267.
Badni contrct.
But
moneys advanced by an agent for his principal to enter into such a contract
shall be deemed to be recoverable, and also commission charges earned in
respect of services relating to such a contract.
No.
520 of 1874. Compare Billing v. Billing, 33 L.J. (N.S.) C.P. 55; VIII
Ben. L. Reps, 412; XII Bom. H.C. Reps. 51. See also Thacker v. Hardy, L.R. IV
Q.B.D. 685; L.r.I. Ex. D. 13; Pyke’s
Case, L.R. 8, Ch. D. 756; Read v.
Anderson (1884), 13 Q.B.D. 779; No.
90 P.R. 1880; No. 80 P.R. 1895; I.L.R. XXII Bom. 899. But cf. Gaming Act, 1892, as to money paid in respect of “bats” paid at
request of another, and Knight v. Lee (1893) I.Q.B. 41, and Tatam
v. Reeve, ibid, page 44.
Remark. Recovery by agent.
To
entitle the agent to recover from his principal losses paid for him on a
wagering contract entered into under his instructions, the agent must prove
either an actual payment upon the principal’s behalf, or that a liability has
been incurred which is enforceable at law (No. 80 P.R. 1895; No. 46 P.R. 1901;
No. 74 P.R. 1908). The law on this subject has been elaborately considered by
the Full Bench of the Chief Court in the case reported as No. 79 P.R. 1908.
“F. O. R.” Contract – “Ready delivery” –
trade usage.
Contract
for sale of liquid molsses was on terms “f. o. r. Gopalpur,” and “ready
delivery”. There was nothing in the contract to suggest as to who, whether the
buyer or the seller, was responsible for procuring tank wagons at the siding
where the molasses could be pumped into the tank wagons. It was held (1) that
evidence was admissible to prove the usage of the trade in such circumstances;
(2) that there would be no inconsistency in adding to the clause that the sale
is F.O.R., the trade usage, if tit was found to exist, that the mills should
procure the rail wagons into which they were to lead the goods; (3) that to
prove the usage, it was got necessary to establish either the antiquity, the
uniformity or the notoriety of custom, which is respect of all these became a
local law. The usage might be still in course of growth; it might require
evidence for its support in each case; but in the result it was enough if it
appeared to be so well known and acquiesced in that it might be reasonably
presumed to have been an ingredient tacitly imported by the parties into their
contract (A.I.R. 1949 Cal. 490).
SPECIAL PROPERTY OF FEMALES
INTRODUCTION
In
India, s in other countries, there has been a time when a wife has occupied no
higher status than that of a slave of the master of the household, and when she
was deemed incompetent to inherit or to enjoy any right of property. Traces of
this incapacity are not only found in the Vedas, but in Manu, and it was by a
very gradual process hat the natural tendency of free marriage, using this term
in contradistinction to marriage with manus,
produced here, as everywhere else, an extension of the wife’s rights. Thus, the
notion of a woman’s “special property” had to pass through several intermediate
stages before it reached its final conditions of absolute ownership in the
Hindu law. At first a married woman was simply permitted to enjoy a
“possessory” interest in the ornaments which she was accustomed to wear limited
to her husband’s lifetime. At a later period this right was extended to her own
lifetime; and then, as the result of a still further development, we find the
“possessory” interest converted into a right of ownership with respect to the
wife’s customary ornaments and clothing apparel (alankara and vastra),
which constituted her paramphernalia, and to such gifts as were given to her as
a marriage dowry. It was her personal ornaments and wearing apparel, therefore,
which it would seem were the original subjects of a woman’s special property
rather than what Sir Henry Maine has termed the “Bride Price,” which was paid
by the bridegroom either at the wedding or the day after it, and part of which
went to the bride’s father as compensation for the family authority which was
transferred to the husband, and another part to the bride herself. But before
such gifts could have been enjoyed by the wife separately from her husband, her
capacity for property must have previously been well recognized, and, as well
have seen, it was only by a very gradual process hat such a capacity was in the
first instance recognized with respect to the wife’s ornaments and apparel. The
concession once made, however, quickly expanded, and came in course of time to
embrace immovables also. Thus it appears to have been a practice amongst the
ancient Persia kings to ssign certain villages to their queens, from the
revenues of which they provided themselves with dress an ornaments. Such gifts
were said to be for “girdle” money: (Anab 1, 4, 9). But in the present phase of
customary law, especially amongst Hindu Jat
tribes, there is a strong disinclination to admit any independent power of the
wife even over movables, however acquired by her, apart from the wishes of her
husband, who generally exercises an unfettered control over her estate.
268. Wife’s personal property.
The
customary law prevailing amongst agricultural tribes usually regards the wife’s
personal property as merged in that of the husband, who is also deemed entitled
to all the wife’s earnings.
Authorities.
Punjab
Civil Code, Section 5, clause 6: Vo; II, Tupper’s Customary Law, page 158; Vol. IV, page 145; Vol. V, page 73.
Compare Manu, VIII, Section 416; Mayne
S Hindu Law,
Section 616.
269. Ornaments.
Ornaments
made up by the husband and given to the wife subsequent to marriage cannot
ordinarily be claimed or disposed of by the wife in opposition to her husband’s
wishes.
Authority.
No.
81 P.R. 1880.
270. Succession to wife.
Upon
the death of the wife in her husband’s lifetime, the husband usually succeeds
to all the property of which she was in possession of which she was in
possession at the time of her death.
Remark - Stridhan.
This
applies only to the wife’s stridhan;
land inherited by her from her father reverts on her death without direct
descendants to her father’s collaterals (No. 135 P.L.R. 1910; No. 4 P.R. 1912).
See also the next paragraph.
In
accordance with the rule laid down in para. 270 of the Digest, held, that among Arians of Batala (District Gurdaspur), when a married woman dies
childless during her husband’s lifetime,the husband succeeds to all movable
property of which she was in possession at her death; 1934, 151 Ind. Cas. 28;
1932, 139 Ind. Cas. 716; (both these cases related to succession to a dower
debt). So, also, among Qureshi of
District Jhang, (who are admittedly governed by custom), the Riwaj-I-am provides that with regard to
the wife’s own self-acquisitions, (i.e,
her self-acquired property), her sons will first inherit but if there are no
sons, then her husband succeeds and after him daughters; 1936, 162 Ind. Cas.
339. As regards succession to wife’s self-acquired property, where the husband
predeceased the wife, see 1932, 138 Ind. Cs. 680, (a decision on the
interpretation of the Riwaj-I-am.
271. Succession to wife.
Where
the husband has pre-deceased his wife, the succession to such property as the
wife possessed in her own right depends on the nature of that property. If
immovable, it usually passes to her sons, if any, and, ailing them, to the male
collaterals of the last full owner. If movable, and specially in the case of
ornaments and wearing apparel, the daughters have a preferential claim, the
unmarried usually excluding the married.
Remark – Devolution of ‘special property’
of a married woman governed by Customary Law : Para. 271 of Ratigan’s Digest doubted.
Similar
rules will be found to prevail in most early communities, where what is known
as the people’s law is still in active operation. Thus the lex Angliorum et Werinorum permits male collateral within the fifth
degree to exclude a daughter in succession to immovable property, while,
according to the same law, in the presence of a son she only succeeds to the
mother;s paraphernalia called rhedo.
See other instances given by Dr. Mayr in his Indiosche Erbrecht, page 167. As to the Hindu law with regard to
movables inherited by a widow from her husband, she 9 Bom. L.R. 1305, and L.R.
30 Ind. App. aT page 205. The special property of a married woman governed by
Customary Law does not devolve on her husband’s heirs in preference to her own
relations. “The statement in Rattigan’s
Digest of Customary Law, para 271 is not supported by any authority
whatever and I am not prepared to follow it,” per Tek Chand J., Campbell, J.
concurring; 1927, 8 Lah. 366.
See
s to a female’s power of alienation of immovable property paragraphs 60-64.
And
as to succession to property gifted to females, paragraph 27, Remark 2.
272. Wife’s special property.
Immovable
property purchased from the proceeds of movable property given to the wife by
the husband as a present during marriage or from the proceeds of jewellery
belonging to the wife constitutes the wife’s special property, which she can
dispose of at pleasure after the husband’s death.
Authorities.
L.L.R.
1 Mad. 281; II ibid 333. Cf. I.L.R. XIV Cal. At page 886, upheld
in appeal I.L.R. XVI Cal. 574.
273. Purchase out of savings.
But
immovable property purchased by a Hindu widow out of savings of her income
derived from her husband’s estate is presumed to be capitalized part of the
inheritance and not her special property, and is descendible on the widow’s
death, if not validly disposed of in her lifetime, to the husband’s heirs, and
is inalienable by the widow during her lifetime except for necessary.
Authority
No.
58 P.R. 1880; No. 121 P.R. 1893. Compare VI Cal. Reps. 66 and I.L.R X Cal. 324;
I.L. R. XIV Cal. 387 (P.C.); I.L.R. XIV Cal. 861 and XVI ibid 574. As to the customary law on the subject, see No. 29 P.R.
1911.
Explanation – Savings.
Where
there is nothing to manifest any intention to accumulate the balance of income
as a part of her husband’s estate, and such balance is merely held in suspense
in the hands of the widow or in the hands of executors and subsequently paid over
by them to the widow, and invested by her in marketable securities, it cannot
be regarded as “savings” within the meaning of this paragraph, I.LR. X Bom. 478
at page 483; XX Cal. 433 (P.C.).
Remark 1.
But
when a widow comes into possession of the property of her husband, and receives
the income and does not spend it, but invests it as capitalized income in the
purchase of other property, the intention of the widow must be presumed to be
to keep the estate of the husband as an entire estate, and the property
purchased must also be presumed to be intended as accretions to that estate
(L.R. X Ind. App. 150; I.L.R. XVI Cal. At page 583). But cf. I.L.R. XXV Mad. 351 and para. 64, Explanation 2, ante.
So
also the like presumption may be drawn from the fact that the widow has
alienated the property purchased, together with the original estate of her
husband, by the one deed without making any distinction between the original
estate and the after-purchases (I.L.R. X Cal. 324; No. 121 P.R. 19\893).
Remark 2.
See,
however, No. 105 P.R. 1881, which was a case where a Muhammadan widow purchased
immovable property with her own
funds, and in which it was held that her heirs, and not those of her husband,
succeeded to it on her death. The source from whence the widow derived the
funds is not stated in the published report, though it was pleaded that she had
derived them from the joint estate belonging to the deceased husband and his
brothers.
So,
also, when a widow governed by customary law acquires property by pre-emption
and the purchase money is paid by mortgaging the property so acquired, the
property is her self-acquired property. The fact that the widow was in a
position to pre-empt the land only by virtue of her position as widow immaterial.
The property thus acquired through the exercise of a right of pre-emption being
the widow’s own self-acquired property, she is at full liberty to alienate it
in any manner she pleases, and her dealings with it are not subject to the
control of her husband’s reversioners, 1934, 152 Ind. Cas. 910, (following
1920, 43 All. 374): (see, on this question; the notes under para. 64 of the
Digest).
THE PUNJAB LIMITATION (CUSTOM) ACT,
1920
(Punjab Act I of 1920)
Passed
by the Lieuteant-Governor of the Punjab in Council.
Received the assent of His Honour the
Lieutenant-Governor
on the 5th April 1920,
and that of His Excellency the Viceroy and
Governor-General on the 2nd
May 1920.
The Governor-General’s assent first
published in the
“Punjab Gazette” of the 28th
may 1920.
An
Act to amend and consolidate the law governing the limitation of suits relating
to alienations of ancestral immovable property and appointments of heirs by
persons who follow custom in the Punjab.
Preamble.
Whereas
it is expedient to amend and consolidate the law governing the limitation of
suits relating to alienation of ancestral immovable property and appointments
of heirs by persons who follow custom in the Punjab;
And
whereas the previous sanction of the Governor-General has been accorded under
Section 79 (2) of the Government of India Act, 1915, to the passing of this Ac.
It
is hereby enacted as follows :-
1. Title and extent.
(1)
This
Act may be called the Punjab Limitation (Custom) Act. 1920.
(2)
It
extends to the Punjab.
This
Act came into force on the 28th May 1920, that is, the day on which
His Excellency the Viceroy and Governor-General’s assent to the Act was first
published in the “Punjab Gazette,” vide
Section 3, Punjab General Clauses Act, 1898, and Punjb Record No. 97 of 1905.
Scope of the Act.
(i)
The
sale of a reversionary right ipso facto
does not become a sale of the land which falls to the reversioner when
succession opens out, e.g., on
widow’s remarriage. In such a case there is no sale of ancestral property on
the date on which the widow remarried. Act I of 1920 has therefore no
application to the case, the ordinary period of limitation, i.e., 12 years, would therefore apply to
the suit by a reversioner to set aside the sale, the nature of the suit being
that on an ordinary title suit against a trespsser (1).
(ii)
Although,
for the purpose of determining whether a widow possessed unrestricted power of
alienation in the property which had descended to her from her husband, it is
immaterial whether the property was ancestral or self-acquired, in his hands,
but the question is of great importance for ascertaining the period of
limitation governing a declaratory suit by a reversioner to challenge the widow’s
alienation. If the property was ancestral of the husband and the contesting
reversioner, there can be no doubt that (Punjab) Act I of 1920 is applicable
and the period of limitation is six years. If, however, the property was
non-ancestral qua the plaintiff the
suit would be governed by Art. 125, Limitation Act (2).
(iii)
Nothing
in this Act can affect rights which had already accrued before it came into
force (3).
(iv)
The
ancestral property of A who was governed by Customary Law, was forfeited by the
Government and sold at public auction and was purchased by B. Subsequently A’s
reversioners brought a suit for possession alleging that the land being
ancestral, only life-interest in the property could be sold and that they were
entitled to succed as A had not been heard of for more than seven years and
should be presumed to be dead. Held,
that the suit was governed by Art. 144, Limitation Act, and not by the Punjab
Limitation Act, 1920. The alienation had not been made by A but by the
Governement (4).
(v)
The
Act applies exclusively to case of reversioners suing to contest alienations
which are invalid under the Punjab Customary Law. Where therefore the parties
are governed by Hindu Law, the provisions of the Act are inapplicable.
(vi)
B
gifted certain land to his daughter S who in turn sold it to R. B’s reversioner
instituted a suit to contest the gift aainst B and S. The suit was decreed; R
was not made a party to the suit. Later on, the reversioner instituted a second
suit against B, S and R for declaration that the sle by S to R was invalid. Held, that the suit was in effect to set
aside the gift made by B in favour of S and being brought after the period of
limitation had expired was time-barred. The reversioner was in fact challenging
the gift by B. The decree in former suit was of no avail to the reversioner and
R not being made a party to the suit the decree was not binding on R (5).
(vii)
Minor
reversioner contesting alienation – suit is barred if brought by minor’s
father. (6).
(1)
A.I.R.
1934 Lah. 916; 1921 Lah. 133 dist. from; 1926 Lah. 39 approved; 1921 Lah. 133;
61 I.C. 375 reversed.
(2)
A.I.R.
1933 Lah. 945.
(3)
A.I.R.
1932 Lah. 330.
(4)
A.I.R.
1932 Lah. 45.
(5)
A.I.R.
1930 Lah. 129.
(6)
A.I.R.
1925 Lah. 24; 82 I.C. 626.
(viii)
The
contention that the provisions of the Schedule to Act I of 1920 have to be read
along with the provisions of Act II of 1920 or that Act I of 1920 would have no
application where Act II of 1920 has not application, cannot be accepted
(A.I.R. 1946 Lah. 272; 48 P.L.R. 43; 222 I.C. 162).
2.
Repeal.
The
Punjab Limitation (Ancestral Land Alienation) Act, 1900, is hereby repealed. In
this Act –
3.
Definition.
“Alienation”
includes any testamentary disposition of property.
“Appointment
of an heir” includes any adoption made or purporting to be made according to
custom.
4.
Savings.
This
Act shall not affect any suit pending in any court on the date on which this
Act comes into force.
5.
Dismissal of suits of the
description specified in the Act if instituted after the period of limitation
herein prescribed has expired.
Subject
to the provisions contained in Sections 4 to 25 (inclusive) of the Indian
Limitation Act, 1908, and notwithstanding anything to the contrary contained in
the first schedule of the said Act every suit, of any description specified in
the schedule annexed to this Act, instituted after the period of limitation
prescribed therefor in the schedule, shall be dismissed, although limitation
has not been set up as a defence.
6.
Provision for suits for which the
period prescribed is shorter than that prescribed by the Indian Limitation Act
or the Punjab Limitation Act.
Notwithstanding
anything herein contained, any suit for which the period of limitation
prescribed by this Act is shorter than the period of limitation prescribed by
the Indian Limitation Act, 1908, or by the Punjab Limitation (Ancestral Land
Alienation) Act, 1900, may be instituted within the period of one year next
after the commencement of this Act or within the period prescribed for such
suit by the Indian Limitation Act, 1908 or by the Punjab Limitation (Ancestral
Land Alienation) Act, 1900, whichever period expires first.
(i)
When
a childless testator dies leaving a widow she usually succeeds and the legatee
only begins to enjoy the legacy after her death. During her life-time the
reversioner’s suit to contest the will is a suit for declaration, though
brought after the testator’s death. Such a suit may be brought before or after
the testator’s death provided the statutory period has not expired (1).
(ii)
The
words “notwithstanding anything herein contained” do not repeal S. 5 in so far
as the applicability of the provisions of Secs. 4 to 25 of the Limitation Act
(1908) to suits governed by S. 6 is governed. They are intended to govern the
period of limitation prescribed by the Act, and the object of section was to
prescribe a maximum period of one year after commencement of the Act for a suit
for which the period of limitation had commenced to run before the enforcement
of the Act (2).
(iii)
Section
6 really gives an additional period of one year to those who were at the time,
when the Act came into force, entitled to institute suits for declaration but
could be successfully met by a plea of limitation owing to the repeal of he Act
of 1900 and the consequent reduction of the limitation by the new Act (3).