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OUDH LAWS ACT, 1876
18 of 1876
10th October, 1876
An Act to declare and amend the laws to be administered in Oudh
2. Preamble.- Whereas it is expedient to declare and amend the laws to be administered in Oudh; It is hereby enacted as follows :-
SECTION 01: SHORT TITLE
This Act may be called The Oudh Laws Act, 1876. Local extent. - It extends only to 3[* * *] Oudh;4Commencement and it shall come into force on the passing thereof.
SECTION 02: REPEAL OF ENACTMENTS - [Repealed by the Repealing Act, 1938 (I of 1938), section 2-and Schedule.]
SECTION 03: STATUTORY LAW TO BE ADMINISTERED IN OUDH
- The law to be administered by the Courts of Oudh shall be as follows:-
(a) the laws for the time being in force regulating the assessment and collection of land revenue;
(b) in questions regarding succession, special property of females, betrothal marriage, divorce, dower, adoption, guardianship, minority, bastardies family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be-
(1) 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;
(2) the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus except insofar as such law has been, by his or any other enactment, altered or abolished, or has been modified by any such custom as is above referred to;
(c) the rules contained in this Act;
(d) the rules published in the6[Official Gazette] as provided by section 40-or made under any other Act for the time being in force in Oudh;
(e) the Regulations and Acts specified in the second schedule hereto annexed, subject to the provisions of section 4-, and to the modifications mentioned in the third column of the same schedule;
(f) subject to the modifications hereinafter mentioned, all enactments for the time being in force and expressly, or by necessary implication, applying to7[the territories which, immediately before the 1st November, 1956 were comprised in Part A States and Part C States] or Oudh, or some part of Oudh;
(g) in cases not provided for by the former part of this section, or by any other law for the time being in force, the Courts shall act according to justice, equity and good conscience.
SECTION 04: VALIDITY OF LOCAL CUSTOMS AND MERCANTILE USAGES
All local customs and mercantile usages shall be regarded as valid, unless they are contrary to justice, equity or good conscience, or have, before the passing of this Act, been declared to be void by any competent authority.
SECTION 05: MUHAMMADAN DOWER CONTRACTS HOW TO BE ENFORCED
Where the amount of dowel stipulated for in any contract of dower by a Muhammadan is excessive with reference to the means of the husband, the entire sum provided in the contract shall not be awarded in any suit by decree in favour of the plaintiff, or by allowing it by way of set-off, lien or otherwise to the defendant; but the amount of the dower to be allowed by the Court shall be reasonable with reference to the means of the husband and the status of the wife. Rule applicable after husband's death- This rule shall be applicable whether the suit to enforce the contract be brought in the husband's lifetime or after his death.
SECTION 06: RIGHT OF PRE EMPTION
The right of pre-emption is a right of the persons hereinafter mentioned or referred to, to acquire, in the cases hereinafter specified, immovable property in preference to all other persons.
SECTION 07: PRESUMPTION AS TO ITS EXISTENCE
Unless the existence of any custom or contract to the contrary is proved, such right shall, whether recorded in the settlement record or not, be presumed-
(a) to exist in all village communities, however constituted, and whether proprietary or under proprietary, and in the cases referred to in section 40-of the Oudh Land Revenue Act,8and
(b) to extend to the village site, to the houses built upon it, to all lands and shares of lands within the village boundary, and to all transferable rights affecting such lands.
SECTION 08: IT’S EXISTENCE IN TOWNS TO BE PROVED
The right of pre-emption shall not be presumed to exist in any town or city, or any sub-division thereof, but may be shown to exist therein and to be exercisable therein by such persons and under such circumstances as the local custom prescribes.
SECTION 09: DEVOLUTION OF RIGHT WHEN PROPERTY TO BE SOLD OR FORECLOSED IS A PROPRIETARY OR UNDER PROPRIETARY TENURE
If the property to be sold or foreclosed is a proprietary or under -proprietary tenure, or a share of such a tenure the right to buy or redeem such property belongs, in the absence of a custom to the contrary,- 1st, to co-sharers of the sub-division (if any) of the tenure in which the property is comprised, in order of their relationship to the vendor or mortgagor; 2ndly, to co-sharers of the whole mahal in the same order; 3rdly, to any member of the village community; and 4thly, if the property be an under-proprietary tenure, to the proprietor. Where two or more persons are equally entitled to such right, the person to exercise the same shall be determined by lot.
SECTION 09: A WHEN A SUIT FOR PRE PRE-EMPTION LIES
No suit shall lie for enforcing a right of pre- emption under this Act in respect of a portion only of the property sold or foreclosed: Provided that, where the plaintiff has a right of pre-emption in respect of only a portion of the property sold or foreclosed, then notwithstanding anything to the contrary contained in any enactment a suit for the pre-emption of that portion only shall lie and the plaintiff shall have to pay the proportionate price or the proportionate amount due in respect of such mortgage for such portion of the property, as the case may be.
SECTION 10: NOTICE TO PRE-EMPTORS
When any person proposes to sell any property, or when he forecloses a mortgage upon any property, in respect of which any person have a right of pre- emption, he shall give notice to the persons concerned of the price at which he is willing to sell such property, or of the amount .due in respect of such mortgage, as the case may be:10[Provided that, where a person has a right of pre-emption in respect of a portion only of the property proposed to be. sold or foreclosed, the notice to such person shall specify the proportionate amount of the price or the proportionate amount due in respect of such mortgage at which the person proposing to sell or foreclose is willing to sell or redeem such portion of the property, as the case may be.] Such notice shall be given through the Court within the local limits of whose jurisdiction the property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck upon the chaupal or other public .place of the village or city in which the property is situate.
SECTION 11: LOSS OF RIGHT OF PRE-EMPTION
Any person having a right of pre-emption in respect of any property proposed to be sold shall lose such right, unless within three months from the date of such notice he of his agent pays or tenders the price '[specified in the notice given under the preceding section] to the person so proposing to sell.
SECTION 12: RIGHT OF PRE PRE-EMPTOR ON FORECLOSURE
When the right of pre-emption arises in respect of the foreclosure of a mortgagor 12[or a portion of the mortgage], any person entitled to such right may, at anytime within three months after the giving of the notice required by section 10-, pay or tender to the mortgagee or his successor-in-title the amount specified in such notice, and shall thereupon acquire a right to purchase the property 12[or a portion thereof, as the case may be]. On completion of the purchase the person exercising the right of preemption shall be bound to pay to the mortgagee or his successor-in-title the amount specified in such notice, together with interest on the principal sum secured by the mortgage12[or the proportionate amount of such principal sum in respect of the portion of the property in which he possesses the right of pre-emption, as the case may be], at the rate specified by the instrument of mortgage, for any time which has elapsed since the date of the notice, and any additional costs which may have been properly incurred by the mortgagee or his successor-in-title.
SECTION 13: SUIT TO ENFORCE RIGHT OF PRE PRE-EMPTION
Any person entitled to a right of pre-emption may bring asuit to enforce such right on any of the following grounds (namely) :-
(a) that no due notice was given as required by section 10-;
(b) that tender was made under section 11-orsection 12-and refused;
(c) In the case of a sale, that the price stated in the notice was not fixed in good faith;
(d) in the case of a mortgage, that the amount claimed by the mortgagee was not really due on the footing of the mortgage and was not claimed in good faith, and that it exceeds the fair market value of the property mortgaged, 13[or the portion of the property mortgaged in respect of which he possesses the right of pre-emption, as the case may be.] If, in the case of a sale, the Court finds that the price was not fixed in good faith, the Court shall fix such price as appears to it to be the fair market value of the property sold,13[or the portion of. the property sold in respect of which he possesses the right of pre-emption, as the case may be]. If, in the case of a mortgage, the Court finds that the amount claimed by the mortgagee was not really due on the footing of the mortgage, and that it was not claimed in good faith and that it exceeds the fair market value of the property mortgaged13[or the portion of the property mortgaged in respect of which he possesses the right of pre-emption, as the case may be], the amount to be paid to the mortgagee shall not exceed what the Court finds to be such market value.
SECTION 14: DECREE TO FIX TIME FOR PAYMENT
If the Court find for the plaintiff, the decree shall specify a day on or before which the purchase money or the amount to be paid to the mortgagee shall be paid.
SECTION 15: EFFECT OF NON NON-PAYMENT OF PURCHASE MONEY
If such purchase money or amount is not paid into Court before it rises on that day, the decree shall become void, and the plaintiff shall, so far as only as relates to such sale or mortgage, lose his right of pre-emption over the property to which the decree relates.
SECTION 16: RULE OF LIMITATION
-The Judicial Commissioner's Circular No. 104 of July, 1860, shall be held to have been a notification within the meaning of section 24 of Act 14 of 1859, and such Act shall be deemed to have been in force in Oudh from the fourth day of July, 1862; and all orders and decrees passed under the rules contained in the said Circular, or under the said Act, shall be deemed to have been passed under a law in force for the time being. Nothing in this section affects the provisions of sections 102,104,105,106,107and108of the Oudh Rent Act (19 of 1868)14with regard to the limitation of suits under that Act.
SECTION 17: Act 32 of 1871, section 28, to cease in any district from date of notification that it is no longer under settlement - [Repealed by the Repealing and Amending Act, 1891 (12 of 1891).]
SECTION 18: RECOGNISED AGENTS
- [Repealed by the Amending Act, 1891 (12 of 1891).]
SECTION 19: RULES FOR TAKING EVIDENCE
Section 172 of Act No. 8 of 1859is hereby repealed, so far as the Province of Oudh is concerned, and the following section is substituted therefore: "on the day appointed for the hearing of the suit, or on some other day to which the hearing may be adjourned, the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and hearing and under the personal direction and superintendence of the Judge." "A note of the essential points of the evidence of each witness is to be taken at the time, and in the course of oral examinations, by the officer who tries the case in his own language, or in English if he is .sufficiently acquainted with that language and such note shall be filed, and shall form part of the record of the case." If the evidence be taken down in a different language from that in which it has been given, and the witness does not understand the language in which it is taken down, the witness may require his deposition as taken down to be interpreted to him in the language in which it was given. It shall be in the discretion of the Court to take down, or cause to be taken down, any particular question and answer, if there appears any special reason for so doing, or any party or his pleader requires it. If any question put to a witness be objected to by either of the parties or their pleaders, and the Court allow the same to be put, the question and the answer shall be taken down, and the objection and the name of the party making it shall be noticed in taking down the depositions, together with the decision of the Court upon the objection. The Court shall record such remarks as it may think material respecting the demeanor of the witness while under examination.15SECTION 20: EXECUTION SALE OF ANCESTRAL AND ACQUIRED PROPERTY IN LAND
So much of section 60 of the Code of Civil Procedure, 1908-, as renters land liable to sale in execution of a decree shall be subject to the following restrictions :- No ancestral land shall be sold in satisfaction of a decree without the permission of the17[State Government].
SECTION 21: APPOINTMENT OF MANAGER OF LAND ATTACHED
[Repealed by the Oudh Civil Courts Act, 1879 (13 of 1879).]
SECTION 22: SERVICE OF PROCESS WITHIN JURISDICTION OF LUCKNOW CIVIL COURT
Notwithstanding anything contained in the said Code, any Civil Court sitting within the local limits of the jurisdiction of the Lucknow Civil Court but exercising jurisdiction beyond such limits, may cause summonses, warrants, notices and other processes to be served within the local limits of the jurisdiction of the Lucknow Civil Court without causing the same processes to be served through such Court.
SECTION 23: SECTION SUBSTITUTED FOR ACT 19 OF 1868, SECTION 109
[Repealed by the Oudh Rent Act, 1886 (22 of 1886). ]
SECTION 24: SECTION SUBSTITUTED FOR ACT 19 OF 1868, SECTION 118
- [Repealed by the Oudh Rent Act, 1886 (22 of 1886).]
SECTION 25: RIGHT OF OCCUPANCY IN JUDGMENT JUDGMENT--DEBTOR'S SIR LAND
- [Repealed by the Ouch Rent Act, 1886Amendment Act, 1901 (U.P. 4 of 1901).]
SECTION 26: REVENUE AGENTS AUTHORIZED TO APPEAR, ETC., IN RENT SUITS
- Notwithstanding anything contained in Act No. 20 of 1865, all persons duly admitted and enrolled as Revenue agents under that Act in18[* * *] Oudh may appear, plead and act in suits under the Oudh Rent Act19in the Courts of officers exercising the powers of Assistant Collectors, Deputy Collectors, Collectors and Commissioners under the same Act.
SECTION 27: POWER TO MAKE RULES FOR CUSTODY AND SALE OF ATTACHED PROPERTY
With the sanction of the 20[State Government], the21[High Court] may from time to time make rules consistent with this Act and with the Code of Civil Procedure-
(a) for the custody and sale of movable property attached in execution of decrees;
(b) for the levy of a fee or commission on the sale of attached property and the disposal of the funds accruing from such fees;
(c) as to the appointment and remuneration of persons22[(not being persons in the service of the Government)] by whom property is to be attached, kept in custody and sold;
(d) as to the appointment and remuneration of persons22[(not being persons in the service of the Government)] by whom local investigations under section 180, and investigations and adjustments of accounts under section 181, of the Code of Civil Procedure are to be made.
SECTION 28: POWER TO REVISE DECREES AND ORDERS OF SUBORDINATE COURTS
[Repealed by the Oudh Civil Courts Act, 1879 (13 of 1879).]
SECTION 29: RIGHT TO NOMINATE VILLAGE POLICEMEN
The nomination to the post of village policeman shall be made by the zamindar of the village or, where there are more zamindars than one, by the lambardar as their representative; and, where there are more lambardars than one, the opinion of the majority (unless there is some special provision to the contrary in the village administration-paper) shall prevail.
SECTION 30: OBLIGATION TO NOMINATE
Every person authorized to nominate to the office of village policeman shall, within fifteen days after the occurrence of a vacancy in such office, nominate a proper person to the vacant post, and communicate the nomination to the Magistrate of the district.
SECTION 31: DIRECTION TO APPOINT OR REJECT NOMINEE.
The person so nominated shall, after due enquiry into his age, character and ability, be appointed or rejected by the 23[State Government].
SECTION 32: POWER TO GOVERNMENT TO APPOINT
In default of such nomination within the said fifteen days, the24[State Government] shall appoint such persons b[it] thinks fit to the vacancy. Procedure in case of rejection of nominee.- If, the nomination has been made within the said fifteen days, but the nominee is rejected, the person authorized to nominate shall, within fifteen days from the date of such rejection, nominate another person to the vacant post; and in default of such nomination, or if such nomination has been made but the nominee is again rejected, the24[State Government] shall appoint such person as it thinks fit to the vacancy.
SECTION 33: APPOINTMENT OF ROAD POLICE
- Subject to the rules to be framed under section 39-and, for the time being in force, the 26[State Government] may from time to time appoint persons to be27[road police].
SECTION 34: DUTIES OF VILLAGE AND ROAD POLICEMEN
- Every village policeman and every road policemen shall perform the following duties : -
(a) he shall give immediate information to the officer in charge of the police station appointed for his village or beat-
(1) of every unnatural, suspicious or sudden death occurring in the village of which he is chaukidar, or within his beat;
(2) of each of the following offences occurring in such village or on such beat (that is to say), murder, culpable homicide, rape, dacoity, theft, robbery, mischief by fire, house- breaking, counter-feiting coin, causing grievous hurt, riot, harbouring a proclaimed offender, exposure of a child, concealment of birth, administering stupefying drugs kidnapping, lurking house-trespass; and
(3) of all attempts and preparations to commit, and abetments of, any of the said offences
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