original jumma. MUSSAMAT FaeZHARA BaNU V. MuSSAMAT BiBI ... ... 175 REVENUE COURT, JURISDICTION OF ... 21; 5; 379; 109 See Act X op 1859, s. 25. See Act X of 1859, ss. 28 & 160. See Rent Sale, Suit to set aside. See Resumption. . , MEANING OF 75, 774; 109 See Rent-free Grant. See Resumption. liv GENERAL INDEX. Page REVENUE, PAYMENT OF 675 See CONTEIBUTON. REVENUE SALE, PURCHASER AT 623 See Enhancement op Rent. REVERSAL OF FINDING 459 See Evidence. REVERSIONER 48; 1008 See Hindu Law. See Adverse Possession. REVIEW 349 See Appeal, Time fob pkeferring. Appeal— Act VlII of 1859, ss. 375 Sj- 376.] A Judge is bound to proceed with an application for a review of his judgment, even though a petition of appeal has been filed subsequently to the application for a review. Bharai Chandra Mazumdar v. Ramqunga Sen ... ... 362 , ADMISSION OF, AFTER PRESCRIBED PERIOD— Limitation — ^^ Just and Reasonable Cause" — Act VJII of 1859, ss. 363, 377 Sf 378 — Appeal— Full Bench Ruling.] The decision of a subordinate Court as to what constitutes "just and reasonable cause" for admitting a review after the prescribed period is appealable. The words in s. 378, Act VIII of 1859, "its order in either case, whether for rejecting the application or granting the review shall be final," are applicable only to the order for rejecting the application or granting the review, and not to the decision as to whether there was just and reasonable cause for allowing the application to be made after the period of ninety days prescribed by s. 377 had elasped. A new exposition of the law by a Full Bench after the passinwof the original decree is not "just and reasonable cause" for admit- ting a review after the prescribed period. When a review has been granted, the Court is bound to decide the case according to any new exposition of the law by a Full Bench made since the original decision. Shamachurn Chuckerbuttt v. Bindabun Chundeb Rot ... 892 , FINALITY OF ORDER REJECTING-4c< VIII of 1859, ss. 876, 377, 378 Sf 380.] An order rejecting a review is not conclusive, and the Court may, in the exercise of its discretion, admit a review even after a prior order rejecting it. Nasiruddin Kuan m. Indronaravan Chowdhry ... 673 GENERAL INDEX. Iv REVIEW IN CRIMINAL GASES— Powers of High Court-Crimi. nal Procedure Code (Act XXV of 186U, ««• 404, 405 ^ 439— Reg. IX of 1793, s. 73~Reg. XIV of 1810, ss. 3 §• 4:— Act XVII of 1862.] The High Court cannot review its judgment passed in a criminal case before it on appeal. The Qdeen v. Godai Raodt ... ... ... ... 436 , PENDENCY OP APPLICATION FOR ... 349, 728 See Appeal, Time fob peefebeing. REVISION 488; 750 See New Teiai. See Ceiminal Pboceduee Code (Act XXV of 1861), ss. 402—407. Powers of High Court — Mitigation of Sentence — Criminal Procedure Code (Act XXV of 186U, ««• 405 Sr 428.] The High Court can, under ss. 405 & 428 of the Criminal Procedure Code, mitigate a sentence passed by a Magistrate and confirmed or altered on appeal by the Sessions Judge, on the ground that the sentence was excessive. In the matteb op the Petition op Bissumbhue Shaha ... 484 __— _ , , r - Enhancement of Sentence — Mur- der — Culpable Homicide— Abefynent — Code of Criminal Procedure (Act XXV of 186U, ss. 403, 404, 405, 407 Sf 419.] Under s. 404 of the Criminal Procedure Code the High Court may set aside a judgment of acquittal for error in law. The High Court, as a Court of Revision, has power to enhance a punishment. The High Court may send the case back to the Court of Session with an order to pass the proper sentence. The Hi"h Court may act as a Court of Revision after it has acted as a Court of Appeal in order to correct an error which cannot be set right by appeal. Culpable homicide and murder distinguished. The Queen v. Gobachand Gope ... ... ... 443 RIGHT OP ACTION 48 See Hindu Law. . Act VIII of 1859, s. i70— Rival Decree- holders.'] A regular suit will lie at the instance of one decree- holder against another for a refund of money that has been erroneously paid away to the latter contrary to the provisions of s. 270 of Act VIII of 1859. Gogaeam v. Kabtick Chundee Singh ... ... ... 1022 RIVAL DECREE HOLDERS 13, 927; 1022 See Act XXIII op 1861, s. 11. See Right op Action. RULES OP 1838 585 See Appeal to Pbivt GouHCiii. Ivi GENERAL INDEX. SALE BY DEPUTY (JOLLECTOR 517 See Act XXIII op 1861, s. 35. WHOLESALE 909 See Act XIV or 1859, s. 1, cls. 9 & 10. , CONDITIONAL 166 See Mahomedan Law. , DEED OP 403 See PBioniTY. FOK AKEEARS OP RENT, SUIT TO SET ASIDE 379, 382 See Reht Sale. REVENUE, PURCHASER AT ,.. 623 Sec Enhancement of Rent, IN EXECUTION. See Execution Sale. OP LAND, SUIT FOE ... 879 See Limitation. — UNDER-TENUEE 519; 646 See Act X op 1859, ss. 106 & 151. See Undee-Tenttee. PINALITY OP 517 See Act XXHI of 1861, s. 35. SUIT TO SET ASIDE 623 See Act X op 1859, ss. 106, 107 & 151. SATISPACTION OP DECREE ' 18; 938 See Summary Suit pok Rent. See Deceee, SECURITY 541; 605; 744 See Execution op Decree.