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
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.
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.
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.
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.
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.
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.).
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).
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.
PUNJAB ACT No. I OF 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.
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).
The Punjab Limitation (Ancestral Land Alienation) Act, 1900, is hereby repealed. In this Act –
“Alienation” includes any testamentary disposition of property.
“Appointment of an heir” includes any adoption made or purporting to be made according to custom.
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