Moofti Mohummud Ubdoollah and another v. Baboo Mootechund (India)

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