THE PUNJAB CIVIL LAW MANUAL CONTAINING NOTES ON THE PUNJAB LAWS' ACT AND EN- ACTMENTS EXTENDED TO THE PUNJAB BY THAT ACT, AND ALSO ON THE CUSTOMARY, HINDU AND MUHAMMEDAN LAW AS APPLICABLE TO THE PUNJAB. BY JAISHI RAM Member of the University of ledinburgh in the faculty of Law and of the Hon'ble Society qf Gray's Inn, London. PLEADER, CHIEF COURT, PUNJAB. 1ST EDITION., 1892. PRINTED IN THE " TRIBUNE " AND VICTORIA PRESS, LAHORE. (All rights reserved.) To Zito ;gong& V. Mat4an, Barrister-at-Law and Vice-Chancellor of the Punjab University, THIS BOOK IS WITS HIS PERMISSION Respectfully dedicated. P R E FA C E 111•011Mralmommul4PMEm.minnifteilleall The want of an annotated edition of the Punjab Laws' Act has been long felt in this Province both by the legal profession and the Bench. Mr. Spitta in his Manual of Law gave some notes under this Act, but it was at a time, when there was not enough material before him to make the work sufficiently exhaustive. Moreover, it is upwards of twelve years ago, when the last edition of his Manual was published. The Hon'ble Dr. W. H. Rattigan has done, of course, a great service to this province by his works on Customary Law, but that learned gentleman did not bring out any revised edition of the Punjab Customary Law which was published long ago. The thanks of the writer are, however, due to the Hon'ble gentleman for the assistance which he has got from his works that have dealt with the Punjab customs. Although, there are good many works on Hindu Law and of very great authority, yet they have mostly discussed all the different systems of Hindu Law prevalent in different parts of the country, and to the best of the author's knowledge none of them purports to be conformable to the law as interpretted in the Punjab, and the reader is always unnecessarily put to the trouble of referring to those systems of law which are quite unknown in the Province. There have been several authoritative rulings of the Punjab Chief Court on Mohanaedan Law, and the writer has, therefore, thought fit to make some observations on the subject of Mohamedon Law also. No pains have been spared in making the work as useful as possible, and in doing so every attempt has been made to render the work conformable to the rulings of the highest Courts. The writer, however, cannot conclude without referring to a disadvantage under which he has laboured, namely, of having left for Europe while the book was in the press, and thus of not having been able to see the final proofs. But he should not omit to express his thanks to his brother Lala Bohan Lal, Pleader, Dharmsala, who examined theproofs in his absence, and also to Lail Sukh Dial, Pleader, who assisted him in doing the same. The undersigned has also to add that if owing to his limited knowledge of English and of law any errors have crept in this work, the indulgent reader will overlook the same, bearing in mind that it is the first attempt on the author's part in this direction. Apology is, also, tendered for the printer's errors that have passed in the correction ofp roofs. Lahore, 20th Novr. 1892. JAISHI RAM. ERRATTA AND ADDENDA. PAGE. PARA. LINE. 3 3 3 for contended, read contended for. 8 1 3 for for read far. 8 2 3 -after Hindu Law add was. 9 4 2 for peculiars read peculiar. 10 5 1 for deals read dealt. 13 6 1 for rite read site. 15 5 5 for favours read favour. 15 5 6 for person read persons. 16 2 1 for evidence read fact. 16 6 7 for state read estate. 24 1 9 after ground add that. 24 2 1 for sabe read sale. 26 4 4 for extend read extended. 28 6 3 do not read at. 30 2 7 for he read be. 30 , 3 2 for waive read waiver. 31 2 2 in marginal notes for o cer read offer. 32 10 1 for sued read sues. 38 1 2 for no read on. 38 5 4 for is found read was found. 41 3 3 omit or. 43 2 2 for bear read bars. . 44 6 25 for applicant read applicant's. 46 2 2 after court omit ,. 46 3 5 for or duty read is duly. 48 5 5 for insolvents read insolvent's. 49 3 26 for fradulent read fraudulent. 49 3 33 for proported read purported. 50 0 0 (a) (b) (c) read in the same paragraph. 53 4 9 add P. R. 52. of 1882. 54 7 3 for informs read in the forms. 56 6 2 for Collector Acts read Collector acts. 57 2 11 for as mere read not as mere. 62 6 1 in marginal notes omit and revenue. 62 6 6 for describe read to describe. • 63 1 2 for impart read import. 63 2 13 for laid read lead. 63 4 6 far Commissioners refuse read Commissioner refuses. 65 1 ' 1 for amended read was amended. 66 2 1 for 50A read Section 50A. 66 2 5 for of its read for its. 75 3 1 in marginal notes fur rules read sales. 76 6 9 for and read or. 2 PAGE. PARA, LINE. 78 4 10 for deposits read deposited. 78 6 9 close the sentence after 257). 86 6 5 for Qunnaes read Qaunugoe's. 87 1 1 for Section read See. 87 2 ' 6 for for need read formed. 87 2 10 for from read form. 88 4 10 for cases read case. 89 4 11 close the sentence after 1877). xvii 20 0 at the top for alienation read succession. xxvii 3 3 for stop read estop. xxviii 1 9 for a most read the most. xxix 2 16 for when read where. xxxvii 2 1 in marginal notes for sources read power. xxxix 1 4 for inter gift vivos read gift inter vivos. xli at the top for alienation read betrothal. xlv 4 23 for Baiwa read Bajwa. xliii at the top for alienation read marriage. ' lix 3 9 for customs read custom. xlv at the top for alienation, read devorce. xlvii-liii at the top for alienation read adoption. lxvi 1 12 for non-proprietors, read non-proprietors'. lxviii 1 21 for he read they. lxviii 1 21 for his read their. lxviii 1 28 for revert read revert. lxxii 5 2 for it is read it is true. lxxviii 5 6 for rulings read ruling. lxxxiv 5 1 in marginal notes for for read far. . xcvi 2 1 for possesd read possessed. xcix 1 21 add P. R. 99 of 1888. xcix 9 3 for weaps read weeps. ci 4 4 for right read eight. civ 3 8 close the sentence after 420). cxii 4 9 for for adding read for bidding. cxiii 4 12 for sanklap's read sanklap. cxvii 1 22 for state read estate. cxxi 4 2 for relation read relations. cxxiv 2 22 for share read sharer. cxxiv 4 8 for kinds read kin. cxxv 2 17 for thus read there. cxxvi 5 7 for expiration read expiation. cxxvii for mutawasil read mutamasil. cxxx 1 3 for any read by. cxxx 5 2 in marginal notes for lataining property- read attaining puberty. cxxxv 5 1 & 2 for mooundjut read moogjjui. ..A.1313 [Al INT At Page 4 to the Para, containing the marginal note v,v'ibld-arz, the following Olould be added. " The parts of the document referring to -custom are certainly not provisions intended to be in force for limited period. They are statements that a certain custom exists. The statement may or may not be correct, but if it is correct, there is a natural presumption that the custom continued to exist, and it will be for those alleging that a change had subsequently taken place to prove the allegation. The production of a later Record of Rights containing entries opposed to the earlier one would be some proof of the change. It cannot be said that the second record destroyed or abrogated the earlier one (P. R. 8 of 1892)." At Page 14, under Section 10, to Para. 1, the following should be added, " In P. R. 43 'of 1892, however, the Chief Court held that the provisions of this Section do apply not only to sales by occupancy tenants, but are also applicable to transactions under which proprietors create -a right of occupancy in another for a consideration." In Page 22, under Section 12 (d) the following should he added. " When two suits for pre-emption by persons equally entitled under this clause have been filed in different times, but no decree has been obtained by any claimant when the latter suit has been filed, the general rale applicable will be, not that the plaintiff who first succeeds will be entitled to retain the whole of the property, but that, in the absence at least of some special bar, each will be entitled to a decree for a proportionate share of the property on payment of a proportionate share of the purchase money (P. R. 29 of 1892)." At page 26, in the end of para. having the marginal note as qffect of 'custom, the following should be added. "But the agreements are not saved by this Section. So, where a wojibui-arz contained an agreemeut between the proprietors of a village as to the persons to whom the right of pre-emption would belong in future, it was held that this agreement could not prevail against the provisions of this section which gives details of the persons, to whom the right to pre-empt property in a village belongs, in the absence of a custom to the cor -1-ary (P. R. 44 of 1892). Where the wojibld-ar.y. recorded that no sale or mortgage of land had ever occurred in the village and then laid down that any one wishing to sell or mortgage his land must make the first offer of it to the shurka shikani wa yak ,j0-'di, it was held that the entry did not establish that a custom regulating pre-emption rights existed in the village, and the claim must be disposed of in accordance with the provisions of this Act (P. R. t)2 of 1892)." To page 35, para. 2, add— " This principle was also affirmed in P. R. 91 of 1892, in which case, it was held by Bullock, J., that the decree in such cases should provide separately for the payment of the pre-emption money and the payment of compensation, and that 2 the payment of the former within the time specified in the decree would save the decree from forfieture, though the compensation be not paid." At Page 42,` para. 2, the following may be read. " The words "-purchase money " used in this Section have not been defined, find there is nothing to put a restricted or technical meanings upon them. in ordinary acceptation of the term currency notes are money although they may be notes of a different circle from that in which they are tendered. (P. R. 67 of 1892.)" To page 77 para. 2, the following should be added— " If there be more than one mortgagor, each mortgagor should be served with a copy of the mortgagee's petition to foreclose, the service on one of the mortgagors alone is not sufficient (P. 1?. 51 of 1892)." At page 77, to para. 3, the following shou,ld be added— " And the parwana was held as sufficiently served on a minor mortgagor for whom no guardian had been appointed under the Act, by service on his brother with whom he lived. (P. R. 94 of 1892)." At page IV, para. 4, line 19, after 1891 read, " and also in P. B. 58 of 1892." In the first para. page VI, read— " But a custom favouring the succession of a daughter-in-law was found among Mohamedon Ghorewaha Rajputs of Hoshiarpur district (P. R. 23 of 1892)." To-the last Para. at Page X, it should be added— " But custom has been found as recognizing the right of unmarried daughters to be maintained out of the estate of the father, and in some cases a right of possession of the estate until marriage. (P. B. 50 of 1892)." To the fourth Para. Page XIII, add— P. R. 64, of 1892, Mohamedon Awaus of Ludhiana District. Agnates of tenth generation preferred to daughter's son. To page XVI, para. 2, the following should be added—, " But a custom was shown to exist among Moghals of Rohtak District, by which a sister and a sister's son excluded descendants of the deceased's grandfather. (P. R. 71 of 1892)." To page XXIII, para. 2 the following should be added— " And a gift by a proprietor of half of his land and a house to his grandsons was not found valid, when the donees were the children of his only son, who had_ two wives, by each of whom he had male issue and the gift was made to the exclusion of their father, i.e., the donor's son. (P. B. 82 of 1892)." To the second para. at page XXV, add-- " Among Arains of Lahore District, with reference to the construction put on the word aulad, it was found that by custom a near female collateral was not competent to object to a sale of laud and houses by the widow of the deceased owner. (P. 1i. 89 of 1892)." To page XXVI, para. 1, line 3, after 1891, may be added— " But compare P. B. 35 of 1892, 53 of 1892 aid 61 of 1892." To page XXVIII, para. 2, add— " In I'. I?, 90 V 1892, where the alienation was made by a sonless proprietor 3 it was held that the payment of a debt proved to be in existence and recoverable by law is a sufficient justification for the raising of money to pay it through the alienation of ancestral property, but that the creditor lending money must satisfy himself of the necessity for the previous debts for the payment of which the proprietor borrows." Add the following to the list of alienations allowed, at page XXXII. "P. R. 9 of 1892. Sindhu Jats of Amritsar District. Collaterals of eighth degree were not found entitled to contest. P. R. 22 of 1892. Tarkhans of Jehlam District. Gift was to one heir to the exclusion of another. 95 of 1892. Bhains Jats of Jallundliar District :- 1. Gift to a stepson. 2. The proprietory body was composed of various castes and a number of gifts was found to have been made without objection." Add the following to the list of alienations set aside at page XXXIV—"P. R. 24 of 1892. Brahmans of Tahsil Jagadhri. Gift found invalid in presence of collaterals. P. R. 32 of 1892. Syeds of Dehli District— 1. Gift was to daughters, on whom the onus are thrown. 2. The collaterals were descended from the grandfather of the donor. 35 of 1892. Gujars of Hoshiarpur District- 1. Alienation was made in favour of two nephews in the presence of other nephews. 2. No custom was found to exist. 52 of 1892. Awans of Rawalpindi District— Alienation was made of whole estate to grandnephews in presence of a brother." At page XXXVII, para. three, line 15, after 1889, read. " (P. 1?. 83 of 1892)." At page XXXVII, last para., to the list of alienations by widows that have been upheld, add. " P. R. 10 of 1892. Kakezais of Sialkot District. Will by a widow to daughter's children." Page XLVII, para,. 2, to the sentence ending in line 10, the following may be added. " And in the case of the adoption of a stepson who is of a different got, the burden of proof ordinarily lies on him who seeks to maintain it, (P.R. 83, 1892)." With para. 3 at page XLIX, read. "But a Full Bench of the Chief Court has ruled that among the agriculturists in the Punjab, no general custom prevails by which the collateral heirs in the natural family of a man who has been adopted, received in default of the lineal heir, to the property which he acquired or icheritied by virtue of his adoption (P. R. 12 of 1892, F. B.) 4 To page LI, para. 4, the following may be added. " P. R. 4 of 1892. Hindu Jats of Delhi District." Page LT, para. 6, add. " P. R. 75 of 1892. Arains of Jallandhar District. Wife's brother's son. 81 of 1892. Mohameden Jats of Gujrat District. Do." Page LIII, after line 36, add. . " P. R. 6'9 of 1892. Bhular Jats, Lahore District. Adoption of a gair Qaum." To the list of adoptions disallowed at page LIII, add. " P. It. 21 of 1892. Lodhi Pathans of Jallandhar District. Decided in accordance with Rivaj-i-am." To page LXIII, para. 2, line 8, after 1888), it should be added. " And the accrual of any substantial mischief must be satisfactorily established (P. R. 54 of 1892)." At page LXXXI, to the end of para 2, the following may be added. "But the true issue in such case is, whether the man on becoming a faqir also intended to renounce, and did renounce the world, the burden of proving that he did not bring on him (P. R. 7 of 1892.)" At page LXXXVIII, along with the subject embodied therein, "P. R. 33 of 1892" may be read. To page CVIII, the following should be added. "Where the minor was a co-sharer with his grand-uncle, in the appointment of the guardian of his person and property he was given preference to the husband of the father's sister, in the absence of the clear proof that he was unfit to be the guardian. (P. R. 78 of 1892)." P. R. 2 of 1892, may also be referred along with the last para. at page CXVI, as relating and discussing the principles and authorities applicable to the question of partition in fact, or iu law. THE PUNJAB LAWS ACT, ACT NO. IV OF 1872. (Received the assent of ills Excellency the Governor- General on the 28th March 1872.) An Act for declaring which of certain rules; laws and regulations have the force of law in the Punjab, and for other purposes. WHEREAS certain rules, laws and regulations, made heretofore for the Punjab, acquired the force of law under the provisions of section twenty-five of the " Indiaa Councils' Act, 1861 "; and whereas it is expedient to declare which of the said rules, laws and regulation? shall henceforth be in force in the Punjab, and to amend, consolidate or repeal others of the said rules, orders and regulations ; It is hereby enacted as follows :- 1. This Act may be called " The Punjab Laws Act, 1872." 2. It extends to the territories now under the Local extent, administration of the Lieutenant-Governor of the Punjab, but not so as to alter the effect of any regulatiDns made for any parts of the said territories under the Statute 33 Vic., a. 3, s. 1 ; And it shall come into force on the first day of June 1872. It appears that unless specially extended the provisions of this Act do not apply to any territories brought or that may be brought under the administration of the Punjab Goverinnent Eubse• quent to the passing of this Act. Statute 33 Victoria Chapter 3, Section 1, runs thus "Every Governor of a Presidency in Council, Lieutenant-Governor, or Chief Commissioner, whether the Governorship, or Lieutenant Governorship, or Chief Commissionership be now in existence or way hereafter be established, shall have power to propose to the Governor General in Council drafts of any regulations, together with the reasons for proposing the same, for the peace and government of any part or parts of the territories uu his government or administration to which, the Secretary of State for India shall from time to time by resolution in Council declare the provisions of this Section to be applicable from any date to be fixed in such resolution." "Anti the Governor General iu Council shall take such drafts and reasons into consideration, and when any such draft shall have been Fumed of II the Governor (lomat in Council, and shall have Preamble. Short title. Commencement. 2 THE PUNJAB LAWS Act. received Governor General's assent, it shall be published in the Gazette of India and in the local Gazette and shall thereupon have like force of law and be subject to like disallowances as if it had been made by the Governor General of India in Council at a meeting for the purpose of making laws and regulations." "The Secretary of State for India in Council may from time to time withdraw such pow.rs from any Governor, Lieutenant Governor, or Chief Commissioner, on whom it has beet' conferred, and may from time to time restore the same as he shall think fit." By a resolution passed by the Secretary of State for India in Council the provisions of the Act were extended to the Districts of linzarn, Peshawar, Kohat, Bannu, Dern Ismail Khan, Dern Ghni Khan and the parganah of Spiti (vide Resolution passed by the Seereory of State for India in Council, dated 6th October 1870, published in tha Gazette of India of 3rd December 1870). As to the Regulations which having been submitted by His Honor the Lieutenant Governer of the Punjab, and having been considered and approved by His Excellency the Governor General in Council have acquired the force of law, see Appendix I. E nactments in 3. The Regulations, Acts and orders specified in force, the first schedule hereto annexed, are in force in the Punjab to the extent specified in the third column of the said schedule. Regulation 5 of 1817 has been repealed by Act 6 of 1878. Act 40 of 1858 repealed by Act 8 of 1890. Act 17 of 1861 also repealed by Act 8 of 1875. Enactments re. 4. The Regulations, Acts and orders specified in pealed. the second schedule hereto annexed are repealed to the extent specified in the third column thereof. CIVIL JUDICATURE. in [5. In questions regarding succession, special property be of females, betrothal, marriage, divorce, dower, adoption, na- guardianship, minority, bastardy, family-relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be— (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority. what A cnstom is a rule which in a particular family or in any part- cular district has from long usage ohtitined the force of law. It must be ancient, certain atid reasonahie, and being in derogation of general rules of law must b.4 const rued strictly. (Sorth P. C. judyt Vol. 111. 318) It must not he contrary to just ice, equity and good conscience, ant sbouhl not contravene any express provision of law, nor inust, be one which has been declared to be void by any emnpetant, authority. Under English Law a custom to be legal and binding must he Validity of Eng- ancient,. continuous, peaceably acquiesced in, reasonable, certain and ish custom. copHiritent, and should be construed strictly. (Broom's Commentaries ou Common Law P. 12-18). Decisions certain cases to according to Live law. Custom, THE PUNJAB LAWS ACT. There do not exist any rules to determine precisely as to what Antiquity requir. length of time or number of repetitions will make a custom "ancient.'' ed. In England the reign of Richard I (A. D. 1189) is taken as the extreme limit of /ma memory, inasmuch as it is from that epoch that the connected 'series of legislative enactments exists. With regard to the town of Calcutta the year 1773 is Hai,' to determine such antiquity because it was in that, year that the Supreme Court was established; and so far as the AfrifraFiil of Bengal is concerned, one ought to go 1,ack to time year 1793 prior to which there was no systematic registry of Regulations. As to what should be the period of legal memory In the Punjab, the date of the annexation of the l'unjah has been suggested to he the most convenient date for determining the validity of a custom (Spitta's Manual of Law P. 23). Customs are either general or special, Section 48 of the Evidence Act defines a general cuetoin to be one which is common to a considerable class of persons. When the custom alleged if not universal, is general, it should, on evidence being given of its continuance in other similar adjacent villages, be held to survive in the case of a particular village, unless the opposite ',Arty proves time adoption of some other custom. L R. 5 Bom. 482'. But the evidence of the acts of a single family repugnant or antigonistic to the general law will not establish a general custom or usage (4 13,0712. A. C, 113). A special custom is one which applies to the inhabitants of a Special custom. particular place or to a particular tribe, sect or family. (llattigan's Digest Sec. (2) Expl. (3).) When a special custom is contended, it ought to be alleged and proved with distinctness and certainty. (Stith P. C. Judgt. Vol. 11. 418). Prevalence of any special course of descent in a family differing from ordinary course of descent in that place stands on the footing of a usage or custom of time family and the custom is capable of attaching or being destroyed equally whether time property be ancestral or self acquired. (cuth P. C. Judgt. Vol. H. P. 147). As to how a special family custom should be established the Privy Ccnncil said, '' Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but It is of the essence of special usages modifying time ordinary law of succession that they should be ancient and invariable, and it is further essential that they should be established to be so by clear, fled unambiguous evidence. It is only by means of such evidence that the courts 'Can lie assured of their existence, end that they possess time conditionsof antiquity and certainty cm which alone their legal title to recognition depends." (Seth 1'. C. Judgt. Vol. H. 604). Where the custom requires the nun of two things to constitute time legal heir as for instance (1) seniority in age and (2) nearness of kin, a claimant who has but one of these qualiticatiene i.e. seniority, cannot be entitled to succeed by the family custom. (Sutli P. C. Judgt. Vol. L1. 243). 111 proof or disproof of a custom the following facts are relevant:— (ca). any traneaelion by which the custom in queetion was created, leuned, modified, recognized, IIRRortadi or denied or which is inconsistent with its existence (Act 1 of 1872 &c. 13 (a)). (1)`. Particular instances in which time custom was claimed, recognized, or exercised, or in which its exorcise was disputed, assert©d or departed from. (Act 1 of 1872 Sec. 13 (b)). (c). Statemente giving opinion of any pereon who is dead, or cannot be found, or who has become incapable of giving evidence, or whose Attendance cannot lie procured without MI II mount of delay or expense winch wider time circemetauces of particular case appears to be unreasonable, as to the existence of it custom, of the existence of 3 General customs° Relevant facts as to custom. 4 THE PunrAR LAWS ACT. which, if it existed, he would have been likely to be aware, and when such statement wee made before Puy controversy as to such custom had arisen. (Ibid Sec. 32 (4).) (d). When the court has to form an opinion as to the existence of any general custom the opinion RS to the existence of such custom, of persons who would be likely to know of its existence, if it:existed. (Ibid. Sec . 48). (e). When the court line to form an opinion Real() the usages or tenets of any body of men or fenilly, the opinions of pens ins having special means of knowledge. (Ibid Sec. 49). (f). In case of the opinions of living persons given nuder clauses (a) and (1), the ground Flu which such opinion is based. (Mid Sec. 51). Judvnents not inter _parties are also relevant on points of custom (P. R. 173 of 1889) and the best proof of custom is instances in which it has been acted upon and documentery evidence that it has beet' enforced. Profa evidence as to the existence of a enstotn must be tested by ascertaining the grounds of the witness's opinion (I. L. R. 1 All 440). The records of right include a statement of customs which is generally known under the name of Wajib-ul arz (Sec. 31-, Punjab, Land Revenue Act). These entries when made in accordance with Jaw for the time being it) force are presumed to lie true until contrary is proved. (Ibid Sec. 44). They are presumptive evidence of the existence of local customs and throw the burden of proof on the party contravening them. ( P. R. 14 of 1882, 103 of 1885 and 4 of 1890). In construing it the whole of the document ehoeld be taken into consideration and not a single clause only. (P. R. 7 of 1891). In most of the Districts in the Punjab, there is also Another document known es the Rivaj i-am which is compiled with the object of embodying the lex loci of each class in the respective silk divisions of the district. It consists of statements inside by principal men of each tribe, of the customs which they consider to prevail or the ordinary rules by whiali the matters thelein discussed shouhl be regulated, (E.G'. Circular No. 40 of 1872) The entries in this docament, however, cannot lie regarded as a complete and prima facie correct exposition of customs contained therein. (P. R. 52 of. .1884) It does net require the sanction of the Local Government before it can he sidinitted iu evidence. The entries do not derive any technical force for being pert of it Set tle-ment, 7. hey are admissible only under Section 33 of the Evidence Act as containing evidence :IR to the custom. (P. .R.146 of 1889. 2oer Roe J.) in discussing the velue of this docement Mr. Justice Chatterjee It 198 of 1889, remarked, " With reference to the Rivaj i-am we think it is valuable as affording indications of points of custom in regard to which enquiry is called for. In this view the remand granted by this Court at, the last hearing was most proper and necessary. But it has been repeatedly ruled that entries in the nivej-i-nary are not ever prima facie evidenee of their contents. see No.24 reojab -Record of 1884. Alt hough„ therefore, where, Rivj-i-am cooniiim a statement of custom, it, will he treated es a sufficient ground for enquiry into that custem, it can confer no other benefit on the party in whose favour it. runs." cue. To establish mercantile usage there needs not either be the antiquity, the uniformity or the notoriety of custom. The usage may still he irr oourse of growth end it may require, evidence for its support in each case ; but in the result, it is enough if it Appear to be so well-known and acquiesced in, that it Luey be, reueouaidy preeuweJ to have been au ingredient imported Walib-ul-arz, Mercantile torn:. THE PUNJAB LAWS ACT. by the parties into their contract (7 Moore''. In and A. P. 263) ; and with reference to Sec. 92 Proviso (5), Evidence Act, proof of any usage or custom is admissible by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, if the annexing of such incident would not be repugnant to or inconsistent with the express terms of the contract. As the custom is in the first, instance established by the will of Discontinunace of the community, so it is eompetant to that community to abrogate the custom. same by their acts and conduct. In Stith P. C. Judgments. Vol lI P. 749, the Privy Council remarked," Their Lordships cannot find any principle or authority for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may not be discontinued; as so to let in the ordinary law of succession. Such family usages are in their nature different from a territorial custom which is the lex loci binding all persons within the local limits in which it prevails. It is of the essence of family usages that they should be certain, invariable and continuous and welt established discontinuance must lie held to destroy them. Ihis would be so when the discontinuance has arisen from accidental causes ; and the effect cannot be less, wheo it has been intentionally brought about by the concurrent will of the family. It would lead to much confusion and abandunt litigation, if the law attempted to revive and give effect to usages of this kind after they had beet' clearly abandoned and the abandonment had been, as in this case long acted upon." A custom in a family that whatever property as garden was Instances of planted by females passed to the possession of females to the ex- uncertain or un- elnsion of all male heirs, has been held to be a custom uncertain reasonable customs. and unintelligible, and not one which could be upheld by the court. Such property was not therefore exempt from sale in execution of a decree against the hnsband of one of the ladies who claimed it. I. B. L. R. S. N. 9.) Similarly a custom that lands shall descend to the wont worthy of the owner's blood is void (Tremlett's. P. C. C. 126.) In Madras the custom of the Rebid' caste according to which a father-in law may disinherit his heir in favour of a situ-in-law is bad Mad. 51.) So a custom alleged by defendant whereby all the inhabitants of Z,enidari had the right of fishing in certain Bhils which admittedly helo,gpd to the plaintiff's Zemiitari was found unreasonable and therefore bad, (I. L. R.9 Cal. 698) and a custom has also been held to la onrelisooable whereby a broker can deviate from his instructions (8 Bola. 11. U Rep, P. 19.) A customary right of privacy under certain conditions, exists in India and is not unreasonable. In the case of building for parda purposes newly erected without the acquiescence of the owner of an adjacent building site, a custom preventing such owner from so build- ILNI to Intel fere with the privacy of the first new building, would be unreasonable and consequently bad in law. But if such adjacent owner without protest or .otice allowed his neighbour to erect; and consequently to incur expenses in construction with a building for the use of Emiia, nashin woman, a custom preventing him from interfering with the privacy of such new building would not in India be unreasno. able. (1. L.11. 10 All 358). Ina suit by collateralp, the defendant pleaded that she had Instances of Im,- lived with the deceased for many years as lawful wife and that the moral customs. minor defendant was her son by the deceased, and rightful heir ; it was }recd by the Chief Court that if the custom contended for merely Interred the existence of marriage from a MI course of coliabitatiou THE PUNJAB LAWS ACT. Instances of it. legal customs. in the avowed character of husband and wile and attached to it the legal consequences of marr:age there would be no valid reason for refusieg to give effect to it, for marriage as a consensual contract would be most satisfactorily established by evidence of this description from which the intention to contract a permanent union could be fairly inferred. But if the custom went further and attributed t. mere cohabitation apart from such distinct Live character, all the legal effects of marriage properly so called, that. would be an invalid custom cenfounding concubinage with the true marriage relation sad confering on .illegitimate offspring the status and right of legitimate children. Such a custom would be bail as encouraging immorality and unjust as depriving the collateral heirs cf their legal rights of succession. (P. R. 29 of 1883). In Mt. Jassan V. Nehala 78 of 1884 a custom rendering a chadar dalna marriage with a woman whose husband is alive was found to be not a'good custom. In another ease of Dhillon Jos P.R. 49 of 1890 it was held, that a custom that a married woman may jut the lifetime of her first bir.band contract a second marriage with another moan and which recognizes the issue by the second marriage as a legitimate heir to the second husband is one to which a court of justice will not give effect. A similar principle has also been affirm - ed by the Bombay High Court in If Bombay IL C. Rep. 117 and I L. It 2 Bombay 140 It has also been held that a custom which authorises a woman to contract a Natra marriage without a divorce ou payment of a certain sum to the caste to which she belongs is an immoral custom and should not be judicially recognised, 7 Bum. A. C. 133.) In Madras it has been held that a practice allowing an association of women to enjoy a monopoly of the gains of prostitution is &custom opposed to morality (I. L. R. I. Mad. 168). It has been held by a majority of the Full Bench of the Chief Court, (Plowden J. dissenting) in P. R. 89 of 1884, that a custom by which the keeper of a brothel is entitled to succeed by right of inheritance to the estate left by her noehi is invalid and is one which should not lie enforced by the Courts as it is not only an immoral custom but opposed to good conscience. And where plaintiff a Naikin as the adopted (laughter first defendent also a Naikin sued to recover a share of the property in the hands of her adoptive mother which the plaintiff alleged to be family property ; held by Mr. Justice West that adeptioa by Naikin cannot be recognized by courts of law and confer no right out the person adopted. (1. L. R. -4 Born. 545). Butthe Madras High Court has, however, held that as a matter of private law the class of dancing women being recognized by Hindu Law as separate des's having a legal status, the usage of that class,. in the absence of positive legislation to the contrary, regulates the rights of status and of inheritance, adoption and survivorship. (I. L. R. 12 Mad. 214.) In a suit by a Khan in the Eusafzai District to recover a sum of money as marriage fees an occasion of his marriage on the allegation that be is by custom entitled to levy much fee, the Chief Court held that assuming the above custom proved, it is not it valid custom such as can be enforced in a court of Law (64 of 1880. P. It.). Under the Hindu system of law clear proof of usage will outweigh the written text of law, (Seth P. C. Judgments. Vol II. 135.) and a custom in contraventiou to ordinary Hindu and Mahomedau law is admissible.(22 W. R 397 and I Boat. 36.) but a custom cannot be admitted to over-ride the provisions of Limitation Act I. L. 11, 3 Boot, 174) Su a usage that the Mahajau's certificate is THE PUNJAB LAWS Act 7 deemed to be conclusive evidence against the underwriter without production of manifest and account sales and that on proof of certificate alone and of the policy, t he owner is entitled to recover his average loss cannot be upheld. (1 Born, 229.) • In Madras a custom that some only of the mirasidars of a village should bind the co-owners of the village lands is valid, (2, Mad. 17.) so also a custom under which the proprietors are entitled to ±th of the proceeds of sales of houses in the village as proprietory dues is not contrary to justice, equity and good conscience, (P. R. 27 of 1882.), nor is a custom unreaeoitable and bad simply because one, village has the right to cut brush iu a neighbouring village for repairs to a watercourse, (P..1? 31 of 1882); and a custom has been held to be valid whereby proprietors make over houses without roofs and in unfurnished conditiov to the non-proprietors for use and eject them at pleasure either on peymeut of compensation or on permission granted to remove the materials. (P. B. 37 of 1890). With reference to this section, it was decided by the Chief Court that unless the parties to the suit expressly declare that they desire to abide by Mahomedan or Hindu Law, the Court is bound to enquire. whether a custom exists contrary to the general rule of law, although the parties themselves have not sued upon or pleaded any such custom. (P. R.81 of 1874 ) But this judgment was subsequently explained by Mr. Justice Barkley in P. R No. 144 of 1883, when the learned Judge remarked. "It is said that before Mahomedan Law is applied it is necessary to ascertain whether there is any custom applicable which should tie the rule of decision uuder section 5 of the Punjab Laws' Act which either modifies the Mahemedan Law or excludes its operation. No such custom was pleaded in the court of first instance. Civil judgment No. 81 of the Punjab Record for 1874 is referred to as an authority for directing an enquiry whether any such custom exists, but in that case there was reason to suppose, that though custom had not been formally pleaded, the decision of the first court was in accordance with a custom of very general prevalence, modifying the Hindu Law. We do not think that it was intended to decide, that in every case which has been decided in accoordance with Hindu amid Mahomedau Law, where there has been no enquiry whether any custom opposed to or modifying that law exists, an appellate court is boned to remand the case for an enquiry as to custom, indems the parties before it admit the applicability of the law in accordance with which the case has been decided. All that we understand that case to decide is that if such enquiry appears necessary the Appellate Court should direct it to be made." The intention of this section is that the primary rule of decision ire all questions relating to the utters specified shall be custom where the custom exists, and that the II indu and Mahornedan Law shall only be applied where no Pilch customary rule prevails. the section does not presume that custom is to govern the parties to the exclusion of ordinary iaw, bet it prescribes tint it shall govern them in certain matters in the first instance and though except, in certain cases where the custom contended for is so general that it may be presumed to exist, the person who alleges the custom contrary to some precept of his personal law is przlna facie bound to prove that custom. The regulation of this burden depends ors the rule of procedure or evidence only in order to ascertain whether the special custom does or does not exist. The role of decision remains the earns and its operation is merely suspended until the aseertainment of a fact, that is, the existence of a euatom. If a custom is proved, it nutlet be applied to the exchis;on of the personal law, if it is not, the second branch of the rule must then receive effect. (P, It, 149 of 1888) Instances of Valid custom. Custom, the primary rule of decision, 8 THE PUNJAB LAWS ACT. (h) the Muhammadan law, in cases where the parties are Mulianimandan, and the Hindu law, in cases where the parties are Hindus, except in so for as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by :any such custom as is above referred tol—Scction 1, Act of 1878. In the al,sence of any proof of any custom, Joins are governed by Hindu Law. (Seth. P. C. Judqt. Vol. III 572.) and Mitakshro Law is applicable to them. (I L. R. 3 All. 55.) Hindu Law also applied in the alisence of any custom having the force of law to the Stoll's. (I. L. It 8 All. 646.) So also to a tribe known all Sukal Dipi Brahmans living in various ports of the Northern India. (9 C. L. R. 16 ) But upon the conversion of a Hindu to Christianity the Hindu Law ceases to hove any continuing obligatory force upon the convert. (9 Moore's I. A. 195 Abraham v. _Abraham) Native Christians are governed by the Succession Act. but where a family of Native Christians continued to observe the Hindu Low ,f succession until the Succession Act altered , their rule of succession the members of the fondly horn before the Succession Act came into operation could not be deprived of he rights acquired by theta under ni,,du Law (1. L. R. 2 Mad 209). Where. A and J brothers Nitive Christians descendants of Brahmans were living in co-parcenai y and -owned certain land on the date when the Succession Act came into force, in 1872, no partition having been mode, A died; it was held that. J. did not take the whole estate on the deal h of A by survivorship. (1. L. R. 10 Mad. 69.) If a Hindu becomes a Christian and (lies intestate the succession to his state is governed by the Succession Act of 1865. !tut there is nothing to prevent a Hindu father from inheriting the property of a Christian son. (I. L. R 9 Mad. 466 ) Similarly, it has been held that a Hindu embracing the Malumiedau religion is bound by Mahomedan haw (2 Agra 61 and 3 Agra 82) and question as to succession of property between parties originally Hindus but embracing Islam must be disposed of by Mahout-medan Law (10 Agra le B. 39.) Although the general pres:imr tion from intimate connection between law and religi-n in Mahomedan faith, is that Mahotnedan Law governs the converts front the Hindi/ religion to Mahomedanism but a well established custom in the case of such converts to follow their old Hindu Law of inheritance would override the general presumption and a usage establishing a fTecial rule of inheritance as regards a special kind of property would given the force of law even lhongh it be in variance with both Hindu rind Mahomedon Law. (1. L. R. 10 Bonn. 1) Be Cut chi Matrons of Borniqty Presidency are,governed by the Hindi. Law of inheri1:tce; L. R. 9 Born. 115) all hough for their not being Hindus, the Hindu Will's Act 21 of 1870 would not apply to theta. (I. L. 11.6 Boni. 452.) Dethions in cases 6. In cases not otherwise specially provided for, the not specially provid• Judges shall, decide according to justice, equity and good ed for. conscience. The rules of equity referred to in this Section are rules of law of What is meant by the nature of broad and general principles recognized by most Flys- equity. tarns of jurisprudence with a greater or Bess distinctness and applied in this country when questions arise for which neither the written nor customany law provides (P. R.91 of 1875.) In his speech on the Native Marriage Bill, Sir James Stephen maid, "The best measure of justice, equity and good conscience with THE PUNJAB LAWS ACT. which I am acquainted and the one which is always resorted to by Indian Courts, is to be found in those parts of the decisions of English Courts, and they are very numerous, which deal not with technicalities peculiar to English Law and English customs but with broad and general principles founded on human nature itself, and recognized with various degrees of distinctness by all and nearly all civilized nations." Aristotle defines equity as " the correction of that wherein the law by reason of its universality is deficient," (Norton's Topics of Jurisprudence 1'. 25). The nature and character of the jurisdiction in equity is thus given by Air. Snell in his Work on the Principles of Equity—"Equity in its most general sense is that quality in the transactions of mankind which accords with natural justice or • . with honesty and right, and which is popularly said to rise excequo et bono.—But in _its sense, that is to say,. es administered in the Courts, equity embraces a jurisdiction- touch less wide than the principles of natural justice for there are many matters of natural justice which the Courts leave wholly unprovided for, partly from the difficulty of forming any general rules to meet them, and partly from the doubtful policy of attempting to give a legal sanction to ditties of so called imperfect obligation, such es charity, gratitude and kindness. In. other words, a large portion of equity in its widest sense cannot be, at least is not, judicially enforced, bet must be, or at least is in fact, left to the conscience of private individuals." The real province of equity was thus described by .Sir Joseph Jekyll in Cowper V. Cowper,- 2 P. W. 753: " The law is clear and the courts of equity right to follow it in their; judgments concerning titles to equitable estates, otherwise great uncertainly anti confusion. would ensue; and though proceedings in equity are said to be Secundum discretioneni boni veri, yet when it is asked bonus est quis? the answer is qui conuslta patrum qui legis juraque servat, and it is said in Rook's case 5 Rep 99b, that discretion is a science not to act arbitrarily occording to man's wills aryl private affections, so the discretion which is executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other ; this discretion in some cases follows the law implicitly ; in others assists it, and advances the remedy ; iu others again it relieves against the abuse or allays the rigour of it ; but in no case does it contradictor overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court, That is a discretionary power which neither this nor any other court, not even the highest acting in a judicial capacity, is by the constitution entrusted with," The Equity is a science and rests with maxims, Eleven maxims peculiars to equity are. (1) Equity will not by reason of a merely technical defect suffer a wrong to be wit1rout a remedy. (2) Equity follows the law. (3) Where there are equal equities, the first in tome shall prevail. (4) Where there is equal equity the law must prevail. (5) He who seeks equity must do equity, (6) He who comes into equity mast come with clean hands. (7) Delay defeats equities. (S) Equality is equity. (9) Equity looks to the intent rather than to the form. (10) Equity looks on that as done wkich ought to have been done, or which has been agreed or directed to be done. (11) Equity imputes an intention to AM an obligation. Maxims. 10 THE PUNJAB LAWS ACT. The following passage as occurring in the tenth Chapter of the fifth book of Nicoinachean Ethics will show what is meant by justice. " The eq,iiiallie is just lie'ng better than a certain kind of just; slid 1 is not better than t he just ' as though it were of a different Juit equilaidr, therefore, arse identical ; alrlcl both beitig f quitable is the lie,ter. The cause of the ambiguity is this, that the equitable' is just, but not that justice which is accord • ing to law, but the correction of the legally just. And the resson of. this is that law is in all cases universal and on some subjects it is not possible to speak universally wilh correctness. In those cases where it is necessary to speak universally, but impossible to do so correctly, the law takes the most general case, though it is well aware of the incorrectness of it. And the law is not, therefore, less right ; for the fault is not in the law, nor in the legislator, but in the nature of the thing; for, the subject-matter of human actions is altogether of this description." " When, therefore, the law speaks universally, and somthing happens differnt from the generality of cases, then it is proper, where the legislator falls short, and has erred from speaking generally, to correct the defect, as the legislator would himself direct if he were then present, or as he would have legislated if lie had been aware of the case. Therefore the equitable is `just' and better than some kind of just not indeed better than the absolute just' but better than the error which arises from universal enactments." Local customs 7. All local customs and mercantile usages shall be and mercantile regarded as valid, unless they are contrary to justice, usages when valid, equity or good conscience, or have, before the passing of this Act, been declared to be void by any competent authority. The subject embodied in the Section has been separately deals with. DESCENT OF JAGHIRS. 8. In all cases in which Government has declared any rule of descent to prevail in any family or families of assignees of land-revenue, such rule of descent shall be held to prevail, and to have prevailed amongst them from the time when the declaration was made. This Section has nothing to do with private property. It deals with devolution of reveune assignments only with which alone the Government is concerned. (P. R. 16 of 1890). As to the rules under this Section refer to Appendix H. PRE-EMPTION„ Right of pre-emp- [9. The right of Pre-emption is a right of the tion. persons hereinafter mentioned or referred to, to acquire, iri the cases hereinafter specified, immoveable property in preference to all other persons. It arises in respect of sales (whether under a decree or otherwise) of im-thoveabie property, and of foreclosures of rights to redeem such property.]—Section 2, Act XII of 1878. What law apnli. Th. ivi,lioniednii Law of pre-emption does not, apply to the Punjab. cab/8 to the runjab. Qiipoionsa unlating to the right of pre-emption should be determined by Ihis Art, subject, to the .ixisit once of any valid custom in Nuch hunt tern, in which the enfereement of a custom has been expressly recognized. (P. .14, 192 of 1888). Rule of descent in, family of assignee of land-revenue. THE PUNJAR LAWS ACT. 11 The object and purpeses for which the right of pre-emption has Object of the law been recognised and eeacted in this Act, is to protect the compnctness of pre emption, of village communi!-_ies ; and in town., to keep out strangers who Tire likely to disturb their peace and comfort, to respect the feelings of the people as regards caste exclusiveness, the seclusion of private life and so forth (Remarks by Powell J. in P. R. 103 of 1889). There is no special definition given of the words " immoveable Immovable pro- property," hence the one given in the General Clauses Act would apply, perty, according to " Immoveable property, includes lands, benefits to arise out of land and things attached to the earth or perintu fastened to anything attached to the earth." And it hes been held by the chief Court that a Haq Biswadari or allowance of 10 p. c. on the revenue is an immoveable property and subject to the right of preemption. (P. B. 61 of 1876). Nor is the word "sale " defined in this Act, This word has been thus definei in the Transfer of Property Act IV of 1882. " 'Sale' is a transfer of owenship in exchange for a price paid or promised, or part paid and part promised." (See. 54) But for the purposes of this Act " sale " cannot he restricted to transfer of ownership alone, inasmuch as the right of pre-eruption extends to rights of occupancy and in some cases to mortgeges as well, and can he claimed in respect of all kinds of rights which fall within the definition of " immoveable property" as above described. The most popular definition of this word has been given in section 77 of the Contract Act which provides. "Sale is the exchange of property for price." But price need not always be iu cash. So, where, in a case it appeared, that defendant 1 agreed with defendant 2 that if he brought a suit for her and succeeded in recovering certain land, she would in consideration of his services and money expended by him in prosecuting the suit, (which was to be borne entirely by him) transfer to him half the land thus recovered and in pursuance of which agreement defendant 2, brought the suit, and on being successful, defendant I transferred half the land to him, on which a suit fo.- pre-emption having been brought the Lower Court dismissed the suit, oil ground that the transaction was not a sale within the meaniegs of the Punjab Laws Act, the Chief Court held this view to be erroneous, and decided that the transaction could not be regarded as anything but sale, and one which by law offorded a basis for e claim for pre-eruption. (P. R. 54 of 1889). In the course of his indgment Mr. Justice Roe remarked " We can see no reason for holding that the term " price" used in Section 77 of the Contract Act does not include consideration of this kind, but should be confined to a cash consideration only." So with respect to a transfer of half a well with the land attached thereto in adhalpi tenure i e. in proprietory right in consideration of the transferee restoring a ruine4 well, and paying a premium in cash, it was held, that it amounted to A sale within the meanings of this Section, so as to he subject to the rixlit of pre-emption, and a pre-emptor who undertakes to carry out all the terms of contract, is entitled to a decree putting him in the plAce of the adhalpidar ((P. R. 157 of 1883.) it has, however, beet) held that in the absence of a proved special custom to the contrary, the law does not contemplate that pre-emption should arise on an exchange of land taking place (P. R. 111 of 1885), the exchange of one plot of land for another not being regarded as it sale, (F. R. 12 of 1884); < (2) He must be of the age of deseretion, (15 TV. R. 548.) A lad of 15 years is considered, to have attained descretion, (I. L. R. 1 Cal. 289, P. C.) (3) If a wife or widow, she must adopt with the express authority of her husband, (I. L. R. 12 All. 328.) The authority may be in writing or by words (7 Moore's I. A. 54.) but it must be strictly proved (12 Moore's I. A. 350.) It may be absolute or conditional, provided adoption, when made, might be valid. Such authorty should be strictly followed, (I. L. R. 2 Born. 377.) The widow may be a minor but should not be unchaste (5 B. L. R. 362.) Adoption may be valid even if effected during the pregnancy if his wife, (I. L. R. 3 Mad. 180 and 12 Born. 105), and an adoption by a widower, (2 Mad. 367,) or by one who has never married is valid (I. L. R. 12 Boni. 329.) But adoption by a person who is disqualified from inheriting an estate cannot confer a better status on the issue. Who may give in The qualifications necessary for one who may give in r/option. adoption are :— (1) The father can give his son in adoption ; but the mother cannot, without the consent of her hnsband if alive (I. L. B. 2 Born. 377,) unless he is permanently absent or has, entered a religious order or has lost his reason, and has not prohibited her from giving the son in adoption, (T. L. B, 11 .111ad. 43.) ADOPTION. Cliff (2) A brother cannot give his brother-in adoption, nor paternal grand father, nor any other relation. (3) The parents cannot delegate their authority to any other person, of the descretion to give in adoption which is solely vested in them. But when the necessary promise. has been made, the act of giving away in pursuance thereof may be delegated to another, (L L. R. 7 Born. 229 and 7 Mad. 548) A leper may give his son in adoption, (W. R. 13 6 4, 173). Persons eligible to be taken in adoption are. <1) The nearest Sapinda should be selected, if suitable_ in other respects and if possible a brother's son. If no such Sapinda can be obtainable, one who is more remote may be taken, and in default of such person, one who comes from the family which follows the same spiritual guide. But it appears to be now settled that adoption of a remote relation is valid even in presence of near relatives who may be suit- able, (1. L. R. 9 All. 253). _ (2) No one can be adopted whose mother the adopter could not have legally married except in the cases of the Sudras. (I. L. R.1 Mad. 62.) But this rule only excludes the sons of women whose original relationship did not allow to render them fit to be his wives (I. L. R. 11 Mad. 49.) Hence a sister's or daughter's son cannot be adopted though brother's son may be. (3) The adopted son must be of the same caste as his adopting father. A Brahman cannot adopt a Khatri boy. (4) The person to be adopted must be one who is not personally disqualified from performing the funeral ceremonies. (5) He must not be more than 6 years old and should be one whose ceremonies of tonsure have not been performed. But this rule is not universal, and among Jains it has been held that the adoption of a son under 32 years of age is valid. In a recent case, the Allahabad High Court has, however, ruled that the ceremony of etpnain representing, as it does, the second birth of a boy, and the beginning of his education in the duties of tribe, is also the ultimate limit of time when a valid adoption can take place. The age of the boy is thus material only as determining the time at which the upnain may be performed, (I. L. R. 9 All. 253.) (6)An eldest son cannot be taken in adoption but this prohibition has been relaxed in certain parts of the country (1. L. R. 2, Cal. 365 and 7 Bon. 225 ;) nor can an only son be adopted, (1 B. L. R. 221 and I. L. R. 14 Born. 249.) And hence the adoption of an orphan is not valid, (2 Mad, 129.) Who 'nay be taket;', in adoption. civ THE HINDU LAW. (7) He must not be the adopted son of another even if the latter be his brother. Ceremony necessary The giving and receiving are the essential elements for an 'or an adoption, adoption, (11 W. B. 196.) In Bengal among three higher classes; the performance of Putresti Jag has been held to be essential to the validity of an adoption in Dattalca form (16 W. R. 179.) But when there is satisfactory evidence showing that the adoption had been continuously recognized for series of years and that the party adopted had been in possession either in person or through his guardian of the property, the court might well dispense with formal proof of the performance of ceremonies, unless it is distinctly proved that the ceremony had not been performed, (11 W. B. 380.) Datta Homan or oblation to fire has always been considered to be an important though not an indispensible part of the ceremony, (I. L. R. 11 Itlad. 5.) No religious ceremonies are, however, necessary in the case of Sudras, (15 W. B. 300.) But it is interesting to remark, that the strict doctrine of the performance of ceremonies is now getting relaxed. In Madra-s- where the Hindus of the most orthodox character live, it has been held that among Kshatriyas an adoption without religious ceremonies is valid, (I. L. R. 6 Mad. 20,) and that the ceremony of Datta Homan is not necessary among Brahmans when the adoptive father and son belong to the same Gotra, (I. L. B. 11 Mad. 5.) In the Panjab, however, the observance of any ceremonies is almost unknown. Result of adoption,. Adoption is tantamount to the birth of a son to the adopter and his rights are very similar to those of a natural -born son. In matters of inheritance, and duties and obligations arising in connection therewith, an adoption transfers the adopted son into the family of the adoptive father, but the ties of blood and consequent disabilites are not obliterated thereby. For instance he cannot marry in his natural family (1 Mad. 420,) an adopted son inherits not only to his adoptive father and to the father and grand father and other more distant lineal ancestors of his adoptive father, but also he succeeds equally like a son to the collaterals of such father, (I.L.R. 10, Cal. 232 P.C.) He is also heir to the family of his adop- tive father's wife or wives and they are heirs to him, (Ibid.) He is also heir to the Stridhana of his adoptive mother. Connection with the The civil rights of an adopted son in his natural family atural are extinguished by adoption. He can neither inherit nor perform funeral ceremonies to the members of his real father's family nor can they inherit to him, and his position is just like one as if he had never born in that family. After-born son. If after adoption a legitimate son has been born, the adopted son is entitled to share along with him, which portion A boljTi311. CV has been said to be, sometimes, one-fourth and sometimes one-third of that of the after-born son, but among Sudras, a legitimate after-born son and an adopted son share equally. In case, however, of the death of the after-born son the adopted son takes the whole property by survivorship, (1 Mad. H. C. 49.) A widow who has obtained authority from her husband cannot be compelled to act upon it, and therefore unless she exercises the authority, the vesting of inheritance in her cannot be suspended. Minority of the widow is no impediment to make a valid adoption, (I.L.R. 18 Cal. 69.) But as soon as she exercises the power, the estate is divested and he becomes full heir ; and his title leads back to the death of her adoptive mother's husband. Where a brother has succeeded in preference to the widow he is similarly divested by such an adopted son. He is entitled to take the whole of that estate and to divest the interest of any person in that estate, whose title by inheritance is inferior to his and who could not have inherited if the adoption had taken place before the death of last male owner ; but such adopted son is not entitled to claim as preferential heir the estate of any other person besides his adoptive father, when such estate has vested before his adoption in some heir other than the widow who adopts him. So where a man died leaving two widows and having given either of them the power to adopt a son, and the younger widow on refusal of the elder one to adopt, adopted a son, it was held that the estate which had vested in the elder widow was divested by the adoption and that the adopted son took all the estate of his adoptive father, (I. L. R. 18 Cal. 63.) But if the estate has gone to a person possessed of a superior right to a natural born son, his title cannot be defeated by such an adoption. When, however, the widow has power to adopt, the fact that she has succeeded to her deceased husband's estate, not as a widow but as heir to her son, does not make any difference. Her power to adopt continues the same as she would have had if her husband had died sonless, (P.R. 30 of 1890.) When an adoption has once been absolutely made and acted upon, it cannot be declared invalid or set aside at the suit of the adoptive father, (I. L. R. 2 All. 366.) Nor can he relinquish his status or be disinherited by his adoptive father, (P. R. 17 of 1878 and 15 of 1877.) IL 1(aritaka form of adoption. liaritaka forms of adoption are those where a consideration is received for giving a boy in adoption. They are now, however, invalid, and the courts cannot enforce specific performance of such contracts (13 B. L, R, Appx, 42.) Adoption by 'widow, Revocation of adop: tion. Karitaka form.' cvi THE HINDU LNW. III. Karitam form of adoption. Karitam son or son made is thus described by Menu, "He is considered as son made, whom a man takes as his own son, the boy being equal in class, endued with filial virtues, acquainted with merit and with sin." To this Mitakshra adds "being enticed by the show of money or land, or being an orphan without father or mother, for, if they be living, he is subject to their control." In this form of adoption there is no limit of age, and no ceremonies are necessary. The consent of the adoptee is necessary, and such consent must be obtained during the lifetime of the adoptive father. He does not lose any claims in his natural family, and is never considered separated therefrom. He only performs the obsequies and takes the inheri- tance. The qualifications of a person to be selected for Dattaka form do not apply in such case excepting that the adoptee must be a person of the same class. A Karitam son is not deprived of his rights of inheritance in his natural family, and his relation with the adoptive father is merely personal. He inherits his adopting father, but not that father's father, nor his collaterals, nor his wife, nor do his sons get any interest in the estate left by his adoptive father. This form of adoption prevails in Mithila. It is doubtful whether this form prevails or has ever prevailed in the Panjab, (P. R. 147 of 1889.) IV. Dwyamushyayan a form of adoption. Originally this term was applied to a son, who was begotten by one man upon the wife of another, but it now refers to the case of a son of two fathers. He is bound to perform oblations both in natural and adoptive father's families, and is entitled to inherit in both. To this form of adoption, the prohibition as to the gift of an only son does not apply. It is either Anitya, or Eitya, the former referring to cases where the boy is taken from a different family after the performance of tonsure, he inheriting in both families, but his son returning to the original Gotra. The latter refers to cases of adoption of the son of one brother by another, when in the case of his being an only son he performs the ceremonies of, and inherits to, both his natural and adoptive fathers. When a man has been adopted in the Dattaka form, he is succeeded as if lie had born in the family of his adoptive father. It has therefore been held that his natural mother cannot succeed to his property, (P, R, 117 of 1889.) Karitain form. Result of such, aclop. Mori. "Where it prevails. Dwyamushyayana. Succession to the property of an adopted on, MINORITY AND GUARDIANSHIP. cvii MINORITY AND GUARDIANSHIP. According to the Hindu Law of Benares School minority terminates at the end of the sixteenth year. The guardianship of a minor is vested in the Suveregn, which is, however, delegated to the natural relations of the child. First of all comes the father, then the mother, if she is fit. In her default or when she is not fit, the right vests in the nearest kinsmen, the paternal relation being preferred to the maternal,. the mother is the legal guardian of an illegitimate child. A child is presumed to have the religion of his father. Therefore the father if he change his religion is not deprived of guardianship over his minor children. He, however, looses his right if, he gives his son in adoption, (I. L. R. 3 Bom,. 1.) A mother loses her right by second marriage and in as much as the change of religion by the mother has the effect of changing the legal status of the infant, the court would remove her from her possession as guardian. A change of religion by the minor would not deprive the legal guardian of his rights as such, and the boy will be compelled tobe removed even against his wish. The personal guardianship cannot be divided between two persons giving one, the personal custody and requiring the other, to pay a certain sum for maintenance, and giving her a separate power to direct the education and arrange the marriage of the minor, (P. R. 144 of 1887.) in appointing a guardian the judge has very wide descretion, but he should exercise it for what is best for the minor, (P. B. 26 of 1886.) As to how this descretion should be exercised, the following passage from P. R. 146 of 1888, may be usefully referred to in which Mr. Justice Rattigan said "now it appears to us that a sound and reasonable descretion would require a court to act upon the rule that the legal guardian ought to be preferred unless he is incapacitated from performing his duty as guardian by reason of some well proved mental or physical infirmity, or by reason of some moral misconduct which would render it essential that the care of the person of the minor should not be entrusted to him. Suppose, for instance, the case of a fat her from whose custody a benevolent or officious friend or relation applied to remove a child on the ground that the petitioner's position, resources and general character rendered him a fitter person to be entrusted with the care of the minor than the father, the child's natural guardian. Could it have been seriously intended by the Legislature that in such a case, the mere relative fitness of the petitioner and the child's legal and natural guardian, according to the unfettered judgment Period of minority. Order of guardianship. Right of guardianship when lost. Appointment of guardian by Court. eviii THE HINDU LAW. of the principal civil court of original jurisdiction of the district should alone determine the question of guardianship ? We cannot for a moment admit that the Legislature could have entertained any such intention." Where there are rival claimants the case should ordi- narily be determined by the following points (1) Which of the parties has a prima facie legal right to the guardianship over the minor whose custody is in dispute ? (2) Is there any valid reason why the person having the legal right should be deprived of that right ? If neither party, has any legal right ; which of the parties is best fitted to take care of the minor, (P. R. 148 of 1888.) Cases in which claims are brought for the guardianship of the minors should not be referred to arbitration, (P. R. 42 of 1882 ;) and a contract whereby the parents of the minor child made over the child to the clergyman for a certain period on certain condition was held to be void under section 23 of the Indian Contract Act (P. R. 140 of 1879.) So where petitioner, being widow and a native christian, made over her children to a missionary executing an agreement, by which it was agreed that the mission should take charge of them and bring them up till they reached the ages of 18 years, and if the said widow should take the children back, she would repay the outlay already incurred together with the costs of the children's maintenance, but the mother having again become Mahomedan instituted an application for the guardianship of the children, and it was found that she was of irreproachable character and was able to bring them up in a manner compatible with their status in life and was also in a better position to control their religious education - than defendants who professed a different religion from that of the children's father, it was held that it would be most beneficial for the interests of the minor that they should be restored to the custody of their mother who on the death of their father was the natural guardian, and it was also held by the majority of the Full Bench that the order of the applicants's appointment should be unconditional without regard to the question whether there were unadjusted claims between the defendant and the Applicant connected with the subsisting custody of the minors and arising out of the appli.-cant's previous conduct, and that the appointment should not be made dependent upon her ability or willingness to satisfy such claims, (P. B. 15 of 1887.) (3) MINORITY AND GUARDIANSHIP. Ci X A minor is bound by the acts of his guardian when done bona fide and for his interest and have been conducted in such a manner as the minor would have reasonably done had he been of full age. The well known Hanuman Pra-shada Panday's case decided by the Privy Council and pub-lished in 6 Moore's, I. A. 393 is the leading authority to determine the powers of a guardian. The principle laid down in that case was that the right of a bona fide encumbrancer who has taken, from a de facto guardian and manager, a charge on land created honestly for the purpose of saving the estate or for the benefit of the estate is not, (provided the circumstances would support the charge had it emanated from a de facto or de jure Manager) affected by the want of union of. the de facto with the de jure title. The power of a Manager for infant heir to charge an ancestral estate is a limited and qualified one to be exercised in a case of need and for the benefit of the estate ; when the charge is one that a prudent person would make in order to benefit the estate, the bona fide lender is not affected by the precedant mismanagement of the estate. The lender is bound to enquire into the necessity for the loan and to satisfy himself that the Manager is acting for the benefit of the estate. If he does so enquire and act honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedant to the validity of his charge, and he is not bound to see to the application of the money. The mere creation of a charge by a Manager receiving a proper debt cannot be viewed as improvident mismanagement, and a bona fide creditor should not suffer when he has acted honestly and with due caution but is himself deceived. Following these principles the Chief Court has ruled in a Full Bench judgment that a bona fide encumbrance created by a de facto guardian for the benefit of the estate and with due regard to minor's interests cannot be impeached by the minor simply because the guardian who purported to act on his behalf was not a guardian legally constituted under law, (P. R. 73 of 1890 F. B.) The burden of proving that the alienation by a guardian was necessary and for the benefit of the minor lies on the alienee, (8 W. R. 3610 and transactions, which are fraudulent, collusive, or prejudicial to the estate of the minor, must be set aside (10 Moore's I. A. 454). Omission on the part of the de facto guardian to describe himself as the guardian of the minor is immaterial. The best test in determining the liability of the estate is whether the alienation would have been reasonably and prudently made by the minor himself had he been of full age ; and a court of equity will not up-hold a bargain which is obviously imprudent and Acts of the guardian. CX THE HINDU LAW. Patification. reckless. So where a widow, the guardian of his minor son, was left after her husband's death, in a state of extreme poverty and she sold the entire property of the .minor for less than one-fourth of its real market value, the object of sale being recited in the deed, the minor's maintenance and marriage, but it was found that the sale was obtained by the vendee by taking' advantage of the guardian's poverty- and there was nothing to show that he had satisfied himself of the actual existence of necessities for which the sale purported to be made, it was held that the recital in the deed of the object of the sale was in itself no evidence of the necessity for the alienation and that the needy circumstance of the minor did not by themselves constitute a sufficient legal necessity for the alienation, (I. L: R. 6 All. 417.) The Bombay High Court has also ruled that the releases, which are obtained by the guardian from the ward immediately after the ward comes of age, are looked upon with suspicion,_ the circumstances must sh( w the fullest delibration on the part of the ward and a perfect good faith on the part of the guardian, (I. L. R. 13 Bonn. 61.) When, however, on a suit brought by the minor, an alienationis set aside, the alienee is entitled to be recouped by the minor to the extent of any portion of the consideration which has been appropriated for the benefit of the minor, (I. L. R. 6 All 417.) Transactions, however, which have been acquiesced and ratified by the ward on attaining majority are binding upon. him. But mere delay after attaining majority in repudiating an alienation made by the guardian does not amount to ratification, (18 W. R. 404 ); Although long delay unaccounted for will raise a very strong presumption against him, (11 W. R. 446.) So where in 1875 when the plaintiff, a minor, 15 years old, relinquished, by a deed, his claim to the estate for R. 12,000, and he attained majority, but took no steps till 1885, when he sued to recover the estate, and on finding that at the time of the execution it was not likely that he would not have understood its effects or that he failed to ascertain it when he attained his majority, it was held that his conduct of aquiescence, moreover, in the deed of relinquishment amounted to a ratification, (I. L. R. 10 Mad. 272.). WILLS. Wills among Hindus were unknown and older authors have not dwelt upon this subject. They are of recent growth and have, now, been recognized everywhere. ower to make will. w Any person of sound mind has poer to make testa- p mentary disposition of the property over which he has absolute rights—Hence, it has been held in Bengal, that a WILLS. cxi minor is incapable of making a will. But a married woman is competent to make a disposition, by will, of property which is, absolutely, at her disposal. Proof that the testator knew what he was about, and that he intended to make disposition of property contained in his will is essential. In determining whether a testator was in a fit mental condition, the circumstance, that he was on the verge of death, is one to be considered, but the mere fact that the testator died shortly after making his will, is not of itself a sufficient ground for invalidating a will otherwise valid, (P. R. 51 of 1882). But where a will was executed in favour of the Mahant of au institution under such circumstances that on the arrival of the writer who was sent for, the testator was unconscious, but subsequently he revived, and the writer proceeded to draft the will, the testator dictating at the request of one of the by-standers who was anxious that the will should be made, but before the writing could be finished, the testator, again, fainted and again recovered his consciousness, when the dictation was proceeded with and the testator affixed his seal and died shortly afterwards, but it appeared that the testator had not till his last moment, taken any steps to make a transfer of the property in favor of the institution, but he had said that being a childless he would make over his property to the Mahant and go on a pilgrimage, it was held by the Chief Court that the testator was not in a state to attend to important business, and the will must be set aside for want of capacity—(P. R. 7 of 1874.) A man can devise by will that property which is so completely under his control, that he may give it away during his life-time. Hence, a man may bequeath his self-acquired property (P. R. 63 of 1880,) and thus disinherit the presumptive heir (I. L. R. 10 Mad. 251.) He can also devise ancestral property, when there is no son or grandson, (0 Moore's I. A. 309.) But a member of an undivided family cannot make a bequest of his share inasmuch as the right of survivorship is at conflict with the right of devise—As to altering the nature of the estate, Mr. Mayne at para. 350 of the Hindu Law says "the rule is that so far as he has the power of bequest at all, he may not only direct who shall take the estate, but may also direct what quantity of estate, they shall take, both as regards the object—matter to be taken, and the duration of time for which it is to be held, and he may also arrange so that on the termination of an estate in one person, the estate shall pass over wholly, or in part, to another person. But this liberty is shackled by the condition that no one limitation, either as regards the person who is to take, or estate that is to be taken, shall violate any of the fundamental principles of Hindu Law." Extent of power Cxii THE HINDU Law. Undue influence. Election. In whose favour will can be made. Form of will. A will does not become invalid merely, because, it makes no provision for the maintenance of a widow. (20 W. R. 147). The will must be free from undue influence. As to what amounts to undue influence, must be determined according to the facts of each particular case. Where the widow making a gift was eighty-four years of age and was on her death bed, and had only the defendant in whose favour the will was made, near her, and who had for some time attended upon the old woman, and supplied her with food, &c., it was found by the Chief Court that the case was not one in which undue influence could be presumed (P. R. 50 of 1872). It has been held by the Bombay High Court that the doctrine of election applies to wills made in India. So where a Hindu widow died making a will, whereby she bequeathed, Rs. 2000, as a legacy to the plaintiff, and immovable property to one K, the defendant's father, both the plaintiff and K being heirs to her husband, and the plaintiff sued for the legacy under the will and for half the immovable property as heir, it was held that plaintiff should be put to his election whether to take the legacy under the will, or half the property as heir to the testator's husband (I. L. R. 14 Bom. 438). The person in whose favour a will is made, must be in existence at the time of the testators death, either in fact, or in contemplation of law. It may be made in favour of an idiot or infant. A bequest to a Sada Bart is valid (I. L. B. 14 Born. 1.) A will, however, cannot be made which contains trusts to accumulate the proceeds of the property. Nor can testator impose conditions in contravention to the objects for which the property exists, or contrary to the policy of law. So, a will for adding alienation within the limits incidental to the estate created, or prohibiting partition, or postponing the enjoyment of the property by the son who is the heir-at-law beyond the period of minority, is invalid—So, a devise to an indefinite class would not take effect. (I. L, R. 15 Cal. 409). For a Hindu, to make a will, no particular form is necessary. A will need not necessarily be in writing ; and in the case of a Hindu in the Punjab, attestation by witnesses is not required, (P.R. 29 of1883), nor does it require to be executed in confirmity with the provisions of section 50 of the Indian Succession Act, 1865, (P. R. 74 of 1891.) In writing a will there is no necessity of any technical words ; and in construing it, attempt should, always, be made to find out the real meaning of the testator. But a will, however, must not GIFTS. cxiii be so vaguely expressed ,that it be impossible to. ascertain the test.ttor's object, nor, should there be anything to be done, which is on the face of it illegal. A bequest may be revoked at his will by the testator. The revocation may be oral, or in writing. In the absence of any declaration by the testator of an intention to revoke a prior will, the mere preparation of a document by his 'direction, which, if executed, would operate as a revocation, bat which was never executed by him, cannot be regarded as amounting to a revocation, (P. R. 27 of 1883.) When a will is revoked, or is one which can never take effect, it will be considered, as if, no will was, ever, made, and in determining succession, law will take its own course. The Probate and Administration Act of 1881, applies to the wills made by a Hindu or Mohaniedan. G I F T S. The power to make a gift under Hindu Law, is determined by the law of alienation. Thus, a gift of ancestral property which was held in specific shares, and of acquired lands and outstanding debts which are the exclusive property of the donor, by a sonless Hindu, is valid, (P. R. 13 of 1883.) Where, however, a father made a gift, to one of his sons, of self-acquired immovable property, on a suit by another son, it was held that the prohibition, by Hindu Law, of such a gift may be on moral and spiritual grounds, yet, it is not declared that, there is absolutely no power to make such acts, and, therefore, the gift was not illegal (I. L. R. _I All. 394). A gift in a sanldap's form by a Hindu widow made for her own spiritual benefit is not valid (P. R. No. 76 of 1885) ; although, a gift for religious purposes by a sonless proprietor of his ancestral land is good (P. R. No. 159 of 1884). But a gift of a joint and undivided property is not allowed, even, to the extent of the donor's share without the consent of the other co-sharers (P. R. No. 48 of 1870). It is a general rule that the possession be given to the donee, and the donee must be the person in existence, at the time of its taking effect, unless he is an infant in the womb or a person adopted after death under an authority from the husband. When there is gift to a class, some of whom are or may be incapacitated from taking, because not born at the date of the gift, it should enure for the benefit of those members of the class who are capable of taking it (I. L. R. 12 Cal. 663). The delivery of possession is riot, however, necessary, where the person taking possession is a minor or lunatic in which case the possession of the donor is enough. EL:ceipt of rent by the donee himself or through agent is a Revocation. Act 5 of 1881. Power to make gift. Conditions' necessary for a valid gift. Cgiw THE HINDU LAW. sufficient transfer of possession (5 Bom. O. C. 83). But a transaction is not valid which is either unaccompanied by possession, or any symbolical act such as handing over title deed or permitting the donee to receive rent (I. L. R. 9 Cal. 854). Mere registration of the deed of gift is not, equal to delivery (I. L. R. 7 Born. 131). But where the subject of gift is incapable of actual delivery, as for instance debts, the assignment in the deed is sufficient to give the donee a good title to them (P. R. .No. 153 of 18.79) ; and when the donee is in actual possession with the donor before the date of the gift, and continues to occupy the property after that date, the mere circumstance that the donor also continues to occupy the same, does not invalidate the gift, the fair inference being that the occupancy of the donor subsequent to gift was permissive occupation (P. R. No. 153 of 1879). So where an absolute and immediate gift was made to the widow of the daughter's grandson who lived with him, and in regard to whom he stood in locoparentis, but it did not appear that it was followed by possession, and the donor ,continued to carry on business in his own name, until his death, which happened some two years afterwards, the gift was found valid. It has been ruled in a case that when the gift is supported by the donor, it is not invalid for the mere reason that the donor had not given possession (I. L. R. 11 Cal. 121 P. C.). Where the donor has relinquished the subject of gift so far as he can and vests it in the donee the possession under the gift shall be deemed to have passed to the donee (I. L. R. 4 All. 40). When gift is made by a person stricken with mental disease, and in expectation of death, the proof as is required to prove a testamentary disposition must be given, and the proof to support such a transaction ought to be sufficient to establish that the donor knew what he was about, and intended to make such a disposition (11 Moore's I. A. 139). Gifts are, however, forbidden by some authors of Hindu Law, to such an extent, as to deprive a man's family of the means of subsistence ; and gifts are considered invalid which are made in fraud of the creditors, But a gift, if bone fide and made with the honest intention of passing the property, is valid as against creditors of the donor. A gift when completed by delivery of possession is binding on the donor and his representatives ; and it has been held by the Chief Court that a gift made from affection to a wife and mother cannot be revoked. (P. R. No. 153 of 1883), Death-bed,. Forbidden gifts. Cifts not revocable. PARTITION. PARTITION. The properties not liable to partition among the co-parceners are : (a) Common zamindaries which are in their nature Raj or sovereignty, or which descend by the special custom to a single member. (b) Properties which are allotted by the State to any individual in consideration of the discharge of particular duties or as payments for an office, whether the duties or offices were hereditary or not, unless they are given for the maintenance of family. (c) Self-acquisitions of any individual co-sharer. (d) The income or savings made from impartible estates and purchases made from such incomes. (e) Places of worship and sacrifice (8 W. R. 193). Any of the co-parceners can claim partition with respect to the property in which he has a right (19 W. R. 189). It may also be claimed by the son, grandson or great grandson. The minority or absence of any of the co-parceners is no bar to partition. A wife cannot demand partition during her husband's life time, but where the partition is made during the lifetime of the father, his wife is solely entitled to her ornaments and furniture of the house. If she is not possessed of any separate property, she is entitled to a share equal to that of a son (I. L. R. 8 Cal. 17). If partition takes place after the death of the father, the mother and grand mother are each entitled to a similar share (I. L. L. 10 Cal. 1017). Similar rights exist in favor of a step mother (I. L. R. 8 Cal. 537)., An unmarried daughter is entitled to property sufficient to defray the expenses of nuptials (I. L. K 8 Cal. 537). But none of the above female members of a family is entitled to demand partition without the consent of the others. When a woman is allowed to succeed to her husband's property who was a co-parcener, she can claim separate possession thereof. Where possession of the estate left by a person was taken by two widows of the deceased who being childless, had before his death adopted a son to whom by will he bequeathed his estate, the adopted son, however, dying soon after the testator, it was held by the. Privy Council that the widow had possessory title and interest in the estate, notwithstanding that a preferable title might exist in others through the deceased legatee, and that the estate being jointly held by them was partible and that either widow might maintain a suit for partition (1. L. R. 12 All. 51) The owner of property cannot by mere contract Property not liable to partition. Persons entitled to partition. cxvi THE HINDU LAW. during his life prevent his heirs from partitioning property after his death, and such a prohibition is not binding upon an assignee of the heir (I. L. R. G Cal. 106) and a clause in the will providing postponement of division for a term of years is void as being a condition repugnant to the gift, and the donees are entitled to partition a once (1. L. R. I Cal. 104). Partition how effected. Partition should in all cases be complete, and should embrace all the joint property, in the absence of any special binding contract to the contrary. A claim for partition of a portion not being allowed (I. L R. 14 Cal. 122), unless such portions are incapable of partition. If in a suit instituted by a sharer for partition of a portion of the joint property without the assent or acquiescence of the defendant, the latter objects, the plaintiff must either amend the plaint with the leave of the Court so as to include the whole of the joint property or such less portion as the parties agree to divide, or submit to have his suit dismissed (P. H .11ro 77 of 1887). A claimant for partition must bring any joint property held by himself into hotchpot. The property which is indivisible in its very nature; as for instance carriages, or livestock must be enjoyed by heirs in turns, or jointly, or sold and its value distributed, or retained by one co-sharer-exclusively and value adjusted by appropriation of corresponding values to the other. It has been held by the Allahabad High Court that in a suit for partition, the Court has no power to partition, as amongst the defendants, the residue of the property left after the partitioning off of the plaintiffs share, when the parties do not consent to any such partition being made (I. L. R. 12 All. 506). In effecting partition, it is necessary first to deduct all claims for debts due from the joint property, and charges on account of maintenance, marriage or family ceremonies which are necessary to be provided for. Then an account is taken of the entire family property held by different members of the family, and to a portion according to shares. No member has got any special claim for mesne profits previous to partition, nor is any charge to be made against a particular member of the family, because he has received a larger share of the joint family income than others, nor can manager be charged for gains or savings which he might have effected nor for extravagance or waste unless they amounted to misappropriation. Nor is a member entitled to any thing because he laid money in improvements or repairs of the joint property, unless any special covenant is shown. In order to find out the proof, required by Hindu Law, of the different modes of partition as prescribed by several authors on Hindu Law, a reference may be made to Mr. Mode of taking account. Evidence of partition. ti PARTITION. Justice Rattigan's Judgment in P. R. No. 13 of 1883. But it being only a rule of evidence it is unnecessary to reproduce the subject here. In order to prove or to effect a partition writing is not necessary. If there be a conversion of the joint tenancy into a tenancy in common of the members •of an undivided family, the undivided family becomes a divided family with reference to the property which is the subject of that agreement, although not immediately followed by an actual division. Much depends on intention ; and the agreement of the family to divide the proceeds of the joint property among its members in definite shares with the intention that each should hold his allotted share in severalty severer the joint interest and extinguishes the rights springing from united family ownership (Suth. P. a Judgts. Vol. III p. 151). It is not sufficient that they should alter the mode of holding their property. They may alter it, but must intend to alter it so as to cease to be joint owners. Definement of shares followed by entries of separate interests in the revenue records if there be nothing to explain it are such facts from which separation may be inferred. Joint family property in the hands of mortgagees may be separated in the state, although there could be no separate enjoyment, of the shares so separated (I. L. R. 10 All. 490). Partition once effected is final and cannot be re-opened Effect of partition. on the ground of inadequacy of shares ; in case of fraud or mistake, however, it may he re-opened (10 Bom. 444), and it has been held by the Privy Council that when a family becomes separate in estate with apportionment of a debt once joint amonc, its several members, the sons of one of the latter on their father's decease are not liable for the whole debt for which at one time, he was responsible jointly with the rest of the family, but only for his portion of the debt (I. L. R. 8. Cal. 656). A re-union may be effected with father, brother or Re-union. paternal uncle. But after partition, the presumption is against re-union, and to prove it joint living or trading with the intention of thereby altering their status must be shown. When once re-union is estabislied, its effect among the members so re-united is as if no partition had taken place. As the normal state of every Hindu family is presumed to be a joint family, there is no presumption in favor of a partition. But where there has been a partition, the presumption is that it has been a complete one, and if any property is afterwards found in the exclusive possession of one member and the question is, whether that property has been divided or not, the burden of proving that it is still divisible, rests on the party so alleging (7 Born, H. C. 153). cxvii Presumptions. cXviii THE IIINDti LAW. Endowment. RELIGIOUS ENDOWMENTS. Dispositions for religious and charitable purposes have been recognized by Hindu Law ; and in case of such gifts delivery of possession is not necessary. Nor, are they invalid, merely, because they transgress against the rule which forbids the creation of perpetuities. The founder may appoint another person to look after the trust, or may himself be the trustee. He has the power of creating a charitable, foundation, and keeping the control over the property absolutely in his hands. Power of a trustee. Succession. Revocation of trust. Where property has, been absolutely and in perpetuity devoted to religious purposes, the trustee cannot encumber or alienate it for his own personal benifit. His powers are. analogous to those of a manap'er of an infant heir (Suth. P. C. Judgts. Vol. III. 375). If only part of the money is re--auired for the benifit of the institution, the alienation will not be wholly void by reason that some of the money was, raised for another purpose. A &ilia fide alienee is entitled to be re-imbursed for so much of the money as has been legitimately advanced (Ibid). On the death of the trustee, the succession is regulated' by the terms of the trust, and an absence of any such valid terms the usage of each particular institution determines the succession. It is frequently the usage that the head of the. institution nominates his successor during his own lifetime-or by will, which nomination, sometimes, requires the confirmation by the members of the religious body. Cases have also occurred, where members of the religious order have right of election. But there cannot be two existing Mahants: at the same time and the office cannot be held jointly (Stall,. P. C. Judgts. Vol. II. 86). The principle of succession upon which one member of an order of ascetics succeeds to. another is based entirely on fellowship and personal associ-tion with that other, and a stranger though of the same order is excluded. (I. L. B. 4 Cal. 543). The disciple of a Guru who leaves his spiritual master wit/lout his permission, and goes to a distant country breaking off all intercourse with his preceptor, and manifesting at the same time an intention to absent himself permanently is not entitled to succeed to his preceptor on his death. (4 N. TV. 101). A religious trust once created is irrevocable by the. founder of it. THE MOHAMEDAN LAW. SUCCESSION. Mohamedan Law is based on Musalman religion. Origin of lifohame.i According to Islam, the Koran is possessed of divine authority. dan Law. The wantings in the Koran are supplied by the Hadis, i.e., the sayings and doings of the prophet. After the death of the prophet, the followers of Islam were divided into two hostile sects, i.e., Sunnies and Shiahs. The Sunnies follow the writings of four followers of the prophet; Abu Hanifa, Abu Abdul Malik, Mohamed Bin Id-rash-Shafi, and Ahmed-ash-Shaibbani, also known as Imam Hanbal. They are, however, rejected by the Shiahs who -accept Ali the son-in-law of the prophet as his successor. But Abu Hunifa is the chief authority among the Sunnies in India. The Law of succession among iilohamedans is based on the following passage of the Koran " God bath thus commanded you concerning your children. A male shall have as much as the share of two females ; but if they be females only and above two in number, they shall have two-third part of what the deceased shall leave, and if there be but one, she shall have the half; and the parents of the deceased shall have each of them a sixth part of what he shall leave if he have a child; but if he have no child, and his parent be his heir, then his mother shall have the third part, and if he have brother, his mother shall have sixth part after the legacies which he shall bequeath, and his debts be paid. Ye know not whether your parents or your children be of greater use unto you. Moreover, you may claim half of what your wives shall leave if they have no issue, but if they have issue, then ye shall have the fourth part of what they shall leave after the legacies which they shall bequeath, and their debts be paid ; they also shall have the fourth part of what ye shall leave in case ye have no issue ; but if ye have issue, then they shall have the eighth part of what ye shall leave after the legacies which ye shall bequeath and your debts be paid." " And if a man or woman's substance be inherited by a distant relation, and he or she have a brother or sister, each of these two shall have a sixth part of the estate ; and if there be more than this number, they shall be equal sharers Bases of the law of succession. C X X THE MOHAMEDAN LAW. Special features. in the third part after payment of the legacies which shall be bequeathed and the debts without prejudice to the heirs." Inheritance according to Suni School. " They shall consult thee for thy decision in certain cases: Say unto them God giveth you these determinations concerning the more remote degrees of kindred. If a man die without a issue and have a sister, she shall have the half of what he shall leave, and he shall be heir to her in case she have no issue but if there be two sisters, they shall have between them two-thirds of what he shall leave and if there be several, both brothers and sisters, a male shall have as much as the portion of two females. There is no distinction observed according to Mohame-dan Law between ancestral and self-acquired, real and personal property. The females when they succeed are possessed of full proprietary rights in their respective shares and are not restricted in their dealings. Mohamedan Law does not recognise any right by survivorship (P. R. No. 101 of 1882), nor is any right of representation allowed although inheritance may partly ascend lineally or partly descend lineally at the same time. So it has been ruled that whatever may be the position and rights of a husband being the only surviving heir of his wife, there is no representation in matters of succession and therefore the rights do not descend to the heirs of the husband, who predeceased the wife and who are themselves no relations of the wife. After dissolution of marriage contract by death or otherwise the parties and their heirs have no more relation to one another than the heir of quondum partners in the same mercantile house (I. W. R. 152). A grandson, therefore, whose father had predeceased his father will not inherit with his uncles. No right of primogeniture is allowed and all sons whatever their number succeed equally (I. L. R. 3, page 723). The estate according to Mohamedan Law cannot be limited to take effect after the determination on the death of the owner, of a prior estate by way of what is known to English. Law as vested remainder so as to create an interest which can pass to a third person before the determination of the prior estate (I. L. R. 11, Cal. 597). Three kinds of heirs are recognised by Mohamedan Law :— (1) Sharers. (2) Residuaries. (3) Distant kindred (11 W. R. 220). Sharers are those to whom specific share is allowed. Persons entitled to the residue or the surplus after the allotment of the shares arc called the residuaries, And those SUCCESSION. cxxi who neither being sharers nor residuaries are entitled to inherit as relatives of the deceased when there are neither sharers nor residuaries are called distant kindred. The following relations fall within the category • of Sharers. sharers (1). The father. (2). The true grand father. Referring to and including persons in which no mother enters, i.e., Father's father, father's father's father. Mother's father's father, mother's mother's father, father's mother's father are false grandfathers. (3). Half-brother by the mother. (4). Daughters. (5). Son's daughter including son's son's daughter and how low soever. (P. R. No. 66 of 1891). (6). The mother. (7). The true grandmother. Referring to and including female ancestors as mother's mother, mother's mother's mother, mother's father's mother, father's mother's mother, and so on. Mother's father's mother, father's mother's father's mother are false grandmothers. •(8). Full sister. (9). Half sister by the father. (10). Half sister by the mother. (1.1). Husband. (12). Wife. Among the above relations, as a rule, descendants exclude :all relations. Parents,' children, widower and the widow are the persons simultaneously called to inherit. The respective shares to which each of the above relation is entitled is as follows:— (1). The father's share is the one-sixth when the deceased has a son or the son of a son him surviving. (2). When there is no father, the share of the father's father is one-sixth. When there is no child, father or true grandfather, one-third is time share of two or more children of a mother whether they be male or female ; and one-sixth when there is any of the above relations, (8). THE MOHAMEDAN LAW. ,Residuaries. (4). When there is no son, but there are two or more daughters, they get two-thirds, and one-half if there is one daughter. When there is no child or son's son, the son's daughter if one gets one-half, and get two-thirds if they be two or more ; but her share is one-sixth, when there is one daughter and no son .or son's son. (6). The mother gets one-sixth when theldeceased has left a child or son's child how low soever, or two or more brothers and sisters, and one-third when there is none of these relations. When allowed to succeed the grandmother gets one-sixth. . (8). When there are no sons, son's son bow low so-ever, father, true grandfather, daughter, son's daughter or brother, to exclude her, a full sister gets one-half, and when there are two oromore full sisters, they get two-thirds. (9). A half sister by the father in the absence'of a full sister gets one-half, but cif they are more than one they get two-thirds. (10). When there are two or more half sisters by the mother, they get one-third. (11). Husband gets one-half when the deceased has got no child nor child of a son how low soever ; and one-fourth if there is any. (12). The wife or wives have one-fourth, if the deceased left no child or child of a son and one-eighth when the deceased has left a child or child of a son (P. R. No. 104 of 1882). By way of illustration it may be useful here to note that the daughters of the deceased brother of a person who demised cannot take any share so long as a brotherand sister or only a brother survives (10 N. R. 306). A widow and two daughters are entitled between them to nineteen-twenty-fourth of the property of their deceased husband and father in proportion to ith and irds (5 TV. R. 221). Residuaries are of three descriptions :— (1). Residuaries by themselves or in their own.right. (2). Residuaries by another. (3). Residuaries with another, (5). (7). SUCCESSION. CXXiii 1. Residuaries by themselves or in their own rights comprehend every male into whose line of relation to the deceased no female enters. 2. The residuary by another refers to every female who becomes a residuary by right of certain co-existent male relations. 3. The residuary with another are those females who become residuaries with another female. In the first class come all persons who are the offspring of the deceased, the offspring of his father, the offspring of his grandfather. The son is the nearest residuary, then comes son's son, then the father, then the father's father, then full brother, then half brother by father, then the son of a full brother, then the son of the half brother by the father, then the full paternal uncle, then the half paternal uncle, etc., etc. The second class includes such persons as a daughter by a son, a son's daughter by a son's son, a full sister by her brother, and a half sister by the same father by her brother. The rule that a male takes twice as much as a female equally applies in this line of succession. The third class refers to such persons as full sisters and half sisters by the father with daughter or daughter's son. Among them the nearers are preferred to more remote, the full blood being preferred to the half blood. Thus a half brother by the father being excluded by a daughter, and a full sister and a full brother excluding a half brother, and a half brother excludinat' a full brother's son. Emancipators have been designated residuaries through special cause. In case when there are several residuaries in the same degree per capita is the rule of decision and never per stirpis. Thus it has been held that the descendants in the male line of the paternal great grandfather of an intestate are within the class of residuary heirs and entitled to take to the exclusion of the children of the entestate's sister of the whole blood. (1 .Mad. 92), and the descendants of paternal grandfather's brother are entitled to rank among residuaries and are preferred to granddaughters (8 W. R. 39). A step sister is also one of the heirs and in the list of the residuaries (2 Agra. Pt. 2 p. 162). The succession of re-siduaries in their own rights is as unlimited in the collateral as in the direct line where it is expressly said, how low or bow high soever (21 W. It. 371). According to Mohamedan Law there may be renunciation of the right to inherit, such cxxiv TUE M611ANIEDAS LAW. renunciation need not be expressed and may be implied from, ceasing, and desisting from prosecuting a claim maintainable' against another (17 LTV. R. 108 P. C.). Distant kindred, The distant kindred are of four descriptions (1). The children of daughters and of sons of daughters. (2). False grandfathers and false grandmothers. (3), Daughters of full brothers and of half brothers, by the father, the children of the half brother by the mother and the children of the sister. (4). The paternal uncle of the mother, viz., the half brothers of the father by the same mother, and their children, paternal aunts and their children, maternal uncles and aunts and their-children, and the daughters of the full paternal uncles and half paternal uncles by the father. In the succession among the distant kindred. too, the well known principle of the nearer excluding the more remote is fully observed. In case of equality in degree, the child of an heir whether he is a sharer or residuary is. preferred. In case of there being no child of au heir, each is entitled to an equal share. If there be two relations equal in degree the one related through a share is preferred. The principle of the male getting twice as much as. the female being also applicable. The grandsons and great grandsons of the great grandfathers- of the deceased are neither sharers' residuaries nor distant relations (P. R. No. 54 of 1890). The rules for allotment and distribution of the le2al, shares among various claimants according to the Shia School is the same as among the Sunnies. But the following points wilt show a marked difference. If there is any heir of the first degree, even if she is a female, none of the 2nd degree can inherit, and it is only in the absence of the heirs of the second degree that those of the third can claim. (1.). In the distribution of the estate, the Shias make no distinction on the ground of agnates and cognates. The Sunuies prefer agnate, but the Shins give preference to the nearest of kinds without reference to sex. Difference in the Rules of succession in the Sunni and Shia School. S UCCESSION. CX X 'it (2). The eldest son, if worthy, is entitled over and above his legal share to his father's swords, his Koran, his wearing apparel and his ring. While among Sunnis in the number of shares of the property an increase is allowed where it is insufficient to satisfy the claims of all the heirs, it is not allowed according to the Shia School. In case of a husband, a daughter, and parents while according to the Sunni doctrines. the property is divided into thirteen parts, to, enable the daughter to have her six shares,. according to the Shia School there will be only twelve shares and the daughter shall have only five. According to. Shia School a deduction is only to be made from the share of such heir who, under certain circumstances, may be deprived of a legal share or whose share would admit of diminution. According to the same school the surplus, after distribution of assets, reverts to the heir and in case of their being no heirs, to the sharers in proportion of their shares. (4). If there are bretheren the mother is not entitled to share and where there is a person claiming double relation, he holds the surplus exclusively. When there are no heirs the husband takes the full estate of his wife but in the case of husband's death without heirs, the wife takes one-fourth only and the residue goes to the Crown. In the absence of any children, the share of the husband is one-half and of the wife one-fourth. And when there are children, the husband gets oue-fourth and wife one-eighth. In the case of a wife married to a sickman who dies, without consummating the marriage, she does not inherit his estate nor does the husband, if the wife dies under the same circumstances. But if a sick woman is married and her husband dies, she shall inherit, although. the marriage be never consummated. The husband is entitled to share in the return but the wife is not. Difference of allegiance and homicide whether justifiable or accidental do not exclude from (3)- (5). (7). (8). (9). Cxxvi THE MORAMEDAN LAvr. inheritance as they do among Sunnies. The true heirs of a deceased person must be determined with reference to the sect to which the deceased belonged at the time of his, death. So where a Mahomedan widow who was by birth a Sunni, but whose husband had been a Shia, had during her married life confirmed outwardly to his religion, but it was found that after husband's death throughout her widowhood she was a Sunni, it was held by the Privy Council that the succession must be governed by the Sunni Law (I. L. B. 12, Alt 290). 1. According to Shias there are three degrees of heirs (a). By virtue of consanguinity, (b). By virtue of marriage, (c). By virtue of a wilta. Willa is that sort of inheritance which occurs from mutual agreement between two persons who engage each to, be heir to the other ; and that which is derived from freedom granted and the emancipator acquires a right of inheritance. He is, however, now restricted under the provisions of Sec. 3,. Act 5 of 1843, which enacts " no person who may have acquired property by inheritance shall be dispossessed or prevented from taking possession thereof on the ground that person from whom the property may have been derived was, a slave." The provisions of this Act have been held by the Privy Council to apply not only where the person whose property is cldimed has been emancipated after the passing of the Act, but also where he has been emancipated before its passing (I. L. R. 3 Born. 422). Ezclvsion from an The following things cause exclusion from inheritance inheritance. (1). The nearer in the line of heirs excludes those who are not so closely allied to the deceased. (2). Persons who are slaves, infidels or differing in religion or causing homicide are also excluded. Homicide causing exclusion must be intentional and such as would render expiration necessary. (3). Illegitimate children or those born of fornication or adultery cannot inherit nor can an illegiti- mate brother be an heir. PARTITION. cxxvii If the husband does not avail himself of the right of divorce the widow does not forfeit right of inheritance by unchastity, wife being one of those heirs who are not liable to exclusion uuder any circumstances (37 of 1888). PARTITION. There are seven rules of distribution, three are the Rules of Distribu• results of a comparison between the number of heirs and the tv" number of shares, and four are the result of a comparison of the number of each set of heirs and their respective shares. The first rule known as mutawasil occurs when the Mutawasil. number of heirs and the number of shares exactly agree, as in the case of a father, a mother and two daughters. The second rule which is termed as Mutawafik or com- Mutawafik. posite takes place on a comparison of the number of heirs and number of shares, as in the case of the parents and ten daughters. • The third rule which is called Mutabayun takes place Mutabayun. when on a comparison of the number of heirs and the number of shares it is found that the heirs cannot get their shares without a fraction, as in the case of parents and five daughters. The fourth occurs when on a comparison of different sets of heirs, it is found that all are mutawasil or equal and certain sets cannot get their shares without a fraction, as in case of six daughters, three grandmothers, and three paternal uncles. When it appears that heirs cannot get their shares without a fraction and the sets are mutadalchil or concordant the 5th rule occurs, as in the case of four wives, three grandmothers, and twelve paternal uncles. The sixth takes place when on a comparison of the different sets of heirs it appears that some of the sets are onutawafik or composite as in the case of four wives, eighteen daughters, fifteen sisters and six paternal uncles. - The seventh rule is to be adopted when it appears on a comparison of the different set of heirs that all are mutabayun and one does not agree with another as in the case of two wives, six sisters, ten daughters and seven paternal uncles. Increase takes place when it is found on a distribution Increase. of the heirs that they are less than shares of the property and all the claimants cannot have what they are entitled to. In this case the shares of the property are raised to the number of shares and the deficiency is distributed over all the shares in proportion to their shares. THE MOTIAMEDANr TAW. ,Returns. When it occurs. Who are entitled to .ilte return. What is Marriage. The return is the reverse of the increase and means proportionate increase, whereas the so called increase means proportionate deduction. In both cases principle-of distribution is the same. The difference being that in the case of return the share of the husband or wife is deducted and the remainder is distributed among the sharers in proportion to the fractions of their original shares. It takes effect in the following 'four cases :— Where there is only one class of sharers unassociated with those not entitled to claim the return as in the case of two daughters or two sisters. '2ndly.— Where there are two or more classes of sharers unassociated with those not entitled to claim the return, as in the case of a mother and two. daugh ters. 3rdiy.—Where there is only one class of sharers associated with those not entitled to return as in the instance of three daughters .and a husband.. 4thly.—Where there are two or more classes of sharers associated with those not entitled to claims 'of return as in the case of a widow, four paternal grandmothers and six sisters by the same mother only. • • The persons entitled to returns are the mother, the grandmother, the daughter, the son's daughter, full sister, half sister by the father and half brother or sister by the mother. A widow has no claims to share in the return or residue -of her husband's estate as against other heirs (I. L. R. 11 Cal. 14). But in default of other sharers and in the absence of distant kindred., the widow is entitled to the returns (I. L. R. III. Cal. 702). . MARRIAGE. Marriage is a contract which has for its object the conferring of status on' the children that issue from it. Its effects are described by Mr. Mac-Naughten as to legalize the mutual enjoyments of the parties, to place the wife under the dominion of the husband, to confer on her the right of dower, maintenance and habitation, to create between the parties prohibited degree of relationship and reciprocal rights of inheritance, to enforce equality of behaviour towards all his wives on the part of the husband and obedience on the part of the wife and to invest the husband with a power of correction in CiASCS of disobedience. Under Shia as well as Sunni' MARRI..40E. cxxiz Law, any connection between the sexes which is not sanc-lioned by some relationship founded upon contract is denounced as "zina” of fornication ,; sexual intercource between a Mohamedan woman and a man who is not of his religion is prohibited ; according to the Shia Law marriage must in all case be lawful except when 'there is error on part of both P,9,gentials of a valid marriage. •or either of the parents (14 TV. R. 125). Nikita form of marriage is established and issue of such marriage is legitimate (18 W. R. 28 C. R.) and under Shia Law illuttct form .of marriage does not admit of repudiation (I. S. R. 8 Cal. 736). For the accomplishment of a valid marriage there must be proposal and unconditional acceptance. The marriage is void if the contracting parties do not possess understanding, and voidable if they be under puberty .and marry without the consent of the guardian. But the consent of au apostate father is not necessary (13 B. L. R. 160); and wilen the nearest guardian was precluded, from .giving consent, the mother's consent was held valid (13 B. L. R. 163' note). The contracting parties must each hear the words spoken by the other, and the marriage must be contracted in presence of more than one competent witness. Freedom, sanity, puberty and Islam are the requisites for the coin petence of the witnesses, and it is necessary that one of them should be man, and •the witnesses must hear and understand the wards of both the contracting parties. The consent of the woman must be given if she has arrived at the age of puberty. The assent of the girl if vergin may be inferred from her silence when the matter is propounded to her, but a woman who is not so, should be put to the trouble of giving expression by actual speech to her assent. It may, however, in some cases be presumed from the conduct and behaviour of the parties. The husband and wife must both be known and identified and there should be no ambiguity or confusion in respect of the parties. The wprnan must be one who can be lawfully contracted to the man and must riot be within the prohibited degrees. But a Sunni is not incapacitated from marrying a Shia ; and the marriage of a .1110hainedan is valid with a Christian, Jew, and believer in one God. By Mohamedan Law all ascendants on either the Prohebited degree. father's or mother's side, all descendants, sisters, and half sisters, and their descendants, the descendants of brothers, aunt, paternal, and maternal, and the aunts of his ascendants are prohibited to a man on account of consanguinity ; on the score of affinity marriages are forbidden with the ascendants cxxx THE MOHAMEDAN law. Unequaiity of parties Power of guardians, dee. or descendants of a man's wife or with the wives of his descendants or ascendants. This prohibition of affinity is established by illicit intercourse as well as any marriage. Again every woman who is prohibited by reason of consanguinity or affinity is also prohibited by fosterage. Nor can a man at the same time be married to two women, who are so related by consanguinity and fosterage, that if either of them be supposed to be a male, it would be unlawful for them to intermarry. It is also, not lawful for a man to marry a woman whom he has repudiated three times until another husband has consummated with her. What is meant by The prophet has said, " women " are not to be married except to equals ; and on ground of unequality between parties to the marriage, the parents and guardians have power to set aside marriage if it has taken place without their consent. Thus a father can set aside the marriage on the ground of unequality if it has taken place without his consent, the consent of brides brother and mother notwithstanding (1, Agra 130). equality. In determining equality the following circumstances are to be considered— (1). Descent and lineage. (2). Tho Islam of paternal ancestors, the one who has had more paternal ancestors moslem is superior to one who has had less. Status of the persons e. g., the slave is not equal to a free woman. (4). Amount of property, that is to say a man should have enough to pay the dower and find the maintenance of his wife. Piety and virtue. A. profligate man is not equal to a good girl. Jf the father under the impression that he was marrying his daughter to a virtuous husband and one who does not drink, find him afterwards to be an inveterate drunkard, the marriage is avoided. (6). Trade and business. This power of veto in favour of parents and guardians exists till the woman gives birth to a child but not afterwards. If the husband has consummated the marriage, he is liable for whole of the dower and for maintenance during the Iddat. Right of woman on According to Abu Hanifa, a woman after arriving at tataininq property. the age of puberty without having been married by her (3). (5). • MARRIAGE. cxxxi father or guardian becomes legally emancipated from all guardianship, and can select a husband without reference to the wishes of the father or guardian, but according to the doctrine of Shafi, a virgin, whether before or after puberty cannot give herself in marriage without the consent of her father. After attaining puberty, a female of any one of the four sects can elect to belong to whichever of the other three sects she pleases, and the legality of her subsequent acts will be governed by the tenents of one whose follower she may have become. A girl whose parents and family are the followers of Shafi and who has arrived at puberty and has not been married or betrothed by her father or guardian can change her sect from that of Shafi to that of Hanifa, so as to render valid a marriage subsequently entered into by her without the consent of her father. (1 Bombay 236). According to the Shia, marriages are Fazooli only and incomplete until they are ratified by assent ; a marriage of a minor is, however, binding and irrevocable if contracted by the father or grand-father, but not when contracted by guardians of lower degree. A Fazooli marriage requires the assent of the minor after attaining puberty to perfect it (Suth. P. C. Judgts., Vol. II. p. 830). A marriage of a minor in Fazooli form contracted by. her paternal grand mother after the death of the girl's father which had not been assented to by the girl after attaining puberty is imperfect and can not create any rights or obligations. According to the Sunnis, marriages by minors are voidable only (i.e., complete unless avoided) and the option of dissent must be declared by the girl as soon as the puberty i3 developed, but according to the Shias, the matter ought to be propounded to her so that she may advisedly give or with-hold her assent (26 W. R. 26). Where the father of the girl having turned a faqir, divorced his wife and made over the girl to her mother in lieu of dower and relinquished all claims to her as her father, the girl living with her mother, was married by her abcut a year before suit to the plaintiff with whom she lived apparently as a wife for a few months, when she was taken away by the father and married the second defendant, it was held that plaintiff's marriage was valid according to Mo-hamedan Law. The conduct of the father in turning faqir and making over the girl to her mother showed clearly that he intended to commit the guardianship of the girl to her and this delegation empowered the mother to contract a valid marriage on behalf of her daughter, and though by Mohamedan Law a minor female whose marriage has been contracted by any guardian other than the father or grandfather has option on arriving at puberty of either ratifying the marriage or cancelling it, such option must be exercised CXXXii THE MOHAMEDAN LAW-. immediately on attaining puberty and if the marriage is not then repudiated it will be deemed babe ratified. (51 of 1888,. 53 of 1875). A question of expediency or policy must not be allowed: to interfere with the strict administration of the law by which' the parties are governed. If the contract of marriage is, entered into by a guardian other than the, father or grand father, the infant may dissolve marriage on corning to age-provided that such a delay does not take place as. may be• construed into acquiescence. In case of a virgin). silence on, first suitable occasion, when. repudiation is 'practicable- amounts to acquiescence. (P. 157 of 1879). Proof of -narriage. Continual co-habitation and acknowledgment of. parentage-and that her children lived as legitimate children is pre-sumptive evidence of marriage and legitimacy (3 Moores 1.. A. 295) co-habitation means something more than mere residence in the same house. It should be shown that cohabitation continued,, that the children were born, and the. woman was treated as a wife, and lived as such and not as a servant (2 Agra 211). The celebration of the 7th month of pregnancy and the celebration of the birth of the- son are sufficient to prove marriage and legitimacy of the. children. (11 Moores 1.. A. 177). Diss.ulution of marriage. The wife may be acknowledged,. but the. acknowledgment which the- Mohamedan Law requires as proof of marriage should be specific and ditinite. The mere fact of a man keeping a woman within the Farda and treating her to outward semblance as a wife does not necessarily in absence of express declaration and acknowledgment constitute the fiction of marriage (20 W. R. 352). Nor are lapse of time and propriety of conduct and the enjoyment of confidence with powers of management. reposed in a woman sufficient to raise the presumption that she is his lawful wife. (11 Moores I. A. 194). Nor a mere declaration by the woman in a mortgage deed executed by her, that she was the wife. of the plaintiff, is any evidence of the removal of the legal empedirnent to the re-marriage created.by the 'divorce (7 TV. B. 268). If a Qazee is present at marriage which is disputed with a chew of probability he should ordinarily be called as a witness when the marriage is to be proved (Suth.. P. 0. Jdts.., Vol. H. p. 883). When one of the parties adopts a Christian religion that party renounces Islam,. and such renunciation terminates the relation of husband and wife. (P. R. No. 132 of 1884). But where the husband in a fit of auger uttered disrespectful, language regarding the law and the prophet, but there was DIVORCE: cxxxi ti nothing to slew that he intended thereby to be understood that he had no belief in Mohamed with respect to all that came down to him from Almighty God or that there was any intention on his part to apostatize, it was held that marriage between the parties was not dissolved (P. R. Ho. 106 of 1891). DIVORCE. It is either revocable or irrevocable, and its effect is total separation between the parties on completion of " /Matt," when it is revocable, and without such completion when it is irrevocable. There are two forms of divorce :- 1.—Talaq. 2.—Kh ulla. A divorce by Talaq is the act of the husband without any assigned reasons .or grounds for so doing. It does not become irrevocable unless it is repeated three times and between each time the period of one month must intervene within this interval the husband has the power of taking her back. But when it has become irreversible the husband cannot again cohabit with her (W. B. 1864, 33), and to entitle him to do so, the wife should be married to some other individual and separated from him either by death or divorce. When a man divorces his -wife, it is necessary that be be sane and adult, a divorce by a boy who has not attained puberty is invalid, but repudiation by a drunk man who has not been made drunk against his will or for a necessary purpose is valid. No special expressions are necessary to constitute a valid divorce, nor except when the repudiation is final, need the words be repeated thrice. If the divorce pronounced is liable to be, but is not, revoked within the period of " Iddatt" it becomes final. (I. L. B. 12 Mad. 63). A charge of adultery against his wife does not operate as a divorce (3 W. R. 93). But making a declaration to the town Qazee in the shape of a letter to the wife that he had divorced her and repeated the divorce three times successively directing the letter to be sent to the wife, has been held to be a sufficient to prove a divorce, although there was no evidence of her having received the letter (6 Mad. 452). The mere pronunciation of the word " Talaq " three times by the husband without it being addressed to any person is not sufficient to constitute a valid divorce. Semble : :that a divorce pronounced in due form by a man against a woman who is in fact his wife, dissolves the marriage, though he pronounces it under a belief that she is not his wife I. L. Divorce. Mode of divorce. cxxxiv THE MOHAMPDAN LAw. R. 4, Cal. 588). Using an expression to the effect that the husband would not regard her as his wife, and would not receive her back, constitutes a divorce which becomes absolute if not revoked within the time allowed by law. (I. L. R. 2, All. 71). So also, divorce by one acting upon compulsion from threats is effective (12 W. R. 460k ,Khztlia. A divorce by Khui/e6 is a divorce, with the consent and: at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In this case, from the moment that husband repudiates the wife, the separation takes place and becomes, at once complete and irrevocable (8 Moors I. A. 379). A Khulla divorce is valid though granted under compulsion (I. L. R. 3, Mad. 347). But where a Mohamedan taking another wife agreed to divorce his first wife in four months and the wife agreed to renounce the dower, but after four months no divorce was made, it was held by the Chief Court that there was no Khulla and that the agreement was void (P. R. No. 193 of 1889. See remark by Stogdan at p: 685). • proof of divorce. The Mohamedan Law does not provide for the nature of evidence required to prove a divorce (2 W. R. 208), but it has been held that although writing is not necessary to the validity of divorce, yet where it takes place between persons, of rank and property, and where valuable, rights depend upon marriage and are effected by the divorce, the- parties- for their own security may be expected to have some. document affording satisfactory evidence of what they have done (2( W. R. 214); and an instrument of divorce signed by the husband in the presence of the wife's father and in the absence of the wife has been held to be valid (8 W. B. 23). But a divorce is not to be presumed simply from the fact of the husband having taken another wife to live with him, in consequence of which his wife leaves his house and lives with a relative, nor from the fact of the husband's stating in his. will that he has no wife lawful or 1Vicca (1, Ind. Jurist N. S. 221). Right of divorce by When a husband entered into an agreement with his• wife. wife, authorising her to divorce him upon his marrying a • second wife during her life, and without her consent, it was held that Mohamedan Law sanctioned such an agreement, and that on proof of the husband re-marrying without her consent, she was entitled to a divorce (15 W. R. 555). " IDDATT." When a man divorces his wife after consummation, whether the marriage were valid or not, or when a separation takes place under the options of puberty or want of equality, Iddati, IDDATT. cxxxv the woman has to keep an " Iddatt" for three lunar months, or if she be pregnant, till her delivery. The " Iddatt" of a woman on the death of her husband is four months and 10 days (P. R. No. 38 of 1887), whether the marriage has been consummated or not, or till delivery, if she be pregnant. Whilst keeping her " Icidatt," the woman ought to remain in seclusion in her own house. In case of revocable divorce, the husband can recall his wife before she completes her "Ioldatt." Where a Mohamedan woman was divorced and she remarried without observing an " Iddatt," the Court declared her 2nd marriage null and void (P. R. No. 43 of 1882 Cr.), and dismissed the suit of her second husband for restitution of conjugal rights (P. R. No. 31 of 1873). DOWER. Dower is the property which is incumbent on a husband either by reason of its being named in the contract of marriage or by virtue of the contract itself in exchange of the usufruct of his wife. The dower must be something that is corporeal and Valid dower, possesses value. The lowest amount is ten direms coined or uncoined, but there is no maximum limit. Reciprocal marriage engagements do not constitute a valid dower, in such case each woman is entitled to her proper dower. When the thing assigned for dower is not a fit subjectproper! What is for dower, either as being incorporeal or having no value, or dower. when the thing assigned is not in existence at the time, or when the dower is left to be fluxed by the husband or wife or a third party, in all such cases the wife is entitled to her proper dower. The amount of "proper dower " is to be determined with reference to the women of the family of her father when on a footing of equality with her in respect of age, beauty, city, understanding, religion and virginity. Where the Court finds that the amount fixed as dower was merely nominal, and neither party intended that the Kabin-nama (deed of dower) should be acted upon, the woman would be entitled to her proper dower to be determined according to the principles laid down by Mohamedan Law (P. R. No. 123 of 1880). It is usual to divide dower into two parts, moowujjul or prompt, which is immediately exigible, and Bair moowujjul or deferred, which is not exigible till the dissolution of marriage. But the payment of the prompt dower is also frequently postponed till that time. When nothing has been said as to what part of the dower is to be promptly paid, with the view of determining how much of such dower should be " prompt," both the Dower defined. Prompt and defer• red dower. How prompt dower to be adjuaed. 4.X'X' X Vi THE MOHAMEDAN L. woman and the dower mentioned in the contract are to be taken into consideration, but what is customary must also be taken into consideration (1. L. R. 1, All. 506, 483, 2 Born. .307). In a case arising in the Punjab, where the plaintiff sued her husband for Rs. 100 as prompt dower., producing a " Kabin-nama" in which a dower of Rs. 300 was recorded, out of which plaintiff made the defendant a present of Rs. 100, one of the defendant's pleas was that the whole sum was the deferred dower. No custom was proved under which the whole of the dower in such cases could be regarded as deferred when no part of it had been expressly made prompt, it. was held with reference to the above plea, that the plaintiff was entitled to recover rd of Rs. 200 as prompt dower (P. R. No. 109 of 1880). This judgment was again followed by the Chief Court (P. R. No. 5 of 1891). Cf Suth. P. C. Judgts., Vol. II. p. 823. , A deed of dower is not indispensable to the truth and validity of a claim for dower (1 Ind. Jus. N. S. 26), and a verbal contract of dower for- a large sum is admissible, if proved by most clear and satisfactory evidence (4 W. B. 110), but the very best description of oral evidence is absolutely necessary to support a claim for dower where no ".Kabin-nama" is produced (11 W. R. 65). The limitation for the recovery of dower is three years: In case of prompt dower the time begins to run when the dower is demanded and refused ; and where, during the continuance of marriage no demand has been made, when the marriage is dissolved by death or divorce (Limitation Act, clause 103). But there is nothing in Limitation Act which prevents a wife from suing for exigible dower without a previous demand (6 Moores I. A. 21-1). Prompt dower may be, but need not necessarily be, exacted immediately, and the limitation in respect of it does not run against the wife so long as the marriage exists except when the wife demand such dower and is refused (11 B. S. R. 375). But making an unsuccessful application in forma pauper is for her dower does not amount to a demand within the meaning of this rule (24 W. R. 163). In case of deferred dower, time runs when the marriage is dissolved by death or divorce. But when the dower is payable under a duly registered "Kabin-nama," Art.. 116 applies (19 W. B. 315 P. C.); and where intention is to charge the dower on immoveable property, Art, 132 may apply (8 W. R. 51). A woman may refuse herself to her husband as means of obtaining payment of so much of her dower as is prompt, so that if husband has paid all but one direm, she may refuse herself to him, and he cannot demand back what he Proof of dower. Limitation. Suits for restitution of conjugal rights. Down. cxxxvii has paid. It was formerly held, that husband cannot maintain a suit for restitution of conjugal rights until he pays the prompt dower fixed at the time of the marriage (P, R. go. 35 of 1873 and 45 of 1876). But these judgments have been over-ruled by a Full Bench of the Chief Court, which following I. L. R. 8 All. 149, and L. R. 9. Mad. 327, has laid down that a suit is maintainable by a husband for restitution of conjugal rights or for recovery of a wife notwithstanding the previous non-payment of dower, but that the Court may allow the sum due as prompt dower to be paid into Court before decree, or give a decree with a condition that it can only be executed on prompt dower being paid (P. R. No. 164 of 1889). This ruling was followed by the Chief Court in P. K No. 5 of 1891, where it was held, that where the wife has once yielded her person to her husband, non-payment of prompt dower is no bar to the maintenance of a suit for restitution of conjugal rights. But that the Court in the exercise of equitable discretion may impose upon the husband .the payment of prompt dower as condition of the decree, the principle being that when the plaintiff resorts to an Indian Court for specific preformance of an obligation, he has not an absolute right to insist upon the assistance of the Court. Similarly the sarne principle was affirmed in P. R. No. 14 of 1891, where it was decided that whether the decree in favour of the husband ought to be made conditional on payment of a prompt dower, is a matter of judicial discretion to be exercised with reference to the circumstance of the particular case. On the authority of the Punjab Civil Code it was decided that dowers beyond the means of the husband were subject to modification at the discretion of the Court (2, P. R. 49 and Suth. P. C. Judgts. Vol. I. p. 554). But the Full Bench of •the Allahabad High Court has decided that a Mohamedan widow was entitled to the whole of the dower, which her deceased husband had, on marriage, agreed to give her whatever it might amount to, and whether or not her husband was comparatively poor when he had married or had not left assets sufficient to pay the dower debts (2, All. 573). Similarly in a suit by a Mohamedan lady for Rupees fifty= thousand as dower, the Chief Court held that the Court has no jurisdiction to reduce the amount of dower fired to what it considers a reasonable amount, except on proof of custom allowing such reduction, or unless it finds that the amount fixed was merely nominal and neither party intended the " Kabin-nama" to be acted upon (P. R. No. 123 of 1880). But in Mohamed Wazir Beg vs. Mst. Fatima Begam, where the plaintiff claimed Rs. 4,000 from the heirs of her deceased husband out of the fixed dower of Rs. 7,000 a. Power of Court in ease of extravagant dower. cxxxviii T MUHAMEDAN LAA'. decree for Rs. 3,045 only was allowed (P. R. No. 7 of 1881), but it appears that in this case the first Court had considered, that by customs it had power to reduce the stipulated dower to a reasonable amount and the plaintiff had preferred no appeal in the Chief Court. It is a general rule that during the continuance of marriage, the parties may agree to an increase or abatement of the dower, and that if a man becomes surety for the dower, the woman may proceed against him leaving him to recover from the husband. On the death of the wife, the dower becomes divisible among her heirs. But until paid, dower is a debt due from the husband to the wife and is subject to the provisions of the Succession Certificate Act (P. R. No. 88 of 1891). When is a dower a A Mohamedan widow lawfully in possession of ber hus- charge on estate. band's estate occupies the position analogous to that of a mortgagee, and her possession cannot be disturbed until her dower debt has been satisfied (I. L. R. 7 All. 353) and when in possession, she has a lien for dower on the estate (10 W. R. 369, 3 P. L. R. 175), and can retain possession until her dower is paid (14 Moores I. A. 377) ; but a widow, who is not entitled to more than her legal share in her deceased husbands' estate, has no right to the exclusive possession of the entire estate, unless it be found that she was put in possession of the entire estate either by her husband or by the consent of the other heir or heirs in lieu of dower (2 .Agm. 162); and so also, a widow, even though she has a valid claim for dower against her husband's estate, cannot take possession of the estate as against the heirs, but must sue them regularly for the amount due to her (5 W. R. 194). Similarly in a suit by a 1Vlobamedan widow to obtain a declaration of her lien for dower on a house, the property of the deceased husband, mortgaged by the son of the deceased to the defendants and attached by them in execution of a decree, where it was not shown that the house was held by the plaintiff on account of her dower, it was decided by the Chief Court that the widow's claim to dower could not be regarded as constituting a lien upon the property, though if the husband's estate was divided through the agency of the Court, it would be necessary to provide for a dower before setting apart the shares of the several heirs ; and it was also held that it was not correct to sly that no right by inheritance accrued till all the deceased's debts were paid, as the heirs took the estate subject to the liability for all debts payable out of it, and in this case, the dower, not being a charge but merely a debt, was no obstacle to a mortgage or other alienation of part of the estate (P. R. No. 96 of 1888). Dowel' is recoverable by wife's heirs. ADOPTION. CXXXiX , ADOPTION. An adopted son cannot inherit among Mohamedans (9, W. A. 502) and has only such rights as the adoptive father may expressly confer on him (P. R. No. 12 of 1871). GUARDIANSHIP AND MINORITY. By Mohamedan Law Guardianship is of two discrip-tions The protection of the minor's person, his maintenance and tuition. 2. The management and custody of his property. A mother has the best right to the custody of her infant children even against the father (2 W. R. 76 and 2 Hyde. 63), unless her character be such as to render her unfit for the post ; failing her the maternal grand-mother, how high soever, and after her the father's mother, how high soever ; then the full-sister, the half-sister by the mother, the daughter of the hall-sister by the mother, next the maternal aunts in the same way ; and then the paternal aunts. When a boy reaches the age of seven and a girl that of puberty, the right of custody passes to the agnate relations. Of these the father is first, then the paternal grand father how high soever, the full-brother, the half-brother by the father, the son of the full-brother, the son of the half-brother by the father, the full paternal uncle, the half paternal uncle by the father, then the sons of the paternal uncles in the same line. The daughters of uncles and aunts whether paternal or maternal have no right, nor should a girl be given into the custody of the son of a paternal uncle, because no male has right of custody to a child, except those who are within the prohibited degrees. If the agnate guardian be profligate, he should be excluded from guardianship. The rights of the women become void by their marriages to any one who is not related to the infant within the prohibited degrees, but these rights revive on dissolution of the marriage. A mother is entitled to custody of a female minor in preference to a husband (I. L. B.11, Cal. 649). But according to Shia School, she forfeits her rights if she has been guilty of unchastity (I. L. R. 7 Cal. 434). She has preferential right over the paternal uncle (6 W. B. 125). A grand mother is preferred to a paternal uncle in the guardianship of a female minor (I. L. B.11. Cal. 574). And the brother of the mother is preferred to a stranger (I. L. R. 9 Cal. 599). But a sister should not be appointed if she is a prostitute (I. L. Guardians. Guardian. of pen 'Ohs. Ticii E MUHANTEDAN LAW. .R. 1 All. 598).. And where the girl was, only ten years old and the husband sued to recover her on the ground that her-mother had taken her away, the suit was dismissed on the ground of her minority (5 N. W. 196). It has, however, been decided by the Chief Court that in cases of guardianship the Court is not bound to decide according to Mohamedan Law.. It is bound to consider the fitness of the claimants, and to appoint no one who is not in its judgment a fi.t person to take charge of the minor, but if both are equally fit, it might then be proper to consider which would be the guardian under Mohamedan Law (P. R. No, 42 of 1882). Guardian of pro- The father and paternal grand-father and their executors, Poly. and the executors of such executors have control over the property of the minor for beneficial purposes. In their default the power does not vest in the remote relations, but devolves on the ruling authority. An elder brother is not in the position of a guardian having any power as such over the. property of his minor sisters (126W. it 337),. nor can a co-heir,, who is of age, make a valid mortgage of the minor's property (I. L. R. 11, Cal. 417). Powers. defacto. The powers of a defacto guardian were considered in a guardians, Full Bench case, where with reference to the eases marginally LL..R.16,Ca1.627 P.C. noted, Mr. Justice Rivaz remarked : " The rule to be de„ 11, Cal. 417. duced from these cases applicable to this province appears to, 8, all 324., be that in the absence of a special- custom to the contrary a „ 1, all 57. „ 1, all 533. defacto guardian who is. neither a near guardian by M.o-- „ 9, all 340. hamedan Law, nor by appointment by the Court,. cannot „ 9, o' 67. bind the minor's property by his acts of alienation. Where,. P.R. 144 of 1883. , 45 & 292 of 1882. however, the minor has benefitted by the alienation, he may be required to recoup the alienee to that extent, before he can be allowed to set aside the transaction,. but this is a different matter and the question only appears to arise. when it is the quondum, minor who is moving the Court as plaintiff, and can therefore be held bound by the equities of the case.” (P. R. No. 73 of 1890). Where the mother of a Moharnedan minor, not his legal guardian, executed a mortgage deed on behalf of a minor, the greater portion of the mortgage-money being said to be due on account of paternal debts, and the mortgagee brought the suit to enforce the mortgage. It was held that although, when a person comes in Court to get the acts of the guardian during his minority set aside, and he is found to have benefitted from those acts, a condition may be attached to the decree, but there is no authority for holding that a person suing to enforce such a mortgage is entitled to a decree against the owner of the property for compensation for any advantage the owner may have derived from the transaction (P. R. No. 58 of 1891). GUARDIANSHIP AND. MINORITY. exli According to Mohamedan Law, a legal guardian is not at liberty to sea his ward's immovable property except under following circumstances (1). When he can obtain double its value. (2). Where the minor has no other property and the sale of. it is absolutely necessary for his maintenance. When the late incumbent died in debt, which cannot be liquidated, but by the sale of such property. (4). When there are some general provisions in the will, which cannot be carried into effect without such sale. When the income arising out of the property is, not sufficient to defray the expenses of keep... ing it. (6). When the property is in danger of being destroyed. When it has been usurped and the guardian has reason to fear that there is no chance of fair restitution (Macnaughtin's H. and M. Law, p. 222). By Mohamedan Law, the period when minority ceases is the conclusion of the sixteenth year both for males and females (P. R. No. 54 of 1873) and although in P. R. No. 155 of1881, it was held that the observation of the learned Judge in P. R. No. 54 of 1873 is obiter dectum, but see I. L. R. 7, All. 763. Cf. P. R. No. 51 of 1888, p. 128. If the minor on coming of age likes to get the alienations made by his guardian set aside he must sue within three years after he attains majority. One M. K. the elder brother of the plaintiff who was his surbrah and actually managing his land, sold in 1874 the plaintiff's share of joint property in addition to his own share and also the share of another brother. The plaintiff sued to recover possession on the ground that the sale was inoperative against him not having been made for necessity. It was found that the plaintiff's age exceeded 21 'years when he instituted the suit. It was held by the Chief Court which followed I. L. R. 12 Cal. 69, I. L. R. 13 Cal. P. C. 308, I. L. R. 15 Cal. P. a 58, that the suit was governed either by Article 44 or 91 and was barred. The principle applicable is that when a person sues for immovable property and is met by a defendant in possession founded upon a title which, as between him and that defendant is null and void, the plaintiff may be at liberty to (3). (5). (7). Casessin which the legal guardian can, sell ward's immovable property, Age of majority. Limitation. cxlii THE MUHAMEDAN LAW, ignore the transaction and to get the benefit of 12 years' limitation ; but if he is not at liberty to treat the title or the transaction in which it origniated as a nullity, then one of the shorter periods of limitation is applicable, such as Articles 44, 91, 92 and others, according to the circumstances of the particular case (P. R. No. 57 of 1891). And when a minor after attaining majority calls his guardian to account for the profits made by him while he was guardian, the suit is governed by Clause 120 of the Limitation Act, and the period of Limitation is six years (P. B. No. 84 of 1891). BASTARDY. The period of ges- According to Mohamedan Law, the maxirnnm period of gestation is two years, but this being a rule of evidence within the meanings of Section 2 of the Evidence Act the Courts are not bound by it (P. R. No. 76 of 1891 and 1 of 1884). Section 112 of the Evidence Act does not lay down a maximum period of gestation and therefore the proof of legitimacy of a child born more than 280 days after dissolution of marriage is not barred, the effect of the Section being merely that no presumption in favor of legitimacy is raised and the question is simply to be decided upon the evidence for and against legitimacy (1 of 1884). According to the Mohamedan Law, the legitimacy or legitimation of a child of Mohamedan parents may be presumed or inferred from circumstances without proof or at least without any direct proof of a marriage between the parents or of any formal act of legitimation (8 Moores I. A. 156, 18 W. R. 523); and a public acknowledgment of paternity will of itself raise a presumption of marriage between the person who makes it and the mother of the child, without the , father specifically connecting his paternity with any particular woman ; and to rebut this presumption the onus of proving the impossibility being on the other side (3 W. R. 187, 3 Moores I. A. 245). Uniformity of the treatment by the father and all members of the family gives rise to presumption as to legitimation of the son (I. L. R. 3 All. 723). But mere continued cohabitation without proof of marriage or acknowledgment is not sufficient to raise the presumption of legitimacy (11 Moores I. A. 94), nor can the Court recognise. the child legitimate when such a conclusion would be contrary to the course of nature and impossible (16 W. R. 260); and in dealing with this subject, a Court would not be. justified in making any presumtion of fact which a rational view of the principles of evidence would exclude, and the. force of the presumptions of fact must vary with varying cir-: cunastances (25 W. B. 444). Legitimacy to be presumed. BASTARDY. exiiii The children of fornication or adultery have got no Illegitimate s o n 'consanguinity which is the basis of the law of inheritance, are not heirs. and therefore illegitimate sons can claim no relationship with their father's family (13 W. R. 265); nor can one illegitimate brother succeed to the estate of another (12 W. R. 512). But Mohamedan Law does not apply to the illegitimate child of Mohamedan woman brought up and dying a Christian, and therefore the State and not his mother is entitled to succeed to his property, he having left neither a wife nor a legitimate child '(1, W. R. 272). By Mohamedan Law, the acknowledgment of a father Tenders a son or daughter a legitimate child and heir, unless it is impossible for the son or daughter to be so (5, W. R.132), whether the mother was or was not lawfully married (10 W. R. 45). So where a Hindu cohabited with a woman by whom he had a son, the defendant, and after his birth he turned a Mohamedan and married the defendant's mother, always acknowledging defendant as his son, the defendant was held to be entitled to inherit his property (P. R No. 12 ,of 1872). Similarly it has been held by the Chief Court that according to Mohamedan Law acknowledgment renders a person a legitimate son even if he was born out of wedlock (P. R. So. 13 of 1875); and this principle was affirmed by the Privy Council in a Punjab case of the Mandal family in P.B. No. 17 of 1882. But the declaration of acknowledgment ought to be clear .and distinct in respect of each child and the children, and those of them who have reached years of discretion, ought to tome forward and acknowledge their father (20, W. R. 352). The acknowledgment need not be of such a character as to be evidence of marriage (15 TV. R. 403). Where in a transaction with a VIZI d party a person is described as his son the acknowledgment of sonship is complete, formal and conclusive against all parties (20 W. R. 164). But where the plaintiffs E. and M. were the illegitimate son and daughter of B. a Mohamedan woman, and on E.'s death the plaintiff sued his widow and M. to recover his share of the property of B. which he claimed as co-heir of E. and he relied upon a recital in a petition in which E. the plaintiff and M. describing themselves as the son and daughter of B. had prayed for a certificate under Act 27 of 1860, it was held that this was not such an acknowledgment of the plaintiff by E. as to constitute between them the status of full brotherhood and heirship by Mohamedan Law (13 B. L. R. 182). Where there is no proof of legitimate or illegitimate Who may be bath, and the paternity of the child is unknown in the sense nowledged. Acknowledgment Aolvever renders heir. Mode of acknow; kdgment. aek exliv TUE , MUHAMFDAN LAW. that no specific person is shown to be the father, the acknowledgment of him by another who claims him as his son affords a conclusive presumption that he is the legitimate son of the acknowledger and places him in that category. Acknowledgment Such status once conferred cannot be destroyed by any once conferred cannot •subsequent act of the acknowledger or of any one claiming iat destroyed. through him (I. L. R. 10 All. 289). In the same case Mali-mud, Judge said : "acknowledgment always proceeds on the hypothesis of a lawful union between the parents and the. legitimate descent of the acknowledged person from the acknowledger, and there is nothing in the Mohamedan Law similar to adoption as recognised by Roman and Hindu sys. terns, or admitting of an affiliation which has no reference to consanguinity or legitimate descent. A child whose illegitimacy is proved beyond doubt, by reason of the marriage of its parents being either disproved or found to be unlawful, cannot be legitimized by acknowledgment. Acknowledgment has only the effect of legitimation where either the fact of the marriage or its exact time, with reference to the legitimacy of the child's birth, is a matter of uncertainty." Similarly where D. an undivorced woman left her husband K. who was still living and went and lived continuously. with one J. by whom she had three children, it was held by the Chief Court, assuming there was a marriage between J. and D., that D. being undivorced the marriage could not have legally taken place, and that, therefore the offspring of the connection, even if the paternity was acknowledged by J., was incapable of being legitimated according to Moharnedan Law (P. R. No. 71 of 1878). Acknowledgment is valid when the ages of the parties admit of the relationship between them, and where the descent of the party has not already been established from another (12 TY. R. 497). A man cannot acknowledge a brother so, as to establish the nasab (12 TV. B. 512). JOINT FAMILY, Acquisitions by managing members. When the members of a Moharnedan family live in commensality, they do not form a " joint family," in the sense. of Hindu Law ; and there is no presumption that the acquisitions of the several members are made for the benifit of the. whole family. (I. L. R. 8, Cal. 823), but additions made to the joint estate by a managing member of a Mohamedan family will be presumed to have been made from the joint, estate, and in the absence of any proof to, the contrary, all the members of the family will be entitled to share. (2, Mc/.. 414). In a case, however, it appears that the father of the. parties to the suit had died leaving property which was never JOINT FAMILY. CX1V divided and which remained under the management of the defendant on behalf of the family, and that while the nucleus of family property was under his management, he had also a considerable separate income of his own. It was held that it could not be presumed that all the acquisitions were made by means of the family funds : all that could fairly be held, was that it was defendant's duty, as manager, not to mix up family income with his own so as to render it impossible to distinguish between them ; and that if he was unable to account satisfactorily for the income of the family property, and it appeared that he had made purchases with money, partly derived from the family income and partly from his own funds, it was for him to show how far such purchases had been made with his own funds, and so far as he was unable to do so, the property must be regarded as family property. It was for defendant to prove that the property which he alleged as acquired by him was so acquired, and he might do so, either by proving that there was no surplus family income at all, or by showing how that income was applied, or by direct proof that the price was paid from his private funds or if he criild not show that any particular property was purchased wholly from his private funds, he might still show that it was in part so purchased, and so far as he was able to prove that this was the case, but no further, he could be entitled to be considered the owner of a corresponding share in the property. Justice Sir M. Plowden, that the manager of joint ancestral estate should be liable to account to his co-heirs for the property received by him as manager and for investments of the income and accumulations, is proper and just : but that the mere circumstance that he is a member of the same family with the co-heirs should make him liable to account for all sums earned by his individual and independant exertions, and investment made of income and accumulations is not in accordance with general usage and is on the face of it not in accordance with the generally received notions of natural justice (P..R. 91 of 1887). In a suit by a member of a Mohamedan family to recover Joint and separate possession of a share in landed property where the defendant estate. claimed the same as his separately acquired property, it was not necessary for defendant to show that he had funds sufficient to enable him to obtain the property and the burden is on the plaintiff (14 W. R. 374). Registration of landed property in the name of one Entry in favour of member of the family is not conclusive against the claim of one member. those who might contend that they had nevertheless con- tinued to retain a joint interest in the property. (14 Moore's I. A. 401), but semble where a purchase is made during the THE MUHAMEDAN LAW. Liability of family for necessaries. father's lifetime in' the name of his son while living in father's house, there is no presumption like a joint Hindu family ; and the onus is not on the son to prove that the purchase was not really made for and by the father, but by the son for himself and with his own funds (7 W. R. 489). Where two brothers (Mohamedan), were living joint in food and estate, and at the time of separation, agreed that claims relating to the joint estate would be paid equally, and after separation a decree was obtained against one of the brothers for the price of certain clothes supplied to him for his marriage, which had taken place when they were joint, it was held that the debt was not incurred in a matter necessary to the existence of the family and the individual brother benefitted was liable. (8 a L. R. 378). MAINTENANCE. A husband is bound to maintain his wife, whether she be poor or rich, enjoyed or un-enjoyed, if she be not too young for matrimonial intercourse. She is also entitled whether sick or insane ; but a woman who is " nashiza" or rebellious, has no right to maintenance until she returns to her duty. But inability to maintain a wife is not a valid ground for separating her from her husband. Maintenance is only payable during the continuance of the marriage. Under the Shia Law a mutta wife is not entitled to maintenance, but such a provision does not interfere with the statutary right to maintain given under the Criminal Procedure Code (I. L. R. 8 Cal. 736). Maintenance dur- A widow during her "iddat " has no right to mainte- ing " Iddat." nance, whether pregnant or not, but a wife when keeping iddat after repudiation is entitled to maintenance and lodging unless the separation has been caused by the fault of the wife. Maintenance of Legitimate children who are born six months after children. marriage as well as those born within two years after divorce or the death of husband are entitled to maintenance. But when the father is poor and the paternal grandfather is rich, the latter may be compelled to maintain the child, the amount so expended being a debt recoverable from the father, who may in turn re-imburse himself by having recourse to the child's property if there be any. But if the mother is rich and the father poor, she is the first kindred liable to the burden of maintenance, she having a right of recourse against the father; a rich brother also may be ordered to maintenance he having a right of recourse against the father. Wife, rigkt of maintenance. MAINTENANCE. cxiv A father is not obliged to maintain adult sons unless Adult sons when they are disabled by infirmity or disease, but be is bound to entitled. maintain his female children till their marriage, if they have got no property of their own. But when the sons are strong enough, they may be required to work for their maintenance, unless they belong to the higher classes. There is diversity of opinions whether the daughters-in- Daughters-in-law. law have got any right of maintenance, but the weight of authority is in their favor, when the sons are young, poor or infirm. Male and female children, when in easy circumstances, Right of parents. are jointly liable to maintain their poor parents, but when the child is poor and able to maintain only one of his parents the mother has the first claim. When poor, the grandmothers on both sides have a Grand-mothers. right to maintenance. Persons who themselves are not poor should maintain Maintenance of other their poor relatives within the prohibited degrees, in propor- relations. tion to the shares they would take in the event of such relatives' death. A, desciple of a religious institution is entitled to maintenance (P. R. No. 84 of 1866). Proper maintenance comprehends food, raimant and Proper maintenance, lodging. When recoverable. Maintenance becomes payable only from the date of the decree, and the past maintenance cannot be awarded along with the decree (I. L. R. 6 Cal. 631), unless there has been a mutual agreement (P. R. No. 57 of 1890). But if the wife incurs debts on account of her maintenance after it has been secured by a decree or agreement, the husband will be liable to her creditor. WILLS AND LEGACIES. Any person who is sane and is not under puberty can Who can make a make a will, whether, male or female, married or single, bequest. A will can be made in favor of any person, but the testator cannot bequeath more than one-third of his property without the consent of the heirs ; the onus is on the legatee to furnish a complete statement of the testator's property at the time of his death and to show that it does not exceed one-third (22 W. R. 400). A bequest in favor of a person not existing is not valid (I. L. R. 9 Bom. 158), but it is valid in favor of a child in the womb, if it be born alive within six months from the date of bequest. If the child be still-born the legacy lapses, but if he dies after birth, it goes to its Desciple. In whose favor it can be made. cxlviii THE MUHAMEDAN LAW. heirs. An appropriation of property may be made by wagf. If the appropriation makes an immediate dedication of property to religious purposes, the dedication takes effect at once as to the whole property, but if the dedication is not to take effect till after death, the instrument operates as a will and takes effect only to the extent of one-third of testators' property (P. R. No. 2 of 1880). What can be be- The testator may make a bequest of any kind of pro- queathed. perty belonging to himself, but if he bequeaths property belonging to another, who allows the gift it is lawful, but the owner may retract his consent at any time until delivery has been made of the bequest. If a share is bequeathed, as, for instance, a sixth to a legatee and afterwards a larger share as a third, the legatee will take only one-third as the sixth is included in it. So if a testator bequeath a sixth and again a sixth to the same person the legatee will take only the sixth, unless there be evidence that two separate bequests were intended. Will how made. It is a universal rule that a will does not require to be in writing (5 Moore's I. A. 199). The omission to write the wish where there was ample time for that purpose, may throw doubt on the fact of the words being used as the expression of the testator's last will, but if the Court finds that the testator expressed his will and that this was his last will, the omission to render it into writing will not deprive it of legal effect (2 N. W. 55). But an intention to bequeath must in all cases be shown. Where a Mohamedan on various occasions stated that R. S. was his son and was wards and malik of his property both during his life and after his death, but it did not appear that on any of the occasions on which these expressions were used, it was understood that he was using the words making a disposition of his property by way of bequests; it was held by the Chief Court that the alleged will was not established. If the words had been written in a formal document there might have been no difficulty in holding that there was a bequest, but in that case there would have been clear proof of a definite act intended to operate as a bequest. The repetition on several occasions of the words militated against the view that he did on any one of such occasions intend to make a bequest (P. R. No. 55 of 1891). The expressions of the will must be definite and certain. A bequest of money by a Moharneclan "bamasarif indulla," i.e., to be expended on pious purposes at the discretion of the executor has been held to be too vague and indefinite to be pronounced a bequest creating a " trust for public charitable purposes (P. J. No. 50 of 1884 The fund WILLS AND LEGACIES. CX1iX bequeathed in the above terms might according to the view of the Mohamedan lawyers, be legitimately expended upon a variety of purposes which include among others, pilgrimage up to Mecca, alms-giving, fasting, prayer, purification, and the erection of Musjids, the particular objects on which the expenditure is to be made lying within the discretion of the executors (P. R. No. 50 of 1882). In the absence of any legal restrictions full rights on the What passes by will. subject of bequest pass to the legatee, so it has been held that a widow succeeding to real property under a will takes it in full ownership and not merely as a tenant for life (2 P. N. Law 3). It is also the rule of the Mohamedan Law that an increase arising out of the subject of a bequest before the death of the testator belongs to the estate, but an increase occurring between the death of the testator and the distribution of the estate belongs to the legatee. There must be acceptance either expressly or by implication on part of the legatee after the death of the testator. The death of the legatee before that of the testator causes a lapse of the legacy, but if the legatee die after the testator and before he accepts or rejects the legacy, the death becomes an acceptance and his heirs inherit the legacy. A bequest to one who is an heir at the time of the testator's death is void unless other heirs assent (P. R. .l o. 121 of 1886) and the assent must be given after the testator's death. If the legatee ceases to be heir at the time of the testator's death, the legacy is valid without such consent. A bequest is also void without the consent of heirs which is in favor of a person who slays the testator either intentionally or by accident, but it is valid without such assent when the slayer is under puberty or insane. When the heirs have once assented to a legacy in excess Assent cannot be re• of the third of an estate, in favor of an heir of the testator or tracted. of his slayer, they cannot refuse to deliver the subject of bequest. A death bed gift stands on the same footing as a will Death-bed gifts. and is subject to all the conditions as such. A death illness is one which it is highly probable will issue fatally. So where a deed of gift was executed by a man in favor of his wife, when he was suffering from an illness likely to have caused him to apprehend an early death, and he did in fact die of such illness upon the same day, and there was no evidence that heirs had consented to it, it was held that the parties stood on the same position as if no such deed existed I. L. R. 9 All, 357). Legatee must accept after the testator's death,. Legacy in favor of an heir. el THE MUHAMEDA1, LAW. Revocation if will. A testator may revoke his bequest expressly or by im- plication. Every act which if done on the property of another has the effect of cutting off the proprietor's right in it, when done by the testator, or which occasions an addition to the subject of bequest of such a nature that it cannot be delivered without the addition, or every act of disposal by him which occasions an extinction of his right in the subject of the bequest has the effect of revoking it. A bequest is also revoked by a subsequent bequest of the same to another person. If, however, the second legatee be dead at the-time of bequest in his favor, the first bequest continues valid. Executor, appoint- An executor may be appointed directly or by impli- Inent of, cation. He may accept or refuse the duty, but if lie once accepts it, he cannot refuse except in the life-time and to the knowledge of the testator. The appointment of a minor or insane person to be executor is unlawful, but a woman and a blind person may be appointed, A proflicate executor, from whom danger may be apprehended to the, property should be removed, but his acts are not invalidated by his being thus subsequently displaced. The appointment of an infidel executor does not invalidate the will, and his acts are good till removed by Court. If two executors have been appointed the acts done by one of them are not operative without the sanction of the other except in following cases— (1). Washing and shrouding of corpse and its removal to the grave. (2). The payment of debts out of the assets of the same kind as debts. (3). Delivery of specific bequests. (4). The restoration of deposits or of things usurped by the deceased. (5). General preservation of property. (6). Accepting a gift for a minor or sanctioning his. acts. (7). Making partition of things weighable or measurable. (8). Selling what is liable to spoil. Successor of an en. An executor on approach of death may appoint his sue- Cuter. cessor though not specially authorised to do so (4 N. W. 106). If one of the two executors dies, the matter should be laid before the Judge who may constitute the survivor as sole executor. Administration of The funeral expenses of washing, shroudino-, and inter- assets. ring the body are the first cliwgeo to which all property is GIFT. Cli liable except that which is subject to a pledge. Then debts are to be paid, then legacies out of a third of what remains after the payment of funeral expenses and debts. When the legacy is of a specific property, the legatee has preference to the heir. GIFT. A gift is the conferring ofproperty without anything in return for it and to make it complete, acceptance and possession on the part of the donee, and relinquishment on the part of the donor are necessary. The person making the gift is called " the donor " anJ the person in whose favour it is made is called " the donee." The donor must be an adult and sane and also the Requisites as to donor. owner of the thing given, which must be in existence at the time of gift. A gift by a person not in possession is null and void (I. L. R. 6 Born. 650). Delivery and siezin are of essence of a gift, and no right.en. Posse88ion, mast be of any description passes without them (I. L. .R.13 Born. given. 156 and P. R. No. 36 of 1891). The siezin must take place immediately on the gift How delivery made. being made (I. L. B. 9 Cal. 138), and cannot be postponed till the death of the donor, or to an indefinite future time (I. L. R. 10 Mad. 196). Mere registration of a deed of gift does not cure the want of delivery by the donor (I. L. B. 11 Bowl. 517). To make a valid delivery the person delivering must have the right and will to transfer the property, and the person receiving it must have the power and intention to receive. Exceptions to the rule that delivery of possession is re xocfepploiowneszsitoon. the necessary are :— (1). Where the husband gives property to his wife (I. L. B. 13 Born. 352). (2). Where the donee is a minor (P. R. .No. 19 of 1881), and gift is made by his father or guardian (P. B. No. 86 of 1882). Where the trustee has charge of the property given (I. L. B. 9 Ban 146). Where the gift is by wife to her husband, (6 Mad. 455). Where it is a gift in lieu of dower (P. R. No. 87 of 1882). Where the donee is a lunatic (P. B. No, 74 of 1867). Gift defined. Cliff THE MUHAMEDA1sT LAW. Gift made io two donees 'without defining shares. Gift of property not in possession of the donor. In such cases there must be a real and bona fide intention to make a gift, and if that is made out the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the donee (Pb R. No. 86 of 1882, 15 B. L. R. 67). According to Mohamedan Law though there is a difference of opinion between the doctors as to the validity of a gift to two persons or more of property that admits of partition, such a gift is not void and possession cures the defect arising from the shares of the donees not being defined (P. R. No. 57 of 1882, 7 Born. 0. C. 27). Property in possession of a mortgagee cannot be made the subject of a gift to any one (I. L. R. 6, Bon. 650), but the mortgagee; but where the heirs of the donor acknowledged a gift of a share in mortgaged property by allowing the donee to join with them in suing for redemption, it was held that the donee was entitled to the share which the donor intended to pass under the gift (P. IL No. 61 of 1871). But there is nothing to make the gift of a zimindari a part or whole of which is let out on lease to tenants, invalid. (I. L. R. 10 Cal. 1112). " Musha" means confusion, and a gift of an undivided share in any property is invalid because of " musha " on the part of the donor, the principle of Mohamedan Law being that a gift is not valid of what admits of division unless separated and divided. This rule therefore applies only to gifts of such property as is capable of division. But the gift of an undivided property is not invalid if it is in the form of hiba-bil-iwaz as in the case of a gift in consideration of dower (P. R. No. 87 of 1882). Nor does the rule apply where the donor's share is definite and capable of being dealt with as separate property, a gift of that share is not a gift of an undivided part of a thing (P. R. No. 19 of 1881) ; but where one Mt. M. and another were possessed of a house and piece of land which they held in undivided shares and M. gave half share to defendant on which her heirs sued to set aside the gift, it was held that if the house and land admitted of partition consistently with the preservation of all the uses which might be made of it before partition the gift was invalid. (P. R. No. 53 of 1873). Where the subjects of gift are definite shares in zimindari, the nature of the right in which is defined and regulated by the public Acts of British Government, so that they form for revenue purposes, distinct estates, each having a separate number in the collector's books, and each liable to the Government only for its own assessed revenue, the proprietor collecting a definite GIFT. share of the rents from ryots, and having a right to a definite share and no more, the rule of musha does not apply (15 B. L. R. 67 P. C.). A defined share in a landed estate is a separate property (I. L. R. 2 All. 93 and I. L. R. 9 All. 213). Nor was the rule applied to a case where the property was bequeathed to two nephews as joint tenants, one of whom died leaving_ a widow and a daughter who continued to hold with the other donee as joint tenants, but he continued in exclusive possession of the propertysubject to any claim which they might establish to a share in, or a charge upon it, and then by a written instrument he made a gift of that property to his younger son the defendent, disinheriting his elder son, the plaintiff (I. L. R. 5 Born,. 238). Where a deed of gift gave an undivided share in mukkarri and zimindari holdings, besides other property not reduced into possession, the whole of which had as a matter of title devolved upon the donor as a member of a family of which the donees were also members, it was held that the gift was not in contravention to the doctrine of " musha," it having been settled that one of two sharers may give his share to the other before division (I. L. R. 15 Cal. 684 P. C.). It has iwaz and " Hiba-bil. been decided by the Privy Council in a recent case that the doctrine of " musha" .ou,c,,ht to be confined within strictest rules, and authorities on Mohamedan Law show that posses- sion taken under a gift, even although that gift might with reference to musha be invalid without it, transfers effectively the property given. Possession once taken under a gift is invalidated as regards it, effects in supporting the gift by any subsequent change of possession. In this case, the subjects of gift were shares in revenue paying villages with land, houses and movables (I. L. R. 11 All. 460). " Iwaz" means exchange. The fundamental conception of a Hiba-bil-iwaz is that it is a transaction made of two separate acts of donation, that is, it is a transaction made up of mutual or reciprocal gifts between two persons, each of whom is alternately the donor of the other. But when the gift takes place before receipt of the consideration for which it is made it is called "hiba-ba-sharat-ul-iwaz." Hiba-bil-iwaz does not include the case of a gift in consideration only of natural love and affection or of services or favours rendered (I. L. R. 11 All. 1) ; but where a widow without relinquishing her right to claim her share in ancestral land held jointly with her husband's brother, in lieu thereof, received an allowance of cash and grain, and by an arrangement with her which was carried into effect by documents, by one document he granted two villages to her, and by another she accepted the gift giving up her claim to any part of ancestral estate of her Cliv THE MUHAMEDAN LAW. husband, it was held that the transaction amounted to hiba. bil-iwaz granting the village, absolutely (I. L. R. 3 All. 490.) A " a-bil-iwaz " differs from an out and out sale' as well as from a gift, while it partakes of the character of both, and if supported by sufficient consideration is binding upon the heirs of the donor (16 W. R. 175). A gift is not necessarily hiba-bil-iwaz by an allusion in the deed to the good behaviour of the donee and his supplying a certain amount to the donor to enable the latter to do some act in respect of the property (3 Agra 237); and the Chief Court following I. L. R. 11 All. 1 has held that hiba-bil-iwaz does not include the case of a gift in consideration of services rendered (P. R. No. 188 of 1889). A gift with, a con.. In cases of gift, reservations in favour of a third party or anything which restricts the right of the donee over the property given through the donor who has absolutely parted with the dominion over it are regarded as void conditions. Where therefore, a deed of gift purported to give certain property to F. K. for his life, and to his son after his death, it was held that the above limitation of the gift was a condition, which must fail though it did not effect the validity of gift (P. R. No. 120 of 1882). So in a gift which was subject to the conditions (1) that the donee would not alienate and (2) that at his death the property would return to the donor, it was held that by Mohamedan Law such a restriction on alienation and especially after the gift had become complete, is absolutely void (6 Mad. 356).Where the donor is to remain in possession during his life-time the gift is invalid (W. B. 1864, 185). According to Mohamedan Law the revocation of a gift is abominable, but it is valid nevertheless. After delivery, a gift is irrevocable under the following circumstances :— (1). Where the thing given has been lost. (2). Where it has passed from the possession of the donee by sale, gift or the like ( W. R. 1864, 121) or by his death. (3). Where the donor himself has died. (4). Where there has been an increase in the thing given of such a nature as to be united to it or incorporated with the body of the gift, and be an addition to its value. (5), Where there has been a change in the subject of the gift, Revocation of gift. WAQZ Cl V (6). Where an exchange has been received for the gift. (7). Where it is made by the husband to his wife, and by the wife to her husband. (8). Where it is made to a blood relation within the prohibited degrees. (This rule does not extend to relations prohibited by relations or fosterage). (9). Where a man gives a debt to his debtor. (10). A charitable gift where the recipient bas been put in possession. But when the gift is complete by delivery to the donee, it cannot be recalled without the decree of a Judge or the consent of the donee (11 W. R. 320), and it has been held by the Chief Court that in passing a decree to validate the revocation of a gift by the donor, the Judge is not a mere mandatory of the donor simply to register his fiat but is empowered to adjudicate on the right of revocation according to the merits of each case (P. R. No. 188 of 1889). W A Q F. A waqf or endowment of property is its appropriation What is waY, to the service of God divesting the appropriator of his right to it and transferring from himself the profits of the property to the benefit of mankind. A mosque cannot be dedicated or appropriated exclusively to any particular school or sect of Suni Mohamedans. All Mohamedans are entitled to go to it and can perform their devotions as of right according to their conscience. No one sect or portion of the Mohamedan community can restrain any other from the exercise of this right (I. L. R. 12 All. 49 ) . For the validity of waqf The appropriator must destine its ultimate ap- The essentials of waqif. placation to objects not liable to be extinct. The appropriation must be at once complete. There must be no stipulation for a sale of the property and expenditure of th•J price on the appropriator's necessities. (4). Perpetuity is a necessary condition I. L. R. 10 Cal. 533), To constitute a valid waqf there must be a dedication Invalid wagl. of the property solely to the worship of God or to religious or (1). (2). (3), Clvi THE MUHAMEDAN LAW. charitable purposes (I. L. R. 6 Cal. 744). It is not sufficient that the word "waqf" be used in the instrument of endowment. By merely using this word, a settlement cannot be effected which will keep such property inalienable by himself and his descendants for ever (W. Born. 7). A waqf cannot be created of shares in a limited liability company ; and a, waqf the purpose of which is to create a mere family settlement without a charitable object is invalid (9 Cal. L. R. 66). It has, however, been recently held 'by the Privy Council that although making provisions for the granter's family out of property dedicated to religious or charitable purposes may be consistent with the property being constituted waqf, the property yet to render it waqf must have substantially but not merely colourably dedicated to such purposes (I. L. R. 171 Cal. 498). A valid endowment may be verbally constituted without any formal deed (2 Hay. 415). The chief elements of way are special words declaratory of the appropriation, and a proper motive and cause (16 W. R. 416). According to Shias it must be absolute and unconditional, and possession must be given of the thing granted (4 N. W. 155). But the consignment and delivery of consecrated real property to a mutwalli is not necessary to render the waqf legal. No particular formality or ceremony is necessary, but there should be.clear proof that a declaration has been made. This should not be presumed from casual remarks let fall by the alleged appropriator in the course of conversation unsup-pOrted by his acts and conduct. Buildings susceptible of use for secular as well as religious purposes, such as " imam-bcf,rds " cannot be so appropriated (P. R. No. 100 of 1868). An endowment of mortgaged property is valid (12 W. B. 498). Grants to an individual in his own right and for the purposes of furnishing him with the means of subsistence do not constitute a waqf for endowment (8 W. R. 447); and no property should be considered waqf unless specially appropriated by the donor (P. R. Ho. 67 of 1868). According to Mohamedan Law an endowed property is alienable (2 Moore's I. A.:390), and in dealing with mutwalli, it is not necessary for the purchaser to look further than his powers under the deed of trust ; if the power and discretion is given to the mutwalli, it is not a matter of concern to the purchaser whether that power or discretion is judicially exercised or not (W. R. 1864, 242). But it cannot be sold in satisfaction of a claim against him (15 W. R. 75). Mutwalli is the person appointed to conduct the property and carry out the instructions of the appropriator. How created. ,Waqf property. Muttvani. SUCCESSION. civii Females are eligible for the appointment, but they are not competent to perform the duties of a majawar, which are not of a secular nature (1. L. R. 8 Cal. 732 and I. L. R. 3 Mad. 95). But a Shia may be appointed. The Office of Sujjadanashin is distinct from that of a mutwalli. The former is charged with spiritual affairs of the endowment, while the latter is the trustee of its temporal affairs (P. R. No. 67 of 1868). But no official can claim a prescriptive right to render certain services to any member of bis faith (P. R. No. 94 of 1867). A mutwalli may be removed for misconduct (2 N. W. 420) or disobedience (11 W. R. 333), and a new mutwalli appointed (10 W. R. 458). The founder of a wagf has a right to reserve the Founder's power to management to himself or to appoint some one else thereto, reappoint mutwalli. but it is necessary that such power be specially reserved at the time of endowment (4 Mad. 44); and when he has specified the class from amongst which the manager is to be selected, he cannot afterwards name a person not answering the proper description (9 Born. 19). Land granted to endowment cannot be claimed by right Right of inheritance of inheritance. The members of the granter's family have to wagf property. no right at his death to a division amongst them to the income derivable from the land (2 Mad. 19), nor does the grant revert to the heirs of the granter, if the Mutwalli fails to act up to the direction of an endowment (12 W. R. 132). The determination of the question of succession to the management of an endowed property depends upon the rules which the founder may have established, whether such rules are defined by writing or established by usage (6 Mad. 63); but in such cases the theory of hereditory succession is most unlikely and out of place (W. R. 186, 327). A wagf once created cannot be revoked, nor can a valid wagf be effected by the bad conduct of those responsible for carrying out the appropriator's property (16 W. B. 116). But a grant of land made by the proprietors to a person in consideration of his acting as imam of the village mosque is of the nature of a grant to a village servant, and tenable only during the pleasure of the granters, but if the grant be made jointly by the village proprietary body and their shares are joint the grant is only resumable as a whole and not piecemeal (P. B. No, 70 of 1868). Sajjadanashin. Removal of mutwalli. Revocation. • PART III. N6TIFICATION, REVENUE. Simla, 'the 20th, July 1871. 285. —The following Regulations having been submitted, by His Honor the Lieutenant Governor of the Punjab to His Excellency the governor General in Council, have been by him considered and approved, and are hereby published for general information as having the force of law sander the provisions of 33 Via, Cap. 3, Section 1 ;: No. I of 1871. Peshawar District Limitation Regulation, 18'71. 1. Section 1, paragraph 12 of Act XIV of 1859, prescribing a period of limitation of 12 years from date of cause of action for suits for the recovery of immoveable property, or of any interest in immoveable property, shall have no effect as regards claims for land, and the rent, revenue, and produce of land, preferred in the Settlement Courts of the Peshawar District during the present revision of settlement. • In substitution thereof the following rules are prescribed 2. Suits regarding land, or the rent, revenue or produce of land, and suits decided during the currency of the summary settlement in which the claim has been rejected as barred by lapse of time under the " twelve years' limitation " rule, may be entertained by the Settlement Courts : provided the cause of action arose within twelve years previous to annexation, that is to say, after the 1st of March 1837. 3. Rule 2 shall not apply to decisions regarding village boundaries, or to any cases that have been decided on their merits by the Commissioner, or the Financial Commissioner, or the Chief Court in appeal, except with the sanction of those authorities. 4. The provisions of Act XIV of 1859 regarding execution of decrees are modified to the following extent : In suits for execution of decree in which an order has been passed that execution is to be carried into effect during the present settlement, effect shall be given to that order accordingly, irrespective of the time that has elapsed since the order was recorded. 5. In cases where no order has been recorded directing execution to be carried into effect at settlement, and where the original decree has never been carried into effect, the persons concerned may apply to the Settlement Courts for execution, irrespective of the time that has elapsed since the date CIX PUNJAB FRONTIER REGULATIONS. of original order, and execution may be ordered accordingly, unless the case is one that should be tried de novo under Rule 2. 6. When the settlement operations now in progress in the Peshawar District shall have been declared in the Government Gazette to have ceased, these rules shall cease to have effect. (Published in the Gazette of India of 22nd July 1871.) NOTIFICATION. POLITICAL . Port William, the 5th January 1872. No. 31 P.—The following Regulations for the peace and government of the districts of Hazara, Peshawar, Kohat, Bunnoo, Dera Ismail Khan, and Dera Ghazi Khan, having been proposed by His Honor the Lieutenant Governor, have been considered and approved by His Excellency the Viceroy and Governor General in Council, and are now published for general information, as having the force of law under 33 Victoria, Chapter 3, Section 1 :— No. I of 1872. Punjab Frontier Regulation, 1872. I. In the event of any frontier tribe acting in a hostile or unfriendly manner to the British Government, it shall be lawful for the Deputy Commissioner, subject to the sanction of the Commissioner, to detain all or any members of the said tribe, and to detain or confiscate their property, to debar members of the tribe from access into British territory, and to prohibit British subjects from all intercourse with such tribe. 2. No new hamlet, village, tower, or walled enclosure shall be erected.. within five miles of the British frontier without the consent of the Commissioner of the Division, who shall have power to prohibit the erection thereof, if deemed necessary. In the event of the Commissioner prohibiting such erection, he must record the grounds of his decision. 3. The Deputy Commissioner, with the concurrence of the Commissioner, may impose fines on village communities, the inhabitants of which, after due enquiry, are found to be guilty of colluding with or harbouring criminals, or combining to suppress evidence in criminal cases. Provided that when the fine imposed shall exceed one-half of the year's revenue of the village, the case shall be referred for sanction to the Local Government. All fines imposed under this section shall be recoverable, in default of payment, in the same manner as arrears of land revenue. 4. When any person is known or believed to have a blood-feud, or other cause of quarrel likely to lead to bloodshed with parties beyond the border, the Deputy Commissioner may require such person to reside beyond the limits of the territory to which these rules apply, or in such place within the territory as he may deem desirable. Provided that if such person be a resident of the village, hamlet, or place from which he is required to remove, the sanction of the Local Government be obtained. 5. Whenever it may be expedient on military grounds it shall be lawful for the Local Government to direct the removal of any village on the immediate border to any other site within five miles of the original site, and to award such sums to the inhabitants as shall, in the opinion of the Local Government, be proper compensation for any loss which may have been occasioned to them by such removal. PUNJAB FRONTIER REGULATIONS. Clxi 6. Repealed by Punjab Frontier Regulation No. IV of 1873, Section 1. * This Section provides;—" Such Chief Officer " (i. e., the Chief Officer charged with the executive administration of a district in criminal matters when invested with power to try all offences not punishable with death, and to pass sentence of imprisonment for a term not exceeding seven years, &c.), " shall try as a Court of Session offences which, under the Schedule hereto annexed, are triable by a Court of Session only, and in such trials shall be guided by the rules contained in Chapter XXV of this Code." cording to, the procedure provided in Chapter XIV of the Criminal Procedure Code. [Vide Punjab Frontier Regulation No. IV of 1873, Section 2.] 8. Any man who has sexual intercourse with a person who is, and whom he knows or has reason to believe to be, the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape ' • and any married woman who knowingly and by her own consent has sexual intercourse with any man who is not her husband, is guilty of the offence of adultry, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. 9. Section 209 of Act VIII of 1869 shall be read as if the clause noted in the mar-Specified in Column 7 of the 2nd Schedule, as hereto gin were omit- annexed, as triable by the Court of Session., ted. 10. Persons offending against any of the rules here laid down shall be liable, on conviction, to imprisonment, rigorous or simple, which may extend to six months, or fine which may extend to Rupees 1,000. 11. In every district a register shall be kept up of all cases dealt with under these rules, and a statement of all such cases shall be submitted half yearly to the Local Government. 12. The Police Act, V of 1861, may, at the discretion of the Lieutenant Governor, be extended to the districts of Hazara, Peshawar, Kohat, Bunnoo, Dera Ismail Khan and Dera Ghazi Khan, subject to the limitations specified below :— (a).—Such portion of the duties of the Inspector General of Police as refer to inspection, pay, and clothing, shall be performed by the Inspector General of Police, Punjab. (b).—All other duties now performed by the Inspector General shall be performed by the Commissioner, who shall be held to possess the powers of an Inspector General, within the limits of his own division. (c).—Deputy Commissioners shall be held , to be ex-officio Deputy Inspectors General of Police within the limits of their respective districts, without prejudice to their exercise of all the powers of a Magistrate. 13. So far as regards the Hazara District, Act III of 1870 (the Agror Valley Act) is repealed ; such parts of the district as have been dealt with under the Act are restored to the jurisdiction of the ordinary Courts of Civil and Criminal Judicature, and to the control of the offices of revenue constituted by the Rules, Regulations, and Acts in force in the territories under. the control of the Lieutenant Governor of the Punjab, and to the law prescribed for the said Courts and offices by the Rules, Regulations, and Acts aforesaid ; and all Rules heretofore prescribed for the Hazara District, or any part thereof, either under Ordinance of the 4th day of October 1869, or under the Agror Valley Act, are hereby repealed, with the exception of the following, which are hereby declared to be in force, in the form below stated :— (Published in the Gazette of India of 6th January, lel; and the Punjab Gazette of 11th January 1872,) 7. Section 445B,* of Act VIII of 1869 shall have no force in the dis- tricts to which these rules apply. Cases contemplated in that section shall be tried ac- Chcii • PUNJAB FRONTIER REGULATIONS. LAND REVENUE. I.—Notification, No.. 636, dated 4th October 1870. Suits of the class described in Section 23 of Act XIX of 1865 ("The• Punjab Courts' Act ") shall during the progress of settlement operations in the liazara district, be heard in the Courts of the Hazara district.. HAZARA SETTLEMENT RULES: A.—RULES FOR THE SETTLEMENT OF PROPRIETARY RIGHTS. 1. The Settlement Officer shall cause to be prepared for each village a statement showing for each class of village occupants, the origin, nature, and duration of their connection with the village. The statement shall include-all who have any interest in, or claim upon, land situate in the village. After examining this statement, the Settlement Officer shall declare by an order in writing enfaced thereon, what parties are in proprietary possession of any description ; and what parties are not in such possession, or only tenants. Every effort is to be made by Settlement Officer to ensure: the purport of this document being made thoroughly known to all parties-interested. 2. Thereafter it shall be open to any one, who considers himself entitle to other rights than those he is by that order awarded, to present to the Settlement Officer a petition stating his claim.. The claim shall be enquired. into and decided in the manner provided for judicial snits.. 3, 4 and 5.—Repealed by Punjab Frontier Regulation No.. II of 1874. 6. Where a double proprietary right (superior and inferior) is found to-exist in the same land, the Settlement Officer may, upon the application of either party, in lieu of awarding rent to the superior proprietor, award ton him possession of a fair proportion of the village lands, cultivated and lin!. cultivated. Such award shall be in full satisfaction of the superior proprietor's, claims : provided that— I. It shall not give to the inferior proprietors any power of alienation which they did not before possess, or to their collateral heirs, any right of succession which is opposed to existing custom the prevailing usage on each point being carefully ascertained and recorded by the Settlement Officer ; IL Nor shall it deprive the superior proprietor of any right of preemption or reversion to which he may be otherwise fairly entitled. 7. In cases in which a co-sharer of a tribe, among whom the custom of " waish," (periodical reparation on ancestral shares) prevailed before Sikh rule, has been deprived of land by the State for public purposes, or has lost his land within British rule by (Illusion, which land previous to Sikh rule would have been subject to the tribal "waish," he shall be permitted to present a claim to the Settlement Officer for an equivalent portion of shamilat land in the same village. The Settlement Officer or other competent Judicial ,49fficer subordinate to him shall thereon summon a council of the community against whose shamilat the claim is laid and investigate its truth. If the lose of any land in the manner above stated be proved, and if the claimant has no other land or insufficient land left for the support of himself and his 'dependants, and if the. enforcement of the claim shall not be on other grounds inequitai)le, the investigating officer shall decree to the claimant such portion of the sha milat land aforesaid as may appear equitable, with reference to the loss of the' claimant and the extent of the village shamilat ; provided that in the case of land taken by the State .no order for the making over of shamilat law l to the claimant shall be passed, until the claimant deposits the considers Lion money which he received from the State ; and the consideration morn thus deposited 8441 be matic over to the community in lieu of the shamilat taken, PUNJAB FRONTIER REGULATIONS. eixiii 8. The Settlement Officer shall ascertain for each proprietary community the custom concerning pre-emption, and frame with their assistance suitable rules for its enforcement hereafter. B.—RULES FOR ASCERTAINING THE CUSTOMS REGARDING INHERITANCE OF RIGHTS IN THE SOIL, OTHER THAN ASSIGNMENTS OF REVEN UE. 9. The Settlement Officer shall ascertain for each tract, tribe, or village (as may be most convenient) the customs that regulate the devolution of all rights in the soil, other than assignments of land revenue. And in cases in which such customs may appear on enquiry to be doubtful, he shall, in communication with the chief representatives of the said tract, tribe, or village, and with the sanction of the Commissioner, declare for future observance such custom as may be most consonant with the feeling of the parties concerned. Should any party consider himself agrieved by the record thus made, he shall have a right of appeal to Financial Commissioner. C.-RULES FOR ASCERTAINING AND DEFINING THE RIGHTS AND LIABILITIES OF TENANTS. D.—READJUSTMENT OF RENTS. 10 to 17. Repealed by Punjab Frontier Regulation No. III of 1873. E.—RULES FOR REGULATING THE SUCCESSION TO REVENUE ASSIGNMENTS. 18. The Settlement Officer shall ascertain for each class of revenue assignments granted for more than one life, or for the period of settlement, or for each of such cases where necessary, what rule is best calculated to secure to Government the attainment of the object for which the grant was given. The result of his enquiries shall be submitted to the Commissioner, who shall pass final orders as to the rule to be hereafter followed, reporting the same through the Financial Commissioner for the sanction of Government. 19. All cases in which orders of succession contrary to the orders to be laid down under Rule 18 have been passed shall be reported by the Settlement Officer to the Commissioner, who is hereby empowered to revise the previous orders in the spirit of Rule 18, or in such modified way as the peculiar circumstances of such cases may call for. F. -INVESTIGATION OF SETTLEMENT INA MS AND UNREPORTED REVENUE ASSIGNMENTS. 20. The Settlement Officer shall investigate the tenure of all settlement inams and unreported revenue assignments. 21. He shall have authority to confirm for life, or for the period of the new settlement, all petty inams to village institutions also small inams held by the individuals selected to be Lambardars ; but all other unreported inams shall be reported for the orders of the Commissioner. 22. The Commissioner may confirm for the period of the settlement the inams so reported to him, or he may resume them. 23. The Commissioner may create new small zamindari inams to be held for life, or for the period of settlement not exceeding the amount of those resumed. 24. The case of any important inam shall be reported to Government for disposal under the Jagir Rules, 25. The Settlement Officer shall draw up and submit to the Commissioner, for sanction of Government, rules to regulate the succession to these inams in cases in which the holder may die during the currency of the Aettlement ; and such rule§ when sauctioned shall have the force of law. CixiV PUNJAB FRONTIER REGULATIONS. *G. —RULES FOR REVISING THE APPOINTMENT OF LAMBARDARS. 26. The lambardari arrangements made at the previous Summary Settlement shall be revised on the following principles :- 27. In each community such person or persons shall be appointed, lambardars as are best capable of representing the proprietary body.. Ceteris paribus—a preference shall be given to those who have hitherto held this. office. 28. A multiplicity of lambardars in the same village is. not desirable.. But where a due representation of the proprietary body cannot be otherwise obtained, such number as may be necessary to this object shall be appointed. Great tenderness should be exercised in depriving any individual or family of this privilege when it has been long enjoyed by them. , 29. In every village in which it is necessary to appoint more than one lambardar, a head lambardar shall be selected.. 30. The lambardari cess shall be 5 per cent. on the Government jama,. and in villages in which more than one lambardar is appointed, one-fifth: of this cess, or so much as may be deemed necessary in each case, shall be reserved as an extra grant for the office of head lambardar. 31. The Settlement Officer may, with the sanction of the Commissioner,. supplement the emoluments of any lambardar or head lambardar by a small. inam. This inam to, be given only in respect of the. assignee's own proprietary holding. 32. The appointment of head lambardar shall be for life only, and he, shall be at any time' removable by order of the Commissioner far sufficient cause shown. 33. In tracts where tribal chiefs or headmen are found, whose active-co-operation on the side of Government it may be desirable to secure, the Settlement Officer may, with the concurrence of the Commissioner, award to such persons an allowance (that shall not be more than 10 per cent.) upon the land revenue of the tract in which they have influence. 34. The Settlement Officer shall, with the concurrence of the Commissioner, lay down rules defining the duties and responsibilities of lambar-dars, head lambardars, and tribal headmen, appointed under these rules. * H..—RULES FOR SECURING A SYSTEM OF VILLAGE RECORD. 35. Each proprietary community shall appoint a patwari. The person appointed, shall be a non-proprietary resident of the village, and shall be able-to write.. The proprietors shall be encouraged to appoint persons who can write. Urdu to this post. 36. He shall be paid, where this may appear suitable, by the lease to. him fur the term of his office of a portion of the village shamilat without rent ; or in such other way as the proprietary community may wish, and the Settlement Officer may approve of. 37. There shall ordinarily be a patwari to each village ; but in special cases of small villages the Settlement Officer may sanction a different arrangement. 38. It shall be the patwari's duty to keep a diary, in which shall be punctually recorded all occurrences affecting the tenure of land in the village, and such other matters as may be prescribed to him. 39. To each convenient circle of villages the Settlement Officer shall appoint a naib kanungo. He shall be a resident of his circle, and shall be remunerated by a rate on the jama of each village therein contained, which should not ordinarily exceed 3 per cent. • 40. It shall be the naib karrango's duty to classify in forms similar to that of the settlement record the entries in the diaries of the patwaris of his circle. And he shall generally supervise the patwaris. Repealed by Act XVII of 1887. PUNJAB FRONTIER REGULATIONS. 41. The Settlement Officer shall draw up, with the concurrence of the Commissioner, rules for the further attainment of the objects of these in. structions. The rules shall define the manner in which these officials shall be appointed and dismissed ; their duties and responsibilities, and those of the proprietary community in connection with them ; the papers they shall keep ; and the returns they shall submit ; and the method and rate of their remuneration. *1.---RULES FOR THE FUTURE ANNUAL PAYMENT OF REVENUE. 42. From the time the new assessments come in force, the revenue of each harvest shall be payable in one payment, instead of in two as heretofore.. 43. The Settlement Officer shall fix the latest date for the payment of each harvest's revenue, so that in each tract of different climatic conditions the Government revenue shall fall due about one month after the principal crops are harvested. 44. In every case the new assessments shall come into force from the date fixed for the commencement of the agricultural year, under rule 12 of these rules. * K. -SPECIAL OESSES. 45. The Settlement'Officer willtelect, for the location of village -schools, one or more large village in each Ilaka. Every village so selected will be called upon by him, in consideration of the special advantage it will receive by the location therein of the school, to assign (rent and revenue free) a piece of cultivated land from the village shamilat for the support of the school-master : such land to be given in addition to the 1 per cent. educational cess. 46. A cess of 1 per cent. on the revenue shall be imposed on the pro. prietors, and the proceeds be devoted, under rules to be drawn up at this settlement, to the relief of disease among the population of Ilazara. L.—RULES FOR DEFINING RIGHTS IN VILLAGE SITES. 47. The Settlement Officer shall ascertain and record all customs affecting the ownership of the village site ; and the settlement record shall include a list of the occupants of that site, with such detail as may be practicable ; this list shall also specify the rights and interests connected with each tenement and plot so far as they can be ascertained. 48. The customs affecting the village site thus to be ascertained shall have the same force as the rest of the settlement record ; but the individual entries in the list of tenements shall only be prirad facie evidence of the facts therein stated. M.-STAMPS AND FEES. 49 to 53.—Repeated by Punjab Frontier Regulation No. II of 1874. R.—POWERS OF OFFICERS. 54. The judicial and executive powers of the Settlement Judicial Officers shall remain as at present, except as hereinafter provided. 55. All original orders passed by the Assistant Settlement Officer, Superintendents or Deputy Superintendents, whether -in judicial or revenue proceedings, shall be appealable to the Settlement Officer ; and he may refer to the Assistant Settlement Officer for disposal any appeals from the orders of the Superintendents and Deputy Superintendents. 56. All final orders passed by the Settlement Officer and Assistant Settlement Officer shall be appealable to the Commissioner. 57. The Superintendents and the Assistant Settlement Officer may revise any final order they may have passed with the permission of the Settlement Officer ; and the Settlement Officer and Commissioner may revise Repealed by Act XVII of 1887, • clxvi PUNJAB FRONTIER REGULATIONS. any final order they may have passed at any time bofore the settlement is reported for the sanction of the Local Government. 58. All appeals shall be presented within two months of the order appealed against. O. - CON FIR MATI ON OF THE SETTLEMENT. 59. As the record of rights in each tract is completed, and whenever any customs have been ascertained or defined, and whenever the Settlement Officer shall have prepared any rules, pursuant to these instructions, he shall take an early opportunity of submitting his proceedings to the Commissioner for confirmation. 60. Excepting as in these rules expressly otherwise provided, all records of rights, customs, liabilities, and rules drawn up by the Settlement Officer shall, when confirmed by the Commissioner and Financial Commissioner, be considered a final settlement of all matters therein treated of ; and only those matters shall be revised at ensuing settlements which relate to office bearers and their duties ; and to the amount of and method of paying the Government revenue and cesses, and proprietary rents of any description. And no suit shall lie to enforce a right or usage or liability contrary to the settlement record. Provided that suits may be brought after settlement to show that any given field was entered under a holding contrary to the settlement award in respect of it ; and upon this plea being established the record shall be altered so as to accord with the original award. 61. To prevent injustice occurring owing to the finality thus given to the record, the Settlement Officer shall at once issue a proclamation acquainting the people of Hazara with the preceding rule ; also copies of these rules shall be given gratuitously to each village ; also copies of the final entries in each part of the record shall be given to all persons concerned, before it is reported to the Commissioner for confirmation ; also the Commissioner, before confirming any part of the record, shall satisfy himself by inspection of the rough papers on which it is based, and by personal local enquiry, that it has been prepared with due regard to publicity ; and that full opportunity has been given to dissatisfied persons to appeal against the conclusions arrived at by the Settlement Officer. 62. When the settlement has been concluded, the Settlement Officer shall submit a full report to the Local Government, showing the manner in which all rights and interests, public and private, connected with the settlement have been disposed of. 63. The Local Government may,. within six months of the receipt of this report, annual or vary any of the proceedings therein reported. And if the Local Government is not fully satisfied that the precautions for securing publicity laid down in Rule 61 of this Section have been fully observed, it will issue within the said six months an order depriving such parts of the record as it may consider to be imperfectly prepared of the finality contemplated in Rule 60. 64. Nothing in these rules shall be taken to bar the admission, within three years of the date of the Settlement Officer's final report, of the individual claims of any person who can prove that by reason of absence from the Punjab during the Hazara settlement operations he had no probable means of knowing that they were going on. [See Punjab Frontier Regulation No. II of 1874.] 65. Except as expressly provided in these rules, all the proceedings of the Hazara settlement shall be regulated by the spirit of the enactments under which the first settlements of the interior districts of the Punjab were carried out. VUNJAB FRONTIER REGULATIONS clxvii RULES FOR THE CONSERVANCY OF TREES AND FOREST LANDS IN HA ZARA. Repealed by Punjab Frontier Regulation No. II of 1873, NOTIFICATION. POLITICAL. Fort William, the 20th February 1873. No. 362P.—The following Regulation for the peace !and government of the pargannah of Spiti having been proposed by His Honor the Lieutenant Governor of the Punjab, has been considered and approved by His Excellency the Governor General in Council, and is now published for general infornia. tion, as having the force of law under .33 Vic., Cap. 3, Sec. 1. No. I of 1873. Spiti Regulation, 1873. This Regulation may be called " The Spiti Regulation, 1873 "; it extends to the pargannah of Spiti, and shall come into force on the 1st day of April 1873. 2. When there is reason to believe that an offence has been committed in the pargannah of Spiti, the Nono of Spiti shall cause the person accused or suspected of having committed such offence to be brought before him and shall, in his presence, enquire into such offence. 3. The said Nono shall record, or cause to be recorded, at the time, and in the presence of the accused, the statements -of the complainant, the witnesses, and the accused, and the record of such statements shall be signed .or sealed by the said Nono. 4. If the offence be murder or culpable homicide, -or causing death by negligence, or an attempt to commit murder, or culpable homicide, or the abetment of any of these offences, or the abetment of suicide, or if, in the opinion of the said Nono, it cannot properly be punished by fine, he shall report the case to the Assistant Commissioner of Kuld, and shall, till the receipt of orders from the said Assistant Commissioner, confine the accused person, keeping an account of any sums expended for the guard and keep of such accused person. 5. In the case of any other offence, if, in the opinion of the said Nono, it can be properly punished with a fine of Rupees 200, the said Nono may, if be consider the accused person guilty of the offence, inflict a fine of such amount as he thinks fit, not exceeding Rs. 200. 6. In every case in which the said Nono fines any person, he shall, if such person demand it, give him a copy of his order, and of all statements made in the case. Such copy should be certified to be a true copy by the Nono, and be signed or sealed by him. 7. Any person fined by the said Nono may appeal within a reasonable time to the said Assistant Commissioner. Such appeal need not be on stamped paper, and may be sent through the post. It must be in every instance accompanied by a certified copy of the Nono's, order, and of all statements in the case. 8. If any fine inflicted by the said Nono is not paid within a month, he may order the amount to be realized by attachment and sale of the movable property of the person fined. If such movable property is not sufficient to defray the fine, the Nono may report the case to the said Assistant Commissioner of Kulii, and if the Assistant Commissioner of Kidd procures the sanction necessary for the sale of immovable property, and orders the immovable property of the person fined to be sold, the said Nono may sell so much of CbCViii PUNJAB FRONTIER REGULATIONS. the said immovable property as is necessary to defray the fine or the unsatisfied balance thereof. 9. The Nono shall, when ordered by the Assistant Commissioner of suspended any enquiry in which he may be engaged under this Regulation, and transfer the case and the witnesses to the Assistant Commissioner's Court. 10. The Nono shall not try any case in which he himself, his own servants or relatives, are concerned, but send a report of the complaint in such cases to the Tahsil in KUlti. 11. The Nono shall keep up two registers, to contain the following statements, the numbers in each register to correspond :— Register No. I.—Name of prosecutor, with parentage, age, caste, and residence. Name of accused, with parentage, age, caste, and residence. Charge. Final orders and date. Register No. II,—Name of person fined, with parentage, age, caste, and residence. Date of order. Amount of fine ordered. Amount of fine realized. The statements are to be kept up to date, and the registers submitted twice in the year to the Assistant Commissioner at Kulu together with the fines realized. They must first be sent in the spring, as soon as the passes are open, and again, the second time in the autumn, before the passes are closed. 12. Fines may be inflicted by the said Nono under the Regulation for the following offences :— Committing an assault, voluntarily causing hurt, voluntarily causing grevious hurt, wrongful restraint, robbery, theft, rape, unnatural offences, adultery, abduction of women or of children under the age of ten years, kidnapping minors or persons of unsound mind from lawful guardianship. And such offences, when falling under the jurisdiction hereby conferred upon the Nono, shall not be subject to the jurisdiction or procedure established by the Code of Criminal Procedure. 13. No proceeding of the Nono under this Regulation shall preclude the said Assistant Commissioner from holding an enquiry into any offence committed in the pargannah of Spiti, if he think it desirable to do so. 14. No law hereafter passed by the Governor General in Council shall be deemed to extend to the pargannah of Spiti, unless the same be specially named therein. (Published in the Gazette of India of the 22nd February 1873, and the Punjab Gazette of the 27th February 1873.) FOREIGN DEPARTMENT. NOTIFICATION. REVENUE. Fort William, the 25th February 1873. 35R.—The following Regulation for the conservancy of trees and forest lands in Hazara, is published for information PUNJAB FRONTIER REGULATIONS. Claix Whereas by the Forest Rules sanctioned by the Government of India Preamble. on the 21st May 1S55, and by the supplementary rules for Hazara sanctioned by the Chief Commissioner of the Punjab on the 19th January 1857, Government assumed to itself the right to conserve all trees and forest lands in the said district. And whereas, consequent on the increased demand for timber and fuel, it is necessary to make better arrangements for the said conservancy, and to define more exactly the matters in which that conservancy consists, the following Regulation for the conservancy of trees and forest lands in the Hazara district, having been proposed by the Lieutenant Governor of the Punjab, and having been taken into consideration and approved by the Governor General of India in Council, and having received the Governor General's assent, is now published with reference to 33 Vic., Cap. 3, Sec. L (Published in the Gazette of India of the 1st March 1873, and the Punjab Gazette of the 6th March 1873.) No. II of 1873. Hazara Forest Regulation, 1873. PRELIMINARY. 1. In this Regulation forests or forest land includes all uncultivated hill land, except public ways, grave-yards, sacred places, banks and corners of fields, habited sites, and the land immediately attached to such sites. No land shall be considered " uncultivated " within the meaning of the Uncultivated. preceding clause which may be entered as "cultivated " or " follow " in the faired records of the settlement now being made. The word zamindars means persons who have a prescriptive right to the Zamindars. user of forest land; but this Regulation shall in no case be construed so as to give any person a greater right of user than he possesses independently of this Regulation. This Regulation shall not apply to the hereditary territory of the Nawab Hazara. of Umb. So much of the Regulation published in Notification No. 31P., dated 5th January 1872, as relates to the conservancy of trees and forest lands in Hazara, is hereby repealed. DIVISION OF THE FOREST LANDS INTO RESERVED AND UNRESERVED TRACTS. 2. At the present settlement, the forest land shall be divided by the Reserved and unre-Settlement Officer into reserved and unreserved tracts. The reserved tracts served tracts defined. shall include all valuable forests and all forest land, the close conservancy of which is called for in the public interests, and can be effected without unduly restricting the necessary usances of the agricultural population. All forest land not included in the reserved tracts is referred to in this Regulation as the unreserved tracts. 3. If in any case it may be found impossible to carry out this division Exceptional provisions without excluding from the 6` reserved" tract a, valuable and important forest, in reserved tracts. the Settlement Officer may reserve the forest, su.bject to such exceptions from the sections of this Regulation applicable to the reserved tracts as may be necessary to secure to the zamindars the due supply of their domestic, agricultural, and grazing wants and other necessary usances : the said ex-. captions to be recorded in a settlement proceeding, and in all other respects such tracts are to be treated as "reserved." Also necessary rights of way through reserved tracts, or to drin',:ing places therein, shall be maintained to the zamiudars ; but no rights of this description shall be claimable unless they are recorded in the settlement demarcation proceedings, Definitions. Forest land. clxx PUNJAB FRONTIER REGULATIONS. Boundaries of reserved tracts. 4. The limits of the reserved tracts shall be indicated by conspicuous boundaries. The boundaries to be erected by the Settlement Officer, and thereafter to be maintained by the Forest Department. CONTROL AND MANAGEMENT. Control. 5. Both the reserved and the unreserved tracts will be alike under the control of the Forest Department, as regards all matters of forest administration and forest revenue dealt with by this Regulation, except so far as is, hereinafter otherwise expressly provided. A.—UNRESERVED TRACTS. unreserved tracts. Prohibited acts in 6. In these tracts the following acts are prohibited :— missioner obtained as provided in section 8. Breaking up land for cultivation except after consent of Deputy Com- Setting fire to grass tracts, or negligently permitting fire to extend thereto. Setting fire to brushwood, trees, or stumps of trees. Girdling, lopping, barking, boring for turpentine, or otherwise injuring growing trees. Removing soil or dead leaves from under trees. Felling standing trees of the descriptions included in the seigniorage list [see section 12] or burning kilns, without a valid order under section 16 or 17.. Cutting young trees under any circumstances. Felling for fuel trees included in the seigniorage list [see section 12]. Ripe z of the zamin 7. The zamindars' rights in the unreserved tracts are maintained to the. da74,k < the unreserved following extent and no further :— tract,' defined. (1.) They shall not use the waste products for the purpose of lime,. surkhi, or charcoal burning. (2.) They may within reasonable limits apply to their own uses, domestic and agricultural, any tree included in the seigniorage list [section 12] with the permission previously obtained of the Deputy Commissioner, .or of such other officer as the Deputy Commissioner may appoint for this purpose. No seigniorage fees shall be charged in respect of trees so used.. (3.) Subject to the payment to the zamindars of half the seigniorage fees as provided in section 13, and subject to the claims of the zamindars. provided for in the preceding clause, the trees included in the seigniorage list are the property of the State. And the right to sow, plant out, and reproduce trees included in the seigniorage list is reserved to the State provided that, no land be fenced pursuant to this reservation, except for the purpose of protecting young trees ; and such fencing shall not be maintained longer than. is required for the safety of the young trees. (4.) Land shall not be brought under cultivation except provided in, section 8. (5.) Subject to the exceptions and restrictions aforesaid, the unreserved tracts are the property of the zamindars ; and no forest fees shall be charged to the zamindars on account of the use and enjoyment thereof, except so far as is warranted by the foregoing reservations. 8. If the zamindars desire to bring under cultivation any portion of• Prore, lure for bring the unreserved tracts, they shall first apply to the Deputy Commissioner for ing 'under cultivation permission to do so. If the land mentioned in the application is covered land in the unreserved with valuable forest trees, permission to cultivate it shall ordinarily be tr. ,(.13, refused. Neither shall permission be granted, if the contemplated cultiva- tion would on any other grounds be injurious to forest conservancy. In the absence of such objections, an order shall be passed permitting the cultivation of the land applied for, and the said land shall cease to be forest land. from the date of the said order. PUNJAB FRONTIER REGULATIONS. Clxxi If the zamindars fail to bring the land under cultivation pursuant to this permission within three years from the date of the order granting it, the permission shall lapse, and the land will revert to the forests. Bond fide cultivation of trees for marketable purposes is cultivation within the meaning of this section. Notice of all permissions to cultivate, granted or revoked under this section, shall be sent to the local Forest Officer. 9. Saving such rights as are maintained to the zamindars by section 7 and 8, and excepting the special tracts shall be subject to the same provisions as are prescribed in this Regulation for the reserved tracts. B.—OF RESERVED TRACTS.. 10. All the prohibitions, except the first detailed in section 6 for un- reserved tracts, will also apply to reserved tracts mutatis mutandis. In addition thereto, the following acts are prohibited in reserved tracts :— Grazing or driving cattle or flocks. Cutting grass or brushwood, or collecting fodder. Collecting or selling fallen timber. Collecting gums, resin, honey, wax, or other minor forest produce. Carrying or kindling fire. Carrying any implement to cut wood, except it is carried in Pursuance of a permit to cut. Cultivating land or preparing it for cultivation. Sqatting or building. And it is to be distinctly understood that the zamindars may not exercise in the reserved tracts the rights maintained to them in unreserved tracts by section 7, except where, and so far as, special provision to that effect may be made by the Settlement Officer under section 3. 11. Subject only to the rights maintained under section 3 and to the payment to the zamindars of their share of the seigniorage dhes, as prescribed in section 13, the reserved tracts shall be the property of the State. And the whole of the forest income accruing from them, other than the said seigniorage share due to the zamindars, shall be credited to the State as forest revenue. Unreserved tracts subject to the same provisions as the reserved tracts,' with, stated exceptions. Prohibited acts is reserved tracts. Reserved tracts to be the property of the State. FELLINGS, SEIGNIORAGE AND FOREST INCOME. # 12. The existing list of seigniorage fees for trees felled and kilns burnt Assessment of seig- is hereby maintained, and it shall be open to revision by the Local Govern- nioraye. went after the lapse of five years from the date of its promulgation. Subse- quent schedules shall be similarly revised from time to time, but not oftener than once in every five years, provided that trees may be at any time added to, or excluded from, the list. The seigniorage list may include all valuable timber trees, and the fees denoted in it shall be levied in respect of all such trees felled or kilns burnt on forest land other than fellings exempted by clause 2 of section 7. The fees daay be uniform throughout the district or vary for different tracts. 13. Half of the seigniorage fees levied under section 12 shall he credit- Zamindars' share ed to forest revenue, the other half shall be paid to the zamindars within whose bounds the trees are felled. In cases in which the Forest Department may fell trees or burn kilns on its Own. account, or in which Government may direct that its own share of the seigniorage fees shall not be levied, the share due to the zamindars shall be paid notwithstanding. The Forest Department shall from time to time remit to the Deputy Commissioner the sums due to the zamindars under this rule, specifying in the seigniorage. PUNJAB FRONTIER REGULATIONS. Regulation of fell-ings, &c. Seigniorage fees shall Ze paid in advance. Felling orders and their conditions. Felling orders issued to zctmindars, section 7, clause 2. each remittance the amount due to each village. And the sums thus received by the Deputy Commissioner shall be distributed by him to the zamin-dars entitled to receive them once a year as soon after ahe 1st day of January as is practicable. To enable the Deputy Commissioner to check the correctness of the remittances made, duplicates of all felling orders and of all orders to burn kilns shall be sent to the Deputy Commissioner by the officer issuing them the same day as they are issued. 14. The tender of the prescribed seigniorage fees by any person shall not entitle him as of right to an order for felling the trees or burning the kilns covered by the fees, unless the fees be accepted by an officer competent to issue such orders. But the fellings and kiln-burnings shall be regulated by the Forest Department subject to the general instructions of the Local Government. 15. Seigniorage fees shall in every case be paid in full in advance prior to the issue of any order to fell trees or burn kilns. 16. Every order to fell trees or burn kilns shall be in writing. Such orders shall state the amount of fees paid, and the village within the bounds of which the order shall be executed. They shall not be transferable, nor may they be executed in any other village than that originally named in the order. Such orders shall be subject to such rules as regards cancellation and refund of fees paid ; as regards the selection of the timber to be felled, or the site of the kilns to be burnt ; as regards the manner and time of felling the timber or of burning the kilns ; and as regards the time within which the timber or the out-turn of the kilns shall be removed from the forest lands, as the Conservator of Forests may from time to time prescribe with the sanction of the Local Government. For any breach of such conditions the felling order or kiln order, in respect of which the breach has occurred, may be revoked by the Forest Officer who issued it, and the timber, kiln and kiln-burnings, acquired pursuant to the order, which are then still within forest bounds, may be forfeited ; nor shall any claim lie for the refund of the fees paid in respect of the revoked order : provided always that a printed copy of, the said conditions in the Urdu language was annexed to the order at the time of his issue. 17. Felling orders issued under clause 2 section 7 shall not be subject to the provisions of the preceding section. But they shall be in writing, and a duplicate of each shall be sent at the time of issue to the Executive Forest Officer. Such orders shall lapse if the trees covered by them are not felled within three months from their date. OFFENCES. Breach of this Regulation. Forfeiture of implements, L-c. 18. Any person who commits, or [within the meaning of the Indian Penal Code] abets the commission of any of the acts prohibited by sections 6, 10 and 26 in the tracts respectively concerned, or who voluntarily neglects-the duties imposed on him by section 21, shall, on convicted before a Magistrate, be punished with fine that may amount to Rupees 100, or to ten times the value of the forest produce injured or illicitly taken, and in default of payment with imprisonment of either description for a term not exceeding six months. In the case of a sec, conviction, rigorous imprisonment not exceeding six months may be awarded instead of fine: provided that no sentence of fine or imprisonment shall be awarded by any Magistrate in excess of that which he is competent to award in the exercise of the powers with which he has been invested under the Criminal 1 rocedure Code. 19. The penalty contained in the preceding section may, on the discretion of the adjudicating Magistrate, be accompanied by the forfeiture of all implements, cattle, Or conveyances used in the commission or furtherance of the offences adjudicated, and by the forfeiture of all wood or other forest produce obtained thereby. PUNJAB FRONTIER REGULATIONS. Treatment of illicit cultivation. 20. When the offence found is the illicit cultivation of forest land, the forfeiture authorized in the preceding section may extend to all the produce [growing or reaped] found on the said cultivation, as well as any huts or sheds erected on the land ; and the sentence may further direct that the cultivator be ousted forthwith. 21. It shall be the duty of all zamindars to aid in the extinguishing of forest fires, and in the prevention of forest offences in their vicinity. 22. In cases of serious conflagration occurring in the forest lands, or in any case in which it may appear that any community of zamindars neglects to render reasonable assistance to the Forest Officers in the prevention and prosecution of forest offences, it shall he lawful for the Deputy Commissioner to treat the zamindars in whose vicinity the conflagration has occurred, or the community so defaulting, jointly or severally, as themselves guilty of the said acts, and to sentence them to the fine prescribed in section 18, and in default of payment to imprisonment as therein laid down. Every such conviction may, in the discretion of the Deputy Commissioner, carry with it the deprivation of all forest dues at the time outstanding to the credit of the convicted zamindars under section 13. 23. All cattle found straying or unlawfully grazing in any reserved forest may be seized by any forest official, and when so seized shall be driven forthwith to the nearest pound, to be there dealt with in the manner provided by law for cattle impounded for trespassing on cultivated land. But where cultivation now recorded in the settlement papers closely adjoins the boundary of a reserved tract, no cattle straying from such cultivation or its neighbourhood into the adjoining reserved forest shall be seized under this section, unless the boundary line adjoining the cultivation has been efficiently fenced by the Forest Department. And where a right of way through a reserved tract is maintained, it shall be held to protect from seizure under this section all cattle lawfully driven along the road or track indicated, even though they stray off into the forest, so long as the driver uses reasonable diligence to prevent the cattle from straying, and to drive back such as stray. 24. Convictions' under section 22 shall be appealable to the Commissioner ; all other criminal proceedings under this Regulation shall be appealable or otherwise in the manner provided in the Criminal Procedure Code. MISCELLANEOUS. 25. In any case in which not less than two-thirds of the zamindars hav- ing rights in the particular piece of land in question may so desire, it shall be lawful for the Settlement Officer or for the Deputy Commissioner, after the conclusion of the settlement operations, to set aside out of the unreserved tracts a given portion for strict conservancy, and to record such rules in connection therewith as the zamindars may desire and are not objectionable on general grounds ; the arrangement to hold good for the period of settlement, or for such shorter period as not less than two-thirds of the zamindars may desire. Breaches of such rules shall be punished in the manner provided under sections 18 to 24. 26. The following acts are prohibited, irrespective of their connection [or otherwise] with forest lands :— Injuring or allowing cattle or flocks to injure any trees, groves, or gardens on the sides of roads in cantonments or elsewhere : provided that the said acts be not committed in exercise of a private right. Cutting or injuring tress, which fringe or overshadow natural streams of springs. Cutting or injuring trees, or brushwood, or gardens situate in any graveyard, zidrdt, or other sacred place. Responsibilities zamindars. Communities may be proceeded against. Cattle trespasses in reserved tracts. Appeals. Voluntary coln servancy. injury to trees genel, rally prohibited. clxxiv PUNJAB FRONTIER REGULATIONS,. Copies of maps, &c., to lie made for Forest Department. Date of operation of this Regulation. Short title. Extent of Regulation. Saving of decrees and of agreements between landlords and tenants. Interpretation coma. 27. The Settlement Officer shall cause to be prepared for the Forest Department such vernacular copies of his maps and records as shall be necessary to enable that Department to give effect to this Regulation, without the necessity of constant reference to the settlement records ; and when any subsequent alterations are made in the area of forest lands, similar documents shall be supplied to the Forest Department. The cost of preparing these records shall be paid by the forest Department. 28. Such provisions of this Regulation as are not already in force, shall come into force from the 1st day of April 1873. As regards forest laud reserved subsequently to that date, the provisions relating to reserved tracts shall have effect therein from the date of the Settlement Officer's order re; serving them. 29. This Regulation shall cease to be in force on and after the 1st day of April 1874. [See Punjab Frontier Regulation No. V of 1874, which extends the period during which this Regulation shall continue in force]. FOREIGN DEPARTMENT. NOTIFICATION. REVENUE. Fort William, the 1st April 1873. NO. 55 R.—The following Regulation for the Hazara District in the Punjab is published for general information :— Whereas the provisions of the thirty-third of Victoria, Chapter III, section 1, have been by Resolution of the Secretary of State for India in Council declared to be applicable to the Hazara District in the Punjab And whereas a draft of the following Regulation fo:: the peace and good government of the said District has been proposed to the Governor=General in Council by the Lieutenant-Governor of the Punjab, together with the reasons for proposing the same ; And whereas such draft and reasons have been taken into consideration by the Governor-General in Council; And whereas the said draft has been approved of by the Governor-General iii Council and has received the Governor-General's assent : The following Regulation is hereby published under the provisions of the said section. IsTo. III of 1872. Hazara Tenancy Regulation. CHAPTER I.—PRELIMINARY. 1. This Regulation may be called " The Hazara 'Tenancy Regulation, 1873," and shall extend only to the Hazara District of the Punjab. 2. Nothing contained in this Regulation shall affect the operation of any decree of Court under which a tenant holds, or of any agreement between a landlord and a tenant, when such agreement is in writing or recorded by the proper officer in the record of a regular settlement sanctioned by the Local Government. All entries in such record made previously to the eighteenth day of November 1871, in respect of matters comprised in Chapters 111, 1V, V, and VI of this Regulation shall, when attested by the proper officer, be deemed to be agreements within the meaning of this section. 3. In this Regulation, unless there be something repugnant in the subject or context—_ :PUNJAB FRONTIER REGULATIONS. cixx " Land" means immovable property for the time being subject to a settlement, whether regular or summary, of land revenue ; " Land." " Rent " means whatever is payable by an occupant of land on account of the use or occupation thereof , " Rent." Any instalment of rent which is not paid on or before the clay when the same becomes due, whether under a written agreement or according to law or local usage, shall be deemed to be, for the purposes of this Regulation, an arrear of rent ; " Arrear of rent.?, " Tenant " means any occupant of land liable to pay rent therefor, but does not include an under-proprietor ; " Tenant." " Landlord " means any person entitled to receive rent payable by a tenant ; " Landlord." " Grandfather " includes the father of an adoptive father, " uncle " the brother of an adoptive father, and " grand-uncle " the adoptive father of an uncle ; " Grandfather," "uncle" and "granduncle." " Representative " means an heir or any other person taking by operation of law or by will a beneficial interest in the property of a deceased person ; " Representative.", " Election." And "Section " means a section of this Regulation. 4. Sections 10 to 17 inclusive of the Hazara Settlement Rules, published in the Notification i:a the Gazette of India, Political, No. 31P., dated 5th January 1872, are hereby repealed. CHAPTER IL -OP RIGHTS OF OCCUPANCY. 5. every tenant who— Tenants having (a) has heretofore paid no rent and rendered no service, in respect of right of occupancy. the land occupied by him, to the proprietor thereof for the time being be- yond the amount of land revenue and village cesses for the time being chargeable thereon, and whose father and grandfather, uncle an.d grand-uncle, occupying the same land, have paid no rent and rendered no service in res- pect thereof to such proprietor, beyond the amount aforesaid ; proprietary rights in any laud otherwise than by forfeiture to Government ; or any part thereof from the time of such parting ; and who has continuously occupied or shall continuously occupy such land (b) or who has involuntarily parted or shall involuntarily part with (c) or who is at the date of passing of this Regulation the representative of a person who settled as a cultivator in the village in which the land occupied by such tenant is situate along with the founders of the village ; (d) or who is or has been iagirdar of the village or any part of the village in which the land occupied by him as tenant is situate, and who has continuously occupied such laud for not less than twenty years ; ( e ) or who either himself or through his predecessors has continuously occupied his holding from a period anterior to the Summary Settlement of 1847 ; (f) or who has continuously occupied his holding from a period within the first Summary Settlement, paying no proprietary rent other than the share of land revenue and ceases rateably chargeable to his holding— shall be deemed to have a right of occupancy in the land so occupied. Explanation 1.--`Predecessors " includes a person from whom an existing tenant has purchased. Explanation 2.—Tenancies interrupted during Sikh rule, and revived in the same village prior to the second Summary Settlement, are continuous within the meaning of this section. Similarly, exchanges of field prior to the second Summary ;Settlement, and exchanges within the meaning of see.. Lion 7, are not a breach of continuous tenure. -C1XXVI PUNJAB FRONTIER REGULATIONS. Presumption arising from entry in settlement record. Rebutted of presumption. Exception 1. —No ocupancy rights shall be awarded to village servants in respect of land held by them in remuneration for their customary services. Exception 2.—No tenant shall be awarded a right of occupancy in land of which the proprietary title is owned by his own tribe, unless he has been excluded from proprietary heritage in the trible system. Exception 3.—No tenant shall be awarded occupancy rights in respect of the land of groves and fruit gardens originally planted by the landlord. 6. Every tenant whose name appears in the records of a regular or re- vised Settlement, heretofore sanctioned by the Local Government, as having a right of occupancy in land which he or the person from whom he has immediately inherited has continuously occupied from the entry of his name or the name of such person (as the case may be) in such settlement, shall be presumed to have a right of occupancy in the land so occupied, unless the landlord shall in a regular suit prove (a) that within the thirty years immediately before the institution of such suit, other tenants of the same class in the same or in adjacent villages have ordinarily been ejected from their holdings at the will of the landlord or (b) that the tenant has voluntarily admitted before any officer employed in making or revising a regular settlement of land revenue, or before any officer authorized to attest the entries in the record of such settlement, that he is a tenant not having a right of occupancy, and that such admisson has been recorded at the time by the officer so employed or authorized. 7. If the tenant has voluntarily exchanged the land or any portion of the land formerly occupied by him for other land belonging to the same landlord, the land taken in exchange shall, for the purposes of this Regulation, be held to be subject to the same right of occupancy as the land given in exchange would have been subject to, if the exchange had not taken place. 8. Nothing herein contained shall be deemed to preclude any person claiming a right of occupancy on any ground other than the grounds herein-before specified from suing to establish such right. 9. Except as herein expressly provided, no tenant shall be deemed to -acquire a right of occupancy by mere lapse of time. [The second clause of this section has been repealed by Punjab Frontier Regulation No. III of 1874.] Right of occupancy in land taken in exchange. Suits to establish rights of occupancy en other grounds. Non-acquisition of right of occupancy by lapse of time. Decree for enhancement of rent. CHAPTER Ili.-OF RENT. 1.— Enhancement. 10. No tenant shall, in the absence of an agreement or decree of Court to the contrary effect, be held liable, in a suit for arrears of rent in respect of any land, to pay rent exceeding in amount the rent payable by him in respect of such land for the last preceding agricultural year, unless a decree for the enhancement of the rent has been made as hereinafter provided. The said Lieutenant-Governor shall have power, from time to time, by notification in the Official Gazette, to decree for the Hazara, District the day on which the agricultural year shall, for the purpose of this section, be deemed to commence. [The Lieutenant-Governor has declared that the agricultural year shall, for the purpose of this section, be deemed to commence on the 15th day of June in each year.] 11. The Court may decree that the rent previously payable by any Grounds of enhance- tenant having a right of occupancy may be enhanced on any of the following melte. grounds : PUNJAB FRONTIER REGULATIONS. clxavii 1st Ground.—That the quantity of land held by him as tenant exceeds the quantity for which he has previously been liable to pay rent. Rule. —In this case the Court shall decree rent for the land in excess at the same rate as that payable in respect of the laud of a similar description and with similar advantages held by him of the same landlord. 2nd Ground. —That the rate of rent paid. by him is below the rate of rent usually paid in the same or adjoining village by the same class of tenants . having a right of occupancy for land of a similar description and with similar advantages. Rule.—In this case the Court shall enhance his rent to the amount claimed by the plaintiff not exceeding such rate. 3rd Ground. —That the rate of rent paid by him is, if he belong to the class described in clause (a) of section 5, more than 50 per centum, if he belong to any of the classes specified in clause (b), (c), or (d) of section 5, or in clause ( e ) of section 5, and his occupation shall have continued undisturbed from a time previous to the famine of 1783, more than 30 per centum, and if he belong to the class specified in clause (e) of section 5 and his occupation shall not have continued undisturbed from a period anterior to the famine of 1783, or if he belong to the class specified in clause (f) of section 5 or in section G, more than 50 per centum below the rate of rent usually paid in the neighbourhood by tenants of the same class not having a right of occupancy for land of a similar description and with similar advantages. Rule.—In this case the Court shall enhance his rent to the amount claimed by the plaintiff not exceeding such rate, less 50 per centum, 30 per centum, or 15 per centum, as the case may be. 12. If the revenue or any of the village cesses is payable by the defendant, the rate to which his rent may be enhanced shall be reduced by the amount so payable. 13. After a decree has been passed under section 10, no suits shall lie against the defendant for re-enhancement of his rent until the expiration of five years from the date of such decree, unless in the meantime there has taken place a general revision of regular settlement under which the revenue payable for the land comprised in the decree has been increased. 2. —Abatement. 14. Every tenant having a right of occupancy shall be entitled to claim abatement of the rent previously paid by him on either of the following grounds, and on no others :— (a) that the area of the land in his occupation has been diminished by diluvion or otherwise, or proved to be less than the quantity for which rent has been previously paid by him ; or (b) that the productive powers of such land have been decreased by any cause beyond his control. 3. —Remission. Enhancement when tenant pays revenue or cesses. Suit for re-enhancement. Grounds of right to abatement. 15. Notwithstanding anything hereinbefore contained, it shall be lawful When Court may allow remission from rent. for the Court, in making a decree for an arrear of rent, if the area of the land in the tenant's occupation has been diminished by diluvion or otherwise, or if the produce of such land has been diminished by drought or hail, or other calamity beyond his control, to such an extent that the full amount of rent payable by him cannot, in the opinion of the Court, be equitably decreed, PUNJAB FRONTIER REGULATIONS. to allow such remission from the rent payable by him as may appear equitable Provided that if the tenant hold a lease for an unexpired term of not less than five years, or have a right of occupancy in a revenue-paying estate, no such remission shall be allowed to him, unless a remission of revenue has been allowed on the same ground and by competent authority in respect of the same estate. 4. —Rent in Kind. Procedure in case of dispute. 16. No commutation of rent in kind into rent in money, and no commutation of rent in money into rent in kind, shall take place without the. consent of both the landlord and the tenant. 17. Whenever rent is taken by division of the produce in kind, or by estimate or appraisement of the .Stanciing crop, or other procedure of a similar nature, requiring the presence of the person entitled to the rent and of the cultivator, either personally or by their recognised agents, if either party neglects to be present et the proper period, or if a dispute arises between the parties regarding such division, estimate, or appraisement, either party may present an application to the Court, requesting that a proper person be deputed to make the division, estimate or appraisement. 18. On receiving such application and such sum to be paid in the first instance by the applicant, as the Court thinks sufficient to defray the costs of serving the notice and making the award next hereinafter mentioned, theyshall issue a written notice to the other party, requiring him to attend on the date and at the place specified in the notice, and shall depute a proper person to make the division, estimate, or appraisement, and to direct by whom the costs of each party are to he paid. The award of such person in resqect of the said division, estimate, or. appraisement, and costs, shall be final, unless within three months from the: date thereof either party institutes a suit to set it aside. Commutation of rent in kind. Division and ap-praisement of produce taken for rent. CHAPTER IV.—OF EJECTMENT. Ejectment of tenant with right of occupancy. Ejectment of tenant without right of occupancy. 19. No tenant having a right of occupancy in any land shall be ejected therefrom, otherwise than in execution of a decree. Such decree shall not be made, unless— (a) at the date of the decree, a.decree agains:, such tenant for an arrear-of rent in respect of such land has remained unsatisfied for fifteen days or-upwards ; or (Ii) the landlord tenders to the tenant, in addition to any compensation to which he may be entitled under sections 27 and 37 (but subject to deduction in respect of the arrears of rent, (,if any, payable by him), such compensation as the Court thinks fit, not less than fifteen. and not more than thirty times the amount of the net annual profits receivable by the tenant in respect of such land on an average of the three years next before-the date of the tender. Nothing in the last preceding clause shall be deemed to apply to a tenant belonging to any of the el.tsses specified in section 5, or to a tenant when he, or the parson from whom he bas inherited, has continuously occupied such land fel' thirty years or upwards. 20. A tenant not having a right of occupancy may be ejected— first, if a decree has been obtained against him for arrears of rent or for ejectment ; or, second, when he is not holding under an unexpired lease, or an agreement, or a decree of Court, by notice given by the landlord in, manner fiere• inafter mentioned. PUNJAB FRONTIER REGULATIONS. 21. Notwithstanding anything to the contrary in this Regulation, no ejectment of a tenant shall be enforced except between the fifteenth day of March and the fifteenth day of June, unless, while the rent in respect of such land is in arrear, the tenant has failed to cultivate the land in accordance with the terms on which he holds it. Notice of ejectment. 22. The nc Lice of ejectment shall be written in the vernacular language of the district ; it shall specify the lands from which the tenant is to be ejected ; and it shall inform him that, if he means to dispute the ejectment be must institute a suit for that purpose on or before the fifteenth day of April next after the service of the notice, or quit the land on or before that date. The said Lieutenant Governor shall determine what, for the purposes of this section, shall be deemed to be the vernacular language of the Hazara District. 23. On the landlord's application to the Tahsildar or other officer authorized to serve such notices, the notice shall be served by him on or before the fifteenth day of March, and the landlord shall pay the costs of service. The notice shall, if practicable, be served personally on the tenant. But if he cannot be found, service may be made by affixing the notice at his usual place of residence, or, if he does not reside in the district wherein the land is situate, at some conspicuous place in the village wherein the land is situate. 24. The said Lieutenant Governor shall have power, from time to time, by notification published in the Official Gazette, not less than six months before such notification is to come into force, to fix, for the purposes of sections 22 and 23 in the B azara district, any two days other than the days fixed in the same sections : Provided that between the days so fixed by notification there shall be an interval of at least one month. 25. If the tenant on whom such notice of ejectment has been served fails to institute on or before the fifteenth day of April next after the service, or, in case the said Lieutenant Governor fixes for the purpose of section 22 any day other than the said fifteenth day of April, then or before the day so fixed, a suit to contest his liability to be ejected, his tenancy of the land in respect of which the notice has been served, shall be held to cease on that clay. 26. If no such suit be brought, or if such suit be brought and dismissed, and the landlord require the assistance of the Court to eject any person whose tenancy is alleged to have ceased under the provisions of section 22, he may apply for such assistance ; and if the Court be satisfied that notice of ejectment was duly served on such person, it shall, subject to the provisions of section 19, give such assistance accordingly. Nothing done by the Court under this section shall affect the right of any tenant to institute a suit against his landlord on account of illegal ejectment, and to recover compensation for the same. Growing crops. 27. Any tenant ejected in accordance with the provisions of this Regulation shall retain his rights to the ungathered products of the rabi harvest. Provided that, if the land has been sown or planted by the tenant after tho service on him of the notice mentioned in section 20, he shall not be so entitled, unless, after such service, the landlord has expressly authorised him to continue to occupy the laud. Assistance to eject. Notice of ejectment. Service of notice. Power to alter dater for suing to dispute; and for serri,ig notice of ejectmeut. Cessation of tenancy on failure to contest notice. When assistance to eject may be given by Court. Right of ejected tenant to retain ungathered products. ON XX PUNJAB FRONTIER REGULATIONS. CHAPTER V.-OF RELINQUISHMENT, LEASES AND UNDER-LEASES, ALIENATION AND SUCCESSION. Relinquishment of land by tenant. I.—Relinquishment. Power to fix commencement of agricultural year for purposes of section 28. 28. Every tenant shall be liable to pay the rent payable in respect of the land in his occupation for the ensuing agricultural year, unless, on or before the tenth day of January next before the commencement of that year, he gives notice to the landlord of his intention to relinquish such land before the commencement of such year, and relinquishes it accordingly, or unless the land has been let to any other person by the landlord. Discharge of tenant. 29. The said Lieutenant Governor shall have power, from time to time, by notification in the Official Gazette, to declare, for the Hazara district, the day on which the agricultural year shall, for the purposes of section 28, be deemed to commence, and, in lieu of the said tenth day of January, to substitute, for the purposes of section 28, in the same district, such day as he, thinks fit. Refusal to receive notice. 30. If the tenant relinquishes the land according to his said notice, he shall be discharged from all liability to pay the rent, which would otherwise have accrued due in respect of such land after the date of the relinquishment. 31. If the landlord or his recognized agent refuse to receive such notice, the tenant may apply to the Tahsildar or proper officer, and a written notice shall thereupon be served by him on such landlord or agent, and the tenant shall pay the costs of service. The notice shall, if practicable, be served personally on the landlord or-agent. But if he cannot be found, service may be made by affixing the notice at-his usual place of residence, or, if he does not reside in the Hazara district,. at some conspicuous place in the village wherein the land is situate. 2. —Leases and Under-leases. 32. Every tenant having a right of occupancy may let or under-let the-land in his occupation or any part thereof. Provided that nothing in the former part of this section shall be deemed to affect any agreement on the part of a -lessee that he will not, or will not without the previous consent of the lessor or his representative, under-let or part with the possession of the said land or any portion thereof. 33. Every person to whom land is let or under-let under section 32 shall, in respect of such land,, and so far as regards the landlord and his representative, be subject to all the liabilities under this Regulation to which the lessor or under-lessor would have been subject in respeci, of such land, and so far as regards such landlord and his representative, in case the lease or under-lease had not been made. Right to let under-let. Saving of agreements not to let or sub-let. Liability of lessee and under-lessee. 3.—Alienation. Right of tenant to alienate. 34. Any tenant having a right of occupancy claimable in accordance with the terms of any of the clauses of section 5 may alienate the land in his Landlord's right of pre-emption. occupation, or any part thereof : Rights and liabilities of tenant's alienee, • Provided that in every such case the land or part aforesaid shall be offered for sale in the first instance to the landlord at the market value, and shall not be alienated to any other person unless the landlord shall, for the space of one month, refuse or neglect to complete the purchase. Every other tenant may alienate the land in his occupation, or any part thereof, with his landlord's previous consent, but not otherwise. 35. Every person other than the landlord to whom land is alienated under section 34 shall, in respect of such land, have the same rights and be subject to the same 1iabilit-ies as the tenant waking the alienation. PUNJAB FRONTIER REGULATIONS. 4. —Succession. 3G. When a tenant having a right of occupancy in any land dies, his Succession to right right shall devolve on his male lineal descendants (if any), and, failing such of occupancy. descendants, the right shall go to his male collateral relatives ; provided that the common 'ancestor of the deceased and his said relatives shall have oc- cupied such land. As among descendants and collateral relatives claiming under this section, such right shall devolve and go as if it were land left by the deceased in the village in which such land is situate. CHAPTFR VT.—OF COMPENSATION FOR TENANT'S IMPROVEMENTS. 37. If any tenant, or, in the case of a tenant with a right of occupancy, the person from whom he has inherited, makes any such improvements on the land in his occupation as are hereinafter mentioned, the rent payable by him or his representative in respect of such land shall not be enhanced, nor shall he or his representative be ejected from the same land, unless and until he or his representative, as the case may be, has received compensation for the money or labour, or both, expended in making such improvements by him, or the person from whom he has inherited, or whom he represents, within thirty years next before the date of such enhancement or ejectment. 38. The word " improvements," as used in section 37, means works by " Improvements " which the annual letting value of the land has been, and at the time of de- defined. manding compensation continues to be, increased, and shall comprise- 1st. —The construction of works for the storage of water, for the supply of water for agricultural purposes, for drainage, and for protection against foods ; the construction of wells, the reclaiming and clearing of waste lands, and other works of a like nature. 2nd.—The renewal or reconstruction of any of the foregoing works, or such alterations therein, or additions thereto, as are not required for maintaining the same, and which increase durably their value. 39. Such compensation may, at the option of the landlord or his re- Compensation hour presentative, be made— made. (a) by payment in money ; (b) by the grant of a beneficial lease of the land by the landlord or his representative to the tenant or his representative ; or (c) partly by payment in money, and partly by the grant of such lease as aforesaid. 40 In case of difference as to the amount or value of the compensation Provision for differ. tendered, either party may present an application to the Court stating the ence as to amount or matter in dispute, and requesting a determination thereof. value of compensation. Notice of such application shall be served on the other party by the proper officer, and the applicant shall pay the costs of service. On receiving such application, the Court shall, after taking such evidence as the parties or either of them may adduce, and after making such further enquiry (if any) as it may deem necessary, determine (as the case may be) the amount of the payment, or the terms of the lease, or both : Provided that, in determining such amount or value the Court shall take into account any assistance given by the landlord, either directly by money, material, or labour at the time of making such improvements, or indirectly by subsequently allowing the tenant to hold at a rate of rent more favourable than the rate at which he otherwise would have held. 41. If in any case a landlord tenders to a tenant a lease of the land in his occupation, for a term of not less than twenty years from the date of the tender, at the annual rent then paid by the tenant, or at such other annual rent as may be agreed upon, such tender, if accepted by the tenant, shall bar any claim by him or his representative in respect of improvements previously made on such land by the tenant or the person from whom he has inherited. Tenant's right to compensation for improvements. Tender of lease for twenty years to bar right to claim compensation. clxxxii rUNJAB FRONTIER REGULATIONS. CHAPTER VIT. -Op PROCEDURE. Civil Courts to hear vases tender certain sections. 42. Cases cognizable under sections 5, 6, 11, 14, 19, 20, and 25, shall, unless otherwise provided for by any law for the time being in force, and subject to the provisions of section 21 of Act No. XIX of 1865 (to define the jurisdiction of the Courts of Judicature of the Punjab and its dependencies), be heard in the Civil Courts other than the Courts of Small Causes, unless when such Courts of Small Causes shall have been specially empowered by the Local Government, under Act No. XI of 1865, section 6, to hear such cases. Applications under sections 17, 23, 26, and 31 shall be deemed to be proceedings on the revenue side ; they shall be subject to the rules of procedure for the time being in force in such cases ; and all orders on such applications shall be appealable to the Financial Commissioner of the Punjab. 43. The procedure now in force in the Punjab for the recovery of rent shall, except in so far as it is inconsistent with the provisions of this Regulation, continue to be in force. 44. All proceedings of officers of Government in making or revising, prior to the passing of this Regulation, settlements of land revenue, shall, so far as such proceedings are consistent with the provisions of this Regulation, and subject to appeal and revision when an appeal or a revision is provided be deemed to have been taken in accordance with law. FOREIGN DEPARTMENT. NOTIFICATION. POLITICA L. The 10th July 1873. No. 1531 of 1873. —The following Regulation is published for general information :— No. IV of 1873. Punjab Frontier Regulation Amendment Regulation. Regulation to amend the Punjab Regulation for the peace and government of the Districts of Hazara, Peshawar, Kohat, Bannu, Dera Ismail Khan, and Dera Ghazi Khan (published in Foreign Department Notification No. 31P, dated 15th January 1872) :— Whereas the Secretary of State in Council has, by Resolution in Council, declared the provisions of the thirty-third of Victoria, Chapter three, applicable to the Districts of Hazara, Peshawar, Kohat, Bannoo, Dera Ismail Khan, and Dera Ghazi Khan ; And whereas the Lieutenant Governor of the Punjab has proposed to the Governor General in Council a draft of the following Regulation, together with the reasons for proposing the same ; And whereas the Governor General in Council has taken such draft and reasons into consideration, and such draft has been approved of by the Governor General in Council, and has received the Governor General's assent ; In pursuance of the direction contained in the 1st section of the said thirty-third Victoria, Chapter three, the said draft is now published in the Gazette of India, and will be published iu the Local Gazette, and will there• upon have the force of law :— Application under ,certain sections to be ,proceedings on revenue side. Saving of procedure for recovery of rent. Confirmation of proceedings of Settle-anent Officers. PUNJAB PRONTIER ItEC4MATIONS. Cii X XIII 1. The sixth section of the Punjab Regulation for the peace and government of the Districts of Hazara, Peshawar, Kohat, Bannoo, Dera Ismail Khan and Dera Ghazi Khan is repealed. 2. Whenever any person or persons shall be accused of any offence, if, in the opinion of the Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of such person or persons, or of any of them, should be tried according to the ordinary procedure, the Deputy Commissioner may cause such question to be referred to the decision of elders, convened according to the Pathan or Beloch usage as he may in each case direct, and may cause their decision thereon to be carried into effect as if it were a sentence of a Court of law : Provided that no decision imposing any penalty other than a fine shall be carried into effect as aforesaid. The powers conferred by this section may be exereised notwithstanding any proceedings, short of actual conviction or acquittal of the accused person against whom they are exercised, taken or recorded under the ordinary procedure, and as against some of the persons jointly accused of an offence, though the ordinary procedure is followed in the case of others. (Published in the Gazette of India of the 12th July 1873, and the Punjab Gazette of the 17th July 1873.) .A-1:::61=DI\TDI= Rules of succession to and lapse of revenue free assignments granted in perpetuity. 64. In August 1852 the Governor General in Council laid down the rule that where grants were assigned in perpetuity, the tenure should lapse to Government on the failure of male legitimate issue in the line of the original grantee. the term " original grantee" in the above rule was, under the authority of the Governor General in Council, defined to mean the party to whom the British Government had confirmed the grant. The succession of collateral re-. latives of the person to whom the grant was confirmed by the British Government was thus barred. 66. The above rules were circulated to all Commissioners by the Board of Administration's Circular No. 54 of 1852, Territorial extent of above and were repeated in Book Circular LIII of rules. 1860 as those applicable to grants in perpetuity in the Punjab Proper and the Trans-Satlaj States, it being added that the conquest jagirdar of the Trans-Satlaj States and the subject chiefs of the Cis-Satlaj States had their own peculiar rules. Grants in perpetuity after 1850. Book Circular XLIII of 1860, and Government of India No. 476, dated 25th Novr. 1859, to Secretary to Government Punjab. 68. Subject to any special limitations contained in the grant, succes- sion is governed by the law of inheritance What law governs the applicable to the family, so far as it is consist. succession. ent with these rules. In some cases a ens- Book Circular LIII of tomary rule of inheritance, applicable to the 1860, para 8. jdgir and to property considered to be in- separable from the chiefship, has been established, different from the rule applicable to other property in the same family. When this is the case, the law of lapse does not apply to the property attached to the chiefship, but only to the assigned land revenue. 69 Owing to various causes nothing was done to carry out the order given by the Government of India in 1846 Succession to jdgir estates that the rules of succession to jagfr estates in in the Cis-Satlaj territory. the Cis-Satlaj territories should be ascertained and authoritatively declared until after the second Sikh war. On the 31st December 1850 the Punjab Board of Administration submitted a report on the subject, and requested that a distinct rule should be laid down by Government regarding collateral pattiddri shares in the Cis-Satlaj States, as the subject was one on which conflicting decisions Limitation of the succession. No. 2990, dated 27th August 1852, to Board of Administration. 65. In November 1852 Meaning of term " grantee." No. 4436, dated 25th November 1852, to the Board of Administration. 67. New grants made after the 25th November 1859 descend integrally to a single heir, whose title does not become complete until confirmed or recognized by Government. REGULATIONS OF THE SETTLEMENT OFFICERS, CiXXXVt- had hitherto been given by the officers in charge from time to time. In. Government of India's No. 461, dated 12th Feb-Rules of succession to pat- ruary 1851, to the Board, the following rules ticiciri, or horsemen's shares. were laid down for regulation of succession to pattiddri or horsemen's shares :— I.—That no widow shall succeed. IL—That no descendants in the female line shall inherit. III.—That on failure of a direct male heir, collateral male heir may succeed if the common ancestor of the deceased and the collateral claimant was in possession of the share at or since the period 180S-9, when our connection with the Cis-Satlaj territory first commenced. 70. The reason for adopting the status of 1808-9, as that by reference to which question of succession should be decided, were then given, and it was added that— " This rule, clearly laid down, will govern the majority of cases which occur, and His Lordship does not see any necessity for establishing an absolute rule in the case of large estates. Each case may, without any difficulty, and with great advantage, be determined upon its own merits as .it arises. His Lordship would, however, remark that consideration of the custom of family should have a preponderating influence in the decision of such cases." Para. 7. 71. With reference to decisions already given at variance with the rules thus laid down, it was directed that these were by no means to be disturbed. " All parties who have received possession from a British officer should retain it for their own lives, except females, who should receive pensions instead." Exception in favor of parties placed in possession by order of any British officer. 72. In forwarding these orders to the Commissioner Cis-Satlaj States, No. 316, dated 26th Feb- the Board of Administration called attention to ruary 1851, paras. 3 and 4. the order of Government as to succession to Demise of holders of "large the large estates, and added " each demise is estates" to be reported. to be reported, with a statement of the custom of the family." After quoting the latter rule, they added the following explanation :--" This restriction as to females is to Cases of females placed in n apply only to cases on which Mr. Vasittart and Major Mills and other Assistants* gave possession by British officers how to be disposed of. orders. Should there be any instances in. which the Governor General's Agent put fe- males in possession of estates, and did not obtain the sanction of Govern- ment, they are to be reported for submission." Exception in favor of male heirs who succeeded to widows. No. 908, dated 10th February 1853, from Secretary, to Government of India, to Chief Commissioner. I' The Board's reference to Government specially referred to the orders of these officers. Para. 6. These rules not applicable to " large estates." Regard to be paid to custom of the family. 73. In 1853 the Governor General added the further rule that male heirs who succeeded to widows in possession in 1809 should retain the grants for their respective lives, and authorized four cases mentioned by the Board in which widows who had been in possession in 1808-9 were still in possession, being dealt with in the same manner. REGULATIONS OF THE SETTLEMENT OFFICERS. 74. In 1854 the Court of Directors ordered that such widows as were still in possession should be left undisturbed Exception in favor of. widows in possession. for life, unless they consented to receive pen- sions of equivalent value in lieu of their land-Despatch, in Political De- ed rights. Where resumptions bad already partment, No. 36, dated been carried into effect before their orders 23rd .A.ugnst 1854. were received, they did not consider it necessary to interfere, 75. It will be observed that in the orders of 12th February 1851 no absolute rule was laid down regarding the Meaning of the term "large succession to " large estate." In October 1851 estates." Mr. G. F, Edm,onstone, Commissioner, in writing to the Board of Administration, remarked that he understood the orders of Government applicable to pattiddri or horsemen's shares only. No. 404, dated' 18th Octo. " I presume," he says, " that the term ' large M ates ' was meant to comprehend such estates ber 1851, to Board of Ad- as Buriah, Shahzadpur, IPlanimajra, Sialbah ministration, para. 2. and others, which are held not by fraternities of pattidars, as the pattidars of Bilaspur, Sadhaurah, Tharwah, Ambalah and. Boh, for instance, in fractional horsemen's shares, but by an individual Sar-dar, as the Sardar of Buriah, or by the descendants of one or more Sardars, as the Singhpurias. I find it difficult to propose any definition of the term 'large estates,' and am compelled, therefore, to exemplify my meaning." He therefore considered the estates of Buriah and Raipur, regarding which he had received references from the Settlement Officers, to be exempt from enquiry into the status of 1808-9 as being " large estates." No.. 207,dated 21st January 1852, from Secretary to Board of Administration to Commissioner,. cis-Satlaj States. 76. The Board of Administration, in reply, expressed their concurrence in his opinion that " the term 'large estates.' was meant to comprehend such estates as Buriah, Shahzadpur and others, held not by fraterni. ties of pattidars, but by individual Sardars or their descendants." 77. In practice the status of 1808-9, though not absolutely prescribed Status of 1808-9 generally for guidance. by Government, has almost in- referred to. as governing , variably been ref erred to as governing claims of callaterals to suceeed. to large estates, the "lame estates." collateral succession, to custom of the family being referred to only to determine whether the estate should descend integrally or. be divided among the. nearest heirs, either in equal or unequal shares, what provision should be made for widows, and other points of the like nature. The only express rules with regard to such successions, besides the order of the Government of India, that particular regard should be had to. No, 766, dated 23rd June. the custom of the family, are contained in a * letter of June 1860, • from the Secretary to the Punjab Government, to the Financial Commissioner, with regard to the succession to the chieftainship of Kheri, in the Ludi4nah District., It is there laid down that succeitsions to such estates should be settled by. order of the Commissioner, and that legitimate issue should always succeed in preference to illegitimate children. Primogeniture introduced in a branch of the Ramgarh family. 78. In one case, that of the jcigir of the No. 1490, dated 1st April 1859, from Under-Secretary to Government of India, to Secretary to Government, Punjab, elder branch of the ROmgarh family, in the Ambtlah District, the Government of India, in 1859, authorized the substitution of succession according to primogeniture for division amongst the heirs, which had been the vre, vious custom. Commissioner to determine the succession Preference of legitimate issue. REGULATIONS OF THE SETTLEMENT OFFICERS. elxxxvii 79. In some cases where a strict application of the status of 1808-9 Rules of collateral suttee- would have led to shares long held by individual pattidars being declared to have lapsed, sion to pattidari shares modified in certain cases, actual possession at the time of the enquiry was allowed to be taken as the basis on which collateral succession should be regulated for the future. This was the rule applied to the Narayangarh, Bhirog, and Thinesar pattidars. 80. In 1853 it was brought to notice that certain chaudhrfs held shares, The Kharar Chaudhrfs usually one-seventh, in jdgir villages of the ' Kharar tahsil, and that their tenure was prior to, and distinct from, that of the Sikh jagirdars who held the remainder. The Governor General in Council authorized No. 3601, dated 19th Au. gust 1853, to Chief Commis- their being placed on the same footing in regard to lapses and commutation for service as sinner, Punjab. the other Cis-Satlaj jagirdars, except that the succession should be limited to the lineal heirs male of the persons in possession when the order was given. 81. In the case of the chaharami jagirdars, who had held the revenues In the case of the chahara. of certain villages in shares with Patialah, and. mis, the rules of succession were brought under British jurisdiction, receiv-to pattiddri shares reverted ing whole villages,to the amount of their shares, to. the registers to regulate successions were in the first instance prepared with reference to the status of 1852, the year in which the enquiry was entered upon by the No. 1021, dated 24th July Settlement Officer ; but in 1860 the Lieutenant 1860, to Financial Commis- Governor of the Punjab authorized the substi-sioner, tution of the status of 1808-9 and the restora- tion of shares which had been held _to have lapsed in consequence of the persons in possession in 1852 having left no lineal male heirs. 82. In the course of the enquiry into lapses and preparation of registers Subsidiary rules for regu. of jagir tenures in the Cis-Satlaj States, certain lacing the succession to cases were brought to notice which did not pattiddri shares. appear to be expressly provided for by the rules laid down by the Government of India. No. 207, dated 21st Janu- The following subsidiary rules proposed by the ary 1852, the Commissioner, Commissioner were in consequence sanctioned Cis-Satlaj States, by the Board of Administration :— I, That a specific order of Government, though opposed to the principles and rules now prescribed, shall avail in favor of the party concerned and his lineal male heirs. II, That the mere fact of a female having been in possession in 1808-9 shall not avail to stop succession, or to invalidate succession that may have since taken effect. This rule not to extend to females, who, since 1808-9, have succeeded to shares, unless they should have so succeeded with the knowledge and sanction and under the orders of the Political Agent, Note. —On a reference made by the Board of Administration No. 908, dated 10th Feb- to Government in 1853, Govern-ruary 1853, to Secretary to ment declined to allow a little Chief Commissioner, in perpetuity derived from females, but laid down the rule given in para. 73, ante. III. That the official and recorded declaration of the Political Agent " as to the person in possession in 1808-9 shall be accepted without question, and the sucoasion continued acecirdingly. clxxxviii RECWLATIONS OF THE SETTLEMENT OFFICERS. IV. That alienations by a jagirdir or pattidar of a portion of his holding, whether to relations or strangers, shall neither be officially recognized nor officially recorded. V. That one or more sons of a common ancestor, in possession in 1808-9, being entitled to the whole share possessed by such common ancestor, shall be held and be declared responsible for the maintenance of widows left by deceased brothers, who, had they lived, would have shared with such son or sons. VI. That private exchanges of shares, during times past; be recognized, provided that fraudulent intent be not established. VII. That parties who have had no specified possession since 1808-9 have no valid claim either to share or pension. VIII. That the Settlement Officer, on the Civil side, shall take cognizance of claims to recovery of shares of which the claimants may have been wrongfully dispossessed, subject to the provisions of the statute of limitations. IX. That the enquiry shall not extend to the possession of the zaildars or dependants of an individual Sirdar during the life-time of such Sirdar. X. That on the estate of such Sirdar lapsing, the possession of his zaildars shall be enquired into, ascertained, and recorded, and that, from and after the date of lapse of the Sirdar's estate, lapses of the zaildar's shares and successions to the same shall follow the 1st and 2nd of the rules prescribed by the orders of Government, No. 461, dated 12th February 1851. 83. The 9th and 10th of these rules were modified by the Chief Com- Rule of collateral suttee- missioner in February 1854, where it was laid sion applicable to zaildars down that the 1st January 1847, the date on or subordinate jagirdars. which the jagirdars were deprived of their sovereign powers,- should be assumed as the No. 6, dated 23rd Febru- basis of adjudication in all disputes between ary 1854 from Secretary to jagirdars and zaildars regarding the shares of , Chief Commissioner, to Fi- the latter. The subordinate jagirs held by , nancial Commissioner. zaildars * before and on the 1st January 1847, and retained up to the date of this order, were therefore declared liable to lapse only in default of lineal male issue of the holders on the 1st January 1847 ; while, if an invalid succession had occurred after that date, the jagirdar might either resume or maintain the succession during his pleasure. 84. In the case of the jagirdirs of the ilakahs of Mahraj and Bhuchon, Succession to Pigir holdings in st the been F f r omz paiid re District,(overn ma esnpte ciiiaalvn arrangementgiven up in Mahraj and Bhuchon. its claim to lapses in consideration havinggof an increase in the rate of service commutation from 2 anas to 3 anas in the rupee of revenue assessed. The jagirdars in these ilakahs, who are very numerous, are also cultivating proprietors, and succession to the jdgir holdings, is governed by the law of Inheritance applicable Firozpur Settlement Re- to the property in the land. -Widows, for in- port, pare. 239. stance enjoy their husbands' shares so 'Ong as they refrain from a second marriage. • In para. 321 of his Ambalah Settlement Report Mr. Melvill describes the zaildars as occupying the same position towards the jagirdars as the latter occupy towards Government. Lapses of such tenures are the property of the jigfrdar. REGULATIONS OF THE SETTLEMENT OFFICERS. CixXXiX 85. In November 1860, on the recommendation of the Commissioner of the Trans-Satlaj States, supported by the Succession to conquest Financial Commissioner and the Lieutenant ittgirs, Trans-Satlaj States. Governor, the Government of India sanctioned N o. 5657, dated 23rd No- the introduction of the main rules by which vember 1860, from Secretary pattidciri succession was regulated in the Cis-to Government of India, to Satlaj States, to govern future cases of succes-Secretary to Government sion to conquest jagirs released in perpetuity in Punjab. the Jalandhar Doab. The rules thus sanctioned were the three laid down by the Government of India on 12th February 1851 (para. 69, ante), and the 4th and 5th of the subsidiary rules sanctioned by the Board of Administration (para 81, ante), the words " or pattidar being omitted in the 4th rules, and the words " at the period of the first investigation " being submitted for " in 1808-9 " in the 5th rule ; while the third of the Government of India rules was modified as follows :— III. That, on failure of a direct male heir, a collateral male heir may succeed if the common ancestor of the deceased and of the collateral claimant was in possession of the share at or since the year of primary investigation of the jdglr tenure, which in the Trans-Satlaj States is ordinarily 1846. 86. " The year of primary investigation " is specified because, though most of the jagirs were not released in perpetuity until 1857, they had been investigated, and generally released for life, in 1846 or shortly after. 87. " Direct male heirs " must be taken to man " male legitimate issue in the line of the person in possession at the period of the first investigation," the adoption of the Cis-Satlaj rules having been proposed by the Commissioner to remove doubts as to the interpretation of the rules contained in the Board's Circular No. 54 of 1852. 88. With reference to the grants confirmed in perpetuity by the Government letter No. 1993, dated 1st May Lapses of the conquest jdgirs confirmed in perpe- 1857, to the Chief Commissioner, it was laid down in that letter " that all bond fide lapses tufty in 1857 escheat as should escheat to the Government." None of Government. these idgirs, therefore, can be regarded as in the position of a subordinate jagir falling on lapse to a superior chief. 89. In many families there are established customs regulating the amount of the maintenance chargeable upon the jagir income to be assigned to widows of deceased holders ; and where the succession of a single heir has been established by custom, the maintenance of the other male members of the family is similarly regulated. Succession to revenue assignments in Hazarah. 90. In the Hazarah District the jagirs granted at annexation were Regulation of the succes- made subject by Government to certain limita-sion to assignments in Lions of the succession proposed by Major James Haztirah. Abbott. Further jagirs were granted for sere Punjab Government No. vice given in 1857 without any reservation in 138, dated 22nd February this respect. In the settlement rules sanction. 1870, to Financial Com- ed in 1870 under the Agror Valley Act (III of 1870), the following rules were laid down • for missioner. regulating the succession to assignments in that district ;— * These rules were declared to remain in force by No. 13 of the Regulations for the peace and government of the districts of Hazarah, &c., published under 33, Vic. Chapter 3, Section 1, by Foreign Department Notification No. 31P, dated 5th January 1872, repealing the Agror Valley Aot and the rules prescribed thereunder for the Ilazarah District, with certain expeptions. die EEGULATIONS OF TEE SETTLEMENT OFFICERS. Rule 18.—" The Settlement Officer shall ascertain for each class of revenue assignments granted for more than one life, or for the period of settle,. ment, or for each of such cases, where necessary, what rule is best calculated to secure to Government the attainment of the object for which the grant was The result of his enquiries shall be submitted to the 'Commis- sioner, who' all pass final orders as to the rule to be hereafter followed, reporting the.same through the Financial Commissioner for the sanction of Government. Rule 19.—" All cases in which orders of succession, contrary to the orders to be laid down under rule 18, have been passed, shall be reported by the Settlement Officer to the Commissioner, who is hereby empowered to revise the previous orders in the spirit of Rule 18, or in such modified way as the:peculiar circumstances of such cases may call for." Succession to certain small revenue free grants. 91. In 1865 the following rule was prescribed to regulate the succession to small revenue-free grants, which had been Small grants for service originally granted in consideration of service to to:village communities. be rendered to the village community, and Book Circular No. 13, which had been released during the pleasure dated 8th June 1865. of Government,—that small • grants given on No. 414, dated 30th May account of service to be performed, or respon. 1865, from Secretary to sibilities undertaken, should be held from gene. Govt., Punjab, to Financial ration to generation by one individual only, Commissioner. whose name should be shown in the patwAri's returns, and who should ordinarily be the eldest heir of the deceased holder. When there were special reasons for superseding such heir, and this was desired by the persons interested in the service to be rendered, this might be arranged by the local authorities. 92. When such a tenure was enjoyed by more than one person when Occupation at time Cir- the Circular was issued, the occupation of the holders need not be disturbed, but advantage cular was issued not to be disturbed. was to be taken of future successions to get rick of the joint enjoyment. .A.1=9213 INTIDIa4C RULES FRAMED BY THE CHIEF COURT OF THE PUNJAB, UNDER SECTON 31 oP THE PUNJAB LAWS AcT, 1872, FOR THE BETTER ADMINISTRATION OF INSOLVENT ESTATES. 1. Every Court exercising jurisdiction under section 22 of the Punjab Laws Act, 1872, shall be styled the Insolvent Estates Court of—, and the presiding officer shall be styled the Judge of such Court. 2. The rules concerning the record of civil suits and the procedure therein shall apply to proceedings in reference to insolvent estates ; and all orders passed by the Court under sections 23, 25, 26, '28 and 29 of the said Act shall be appealable, according to the law regulating appeals in civil suits, to the Chief Court,. 3. In addition to the appellate powers vested in the Chief Court, any application for adjudication of insolvency may be removed, by anolgy to the practice under the Punjab Chief Court Act, 1866, section 14, in reference to original suits, into the. Chief Court ; and the administration of such estate will thereupon proceed in the sail Court in conformity with the rules hereinafter prescribed. Of an Insolvent on his own petition. 4. The petition shall be presented to the Court by the petitioner in person ; but if the petitioner satisfy the Court that he is prevented by sickness from attending the Court in person, the petition may be presented by a duly authorized agent, who must be able to answer all material questions relating to the insolvency of the petitioner, and shall be liable to be examined in reference thereto in the same manner as the petitioner might have been examined had he attended in person. 5. The petition shall contain the following particulars :— (1.) petitioner's name, occupation, and place of abode. (2.) A declaration to the effect that applicant has no present means of paying his debts, or, if possessed of any property, that he is willing to place whatever property he pessesses at the dis. posal of the Court. (3.) A prayer for his discharge and protection from arrest. 6. The petition shall have annexed to it schedules containing a full account of all the petitioner's liabilities, and of all property, movable or immovable, belonging to him, whether in possession or in expectancy, and whether held exclusively by himself or jointly with others, or by others in trust for him, and the places or persons in which or with whom such property is to be found. 7. The petition and schedules shall be subscribed.by the petitioner and verified by him on oath, solemn affirmation, or otherwise according to the law for the time being in force, before the Court. But where the petition has been, by leave of the Court, presented by an agent under rule 4, the Court may allow the petition and schedules to be verified by such agent, or it may take such measures for having them verified by the petitioner himself as may appear advisable. cxcii RULES UNDER THE PUNJAB LAWS ACT 8. Together with his petition the petitioner shall be required to deposit such a sum as the Court may consider sufficient to cover the cost of issuing notice to creditors and other preliminary charges. 9. The Court may then declare the petitioner insolvent ; direct the attachment of all his property, movable and immovable, with the exception of the necessary wearing apparel for himself and his family, and the necessary implements of his trade ; and require the production of all books, papers, deeds and writings relating to his estate. 10. If the petitioner's property, or any portion of it, is situate without the area of the Court's local jurisdiction, the attachment of such property, or portion of such property, shall be efected by the issue of a warrant, accompanied by an inventory or list containing a reasonably accurate description of the property, to the Deputy Commissioner of the district in which it is situate ; and upon receipt of the warrant, the Deputy Commissioner to whom it is issued shall forthwith attach the property indicated therein, and shall hold the same under attachment subject to the disposal and orders of the Court that issued the said warrant. 11. All preliminary measures having been taken, the Court will appoint a day for the meeting of the creditors and the hearing of the case ; and may, at its discretion, grant the insolvent an ad interim order of protection from arrest or other civil process in respect of the debts shown in his schedule. At the time of making this order the Court shall direct what allowance is to be paid to the insolvent for the subsistence of himself and family from any income which may be received by the estate. 12. Due notice of the date appointed for the meeting of the creditors and the hearing of the case must be issued to all the creditors named in the petitioner's schedule, and the adjudication of the petitioner's insolvency shall be published in the local Government Gazette, in the newspapers, or otherwise at the discretion of the Court. 13. If it is shown by any creditor that in his petition and the schedules annexed thereto the insolvent has wilfuliy made any false statement respecting has property, or has fraudulently concealed, transferred or removed any property, or has committed any other act of bad faith, the Court may revoke the order of protection granted under rule 10, and summon or arrest the insolvent and detain him on security, or, in default, in custody, till the meeting of his creditors. 14. The property attached and the papers relating to the estate will be taken in charge by the Court through its proper officer, in the same manner as property attached in execution of decrees. 15. The property will be sold or administered, under the direction of the Court, through the agency of its clerk and other officers, or of assignees to be appointed by the Court, as the Court may consider most advisable under the circumstances of the case, in conformity with section 27 of the Punjab Laws Act, 1872. 16. Accounts shall be required by the Court from the clerk, or the assignee, as the case may be, from time to time. 17. The Court will take measures for realizing debts due to the insolvent, and may cause suits to be instituted for that purpose in the insolvent's name. 18. The schedules of the insolvent shall be open daily for the inspection of creditors in the Court for the registration of claims. 19. All applications for registration shall be in writing, .upon paper bearing the stamp required on petitions to the Court. • APPLICABLE TO THE PUNJAB. Of the meeting of Creditors and discharge of Insolvent. 20. On the day fixed for the meeting of the creditors the Court shall proceed to consider the register of claims. Should any claim be contested, the Court will call upon the creditors to file a suit for the same in the Court in which such suits are ordinarily heard, and may adjourn the meeting from time to time to admit of such claims being disposed of, and for other valid cause. 21. But the Court may proceed to the distribution of the proceeds of the insolvent's estate notwithstanding the existence of undecided claims, provided a margin is left to meet such claims or a pro rata portion of them, in the event of their being allowed. 22. Should any arrangement be agreed upon between the insolvent and the majority of his creditors under section 28 of the Punjab Laws Act, 1872, the Court will appoint a day for considering the proposal. Dae notice of the appointed day will be issued to each creditor, to enable him to appear and show cause against the arrangement. In the event of no valid cause being shown to the contrary, the Court shall give effect to the arrangement in conformity with the terms of the said section 2$ of the Punjab Laws Act, 1872. 23. Should no arrangement be effected, the Court will examine the insolvent on oath, solemn affirmation or otherwise, in accordance with the law at the time being in force, regarding the origin, nature and circumstances of his debts, and his conduct in relation thereto ; and will make such orders regarding the sale or administration of the property, and the allowance (if any) to be granted to the insolvent from any income he may possess, as the circumstances of the case may require. 24. When the sale or administration of the insolvent's property is complete, should there be no opposition, the Court may order the insolvent to be discharged in conformity with the terms of section 29 of the Punjab Laws Act, 1872. 25. Any creditor desiring to oppose the insolvent's discharge under section 25 of the Punjab Laws Act, 1872, must give notice of his intention at least three days before the day appointed for the meeting of the creditors, by presenting a petition setting forth concisely, and under distinct heads, the grounds of opposition, and containing an enumeration of any witnesses he may require to be .summoned. • 26. In the event of the opposing creditor making out his case, the Court may refuse the insolvent's discharge, and proceed against him under section 25 of the Punjab Laws Act, 1872. 27. The Court may at any time after adjudication of insolvency, whether before or after the insolvent's discharge, summon the insolvent and examine him on oath, solemn affirmation, or otherwise, touching his estate. 28. The Court may also at any time after adjudication of insolvency, whether before or after the insolvent's discharge, hear and determine any- charge of fraud or concealment of assets made by a creditor to whom the insolvent was indebted at the period of adjudication of insolvency, and in the event of such charge being established, proceed against the insolvent under section 25 of the Punjab Laws Act, 1872. 29. If after obtaining his discharge the insolvent shall fail to comply with all or any of the conditions with which such discharge was coupled, the Court may revoke or annul all or any of the previous orders passed on his petition. Of an Insolvent on petition of a Creditor. 30. The petition must be presented by the creditor in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf. 7 6irciv RULES UNDER THE PUNJAB LAWS ACT 31. The petition shall contain a statement of the name, occupation and place of abode, of the petitioner ; the name, occupation and place of abode of the debtor ; the particulars of the amount claimed from him ; and the grounds on which the petitioner applies to have him adjudicated insolvent. 32. The Court, if satisfied that the petitioner has made out a primd facie case, shall cause a copy of the petition to be served personally on, the debtor, together with a summons to appear and show cause why he should not be adjudicated insolvent, and may meanwhile, if satisfied that he is about to remove or conceal his property, order the attachment of the debtor's property. 33. In the event of the debtor appearing and failing to show cause, he will be adjudicated insolvent and the case will be proceeded with in the way provided for in the rules hereinbefore prescribed. 34. In the event of the debtor not being discovered at his usual place-of residence, or avoiding service of summons, or departing or remaining beyond reach of civil process, with intent to defeat or delay his creditors, the Court will issue a proclamation and cause it to be affixed to a conspicuous part of the. Court-house, and a copy thereof, together with a copy of the creditor's petition upon the place where the debtor last resided. The proclamation shall require the debtor to appear before the Court on a day to be named therein, which shall be fixed within a period of not less than a month from date of issue of the proclamation, and, should the debtor fail to appear and show cause upon such day, the Court may declare hits insolvent and proceed to the attachment and sale of his property ; or should the Court have reason to believe that the. debtor is making away with or concealing property, it may direct the attachment of his property before any such declaration. 35. With the view of preventing the long detention of prisoners for debt, the officer in charge of the Civil Jail shall send monthly to the Court a list of prisoners detained for debt in the jail under his charge, upon which the Court will take such action as it may consider proper. Of Dividends. 36. Notice of dividends payable will be posted up in some conspicuous part of the Court house and will also be published in the Local Government.. -Gazette,, in the newspapers, or otherwise at the discretion of the Court, Stamps and Process Fees. 37. The stamp duty and process fees leviable on petitions, applications, &c., presented to, and processes issued by, the Insolvent Estates Courts,. shall be regulated by the Court Fees' Act, 1870, and the Peons' Act, IX of 1863, and the rules from time to time framed thereunder, so. far as they are applicable to miscellaneous proceedings. Remuneration of Establishment. 38. The following fees shall be payable from the insolvent's estate for the remuneration of the establishment employed in the sale or administration of the estate : (1).—Upon all property sold, a commission of 5 per cent, if the sale proceeds do not exceed Rs. 5,000 ; where the sale proceeds exceed Its. 5,000, a commission of 5 per cent. on Rs. 5,000, and per cent. on the remainder. (2).—Upon all dividends paid a commission of not more than 5 per cent. 39. The commission realized under the foregoing rule will be formed into a fund, in each Court from which such establishment as the Judge may consider necessary may be entertained and remunerated. APPLICABLE TO THE PUNJAB. CXCV 40. The strength and remuneration of the establishment and amount of commission to be taken under rule 38 shall be determined by the Judge according to the nature and extent of the work involved, subject to the general approval of the Chief Court. Accounts, Forms, &c. 41. The Chief Court shall have power to prescribe the forms to be used, the accounts to be kept up, and the returns to be rendered by each Insolvent Estates' Court under these rules. '(Judicial Cricular No. CIX). (b). The following rules, prescribing the manner in which, and the agents by whom, the jurisdiction of the Court of Wards shall be exercised in respect to the care and education, and the management of the property of the persons subject thereto, have been made by the Lieutenant-Governor under section 38 of the Punjab Laws Act, 1872, and have been published for general information,—(Notification No. 1122, dated 23rd July 1873). RULES UNDER,SECTION 38 OF THE PUNJAB LAWS ACT, 1872, FOR THE CARE AND EDUCATION AND THE MANAGEMENT OF THE PROPERTIES OF PERSONS SUBJECT TO THE COURT OF WARDS. I. When any person is brought under the superintendence of the Court Scheme for management of Wards, the Deputy Commissioner shall draw of the property,e, out a scheme providing for the management of & the property, and, where necessary, for the guardianship and education of the ward. The scheme shall state in what manner the ward is disqualified for the management of his property, the particulars of his beneficial interests in land or the revenue of land, his movable property, the person who is fitted to be manager of his affairs, the person, if any, whom it is proposed to appoint guardian of his person, and in case of a testamentary apointment of guardian, whether there is any objection to the confirmation of such appointment, the estimated annual income and expenditure, and the manner in which it is proposed to dispose of the assets of the estate. 2. The scheme shall be submitted to the Commissioner of the division, Sanction required for the who shall forward it, with his recommendation, scheme, to the Financial Commissioner, and the Com- • missioner and Deputy Commissioner shall be guided by the orders of the Financial Commissioner in regard to it. 3. When the ward is an adult female of sound mind, who is competent Guardian not necessary to receive and disburse the amount fixed for her maintenance, no guardian of her person female. for adult and competent need be appointed. 4. The legal heir, or other person interested in out-living the ward, or to whom the inheritance might descend, shall ment of guardian. Restrictions on appoint- not be appointed guardian of the ward's person, and the guardian of a female minor shall be a female, 5. The appointment of a guardian by the will of the ancestor of the Appointment by will ward, if in accordance with the above rule, shall subject to confirmation. be subject to the confirmation of the Financial Commissioner. 6. If no relative or friend of the ward is available for the gratuitous discharge of the duty of guardian of the person, Remuneration of guar- a sufficient remuneration shall be provided from dian when necesSary, the assets. • For forms, accounts, and returns prescribed by the Chief Court under these rules, see Judicial Circulars (second edition), Appendix V, p. 374. eXCV1 RULES UNDER THE PUNJAB LAWS ACT • • Offices of manager and 7. The manager of the property, if eligible under the preceding rules, may also be appointed guardian may be united, guardian of the person of the ward. 8. When the guardian is not also manager of the property, he shall Certain property entrus- have charge of the premises in which the ward is to reside, and of all movable property re- ted to the guardian, and quisite for his use, and the manager shall pay expenditure incurred through him. to him the amount fixed for the maintenance of the ward, the members of his family, and his personal attendants. 9. The guardian shall be bound to account to the Deputy Commissioner Accounts and liabilities for his receipts and disbursements, and for of guardian. any property with which he is entrusted as guardian. 10. The guardian of a female minor shall arrange, under the orders of Education of female the Deputy Commissioner, for a suitable educa- minors. tion of the ward, when she arrives at an age • for instruction, if proper arrangements can be made. 11. The guardian of a male minor shall arrange, under the orders of the Responsibility Deputy Commissioner, for his education unless dian for educat on of male the minor is removed by order of the Deputy i of guar- Commissioner from residence with his guardian minors. to be placed at any school or institution.* 12. When a male minor has completed his sixth year, the control of his education shall vest in the Deputy Commis-Control of education by sinner of the district, who shall report the Deputy Commissioner, ar- arrangements which he proposes for giving the rangements being reported for sanction, minor an education suitable to his condition in life, and such as to qualify him for the position which he will occupy when he comes of age,—such report, when distinct from the scheme of management prescribed by rule 1, shall be dealt with in the manner prescribed by rule 2. 13. The Deputy Commissioner may direct that such ward shall reside Removal from home for for the purpose of education, either with or education. without his guardian, at any place within British India, and that he shall attend any school or college, and the Deputy Commissioner shall make provision for the proper care and maintenance of the ward, while at such place of education. Provided that, if the place of education selected is not in the Commissioner's division in which the ward has his house, it shall be specified in the sanctioned scheme for his education. 14. The Financial Commissioner may sanction the establishment of a Wards' institute. ward's institute at any suitable place, and may make rules for the management of such institute, and for the mode in which its cost is to be defrayed by the estates of the wards sent to it for education.t 15. Any alterations which are thought desirable in the scheme for the Report of alterations in management of the property of any ward, or in arrangements for manage- the arrangements for the guardianship or edu- ment, guardianship or edu- cation of any ward shall be reported for sanction cation. in the same way as the original arrangements were reported under rule 1 or 12—any increase in expense attending such alteration being stated in the report. 16. The manager of the property shall be appointed with regard to his fitness for the duty. The Deputy Commissioner Appointment and re- may, if he thinks proper, consult the friends re- muneration of manager. and relatives of the ward, or the ward, if of ' * Removal of guardians is provided for by Act XXVI of 1854, sections 5 and 6. 1. Private tutors are provided for by Act XXVI of 1854, section 3. APPLICABLE TO THE PUNJAB. CXCV sufficient discretion, as to the appointment to be made, but shall not be bound to follow their opinion. He shall fix a suitable remuneration, to be defrayed from the assets of the estate. Security and duties of 17. The manager shall- managers. (1) Give such security as the Deputy Commissioner may require duly to account for what he shall receive in respect of the rents and profits or income of the property ; (2) Pass his accounts at such periods and in such form as the Deputy Commissioner directs ; (3) Pay the balance due from him thereon ; (4) Apply for the sanction of the Cuurt of Wards to any act which may involve the property in expense not previously sanctioned by such Court. Application of assets. following order :— I.—Current Land Revenue demand, Taxes and Cesses. 1I.—Arrears of Land Revenue demand, or Cesses, or of other Govern. ment Revenue. III.—Maintenance and education of the ward, maintenance or remuneration of his dependants, expenses of management, and expenses incurred in any Government Revenue office on account of the estate. IV.—Payment of debts. V.—Investments in Indian Government Securities or Guaranteed Railway Stock, or Mortgage, or purchase of beneficial interes3 in land with. in British India. 19. No debts shall be paid or investments made except in accordance with the scheme sanctioned by the Financial Discharge of debts and investment of surplus. Commissioner. 20. Wards' estates shall not be let in farm for more than one year of without the sanction of the Commissioner, nor for a period exceeding that for which the management of the Court of Wards may be ex. the charge of the property. 23. Title-deeds, Government Securities, Certificates of Guaranteed Deposit of title deeds, &c. Railway Stock, and seals of deceased members of the family shall be deposited in the district treasury. Regulation of household 24. The expense of the household and the expenses and establish- establishment to be maintained shall be fixed ment, and of accounts. by the Deputy Commissioner, who shall prescribe the accounts to be furnished by the manager and the guardian. 18. The assets shall be applied in the Farm as a mode management. petted to continue. Alienation of landed pro. perty. 21. No portion of the beneficial interests of the ward in land shall be alienated without the sanction of the Financial Commissioner. 22. Inventories of all movable property belonging to the ward shall be Inventories of moveable made when the estate first comes under the property. Court of Wards, and revised from time to time, and shall be signed by the person entrusted with cxcviii RULES UNDER THE PUNJAB LAWS ACT Raising of loans. Financial Commissioner. 27. No suit exceeding Rs. 500 in value or amount shall be instituted Institution and defence on behalf of a ward's estate without the sanction of suits. of the Financial Commissioner, and the roles. for Government suits shall apply to the institution or defence of suits on account of such estates. 28. A rate, the amount of which shall be fixed from time to time by Rate charged by Govern- the Financial Commissioner with the sanction of the Local Government, shall be levied upon ment. the income of each ward's estate to compensate government for the employment of its own ordinary establishments and for outlay in postages and stationery on account of such estate. In calculating the income of an estate for this purpose, interest upon Government paper, or upon other investments of capital, and presents made to the ward, shall be excluded, and sums paid as Government Land Revenue shall be deducted. 29. This rate shall, for the present, be graduated as follows, the. single rate being seven arenas on every hundred Scale of rate. rupees of the income ; Estates of which the income does not exceed Rs 1,000, ten rates. Estates of which the income exceeds Rs. 1,000 and does not exceed Rs. 5,000, upon Rs. 1,000, ten rates ; and upon the remainder, four rates. Estates of which the income exceeds Rs. 5,000, but does not exceed Rs. 20,000, upon Rs. 5,000, as above : and upon the remainder, two rates. Upon estates of which the income exceeds Rs. 20,000, upon Rs. 20,000, as above :• and upon the rest, a single rate. 30. If it is necessary to employ in any Government office any extraordinary establishment for the management of Extraordinary establish- any estate or estates, such establishment may, meats. with the sanction of the Financial Commissioner, be entertained, and the cost charged directly to the estate or estates. When such extraordinary establishment is entertained the rate shall be discontinued or reduced as the Financial Commissioner may order. 25. The Deputy Commissioner may incur reasonable expenditure for Ordinary and extraordi- ordinary improvements from annual income ; nary expenditure. expenditure for extra-ordinary improvements, or in excess of the available annual income, shall require the sanction of the Commissioner. 26. No loan shall be raised on behalf of the minor without the previous sanction of the 31. Bills for the charges against the rate, Passing of charges against such as postage, &c., must be submitted for the the rate. countersignature of the Commissioner. 32. Should any establishment or, allowances chargeable td' the rate, be necessary in any district, an application ex- Ordinary establishments • • plaming the necessity shall be submitted for the how to be sanctioned. sanction of the Financial Commissioner. 33. In the annual Revenue Report, information shall be given respect- . ing the management of each estate under the S. B. Revenue Cir. No. 4 Court of Wards, the condition of the property, of 1854, N. W. P. the application or investment of the surplus Information to be given improvements " effected or proposed, and in the in the Revenue Report. case of minors the measures taken for their education and preparation for the duties which will devolve on them when they attain their majority ; the report shall be accompanied by a statement in the ;aloud form ;--7_ APPLICABLE TO THE PUNJAB. .t; a) 0 ca a) Ca a) 0 C14 a) rct Ca aQ P.4 a) :=1 cC 1-4 0 sa 0 0 a) Ca Ca 1.1 Ca $. 0 a) 0 CabA to to• cC 02 a) ra 02 0 Ca Ca 0 cri 0 DEPUTY COMMISSIONER'S OFFIC, Ott Ca • t. so 04 tO In f, ONMENNIUM C) oo Statement containing Particulars of Estates under the management of the Court of Wards in the •s3[avtuall I •sagmqvyi •SI.OSSV ..tuaS age 2apnp amooutr JOAO einmaaadxa jo ssaaxa •naS aqq. 2a!anp -uedxj JOAO OTICIODIII JO ssaox •aanupnacIxa IvqoI esnoatrulleosIN lnatutuaA -on Cq pa ivtio a4 vu 01 '94 tiorai.saAni •svioa jo qualuSua -uoylvonpa •sasuadxa &WI •ov `sesvqoind ‘Ov!i -avig sv Lions lepads ‘sosuadxg ivuosiod •Sireuguo ‘sasualxa ivuosim squatua2vavN •ennaAault191:11t1.19410-D '01110013I relOLI •avioauj a01110 .sasnoll p gnat' •sluvaaj, taw' luau valog uo loa.talui • 131:13M32 •o 2, tuomnl (tremivn212mpiv9al sivInapivd •savino Fre (oBv ‘oonarqsaa 4atavu Below; Txem p atuuN .40F18!CE •15.01,G District on the C•1 CN1 Annual Expenditure for to V) tO RULES UNDER THE PUNJAB LAWS ACT (C.)-RULES FOR THE SLAUGHTER OF SINE. (See Section 43). I am desired to acknowledge your letter No. 58, dated 8th January, forwarding for perusal a judgment in the case of Hidayat, &c. v. Panjan Mal, and suggesting the expediency of issuing rules on the subject of the slaughter of kine. 2. The rules hitherto acted upon and now in force are contained in a letter from the Board of Administration to the Assistant Commissioner, Mooltan, No. 6, dated 10th April 1849, and a subsequent Circular, No. 83 of 5th May of the same year. These rules have been found sufficient from annexation to the present time, and the Lieutenant-Governor does not con-eider it desirable to modify them in any particular.—(No. 335, dated 28th January 1873, from Secretary to Government, Punjab, to _Registrar, Chief Court, Punjab). Circular No. 83, dated 5th May 1849, from Secretary to the Board of Administration for the Affairs of the Punjab, to the Commissioners and Superintendents; Lahore Division, Jhelum Division, Leiah Division, Noonan Division, and Deputy Commissioners of Peshawar and Hazara. 1. No. 6, dated 10th Apri11849, from Major Ed-wardes, Offg. Secty. to the Board, to Lt. James, Asst. Commr. I am directed by the Board of Administration for the Affairs of the Punjab to forward, for your information and, guidance, copies of the letters noted in the margin, regarding the slaughter of kine and the sale of beef in the newly-acquired territory. 2. No. 175, dated 25th April 1849, from Secty. to the Govt. of India, to the Board of Administration. 2. You will perceive that the Right Hon'ble the Governor-General has been pleased to express his approval of the instructions on the subject contained in Major Edwardes' letter No. 6, dated 10th April 1849, and to direct that his sanction be intimated to all the civil authorities subordinate to the Board. 3. Further, His Lordship attaches the greatest importance to the question, and will hold civil officers responsible for the due execution of the instructions issued by the Board. 4. The Board request that you will forward copies of the enclosed correspondence to all officers in your division in charge of districts, and direct them to observe the letter and spirit of the rules contained in Major Ed-wardes' letter. 5. Near small towns and villages no situation need be chosen for a slaughter-house and shop for the sale of beef till some party applies for permission to establish one. But near the larger towns, as Lahore, Amritsar, Wazirabad, &c., the Board think it advisable that the District Officers should at once select suitable spots and should satisfy themselves by personal inspection that they in no way offend against the spirit and letter of the instructions in Major Edwardes' communication. The Board desire also that near the larger towns the slaughter-house should be surrounded by a high wall to be built by the party establishing it, so as to conceal at least the actual slaughter of the kine. 6. In places where European troops are cantoned, the district officer should put himself in communication with the military authorities and in concert with them select a site for the slaughter-house of the contractor, which should be surrounded by a high wall. 7. The Board will not limit the number of slaughter-houses and shops for the sale of beef which may be established near one city or town. This must depend on its size and wants. They only require, that the site chosen for each shop should satisfy the conditions laid down in Major Edwardes' „letter. APPLICABLE TO THE PUNJAB. 8. In conclusion, I am desired to acid that the Board feel certain that where the district officer chooses the site after careful inspection, and inviting and hearing objections to it, the Sikh and Hindu population will acquiesce quietly in what they know is inevitable, and there will be no breaches of the peace. No. 175, dated Simla, the 25th April 1849, from H. M. ELLIOT, EsQ., Secretary to the Government of India with the Governor-General, to the Board of Administration for the Affairs of the Punjab. I have the honor to acknowledge the receipt of your officiating Secretary's despatch, dated the 10th instant, No. 3, forwarding copy of correspondence on the subject of kine-killing, and hoping that the interpretation given by you to the Gevernor-General's proclamation, and the instruction communicated to Lieutenant James, the Assistant Commissioner at Mooltan, are in. accordance with the views of Government. 2. In reply, I am directed to acquaint you that Mr. James has not correctly construed even the literal sense of the wording of the proclamation. It declares that no man will be allowed to interfere with the practice by his neighbour of customs which that neighbour's religion permits, and, consequently, that the Sikh cannot be allowed, on the ground of religious tenets of his own, to prevent the Mussalman preparing the food which the Koran does not forbid. Perfect toleration to the Sikh does not include recognition of, and impunity for intolerance on his part towards his Muhammadan neighbour. 3. The Governor-General desires me to intimate that you have correctly interpreted both the spirit and letter of the proclamation, and he fully approves of the regulations yon have issued on the subject. 4. You are requested to intimate this His Lordship's approval to all the officers subordinate to you, and you will at the same time inform them that the Governor-General, regarding the question as one deeply affecting the peace of the country and the ready and satisfactory establishment of the British rule, will hold the civil officers severely responsible for measures being taken to ensure the strict observance of the regulations by all, whether Europeans or natives. 5. A copy of this correspondence will be sent to the Commander-in-Chief, with a request that his Excellency will enjoin on all military authorities a close attention to these regulations, and you will desire the civil officers to instantly report any disregard of them by those who may be beyond their immediate control. No. 6, dated Lahore Residency, 10th April 1849, from Secretary to the Board of .Administration for the Affairs of the Punjab, to the Assistant Commissioner, Mooltan. Your letter No. 71, of 5th April, and the correspondence annexed to it, has been carefully considered by the Board of Administration, who have directed me to make the following observations thereon. 2. You were quite right to act up to what you deemed the literal meaning of the proclamation of 29th March, " The British Govern- but the Board believe the spirit of the paragraph went will leave to all the 9 noted in the margin to be opposed to your people, whether Mussal- interpretation. The Governor-General of India, man, Hindu or Sikh, the they conceive, desired in that proclamation to free exercise of their own extend perfect religious freedom to all classes in religions but will not per- the Punjab ; and your interpretation would mit any man to interfere obviously mae every Muhammadan a slave to with others in the ob- the religion of his Hindu neighbour, —and this servance of such forms and without absolutely interfering with his own customs as their respective religion. The Mussalman, however, would religions may either enjoin probably put the case to you much stronger or permit," Government even than the above. He would say : —" It is Proclamation 29th March true the Koran does not enjoin me to eat beef 1849, as an article of faith, but my race has had this prohibition laid upon it for generations by CCii RULES UNDER THE PUNJAB LAWS ACT persecuting conquerors of another creed, and it has become throughout Asia the sign and symbol of Hindu triumph and Muhammadan degradation. Those persecuting Hindu conquerors have in their turn been conquered by a tolerant Christian power, and I claim the benefit as I have endured the hard- • ships, of subjection." 3. The Board, therefore, are distinctly of opinion that the Right Hon'ble the Governor-General fully contemplated and intended the removal of that prohibition against the slaughter of kine which we have only hitherto maintained in the Punjab out of deference to a Sikh sovereign. 4. But the very same reasons which lead to this decision should make it the duty of all civil officers in the newly annexed country so carefully and strictly to regulate the slughter of kine in their districts as to render it as little offensive as possible to the prejudices of the Hindu population. For instance, it should not be permitted within the bounds of cities, towns, or villages, where Hindus and Mussulmans are mixed, but, under severe penalties, should be removed to a distance of not less than 300 yards,—and even then should be away from any thoroughfare. Civil officers should themselves in every large town appoint a spot for the shambles and butchers' shops if they value the peace of their districts, and particularly take care that the Mu-hammadans do not select the neighbourhood of any Hindu faquirs' hut or religious building. On no account ought beef to be exposed for sale in shops within the towns even though slaughtered outside, and Mussalmans should be severely punished for ostentatiously parading what they know will offend their Hindu neighbours. 5. In short, the first tendency of the reaction will be to make Mussal-mans abuse a privilege from which they have been so long debarred, and it will become necessary to protect from insult the Sikh and Hindu so lately in the ascendant. 6. This correspondence will be forwarded to Government for information and final orders, but the Board request that you will meanwhile act upon these instructions. (d.)—USE OF INFLATED SKIM TO CROSS RIVKES. (See Section 47). Extract, pares. 1 to 3, of No. 137, dated 20th March 1860, from the Judicial Commissioner for the Punjab, to the Secretary to Government, Punjab. I have the honour to forward, in original, for submission to His Honor the Lieutenant-Governor, documents marginally noted relative to restrictions being placed on the passage of rivers by persons an inflated skins or buoys. 2. It appears that, though not authoritatively introduced (as on the Indus and lower Chanab), yet restrictions of some kind, more or less uniform, exist on the Sutlej, Bess and Ravi in the Cis and Trans-Sutlej States and Lahore divisions. They apparently were first introduced during the mutiny and have never been discontinued. 3. The question now is, whether authoritatively to introduce the Indus and lower Chanab rules on the above said rivers in these divisions, or to discontinue restrictions in these divisions. Copy of No. 174, dated 28th March 1860, from Secretary to Government, Punjab, to the Judicial Commissionev. In reply to your No. 37, dated 20th instant, I am directed to inform you that the Lieutenant-Governor is of opinion that it would not be convenient to prohibit entirely the use of inflated skins for crossing the rivers by the people generally ; but that His Honor has no objection to certain APPLICABLE TO THE PUNJAB. eci zl restrictions being placed upon the practice,according as they may be determined by the Commissioner. The Indus and Lower Chanab rules are contained in the following correspondence. Copy of a letter No. 243, dated 11th October 1854, from Commissioner, Mooltan Division, to the Judicial Commissioner of the Punjab. I have the honor to acknowledge the receipt of your letter No. 2730 of the 5th instant with enclosures, regarding the use of inflated skins for crossing rivers at other places than the public ferries. 2. The use of inflated skins or buoys is very common on all the rivers in this division. To the herdsmen who graze their cattle on the meadows and islands in the rivers, and to some cultivators who till tracts of low lands in the channels of the streams, their use is indispensable, as there are no other means of access to the lands above mentioned. But these buoys are also used by travellers from the interior as a means of transit, and they often form a portion of the equipment of professional thieves and cattle lifters, and it is through the aid of these articles that they are enabled to cross rivers at places distant from the public ferries and to avoid the pursuit of the police. 3. While district officer, my attention has often been directed to the adoption of some measure which without interfering with the legitimate use of inflated skins by those who absolutely require their aid, should prevent their being converted into a means for facilitating crime. I had no authority to prohibit the use of these articles, and I therefore instructed the police to avoid interfering with their use by cultivators and cattle feeders on the rivers, but that when any traveller from the interior, or any person not a cultivator or a cattle feeder near the river, was discovered making use of buoys, they were authorized to detain the party until he could give satisfaction as to his character and intentions. 4. I believe however that these measures have not been found sufficiently stringent, and I would recommend the adoption of stricter means of prohibition. The use or possession of inflated skins or buoys of any kind should be declared illegal except under cover of a license, on plain paper, to be granted by the district officer. The granting of such license should be restricted to persons residing near the rivers and who absolutely require to use buoys for legal purposes. The possession of a buoy should subject the possessor to the penalties prescribed for the illegal possession of arms, and the actual use of the article should be punished as an act of bad livelihood. Buoys found without owners within the limits of a village should subject the lambardar to a fine and in default to imprisonment for neglect of duty. All parties possessing buoys should be directed by a proclamation to deliver them up, or to apply for a license on or before a certain date under penalty of being punished for illegal possession of the prohibited article. 5. If it is considered advisable to adopt these measures, it will be necessary to obtain the co-operation of the authorities in the Bahawalpur State. Extract para. 5 of letter No. 326, dated 6th November 1854, from the Judicial Commissioner, to Secretary to Chief Commissioner, Punjab. 5. I am of opinion that Major Hamilton's propositions, contained in para. 4 of his letter, are good, are capable of being carried out, and worthy of trial, at any rate in those, districts where crime is most rife. Further that should crime at any time increase, and it was found that land-holders on the banks of the river did not give assistance, as a punishment for a term, after sanction bad been received, crossing on skins might be totally prohibited till crime ceased. RULES UNDER THE PUNJAB LAWS ACT Copy of letter No. 524, dated 17th November 1854, from the Secretary to the Chief Commissioner, Punjab, to the Judicial Commissioner, Punjab. I am directed to reply to your letter No. 326, dated the 6th instant, with its enclosures. After weighing the considerations adduced by the several Commissioners who have been consulted, the Chief Commissioner is of opinion that a rule prohibiting the crossing of the Indus and its tributaries by other means than the authorized ferries could hardly be rendered absolute, nor applicable without exception, nor easily enforced. He still, however, thinks that while cultivators, graziers and feeders on the banks of the river are permitted the use of inflated skins, some rule may be framed by which bad characters may be interdicted from the facility hereby afforded. 2. With the above view the Chief Commissioner is disposed to concur in the opinion expressed in para. 4 of letter of Commissioner, Mooltan, and in the concluding para. of your own letter under reply, and he authorizes your issuing a proclamation to that effect through the Commissioners of Peshawar, Jhelam, Leiah and Mooltan after further conference with those officers as to details,, if you consider it necessary. 3. You can declare that the use or possession of buoys, mashaks or sarnais, without license from the district officer, is illegal and punishable as a misdemeanour. The district officers will be instructed to issue such licenses to the heads of agricultural or pastoral communities on the banks of the river and to other respectable parties who are not likely to abuse the privilege. The holders of such permission will be responsible that their buoys are not perverted to purposes of crime or other misconduct. The police will bring before the magistrate all persons found infringing the rules. (e.)—On the same footing, apparently, as the above are the rules for the admission of armed parties of natives into walled cities, quoted at paragraph 101-2 of Barkley's Non-Regulation Law of the Punjab. ADMISSION OF ARMED RETINUES OF CHIEFS INTO WALLED CITIES. (See Section 44.) Extract para. 2 of Letter No. 220, dated 14th April 1860, from Secretary to the Government, Punjab, to the Judicial Commissioner, Punjab. For the future, however, I am to convey the Lieutenant-Governor's positive injunction that no native armed party exceeding 50 men be ever allowed to enter any walled city without the special sanction of the Government. Such a number, too, to be permitted to do so only as the retinue of chiefs of the highest rank, such as the Maharaja of Pattiala. In all doubtful cases the Deputy Commissioners should refer to the Commissioner. When the ordinary jalus or retinue exceed 50 men, the Commissioner will exercise his discretion in regard to the number of men to be admitted, reporting to Government. (f.) In exercise of the power conferred by the Punjab Laws' Act, 1872, Section 39A, His Honor the Lieutenant-Governor has, with the previous sanction of the Governor-General in Council, made the following rules to provide for the establishment of a system of village watchmen in the territories under the administration of the Government of the Punjab :— , I. " Village," in these rules, means any village or town which has a separate name in the revenue records, is defined by boundary marks, and is not a municipality or place in which the police service of the village or town is performed by police enrolled wider Act V of 1861. APPLICABLE TO THE PUNJAB. car • 2. For each village, one or more village watchmen shall be appointed Provided that, when any village is, in the opinion of the Deputy Commissioner, too small to make good the pay of one village watchmen, it may, for the purpose of these rules, be united to some neighbouring village or villages, and for the villages so united, one or more village watchmen shall be appointed, and their remuneration shall be contributed rateably by such villages in, proportion to their jamas : Provided also, that, when, under existing arrangements, no village watchmen has been appointed to a village, no appointment shall be made to such village until the expiry of the current settlement, without the sanction of the Local Government. 3. The number of village watchmen for each village, or where, under Rule 2, several villages have been united, the number for the united villages, shall be fixed by the Deputy Commissioner with reference to the number of houses and the character of the population. Much latitude is left to the Deputy Commissioner in fixing the number, which should not be unnecessarily large. As a general rule, one village watchman will suffice for a beat containing from 50 to 100 houses ; two for a beat with 100 to 200 houses ; three for a beat with 200 to 300 houses ; and so on. 4. The number of village watchmen having once been fixed, is not to be altered without the consent of the Commissioner of the division. 5. Where the number of village watchmen in any village is five or more, one of them may be appointed head village watchman and designated daffaddr. 6. The nomination to the post of village watchman or of daffadrir shall be made by the village headman, and where there are more village headmen than one, the opinion of the majority in number (unless there is some special provision to the contrary in the village administration paper) shall prevail. Where a village watchman or daffadar is to be appointed for a beat comprising more than one vilhge, the opinion of the majority in number of the village headmen in such beat, shall prevail. 7. The person or persons authorized to nominate to the office of village watchman or daffadar, shall within 15 days after the occurrence of a vacancy in such office, or in the case of a first appointment, within 15 days after being required by the Deputy Commissioner so to do, nominate a proper person to the vacant post and communicate the nomination to the Deputy Commissioner. 8. The person so nominated shall, after due enquiry into his age, character and ability, be appointed or rejected at discretion by such Deputy Commissioner or by some officer authorized by him in that behalf. 9. In default of such nomination within the said 15 days, the Deputy Commissioner shall appoint such person as he thinks fit. .10. If the nomination has been made within the said 15 days, but the nominee is rejected, the person or persons authorized to nominate shall, within 15 days from the date of such rejection, nominate another person, and in default of such nomination, or if such nomination has been made but the nominee is again rejected, the Deputy Commissioner shall appoint such person as he thinks fit. 11. The Deputy Commissioner may dismiss any village watchman or daffadar for any misconduct or neglect of duty. 12. The village watchman shall be armed with a spear and sword, and shall wear a uniform dress censisting of a wadded chapkan of dark blue for winter wear, and a coarse cloth chapkan dyed blue for summer, and a blue turban. The arms and dress shall be provided by the village community out of the village melba. eevi RULES UNDER THE PUNJAB LAWS ACT • 13. No village watchman or daffadar shall withdraw from the duties of his office unless— lst, he has received permission to resign from the Deputy Commissioner or from some other person authorized by the Deputy Commisbioner to accept his resignation, or 2nd, two months have elapsed since he gave notice of his intention to resign to the Deputy Commissioner. 14. The village watchman is the servant of the village community, and as such is hound (subject to the orders of the Deputy Commissioner) to obey the village headmen. He is also bound to assist the police to the best of his ability in all matters connected with the prevention and detection of crime and the apprehension of offenders. 15. It is the duty of every village watchman to keep watch and ward in his village. 16. Every village watchman shall, except where it is otherwise provided by those rules, report in person on the state of his beat once a week to the officer in charge of the police station within the limits of which such beat is situate. Where there are more than one village watchman in a beat, such report shall be made by one village watchman only, and the duty shall be taken by rotation. The Deputy Commissioner may, should he deem fit, order more frequent reports at such intervals and for so long as he considers proper, from any beat in his district. 17. Every village headman and village watchman is bound forthwith to communicate to the officer in charge of the police station, within the limits of which his village or beat is situate, any information he may obtain respecting any person found lurking in such village or beat who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself, or respecting the residence in or resort to any place within the limits of such village or beat of any person who is a reputed house-breaker or thief, or who is of notoriously bad livelihood. 18. Every village headman and village watchman shall observe, and from time to time report to such officer, the movements of all bad characters in his village or beat, and shall report the arrival of suspicious characters in the neighbourhood. 19. Every village headman and village watchman shall give timely intimation to such officer, in the event of any notorious bad character residing in his village or beat being absent at night without having given notice of his departure, or associating with individuals of bad repute, or ceasing to labour, or to obtain a livelihood by honest means. 20. Every village headman and village watchman shall keep such officer informed of all disputes which are likely to lead to any riot or serious affray, and of all intelligence he receives affecting the public peace within or near his village or beat. • 21. Every village headman and village watchman shall at once give to such officer any information he may obtain respecting the commission of, or intention to commit, any of the following offences in his village or beat, that is to say— Rioting ; Concealment of birth by secret disposal of dead body ; Causing miscarriage ; Exposure of a child ; APPLICABLE TO THE PUNJAB. ccyii Mischief by fire ; Mischief to animals by poisoning ; Attempt to commit or abetment of the commission of any of the above offences ; and Attempt to commit culpable homicide. 22. It shall be the duty of the village headman and village watchman to report to the officer in charge of the police station, within the limits of which his village or beat is situate, all deaths which occur in such village or beat, and to furnish such other information in connection with vital statistics as may be required of him by the Deputy Commissioner from time to time. 23. Every village headman and village watchman shall in like manner report the appearance of any epidemic in his village or beat, and shall supply, to the best of his ability, any local information which the Deputy Commissioner may require. 24. Every village headman and village watchman shall prevent, and, may interpose for the purpose of preventing, the commission of any cognizable offence as defined in the Code of Criminal Procedure. 25. Every village headman or village watchman receiving information, of the commission of, or of a design to commit, any such offence, shall communicate such information to the officer in charge of the police station within the limits of which his village or beat is situate. 26. Every village headman and village watchman knowing,of a design to commit any such offence, may arrest, without 'orders from a Magistrate and without a warrant, the person so designing, if the commission of the offence cannot be otherwise prevented. 27. Every village headman and village watchman may, of his own authority, interpose for the prevention of any injury attempted to be committed in his view to any Government, Municipal, or Railway property, movable or immovable, or to prevent the removal or injury of any public landmark. 28. Every village headman and village watchman may, without orders from a Magistrate and without a warrant, arrest-- IA—any person who, in the sight of such headman or watchman, commits a cognizable offence as defined in the Code of Criminal Procedure ; 2nd, —any person against whom a reasonable complaint has been made or a reasonable suspicion exists of his having been concerned in any such Offence ; 3rd,—any person against whom a hue and cry has been raised of his having been concerned in any such offence ; 4th,—any person who has been proclaimed either under the Code of Criminal Procedure or in a Police Gazette or Notification ; 5th,—any person found with property in his possession which may reasonably be suspected to be stolen property ; 6th,—any person who obstructs a police officer or a village headman or village watchman, acting under these rules in the execution of his duty, or who escapes from lawful custody ; and 7th,—any person reasonably suspected of being a deserter from Her Majesty's Army or Her Majesty's Indian Army. CCViii RULES UNDER THE PUNJAB LAWS ACT • 29. If a person forcibly resists an endeavour to arrest him, every village headman and village watchman may use all means necessary to effect the arrest. • 30. No person arrested by a village headman or village watchman shall be subjected to more restraint than is necessary to prevent his escape. 31. The village watchman shall take charge of all persons arrested by the village headman under these rules, or by any private person under any law for the time being in force, and shall forthwith take or send any person or persons so taken charge of by him, or any person or persons he himself may arrest, before the officer in charge of the police station within the limits of which his beat is situate : Provided that, during the hours of darkness, the person or persons arrested may be detained in custody at the village, but must be taken as early as possible on the following morning to the police station, 32. The duties imposed by these rules on village headmen in regard to the furnishing of information to the police and the apprehension of offenders, shall ordinarily be performed by them through the agency of the village watchmen ; but, in the absence of such watchmen, or in the event of their failure or inability to perform such duties, it shall be incumbent on the village headmen to perform them themselves. 33. Subject to the provisos hereinafter contained, every village watchman shall receive remuneration in cash at the rate of Rs. 3 per mensem, to be paid half-yearly or at each harvest. An extra remuneration to be fixed by the Deputy Commissioner, not exceeding Rs. 3 per mensem, shall be paid to each daffadar. 34. Provided that, where the remuneration of the village watchman has been fixed at settlement either in cash or in grain or in both, the remuneration so fixed shall, unless commuted as hereinafter provided, continue to be paid to him during the currency of the settlement : Provided also, that, whenever the remuneration has been fixed in whole or in part in cash, whether at the time of settlement or otherwise, it shall, at any time, be competent to the village community and the village watchmen by mutual agreement, subject to the approval of the Deputy Commissioner, to commute such cash remuneration into remuneration in grain : but where such commutation has taken place, the Deputy Commissioner may, for any sufficient reason, direct that remuneration in cash shall be reverted to. 35. Except as provided by Rules 36 and 37, the amount payable by any village for the remuneration of village watchmen shall be levied from all occupants of houses in the village by a rate assessed by the Deputy Commissioner on the annual value of such houses : Provided that, in any case where a cess of the kind known as mohtarfa, kamiana, hak bua, or the like, is levied by the land-holders on artisans and menials, and such artisans or menials have not heretofore been charged with any portion of the remuneration paid to the village watchman, they shall not be liable to contribute towards such remuneration ; but if they have not heretefore been exempted from such charge, they shall not be entitled to claim exemption in future unless with the sanction of the Local Government. 36. When the village watchman's remuneration 'chargeable to a village is payable, wholly or in part, in cash, the amount so payable or any portion thereof, may, at the option of a majority in number of the village headmen, and with the approval of the Deputy Commissioner, be raised by a chungi or paid out of any kamiana, chungi, dharrat, or other like tax, at present, collected. 37. Where such remuneration is payable, wholly or in part in grain, the amount so payable or any portion thereof may be collected by a distribution on ploughs or in such other way as a majority in number of the head. men may determine, subject to the approval of the Deputy Commissioner. . APPLICABLE TO THE PUNJAB. Ce1X 38. Whatever be the mode of collection, the Deputy Commissioner shall cause an assessment schedule to be drawn out for each village in which the mode of collection shall be described, with the amount, whether of cash or grain, leviable from each person. Such schedule shall be deposited with the Tahsildar of the pargana in which the village is situate, and a copy shall be supplied to the village headmen, village accountant, and each village watchman. 39. The inhabitants of the village or a portion of them may, at any subsequent time apply to the Deputy Commissioner for a redistribution of the assessment, and, if good cause is shown for such re-distribution, the same shall be made and a fresh schedule prepared. 40. It shall be the duty of the village headmen to collect the remuneration of the village watchmen from the persons specified in the assessment schedule. 41. The village headmen, at the time of paying the first instalment of land revenue for any harvest, shall present to the Tahsildar the receipt of each of the village watchmen for his remuneration due at such harvest, whether the remuneration be payable in cash or in grain or in both. If such receipt is not so presented, the Tahsildar shall, subject to the orders of the Deputy Commissioner, take measures to enforce payment of the remuneration due, and for this purpose, the Deputy Commissioner and Tahsildar shall have the same powers, respectively, as they now possess for the recovery of land revenue due to Government. 42. All orders of the Deputy Commissioner in regard to the fixing of the number of village watchmen, the mode of their remuneration and the levying of the same, shall be subject to control, revision, and alteration by the Commissioner to whom he is subordinate. 43. Every village watchman or daffadar guilty of any wilful misconduct in his office or of neglect of duty, such misconduct or neglect not being an offence within the meaning of the Indian Penal Code, or withdrawing from the duties of his office without permission and without having given at least two months' notice of his intention to withdraw from such duties to the Deputy Commissioner, or offering any unnecessary personal violence to any person in his custody, or violating any of these rules, shall, on conviction before a Magistrate, be punished with fine not exceeding three months' pay, or with imprisonment, with or without hard labor, for a period not exceeding three months, or with both. 44. Any village headman violating any of these rules, shall, on conviction before a Magistrate, be punished with fine not exceeding Rs. 300, or with imprisonment, with or without hard labor, for a term not exceeding three months, or with both. 45. Nothing contained in these rules shall be construed to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by these rules, or from being liable under any Regulation or Act to any other or higher penalty or punishment, than is provided for such offence by these rules : Provided that no person shall be punished twice for the same offence. (Notification No. 2778, dated 15th August 1376, Punjab Gazette of 17th ident). (g). Under the powers conferred upon him by section 50 of the Punjab Laws Act (No. IV of 1872), the Lieutenant-Governor of the Punjab is, with the previous sanction of the Governor-General in Council, pleased to m tke CCI RULES UNDER •TH E PUNJAB LAWS ACT the following rules under Section 48 of the same Act, for the management of the lands owned by Government in the Muzaffargarh district, which are specified in the schedule attached to the rules :-- 1. No person shall pasture cattle, or cut wood or grass or gather fuel or any spontaneous produce in the above-mentioned lands except— (1) under the authority of a license granted by the Deputy Commissioner of the district, or (2) with the permission of the farmer to whom any such privileges are for the time being farmed by the Deputy Commissioner of the district. 2. Every such license shall be in writing and signed by the Deputy Commissioner and license-holder, and shall state— (a)—the nature, extent and duration of the rights thereby conferred ; (b) —the consideration paid, or to be paid by the license-holder (c)—the special conditions, if any, on which the license is granted. 3. Every farming lease granted under rule 1, clause (2) shall state the particulars mentioned in rule 2, and shall include— (a)—in cases where the consideration money is payable by instalments, the amount of the said instalments, and the dates on which they will fall due ; and (b) —in cases where the lease relates to the right of grazing, a specificatin of the maximum grazing dues which the farmer may levy and a promise on his part not to levy from graziers any dues except such as are specified in his case. 4. License-holders and all persons acting under the permission of a farmer shall comply with the conditions so specified, and every farmer shall observe and enforce the conditions entered in his lease. 5. If any license-holder or farmer, or person acting under 'permission of a farmer, fails to observe the conditions on which . the license or lease was granted, the Deputy Commissioner may at his discretion cancel the said license or lease, and in such case the license-holder or farmer, and all persons acting under the said farmer, shall forfeit all claims to any produce or wood which at the time of the cancellation of the license or lease has not been removed from the land to which the license or lease applies. The said license-holder or farmer shall not be liable for any fees outstanding on the produce or wood so forfeited ; but he shall have no claim to refund of dues already paid, and he shall not be thereby discharged from his liability for the payment of other dues in arrears, or of instalment overdue by the terms of his lease at the date of the forfeiture. 6. (1) Persons pasturing cattle, or cutting grass, or wood, or gather- ing fuel or other spontaneous produce contrary to the provision of rule 1 ; and (2) any farmer or his agent levying grazing dues at higher rates than those fixed in the lease, or acting in contravention of the special con- , ditions, if any, contained therein ; and (3) any license-holder acting contrary to any of the conditions specified in his license shall be liable on a first conviction to simple imprisonment for one month, or to fine not exceeding Rs. 100, or to both, and, on a subsequent conviction under this rule within three years of the first, to imprisonment not exceeding six months, or to fine not exceeding Es. ?0O, or to both, • APPLICABLE TO TEE PUNJAB. eeXi. List of Rakhs which will be 9nanaged by thc Deputy Commissioner and to which the Rules under• Section 48 of the Punjab Laws' Act shall apply. ( Omitted ). ( Notification No. 94, dated 21st March 1882, Punjab Gazette of 30th idem). {h).—Rules under Section 48 of the Punjab Laws Act, for the management of certain Government lands in the Rules for letting of Gov- Muzaffargarh District, were published in, the ernment lands for cultiva- Punjab Gazette, with Government Notification tion for a single harvest. No. 94, dated 21st March 1882, and a copy of administrative instructions issued by the Financial Commissioner, with the sanction of Government to the Commissioner of Mooltan with reference to these rules, and also a copy of rules sanctioned by the Government for the Mooltan Division for the letting of Government lands for a single harvest, accompany this Circular. Correspondence has already taken place as to the desirability or framing similar rules under Section 48 of the Punjab Laws Act for the Shahpur and Jhelam districts, and of issuing Rules as to the letting of Government lands for a single harvest in Shahpur : and the Financial Commissioner desires that each Commissioner will report to this office for each district of his Division, as to which orders on this subject have not yet been passed, whether rules similar to those issued for the Muzaffargarh district and for the Mooltan Division are needed in that district, and, if needed, what modifications, if any, in the rules and instructions already issued, are desirable. Instructions for the guidance of the Commissioner of the Mooltan Division and of the Deputy Commissioner of the Muzaffargarh district, as to the management of the Government lands in the Muzaffargargarh, district, as detailed in the Schedule attached to Punjab Government Notification No. 94, dated 21st March, 1882 (Department of revenue and Agriculture). I. The restrictions on wholesale of wood, laid down in Financial Com.-missionea's Book Circular No. IX of 1880, or which may hereafter be promulgated by any order of the Government or Financial Commissioner, will apply to these lands. II. The Deupty Commissioner may, at his discretion, lease to a farmer the right of cutting the wood of the plant Phog ( Collegorium, Polygnoides ) in any of the Thal Rakhs for the purpose of making charcoal. In no other case shall he grant a lease of the right of cutting wood. III. The Deputy Commissioner may, at his discretion, grant to townspeople, or to fuelsellers in towns, licenses to cut wood for fuel or other purposes at such rates as the Commissioner may from time to time, by general or special order, sanction. IV. The fees payable for grazing shall be fixed by the Commissioner of the Division, from time to time, by general or special order. V. The Deputy Commissioner may, at his discretion, lease to a farmer the right of levying grazing dues and the right to cut grass or any spontaneous produce other than wood in any of the lands to which these rules apply. VI. The Deputy Commissioner may, at his discretion, grant licenses to cut or gather grass or any spontaneous produce other than wood, at such rates, per load or by weight, as the Commissioner may from time to time, by general or special order, sanction. VII. The Deputy Commissioner may in licenses, or in the leases of farmers, such conditions as he may consider necessary to prevent waste, or to promote the good management of the land concerned. ccxii RULES UNDER THE PUNJAB LAWS ACT VIII. If a license or farm of the kind described in these instructions is up to auction the Deputy Commissioner shall notify that he will not be bound to accept the highest or any bid. IX. No claim on the part of owners, or occupants of, or others possessing rights in estates adjacent to these lands, to a preferential right of grazing therein, or to obtain licenses or farms of any description therewith, shall be admitted. X. Fees leviable from licenses granted under these rules shall ordinarily be paid before issue of the license. Rules for the letting of Government lands for cultivation for a single harvest. 1. License to cultivate may be given at the discretion of the Dupty Commissioner for one harvest only. Every such license shall state as precisely as may be possible the land to which it applies, the fee or rate of fee to be charged, and the season for which it is granted ; and no person acting under such a license shall cut or injure trees standing on the land to which it applies. The Deputy Commissoner may charge any fee, not less than a rate of 12 annas per acre, which will, in his opinion, secure a full and fair rent for the use of the land. It will be in his discretion to charge the fee either for the entire area covered by the license, or for the area actually cuitivated, or for the area producing a crop only, and to vary the rate with the crop or not, as may seem expedient. 2. Land cultivated without a license shall be charged for at double rates, but the Deputy Commissioner may remit the whole or any part of the extra rate if the cultivator petitions for remission and his excuses appeal- to be adni;ssible. 3. With the above exception, no land shall be cultivated except under a lease obtained as prescribed in the rules for granting leases of Government lands. 4 Fees leviable for licenses to cultivate, granted under these rules, shall be paid one month in advance of the date fixed for the payment of the first instalment of land revenue of the season to which...the license applies. ( Financial Commissioner's Circular No. 22 S. of 1882). . Acknowledgment, Mohamedan Law ••• .. ••• Act 5 of 1881 ... .•• ••• Adhalpi Tenure ... •• .. — ••• Administration of assets, Mohamedan Law Adoption, Hindu Law ... ••• Adoption, Mohamedan Law ... ••• Adoption, custom ••• ••• ••• ,, 72 who may adopt ••• ••• ••• xlvii 7/ 21 who may be adopted ••• ••• ••• xlvii what is necessary for ... ••• ••• xlviii ,, ,, to whom does adopted son succeed ••• ••• xlviii 22 27 adopted son, position of ... .•• ••• xlix adoptions invalid ••• ••• •.. •P• xlix Alienation, Hindu Law ••• ••• •.• ••• lxxxvi 21 powers of father ... .•• ••• ••• lxxxvi 72 custom . • • 11•• •Ska 41.0 xxi .22 what property subject to ••• ••• ••• xxii 27 burden of proof ... ••• ••• ••• xxii 22 what persons can not make ••• ••• ••• xxii ,, rendered valid by consent ••• ••• ••• xxvii ,, for legal necessity ••• ••• ••• xxvii ,, duty of lender ..• ••• ••• xxix ,,equities in setting aside ..., .•• ••• xxx Alluvion, Law of ••• ••• ••• ••• 84-92 21 Claims to, how adjusted ••• ••• ••• 86 ,, ••• ••• Custom first rule of decision 86 • •• 86 ••• ••• ..• ... 22 Kishti Banna 22 • • • • • Mahaz Rule 87 • • • . • . If Between British India and Native Chiefs ... ••• 87 f) English Rule — ••• ••• • 87 ,, Decision where no custom exists .•• 87 ,, Increment from the recess of a river ••• ••• 87 ,, Identification ••• ••, ••• . • 88 ,, Effect of delay in suing ••• •. .. 88 ,, Right for land ... ••• •• ••• 89 Sf Decision when change in the Course of river ••• 90 ,, Fordable river ••• ••• ••• 91 ,, What is meant by most contiguous ••• ••• 91 ,, Decision in cases unprovided for ••• ••• 91-92 22 Encroachments on beds of rivers •.• ••• 92 Ancestral property, what is ... ••• ••• ••• lxxxvi Antiquity of custom, what is .. •4 lb. 3 Appeals in Insolvency proceedings ... ••• ..• 54 SOS ••• ••• ••• ••• r•• ••• PAGES. cxiiii cxiii 11 ci cii cxxxix 2 PAGES. Appeal, Court of Wards ••• ... ... ... 56 „ Track Law i ... ••• ••• ••• 62 Apostacy, effect of ... •.. ••• ••• xlv Armed men, entry in towns ••• .•• ••• ••• -65 Asceties, Hindu Law ••• .•• ••• — lxxxi Assignees of land revenue, rules of descent applicable to • • 10 Association, custom ••• ... •.. — ii Bandhus ••• ... ' ••• ••. ••• lxxix Bankruptcy, see Insolvencey .. ••• •.. Sir Bankruptcy, effect of ••• ••• ••• •.. 45 Bankrupt, who may be ••• ... .. ••• 45 Bastardy, Mohamedan Law ••• ••• ••• ••• cxlii Betrothal, Hindu Law •.• ••• ... — xcvii Betrothal ••. — ••• ••. .•• xv n power of guardian ..• .•• ••• •.. xli reciprocal agreements of xliix i n 33 33 bar to suit for damages — ••• ••• x li ••• ••• .•• marriage brocage contracts • .. ••• •e• xlii Betrothal, breach of ••• ••• ..• ,•• Birt ••. ••• ••• ... ••• lxi Brothers' widow, right of, custom ••. ••• ••• v Bye-bil-waffa, see conditional sale ... ••• ••• 17 Chastity, want of ... ...... — — xviii Christians converts not governed by Hindu Law ••• ••• 8 Chundawand ••• ••• ••• ••• ,•• i Conditional Sale .. .. ••• • . .. 71 n tender by borrower ••• •.. ••. 71 n deposit by ,, ••• .. •• 71-72 n sale, adjustment of accounts ... .. .. 73 ,, do. teeps not a legal tender ••• .•• 73 n do. redemption of .. ••• — 73 n effect tender • . ••• ••• •.. 74 3/ sales prior to the Punjab Laws Act .•• ••• 75 Competent Court••• — .P• 75 n to what property regulation applies .. .. 75-76 n burden of proof ••• ... ••• 76 ,, sale demand necessary ••• ••• ••• 76 n sale delivery of the copy of petition ••• ... 76 n ditto Mention of interest ... ••• 1p•• 76-77 n ditto to whom notice to be given .•. .. 77 n ditto Proof of the service of notice ... •.• 77 n Sale, period of grace •••... •• 78 31 ditto effect of non-compliance with notice ... 78 n ditto right to redeem ••• .•. ••• 78 Churs ••• •• ••• ••• ..• 90-91 31 • • — ••• Islands 90-91 • . . P, Right of Government .40 ••• ••• 90 INDEX, PAGES. Conjugal rights, Mobamedan Law .,• ••• ••• cxxxvi Common land ••• ... ••. •.• ••• lxi ,, persons entitled to ••• ••• ••• lxi ,, power of lambardar ••. ••• ••• lxii ,, ,, power of majority ••• ••• ••• lxii .”rights of individuals ••• .•• ••• lxiii ,, ,, acquiescence ••• ••• ... lxiv ,, ,, rights of tenants •.. ••• ••• lxiv ,, non-proprietors ... .•• ••• lxvi ,, succession to the houses on .. ••• ••• lxvii Converts, law applicable to ... .•• .we ••• 8 Court of Wards ... ••• • . ••• 54 ,, do. Jurisdiction of ••• ••• ••• 54-56 :, do. Appeal to Commissioner .. .. ••• 56 ,, do. Suit by manager .. ••• se 56 ,, do. Power of ward to sue .. ••• • • 57 Custom, what is ... ••• ... ••• •.. 2 ,, Antiquity of 4100 ••• • • ••• 3 ,, General ••• ..• .•. ••• 3 2, Special ••• .•• •.• ••• 3 ,, Family • • —. •.• ••• 3 ,,, Relevant facts to prove ••• ••• ••• 34 .,) How abrogated ... ... •.. • • 5 ,, Discontinuance of ... .. ••• ••• 5 ,, Uncertain or unreasonable •.• ••• .. 5 2, Immoral ••• ••• •.• ••• 5 2, Illegal.• .. .•• ••• 5 ,,, Cannot override positive law ... .. ••• 6 ,, Primary rule of decision .•• ••• ... 7 Customs, local — 111•• ••• ••• • DO 10 alluvion. —, 86 ,, — •.. .. ••• order of succession ... i ••• ••• ••• P) • • • • • • • • • association and dissociation ii ,f right of representation .•• ••• ••11 iii ,) whole and half blood .. ••• 600 ••• iv ,, gift... .•• • ee ••• 0.0 xxxvii /) marriage ••• • Of ••• ••• xlii divorce ... xlv ,, •.. •.• ••• •.• ,, adoption ••• ... ••• ••• xlvi ,, legitimacy ••• ••. ••• •.• liv 1V lviii ,, partition... ... ,, religious institution ... ••• Damages, for breach of marriage contract ... Daughter-in-law, right of, custom ••• Daughter's succession, custom ••. son, custom ••• ..• Death bed gifts, Mohamedan Law .•. 0 el; ••• • •• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• INDEX. OMMINOINI, PAGES. Decision in cases not provided for ••• .. ••. 8 Deputy Commissioner to be Court of Wards ••• ••• 54 YI Commissioner to enquire • •• • • ••• 56 Dilluvion, see Alluvion ••• .. • ••• .. Discontinuance of custom ••• ••• ••• 4•• 5 Dissociation, custom ••• •0 • ••• ... ii Divorce, custom ... ••• .•• ..• ••• xlv ,, Hindu Law ,.. ••• ••• ••• ci 3, Mohamedan Law ••• ••• ••• ••• cxxxiii Donees, ,, ?) ••• ••• ••• ••• CXXX21 Enactments in force ••• ••• ••• ••• 2 3) Repealed ••• .. ... ••• 2 English customs, Validity of .. ... ••• ••• 2 Equity, what is meant by .. ••• •• .•• 89 ,,, Measure of ••• .. ••• ••• 8 7., Province of .. ••• .• • ••• 9 )3 Maxims ••• . ••• ••• 9 Exchange, no pre-emption .. ••• .. i•• 11 Executor, successor to, Mohamedan Law • OO ... ... cl Family customs .. ••• .. • 6 AP . 3 Foreclosure, pre-emption on ... •• ..• .•• 31 how effected • • .. .. ••• 75 ,, partial ••• • • It • a. 78 Forest conservency, rules for ... ••• .. ••• 95-97 Fraud in insolvency proceedings ••• ••• ••$ 48 Fraudulent transfer 11. . •*0 • • .. 48-49 ,, administration of estate .. .. ••4 51 7) Preference ••• ••• .. ••• 51 General custom, what is 111 • 0 • ••• • •• 3 Gestation, period of ..• ••• ••• -•• cxlii Good faith, pre-emption • . .. ••• ••• 31 Goverment lands, use of pasturage or natural products of ••• 65 Gift, custom ••• ••• ..• ••• .•• xxxvii Gift, Mohamedan Law ••. ••• ••• • .. cli Gifts, Hindu Law .•• ••• ••• ••• cxiii Gifted land, succession to ••• ••• ••• • • • xxxix Guardianship, Hindu Law ... ••• .•• .•. cvii Guardian and minor, Mohamedan Law ••• ... ••• cxxxix Half blood custom ••• ••• ••• ••• iv Ilaq Biswadari is immovable property •.• .•• .. 11 Iliba-ba-sharat-ul-iwaz • •S • • 0 ••• ••• cliii Hiba-bil-iwaz ... a •• ••• ••• ••• cliii Hindu law, applicable to whom .. — ..• 8 Hindu Law, sources of ••• ••• ••• ••• lxxi J3 „ succession —• ... ••• ... lxxii INDEX. ••• ••• ••• ••• ••• ••• 0•• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• •• • ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• • 011 ••• ••• ••lIl ••• • • • fr • • • • ••• ••• ••• ••• ••• ••• t el ••• ••• ••• ••• ••• ••• ••• ••• •• • *II Hindu Law maintenance .• • •• • alienation ••• ••• joint family ••• ••• stridhan ••: ••• betrothal and marriage ••• adoption ••• ••• Dattak form ••• who may give in » » be taken in ceremonies necessary for 77 result of adoption by widow revocation of Kritaka form 77 Kritam form Duya mushyayana 77 minority guardianship ••• order of right of appointment by Court acts of guardians ratification wills ••• power to make under influence election ••• form of ••• revocation of ••• ••• power to make conditions necessary death bed forbidden ••• „ irrevocable ... ••• partition property not liable to persons entitled to how effected mode of taking accounts evidence of ••• effect of .•. 7, re-union ••• religions endowment Hissadar, see pre-emption —. what is meant by ... Iddatt ••• ••• 11•111 ••• ••• ••• ••• ••• 7) 7) •• ••• ••• ••• •• ••• )) )1 ••• .P) 7) ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• )) 7, 77 7, gift )) )7 )7 77 77 )) PAGES. lxxxi lxxxvi ixXXiX XCiV xaVii cii cii cii clii civ CIV CV CV CV CV CVi cvii cvii CV1i. cvii CVii CiX cx cx cx Cxil CX1i Cxii cxlii cxiii cxlil cxiii CxiV cxiV CxiV cxv cxv cxv cxvi CXVi. CxVi cxvii Civil cxviii 20 cxxxiv INDEX. PAGES. ••• ••• 55 ••• ••d .•• ••• lxxi ii . • ••• 11 ••• 35 . • . 0441 41 ••• ••• 44-45 ••• ••• ••• ••• cxxvii •••• 57-58 ••• ••• ••• ••• ••• •••, 45 7 f ditto burden of proof ... .•• ••• 45 ,, ditto procedure by court ••. ••• 46-47 ,, ditto rights of secured creditors ••• ••• 46 ,, ditto attaching creditions ••• ••• 46 ,, ditto misconduct of the insolven;; ••• 47 ,, ditto award of imprisonment ••• ••• 48 ,, ditto fraudulent transfer ••• ••• 48-49 ,, ditto ditto preference ••• ••• 51 ,, ditto official assignee ... ••• ••• 51-52 ditto composition ••• ••• •., 52 !I ditto discharge of insolvent ••• ••• 52-53 7f ditto son's rights on the discharge of the insolvent . 52 ,, ditto omission to register names ... .•• 53 ,, ditto computation of period ••• ••• 54 2$ ditto breach of agreement — ..• 54 •, ditto appeals in • . ... ••• 54 Rules, do not effect law in Presidency towns ••• 85 ,., ditto Powers of Chief Court to frame ... ••• 54 3, Power to exclude any class from . ••• 54 ), Proceedings, previous, saving of ••• ••• 54 Jagirs, descent of ••• ••• ••• ••• 10 Jains, governed by Hindu Law ••• ••• ••• 8 Joint family, Hindu Law ••• ••• ••• ••• lxxxix 7, property, Hindu Law, nature of ••3 ••• •.. xc, xcii ,, family, nuture of, Hindu Law ••• ••• ••• xci ,, ,, Manager, Hindu Law ••• ••• ••• xcii 37 77 Mohamedan Law ••• ••• ••• cxliv Judgments relevant in proof of custom ••• ••• ••• 4 Justice, what is meant by ... ••• ••• ••• 10 Katra, pre-emptiom in • • ••• ••. ••. 14 Kishti Banna ..• •.. ••• •.. 86 Idiot, defined ••• power of Deputy Commissioner to enquire ••• Illegitimate sons, Hindu Law Immovable property what is ... Improvement, compensation for, in pre-emption cases... Insolvency jurisdiction, power to invest with 7f ditto test of see Bankruptcy Increase, Mohamedan Law • • ••• Indian Penal Code, application of, previous to January 1862 Inheritance see Succession ... Insolvency Proceedings, nature of Legacies, Mohamedan Law ... Legal necessity, widow, Hindu Law Legitimacy, custom ••• ••• ••• cxlvii lxxv liv ••• ••• •• • • • ••• INDEX. Legitimacy, Mohamedan Law ••• Leprocy, Hindu Law ••• •.• Limitation, for dower ••• guardian and minor ••• Local customs, when valid ... ••• Taxation, powers, for payment of police ditto Notice of ... ditto Objection to ditto Procedure on ditto Power to fix rate ditto Power to make rules Mahant... ..• ..• Maintenance, Hindu Law... •.• 1) amount of, Hindu Law ••• Malik Qabza, pre-emption .. ••• Maintenance, Mohamedan Law .•• Market value, in pre-emption ••• Marriage brocage contracts ... ••• Marriage, custom ••• ••• ,, „ prohibited relations among Hindus ,, „ among Mohamedans ..• ,, second •• a • • • 3) proof of •.. ••• ' agreements •.. ••• ' Marriage, Hindu Law ... ••• ,, forms of Hindu • • ••• nature of Hindu ..• ••• ,, effect of „ ••• ••• 7, Hindu Law, prohibited relation ,! second, Hindu Lav, ... ••• Marriage, Mohamedan Law ... ••• Mercantile customs, how established ••• Mercantile usages, when valid ••• Minority, Hindu Law ••• • •• Minor, Guardian, Mohamedan Law ••• Mohamedan. Law, origin of, ... .•• ,, basis of the law of succession ,, ,, special features of ... ,3 i) sharers... ... ••• Jf residuaries • 40 3, 7, distant kindred •• • 3) difference between Shia and cession ... ••• ••• ••• ••• •• cxxiv cxxvi exclusion inom inheritance ••• DIPS cxxvi partition .•• ••• ••• cxxvii )2 increase ••• ••• ••• cxxviii return ••• SOS fee ••• :•• Sunni Law ••• ••, ••• ••• ••• • 0 • 11•• ••• 0•0 ••• ••• ••• ••• ••• ••• ••• ••• ••• • 0 •• • ••• • • •. I • • • ••• ••• ••• ••• •• ••• ••• •• • ••• ••• • •• • •• ••• 1D•0 ••• • •• ••• 1•0 ••• • • • ••• ••• ••• •.. ••• ••. ••• .•• • •• ••• • •• ••• •• • ••• •.. ••• ••• •lix lxxxi • • • lxxxiii ••• 23 cxlvi xlii 5 .•• ••• 35 ••• xlii ••• ..• xliii xliii ••• xliii •.. ••• xliv ••• xlv •.• xcvii xcix.•• ..• ei cxxviii 4 10 cvii x cxxix cxix cxix cxx cxxi cxxii ••• cxxiv of suc- PAGES. cxlii lxxx cxxxvi cxli 10 61 61 61 61 61 61  Mohamedan' Law marriage ... ••• ••• 77 7) I! essentials of ... ••• ,1 3) .7) prohibited degree ••• 7, 7) 7, unequality of parties ••• a, a, a, right of woman on attaining puberty 77 )7 7, proof of ... ••• 7, YY ,, dissolution of ... • ell 37 7, divorce ••• ••• ••• a, a, „ mode of .•• . • • 77 /7 divorce khulla ... ••• 77 Jf 11 proof of ••• ••. 71 77 )1 right of, by wife ••• 77 SI Iddatt ••• ••• .•• 7, 7) dower ... ••• .•• ,a a, „ what is proper ... • • . 7, 7, dower, prompt and deferred ••. 7, „ proof of • • • • • • 7, 7, conjugal rights ... ••• S) 77 dower, power of court ... .•. 77 77 recovery of, by wife's heir • • • 77 77 „ when is a charge ••• 77 7, adoption ... .... .•• a, a, guardian and minor ... •.. a, ,a 77 of person ••• ••• a, a, a, of property ... ••• V V, a, power of de facto . • . ,, 7) 7, power of, to sell ••• 7.7 77 age of majority ••• ••• 77 77 guardian, limitation .•• ip • . 7) 17 Bastardy ... ••• ••• 77 J, period of gestation ••• . • • 77 legitimacy legitimacy •• • • • • 70 /7 illegitimate sons not heirs ..• )y 77 acknowledgment ••• •.• 77 77 joint family ••• ••• ,P 37 I, and separate estate ••• ,a ,, liability of family ••• ••• ,f 7, maintenance ... ••• 27 77 7) of wife ... — ,, a, a, „ children •.. „ daughters-in-law a, a, ,, .. 7f 77 7, „ parents ••• „ grandmother ,, ,, • a VI 7) )1 , desciple ,, a, 77 what is proper • • f) 7) 7, when recoverable •.. 3, M wills • • • • • • • in what forms may be made ... PAGES. ••• cxxviii ••41 cxxix ••• cxxix ••• cxxx ••• cxxx ••• cxxxii 11•• cxxxii cxxxiii ••• cxxxiii ••• cxxxiv ••• cxxxiv ••• cxxxiv cxxxiv ••• cxxxv ••• cxxxv ••• cxxxv ••• cxxxvi ••• cxxxvi ••• cxxxvii ••• cxxxviii ••• cxxxviii ••• cxxxix ••3 cxxxix ••• cxxxix ••• cxl ••• cxl ••• cxli ••• cxli • 04 cxlii ••• cxlii ••• cxlii ••• cxlii ••• cxliii 1111•• Cxliii ••• cxliv ••• cxlv ••• cxlvi ••• cxlvi ••• cxlvi cxlvi ••• cxlvii ••• cxlvii ••• cxlvii cxlvii cxivii • • cxlvii cxlvii ••• INDEX. 9 Mohamedan Law, wills what can be bequeathed how made • . 22 PP 22 2/ 22 22 what passes by .. )2 22 )2 acceptance of, by legatee 22 2/ 22 in favour of an heir 2, death bed gifts will, revocation of •.• gift PP JP ••• property ••• J1 waqf, right of inheritance to 21 2/ revocation of ••• Mohamedan converts not governed by Hindu Mother, right of, custom Muhalla, what is Musha ••• Mutabayun ••• Mutmasil ••• •.• ••• Mutwafik ••• Mutwali Mutwali, removal of ••• PP re-appointment of ... Municipal watchmen, power to establish Native law in what cases applicable ••• Notice, see Conditional Sale and Pre-emption • • • P. JP 33 2P 31/ waqf :•• )2 essentials of invalid how created 11 • • • ••• • • • 2) )1 PP • • • ••• • • • • • • ••• PAGES. cxlvii cxlviil cxlix cxlix cxlix cxlix Cl cli cli Chi clii clii C 111 cilY cliv clv clv clv clvi clvi clvii clvii vi 14 clii cxxvii cxxvii cxxvii clvi clvii clvii 58-59 2 ••• • • • • • • ••• • • ••• • • • e• ••• • • • • ••• ••• i•• ••• •1111• • • • • • • ••• ••• • • ••• • • • ••• ••• ••3 • • • • ••• • • ••• ••• ••• ••• ••• ••• ••• ••• ••• ••• •• • • • gee ••• ••• 1•4•• ••• ••• ••• • •• • • ••11, ••• • ••• • • •411 • • ••• ••• ••• ••• possession when necessary to donees 1) of property not in possession gift, Musha ••• with consideration with a condition revocation of Law Official assignee, suit by ••• •.• ••• Onus probandi, insolvency proceedings ... ••• Onus probandi alienation, custom, as to the nature of property Onus probandi, self-acquisitions JP partition, Hindu Law ••• ••• Outcastes, Hindu Law •.• ••• •.• Pagwund ••• ••• ••. Partition, custom ••. JP custom, sons' right to ••• ••• PS widows' right to ••• Hindu Law •., ..• ••• • • ••• ••• ••• 52 ••• 45, 49 ••• xxii ••• xciv • • • cxvii ••• lxxx ••• lv ••• lv ••• lvi ••41, SOO 10 • INDEX. Partition, Mohamedan Law ... • • ••• Penalty for breach of rules . ••• Police officers, investment with the powers of ••• Power to propose drafts of regulations ••• Pre-emption right of a co-sharer ••• ••• Pl joint right of pre-emptor and purchaser ••• ,, son not a co-sharer as to claim right of ••• ,, in villages held on ancestral shares ••• ,, order of relationship what is meant by ••• ,, pattidars . ••• •• ,, sub-division of a village what is meant by ,,, joint claim of Pattidar ••• • a. in favour of landholder ••• — ” what does landowner include ... • . ,, of malik qabza ... PP in favour of tenants ••• ••• PP ditto of Punjab Government 1,44, 3.P Right of vendor to elect ••• PP ditto • to retract ••• ,, Rival claiments ... ••• „ Joint action for .. ••• on mortgages • . ••• .,, Cases on mortgages •• ,, no right, simply by adjacent land ,, what is market value ••• ••• PAGES. ••• cxxvii ••• 65 ••• 62 ••• 1 20 ••• 20 •• • 20 ••• 21 ••• 21 ••• 22 ••• 22 ••• 22 ••• 22 • • 22 ••• 23 23 ••• 23 • •• 23 24 • 0* 24-25 ••• 24 • • 26 ••• 26 ••• 23 ••• 35 ••• 10 ••• 10 e •• 10 11 ••• 11-12 ••• 12 ••• 13 • ••• 14 ••• 14 ••• 14 ••• 15 ••• 15 ••• 16 ••• 16 • 16 ••• 16 ••• 16 0•• 17 ••• 17 17 ••• 17-20 ••• 20-28 28 •• ••• ••• ••• what is _ ••• ••• P1 PP when arises ••• ••• ••• 3, Mohamedan Law of, does not apply ••• PP object of the Law ••• ••• 3.) on compromises of disputes ••• •" 7, on transfer to wife ••• ••• PP Law applies to all persons .,. ••• ,, as to transferable right of occupancy •.• PI non-existance how proved ••• •.. PP no presumption in towns ••• ••• PP suit what should plaintiff prove • 0 33 effect when generally prevalent ••• 9, from houses no presumption in respect of katra presumption as to shops .•• ••• pre-emption in Suburbs ••• .•. on mortgages in towns ... ••• as to the lands in villages included in towns generally on vicinage ••• ••• effect of relationship ••• ••• procedure where rival claimants ••• ct)scs of chief towns • . .. right of, when property a share of a village notice to pre-emptors .•• ••• PP PP INDEX. 11 PAGES. Pre-emption do. to be given, by whom ... ••• ••• 28 PP do. to be given through court ••• ••• 28 PP notice, for whom is necessary ... .. „,•. 29 ,, notice when to be given... ••• ••• 29 ,, notice, computation of period in case of ... ... 29 PP loss of the right of ••• ... ••• 29 ,, mere willingness to pay not sufficient ... .. 39 JP waiver ••• ... ••• ••• 29-30 PP on foreclosure ••• • • ••• ••• 31 9, grounds to sue for .. .• ••• 32 ,, one co-sharer can sue for •.: ••• . 32 3P must take over the whole bargain ••• ••• 33 good faith . •• ,, ••• • • ••• 34 improvements • • ••• . — 35 PP PP suit, vendor not a necessary party •.. .•• 35 PP bad title of vendor ••• ••• ••• 35 cases, limitation for . ••• ••• PP 36-38 JP value of right, for registration purposes ••• .•• 38 suit to recover difference ••• •41 ••• ,, 38-39 plea of39 ,, .. .. ••1 ••• PP ••• ••. ••. Cases, decrees in . 39 PP power to require payment in Court ••• ••• 39 ,, decree to fix time for payment ••• ••• 40 PP PP ••• ••• power to sell ••• ••• ••• 40 PP decree in rival claims 40 — ,, .. ••• ••• rival claims,' in 40-41 ,, decree, effect of non-payment of purchase-money ••• 41 PP right to intermediate profits .. .•• .•• 41 PP decree, strict enforcement of .. ••• ••• 41 ,, ,, payment when last day a Holiday ••• 42 PP PP effect, when costs not deposited ... ••• 42 ,, ,, tendor refused by court ... ••• 43 PP PP effect of non-payments on appeal... ..• 43 PP effect of non-payment as against father ••• 43 PP • • • • • • • • in chakdari tenures 44 Pre-emptor, what benefits entitled to . • ... ••• 35 Presumption as to the existence of pre-emption ••••.. 13 . „ of the existence of pre-emption as to houses on village sites 13 Priests... ..• ••• ••• .. Regulation 1 of 179871 ••• ••• ••• 17 of 1806 73-79 JP • • • • • • • • • • • 10 of 1804 79 ,, •• ••• ••• ••. 3 of 1818 80 ,, •• ••• ••• ••• 11 of 182584 , .. ••• ••• ••• „ 20 of 1825 • • ••• • • . ••• 92-95 Regulations, power to propose drafts of ••• ••• Ih•• 1 Relevant facts to prove a custom3 •• •••• ••• 12 INDEX. PAGES. Religious institutions, custom .. ••• .•• lviii Religious endowments, Hindu Law ••• ••• ••• cxviii Re-marriage, effect of • • ••• ••• ... XVi 3 f of mother .. .•• Willi ••• XViii Representation, right of ••• .. ••• (lel iii Residence, widows' claim to ••• .•• ••• lxxxv Return, Mohamedan Law ••• .. ••• .•. cxxviii Re-union, Hindu Law ••• .•• ••• •• a Mil. Rivaj-i-Am, what is •• ••• ••• ••• 4 ,, value of .. .. ••• ••• 4 Rivers, crossing of... .. ... ••• ••• 65 Rules, validity of under Punjab Laws Act... ••• ••, 65 ••• • • •• • ••• ••• ••• ••• ••• • •• • • • ••• a 0 • ••• • •• • •• • • • • • • ••• • • ••• • • • • •• • • • ••• ••• • • • • • • • • • •• • f•• • • ci ...xxiv, xxxi .•• 3 ••• 65 ••. 14 xciv•.• •.• xciv ••• xcv ••• xcv xcvi• • • ••• 64-65 1 .•• • • • XXX iX II • • 1XX ii • • • 1XXX • • • xcvi • • • cxix 0 • • lxxi ... 62-64 ••• 62 ••• 63 ••• 63 • • • 3 Sadhs governed by Hindu Law Sale, what is Sale in the guise of mortgage or gift Second marriage ••• Self-acquisitions, Hindu Law Simritis ••• Sisters, custom ... Sister's son, custom Sons, various sorts of, Hindu Law Sonless proprietors, power of, custom Special custom, what is Streams, crossing of Sub-Division of a town, what is Stridhan, Hindu Law ••• • •• ••• Stridhan, power of control succession to Slaughter of kine . Succession, custom ••• 7, to land gifted ••• Hindu Law :.• exclusion from, Hindu Law to stridhan ••• basis of, Mohamedan Law according to Hindu Law Track Law • • ••• Tracks, assistance to carry on.. Track Law, object of :• nature of proceedings Usages, general, special or family •• 7f what is Sulka • • • • • • • • • • • •• • ••• ••• • 04 • • ••• ••• • • • ••• • •• • •• ••• ••• ••• • • • • • • • ••• ••• • • •• • • • • • • • ••• INDEX, 13 PAGES. Village community, what is meant by .. ••• ••• 13 58-60 PP watchman, powers to establish a system of ••• .•. and headman, obligation to assist ••• 60 ,, .•• liability of persons obstructing... • • • Waiver, pre-emption .. ••• ••• ••• 29 by guardian ••• ••. .•i 30 11 renewal of right••• ••• ••• waived 30 Wajib-ul-arz, what is .. ••. ••• ••. 4 presumption as to ••• ••. ••• 4 9, how to be construed ••• ••• ... 4 Waqf Mohamedan Law ••• ••• .. ••• clv Whole blood, custom • . ••• ••• ••• iv Widow, brother's, right of, custom ••• • ••. vi Widow's estate how differs from a childless proprietor's ••• xxi Widow, powers of, custom ... .. ••• ... xxvii Widows, Hindu Law••lxxiv ••• .. • • • PP PP „ accumulations ly ... •.. ••• lxxvii Wills, custom •.. ••• ••• .•• ••• xxxviii Wills, Hindu Law ••• ••• ••• ••• cx Wills, Mobamedan Law ••. ..• ••• •.. cxlvii -