I MOORE IND. ARP., 363 MOOFTI M. UBDOOLLAH 0. BABOO ~ ~ ~ ~ E ~ ~ U N ~ Cl8371
E3633 MOOFTI ~~~~M~~~~ ~ ~ ~ ~ ~ ~ ~ ~ A H and a n o t h e r , - ~ ~ e ~ l u ~ t s ; If A B 0 0
~~OOTECHT!NX),-~es~luZent [February 10, 1837 1.
0% ~~~e~ from the Sdder ~~~~~~~~ ~~~€~~ of’ ~ e ~ ~ ~ a ~ .
Two suits having been brought for sunis due on the same account, each of which
was under 50,000 rupees, or ~ 5 0 0 0 ~ held that such suits could riot be cottsoli-
dated for tlie purpose of appeal, though the original severance of them was
contrary to the Plaintiff’s instructions, and the aggregate amount of both
exceeded that amount.
This was a motion for the consol~dation of two appeals, under the following cir-
cunista~ices. On the 24th ~ o ~ ~ e ~ b e r , ltll8, the ~ e s ~ o n d e n t , Baboo Mootec~~und, filed
two separate plaints in the I’rovinclal Court of the Province of Bareilly, against
the Appellants. The first suit, ~vliieh was n u i ~ b ~ r e d 152 in the list, was instit~ited
to recover the sum of rupees 19,046. 3. 3. from the Appellant, Moofti Mohunimud
~ b d o o ~ ~ a ~ i , and one ~ o l i u ~ m u d Hu~eb-ood-deen, the amount of an alleged balance of
account for the year 1214 Fusly (AD. 1806-7). The second, which was numbered 153,
was instituted against the Appellant ~ b d o o ~ ~ a h alone, to recover the further sum of
rupees 15,430, all ed to be due on a similar amount, but exclusive of the sum
claimed in the first suit.
The Appellan~, ~ b d o o l ~ a h , alone appeared to both these actions, and haying put in
his answers, and evidence produced, both suits were heard on the 2nd October, 1820,
and two several decrees made, dismissing the claim of the Respondent in cither suit
with costs.
The Respondent appealed in both suits to the Sudder Dewanny Adawlut of Bengal,
and additional evidence having been produced, the appeals, which were
numbered Nos. 2106 and 2107, were heard separatel? on the 23rd A u g ~ t , 1823, when
that Court reversed the j u d g ~ e n t s of tlie P r o v ~ ~ ~ c i a ~ Court, and decreed the p a y ~ ~ e n ~
by the ~ p p e l l a n t of the sunis respectively claimed by him.
The ag~regate amount of the sums, with interest, as decreed from the date of the
~ n s t ~ t u t i ( ~ ~ ~ of the suits, to the period of their decision, amounted to the sum of rupees
54,126 and upwards.
On the 22nd ~ove~riber , 1823, the ~ p p e ~ ~ a n t s presented a pet~tion to the Srtdder
Court, praying that the two causes might ?x re-heard, or that an appeal might be
a d m ~ t ~ e d to the King in Council, on the ground that they constituted one and the
same cause of action, though split into separate demands, and coniprised a sum in
the aggregate exceeding rupees 50,000 (or &5000), the amount required by the Act
of Parliaxy~ent and the existing ~ e ~ u l a t i o ~ ~ s (tz), to ent5tle them to appeal to England.
On the 27th November, 1823, the petition came on before the second judge (Mr,
CourtKiey), when lie observed, that it appearing from Mootec~~und, the original
PIainciff’s own statement, that the demand in either suit arose out of the same trans-
action, and that his Vakeel had, contrary to h i s i n ~ r u c t ~ o n s , converted what was
intended for one suit into two, vhicii, though severed, were heard and decrees made
in both Courts at the same time; and that as the aggregate amount of the two
exceeded the sum required by the ~ e ~ u l a t i o n s for allowing an appeal ; he was of
opinion that [365] the suits were ap~ea~able , and that such appeai should be per-
mitted by the Court. This opinion having been subsequ~nt~y con~rined by the third
Judge (Mr. Shakespeare), the securities were perfected, and the appeal t r a n s ~ i i ~ t e d to
England.
The Appellants now presented their petition to His Majesty, praying that the
above two causes might be consolidated arld for permission to prosecute the same,
Bfr. Miller, K.C., Mr. R’igram, K.C., and Mr. Jatkxon, for the Appellants. Mr.
Serjeant Spankie, and Mr. E. S. Lloyd, for the Respondent.
Mr. Baron Parke.-In this case there are two distinct eausm, and two separate
j u d g ~ e i ~ t s i n both the Courts below ; during the proceedings either in the Provincial
Court of Bareilly or the Sudder Court of Bengal, these suits were never consolidated,
Reg. 16, A.D. 179’1, see. 2 and 3, since repealed by 3rd
aad 4th Will. fV. 0.41, and the Order in Council of 10th April 1838. Appendix p. ix.
___I -
(a) 2 1 Geo. 111. c. 70, S. 21.
148
DOMUN SING ‘U. KASEE RAM AND TOOLSEE RAM [I8371 I %WILE IND. APP., 386
but were all along treated as separate and dis~inct causes:--How, then, can the
Court below say that they shaIl be consolidated for the purpose of the appeal? The
Act, 21 Gen. III. e. 70, is conclusive. If the Court could consolidate these suits for
the purpose of the appeal, by the same rule any nuniber of suits might be consolidated
if they r ~ ~ r e s ~ n t e d the same matter. That is contrary to the words as well as the
intention o f the Act of Parliament. All their Lordships are of opinion, that the
application cannot be entertained, and the petition must, therefore, be dismissed
with costs.
[See ljtrrboo Go;pctl Lal! ~~~~0~~ v. Teld C ~ ~ t ~ ~ ~ e ~ . aai, 1860, 5‘ Moo Ind. App. 548 ;
tio KliLiae v. ~ n ~ ~ d ~ n , 1868, 5 Moo. P.C. (W.S.) 72 ; ~~~~~g~ v. Beizyssen, 1886,
12 A.C. 109.1
13663 DOAilUN SIKG, JOOBBA LAL, BAICEOO LAL, and DURP NARAIN,--Appel-
7ants; KASEE RAM and TOOLSEE ~ ~ M , - ~ e ~ ~ o ~ ~ e ~ t s [February 10, 18311.
0% appeal from the Sudder DeiunnrLy Adawfut of Bengal.
.Disputes having arisen among the brothers of an undivided Bindoo family, and
owners of land, certain agreements were entered into between them by which
their mutual interests and liabilities were declared, and the matters in dispute
referred to arbitration. A decree having been obtained by a creditor named
in the agreements, against one niember only of the family, and the debt
recovered from him alone, it was decided by the Courts in India, and aErmed
on appeal, that the other parties were liable to be called upon to coiltribute in
respect of their several shares.
This was a suit commenced by the Respondents, to compel contribution towards
the payment of certain debts which had been discharged by Madho Ram, their father,
The claim was founded upon the obligation of the different parties, as members of
an undivided Windoo family, and the owners of property belonging to it ; and upon
certain agreements entered into by the partios f hemselves.
Dherun Sing, the ancestor of all the parties in the suit, was the father of five sons :
Dundial Sing, Madho Ram, Domun Sing, Kurta Ram, and Durriow Sing. Iie had,
in conjunction with his two brothers, Munsha Ram and Shewun Sing, acquired
Zeniindary property in several villages in the ZilXah of Sarun, which mere registered
at the Colloctor’s office in the names of Shewun Sing and ~ u n d i a ~ Sing.
In the Fusly year 1196 (AD. 1788-9) Dundial Sing died, and the villages were then
registered in the name of his 80x1, Dulsingar Sisig ; but Madho Ram, the next eldest
brother, took upon himself the n i a ~ ~ a ~ e i ~ i e n t of [367] the revenue arran~ements with
~ o v e r i ~ n i e n ~ , in the character of ~ o k ~ ~ t o r , or Agent, for the registrees.
In the Fusly year 1206 (A.D. 1798-9), Dulsingar Sing died, Ieaving two widows,
but no children.
About this time (1799) serious differences arose between the brothers, from the
revenue of the villages having fallen much in arrear, and large loans having been
raised from different Bankers, in order to make up the deficiency to Government.
Madho Ram was accused by his brothers of having misappropriated their contri-
butions.
These disputes were, by the agreement o f all the surviving brothers, and of Gouree
Dutt, the Mokhtar or manager of the affairs of Dulsingar Sing’s widows, referred to
the a r b i t r a t ~ ~ n of three persons, named Lala Sheo Persad Sing, Bhya Assa Ram, and
Bhya-Subboor Doss, who, accordingly, proceeded to investigate the accounts of the
parties. Soon after, however, and before they had made any definitive award,
Jubboo Lal was, at the request of the parties, added as a co-arbitrator with them, and
Lala Sheo Persad Sing withdrew from the reference. During the time the arbitra-
tion lasted, the arbitrators examined the several parties to it, and. also drew up
various papers, in the form of Ikrarnamahs, or agreements between the parties, 8s
tha grounds upon which t.lieir arbitration was to be founded.
149