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VOLUME V.
'~--- -...,

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

HIGH COURT OF (, BOMBAY.

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

EDITED BY

CHARLES F. FARRAN, B.A.,


(OF THE MIDDLE TEMPLE)

BARRISTER A'£ LAW.

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

ltombnJi:
PRINTED AT THE

EDUCATION SOCIETY'S PRESS, BYCULLA.

1869.

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

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

~rigimd Qtibil iuris~idion.

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

1ppdlatc Qtibil Jurishidion.


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

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

KHARSHEDJI RASTAMJI THA'NA'VA'LA'.

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

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

KHARSHEDJI RASTAMJI THA'NA'VA'LA'.

1971.81.

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'l'ABL :~:
OF

CASES REPORTED
IN THIS VOLUME.

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

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VI INDEX

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

• A.C.J. 9_ . ~l:~an! 81

Ka.nu KhancJu v. Krishl}a Bhulaji


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

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

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


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

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viii INDEX.

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

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A TABLE
OF THE

NUMBERS AND DESCRIPTION OF CASES


REPORTED
IN THIS VOLUME.

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

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X APPENDIX,

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

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


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

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APPENDIX. XI

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

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

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

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XlV ERRATA, COTCRIOENDA, ET ~DDEND,\.

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

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CASES
DECIDED tN THE

ORIGINAL CIVIL JURISDICTION


OI,' THE

HIGH COURT OF BOMBAY·


~

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

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

Y.-1 0 C

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2 noMDAY lITGH CO'C'.RT REPORTS.

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


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

Marnott for t,h e plaintiff.

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ORIGINAL CIVIL JURISDICTION, 8

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


._
NA RA YAN 1 1

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


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

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


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

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

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

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


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

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

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ORIGINAL CIVIL JURISDICTION, 5

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


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

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


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

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

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

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


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

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


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

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ORIGINAL CIVIL JURISDICTION, 7

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

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

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

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


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

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ORIGINAL CIVIL JURISDICTION, 9

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


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

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10 BOMBAY mon COURT REPORTS.

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

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


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

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

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12 BOJIBAY BIGB COURT UPOBTS.

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


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

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ORIGINAL CIVIL JURISDICTION, 18

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

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14 BOKBAY UIOH COt:RT REl'ORTS,

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


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

It seems clear from these authorities that the fact, that


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

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ORIGINAL CIVIL JURTSDICTION, 15

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


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

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16 BOMBAY HIGH C'OCRT REPORTS.

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

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


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

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


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

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

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ORIGINAL CIVIL JURISDICTION. 17

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


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

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18 BOIIB.lY RIOS COURT BZPOBTS,

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


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

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


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

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


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

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


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

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ORIGINAL CIVIL JURISDICTION. 19

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


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

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


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

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


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

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


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

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20 BOVBA Y RJOB COURT REPORT8.

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

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

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


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

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22 BOMBAY Bras COURT REPORTS.

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


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

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

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


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

Attorney for the plaintiffs: 0. Tyabji.
Attorneys for the defendants: Hearn, Cleveland, and Peile.

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

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

THE SECRETARY OF STATE IN COUNCIL OF


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

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


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

Digitized by Google
24 BO.IIB.AY 8108 COURT REP08T8.

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


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

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


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

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

D1g1lized by Google
ORIGINAL CIVIL JURISDICTION. 25

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


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

Digitized by Google
26 BOXB! Y BJOB COURT Rr.POBfl.

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


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

D1g1tized by Google
ORIGINAL CIVIL 1URISDlCTlON, 27

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

D1g1tized by Google
28 BOMBAY HIGH COURT BBPORTl!I.

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


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

(c) 2 Price 368.

Digitized by Goog Ie
ORIGINAL CIVIt JURISDICTION, 29

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


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

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


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

Digitized by Google

30 BO.llliY WGH COURT Jl&PORTl!I,

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


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

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


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

The reservation of prerogative privileges to the Commis-


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

D1g1tized by Google
ORIGINAL CIVIL JURISDIOTION, 31

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


811:ct. or
strong one, and does not relieve us from the duty of inquir- SuT11: ro11.
· ing into the state of the law previous to such enactments. INnu.
v.
Legislation of that kind is often merely declaratory, and Bouu

. . caute1a,
resor ted t o pro maJori an d I!,or t h e purpose of c1ear1y SHIPPING
LANDING &
Co.
notifying to t.he public what the law is. We should, more-
over, observe that the provision in the 1st section as to
costs has an opposite tendency to that of the 3rd and
4th sections, as indicating that, were the Legislature to
have remained silent, the Admiralty would neither pay nor

receive costs, and would be in the same position as the
Crown was before the passing of Stat. 18 & 19 Viet., c. 90.
So far as the general rule still stands, independently of that
statute, it is that the Crown neither pays nor receives costs:
4 Stephen Comm., 4th Ed., p. 72.

What has been said with respect to those statutes is in


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

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

D1g1tized by Google
32 BOMBAY HIGH COURT REPORTS.

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

D1g1tized by Google
ORIGINAL CIVIL JURISDICTION, 33

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


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

quested him to send his officers to take immediate possession INDIA


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

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


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

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


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

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34 BOMBAY HIGH COURT REPORT$,

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


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

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

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ORIGINAL CIVIL JURISDICTION, 35

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

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


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

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


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

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36 BOMBAY HIGH COURT REPORTS.

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


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

It also charged the property of the Company with debts,


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

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

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


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

D1g1tized by Google
38 BOMBAY HIGH COURT R:IJ:PORTS,

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


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

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


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

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


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

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J
ORIGINAL C1VIL JURISDICTION, 39

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


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

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


any fine to a prosecutor for his expenses.

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


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

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40 BOMBAY HIGH COURT BEPORTS.

make laws and regulations respecting such duties or taxes,


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

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


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

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ORIGINAL CIVIL JURISDICTION. 41

any offence committed against the revenue laws of England, 1868


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

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42 BOKBAY HIGH COURT REPORTS.

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


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

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

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


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

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

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ORlGINAL CIVIL JURISDICTION. 43

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


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

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


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

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


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

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l!OYBA Y HIGH COURT REPORTS,

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


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

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.-. ,

ORIGINAL CIVIL JURISDICTION. 45

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

We are acquainted with the decision of the Supreme Court


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

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

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46 BOMBAY HIGH COURT REPORTS.

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


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

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


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

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


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

The statutes and charters, which have been referred to,


show that the right of the Crown to proceed in the · Re-
corders' and Supreme Courts in India as in the Exchequer, •
or as nearly thereto as may be, has been recognised.., and
that in many cases the same privilege has been granted to
the Company.

We next proceed to consider whether in England, if a
judgment be recovered in the name and at the suit of a sub-
ject, but the Crown be entitled to the actual benefit of it, the

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

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ORIGINAL CIVIL JURISDICTION. 47

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


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

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


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

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

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48 BOMBAY HIGH COURT REPORTS,

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

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

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

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

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

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BOMBAY RIGB COUKT REPO.RT§.

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

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


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

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. ORIGINAL OtVIL JURISDICTION, 51

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


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

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


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

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


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

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


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

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52 llOMBAY HIOU COURT REPORTS.

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


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

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


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

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


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

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ORIGINAL CIVIL JURISDICTION,

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


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

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


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

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BO)(BAY HIGH COURT REPORTS.

vested in the Crown all the territorial and other reve-


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

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


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

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

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

M.A.NCHARJI HIRJI READYMONEY was brought up in


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

' .,,..,
j_ ..,

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56 BOMBAY HIGH COURT REPORTS,

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

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

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


v.-B oc

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58 BOllBJ.Y HIGH COURT REPORTS.

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


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

reason of his not having been arrested or detained during


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

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

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60 BOMBAY HIGH COURT REPORTS,

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


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

Pri.soner discharged.

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

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

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


C, XXI,, "· 47 and 50.

A Commissioner sitting in Insolvency, while sentencing an insolvent to


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

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


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

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62 BOMBAY HIGH COURT REPORTS.

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

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

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

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

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


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

piGOT moved for leave to file a petition of appeal against


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

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BOMBAY HIGH COURT REPORTS.

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

Admfralty Side.

April 28. The Proceeds of" The Asia."

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

Jurisdiction-Admiralty - Necessaries-Foreign Ship-Discretion-


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

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

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


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

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

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


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

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

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

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60 BOMBAY HIGH COURT REPOltTS,

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

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

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68 l!OMDAY HIGH COURT RJJPORTS,

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

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~
{; ·.·-:g.:·-
·_

ORIGINAL CIVIL 1URISDIC'fION. 69


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

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


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

"Suits for necessaries" against vessels have been, I


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

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70 BOMBAY HIGH COURT REPORTS.

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


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

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ORIGINAL CIVIL JURlSDIC'.l'ION, 71

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

possession for repairs.


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

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

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

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


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

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ORIGINAL CI\'IL JURISDICTION. 73

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


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

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


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

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74 BOKBAY · HIGH COURT REPORTS.

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


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

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ORIGINAL CIVIL JURISDICTION.


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

Decree for the plaintiffs.

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

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76 JIOMBAY HIGH COURT REPORTS.

1868. Suit No. 1146 of 1867.


April 28.

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


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

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

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


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

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ORIGINAL CIVIL JURISDICTION. 77

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


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

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

On the 12th of August 1867 Narandas Hargovandas died.


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

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78 BOMBAY HIGH COURT REPORTS.

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


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

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

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


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

(c) 2 Simon 466.

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80 BOMBAY HIGH COURT REPORTS.

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

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OlUGINAL CIVIi, JUIUSDIOTION, 81


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

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


. . ~~

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


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

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82 BODAY HIGH COURT REPORTS,

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


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

in their written statement, and _any moneys subsequently


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

D1g1tized by Google
ORIGINAL CIVIL JURISDICTION, 88
of the Civil Procedure Code, with permission to bring such 1~8.
.n.·
OWJ.er sw't as h e may b e a d v1se
• d ; he 1ort
J.' hwit
• h paying
• to -VITHALDAS'
NAROTAMDA's

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


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

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

Appeal No, 188.


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

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BODAY HIGH COUBT DPOBTS.

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


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

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


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

D1g1tized by Google
ORIGINAL ctvlL JURISDICTION.

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

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


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

D1g1tized by Google
86 BOXBAY HIGH COURT BEPOBTS,

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


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

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

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

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


(c) 3 B, & S. 938. (d) 15 Law Times 65~ .

(e) 4 Bom. H. C. Rfp., A.C.J . 114.

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88 BOXBAY BIGR COURT R!POBTS.

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

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

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


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

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


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

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


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

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

D1g1tized by Google
90 flOMBAY HIGH COURT REPORTS.

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

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

Our. adv. vult.

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

Digitized by Goog Ie
ORIGINAL CIVIL JURISDICTION, 91

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

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


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

D1g1tized by Google
92 BOMBAY HIGH COURT REPORTS,

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


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

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

I now proceed to consider whether the Bank of Hindustan


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

Digitized tiy Google


ORIGINAL ClVIL JURl6DICTION, 93 ·

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

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


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

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


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

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94 BODAY HIGH COURT REPORTS ,

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


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

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

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


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

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ORIGINAL CIVIL JURISDICTION, 95

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


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

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


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

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96 BOMBAY HIGH COURT REPORTS ,

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

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


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

D1g1tized by Google
·r.

ORIGINAL CIVIL JURISDICTION, 97

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

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


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

Attorneys for the plaintiffs: ·.Macfarlane and Green.


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

Appeal Suit No. 141. Sept. 3.

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


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

D1g1tized by Google
98 BOMBAY HIGH COURT REPORTS,

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

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


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

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ORIGINAL CIVIL JURISDICTION, 99

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


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

D1g1tized by Google
100 BOMBAY HIGH COURT REPORTS,

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


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

j
I

D1g1tized by Google l
i
ORIGINAL CIVIL lURISDICTION, 101

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


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

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102 BOMBAY HIGH COURT REPORTS,

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


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

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

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

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


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

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


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

. •..,:::....<. .
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104 BOlfBAY HIGH COURT REPORTS,

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


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

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ORiaINAL CIVIL JURH!DIC'TION. 10;,

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

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106 BOMBAY HIGH COURT REPORTS,

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


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

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

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.1-. -

ORIGINAL' CIVIL JURISDICTION. 101


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

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

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

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ORiG1NAL CIVIL JURISDIC'I'IO.&. 109

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

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


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

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

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


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

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110 BOMBAY HIGH COURT REPORTS.

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


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

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

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


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

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112 BOMBAY HIGH COURT REPOR'IS,

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

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

.Appectl S11it No. 122. 1868.


Sept. 3,

TnE PENINSULA AND ORIENTAL STEAM NAVI•


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

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

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


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

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


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

The plaint stated that,the plaintiff shipped at Hongkong;


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

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114 BOMBAY HIGH COURT REPOR'fS,

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


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

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

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


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

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116 BOMBAY HIGH COURT REPORTS.

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


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

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

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118 DOMBAY HIGH COURT REPORTS,

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

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


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

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


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

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ORIGrnAL CIVIL JUR18DICTION, 119

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

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

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

The defendants seek to avail themselves of the clause which


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

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BOllBAY RIGH COURT REPORTS, 121

from the insufficiency. On the law of the case the 01ii"8 1868.
was on the defendants. Though, however, that is so, if the P. & N.g~_s.
evidence leaves it in doubt what the cause of the iniury
.,
was, SoxA'lI

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

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


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

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122 ORIGINAL CIVIL JURISDI~TION,

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

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BOMBAY HIGH COURT REPORTS. 123

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


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

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124 ORIGINAL CIVIL •JURISDICTION.

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


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

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~•. ,:ti:" -·

BOKBAY HIGH COURT REPORTS. 125


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

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


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

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


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

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126 OJUGINAL CIVIL JURISDICTION.

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

* Ubi aupra.

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

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


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

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128 BOMBAY HIGH COURT REPORTS,

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

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

LAKSHMIBA1I, widow of Krishnanath


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

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

LAKBHMIBA'I, widow of Krish:r;ianath


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

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

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130 BOMBAY HIGH COURT REPORTS,

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

(b) 2 Bom. H. C. Rep. 11. (c) 9 Moo. Ind. App. 609.
(d) 3 Born. H. C. Rep., A.C.J. 6; vide infrd, p. 136 in notis.
<e) G Moo. In<l. App. 309 ; and see p. 345. (j) l Mad H. C. Rep. 326.

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ORIGINAL CIVIL JURISDICTION, 131

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


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

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


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

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

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

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ORIGINAL CIVIL JU.IUSDIOTION. 133

family exigencies.] Yes; and here the children being minors, -=--_1_86_s_.~ 1
LAKSHHIJW. 1'
it is probable that the testator desired there should exist 11.
G.!.NP.\T
amongst them the jus a.cc,1·escentli, Moao&.'
et al.
We have not, however, acquiesced in the provisions of the GANPAT
M:oROBA
Will. A. large portion of the moveable property has been et al.
divided, but what has been done in respect to tho immove- L.\KSH~IBA'I.
able.property does not even show an intention to divide.
Except as to the Equity suit, the family has always dealt
with the property as undivided; and, as that amounts at
most to a mere proposal to divide, the widow cannot enforce
partition: Tinimi Recld,y v. Achamma (q) ; but we contend
that even an agreement to divide is not tantamount to a
partition, or to a deed constructively dividing the property:
Praunkisson Mitie1' v. Srcemiitty Ramsoond1·y Dossco (r).
[SARGENT, J., refen·ed to Lctlla Mohabee1· Pcrsltad v. Mussamut
Kttnd_un Koowar (s).]

What estate does the widow take? Here we support tho
finding of the Court. The case cited_ on tho other side, Bai
Jamna's case, is founded on a misapprehension of a passage
in Strange, 2 Strange H. L. 204. It is difficult to give a
definition that conveys an adequate conception of the estate
a widow takes ; but, whatever it is, she is incapable of alien-
ating it, except for certain causes, and yet she succeeds qua
heir to the whole estate, and until her death it cannot be
- determined who the heirs of her husband are: Mitak., Ch. 2,
Sec. 1, para. 39; 2 Mor, Dig., p. 329, Sec. 183. Even if a
widow could be said to take as heir of her daughter, there
can be no enlargement of her estate. That is a doctrine
· unknown to the Hind(1 law. A. widow inheriting from her·
son takes just the same estate as if she inherited from
her husband: P. Rachiraju v. Venka.tappad1i (t) ; Vinayek
Anundmo v. Lwuumeebaee (u) ; The Collector ofMasal·ipatani
v. Oavaly VenccitaNarainapah (v); KantooLall v. G-reedharee

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


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

Google
D1g1tized by

-
134 BOMBAY HIGH COURT REPORTS,

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


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

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ORIGINAL °CIVIL JURISDICTION, 185

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

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


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

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

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136 BOMBAY HIGH COURT REPORTS,

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


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

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ORIGINAL CIVIL .TUBlflDIOTIOlf, 187

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


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

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188 DOHBAY HIGH COURT REPORTS,

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


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

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


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

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


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

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ORIGINAL CIVIL JURISDICTION. 139

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

The decree passed by the Division Court, after declaring


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

D1g1tized by Google
BOHBAY HIGH COURT l\BPOBTS,

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

July 11. Ileferred Oase.


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

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


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

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·:.1'P'

omanu.L CIVIL JUBISDICTION. 141

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


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

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142 BOMBAY HIGH COURT REPORTS,

1868. the Court of Small Causes jurisdiction in the case, under the
fu'sAlll
KA'sAM circumstances stated above.
et al.
11. '' For the defendant it was contended, under the plea to
GoXA'
JA'DAVJI the jurisdiction, that the action was in the nature of an
ot al.
action of trover or detinue, and that the plaintiff was bound
to sue the defendant for the full value of the ornaments
detained by him, without deducting therefrom the sum ad-
mitted by the plaintiff to be due by him to the defendant.
'11hat, as the value of the ornaments was over Rs. 1,000, and
the amount so deducted or given credit for was not a pay-
ment on account, or an admitted set-off, the plaintiff could
not bring the case within the jurisdiction of this court, except
by abandoning the excess.
"For the plaintiff it was contended that the cause of
action was the damage sustained by the plaintiff, by reason
of the wrongful detention of the pledge after tender of the
amount due, which damage, being the excess of the value of
the ornaments detained over the amount due, was less than
Rs. 1,000, and that, therefore, the court had jurisdiction .

" I inclined to the latter view of the case, and gave a,
verdict for the plaintiff for Rs. 608-11-0 with costs, and I
certified plaintiff's costs at Rs. 51.
"The defendant having applied to the Court of Small
Causes for a new trial~ that Court, on the 14th day of Janu-.
ary 1868, amended the summons as set forth in copy of
amended summons (A), and, subject to the opinion of the
High Court on the question whether, under the circum-
stances stated above, the Court of Small Causes had juris-
diction to hear and determine this case, the Court of Small
Causes refused to grant a new trial, and confirmed my decree
of the 12th of December 1867. And I refer the case to ·the
High Court to make such order, under Sec. 8 of Act XXVI.
of 1864, as the said High Court may think proper."
The amended summons was for damages sustained by the
plaintiffs, by reason of the defendants' detention 1:1.nd con,ver-
sion to their own use of the plaintiffs' ornaments, pledged
with them by the plaintiffs, being the value of the said orna-

D1g1tized by Google
~ · ··

ORIOIN4L CIVIL JURISDICTION, 143

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

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144 BOllBAY HIGH COURT REPORTS,

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


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

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OlUGJNAL CIVIL 1UBIBDICTION, 145

Referred Oase, 1868.


July 17,

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


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

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


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

CASE stated for the opinion of the High Court, under


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

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

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


SHIVSlliNKAR
GovINDRA'.M

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

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

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


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

Referred Ca~e.

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


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

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

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

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

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148 BOMBAY IDGH , COURT RBPORTS.

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


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

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


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

The following is a translation of the agreeme11t 0,bove


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

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'7

OBIOINA.L CIVIL JUBIBDICTION, 149

of that one banu is at the rate of Rs. 4-6-0, namely, four 1868.

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

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150 BOMBAY HIGH COURT REPORTS.

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

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

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

Under these circumstances, the suit was rightly brought


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

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152 BOICBAY HIGH COURT REPORTS.

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


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

--<*>--

Original Suit No, 461 of 1867.


Aug.SO.

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


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

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ORIGINAL CIVIL JURISDICTION. 153

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


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

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154 130:HBA.Y HIGH COURT :REPORTS.

declaration by the Court that the immoveable property com-


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

This is not a case coming within the Indian Insolvent


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

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

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


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

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156 BOMBAY HIGH COURT REPORTS,

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

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

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

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158 BOMBAY HIGH COURT REPORTS,

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

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

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160 BOMBAY HIGH COURT REPORT8,

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

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1 . . . ,. ,,
. . ' '. J
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• ' t' .

Jj f"·
I ' '. :, l! L,' lA'
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1 (

ORIGINAL CIVIL JUfll8DICTJON, 161

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


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

declaration of right, without anything more, only in those


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

/
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162 BOMBAY HIGH COlJRT ttl!PORTS,

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

Dcci·eo for llefenclant with costs.

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

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


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

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ORIGINAL CJYIL JURISDIC''l'ION. 1133

Appeal No. 146.

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


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

JN 1863 Bhagvandiis Pnrshotamdiis filed a suit (No. 642


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


D1g1tized by Google
164 DOMBAY HIGH COURT REPORTS,

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


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

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

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

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


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

Trustee of the estate


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

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

the date of the summons.

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


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

I am of opinion that the learned Judge was right in


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

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

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


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

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

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

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


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

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

Appeal Nu. 150.

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


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

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


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

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


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

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

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


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

Digitized by Google
ORIGINAL CIVIL JURISDICTION. 169

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

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

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

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


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

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


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

D1g1tized by Google
ORIGINAL CIVIL JURISDICTION, 1il

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

D1g1tized by Google
172 BOMBAY HIGH COURT REPORTS.

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

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

Attorney for the appellant : J. S. Htwrell.


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

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


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

T HE facts of this case sufficiently appear in the judgment


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

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

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


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

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


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

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


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

Digitized by Goog Ie
174 DOMBAY HIGH COURT REPORTS.

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


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

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

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


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

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17G BOMBAY HIGH COURT REPORTS.

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


LoPEs- allow to the plaintiff, as a matter of favour, and not as a

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

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

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178 BOMBAY HIGH COURT-REPORTS.

1808. Regarding- the law of descent which generally prevailed


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

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


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

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ORIGINAL CIVIL JURISDICTION, 179

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


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

according to the rule of primogeniture : and so it wouh1


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

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


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

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

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180 BOMilAY HIGH COURT REi'OHTS,

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

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


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

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

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


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

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


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

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182 BOMBAY HIGH COURT REPORTS,

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


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

Dr. Fryer (whose Indian experience extended from 1673


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

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

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ORIGINAL CIVIL JURISDICTION, 183

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


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

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


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

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184 BOMBAY HIGH COURT REPORTS,

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

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.
ORIGINAL CIVIL JURISDICTION • . 185

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


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

in a paper on the condition of the Native population within


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

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


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

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186 BOMBAY HIGH COURT REPORTS.

he usually calls the Portuguese. It is particularly important


to observe that,. not only in the early days when Fryer

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

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ORIGINAL CIVIL JURISDICTION, 187

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


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

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

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

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188 BOMBAY HIGH COURT REPORTS.

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

Sir A. Anstruther altogether failed to appreciate the force


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

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


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

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ORIGINAL CIVIL JURISDICTION. 189

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

LOPES.

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

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190 BOMBAY HIGH COURT REPORTS,

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

Previously to the legislation of 1865 the law applicable to


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

As an example of the strictness with which the Supreme


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

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


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

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

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ORIGINAL CIVIL JURISDICTION, 191

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


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

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

to the descendants of the Portuguese or ludo-Portuguese


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

(z) ·Fryer's Travels 73, 75,

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192 BOMBAY HIGH COURT REPORTS.

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

(a) Ibid., p. 68.

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ORIGINAL CIVIL JURISDICTION, 193

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


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

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


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

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194 BOMBAY HIGH COURT REPORTS.

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

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

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


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

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196 BOM"BAY HIGH COURT REPORTS.

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


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

As to the enactment which Sir A. Anstruther presumed in


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

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

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198 BOMBAY HIGH COURT REPORTS.

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


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

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ORIGINAL CIVIL JURISDICTION. 199

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

course adopted and views held by him were the same as


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

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


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

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20(,) BOMBAY HIGH COURT REPORTS.

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


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

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ORIGINAL CIVIL JURISDICTION. 201

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


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

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


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

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CASES
DECIDED IN THE

APPELLATE CIVIL JURISDICTION


OF THE

HIGH COURT OF BOMBAY·

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


Dec. 18.
DEsA'1 KAL¥A 1 NRA 1 YA HuKAMA'l'RA'YA ...... ... Appellant.
THE GoVEilNMEN'l' OP BoMnAY •• •••••• , ••••• , Respondent •

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

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


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

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

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

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APPELLATE CIVIL 1URISDICTION. 3

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


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

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

" After remarking that as traces only of the ancient forms


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

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4 DOMBAY HIGH COURT REPOR'l'S.

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


KAL~:,~~~'u peror for life only, and revocable at his pleasure, and it was
Huiwu:r- estimated by the number of horse which they were supposed
1
RA YA
1,•. to command. This command was denominated ' munsub,'
Gov·r. oF
Bo.u»AY. and a Jaghirwas an appendage to it. The mode of granting
munsubs and Jaghirs was first reduced to a regular system
in the reign of Akbar, during which 66 Munsubd{trs were
raised to this dignity by the Emperor himself, or by him
at the recommendation of the Nazims of Bengal, Kabul, and
the Deccan. · When the power of the Emperor declined, the

Nazims of the distant Soubahs, who were originally allowed
only to recommend munsubs, usurped the privilege of
granting Jaghirs, both conditional and unconditional. This
act was so avowedly derogatory to the authority of the
Emperor, that an evasion (in the manner of preparing the
sanad for the Jaghir) was practised to conceal it. From the
preceding explanation; a Jaghir may be defined to be an
assignment in land or money for the support of a certain
dignity, and for the troops annexed thereto. It was either
conditional or unconditional. The former implied that it
was granted for the expenses of a particular ,office or station,
the latter that it was independent of any office or station,
being appropriated for the maintenance of a dignity, a
suitable number of attendants and the troops annexed to
H. In the latter case it was granted for life,.or until the
Emperor should please to resume the dignity or diminish it.
In the former case it existed whilst the possessor continued
in office only, and upon his removal or dismission devolved,
either in whole or· in plirt, upon his successor,' and in laying
down the circumstances to be considered in deciding on the
resumption of certain J{tghirs, Mr. Shore remarks 'that
many persons have succeeded to them by virtue of in-
heritance, in direct violation of the constitution of the Em-
pire,-such has been the lenity or want of information of the
British Government.'

" I would here further note the following historical facts,


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

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APPELLATE CIVIL JURISDIC'l'ION, 5

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

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6 BOMBAY HIGH COURT REPORTS.

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


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

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

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

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


omission on the part of Mr. Warden, which must .have been

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

"A jahagir made hereditary by original grant is shown


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

Digitized by Google
8 BOMBAY HIGH COURT REPORTS,

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


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

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


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

D1g1tized by Google
APPELL.\'l'E Cl \ll L .JU Rl8111CTION.

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


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

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


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

" I will now consider briefly the documentary eviueuce


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

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lQ BOMBAY HlGH coux·.r Rli:POR-1'8.

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


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

D1g1tized by Google 0
APPELLATE CIVIL JURISDICTION. 11

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

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


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

Digitized by Google
)2 .BOMBAY HIGH COURT REPORTS;

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


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

D1g1tized by Google
APPELL•TE C'TVTL JURiSDTCTfON. 13

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


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

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


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

D1g1tized by Google
14 BOKBAY HIGH COURT RIPORTS,

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


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

D1g1tized by Goog1({·
APPELLATE CIVIL lUBISDICTJO~. 15

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


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

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

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


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

D1g1tized by Google
BOMBAY HIGH COU J<'l' IU.:POU'l'S.

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


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

We next come to the dealings of the British Government


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

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


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

Digitized by Google
APPELLATE CIVIL JURISDICTION, 17
cuITent Mi'1tf! sal, but without arrears for the time the same 1867.
have been suspended." K-A-L~:~;:,L~
Ht"KU!.\T-
From this document it is clear that the pcW.·hi allowance
t •,
was continued to Danlatrfti on the same grounds as the innm Gon. m·
BolmAY,
estate in the village of Kalmn or Kalab, to which the plaintiff
has succeeded as heir to his father, and his right to which is
not disputed by Government. The exact grounds on which
this concession was mrulo are not apparent, as the defendant
has omitted to proc1uce the report of the Revenue Commis.
sion, in whoso reasons for the perpetuation of the payment
the Government of the day declared their acquiescence.
The withholdal of this document, which is not alleged to have
been lost or destroyed, and the production of which was
applied for by the plaintiff, has not been satisfactorily ex-
plained; and the omission to produce it is a very significant
fact, from which it may justly be inferred that the real

ground for the continuance both of the village and of the
annujty was· that tho plaintiff's grandfather was helil
to have established an hereditary right . to each of these
items of property. 'l'his view is further confirmed by the
action of the revenue authorities on the death of Daulatrai
in A, D. 1828. At that time no investigation appears to
have been made, and the payment of the allowance was
continued .to the plaintiff's father, Hukamatr6i, without
inteJTuption up to the date of Hukamatrui's death on the
8th of J anuary 1863. No doubt as to Hukamatriii's right
would seem to have been raised till 1856, when an inquiry
was instituted by the In{rn~ Commission, and on the report
of the officers of that commission, two of whom have been
examined in this suit, the Government decided, under date
the 8th of November 1861, that the allowance should cease
on the death of Hukamatriii. At that date, however, the de-
ceased Hukamatrai bad, under Reg. V. of 1827, Sec. 1, ac-
quired a prescriptiv~ right to the allowance, as he had en-
joyed it as a proprietor for upwards of thirty years. There
is no pretence for saying that it was ·continued to him after
his father's decease as a matter of favour. It was paid to l1im
as a matter of course, in consequence of his supposed right ·
y,-3 AC

Digitized by Google
18 BOMBAY HIGH COURT REPORTS.

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

D1g1tized by Google
APPELLA'l'E CIVIL JURISDIC'l'ION, 19
the allowance was coufe1Ted on the original grantee and his _,,,_1_86_7,...._
'
hell's d DE8A'I
; an K.\LYA'NRA'YA.
HUKU.\T•
21ully-Because the uninterrupted enjoyment of the plain- R.\'YA
t•,
tiff's grandfather and father, under the order made by the GoVT. OF
Government of Bombay on the 7th of February 1808, which Boxsu.
extended from that date to the commencement of 1856, gave
to the plaintiff a statutory and indefeasible title.
On these grounds I would reverse the decree of ths
District Judge, and declare the plaintiff entitled to the allow.
ance mentioned in the pl11.int from the date therein set .
forth, and also to the a1Tears claimed in the said plaint, with
interest, and I would further direct that the defendant pay
all cost,s of the suit both in this court and in the court
below.
The learned counsel for the defendant has urged very
strongly that it is in the public interest that the Government
should resist claims which, if admitted, would create a per-
manent and perpetual charge on the revenues of India, and
in this view I concur to the extent that such claims should
not be allowed without strict and careful scrutiny.
But, in the present instance, it would be carrying the
doctrine too far to hold that a regard for the general good
justified the disturbance, in A,D, 1861, of a settlement,
apparently equitable, which had been made in A.D. 1808
after deliberate investigation, and had since then been acted
upon uninterruptedly for forty-eight years.
GrnBs, J. i-The facts of the case having been ftilly set out
by my learned colleague, Mr. Justice Tucker, it is not
necessary for me to note them otherwise than in my finding
on the merits of the case.
There are two points which arise; and on which I think it
right for us to record judgtnent: (1) whether the plaintiff has
established his claim; and (2) whether there is not a pre•
scriptive title made out, which, under Reg. V. of 1827, Sec.
1, will give the plaintiff his elaim against the Government
irrespective of the facts. I will commence with the former,
as, should this case go in appeal to the Privy Council, a

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

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

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


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

Digitized by Google
22 BOMBAY JiIGH COURT REPORTS,

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


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

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

D1g1tized by Google
APPELLATE CIVIL JURISDICTION. 28
re-grant by Government, but, on the other hand, by a con- 1867.
tinuation of the grant as of right to Hukamatl'ai on his KAt~~~~A'YA
father's death,· and I am, therefore, unable to arrive at any HuKAMA·r.
IU'YA
other conclusion than that Hukamatrai, and in consequence 1J,
Gon. OP
the present plaintiff, has acquired a prescriptive title under Boirnu.
Reg. V. of 1827, Sec. I : and even if this were not the case,
I think, as I have above shown, that the plaintiff would be
entitled to a decree in his favour on the merits.
Under these circumstances I would reverse the District
Judge's decree, and award in favour of the plaintiff a::
claimed, with all costs ou the respondent, the Government.
Decree 1·eversed,

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


April 21.

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

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


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

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


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

D1g1tized by Google
24 BOMBAY HIGH COURT REPORTS,

~-1_8_6_8.__ and, being of opinion that they had not done so, or shown
OOtLF.(,'TOlt
m· KHEDA' that it was ever recognised as such by the British Govern-
1
••
H ARISHAl\"KAlt ment, threw out their claim.
TIKAll et <!I. . o A ct'mg J u d ge cons1'dere d th
Th . at there was no d ou b t
that the allowance had been enjoyed. by the descendants of
the original grantee down to a recent date, when the Govern-
ment, on the death of the plaintiff's father, ordered that his
share should .no longer ho paid. He was of opinion that the
question to be determined was, whether the Government had
now any right to stop the allowance, or, in other words,
whether the plaintiffs had not acquired a prescriptive right
to it by an enjoyment extending over more than thirty years,
and found that although the grant might have originally
been personal, as contended for by the Collector, yet that, the
plaintiff.-, having prornd a prescriptive title, the Government
had forfeited their right of resumption. He, therefore, made
a decree in favour of the plaintiffs.
The appeal was heard before W ARDF.N and Grnns, JJ.
])himjlal Matlnwada.~, for the appellant :-The allowance

was a personal charitable grant. 'l'here is no law, custom,
or usage having the force of law, which compels a person to
continue his charity against his will. The luw of prescription,
therefore, does not apply to the case.
[Grnns, J. :-You attempt, by the Takid of 1770, which
you produce from your own records, to show that the grant
was personal; but the 'l'akid ·shows nothing of the kind.
Supposing, however, that it was personal, can the Collector,
having given the allowance to the plaintiffs' ancestors for a
series of years far more than thirty, now refuse to continue to
give it? This cnse seems similar to that of De.~ai'. Ifolyan-
niya v. 'l.'he Government of Bombay (lt), and if so, the ruling
there may apply.]
In that case the grant of the palkhi allowance to the Desai
was made in consideration of good serYices. In this the
grant was purely charitable, and had no con,;i<lerntion what-
ever to support it.
(a) Ante, p. l.

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

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


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

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


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

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


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

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


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

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26 DOMtlAY HIGH COURT REPORT~.

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


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

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


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

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

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


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

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

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


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

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

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


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

D1g1tized by Google
28 BOMBAY nron COURT REPORTS.

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


_:1:..:.868.:.:.:..·

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


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

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


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

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

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


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

Grnas, J. :-I concm·.


Decrees of both tltc luu'c1• courts ctnimlled.

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

1868. Special Appeal No. 219 of 1866.


Jan. 10.

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


:\
1V
Vl~'HU

Ir ' ..o NA'


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

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


350-Errors wltich do not ajj'ect merits.

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

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

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


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

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

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32 BOMBAY HIGH COURT REPORTS,

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

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


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

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APPELL~TE CIVIL JURISDICTION, 33

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


no sale till 1838. There is nothing to show that the posses- BA'~~~,~=LE
sion of Pandurang

or of his father was exclusive or adverse N A ,RAv;YAN
to the plaintiff prior to the mortgage in 1834, or that there Da'BHULK.A.R,
was any possession on the part ofBapu Kamble which can be
treated as adverse to the plaintiff till 1838. The mainte-
nance of the suit is, consequently, not barred by adverse
possession for more than thirty years on the part of tho
s.pecial appellants, or of those under whom they derive, as
laas been alleged in special appeal.
I hold, therefore, that the grounds of special appeal have
failed; and the decree of the Senior Assistant Judge must
be affirmed : costs on special appellants.
WARDEN, J., concurred.
Dec1·ec affernuxl.

Refen·ed Geise.

CHUNILA' L MA' NIKLA ' LRHAI I... .. .. •• .. . • . .. • .. . . Pl ain


. t ~u.
'+I-'

MArriPATRA'v v~lad KHANDU ............... ••• Defenda.nt.

Jurisdictio•-Cause of Action-Place of Delivery.

The defendant at Parola. agreed to sell and deliver to the plaintiff cer-
tain goods, for which the plaintiff then paid in advance. ~J~e _terms of
the agreement, the goods were to be measured at Mazrod~-]j,~IS!l,
at Pad§h_a. In default of delivery it was stipulated that the value of the
-g6ods should be paid for at the market rate at Parola.
The ·goods were not delivered in pursuance of the agreement.
Held, in an action brought to re~over their value at the market rate at
I
Pa.rola, that the cause of action arose at ~-~.l't:D.i:m_m~_g_oods ou~li~ !o
have been deliv!!red.

CASESec.referred for the decision of the High Court, under


28 of .A.et XXIII. of 1861, by the Honorable G. A.
Hobart, District Judge of Khandesh.
"The plaintiff sued to recover the sum of Rs. 440, as value
of certain goods, which was alleged to be due on an agree-
ment between him and the defendant, the agreement being
that the goods should be delivered at a certain time at
v.-5 AC

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34 BOMBAY HIGH COURT REPORTS.

__1s_os_.__ Mazrod (a), or' the value of the goods at the market ,q-alue
CIIUNILA'L
MA'NJKLA'L· of the same obtaining at Parola.'
BIIA'I
v. "The Munsif threw out the claim, on the ground that the
M~~=~!~~'v defendant was living beyond his local jurisdiction, and the
cause of action arose beyond it.
" The plaintiff appealed, urging that the cause of action
arose within the Munsif's jurisdiction, as the ·agreement for
• the performance of the contract was made at Parola, and
the payment of the price of the goods was, by the same
agreement, to be at the market rate of the same obtaining at
Parola; and that the cause of action-non-payment of price
-arose, therefore, at Parola, which was within.the Mtinsif's
local jurisdiction, and, therefore, the suit was cognisable. I
was of opinion that 'Mazrod' appeared, from the words of
the agreement, to be the place where the goods were to be·
delivered, and where in default of their delivery the price
was to be paid, and that clearly the place agreed· upon for
the performance of a contract is the place where the cause
of action on breach of such contract must be held to arise, so
as to bring the case within the Munsif's local jurisdiction.
The defendant wae,. on.the face of the plaint, non-resident
within the M~nsif's local jurisdiction; therefore, I affirmed
the Munsif's decision.
"The plaintiff's (appellant's) vakil has requested me to
make my decree contingent on the opinion of the High
Court on a case submitted on the ground urged in appeal
for holding the Munsif's jurisdiction complete.
" I do not see any reason fo:r thinking that the facts of the
agreement being made at Paro16, and of the market value of
the goods at Parola being the price agreed on to be paid,
make it appear that the cause of action arose at Parola ; but
I think, on the tel'I)ls used in the agreement as above noted,
Borne doubt, from the ambiguity of expressfon, arises, whether
payment was not expected to be made at Parola, Parola
being the village where the plaintiff resided, and it being rea-
(a) The District Judge was here in error. The exact words of the agree-
ment were that the goods were to be measured at Mazrod and delivered
nt Paclsha, or, 011 failure, their value was to be paid at the market rate at
Pal'ola. He t;tated the agreement as one for delivery at Mazrod.

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APP:BLLATE CIVIL JURISDICTION, 35

sona.ble to expect that a debtor should find out his creditor, --=-18_68_·__,..-
. CHVNILA'L
unless any particular place were agreed on for payment to MA'NIKLA'i:..
be made ilhere." BIIA'1
i:.

PE& Cu&Wl (CoucH, C.J., and NEWTON, J.) :-The Judge Mtr_i;:::~:'v
is to be informed that the cause of action arose at Padsha,
and the Judge's attention is to be called to the erroneous
statement regarding the contract in his statement of the case.

)
He recites the agreement as for a delivery at Yazrod, where-
as from the agreement itself, which has been sent up to the
Court, the Court finds that the contra.et is for measurement
at Mazrod and delivery at Padsha.
Note.-As to the meaning of the wonls "Cause of action," and where it
may be said to arise, see DeSouta v. Coks, 3 Mad. H. C. Rep. 384
(decided 21st Jan. 1868).-Eo.

Referred Case. Jan. 28.

RA'MKRISHNA MAHA'DEV •••••• ..••.••.••.••.• Pla-intfff.


BAYA'JI' biii SANTA'Ji' et al . ......... ...... Defendants.
Limitation-Instalments-Bond-Waiver-A.et XIV. of 1859, Sec. 1.
Suit upon a bond executed by the defendants to the plaintilf for the
payment of a sum of money by instalments. The bond contained a pro-
viso that on llefault being made in the payment of any one instalment the
whole amount shoul<l become due .
.Default was made in the payment of several instalments, but subse-
quently payments were made by the defendants and accepted by the
plaintiff 011 account of the unpaid instalments.
The defendants pleaded the law of limitation. The suit was brought
more than three years after the first default in payment of an instalment
had been made, but within three years from the time when, taking into
account the payments that had been made, the first instalment claimed
became due.
Held that these payments as regards both parties must be considered as
if made at the time fixed; that . the defendants could not rely upon the
stipulation as making the whole debt due, and fixing the period from which
the time of limitation ran ; and that, the .first of the instalments claimed
having become due within three years, the suit was not barred.

CASE referred for the decision of the High Court, under


Sec. 22 of .A.et XI. of 1865, by Janardan Vasudevji,
Judge of the Small Cause Court at PuQa.
" The plaintiff sues the defendants for the payment of
Rs. 99-6-6 on n bond for Rs. 95, dat£d the 3rd of Angust

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36 BOMBAY HIGH COURT REPORTS,

1868. 1864, payable by daily instalments of four annas each, with


H.A'!IIKRISHNA
MAHA'DEv

a proviso, t hat on de£ault b emg
• mad e m
• the payment of one
BA~A'n' instalment the whole debt should be paid at once.·
SANTA'JI'
et a/.. "The following are the particulars of this claim:-
" Principal Rs. 95, Interest Rs. 48-12=Rs. 143-12-0;
Paid Rs. 44-6-6, Balance Rs. 99-6-6.
"All the defendants enter appearances, and put in differ-
ent pleas. One of them, the defendant No. I, pleads the
law of limitation. He contends that the payments given
credit for by the plaintiff were not made as each instalment
became due; that his. (the plaintiff's) right of action accrued
from the first default, which took place on the 6th of August
1864; and that, reckoning the period of limitation from that
date, the claim is beyond three years, and is, therefore,
barred.
"The plaintiff admits that the payments were not made
regularly as each instalment became due, but that each of
these payments was made after several had remained un-
paid, and without reference to the amount of those instal-
ments. He nevertheless contends that those p!l.yments were
accepted by him to meet the convenience of the defendants,
and are sufficient to cover instalments which wiH pring the
claim within the law of limitation. In support of his argu-
ment the plaintiff cites 5 Cale. W. Rep., Civ. R. 45."
PER CuRJAM (Coucn, C.J., and NEWTON, J.) :-The Court
is of opinion that although the instalments were not paid ty
the defendants at the times fixed for payment, yet the
defondants having paid the money on account of them, and
the plaintiff having accepted it, the payments must be
considered, as regards both parties, as if made at the times
fixed ; and the plaintiff cannot take advantage of the stipu-
lation that the whole sum should become due on failure to
pay any instalment, or the defendants rely upon it as
making the whole debt due, and fixing the period from
which the time oflimitation ran. The first of the instalments
claimed having become due within three years, the suit is
not barred.

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APPELLATE CIVIL JURISDICTION. 37

Ileferred Gase. 1868.


Jan. 29.
JA'FAR ALI' N1zA'M ALI' v. AHMED ALI'
IMA'M iIA'IDARBAKSH.

Muhammadan Law-Agreement-Consideration-Relationship-Parol
· Etmltnce.
By Muhammadan law an agreement to pay an annuity, though signed
and registered, has not the effect of a deed in English law, but requires a
consideration to support it.
The relationship existing between cousins is not a sufficient consideration
to support such an agreement.
Parol evidence is inadmissible to show that in an agreement to pay an
annuity there was a consideration for the granting of the annuity different
from that expressed in the agreement.

QUESTIONS and case referred for the decision of the


High Court, under Sec. 22 of Act XI. of 1865, by
Gopalrav Harl Deshmukh, ,Tudge of the Court of Small
Causes at Ahmedabad : -
" I. Whether or not the agreement, a copy of which is
annexed for perusal, has the same legal efficacy as a deed in
English law, i.e., there is no necessity for receiving proof of
consideration.
" II. Whether or not the relationship mentioned is a
su:fficient consideration.
" III. If not, whether parol evidence can be admitted to
. .

show that there was some other consideration not expressed


in this agreement.
" 2. The plaintiff has brought an action against the de-
fendant on an agreement in which the defendant promises
to pay the plaintiff Rs. 12 per annum for his maintenance,
because he is a cousin of the defendant. It .is stated that
this annuity was to be paid hereditarily from a larger amount
of Rs. 200, which the defendant draws from the Nawab of
Baroda, and should this source fail, from other means. The
defendant, who is the Mutavalli of the celebrated Roza of
Shah A1lam, enjoys a yearly income of Rs. 10,000 from
lands and cash allowances.

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38 BOllBAY HIGH COURT REPORTS,

1868. " 3. The defendant admits the execution of the agree-


J.a.'.rA&ALI'
v. . ment, but pleads want of consideration. He states that the
AHMED Au'. plaintiff has no right to any portion of the amount of

Rs. 200 which he draws, and the distant relationship .is not
a sufficient consideration.
" 4. The plaintiff replies that the consideration of re-
lationship is good and sufficient, and even if it were not so,
he can produce other evidence to show that the agreement
was founded upon consideration other than that expressed
in the said agreement.
"The agreement is written upon stamped paper, and bears
the defendant's signature, and, among other attestations,
the Kazi's seal, and is registered, though not in the presence
of the defendant, because the law which prevailed at the
time did not require it. * * *
"The plaintiff cites in support of his case: "Manual of
the Law of Evidence for India," Ch. V., para. 19; Norton on
Evidence, p. 47, Sec. 94; Annagnmbala Ohetti v. Krish'l}a-
svcimi Nayakkan (a), Dada Honaji v. Bcibaji Jagushet (b).
" The defendant has applied to me to refer the above
questions to the High Court, and, notwithstanding the au-
thorities quoted by the plaintiff, which are not all in point, I
do not think that these questions can be considered as settled,
though my opinion on them is that the agreement of the
nature produced in this case has the efficacy of a sealed
deed, and that the relationship spoken of in it is sufficie:g.t
consideration, and that the parol evidence which the plaintiff
offers cannot be taken."
The material portion of the agreement alluded to above
was as follows : -
" You and I. are cousins, the descendants of Shah .A.1ani.
I am in receipt of an annual allowance from the Nawab of
Baroda. Out of this I ,vill go on paying you Rs. 12 every
year. I and my descen_d ants' will continue to pay as long
as there shall exist a descendant of yours. And even if I do
not get the allowance from the Nawab of Baroda, I will still
(a) 1 Ma<l. H. C. Rep. 457, (b) 2 Born. II. C. Rep. 38.

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.APPELLATE CIVIL JURISDICTION, 89
go on paying the said sum of Rs. 12 every year. · In con- __1_8_68_._
s1'derat•10n of your bemg
• my cousin, I have given this dom1- JA'FAR ALI'
v.
ment to you for your maintenance." AHuD AL1',

Dhirajlal Matlwtradas for the plaintift'.


Marriott (with him A'tmaram Jagannuth) for tho de-
fendant.
The following authorities were citod in the course of the
argument:-
Taylor on Ev., Sec. 1035; Gale v, Williamson, 8 M. &
W. 405; Peacoclc v. Monk, 1 Ves. Sen. 128; Norton on Ev.,
Sec. 647.
PER CuRIAM (CoucH C.J., and NEWTON, J.) :-The Court
decides, upon the first question, that the agreement has not
the same efficacy as a deed according to English law.
On the second, that the relationship mentioned in the
agreement is not a sufficient consideration.
And on the third, that evidence cannot be admitted that
there was a different consideration from that expressed in ..,
tho agreement. :}
I ,'. r'J r11:
/ :j Jan. 30.
Special Appeal No. 699 of 1867. l

DA'ou valad .ANS.AR SA'HEB ............ ...... Appellant.


BA'1aouoA' bin SHANKA.RA'PPA' •••••••••••• ••• Responden,t .

• Month-British Calendar Month-Act VIII. of 1859, Sec. 230.


The word " month" in Sec. 230 of the Code of Civil Procedure means
a month according to the English calendar. An applicant under that
liiCction has a clee.r calendar month, exclusive of the day of dispossession,
within which to prefer his application.
THIS was a. special appeal from the decision of W. Sand..
with, Acting Judge of the District of Kalagghi, in Ap.,.
peal No. 85 of 1867, reversing the decree of the Munsif of
Bijapur.
The plaintiff, Balgouda, under Sec. 230 of the Code of Civil
Procoduro, applied to recover possession of a jnif,i field, . No.
112, measuring 25 acres 34 chains, alleging that it was

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40 BOMBAY HIGH COURT REPORTS.

1s68. entered in the name:ofBapu bin Sangambassappa, and given


DA'nu,/NsAR by the latter to him, the plaintiff, in consideration of love
BAL'ooun,1.' and affection, but that he was dispossessed of it, on the 2nd
SHANKAR•
A'PPA'. of December 1865, by the defendant, Dadu, in execution of a
decree obtained by him against the aforesaid Bapu's son
Bassangouda.
One of the objections taken by the defendant in his writ-
ten statement was, that the application of the plaintiff had
been presented to the court on the 2nd of January 1866,
after the month allowed by Sec. 230 had expired, and that,
consequently, his application should not have been received,
as it was not presented within the prescribed time.
The Munsif allowed the defendant's objection, and gave
a decree in his favour.
In appeal, the Acting District Judge held that the words
in Sec. 230, namely, '!he may apply to the Court within one
month from the date of dispossession," indicated that the day
following the dispossession was to be the commencement of
the month allowed; and, finding in favour of the plaintiff on
the merits of the case, he reversed the MUD.&if's decree, and
awarded the plaintiff's claim.
The special appeal was heard before TucK~R and
WARDEN, JJ.
Fakfrappa Lingappa and Bhairavanath ManfleBh, for the
appellant :-As the word "month" in Sec. 230 of the Code
of Civil Procedure has not been defined in any part of the
Cod~ it should, according to the Common Law of England,
be taken to mean a lunar month; and as in some sections of
the Code-for instance, in Sec. 333-it has ·been expressly
provided that the period allowed for the performance of a
particular act is to be reckoned from, and exclusive of, the
day in which another act had been done which formed the
starting-point of the term of limitation, it would be re-
sonable in construing Sec. 230, where no such provision is
made, to hold that the period of limitation includes the day
on which dispossesion takes place.
Ga?J,esh Hari Pcqvardhart for the respondent.

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APPELLA.TB CIVIL JURISDICTION. 41

'l'ocKER, J. :-Although it has been decided in England -=-.,....1_868....,.--_


DA'DU ilSAR
that where " months" are spoken of in an Act of Parliament 11:
without the word "calendar," and nothing is added from BA'LOOUDA'
SHAN KAR•
which a clear inference can be drawn that the Legislature A. PPA'. 1

intended calendar months, it is understood that they are lunar


months (a), we are not bound to assume that it was the in-
tention of the Indian Legislature, when they used the word
"month" or "months" without prefixing any defining adjec-
tive, to mean lunar months. The rule of construction which
has been followed in England originated in old times, and its
adoption has been regretted by eminent English Judges, and
wo do not feel ourselves constrained to follow it in inter-
preting Indian Acts. The word "month" has not been
defined in the Civil Procedure Code; but in the Regulations
which were superseded by that code it had always been
interpreted to mean a calendar month. There is no indica-
tion that the Indian Legislature, when it passed Act VIII:
of 1859, intended to use the word in any other sense than
that which had been generally applied to it in India, previous
to tho passing of the Act. In the Criminal Procedure Code,
which was passed by the same Legislature, and which came .
into operation three years subsequently, we find it distinctly ·
declared: "Wherever the word" year'' or the word" month"
is used, it is to be understood that the year or month is to.
be reckoned (b) according to the British Calendar." A simi-
lar definition is to be found in the General Clauses Act of 1868
(e). From the practice which prevailed previous to 1860;
when the Civil Procedure Code came into operation, and from
the subsequent Acts of the Legislature, I think it may be
rightly inferred that their intention was to express by the term
" month" a British calendar month, and, so far as I am aware,
all Civil Courts on this side of India have adopted this inter-
pretation since the code became law. The words in Sec.
230, " he may apply to the conrt within one month from the
date of such dispossession," give to the applicant a. clear
month, computed according to the British calendar, exclu-

(a) Lacon v. Hooper, 6 Term Rep. 224.


(b) Act XXV. of 1861, Sec. 20. (c) Act I. of 1868.
V.-6 AC

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42 BOMBAY HIGH COURT REPORTS.

=-,,--18..,..68_._ sive of the day on which ae was dispossessed, in which to


D.a.'nu :,Nsn make his application. I hold, therefore, that the District
B.a.'Looun.a.' Judge took a correct view of the law, and that his decre"
SHANKA.R- 1
.a.'PPA'. • must be confirmed, with costs on the special appellant.
WARDEN, J., concurred.
Decree confirmed.
Note.-Upon a .re(erence made by the Judge of Khandesh, in his letter
No. 893 dated the 23rd. of April 1866, submitting, under Act XXIII. of
1861, a statement of a case involving a question of law, and requesting to
be informed whether the period of limitation prescribed for a suit based
upon a bond should be computed according to the British or Mara!hi calen-
dar, the Court (CoucH, C.J., and NewToN, J.) ruled, on the 27th of
September 1865, that it should be computed according to the former.

·~-
1867. Special Appeal No. 443 of 1866.
March 5.
MANISHANKAR HARGOVAN ........•.....•..•.. • Appellant.
TRIKAM NARSI et al. . .................... ... Respondents.
Jru,aaion of Privacy by opening doors and windows-Actionable Wrong
-Usage of Gujarat-Injunction to restrain invasion of privacy.
Held, that, in accordance with the usage of Gujarat, an invasion of
privacy is an actionable wrong, and that ii. man may not open new doors
or windows in his house, or make any new apertures, or enlarge old ones, in
a way which will enable him to overlook those portions of his neighbour's
premises which are ordinarily secluded from observation, and so intrude
upon his privacy. ·
Doctrine of English Law, which has been followed by the High Court
of Madras, different.

THIS was a special appeal frol!l the decision of J. R.


Naylor, Senior Assistant Judge of Surat, at Broach, in
Appeal Suit No. 146 of 1864, reversing the decree of the
~dr Amin of Broach.
The plaintiffs sued to obtain an injunction directing the
defendant to close up certain doors and windows, which he
bad recently opened out, through which he obtained an out-
look into the plaintiff's premises.
The defendant answered that he could do whatever he
liked with his own house, and that the opening of the doors
and windows was no invasion of the plaintiffs' privacy, since

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APPELLATE CIVIL IURISDJCTJON. 48

smaller gratings had always existed in the same positions in 1867.


w h1c • d ows were now pJac~ d•
. h the d oor an d wm MANIBHA.NliR
HaoouN

The $adr Amtn of Broach held that the defendant was at Ta~ur
liberty to make wha.t improvements he liked upon his own et 11!.
NAB.BI

premises, and that if this caused an invasion of the plain-


tiff's priracy, he might make his own arrangements to pre-
vent it.
The Assistant Judge adopted a different view, as appears
from the following extract from his judgment :- " The vakU
for the respondent ( defendant) has urged that a man has a
right to do as he likes in hie own house, and with his own
property. But a general proposition like that is only ad-
missible with the well-known reservation " Sic utere tuo ut
alienum no~ lreda,s ;" and where, as in this country, privacy
is thought a matter of such consideration, everything that
tends to lessen that privilege is pro tanto an injury, and
must be held actionable. The true test of it is, that the in-
jured party must incur the expense involved in an altera-
tion of his own premises, or of his own domestic arrange-
ments, in order to secure the same privacy that he enjoyed
before. Otherwise he must submit to the annoyance of being
constantly overlooked." He accordingly reversed the decree
of the Munsif.
At the hearing of the special appeal, the High Court sent
down the following issues to be tried by the Acting Senior
Assistant Judge:-
(1) Is the space between the houses of the plaintiff and
the defendants, upon which the new door and windows open,
a public thoroughfare, or a passage to which a large num-
ber of persons have constant access ?
(2) Did the opening of the door and windows cause an
invasion of the privacy of the plaintiff, having regard to the
fact that grated apertures previously existed ?
(3) What are the dimensions of the door and windows
complained of, and what were the dimensions of the former
grated apertures ?
The Court further remarked that, with respect to the second

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BOMBAY HlGII OOtJRT REPORTS,

lSM. issue, the met'e enlargement of a. previously existing a.per~


MANISHANKAR
HAllOOVAN ture wouId not a 1ways a.motlll
" "t t o a.n mva.s1on
· · of pnvaoy,
· as,
11 •
T RIii.AH • if the size and position of ·the previous aperture were such

NARs1 et al. as to give an easy and complete view of the premises which
are alleged to have been in a. state of privacy, it is obvious
that no such-state of privacy existed, and that, consequently,
the extension of the opening would not amount to an inva-
sion of privacy.
The Senior Assistant J~dge, on the first issue found that
the space between the houses of the plaintiffs and the de-
fendant upon which the new door and windows opened, was
not a thoroughfare, i. e., it was only open at one end j but
that it was a narrow lane, 41 feet wide, to which the few per-
sons who had any occasion to go to and from the houses,
eleven in number, in it, had access, and that it was not
a. lane that would usually be frequented by any large num-
ber of persons, although there was nothing to prevent any
one who wished to do so from going along the lane.
The finding on the second issue was, that the opening of
the door and windows &c. did cause an invasion of the
privacy of the plaintiff.
The finding on the third issue was, that the dimensions of
the door &c. complained of were as follows : -
The door-5 ft. 7 in. high, 2 ft. 8 in. broad.
The grated apertures on either side of the door,
each-1 ft. 3 in. X 1 ft. 4 in.
Windows-(!) 5 ft. 5 in. X 2 ft. 8 in.
(2) and (3) each-3 ft. 4 in. X 2 ft.
and the dimensions of the former apertures were about one
foot high by one foot broad.
The appeal was heard before TucKER and GIBBS, JJ.
PER CuRIAK :-A series of decisions (a), extending over a
long number of years, has settled the question, that, in ac-
cordance with the usage of Gujarat, a man may not open
(a) See l Borr. 272; ibid. 422; 7 Harington 212; 9 Harington 274;
S. A. 278 of 1863.

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APPILLATE ClVJL JURISl>ICTlOJl. 45
new doors and windows in his house, or make any new 186'1.
• .
apertures, or enlarge old ones, m a way which shall enable HuoouN
MANISHANKAK

him to over look those portions of his neighbour's premises Ta;~Ax


which are ordinarily secluded from observation, and in this Nnst et al.
manner to intrude upon that neighbour's privacy ; . and that
an invasion of privacy is an infraction of a right, for which
the person injured has a remedy at law. The rulings of the
late ~adr Court and present High Court on this point have
been founded on the long-established usage of the province,
and, though opposed to the doctrine of the English Law,
must be upheld and affirmed. The decision of the Madras
High Court, Komathi v. Gurunada Pillai (Vol. III., Part II.,
p. 141), which has been cited to show that an invasion of
privacy is not a.n actionable injury, is not an authority which
we can follow in a matter of this kind, which is governed by
the usage of the di.strict, which has been frequently declared.
The usage is not altogether singular, as a similar custom is
recognised by the law of France,
The point to be determined in these cases is, whether new
openings have been made, or old apertures · enlarged, in a
manner which will constitute a substantial invasion of priv-
ncy. In the present suit the lower appellate court has
found that the new door and windows, which the defendant
has made, do constitute a substantial invasion of the privacy
hitherto enjoyed by the plaintiff. This is a determination
of a question of fact, with which we cannot interfere ; and
this decision being good; the decree made by the Senior
Assistant Judge, that the door and windows recently made
by the defendant should be closed, was correct, and must be
affirmed, the special appellant paying all the costs of the
special appeal.
Dec-ree affirrned.

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46 BOllBAY HIGH COURT REPORTS.

1868.
· March26. Civil Petition.
NARBBERA'M Krs.ANDA's et al . .....•... ... Petitionen:.
NAVNIDRA'M KA'sHIRA'M ••••••••••••.•• •.• Opponent.
Eittcution of Decrte-Jarisdiction-Senior Asriatant Judg-.4.pptal.
Held that a Senior Assistant Judge is not compet.ent to hear an appeal
from an order made in the execution of a decree in a case in which he is
not competent to hear an appeal from the decree itself.

Tms was an application to set aside an order made by


S. H. Phillpotts, Acting Senior Assistant Judge at
Broach, on the 11th of September 1867, in the matter of the
execution of a decree.
The petitioners and the opponent jointly obtained a decree
in the court of the ~adr Amin of Broach for Rs. 9,425 and
costs against Fattesa.ngji Jasvantsangji.
In execution of this decree a sum of Rs. 10,593-5-3 was
paid by the defendant Fattesangji, and this amount was de-
posited in court. ·
As the other co-plaintiffs would not join the opponent,
Navnidram, in taking the money out of court, the latter ap-
plied to the f;!a.dr Amin for his one-third share of the money,
or to be paid the entire amount on his furnishing security to
repay what might be paid to him in excess of his share.
The ~adr Amin, under date the 9th of July 1867, rejected
this application, on the ground that all the plaintiffs who
applied for the decree should join in taking out the money,
as there was no order in the decree for paying it in separate
shares.
Against this order the opponent, Navnidram, appealed to
the Senior Assistant Judge at Broach. It was objected
before the Senior Assistant Judge that he bad no jurisdic-
tion to entertain the appeal; but he overruled this objection,
on the ground that the opponent, Navnidram, desired in
appeal to get Rs. 3,531-1-9 only, being his one-third share
of the amount of the decree; that although he had sought in
the lower court to get the whole of the amount recovered
under the decree, yet the amount in dispute in appeal was

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APP.ELLA.TE CIYIL JUBISD!CTION, 47

under Rs. 5,000; that, therefore, he must be presumed to -=--1868_.----,._


NARBHBIU. JI 1
have given up the other part of the money, and that, conse- KtsillDA's
quently, under Sec. 7 of Act VIII. of 1859, the court had et:.i.
jurisdiction to hear the appeal. He directed that one-third NAvNmJU.'ll
KA'su1aA'K,
of the money deposited should be pa.id to the opponent,
Navnidram, as his share.
The case was heard before NEWTON, Acting C.J., and
TUCKER, J.
Shantaram Narayati, for the petitioners :-An appeal in
this case does not lie to the Senior Assistant Judge, but to
the Judge of the District. By Cl. 5 of Sec. xxvm. of Reg. II.
of 1827, the Original jurisdiction of a Senior Assistant Judge
is limited to five thousand rupees; and Sec. 4 of Reg. I. of
1830 provides that the jurisdiction of a Senior Assistant
Judge, in cases of appeals from the decision of a Native
Commissioner, shall not exceed five thousand rupees. In
this case the original claim was for more than nine thousand
rupees, and the whole amount was recovered under the
decree. There can be no distinction between appeals in re-
gular suits and in miscellaneous matters.
Nanabhai Haridas, for the opponent, Navnidram :-The
Senior Assistant Judge had jurisdiction to hear this appeal,
since the matter of the appeal, and what was ordered to be
paid to Navnidram, was his one-third share only, and
the decree, as far as he was concerned, was not capable of
being executed to a larger extent.
PER CuRIAM :-We are of opinion that the order passed
by the Senior Assistant Judge, under date the 11 th of Sep-
tember 1867, has been made without jurisdiction. The decree
itself was not appealable to his court, and consequently
his was not the court to which an appeal from any order
passed in execution of that decree should have been made.
The pecuniary value of the particular matter decided by
the order in execution is immaterial. The value of the
• original suit should have determined the court to which the
appeal would lie, which in this case was the court of the
District Judge of St1rat.
Or<ler reversed.

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48 BO)(B.U HIGH COURT REPORTS,

1868. Special Appeal No. 523 of 1867.


:Y:a.roh 30.

BHULA1BHA'J GuLLA1 BHA1I et al . .......... .. Appellants.


MoDJI DEsA'LJI et al. .. ................... Respondents ..
Copy of a Copy-Evidence.
A certified copy of a document deposited in a public office, which docu-
ment is itself a copy, is admissible as secondary evidence where the absence
Qf the original is duly accounted for.

SPECIAL Appeal from the decision of S. H. Phillpotts,


Acting Senior Assistant Judge of Khega, in Appeal
Suit No. 16 of 1867, confirming the decree of the Munsif of
Khega.
This suit was instituted by the heirs of Jethsanji Mansang,
to recover, on payment of such sum as might be found due,
possession of a field, alleged to have been mortgaged, for
Rs. 61, to the defendants' ancestors.
The Munsif awarded the claim, and his decision was con-
firmed by the Senior .Assistant Judge, who recorded the
following finding : -
" As the field in question was mortgaged between fifty
and sixty years ago, it is almost impossible for the mort-
gagor's representatives to produce direct proof of the trans-
action, as it is contrary to the law of nature that any of the
parties or witnesses to the deed should be alive ; hence the
original and almost only proof must be in the hands of the
mortgagees (defendants), who are of course interested in
denying the _fact of the mortgage, and do deny it, though a
notice wa~ served on them to produce the mortgage deed.
Hence, secondary proof must be accepted, which is produced
by the plaintiffs, the representatives of the mortgagor, in
this case. It appears that in Sa:nivat 1879 (A.D. 1813), ten
years after the mortgage had taken place, copies were
made, by order of Government, of all deeds connected with

girasias' holdings, and that the mortgage deed in ·question
was produced and copied : a copy of this, attested as a true
copy by Mr. .Richey, Settlement Commissioner, in whose

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E.u I . , -< 1 ( , J ]/ lt.:ilullijiy
Ba/ r -o t Law,
II APPBLLATB -CIVIL 1UBJSDICTION, Lah0T6a 49

charge the books are, is recorded in this case, and as the __1_868_._
court has no k nowIedge of where Mr. Richey, in whose charge GuLLA'BHA'i
BHULA'BHA'I

the original is, may be, it must be assumed a prinn4 jMie true et al.
copy. This document being admitted, clearly proves that Monn "· DIC,
' BA Lll 1

the land was mortgaged in Samva.t 1879 (A. D. 1813) by one et aZ.
Jethsangji Mansa.ngji to the defendants' ancestors, Sambhu-
das and Kasa.ndas, for Rs. 61."
The case ea.me on for hearing before NEWTON, Acting C.J.,
and GrnBs, J.
Shantaram Nar&ya'!-, for the appellants :-The objection
t.o the lower court's finding is, that it has based its decision
upon a copy of& copy. [GIBBS, J. :-The Privy Coun~il have
decided the point.] ·
In the case referred t.o, irnw.e Ilajaka Ba1uulur v. Pemma-
aamy Naidoo (a), the Privy Council have ruled that where
the practice of the court is to receive such copies, their Lord-
ships would not reject the copy from evidence; but it is
not shown here that the practice of our courts is to receive
such copies in evidence. Moreover, there is nothing to show
that the copy,· from which this copy was made, was sworn
to, and was a. correct copy of the original.
It has been often r11led by this court that it should be
shown, when a copy is received as secondary evidence, that
such copy had been examined. If such strictness is insisted
upon in respect of the first copy, how much more should
it be required in regard to the second. In the case of Mu-
hammed valad .Abdul Mulna v. Ibraham valad Ha.san and
others (b), where it was found that a, copy from the register
was received in evidence, the rule requiring the original to
be accounted for, before the receipt of secondary evidence,
was applied, though the copy had been ta.ken from a regis-
ter kept by a public officer.
Nanabha.i Haridas for the respondent.
. PER CuRiil{ :-The rule in regard to the admission of
~econdary evidence would have applied to_ the copy in this
(a) 7 Moo. Ind. App-. 128. (b) 3_ Bom. H. C. Rep., A.C.J. 160.
V,-7 AC

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50 BOXBAY HIGH; COURT REPORTS.

~:~==~;~
1868.

et ai.
11,
case, had the absence of the original not been accounted for;
but here the Judge states that the original i~ in the possession
of the appellants. _ The objection taken in the .memorandnm
Monn DB· of special appeal is apparently directed to the absolute inad-
u.'L11
et al. missibility of a copy of a. copy ; but this has been somewhat
amplified and varied in the course of the argument. We do
not find, however, that any error in law has been committed
by the lower court, since we are not aware of any law or
practice binding on the courts in the Mofussil which pro-
hibits the reception by them of a copy of a copy in evi-
dence.
The judgment of the Privy Council is a sufficient prece-
dent for our decision, that there is no objection to receive in
evidence a copy coming out of a public office, and duly cer-
tified as a copy of a oopy deposited there.
We affirm the lower court's decree with costs.
Decree affirmed.

March Sl. Special .Appeal !fo. 693 of 1867.


AMRITRA'v bin YEBRVANTRA'v DEBHMUKH ••• Appellant.
A.NYA'BA' bin ABA'JI DEsHMUKH ...... ...... Respondent.
Limitation!._Riglit to ,hare in a Watan-Acknowledgment ia Writing-'-
Act XIV. of 1859, Sec. I., Cl. 13, and Sec. IV.
Anacknowledgment in writing, signed by the defendant, or the person
through whom he claims, of the right of the plaintiff to share in a watan,
is not sufficient to revive the period of limitation contained in Act XIV. of
1859, Sec. I,, Cl. 13, so as to give a new starting-point from the date of
such acknowledgment ; under that clause, there must be a payment on
account of the alleged share by the person in possession of, or having the
management of, the watan: and Sec. IV. is not applicable to such a case.
\

THIS was a special appeal from the decision of A. Bosan-


quet, Acting Judge of the District of Ahmedna.gar, in
Appeal Suit No. 216 of 1867, confirming the decree of the
Munsif of Sangamner.
Anyaba brought this action against Raghoba bin Khan-
<}.oji, Amritrav bin Yeshvantrav, and Vithoba bin Ramba, to
recover a half-aha.re in the proceeds of ten villages, and a.

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APPELLATE CIVIL JUBISDICTIOlf. 51

half-share in certain inam lands, representing that he and 1868.


• ilBITa.t.'v Y.
the defendants were co-equal sharers m the office of Desh- Di:snKUur
mulch of A'kola ; that the defendants, being members of the .bu~~' A.
elder branch of the family, had been performing the duties of Dssn11uJ1.
Deehmukh, and drawing the allowance thereof, after deduct-
ing the expenses of the establishment ; that a field in which
ihe family had an hereditary right of occupancy was allotted
to him, the plaintiff, as his share, and that the rent of it was
paid by the defendants ; that since the Summary ~ettlement,
in 1862, the defendants ha.d been allowed the procee&i of the
village and the inam without performing the duties apper-
taining to the office of Deshmukh ; that they refused to
share the amount with the plaintiff', and had not paid his
share fur the years 1862-63 and 1863-64; and that the suit
was, therefore, brought to establish hie claim, and to recover
hie share of the land and allowances.
The defendants Raghoba and Amritrav denied the right
of the plaintiff' to recover, a.nd alleged that there had been
a separation of their family from the plaintiff's family
sixty years ago, a.nd that Khan~oji, the father of the first
defendant, Raghoba, had acquired the estate after such
separation ; that the plaintiff had never exercised any right
over the estate ; that he had been a sub-sharer, but never
drew any of the allowances of the office since the days of tha
·Peshva; that their (the defendants') names alone had been
on the record ; that their ancestors allowed one field, which
was in the defendants' names, for the maintenance of the
plaintiff', who paid the rent to the defendants, and they paid
it to Government; and that upon his omitting to pay the
rent the plaintiff' relinquished it.
The third defendant, Viinoba, admitted that the plaintiff
was a, co-sharer, and consented to allow him one-half of all the
in.am lands and other emoluments.
The Munsif, Hari Ga.ngadhar, rejected the claim, on the
ground that the plaintiff' had never obtained any portion of
the emoluments, or of &ny of the iicam land of the Deshmukh's
estate, except one field, which he cultivated as a tenant, and
not as a proprietor.

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52 JIOJlBAY HIGH COURT REPORTS;

1868. . ·In Appeal No. 130 of-1866, the Jadge, A. Richardson,'


AxlllTJlA 'v Y.
DEBHIIUI.H fonnd that the plaintiff · ~as the proprietor of half of the ,
11. emoluments and of ha.If the inam lands pertaining to the
ANYA'BA. A.
1

DEBHIIUltB, office and estate of Deshmukh of A'kola, but that the evi-

dence did not show that the plaintiff' had ever held the said
half of the lands, or· drawn half of the emoluments of the
office and estate of Deshmukh;
There was, however, an exhibit (No. 5) in the case, which
consisted of a deposition, given on solemn affirmation before
the Mamlatdar, by Yeshvantrav, the father of the defendant,
Amritrav, and which wa.s a.s follows : -
" The Deshmukhi wat01ti, consisting of ten of the villages
in the Turf Rudanv{uµ, forms one takshim or share, and
there is but one family passing by the surname ofMalonka.r.
The elder branch is that of Savdoji Deshmukh, and the
younger that of Abaji. Savdoji Deshmukh, my grandfather,
held the office for many years under (the) Government.
Subsequently; however, Raghoji, my father, having declined
to take up the office, the kluzta was not ·continued in his
name, but then it ea.me to be in my name after the resigna~
tion of office by Savdoji, and I wa.s appointed, before the
Act came into operation, to the office, without a.ny restriction
as to its tenure. I have thus held the office up to the
present time. I name my son Amritrav for the office, as I
am unable to hold it myself, owing to my having run
into
debt, and trust that he will be appointed accordingly.
Anyaba Deshmukh, the sub-sharer to the extent of eight
annas (in the rupee), has also consented to the arrangement.
NarayaJ}. alone is against it at present. This is given in
writing. Dated 1st August 1857.
Da.stur of Va.man Babaji Karkun. · Signature ofYeshvant-
rav bin Raghoji Deshmukh, in his own handwriting."
The Judge was ·or opinion that this deposition was evi-
dence of admission by · the defendants, and that it, being
dated the 1st of September 1857, would remove the bar
unde:i; the statute of limitation. He, therefore, remanded the
case to enable the parties to prove, by production of the

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A.PPBLLATE CIVIL lUBIBDICTlON. 53
receipts for five past years, what were the average amounts 1868.
of each item of income due or payable to the Deshmukhs. ~~=~I.!·
1/.
The Munsif thereupon decreed for the plaintiff as to the .bu'11.&.' A..
half-share of the Deshmukh's emoluments claimed, amount- DnuKuu.
ing to Rs. 183-2-9, and also as to the future payment by the
defendants of half of the' Deshmukh's emoluments to the
plaintiff; but he decreed for the defendants as to the share
of the inam field claimed : and this decision of the Munsif
was, on appee.l, confirmed by the Acting Judge.
The case came on for hearing this day, before NEWTON,
Acting C.J., and GIBBS, J.
Bhairavan/J.th jfp,ngeslt (with him Dhirajlal Mat1uw6daa),
for the appellant :-The Judge has applied Seo. 4 of the
Limitation Act to this case ; but that section provides only
for the cases of debts and legacies, whereas this suit is to
recover a aha.re in family property. To meet the cases of
mortgage, deposit, &c., a specie.I provision is made by Cl. 15,
Sec. I. of the Act, which requires an acknowledgment in
writing of the title of the mortgagor, &c. In the same way
a specie.I provision is made in Cl. 13 of the same section
for cases like the present one, and nothing less than pay-
ment by the person in actual possession or management, on
account of the alleged share within twelve years preceding
the suit, will satisfy its provisions. Even if the admission
here be held sufficient to satisfy Sec. 1., Cl. 13, it will bind
Yeshvantrav's son Amritrav only. Besides, it was made to
the Mamlatdar, and not to the person who seeks to avail
himself of it. The Ce.lcutte. High Court have held that
admission under Sec. 4 must not be to a third party (a).
Sluint&ram, NarayatJ, for the respondent :~The exhibit
No. 5 is more than an admission. The property in dispute
is service watan, and our right to the enjoyment of a share
in it is acknowledged. There is possession here. This court
has held that residence in the family house is an enjoyment,
under Cl. 13. The present claim is for money received by
the opposite p1uty, and the admission No. 5 will be binding
(a) Hyde's Reports, p. 14.

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BOKBAY HIGH COURT HBl'OBTS.

1868. under Sec. 4, which is a general one for all kinds of debts.
t:1:_~;;· [NEWTON, Acting C.J. :-Sec. 7 of Reg. V. of 1827 is differ-
1

•.. ~· , A.
.AnYA.BA.
ently worded from Sec. 4 of the Limitation Act. The word
D&&BKuu. debt in Seo. 4 cannot be construed as demand in Sec. 7.]
Under the admission in No. 5, the opposite party should be
treated as a trustee. We let him in for the .first time, and he
is our trustee, and represents us. If we had objected, the
Collector would not have sanctioned the appointment. If,
th~refore, he is in possession by virtue of his office, to which
he was !!>ppointed by our consent, his tenure of holding cannot
be adverse to us. We stated in our plaint that the defendants,
being elder, have their names on the revenue records, but
that we hold one field, and the assessment on it, Rs. 43, was
paid by the defendants on our account. This is a payment,
inasmuch as we received the income directly. The Judge
has not . gone into · this matter, and has not considered
whether this was a payment on account of our share.
Bhairavanath Mangesh, in reply, cited Kaja Tevara Das v.
Richardson and others (b).
PBR CuRIAM :-The Judge has founded his decision on the
admission, No. 5, of Yeshva.ntrav, the father of the defendant
Amritrav. This admission is looked upon by the Judge as
sufficient, not only to show the plaintiff Anyaba's title, but
also to take the claim out of the law of limitation. Sup-
posing the District Judge to have considered Sec. 4 of the
Limitation Act to be applicable (as no other is suggested), we
find that that section refers to legacies and debts only ; and
we are unable to bring within its provisions an alleged
acknowledgment of a right to share in a watan, so as to
revive the period of limitation within which a. suit to estab-
lish such right may be brought.
As to whether what is stated in the exhibit No. 5 a.mounts
to an admission of trusteeship, we· are of opinion that we
cannot give any such effect to the words which have been
referred to in it. The person who gave the deposition had
his own purpose to serve, and the Court would not bo
(b) 2 Mad. H. C. Rep. 84.

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APPELLATE CIVIL JURISDICTION. 55

justified in giving to a mere statement of consent on the part 1868.


of Anyaba, made under such circumstances, the force which ~:;::::u~·
would be necessary in order to found on them a cause of v.
A.MY.t.'BA' A.
action not otherwise existing. D.1:1u11u1.u.

The only question to be decided, therefore-as the case


comes under the provisions of Cl. 13, Sec. 1. of Act XIV. of
1859-is, whether the field,which the plaintiff alleges to have
been in his pos