Sinha, J.:— This and the connected appeal No. 368 of 1942 arise out of the same set of facts. Suit No. 74 of 1937 was instituted on the 10th of November, 1937 by Raja Udeya Pratap Singh, Taluqdar of Dharampur Katiari in the district of Hardoi now represented by the Deputy Commissioner, Hardoi, in charge of the Court of Wards, against Mst. Munna prostitute, alias Ram Kumari alias Shiv Kumari.
Suit No. 12 of 1938 was instituted on the 20th of January 1938, by Mst. Shiv Kumari Devi alias Munnaii against Raja Udeya Pratap Singh.
The earlier suit was brought by the Raja for possession of the ‘Dan Villa’, bungalow in the city of Cawnpore and also for recovery of Rs. 300, on account of mesne profits. The allegations in the plaint are briefly these:
Raja Bahadur Raja Rukmangad Singh, the father of the plaintiff was the owner of the bungalow. The defendant was a prostitute in the keeping of the deceased. She was allowed to occupy the house in connection with the marriage of a brother in January, 1933 and, in spite of a registered notice sent by the plaintiff who succeeded his father on his death, on the 19th of January, 1937, she did not vacate it. Instead, she claimed its ownership;
The defence, in the main, was that she was an ‘Avarudh Stre'e’ of the late Raja Bahadur and was treated by him with affection and marked consideration and was so treated by his relations including the plaintiff. In accordance with the family practice and custom the late Raja Bahadur—
(a) provided the defendant with suitable residence,
(b) paid die defendant a monthly allowance of Rs. 300 per annum as her pocket money,
(c) paid other expenses of food, raiment, conveyance, medical attendance, establishment etc. over and above the said pocket money,
(d) placed at her disposal several cars for her personal use, the last one being, a Plymouth 1935 model No: 6349 L.W, U.P which remained in the defendant's exclusive possession till the 28th of January, 1937, in her own right and title of maintenance, and
(e) gave her plenty of money by way of gift and presented to her many other valuables, from time to time.”
She was maintained as an ‘Avarudh Stree” whether she lived at Katyari or Cawnpore or Lucknow and the pocket money used to be paid to her as it used to be paid to the other members of the family. The Raja Bahadur gave her Rs. 19,000 for the purchase of the bungalow in dispute, which stood on the banks of the Ganges, because she was religously inclined and wanted a house so situated. It was purchased by her on the 4th of October, 1934, but in the name of the Raja, out of respect for his memory. She has been, she goes on to say, in exclusive possession of the house since its purchase on the 4th of October, 1934.
The plaint of the suit No. 12 of 1938 was practically a rehearsal of the written statement of the earlier suit and the written statement was a repetition of the allegations in the plaint.
In this suit she prayed for a declaration that she was the owner of the ‘Dan Villa’; and was entitled to remain in its possession. She claimed a sum of Rs. 6,000 on account of maintenance and wanted it to be created a charge on” the property mentioned in Schedule ‘A’.
The learned Civil Judge framed the following issues in Suit No. 74 of 1937:
1. Was the sale-deed dated 4th of October, 1934, in favour of Raja Bahadur Raja Rukmangad Singh a benami sale? Was Shrimati Sheo Kumari the real vendee?
2. Was Shrimati Shiva. Kumari an ‘Avarudh, Stree’ of the late Raja Bahadur Rukmangad Singh? If so, has she a right of residence for life in the house in suit?
3. Is the plaintiff entitled to mesne profits?
4. Is the plaintiff owner of the bungalow in suit or he is only a benamidar?
In suit No. 12 of 1938 he settled the following issues:
1. Has the court no jurisdiction to try the suit?
2. Is the suit bad for multifariousness?
3. Is the court-fee paid insufficient?
4. Is the plaintiff ‘Avarudh Stree’ of the late Raja Bahadur Raja Rukmangad Singh?
5. Is the plaintiff entitled, to maintenance?
6. In case the plaintiff is ‘Avarudh Stree’ of the late Raja is she entitled to maintenance out of the State left by the said Raja in the hands of the defendant?
7. Is the plaintiff the real owner of the bungalow No. 11/13 and the sale-deed in favour of the late Raja was only benami?.
8. Has the plaintiff the right of residence in the said bungalow by reason of her being an Avarudh Stree of the late Raja Bahadur?
9. To what relief, if any, is the plaintiff entitled?
The learned Civil Judge found that Mst. Shiv Kumari Devi—
“Was in permanent keeping of the late Raja Bahadur from 1932 up to his death which took place in 1937 and that she was his Avarudh Stree in the eye of the law?”
He also found that the estate of the late Raja Bahadur belonged to three classes. Part of it was governed by the Oudh Estates Act; another part by the Oudh Settled Estates Act and the rest was non-talukdari property. He held that it was not open to the late Raja Bahadur, in view of sections 15 and 22 of the Oudh Settled Estates Act, to create a charge on that portion beyond hit lifetime.
As regards the portion covered by the Oudh Estates Act, he came to the conclusion that it was only certain named classes that could claim its benefits but not the plaintiff.
With regard to the rest of the property he was of opinion that the Raia of Katiari was included in list II of the Oudh Estates Act and his estate is governed by the family custom of impartibility and it descends to a single heir. The rights, therefore, fall to be determined according to custom and not by the general principles of Hindu law. As no custom was pleaded by Mst. Shiva Kumari, she was not entitled to any maintenance.
He came to the conclusion that the Raja purchased the house for himself and with his own money. In the result he dismissed the suit.
Mst. Shiv Kumari has come to this Court in appeal. She has preferred appeals in both the suits.
She claims that she is the owner of the ‘Dan Villa’ and at all events, she is entitled to remain in possession of it as ‘Avarudh Stree’ and claims maintenance as such. Her contention, in effect, is that she is entitled to claim a charge in lieu of her maintenance on the estate of the Raja.
On behalf of Raja Udeya Pratap Singh this position is challenged. It is contended that, the finding of the learned Civil Judge that she was an ‘Avarudh Stree’ is not warranted by the materials on the record.
The points that have emerged for consideration are—
(i) Whether Mst. Shiv Kumari has established, her ownership of the ‘Dan Villa’ and her status as ‘Avarudh Stree’ of the late Raja Rukmangad Singh?
(ii) In case she has, is she entitled to claim maintenance as a charge on any portion of the estate or a right of residence in the house?
The first question, therefore, which confronts us, is whether she has established her status as an ‘Avarudh Stree’. The law on this point was laid down by Lord Darling in the well known case of Bai Nagubai v. Bai Monghibai(1). At page 610 His Lordship says as follows:
“The question now to be decided upon this evidence is whether the appellant is entitled to maintenance out of the estate of the deceased, and this, as appears from the judgments, delivered in the Court of Appeal, depends upon whether, upon the facts proved, she was in a strict sense, according to the Hindu law, as prevailing in Bombay, the ‘permanent concubine’ of the deceased. This word concubine has long had a definite meaning, whether expressed in the language of India or of Europe. The persons denoted by it had, and have still where it remains applicable, a recognised status below that of wife and above that of harlot. In the Glossory of Ducange, under the title Concubine, we read that Pellex honestior est quam arnica, but quae accidat proprius ad uxoris naturam; and this, it would seem, is because uxor nomen est dignitatis non voluplatis. Almost a wife, according to ancient authorities, the distinction of concubine from harlots was, due to modified chastity, in that she was affected to one man only, although in an irregular union merely: So Bracton is quoted by Ducange as writing, etiam concubina ligitima dictur ad discrimentejus quae quaestum facit. Harlots solicited to immorality; concubines were reserved by one man.”
In other words she is an ‘Avarudh Stree’ provided the concubinage is permanent, until the death of the paramour and sexual fidelity be reserved to him. She is entitled to maintenance even though she be not kept in the family house of the deceased. Residence in the family house was not considered “an essential reason for the right to have maintenance from the goods of the deceased paramour, but rather a means to ensure qualified chastity of the mistress.”
There is no evidence before us that she did not observe fidelity to the deceased. The question still remains whether she has established her status as an “Avarudh Stree.”
She has not the same status as that of a wife, but the status is very akin to it. If one thing emerges clearly from the judgment of Lord Darling, it is that the law recognises a clear and well defined line between a harlot and an ‘Avarudh Stree’. She may be a concubine but she may, by her fidelity to her paramour, win a position of dignity and respect in his family. Fidelity to him or to his memory is an essential condition. It is difficult to bring out the meaning in its full force in English, but it appears to be clear that she is a wife though not in the orthodox sense. As a wife she has a distinctive position, she is admitted in the bosom of the family, though she may not be living in the house occupied by the family. She may not be the mistress of the house and yet she commands the affection of her paramour and the respect due and ordinarily shown to a wife.
Treveleyan in his Hindu Law, third edition, page 91, has thus summed up the result of the authorities culminating in the decision in Naghubai' case:
A concubine, who has been kept by a Hindu continously to the time of his death, practically as a member of the family, is entitled to maintenance from the property (whether ancestral or self-acquired) of her deceased paramour, whether she have children or not, but loses right on incontinence. (The italics are ours.)
Did Mst. Shiv Kumari ever acquire such a position?
Was she ever treated, practically as a member of the family?
The evidence on the record no doubt proves that the Raja was greatly found of her and very much devoted to her, but, here again, a distinction must be made between what is mere infatuation and the love which a husband bears towards his wife.
There is something in her written statement itself which bears out the theory of infatuation. She says in paragraph 13 of her written statement in Suit No. 74 of 1937 that she—
“was accorded a treatment even better than that accorded to his other two married Ranis.”
Why should she have been treated better than his married Ranis? The Raja was one of the premier noblemen of Oudh. There is no evidence on the point, but there is a strong presumption that the Ranis, i.e the lawfully wedded wives, must have come from distinguished Rajput families. The appellant had remained in the keeping of others and, at all events, came from a lowly grade. There is no reason why she should have been treated better than those Ranis of high families. The conclusion is almost irresistible that the Raja was under her spell and was infatuated with her. The number of letters produced by her in support of her case that she was an ‘Avarudh Stree’, far from proving her case, lend countenance to the theory of infatuation. The learned. Civil Judge held that they were not proved. Even if admitted in evidence, read carefully, they hardly support the appellant's case. There are a number of other pieces of evidence filed by’ her. They also do not advance this theory of ‘Avarudh Stree* Indeed the cumulative effect of the entire evidence is consistent with one and one theory alone that the Raja, whatever his feelings for her never went to the length of treating her as a member of the family, never accorded her that status which was the right and due of an ‘Avarudh Stree.’
Besides the letters filed by her, she has also relied upon a few filed by the respondent. Those filed by her are printed at pages 222, 223, 224, 225, 227, 230, 232 and 235 and are alleged to have been sent to her by the Raja. They were all sent through some messenger. They do not purport to have been sent by Raja Rukmangad Singh but by one T. Singh. Her case is that T. Singh is only another name for the Raja. This position is challenged by the respondent. But even assuming that they proceeded from the Raja, they do not advance her case. The Raja used to style himself as ‘Premi’, ‘Hitaishi’, ‘Darshan Abhilashi’, ‘Rakim Niaz’ and addressed her as ‘Shrimati Sahiba, ‘Bari Sahiba’, ‘Rani Sahiba’.
The first letter is printed at page 222 and is dated October 28, 1934. A Persian couplet is quoted by the Raja, which will hardly mid a place in a letter addressed by a Hindu husband to his wife. It is a couplet speaking of amour and not of conjugal affection. The letters at pages 224, 227, and 230 are subject to the same criticism. Those at pages 225, 232 and 235 are inconclusive. The learned Civil judge is, at any rate, right that it does not follow from them that she was in the permanent keeping of the late Raja Bahadur.
Then, there are a number of letters addressed by other people, exhibits X, Y, Z and AA. The scribes of none of these letters have been examined by her. We agree with the learned Civil judge that no value can be attached to them.
We, next, have a number of exhibits—9 to 14, CC, DD, EE, 16 and 17. They are prescriptions and clinical reports in which she is addressed as Rani Sahiba of Katiari. None of the doctors have been examined. Here again, we agree with the learned Civil Judge that no value should be attached to them. The appellant also filed a Panda's book. The condition of the book did not inspire the learned Civil judge with confidence and we see no reason to disagree with him.
We now come to another class of evidence on the basis of which the learned Civil Judge held that she was in the permanent keeping of the late Raja Bahadur from 1932 up to his death in 1937. The first document is exhibit S. It is printed at page 229 of the paper-book. It is a letter purporting to proceed from one Bhim Singh zilledar of the estate to Kishen Lal, the appellant's brother, at Cawnpore and says that he had received fourteen maunds and thirty seers of ‘urd’ and two maunds of ‘mung’ and that he was sending the same to him. The contents of this letter are borne out by the account books of the estate. There is nothing surprising in a quantity of grain being sent to her or her brother even if she was not in the permanent keeping of the Raja. It appears that the Raja Bahadur had some sir land in this estate reserved for the appellant and that she was either given grain of its money value.
The learned Civil Judge has deduced from the entries in exhibits 77-83 and 85-89 that the appellant received payments whenever she visited Katiari on the occasion of birthday celebrations. He has also deduced from the account books of the estate, exhibits, J.L N and Y that costly presents were made to her. He further came to the conclusion that the Raja Bahadur had placed at her disposal a Plymouth car in 1936.
The Katiari estate, however, examined a number of witnesses; Bhim Singh, Ganga Sahai, Gur Sahai, Moti Lal, Bhagwati Sahai, Jagmohan Singh, Bisheshwar Bux and Mst. “Ladli.” who all depose that she used to visit Katiari where she gave dances and received her remuneration. As against this oral evidence she examined her brother Kishen Lal, Mrs. Stone the vendor of the house ‘Dan Villa; Bhim Singh, Ganga Prasad Pande, Bir Bai Singh, Ganga Narain and Phul Chand.
Kishen Lal is her own brother and he is a highly interested witness. Mrs. Stone's evidence goes only so far that the appellant was introduced to her by the late Raja Bahadur as his Rani Sahiba. We have already held that the Raja was very found of her. Indeed his fondness bordered on madness and it is not surprising if she was introduced in such terms to Mrs. Stone. Besides the evidence already noticed on this question, the letter at page 220 addressed by the Raja to her furnishes conclusive evidence of his infatuation. He subscribes himself as Murakh (illiterate or an ignoramus). This subscription is possible only by one who has, at least for the time being, parted with his senses.
Bhim Singh is a Panda of Jagannath Puri, who speaks of her visit to that place. He says that the Rajmata and the appellant had both stayed in Puri for two days and he used to go to them to give them ‘Prasad’ (offerings to the deity) and yet he could not recognise her. He also said that he took ‘Sanads’ from the late Raja Bahadur, Rajmata, and the appellant and each of them wrote something on those ‘Sanads’ in his presence and yet he could not identify her signature. The evidence of this witness on the whole, does not inspire confidence.
Ganga Prasad is a Gangaputr. He only speaks of the bath taken by her in the Ganges along, with the Rajmata. This evidence means nothing.
Bir Bai Singh is a dismissed servant of the Katiari estate. His evidence should, in the very nature of things, be received with considerable caution. The whole of his evidence shows that he was determined to go to any length to advance the cause of the appellant and damage that of his old master.
Phul Chand is a Brahman who has a shop of gold and silver in Cawnpore. He says that the Raja Bahadur introduced her to him as his kept mistress. He speaks of the appellant's fidelity to the Raja both when he was alive and also after his death. His evidence goes no further. Indeed it is difficult to believe him when he says that the late Raja Bahadur asked him to treat the appellant as his ‘bhawaj brother's wife. There was no occasion for it and the evidence seems to be a concoction.
We do not know what Ganga Narain said, because that evidence has not been placed before us.
This is practically the whole of the evidence on which the learned Civil Judge has based his finding in favour of the appellant on this question. The oral evidence produced by the Raja is definitely superior to that led by the appellant, but it is not necessary to rest our finding on a comparative estimate of the oral evidence. The documentary evidence on which the learned Civil Judge has relied for his finding, is itself destructive of that finding.
At page 246 begins the extracts from the account books. Her case was that she went in the permanent keeping of the Raja in the beginning of 1932. At page 260 of the paper-book is the extract from the account book for the year 1934-1935. One of the items is a sum of Rs. 752 paid as ‘Bidai’ gift or remuneration at the time of departure, to Munna Bai of Cawnpore through Hori Lal. There is another entry of Rs. 500 paid to her. At page 263 there is in entry in these terms:
“Bidai and fee paid to the Bai of Cawnpore through Hori Lal.”
It is not suggested that there was any other woman who used to visit Katiari.
A similar entry is found at page 265 of Rs. 963 and Rs. 500 each paid to her.
It might also be noticed that she is at the top of the list of the prostitutes to whom payments were made on the occasion of ‘Holi’, a great festive occasion among the Hindus. There is a similar entry at page 268. These entries entirely cut across the appellant's case that she was in the permanent keeping of the Raja and had attained the status of an ‘Avarudh Stree’.
Indeed, there are one or two letters filed by her, which militate against the theory. The letter alleged to have been sent by the Raja Bahadur and which is printed at page 230, gives various explanations for the delay in sending her remittance. The language is not the language of a husband while writing to his wife; the explanation offered hardly fits in even with the relations of a paramour and a permanent concubine, who had attained the status of an ‘Avarudh Stree’.
There is yet another aspect revealed by these letters. They show that almost all the time she was living in Cawnpore. Residence at Katiari was not necessary as a matter of law, but the fact remains that she is claiming a recognised status, practically that of a member of the family. One would have expected her to live mostly at Katiari if she were, an ‘Avarudh Stree’. The relationship between a husband and a wife means that one is the life-partner of the other and both share each other's joy and sorrow; unless insuperable barriers come in the way, they live together. It was a strange partnership that, for almost the whole of the period in dispute, they were widely separated—one living in Katiari and the other in Cawnpore.
Taking into consideration all the circumstances, it is impossible to say that she was a woman permanently in the keeping of the late Raja Bahadur, practically a member of the family who had attained the status of an ‘Avarudh Stree’.
The next question is whether the appellant has succeeded in establishing that the ‘Dan Villa’ purchased from Mrs. Stone was really purchased for her. The law is well settled that even if the purchase had been made in her name but with the funds of the Raja, it would have been for her to establish that it was made for her; because the doctrine of advancement does not apply to this country. Sura Lakshmiah Chetty v. Kothandarama Pillai.
“A purchase in India by a native of India of a property in India in the name of his wife unexplained by either proved of admitted facts is to be regarded as abenami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife.”
Here the purchase stands in the name of the Raja himself.
It lies, therefore, on the appellant to satisfy the court, by cogent evidence, that the Raja was only an ostensible and not the real purchaser or that he made in her favour a gift of the money with which the purchase was made.
There is hardly any satisfactory evidence in support of the theory of gift. There are only oral statements of her brother and her own. The purchase according to her was made in his name out of deference to the Raja and in order to associate the house with his name and memory. The Raja was not dead and no occasion had arisen for the perpetuation of his memory. The documentary evidence—and the only one of its kind—which exists, demolishes her case. It is Exhibit 4, a letter which is alleged to have been addressed to her by the Raja on the 28th of September 1934 and is printed at page 220. It was produced by her. We have referred to it while dealing with the question of her status of an ‘Avarudh Stree’. It speaks of the purchase of the house in dispute and another house from a Mohammadan. The language makes it clear that the house of the Mohammadan in the city was to be purchased for her and the ‘Dan Villa’ for the Raja himself; at any rate, not for her. The account books also bear out this theory. Exhibit 98 is the counterfoil of a cheque in favour of Moti Lal the cashier of the estate. It shows that the entire sum of Rs. 24,500 was withdrawn by the Raja out of the estate funds. The entry with regard to Rs. 18,500 is as below:
‘Accounts to be rendered.”
The entry with regard to the item of Rs. 6,000 is—
“Pocket money”.
The sum of Rs. 6,000 represents the sum which was given to the appellant for the purchase of the house from the Mohammadan, and there are no details about it. From exhibit 84, which is an extract from the account book for the 30th of September, 1934 and which is printed at page 259, the details appear to be these:
“Amount with Moti Lal cashier for purchasing the bungalow at Cawnpore, the account in respect of which is to be rendered.”
It is manifest that the two items have been differently treated. The item of Rs. 6,000 which was given to the appellant, was treated as a gift. The item of Rs. 18,000 which represented the purchase money of the house in dispute, is treated differently. There is nothing in this to suggest that a gift of this amount was made to any one or that she was treated as the purchaser of the house.
In order to make out a case of gift to her of the money by the Raja, it was sought to be proved that Kishen Lal had paid the money to Mrs. Stone. This is not borne out by the evidence. The sale deed is in the form of an indenture: Gapga Sahai, the agent of the Raja, signed on behalf of the Raja and was identified by Moti. Lal the cashier. Mrs. Stone is the vendor and was identified by one Mohammad Hamid. The entire sale consideration was paid at the time of registration. Mohammad Hamid stated that Moti Lal paid the sale consideration to Mrs. Stone through him i.e Mohammad Hamid. The registration receipt of the sale-deed was handed over by Ganga Sahai, the agent of the Raja, to Ganga Narain with instruction to take the sale-deed from the Registration office and send it to Katiari. Mutation was effected in the name of the Raja.
The most important evidence destructive of her theory of gift and of the purchase by her, is that the sale-deed has come from the custody of the Katiari estate and that it was the Raja who carried out the repairs to the bungalow and paid all the municipal taxes.
Source of purchase money and possession are, in benami cases, two of the most important indicia; both of them negative the appellant's theory.
We are, therefore, of opinion that the learned Civil Judge was right in his finding that the house belonged to the Raja who purchased it with his own money and for, himself; the appellant was not its owner or beneficiary.
On the finding that the appellant was not an ‘Avarudh Stree’ of the Raja and that she was not the true owner of the house, her claim must fail and the appeal must stand dismissed, but as we have differed from the learned Civil Judge, in his finding on the status of the appellant, we propose to address ourselves to the questions of law.
The Katiari; estate consists of property of three classes—part of it is governed by the Oudh Settled Estates Act, another part by the Oudh Estates Act and a portion is non-taluqdari property. Mr. Shambhu Nath Seth, the learned counsel for the appellant, conceded that he can lay no claim to the property governed by the Oudh Settled Estates Act. It is also conceded that the five villages, mentioned in Schedule A of her plaint and over which a charge is sought for the amount due to her on account of the arrears of maintenance, are all governed by the Oudh Settled Estates Act. If it is so, her claim must fail on this ground alone. But the learned counsel contends that this does not preclude us, in case we accept her case otherwise, from declaring a charge on property other than that governed by the Oudh Settled Estates Act. We therefore, propose to consider whether she is entitled to claim a charge on other classes of property, although we should not be understood to accede to this contention.
The Oudh Estates Act deals with the proprietary rights in diverse estates in the province of Oudh conferred upon talukdars and defines the
“rights of the said taluqdars and others in such estates and as to the course of succession thereto.”
It also attempts—
to regulate such course and provide for such other matters connected therewith as are hereinafter mentioned.
The expression “such other matters connected therewith” is somewhat vague. It is clear that the matters mentioned are not exhaustive and are only illustrative. Sections 22 to 28 are the material sections.
Section 22 provides with Special rules and section 23 with General rules of succession to intestate taluqdars and grantees.
Section 24 says:
“When any taluqdar or grantee, or his heir or legatee, dies leaving him surviving such relatives as are hereinafter mentioned, the persons for the time being in possession of his estate or the rents or profits thereof shall be liable to pay to each of such relatives during his or her life provided that such relative was at the date of the death of the deceased living with him: Provided also that such relative is and continues to be without any other adequate means of maintenance.”
Section 25 speaks of grand-parents, and senior widows of the deceased and also provides for the junior widows.
Section 26 speaks of brothers, nephews and minor son's of the deceased.
Section 27 says that in the case of unmarried daughters of the deceased, widows of his sons or brothers and his widows not of his ahl-i-bradari.
We ace not concerned with section 28.
The learned counsel for the appellant founded no argument on the provision made for “widows not of his ahl-i-bmdari.”
All he contends is that the list furnished by sections 24, 25, 26, 27 and 28 does not exhaust the list of persons entitled to maintenance. If the Hindu law gives the appellant a right of maintenance as an ‘Avarudh Stree’ that right is not taken away by the Oudh Estates Act.
The learned counsel for the respondent, on the other hand, contends that no one outside the list furnished by these sections, is entitled to maintenance and this special piece of legislation must, on the well-known principle of law, generalia specialibus non derogant, override the general Hindu law.
The principle of law to which an appeal has, been made by the learned counsel for the respondent, does not, in our opinion, assist him.
It must be borne in mind that this Act is an enabling Act i.e it is—
“A statute which makes it lawful to do something which not otherwise be lawful.”
Craise on Statute Law (4th edition, p. 62).
In other words certain rights not recognized by the general law find recognition as a result of this statute, or certain persons having no right, or having restricted rights are given rights either for the first time or larger or more amplified rights. But the statute does not, curtail the existing rights. This is, the true purpose of an enabling Act.
If the appellant possesses certain rights under a different system or law or under the general law of the land, that right is not taken away by the Oudh Estates Act.
We have to construe this Act in the above light Besides, the general scheme of the Act also supports the contention of the learned counsel for the appellant.
The preamble of the Act, if reference to it is permissible, seeks to “provide for such other matters connected therewith as are hereinafter mentioned.” It is true; that the matters, are those which are to be ‘hereinafter mentioned,’ but the expression ‘such other matters’ is an elastic expression. It is, in its connotation, always illustrative and not exhaustive.
We are, therefore, of opinion that the appellant would, if her title is otherwise made out, be entitled to a charge on the property covered by the Oudh Estates Act.
What we have said about the Oudh Estates Act applies to non-taluqdari property also.
Her claim must, in view of what has been said above, fail even as regards it.
We have, therefore, come to the conclusion that the appellant has failed to establish that she is an ‘Avarudh Stree’. She has also failed to establish that the Raja was not the real purchaser of the ‘Dan Villa’ and that she was its real owner. Her claim must fail. It must also fail on the ground that the five villages mentioned in Schedule A of her plaint, in respect of which a charge was sought to be created, fell within” the ambit of the Oudh Estates Act.
We therefore, dismiss both the appeals with costs.