I1 MOORE IND. APP,, 441 RAJAH REEDAR MOSSEIN

Madras referred to in the case wiIl be found ad toe. e&. pp. 550, 588. For

the present powers of the Indian High Courts in regard to the admission

of Attorneys, see as to (i.) Bovnbay, Letters Patent, Dec. 28, 1865, Arts. 9 and

10 (Stat. R. and 0. Rev. iv. p. 112); (ii.) Calczttta, Letters Patent of Dec. 28,

18G5, Arts. 9 and 10 (Stat. R. and 0. Rev. iv., p. 87); (iii.) Madras, Letters

Patent of Dec. 28, 1865, Arts. 9 and 10 (Stat. It. and 0. Rev. iv. p. 100); (iv.)

NortJL-Westerrz Provinces, Letters Patent of March 17, 1866, Arts. 7 and 8

(Stat. R. and 0. Rev. iv. p. 124).]

On appeaf from tJie S ' d d e r de^^^^^ Court of BmgaE (reported 3 Ben. Sud.

Dew. Ad. Rep. 46 and 164).

The family usage that a ~ e ~ ~ ~ n d a r y has never been separated, but devolved en-

tire on every succession, though proved to have existed as the custom for

many generations, will not esenipt the zcmindary from the operation of

Reg. XI. of 1793, which provides in case of intestacy, for the division of

landed estate among the heirs of the deceased, acording to the Mahomedan

or I h d o o law [2 Moo. Ind. App. 4151.

Beg. X. of 1800 does not apply to undivided zemindaries, in which a custom

prevails, that the inheritance should be indivisible, but only to Jungle Mahals,

and other entire Districts where local cu&ms prevail ; and, therefore, only

partially, and to that extent, repeals Reg. XI. of 1793 [2 Moo. Ind. App. 4763.

By Reg. EV. of 1793, it is provided, that in suits regarding succession, inheriti-

ances, marriage, and caste, and all religious usages and institutions, Maho-

xziedan laws with respect to Mahomedans, and Ifindoo laws with respect to

Hindoos, are to be considered as the general rules by which Judges are to

forrn their decision ; according to the true construction of which the Maho-

medan law of each sect ought to prevail as to the litigants of that sect, and

not the general or. Soonee Mahoniedan law [ 2 Moo. Ind. App. 4771.

In a suit, therefore, by a party in possession of one moiety of a zenrindary, for

recovery of the other, on the ground that the estate was, according to the

family rule, indivisible, it was held by the Judicial Committee, that the

property not being a Jungle Mahal, within the provisions of Reg. X. of 1800,

the fainily rule, if proved, was abrogated by Reg. XI. of 1793, and the title-

deeds set up in the pleadings not being satisfactorily proved; that the de-

scent must be governed according to Reg. IV. of 1793, by the laws of the

religious sect to which the litigant parties belonged. The Judicial Commit-

tee, in affirming the judgment of the Court below, held the zemindary

divisible among the co-heirs of the deceased Zenzindar, according to the

laws of the Sheeah or Imameean sect of Mahomedans to which they belonged,

a c c o r ~ ~ ~ g to which law, property descends to the Daughters of a deceased

Brother, in preference to the surviving Brother.

Where an appeal had been dismissed for want of prosecution, no step having

been taken ill it for ten years, the appeal was, upon petition to the King in

Council, restored, the Appellant paying the costs of dismissal and restora-

t ion; it appearing that the Appellant, was ignorant of the proceedings

+ necessary to be taken in this Country, and had, though after the lapse of

some years, instructed a Commercial house in Calcutta to prosecute the

* Present :-Members of the Judicial Committee,--Lord Brougharn, Mr. Baron

Parke, Mr. Justice Bosanquet, Mr. Justice Erskine, and the Right Hon. Dr.

L u s h i n ~ o n .

-

Privy Councillor,-Assessor, Sir Edward ?$de East, Bart.

368

‘U. RANEE ~ ~ ~ O O R - O O N NISSA [ 184 11 I1 RE IND. APR., 442

appeal, but whose Agent in E n ~ ~ a n d becoming insolvent, no proceediii~s

were taken to bring the case to a hearing [2 Moo. Ind. hpp. 4681.

The question at issue in this appeal was the right to a moiety of the zemindar~

of P e r ~ u n n a h Soorjapore, in ~ i ~ ~ a ~ ~ Purxieah, in the Province of Bengal. &jab

~ookur-ood-deen Eossein, f o r m e r l ~ ~ e m i n d a r of ~ e r ~ u n n a ~ ~ Soorja~ore, died

on the first of the nzonth of Poos 1200 Noolky ( X S t h December, ‘1793), leaving two

Sons, Rajah Akbar Bossein, who was his eldest Son, and Rajah Deedar Hossein, the

Appellant. He left also a Daughter, and the Mothers of his two Sons, and his own

Mother, surviving him.

Alrbar Kossein nlarried the ~espondent, Zu~ioor-oon Nissa, and died on the 13th

of Assin 1221 ~ 0 0 1 ~ ~ (28th e ~ t e m b e r , 1813), Ieaaving his Widow and three

Daughters surviving him.

On the 1st of ~ a n u a r y , 1515, the Appe~lant commenced an action in the &$oor-

~ h e d a ~ ? a d Provincial Court against the ~espondent, for the purpose of being put

into possession of one moiety of the aforesaid zemindar~, which was in the posses-

sion of the ~espondent, and had been transferred illto her name in the lifetin~e of

Akbar Rossein, usider an allegvd Bill of sale, bearing date the 17th of the month

[44!3] ~ e ~ z d o o n 1221 ~ o o l k y (28th ~ u g u s t , 181S), executed by Akbar Hossein, and

by which he purp 11 the moiety of the ~ e ~ i n d a r y to the ~ ~ p o ~ i d e n t in con-

sideration of her settlen~eni,.

The damages ion wero laid a t Rs, ~ , 4 6 , 2 0 ~ , ~ a . ? being the threefo~d of

Rs. 115,400, 8a., the annual jumnia (public assessment) of the estate.

The grounds o f tfie action, as stated in the plaint, were, that the Iate Rajah

Foo~nr-ood-deen EXossein did, agr~eably to the ~ u ~ ~ e e ~ u t (de~lared wish) of h i s

Father and ancestors, make a Will to the f o I ~ o w i ~ 3 ~ purport, “of both my Sons,

whichever shall be the survi~,or, shall become the Malek and ~ o k ~ t ~ r (the proprie~oi,

and co~ptrol ler) of the whole of the zein~~idary, and shall main ta~n the r e ~ n a ~ I ~ i s ~ ~

persons who may have claims,” and that he legalized the Will by procuring to i t the

evidence of ~ i t ~ ~ e s s e ~ and the seal of the Kazi (the ~ ~ a h o I n e d a ~ ~ Judge). That after

his death a Sarbarakar atlag lager^ was appointed by the ruling powers for the

purpose of taking care of Akbar Bossein’s and the Appellant’s property, and to

~ a ~ a ~ e the affairs of the z e m ~ n d a ~ by reason of Akbar Hossein and the A ~ ~ ~ ~ l a ~ t

being of tender years; and that for their sub e, and that of their paternal

ther, and their two ~ o ~ ~ h e r s , and their a ~ ~ o s h a ~ r a ( ~ o ~ ~ t ~ ~ y s t ip#~d)

by Xr. ~o~ebrooke , the Judge of the Z urneah, in which the property

te. That when Akbar Hossein and the Appellant arrived at years of dis-

cretion, a requisition was made by tlie Board of Revenue, through tho Collector of

ZiIlah ~ u r n e a ~ ~ , of what their respective ages were, and of the genea lo~ica~ table

of their ancestors, aad that when their ages were ascertained, and the genea-

logical table gone into, a 3undobust ( a r r a ~ ~ ~ e r i l e n t ~ was made with Akbar Iilosseirt

and the Appel~ant, by the orders of the ruling I’owers, from the Bengal year 1207

t l 8 ~ 0 - ~ ) , by virtue of the grant to them of a single Sunnud (deed of grant), and the

aceeptance from them of one ~ a b o o l i a t (eng~gement~, and without separatit~g either

the jumma (public agsessment) or the lands of the zemindary, which were continued

whole and entire; and that upon c o ~ s ~ d e r a t i o n f the Will, the Xate paternal Grand-

mother and Sister 09 Akbar Bossein and the A p p e ~ ~ a n ~ used during their lifetime

to receive their ~ o s h a i r a , and both their Mothers to that day received their Noshaira

to ma~nta in t~emselves with. That this had beer1 a practice of old, and had always

been observed in the ~ p p e ~ l a n t ’ s f a ~ i ~ y . That there was not b e t ~ e e n Akbar Bossein

and the Appellant, disagreement or ~ n ~ s u ~ ~ d e r s ~ a n d i n g in a y shape whatever, or

any proposition as to a division of the zemindary, That the Bill of sale above

referred to, and a Deed of gift of Akbar Eo~sein’s personal pro pert^ in favour of

his ~ a u g h t e r s , which had been e ~ e e u ~ e d a t the same time with the Bill of sale, had

been procured by f ra~auIent means, and when Akbar Wossein was in a state of

bodily and mental incapacity. That the z e n ~ i n d a r ~ had, for fourteen generations

~ o ~ e t ~ ~ e r , devolved to tfie maIe o ~ s p r i n g , and that no Bill of sale or Deed of gift had

ever taken place among them. That the Bill of sale and Deed of gift had been

framed by artifice and fraud, and were c o n s ~ d e r e ~ illegal according to law, and that

by virtue of the Will and the ~ a b o o ~ ~ a t , and the practice observed in the family,

369

11 MOOBE IND. APP., 445 RAJAH DEEDAR HOSSEIN

and the genea~o~ica l table. the x+,I.lrole of the xeiriindary was the right and title of the

Appellant.

[&5] On the 25th of July, 1815, the Hespondent put in lrer anmer to the id;tint,

to the effect, that she denied the Appellant’s allegations as to the rule of the family,

and the Wusseej-ut (declared wish) of his ancestors, and the Will of the late Rajah

~ook~r-ood-deen I-Iossein ; and ag to the zeniindary not having bee11 divided, and

never having devolved to the female branch ; and stated that the Appellant, i i i the

lifetime and since the death of Alrbar Wossein, had preferred divers petitions, mliose

purport was different from each other, to the Register, the Judge of the Xillah Court,

the Collector of that place,the Board of Revenue,the Moorshedabad Provincial Coiirt,

and the Sudder Dewanny Adawlu t, and that his representations had been clashing

and ~ n c o x ~ s i ~ e n t . That the noIi-~)ortioiiu~e~~t of the zemindary was in violatioii of

the Makiomedan law, and nullified the provisions of Regulation XI. of 1793.” That

the non-division of the zemin-[446]-dary between the Brothers of her Husband’s

Father and their ancentors, was owing to nothing, but that there had existed un-

bounded frieI~dship and understanding. That as to the z e i ~ i n d a r ~ being writ ten

in the names of the elder Brothers during the minority of the younger Brothers,

and that the younger Brothers when they came of age made no dispute, this had

happened because the n7hole of tlie younger Brothers died without issue ; but that

had any of their imue existed, it ~ o u l d have become necessary to make an ajqmr-

t i o n i ~ ~ e ~ ~ t of the estate ; and that for these reasons the E4471 C i r c u ~ s ~ a I ~ c e could be

no ground of proof a3 to a rule in the farnily. That in fact the zeniiiidarr in que&-

tion used to be written only in ?he names of the elder Sons of her IIusbarid’s

ancestors; and that if the Appellant adduced this instance as making out his case.

* Regulation XI. of 1793, after reciting that ‘‘ a custoni, originating in <*on-

s iderat io~~s of financial convenience, was establislied in these Provinces under the

native administrations, according to which some of the most extensive zeiuindaries

are not liable to division. Upon the death of. the proprietor of one of these estates,

it devolves entire to tile eldest Son or nest heir of the deceased, to the euclusioib of

all other Sons or relations,” enacted by sect. 2, that after the 1st of July, 1 7 9 i , if

any Zeniindar sliould die n.itliout a Will, or without haring declared, by a vi rit ing

or verbally, to whoui and in what manner his or lier landed property was to der<)lre

after his or her demise, and sliould leave two or more heirs, who, by the ~ a ~ ~ o i i i ~ ~ ~ l a i ~

01% Hind00 Law might be respect idy entitled to succeed to a portion of the landed

property of the deceased, such pcwons should succeed to the sliares to which i hey

might be so entitled; and bp sect. 3 it was further enacted, and if otic or rnore, or

all of the sliarera of such Zemindar, should be desirous of having separate possesi.1011

of their respective shares, a diviiqion of the estate should be made in the manner

directed in Regultttion XXV. of 1793, and such sharer or sharers should ltave the

separate possession of such share or shares accordingly; but if there should be three

o r more sharers, and any two or more of them should be desirous of holcling tlrcir

shares as a joint undivided estate, they should be permitted to keep their slixres

united accordingly. And by the same Regulation, sect. 4, it was also enacted. that

if any two or more sharers should Ireep their shares united, a m a n a ~ e r for their joint

estate was to be appointed ; and if any one or more of such sliarers should apply to

have separate possession of his o r their share or shares, the proportion of tlie public

juinrna charged upon the wliole estate which is to be assessed on such share o r shares,

was t o be adjusted, according to the rules prescribed in sect. 10, ~ e ~ u l a ~ i o r i I., 179‘3.

And it was also pmvided, by sects. 5 and 6, that nothing contained in the said Requ-

lation was to be construed to entiile any person to a share of an estate which nilght

then be held entire by any individual, or that might devolve to any individual pi ior

to 1st July, 1794, in exclusion of the other heirs of the last proprietor, under tlie

custom, nor to prohibit any actuid proprietor of land bequeathing or tranaferr riig

by Will, or by a declaration in writing or verbally, either prior or subse(~~ient to the

1st July, 1794, his or her landed estate entire to his or her eldest Son or nest Ewir,

or other Son or heir, in exclusion of all other Sons or heirs, or to airy perwi or

persons, or two or more of his or tier heirs, in exclusion of all other persons or heirs,

in the proportions, and to be held in the manner which such proprietor rriiiSlit

think proper.

370

I_ I_ I____- __-_ - __- _I -- llll-.- - - -

'U. RANEE ~ ~ ~ ~ ~ R - O O ~ NlSSA [1841] XI OR^ INI1. MP., 4.18

he was not entit~ed to the half of the estate which he had in his possession. That

the rule in former times in the families of great Rajahs of not dividing the Raj,

which used only to desolve to the eldest Son, was in opposition to the O r d ~ ~ ~ a ~ ~ c e s of

the law, and tIIe Sastra (the Dharma Sastra, the code of law, consisting of the Test-

book atid ~ o I ~ I i ~ e ~ ~ ~ a r i ~ s ) , aad p18s clearlg the cause of the spo~ia t~on of the rights

of other heirs ; and that ~ ~ e ~ u l a t i ~ ~ i i XI. of 1793 had been etiacted far the purpose of

doing away and cancelling sucli rule. 'rl-iat, in fact, when her late Husband aud

the Appe~lax~t were infants, Mr. ~o~ebrooke , the Judge of Zillak Purneah, fixed the

zerniudar in question in the joint iiaines of her Husband and the Appellant, under

the provisions of the said ~ e ~ u I a ~ ~ o ~ ? and a ~ p o i r ~ ~ e d a Manager. That after a

Husband came of age, he, upon c o i ~ s ~ d e ~ a ~ i a i i of the Ordinances and the law, and

the ~egula t ions of Government, made a l te rca t io~; but in c o i ~ j u ~ ~ c t i o ~ i with the

A ppe~lant, preferred a D ~ ~ r k ~ ~ a s t (pet 11) for a hood-bundobusr (a settler~ient

iitade by Government direct wi th the L lord), and, agreeablF to the prayer of the

p e ~ ~ t i o n ~ ) re sen t~d by both the Brot~iers, a Tahud of ( ~ ~ r e e ~ ~ e n t for} the ~ e ~ ~ ~ n d a ~ ~ ~

in questioa was given to both Brothers i n the shape of ~ ~ ~ o o d - b ~ ~ n d o b ~ ~ s t in the year

1207 B.S. (1800-1); and her late ~ u s b a ~ ~ d and the ~ p p e ~ l a n t , in order that ark

etficierit ~ ~ ~ a i ~ a ~ e i ~ e n ~ of the estate might take place, and because there was 110 iuis-

unde r s t a~~d i i~g between them, E4481 appointed Baboo Sookh La1 their ~ a r ~ a r a k a r ,

and ~ i a l ~ ~ n g the colIections t l ~ r o u ~ ~ him, used every year to take one moiety of the

profits which accrued. And that under the provisions contained in the fifth section

of the above Re~ulation, this could not be o r e r ~ ~ ~ r n e d . That the ~ ~ p e l ~ a ? ~ t ' s

assertion that tlre zemindary never devolved to the female part of the family was

erroneous ; arid that the medium through which the zemindary came i n t o the liartds

of Maho~ned Saeed, the Father of the great ~ r ~ r ~ d f a t ~ ~ e r of her late Rusband, was

t ~ ~ r o u g ~ ~ his n ~ i ~ r i t ~ n g from Beeby ~ o ~ ~ s ~ ~ e e ~ ~ ? his Wife. That the A p ~ ~ e ~ l a ~ ~ t ' s

allegation of the ~ u s s e e y u t of his ancestors and tlte Will of his Father, were fabri-

cations, mid i n discord with all the ~ u r k ~ ~ a s t s ( p e ~ ~ t i o I ~ s ) which he had presented.

That if there was in reality a Will, rhe A~)pellant could not have had the least dread

of the Bill of sale and Deed of gift; and that the existence of such an instrument

could not be reco~~ci~ed , with the opposit io~~ to the Bill of sale and Deed of gift, by

pleadings which were inconsistent nith each other. That it had been a rule of long

s ~ a i ~ ~ i n ~ , that when a Rajah o r ~ ~ ~ n ~ ~ n d a r made a Will, as to the disposal of his

effects or estates, lie immediately made a c o ~ ~ i ~ ~ ~ u n i c a t ~ o u of the circumstance to the

~ o v e r ~ ~ n ~ ~ ~ i t ; arid that had the Tpu'ili, which the A~pel lan t alleged, been a true one,

I s would hare made a report respect in^ i t to the ruling power; and when he op-

posed the Bill of sale and Deed of gift Being registered, would have produced it ;

that he neither produced nor made inention of it before the Registrar, or the

Collector, or the Judge of the Zitlah, or the Board of Revenue, or the ~ o ~ r s ~ ~ e d a b a d

cial Court,or the Sudder Dewanny ~ d a w l u t ; and that there could be no doubt,

re, of its E4491 being a forgery. That if the Wusseeyut and Will, alleged I y

pellant, were genuine, and the A ~ ~ p e ~ l a n t had conceived k ~ i ~ s e l f entitled to

le of the mnindary, under the rule observed in his family, and if it had not

been c u s t o ~ a ~ y that portions of the z e n ~ ~ t ~ d a r ~ ~ went to the female branch, the Ap-

pellant .rvould not have obtairied from his Mothers tmo Bills of sale slid Deeds of gift,

s ~ e c i f ~ i n g in tkkelrl their rights and portions, and procured to t h a n tlro seal of the

Kazi, and got them registered by the ~ e ~ i s t r a r ; and that it 'vim clear, heref fore,

that, ai~teceden~ to that affair, there wa8 no T~usseeyut or Will. The ~ e s p o n d e n ~

by her a n s ~ e r , f u ~ t h e i ~ stated, that during the 1 of her late usb band, the

,Appellant brought actions, for an acwunt of the c incurred in %lie ~~nan-bara

( ~ e l ~ g i o ~ s e s ~ a b l ~ s l ~ n ~ e n t ~ and of h i p share in the goods and jewels of h i s paternal

Cirandmother ; and that whilst his Brother was livinq, the Appellant presented a

petition to the Judge, setting forth that he had two suits p e n ~ i i ~ ~ against his

RrcJther ; and that as his Brother was selling aiid giving away by grant the whole

of the zetnindary and effects, and vas riiolring a trnnsfer of iiaines, there would be

no assets to answer the decrees in such causes, if given in hiw favour. That the

Appellant had also presented a petition to the Board of Revenue, praying that a

Sa rba raka~ should be deputed, and agree in^ to account to her for the receipts and

d i s b u r s e ~ ~ e n t ~ , and to furnish her with her necessary expenses. The ~ e s ~ ~ ~ ~ d e n t

I y tier answer, also denied the a l l e ~ a t i o ~ ~ s of the plaint, as to the Bill of sale and

311

11 MOORE IND. APP., 480

Deed of gift having been obtained by fraud, and as to the iiicorxipetency of Akbar

f-iossein, arid asserted tlie Bill of sale and Deed of gift to be good and legal instru-

ments.

[4.0] The Appellant filed a re~3lication to the answer, enlarging upon the grourlds

stated in the plaint, and alleging that t h i w had been a writing between hini and

his late Brother in support of the Mrusseegut of their ancestors.

The ~ ~ s ~ o n d e ~ t rejoined, & n ~ w e r i n ~ irr detail the &llegat~ons of the ~ e ~ l ~ c a t ~ o ~ ,

and suggesting that the alleged writing between the Appellant and his Brother

u~as fabricated. The rejoinder also alleged, that, according to the Futwao (opinions

of the Law-officers), and the texts on which the Futwas were founded, a Wusseeyut

is not legal when made in favour of an heir.

Much docuinentary evidence was adduced, and many Witnesses examined, kmth

on the part of the Appellant and of the Respondent.

An~oiigst he do~uments e ~ ~ i ~ ? j t ~ d by the Ap~)e~lant , was one, ~ u r p o r t ~ n ~ to be a

copy of the alleged \Till of Rajah Fookur-ood-deen Rossein, bearing date the 15th

of Bfagh 1199, B.S. (25th January, 1?93), recorded in the ~ollector’s office, and

an instxurnent purporting to be an Ikrarnamah ~agreenient~ under the seals of

Akbar Bossein and the Appellant, bearing date the 11th Assin 1217 Moolky (2nd

October, 1810), to the f o l l o ~ ~ ~ ~ i ~ effect: “We, Akbar Hossein and Deedar Hcm&n,

Sons of the deceased Rajah Fookur-ood-deen Homein, inhabitan6 of Kusba Iihurga,

in ~ e r g u n n a h Soorjapore, while irr sound health and in the possession of our faculties,

and while equal to all legal acts, do make t h i s good and legal declaration, that among

o u r forefathers there never has a division been made of the zemindary. 011 the

other hand a division of the zemindary h:ts been forbidden to be made, and there

E4511 are ~ ~ u ~ s e e y u t n a m a h s of our ancestors, made by the agreement of heirs to the

following effect, that is to say, the zernindary of us the contracting parties halt never

been divided among the heirs, nor will this ever be done. And upon the rule observed

in the family, and by the ~ ~ u s s e e y u t n a ~ i a ~ ~ s of our progenitors, such person fro111

among the male line, as shall be the survivor, shallbe in the occupation, and the Malik

and Moo~htar of the whole zemindary, and shall maintain the other heirs who niay

be entitled to it. In fact, our Father, going upon the rule observed in our family,

has executed a Wusseeyutnamah, and after the death of our Father, during the time

we were infants, there was a Sarbarakar appointed to the whole of our z e ~ ~ ~ i i ~ d ~ ~ . ~ ,

by Order of the Court of Wards. Now, that we have come to years of discretion

and of age, We do, by the a g r e e ~ e n t ~ of the heirs, and in pursuance OS the rule

observed in our farnily, agree and gi1.e in writing, that while both of us Brothers

exist, we shall keep the zemindary in our control ; and wc shall never divide and take

the xemindary. There shall be on the part of both Brothers a Sarbarakar in the

zemindary, who shall pay in the public revenues, and shall pay over to both of us

Brothers, the profits that may accrue therefrorrt. And (God forbid) whichever of

both of us Brothers shall die first, and shall leave no Son, his heirs shall ha1743 no

power to rlaim the ~ e ~ i n d a r y left, and they shall, upon the custom ohserved in the

family, receive a stipend only for their subsistence; and the Brother who shaU

survive &all continue Halik and Mooklit~~r of the whole zemindary, etc., upo~ i the

rule of the family, and the Wusseeyu~ of our ancestors. These fen lines have been

w-rittan as an [452] admission of t8he Wusseeyut in question, that at, the time of need

they niay prove serviceable.” It appeared, h o x ~ e r , that the copy of the abo\re alleged

Will, recorded in the Collector’s office, had not the Collector’s signature; and there

were discrepancies in the evidence of the Witnwses who were examined on the

subject of tlie I l ~ r a r n a ~ a h . En support of the alleged rule of the family, the

Appellant also exhibited a rejoinder, filed by Akbar Eonsein, i n a suit instituted

by his Mother against him, and in which it was contended, that he had adrnitted

the rule of the family, and a genealogical table of the family. It appeared, hovt;ver,

by t h i s table, and by other evidence, that the zemindary had not always devolved

to the male branch of the family, and that the Appellant’s and his late Brother

Aktoar Xfossein’s, and their Father, ~ o o k u r - ~ ~ o d - ~ e e n Hossein%, right in tbc z ~ n ~ ~ ~ ~ d a r y

had sprung from Mussumut R0wshet.n Beeby, who was married to Mahomed Saeed,

the Appe~lant’s and Akbar Efossein’s great Grandfather.

The d o c u ~ e n t a r y evidence, on the par t of the ~espondent , consisted for the

most part of the proceedings and i n s ~ r u ~ e r i ~ ~ referred to in her answer to the plaint.

37 2

RAJAE ~~~~A~ HOXSEIN

7’. RANEE ZUHOOR-OON NISRA Cl84 I] 11 XQQRE IND. UP., 4683

'File parol evidence on both sides related allno& exclusively to thc e i r c ~ l ~ ~ s ~ a ~ l c e s

atteriding the eyecution of the Bill of sale and Deed of gift, and to the gapacity of

&bar Wossein at the time when they w r e executed.

In tlze course of the ~ l ~ o c e e d ~ n g s iii the ~oorslredabad F r o ~ r ~ n c i a ~ Court, rhe

Moulnvie (Maliorxiedan lawyer) of the City Court of Moorshedahad was consulted

as to the validity of the alleged Will of ltajaii Fookur-ood-deen Hosseirm, and of th:l

BilI of saie and Deed of gift ; and, from thr- E4531 answer given by hixn, i t appeared

that the Will could not be upheld by the Mahoincdan law, but that the Bill of sale

and lleed of gift \yere good and legal. The same Moulavie was afterwards further

ctonsulted on the question, whether, supposing the Ikrarnamah to be genuinc, the

Bill cif sale and Deed of gift would be valid, and he gave his opinion that tliil

Ikrarnarnah was, according to the ~ a ~ i o ~ i ~ e d a x ~ law, a Will made by Akbar Hossein

and Deedar Hossein ; and that according to law, i t was legal for a Testator to turn

fvonr his Will, and that Akbar Hosseiri having made a sale to his Wife, and a

donation to his Daughters, showed that lie had turned from his Will, and that the

sale and donation made by Akbar Wombin, iu favour of his Wife and Daughters,

subsequently to the execution of the Ikrar riarnali, were not invalid. according to law.

The cause was heard in the ~ o o r s h e d a ~ a d ~ ~ o ~ ~ ~ i i c i a l Court t different dates,

and on the 2’7th of August, 1817, the senior Judge of the Court gase judgment, by

which, after ebserring on the evidence, atid thc suspicion which attached to the

alleged Will and ~~ra r i i an ia l i , arid statirig his opinion, that it had been fully pm-ed

that Rajah Akbar Hossein executed tlic Bill of sale and Deed of gift udii l~ i n

possession of his reason and intc,llect, he coiicludcd, that as, according to the

Shura (the Mahornedan law), the Willl of Rajah Fookur-ood-deen Hossein ’v\ as

invalid and null, and as the lkrariianw h did riot vitiate or render null and void

Akbar Hossein’s sale and donation, the ~ppe1lan~’s claim was ill-placed and in$-

propcr; and the Respondent’s right and title to one moiety of the zernindary, ? ~ I i i c h

had been sold to her, E4541 was just and. proper. And it was accordingly ordered,

that tbe cause be dismissed, and that the ~espondent continue in possehsioii of one

half-share of the zemindary, and that the Appellant refrain from interferiug OT

meddling in it, and pay the costs.

The AppeIlant, being dissatis~ed with this decision, appealed to thr Sudtlcr

’ilewanny Adadut .

Tlie cause was heard by John Fendall, Esquire, the then chief Judge of the Court,

and by S. 7‘. Goad, Esquire, the Fourth Jxxdge, a t different dates; and on the 24th

of May, 1820, judgnieiit was p r o ~ i o ~ i n c c ~ by the Fourth Judge. The judgnrerrt 1m.i

to thv effect, that tliere was no doubt that the alleged Will of Eajah Fookur-nod-decn

Ilossein, and the alleged Ikrarnamah, were fabrications and forgeries, and, there-

fore, that the Appellant’s claini was such as should be dismissed ; but that, as the

First Judge of the M o o r s ~ e d a ~ ~ a d Provincial Court, had given a decrea to the

Respondent, for one moiety of the zemiiidary, it was proper, before affirming the

decision, to ascertain the validity of the 1321 of sale ; tBat, under the ~ i r ( ,u i~ is tan~es ,

the Bill of sale had not been es ta~l i s~~ed. ; and, a d n i ~ t t ~ n g it to be Xegsl attcording

to the ~ ~ a ~ ~ o y ~ e d a ~ law, could not be taken as a sufficient ground to affirni th.

on given by the Provincial Court ; and that it, therefore, bwar.t?e necessary

ide tlrc z e ~ i n d a ~ according to the Furraiz (law of division) a ~ ~ ~ n ~ th’

heirs of the defunct. That the assertion that the xemindary always devolved to tlie

male branch of the family, and never went to the female, had not been established ;

for that it had been shown that the A ~ ~ ~ ~ e l ~ a ~ t ’ s i and his late Brother, Akbar Bossein’s,

also their Father, Fook~r-ood-dee~ Ho~sein’s, right, in the z e ~ ~ i n d a ~ y had sprxing

from Mussutnut RowsEiezn Beeby, E4551 who was married to Mahonied Saeed, the

Appellant’s and Akbar Hossein’s Great Grandfather. That the Appellant liad

fabricated a Wusseeyutnamah, in order to prove the rule observed in his family;

and that had there been this rule in the Appellant’s family, it was not necessary to

write a Wussee~ltnamah and an I~ ra rna~r i ah , and that hence it was clear that the

rule never existed in the Appellant’s family. That it appeared, therefore, to be

fit and proper that the geneaIo~ica1 taltle, filed in the cause, be laid before the

~ ~ a h o ~ n e d a n law-offtcers of the Court, in order to their propounding the lam, as to

how many Sallams (shares) the zemindary left by Rajah Akbar Hossein should Le

divided into, and how many Sahanis shwld go to the heirs of Akbar Rossein, and to

373

nhich, particularizing the Saliams to earit ; but as that opinion was riot in ag rw

nreiit Kith the opinion of the First Judge of the ~ ~ o o i ~ s l i e d a ~ ~ a d Provincial Court,

recorded in tlrv decree of the 27th of August, 1817, and on that account the derision

of the l'roxrincial Court seemed to be such as ahould be reversed and a x ~ n u ~ l ~ d , it

was ordered that tlie papers in t - 1 ~ cause, with that proceeding, should be laid before

a~it)cher Judge of tlie Sudder Dewanizy Adtgwlut. so that, should the Judge's opinion

agree with that then given, the dcwee of the ProirinciaI Court might be rewrwd and

annul l~d , aiid a final order passed to l m t o a the property left 11y Rajah A

t o his heirs under the Furraiz.

Tlte r a w e then caiiic on before Courtxiey Srriith, Esquire, the Officiating Judpb

of the Court. In the course of the prnccedings before this Judge, a search uatii

dirertted for cases decided in the Suddcr Dewanny Adawlut, in which orders had

Ewrn given that the rea€ property should not be divided among the heirs, not-[~56~-

~ ~ i t 1 ) s ~ a ~ i d i ~ i ~ the enactrtient of the ~ e ~ ~ i l a t ~ o r ~ XI. 1793 the purpose

of ascertaining wha t had been done by the Court on form ns in regard

to marriage settleiticnts made on Wiiw. And the records llowing cases

\vcr.tr produced, namely, tlie cause Z ~ ~ h a ~ ~ ~ ~ ~ ~ ~ ~ ~ Roy v. ~ ~ s ~ ~ ~ ~ c ~ i u n ~ Roy, decided OII

thi, 2;$rcl of Fettruary, 1792 ; ~ u ~ ~ ~ ~ ~ ~ r ~ ~ ( ~ Dtw v. I ~ o o ~ ~ u ~ z ~ i ? i e ~ loltriij, decided on tlie

24th of Xarch, 1809 (1 Ben. Sud, Dew. Ad Rep. 270) ; Bnboo Zsl'lu7*1'

I-. Ikzboo ,%i!ir 1. Zcrdrl Swig, decided on the 26th of Map, 1803 ; Koom

c r t l t l otJtertv v. 8ro.nnth A'ingh, decid on the 17th of November, 3813 (2 I h . Sud.

h w . Ad. Mep. 92) j G ~ n g u ~ j o o ~ r ~ d c/ v. Rajtxh Hadho Silzg, decided on the 4th

of June, 1 X c ) I ; Gholasn IIusun A1.l TT. keinzcb Bpebee, decided on the 20th of July,

IS01 (1 Rer i . Sud. Dew. Ad. Rep. 48) : Al i Buksh Khulz v. Kaeem Bcebee, decided OB

tire 24th of August, 1504 (I Ben. Sud. Dew. Ad. Rep. 83); Mirza ~ ~ o o ~ / ~ ~ ~ / / ~ u ~ and

~ ~ ~ ~ ~ ~ i t ~ ~ ~ ~ n ~ ~ ~ v. Jareut-0%-2oitr.a B e p m and o$hers, decided on the 22nd of July,

1808 (1 Ben. Sud. Dew. Ad. Rep. %4B), ~ ~ ~ ~ i j ~ ~ - o ~ ~ X is@ ~~~~~~ T. itlirsn Husun ATz,

ided on the :30th of December, 1808 (1 Ben. Sud. Dew. Ad. Rep. 266) ; O ~ r ~ ~ ? ~ ~ o ? ~

n Begum 8. Mirm Asud Ali, decided on the 19th of May, 1809 (1 Ben. Sud. Dew.

Ad. Rep. 2 76) j .%Ire?* it'ujib Oflah v. Mirssmn,mrri~f Doo.i.dalza Xhiitoom, decided o i l

tile 21st of August. 1805 (1 Beir. Sud. Dew. Ad. Rep. 103).

Petitions were also presented by the A ~ ~ p e ~ ~ a n t and the Responden~; the Appel-

lant by his petition insisting on his title as founded on the family rule, and con-

tending that tbe rule was not repugnant to the Mahoinedan law, or to Regulation

XI. of 1793. And tlie R~spo~dGnt , by her petition, contending, that any [457]

rule which might be observed in a family, directing that a zemindary should not be

divided, went for nothing when opposed to the Mahomedan law. That, Regulation

XI. o f 1793, completely overturned this ruischiewus rule. That as after the death

of ~ook~ir-ood~deen Boesein, the Father of Akbar Hossein and Deedar Eossein, both

t h e Brothers of their own free will caused their names to be jointly written in the

Collector's o%ce with respect to the zerriindary in question; and as they continued

in joint possession in the ~ ~ o f u s s i ~ (~roviJice~), i t was clear that, bad such a rule

existed, both the Brothers had of their onn free will and pleasure overturned i t ;

arid that the Appellant had not claimed in the suit on his rights as heir, and that iic,

inquiry as to those rights ought to be made. The Appellant also in the course of

tlie proceedin~s before the Judge, filed a law opinion in support of h i s claim.

On the 14th of June, 1820, Courtney Smith, Esquire, the ~ ~ e i a t i n ~ Judge, g a w

judgment to the effect, that " there was a failure of proof of the Bill of sale, and that

it was p r ~ s u ~ ~ a ~ l e that it had been f a ~ ~ ~ i c ~ ~ t e d , hut that had Rajah Akbar Hosseiii

twwted it, it would not have been upheld as legal, for that i t was d i a i ~ i ~ t r i ~ a l i ~

opposite to the rule of the family, according to which the amount of the marriage-

settlement of the Wives could not he answered from the zeniindary. That Erorit

all the circu~i~stances and bearings of the case, it appeared manifest, that i t never was

the rule, and that the faniily of the Rajahs of Soorjapore had not the power of payirig

i he amount of niarriage-settlernents made on their Wives frorr~ the zeniindary.

Titat it was not the rule of the family that the feinale part of tIlc

family should hare any concern or power in thz zeniindary, That the

alleged Wilt and Ikrarnamah had riot beert established as they ougSht to I i a r t k

[4SS] been, but that the want8 of proof of these papers did not affect the proof'

of the family rule. That Regulation XI. of 17993 did not in any respect bar a decree

in favour of the Appellant or h i s claim. That the A~pellant's claini WRS clearly

37'1

U . RANEE ZUHOOR-OON XISSA [ 184 11 11 MOORE IND. APP., 459

ehtablished, and that the Bill of sale esliiliited by the Respondent had turned out to

be altogether falsr, and that i t was, tlithrefore, necessary that the decree o f tlte

Proviitcial Court, dated the 27th of August, 1817, should be annulled, and t i iat

orders should be given that the Appellant should have possession of the aliole

of the zeniindary, and that the Respondent should account to him for the Wasilat

(receipts and disbursements), and should pay the costs of the suit. Also, that the

Appellant should, agreeably to the fami1.y rule, maintain and support the Wespo~r-

dent according to her rank and situation in life ; but as the opinion then given n as

1,epugrlant to that of the Judge who before sat on the case, i t was ordered that the

papers should be laid before a third Judge.

Tlie cause accordingly came on before Sir Jarnes Edward Colebrooke, tlie then

Chief Judge of the Court, and on the 4th of August, 1820, he gave his judgment,

agreeirig " with that which had been given by the Officiating Judge (Courtney Smith,

Esquire), and by a decree of the Sudcler Dewanny Adawlut, dated tlie 4th of

August, 1520, it was ordered and decreed, '' that the decision of the First Judge of

the Moorslredabad Provincial Court, dated the 27th of August, 1817, should be reversed

and annulled, and that the Appellant should be put into possession of tlie whole

of the zemindary, and that the Respondent should account to the Appellant for her

ieceipts and disbursements during the period she was in possession, and pay the

costs of the suit on both sides, and that [459] the Appellant should, according t o tile

1 tile, maintain and support the Respondent according to her situation and rank i n

11 €e."

'l'lic Respondent afterwards preferred a petition, praying a review ~f the

judgment, and the petition having been granted, the cause was again set down, aiid

v. l th heard by William Leycester, Esq., tlie then Chief Judge of the Court, on the

21-i of January, 1822, when lie gave judgment as follows:--" Upon a consider,~~io:i

~ f ' die whole of the papers in this case, and upon a deliberation of all the c i r c u i ~ -

stances of the case, to the sitting Judge it does not appear that the rule of the family

alleged by the Appellant has been established in the manner it should have been,

or s I as to satisfy a Court of Adawlut : admitting, however, that it were prort 1,

it 18 not valid under the Regulations in force; on the other hand, it is manife5t

that it is prohibited by Regulation SI. of 1793. This Regulation, however, does not

bear upon the eleven cases which have been decided by this Court, and adverted to

as precedents in their proceedings, under date the 6th of June, 1820. The

provisions of that Regulation can only apply to periods subsequent to its enactnient,

and not to times antecedent to it. And, if the Regulations in question have no

reference to the case, i t is like a blank piece of paper, without purport or meaning,

Admitting that the rule of the faniily was in force (as stated by the Appellant) an-

terior to the death of Fookur-ood-deen Hossein, yet, since that person's demise, i t

has ceased and died away; f o r seeing, subsequently to the death of the said Fookur-

ood-dren Nossein, his Sons, that is to say, the Appellant and the late Akbar Kossein,

appointed, in understanding w i t h each other, Baboo Sookh Lal, E4601 the Sarbarakar

of the litigated zemindary, and have received eacli one moiety of the profits thereof,

whew in such case remains the rule of the family which the Appellant makes his

hold, on which he alleges that i t should not be divided, and has put his clair11 in upoit

it2 And the degree of degradation to which the rank of the family would be sub-

jected to by a division of the zeniindary would be the same in a division of its

profits, seeing there is no distinction or difference between a division of a zemindary

arid that of its profits: on the other hand, they are one and the same. Had tlie

late Akbar IIossein left five Sons as his heirs, even they would, as their Father

might have deemed good, have been in unity with each other, and would llare madc

ari equal divi8ion of the profits of the zemindary. In like manner, liad the

Appellant himself five Sons, they V-ould have divided equally among themselves,

in a h i c h rase too the rank of the family would in a very short time have dwindled

away. The best of it is, that when an equal division of the profits was made between

the late Akbar Hossein and the Appl4lant, the latter made no allusion to

the family rule, nor did he say, that, agreeably to the rule of tile

fanlil;v, he was not entitled to the one moiety portion. O n tlie other

hand. he did, with the greatest joy and pleasure, reccive one-half of the Tvllole

of the profits of the zemindary up to the time of the death of Akhar Wosseirl,

in opposition to the family rule or his Father's desire which he now contends for,

375

I1 MOORE IND. APP., 461 RAJAH DEEDAR HOSSEIN

by which i t is manifest and stands proved, that the alleged rule of the family had

no ground or existence, and that i t continued no longer in force. Be this as I t

may, had the rule of the family been as is alleged of old, the Appellant would never

have exerted himself in its [461] deterioration or destruction, nor would he have

put an end to it. In a word, the rule of the family has not been established in the

manner which it ought to have been, and the Wusseeyutnamah of the defunct

Fookur-ood-deen Hossein is not to be believed or upheld, for two reasons : the one IS,

that after the lapse of so long a period, to uphold and put in force, especially after

the Appellant has acted in contrariety t o its terms, is impracticable, and is re-

pugnant to justice; the second is, that the Wusseeyutnamah does not indicate

distinctly the name of which of his two Sons shsll be i n entry and possession of the

Raj and zemindary, and shall succeed to ii, after his demise, while both the deceased

Akbar Hossein and Deedar Hossein, who is living, are the Sons of the late Fookur-

nod-deen Hossein. If it be taken, upon the allegation of the Appellant, that the

zemindary should have devolved t o the elder Son, in that.case it behoved the Appc.1-

lant to pay into the Court’s Treasury all the surplus amount which he had, as his

share, improperly received, against the wish and desire of his Father, which might

have been left beyond what was necessary for his food and raiment from the period

of the death of his Father to the time of the demise of Akbar Hossein, and he should

then have instituted an action, praying that the rule of his family might be main-

tained; and had in that case his ground been proved, he would have had a decree

f o r the whole of the zemindary, and to the heirs of Akbar Hossein would have been

aiiarded the sum in question with interest. At all events the Wusseeyutnamah

cannot be credited by the Adawlut : even had it been credited, it would have been

the cause of the destruction of the rights of others who have right and title; and

although the Ikrarnamah [462] may be credited, yet as mention in i t is made of the

rule of the family, which is in opposition to the Regulations in force, it is deem6.d

illegal, and is not worthy of credence. Besides, had the Appellant apprehended

that had there been only one male of the family, such person alone would be the

proprietor of the whole of the zemindary under the family rule, where, in that

case, was the necessity for the Appellant to bustle about the falsity and forgery of

the Hibbanamah and Bill of sale, which were exhibited by the Respondent? He,

Ibesides, made no mention of i t in his petition to the Collector of Zillah Purneali,

of the 17th September, 1813, but has only stated that it is not the rule to grant

away by gift the zemindary in consideration of the amount of a marriage-settlement :

and had, according to the Appellant’s supposition, the rule of the family been maiii-

tained and in force, upon what ground of claim could he have instituted an action

under the Mahomedan law for one half of the goods, etc.? And that he did bring a

buit is clear and manifest from a copy of his petition of plaint; nor is i t to be found

in the rejoinder, put in by the late Akbar Hossein, that he admitted the rule of tlie

family: so much he has asserted, that under the rule of the family, the zemindary

cannot be divided on account of a marriage settlement. This point, however. is not

under the Court’s consideration now, because, before now, this objection and some

other documents put in by the parties, were deemed false by a Court of four Judges.

The case which now remains to be considered is, that as the documents which the

parties exhibited have turned out to be false, to what person is the portion of the

zemindary which was in the possession of, and now left by, the defunct Akbar Hossein,

to devolve?

[463] It, therefore, appears to the Court necessary, meet, and proper, to divide the

p‘roperty left by Akbar Hossein among his heirs, agreeably to the Book of God (Kita-

boolah), and that this decision be issued, made according to divisions agreeably to

the Furraiz after the lawyers of this Court shall have stated the heirs in succession,

according to the Book treating of Furraiz. Also, that the former decision of the

Court, bearing date the 4th of August, 1826, be altered and amended for the reasons

given above. It is, therefore, ordered, that the papers of the case be laid before

another Judge, in order that he may determine, or otherwise, upon the alteration

and amendment of the former decision given in this Court.”

The cause then came on before Samuel Thomas Goad, Esq., on the 22nd of

January, 1822, and his opinion agreeing with that of the then Chief Judge, it

376

‘U. RANEE ZUHOOR-00N NISSR [ l 8 t l l SI MOORE IND. APP., M4

ordered that the papers be laid before the ~ ~ c i a t i n ~ Judge for the p u r p e of a

final Order being pronounced.

The cause was accordingly heard before the ~ ~ c ~ a t i r ~ ~ Judge. ~ ~ ~ ~ l i a i t ~ L)orin,

Esq. ; and in the course of the proceedings before this ,Judge, it appeared for the

first time that the Appellaxit and ~ e s ~ o n d e i ~ t were SIieeahs (the sect of ~ ~ a l ~ ~ n ~ e d a n ~

who believe Ali to have been the r ightfu~ successor of ~ a h o ~ e t ) .

On the 7th of May, 1822, the Officiating Judge, William Dorin, Eq., proriouliced

his judgment; the material part of which was as follows: “Notwithstanding in

old times, the rule might have bceu. that the eernindary shall devolve to one only

of the male heirs (in short it i s from the uircunistance of the zemindary remaining

entire to the period of the demise [464] of Fookur-ood-deen Hossein, the Plaintiff’s

Father, to be presumed that such rrrle did exist), yet it is manifest that the rule has

been superseded and rendered extinct bp the act of the two Brother,: theniselves,

that is to say, of the Plaintiff and his Brother, the defunct Akbar Hosneiit ; seeing,

after the dissolution of Fookur-ood-deen Hossein, both the Brothers

heirs to the estste in the Moolky year 1200 ; and even from the period they came

of age, which was about the year 1208, up to the time of the death of Akbar IIossein,

embracing a period of twelve years, they held joint entry and possession of tbe

property as heirs, and received the profits of the zei~~inda~.y. Hence it i s not very

necessary to deliberate, whetber, keeping iii sight the rule of the family, the non-

division of the aemindary can be upheld, ~ o t w i t h s t a n d i n ~ that the Shurn declares

that it shall be divided according to the Fnrraiz. The intent and meaning of Regu-

lation XI. of 1793 is, that zemindaries shall be divided according to the Mahomedan

law arid the Sautrm, subsequent to the period of the enactment o f that Ileplation :

and that any rule, by which a zemindary was not liable to be divided. Aould he

done away. But in sonie cases, in which Hindoos were parties, and which came

before the Court under the contention, as to who was entitled to succeed to a

zemindary or to a Rajship, as it was ruled, that while a family rule existed, the

provisions of the Begulation in question did not warrant a dirisioii of such ~ ~ ~ K ~ i n d a r y

and Raj among the heirs ; on the other hand, it countenanced it : and it was deter-

mined, that the i ~ ~ n - d i v i s i o ~ ~ of such a aemindarj~ which belonged to a Hindoo, was

not repugnant to the provisions of ~ ~ e ~ u l ~ ~ t ~ ~ ~ I r XI. of 1793 ; but no such a case has

come 1)efore the Court, in E4651 B-hicli the parties were ~ a ~ ~ o m e d a i ~ s . lit i s prcl-

sumable also that there is no provision trf .etto Shwa which upholds the no~~-div is~on

of a zrurindary. 1x1 fact the Vakeeis of the A i ~ p ~ ~ l a i ? t tl emselvea admit the assuxnp-

tion to be correct : on which account it appear4 to the sitting Judge, that m e half of

the zeniindary of Pergunnah Soorjapore i n property which has been left by the

deceased Akbar Wossein; and although the claim of the Plaintiff to a riglit and title

to the entire aemindary, under the rule of the family, has turned u u t to he false,

yet he had a right to that portion which may be his according to the Furraie; but as

both the lit,igat,ing parties are Skeeahs, nor do the Appellant’s VaBeelci deny that

according to the Shura, a Brother of a deceased person cannot succeed to any portion

of the property of a Sheeah, existing L ) a u ~ ~ ~ ~ e r s of the said deceased. which fact i s

established by a Futwa (law opinion) filed by the XJax-officers of the Sudder Dewanny

Adawlut, in cause, ? ~ ~ i ~ ~ ~ - ~ Ar&n ~ ~ i ~ n ~ ~ ~ ~ v. Bfirza Nzt.mn Ali (I Ben. Sud. Den. Ad.

Rep. 286); therefo~e, as the F l a ~ n t ~ ~ i s not e ~ ~ t i t ~ e d to any portion of the propeyty

left by his late Brother, Akbar IIossein, by virtue of being heir to him, his claim

should be dismissed in toto: and as the opinion of the p r e s ~ d i i i ~ Judge is d i a t has

been set forth above, it is, therefore, ordered, that the cause with this Rooliakarp

(proceeding) be laid before the chief and the third Judges, who i iave giveit their

voices regarding the admission of a review of judgment, so that a final Order inay

be passed upon it.”

On the 17th of July, 1823, the Appellant presented a petition in the came, re=

presenting that Futwas (law opinions), according to the Iniameea teneiit (tenets of

the Sheeahs), were not in use, and praying that it E4661 might be ascertained how f a r

those tenets were adopted. By this petition i t was admitted, that both the A p ~ e l l a ~ i ~

and the Respondents were Sheeahs ; the petition was answered by a coun~er -pe t~ i~o l~

of the Respondent, stating, amclngst other things, that the Regulations in force

enacted that disputes, especially respecting the title to inherit property, shouId i je

d ~ ~ , i d e ~ . a c c o r d i n ~ to the religious persuasions of the litigating parties.

377

11 MOORE IND. APP., 467 RAJAH DEEDAR HOSSEIX

On the 12th of August, 1822, the following judgment was given by the Court

in the cause, and on the petition : '' It appears that upon former occasions, when the

case came on before, and was decided by the chief and by the third Judges of this

Court, the Appellant's tenets had not coriie to light, in consequence of which i t was

deemed tit and good to divide the effects left by the Rajah Akbar Hossein a ~ ~ ~ o n g s t

his heirs, according to the Furraiz, It has now been ascertained and clearly estab-

lished, by the proceeding holden by the Officiating Judge on the 7th of May, and

by the petition preferred by the Appellant on the 17th of July of the curreirl year,

that the Appellant with his Vakeels avow, that the Appellant is a Slzeeah, and by the

opinion given by the Law-officers of this Court, in the cause Wujzh-on Ni sa LC1"Lnnum

v. Mirzu ZZcisun AZi, it is clear, that agreeably to Imameea tenets, a Brother of a

deceased person has not right and title as an heir, to the property left by the deceased,

eiiatiiig i l i ~ Daughters of the defunct; on which aceount it does not appear to the

chief and to the third Judges of the Sudder Desanny Adawlut, that the A ~ ~ i ~ e l l ~ ~ n t

has any riglit and title to inherit the zeriiitidary left by the deceased Rajah Akbar

Hossein, and that, therefore, his claim should be dismissed and the decision of the

Provincial Court, dated the 27th of August, 1817, in so far [&?I as regards the

dismissal of Appellant's (then PIaintiffs) claims, s h d d be a&rmed. It is for this

reason firially ordered and decreed by the concurrent voice of all the three Judges,

that the claim and the appeal of the Appellant be disniissed ; and that tlie decision

of the Proyinciwl Court, of the date aforesaid, be affirmed Also, that thc judgment

pronourwd by the Sudder Dewanny Adawlut, on the 4th of August. 1820, be re-

versed and annulled; and that wlieri this Decaree shall be carried into execution,

the Appellant shall be made answerable to the Respondent for the Wasilat of the

period during which he, the Appcllant, was in possession of the disputed xemindary,

under the decree of the Sudder Dewanny Adamlut of the aforesaid date ; and tlrat

the comrwiercial note for the sum of Rs. 5000, which the Respondent put in on the

30th of December, 1820, in lieu of the necessary secu~"ity-bond for her appeal to

England, be returned to the Respondent's Vakeels, after taking a receipt for the

same from the Respondent j and tliat the Appellant be rendered liable to pay the

whole of tlie costs of the decision formerly given, and of the present one-fourth only,

ineludirip the Vakeels' fees. As to the fees of the extra Vakeels for the Respondent,

namely, of Moulavie Miamut Ali aird Moons~ii Mujud Ali, which have been deposited

in the Treasury of the Court. they shall be paid by the ~ ~ s p o n d e n t to the Vakeels.

'' Upon a consideration of the subject, of the petition which the Appellant pre-

sent>ed on the 17th July of the current year, and its answer on the payt of the

Respondent, filed on the 6th of August of the current year, it is further

ordered, tliat the petition of the Appellant preferred on the date aforesaid is

inadmisaible."

The Appellant applied for and obtained leave to [468] appeal from the whole

of this decree on the usual terms, and forwarded a transcript of the proceedings to

England, but being ignorant of the form of proceeding in this Country, took no

further steps in the appeal until the year 1532, when he entered into an agreement

with a firm at Calcutta, for the appoiiitirient of an Agent in this Country for the

purpose of prosecuting the appeal. Tbe Agent to the Calcutta House in England

having, however, become insolvent, nothing w&s done on the part of the Appellant in

the matter of his appeal, which was in r%oIisequence, on the application of the Re-

spondent in 1833, dismissed by an Order of the Privy Council for want of

prosecut ion.

The Appellant having presented a petition stating these eircurn&ances, and

praying that the appeal iui$rt be restored, accompanied by an affidavit verifying

the facts of the petition, and offering to prosecute the appeal without further delay,

the same was, on the 20th of February, 1836," ordered accordingly, upon the

terms of the Appellant's paying the coats of dismissal, and of the Order for i t s

restoration.

-" ^i ____ ^____." - __

* Present : Members of the Judicial Committee,-Lord Wpford , Mr. Baron

Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy [The

lit. Nnii Tlromas Erskine].

378

%'. RANER Z U ~ O O ~ - O O ~ NISSA [1841f I1 XOORE ISD. APP., 469

The Appellant prayed the reversal of the judgment of the Sudder Court, of the

12th of August, 1822, for the following reasons:---

I. Because the Pergunnah Soorjapore ccnstituted an indivisible aemindary, to

which the Appellant became entitled on the death of his Brother, Akbar Hossein ;

and because, as the ancestor of the A p p e ~ ~ a n t died before the ~ e g u l a t i o n SI. of

1793 came into operation, and as that Regulation was repealed before Akbar

[469] Hossein died, the descent of the zemirrdary could in no respect be affected by

that Regulation.

11. Because, if the rule of descent had not precluded a division of the zeinindai"y,

no division thereof between the Brothers was eyer made, and, ~ o n s e q u ~ n t ~ y , the

Appellant, on the death of Akbar IIussein, became entitled to the whole

Pergu~~nah.

111. Because, there having been no division of the zemindary between the Brothers,

Akbar Ilossein possessed na interest therein capable of alienatiolk ; and because,

i f he had possessed such an interest, the alleged &ill of sale, purporting to alienate

it, was not in fa&, executed by, or with the sanctio~i of, Akbar Kossein.

IV. Because, according to the custom of the family, the Respondent and her

Daughters, being Iemales, were csciuded from the inheritance, and were only en-

titled to a r~iaii~tenaI~ce to be paid to them by the Appellant.

V. IJecauRe, under the terms of the Vusseeyut of the 25th of January, 1793,

and the Ikrarnamah of the 26th of September, 1810, the Appellant, on the death

of his Brother, Akbar Hossein, became entitled to the whole zeixindary of

P e r g u i i i ~ ~ ~ Soorjapore.

TTI. Because the tenets of the linameea sect of Maho~nedans hare never obtained

in Xadia, and ought not to govern the deeision in this case.

VII. Because the ground upon which the decree of the Sudder Dewaiiny Adaw~ut

u l t i ~ a t e l ~ proceeded was never insisted upon by the Responden~, or even suggested

in that Court or the Court below, until the last review of the judgment, and was,

therefore, a surprise upon the Appellant; and because, supposing the decree t o be

otherwise right, it was erroneous a i d [4'70] unjust, in the direction it contains with

respect to the costs of this suit.

The Respondent, on the other hand, relied upon the following re&sons:--

I. Because it clearly appeared that the Will and Ikrarnamah set up by the

Appellant mere forgeries; and the rule of the family alleged by the Appellant, if

it ever existed (but which it was submitted on the part of the Respondent was not

proved), was superseded and pwt an end to by the acts and proceedings of the Appel-

lant and Rajah Akbar Hossein, after they attained twenty-one; and, moreover, was

contrary to the Mahomedan law, and defeated by the Bengal R ~ ~ u l a t i o i i XI. of

1793.

11. Because the Appellant's claini, a s heir of Rajah Akbar Ilossein, was not in

issue in the cause; and such claim, if proper to be entertained by the Court, was

not well founded, the rightF: of litigating parties being, under the Bengal ReguIatioxi

IV.. 1793, sec. XY., determinable according to the laws prevailing among persons of

the religious ~ e r s ~ a s i o n s to which such parties belong, and the Appel~ant not being

the heir of Rajah Akbar Hossein, according to the law in force among the Sbeeahs,

to which sect both the Appellant and Respondent belonged.

Mr. Petnberto~, Q.C., Mr, MiIler, Q.C., and Mr. Jackson, for the Ap~ellant,

referred to Regulation XI. of 1793, Regulation S. of 1800, and Regulation 11. of

1825, and cited Ghivdharee Sing v, Koo~ahul Sing (ante [ 2 Moo. Ind. App.), p. 344),

and on the application of the Sheeah laws referred to the 10th vol. of the Asiatic Re-

searches. p]). 1% and 480, and to Macnaglijen's Principles of the Ma'homedart Law,

[471] Mr. Wigram, Q.C., and Mr. (2. Turner, Q.C.., for the Respondent, referred

to secticm xv., Regulation IV. of 1793, and Regulation XXVI. of 1814, and cornmenkd

on the ~ e g ~ i l a t i o ~ ~ s referred to by the Appellan~, and cited ~ ~ ~ i ~ - ~ ~ His@ ~ a~~~~

v. &!&U Hwun A& (1 Ben. Sud. Dew. Ad. Rep. 2661, 0~~~~~ Aris,~sa Begu,wz V.

M @ m As& Ali (1 Ben. Sud. Dew. Ad. Rep. 216). Szrmrzm S2;1-Lgh v. Izhcdu~~ , &~&.

(2 Ben. fud. Dew. Ad. Rep. 116), ~ ~ ~ ~ ~ ~ ~ t € ~ Dutt Iiia v. ~ f f ~ ~ f i ~ ~ ~ ~ f f ~ u ~ Rue

(as& 12 Moo, Ind, App.], p. 133).

379

p. t1.

I1 MOORE IND. APP., 473 RAJAH DEEDAR HOSEIN

Mr. Baron Parke (Dec. 14, 18~~}.--Their Lordships have now to pronounce

their o p i t ~ i ~ ~ i ~ upou ail appeal front a tinaX decree upon a review, of the Sudder

DePianny Adawlut of Bengal, pronounced on the 12th August, 1822. The case was

argued before us on three days. We have fully considered it, and are prepared to

advise Her Najesty to affirm that decree.

The suit was iiistituted in Jauuary, 1815, for the recovery of the moiety of the

zemindary of Pergunnah Soorjapore, to which the Appellant claimed to be entitled

on the death of his Brother, Akbar Ilossein, who died on the 28th of Septeniber,

1813, leaving the Respondent his Widow and three children. This zernindary had

formerly belonged to the Appellant’s Father, Fookar-ood-deen Hossein, who died in

the possession of it in December, 1793. After his death this Appellant and his

Brother, then minors, were in joint possession of the zemindary, and so continued

after their majority in 1799 or 1800 until the demise of Akbar Hossein.

The Respondent was put into possession by the Col-[472]-lector after some pro-

ceedings instituted by the Appellant to prevent it; and the A p ~ e ~ l a n t was put to

commen~e his action, which he did in the Provincial Court of Moor~lieda~ad in

January, 1814.

The Appellaiit rested his claim in that action upon three grounds:- first, a

Wusseeyat, or Will of the late Rajah his Father, alleged to have been executed by

him on the 25th of January, 1193, by \vhicli he directed that one of his Sons (not

naming which) should take the whole xemindary, and on his death that it should

devolve on the survivor ; secondly, an Ikrarnamah between the Appellant and his

brother, stated to have been executed by both on the 26th of September, 1810, by

which, after referring to the Wusseeyutnamah and the alleged rule of the family,

that the xemindary should be undivided, they agreed to hold it during their joint

lives without division, and on the death of one the survivor t o take the whole ; and

thirdly, the Appellant insisted that, by the family rule, the zemindary was in-

divisible, and ought to belong to him to the exclusion of his Brother’s other heirs.

The IEespondent, besides denying the Appellant’s right, claimed under a Deed of

gift alleged to have been executed by Akbar ~ o ~ s e i n a short t h e before his death,

and to be in consideration of his marriage settlement, and under another to his three

Daughters. These Deeds the Appellant contended mere forged.

Much evidence was gone into on both sides, and several decisions were rnade by

the native Courts. On the 27th of August, 1817, the Judge of the Provincial Court

decreed against the ~ l a i n t i ~ , being of opinion that the ~espoIideiIt had proved the

validity of the Deeds of gift. In February, 1820, there was an appeal to the Sudder

Court; one of the Judges, Mr. Goad, was of opinion, that the Respondent had not

[473] prored tlie Deeds of gifL under wlhh she claimed, but that the document6 of

the Appellant were fabricated, and the family rule not proved, and he thought that

the decree ~ ~ o ~ ~ l ~ be reversed, and that i t s ~ ~ ~ u l d be referred to the ~ ~ a h o n i e d a n law-

cffioers to ascertaiii into how many Salems or shares the zernindary ought to be

divided, and to whom they should be allotted,’ according to the Furraiz. o r Iav of

succession. The case was then referred to Mr. Courtney Smith, tvho thought that the

alleged family rule was inade out”, and the Appellant entitled to recover on that

ground, lteing of opinion that the documents, the Will, and tlie Ikrarniimah, %-ere

not proved, nor the Deeds of gift.

There being thiv difference of opinion, Sir Janies Colebrookc, another Judge

of the Sudder Court, gave his decision upon the case. He concurred with Mr.

SmitJr as to the invalidity of the Deeds of gift, and he intiinated a strong suspicion

of the Wusseeyut, though he thought the Ikrarnamah genuine, and he also considered

that the family rule was made out.

On that review,

Mr. Leycester, the Chief Judge, was of opinion, that the family rule was not proved ;

that if it was, Regulation SI. of 1793 ;~brogated it; that the Wusseeyut was not

established, and the Ikrarnamah void if that document was genuine, and the Deed

of gift he thought was fabricated. His decision, therefore, was, that the property

must be divided accoiding to the Furraiz.

Mr. Dorin, the o ~ c i a t i n ~ Judge, t h ~ u g h ~ the ~ ~ u s s ~ e y u t a forgery, the Ikrar-

namah not proved, and the Deed of gift invalid; and that though the zernindary

might have been forinerly subject to a rule that it should be undivided, the two

380

There was tlien a petition for a reriew, which was granted.

W. RANEE ZUHOOR-00N NIYSA [184t] I1 NIOORE IND. UP., 4T4

Brothers had done away with tliat rule: and sirice the Regulation of 1793 it E4741

was divisible according to the Furraiz, and both the litigating parties being of the

Sheeah sect, according to whose rules of succession a Brother camot inherit to i t

Brother haviiig Daugl~ters, he g a w his decision against the ~ p ~ ) e l i a I ~ t ' s clainr

altoget her.

The Appellant presented a petition, objecting that the Sjheealt rules of suc-

cession have never been adopted by the Courts of indo dos tan ; which, with a counter-

petition, were considered by all the Judges, and finally, on the 12th of August,

1822, the three Judges concurred, that the Appellant's claim should be dismissed ;

that he should be answerable for the Wasilat (collections or profit) of the period

during which the Appellant was in possession ; that he should pay the whole costs

of the former decision, and one-fourth of that.

Their Lorddiipa feel no difiiculty in coilcurring with the great majority of the

Judges in the opinion that the Eeeds of gift, under. .vtliich the Respondent claims, are

fabricated, and chat the ~ ~ . u s ~ c e ~ u t and ~ ~ r a r I ~ a I i ~ ~ ~ ~ are opeii to bo niucit suspicion,

that the claini of the Appellant, so far as it, i s founded upon or confirnied by theiu,

uiust fail. The absence of the original Wns~eeyut from the place where it ought to

have been i f it had beeii a ~e i i~ i i I ie nstrurnent, its ion-production, the e o i i ~ i c t i i ~ ~

accounts glmt of its contents, and the failure of the A p ~ e l ~ a i i t to bring it forward at

ail early pei iad, and particuiarly iu oppobing registration of the Respondent's Deed

before the Collector, when it would at all eiwtts have preveIIted that OfEcer from letting

the ~ e s p o n ~ e ~ ~ t into possession,---leave litt,le doubt in the iiiinds of their Lordship

that the instrunient was never executed by the deceased Rajah, and that the evidence

is insuficient to support it. If the Wuqseeyut was forged, the Ilirtlrnarnah, which

recites it, must have E4751 been forged also. But without going so far, it is enough

to say that the nature of the evidence in support of it, and the conduct of the Appel-

lant in not producing this instrument before the Collector, leave their Lordships

in so ntuch uncertainty as to its autheil t ici~y~ that they consider that they ought

not to attach any weight to it as $upporti i i~ the ~ppel lant ' s claim.

Two grounds, therefore, on which the Appellant has rested his clainr kiax-ing

failed, it now becomes necessary to dispose of the third, that principally insisted

upoii in the argur~ient before us, viz., the supi~osed family custom that the z e m i ~ ~ d a r ~

had never been separated, but devolved entire 011 every succession, and that such

custom was still in force.

If the existence of the custom in point of fact, at the death of tlic Father, xax

the question to be determ~ned by their Lordships, they would have e i~ te r~a i i~ed soim

doubt upon i t ; for the circumstance that the zemindary had been held entire for

a w r y long period would beem to indicaie that the ordinary rules of successioii

had not been applied to it, and gives great countenance to the supposition that sucli

a custom. existed. But supposin~ that were so, their Lordships are clearly of

opinion, that the fernily usage cannot exempt this zemindary from the operation of

the Regulation XI. of 1793; that Regulation provides, that after the 1st of July,

1794. i f any ~ e i ~ i i y l ~ a r sh ll die without a Will, etc., and leave txo or more heirs,

nlio, by the ~ a h o n ~ e d a n or Hindoo law (according as the parties may be of thc

fornier or latter persuasion), may be respectively entitled to succeed to a portion,

such heirs siiall succeed, This being a cfai iu t o succeed to Akltar Nosseiii, who died

lon6 after July, 1794, not to Rajah Foo~nr-ood-deeI~, who died before, the suc-

cession must be [476j governed by this Regulation. The proviso, sec. v., did not

affect this case, for that was introduced to avoid any retrospective operation of

the previous clause, and to prevent any claini by the co-heirs under it, to succeed to

an estate ahicli had then devolved entire or should devolve entire before the 1st; of

July. 1794.

It was, however, contended on tlie part of t,he Appellant, that the Regulation of

1793 W ~ S repealed, with respect to this ~ e ~ i ~ i n d a r y , by another R e ~ ~ i l a t ~ o I i made on

the 1st of December, 1800, Regulation IT., which, referring to the prior ~ e g u l a t i o ~ ~

of 1793, recites that a custom having been found to prevail in the Jungle Mahals of

~ ~ d n a p o r e , and other Districts, by which the successioii to landed estates irtvariablp-

devolved to a single he r without the dirision of the property, and the custom

having been long establ shed and founded on certain circumstances of local con-

renience which still e..;ist. the ~ ~ o ~ r e r n o r - ~ e ~ ~ e r ~ l enacts, that the Regulation of 1793

The appeal is from that decision.

'

381

11 MOORE IND. UP., 477 DEEDAR HOSSEIN ‘U, ZTJHOOR-OON msw [1841]

shall not supersede nor affect any such ~ s t a b l i s ~ ~ e d usage which may have obtained

i n the Jungle Mahals of idn nap ore or other Districts, and that in the Mahds in

question, the local custom of the Country shall be guided by it in the decision of 811

claims which may come before the Court to the inheritance of landed property

situated in those Mahals But it i s clear to their Lordships, that this Begulation

did not apply to undiv i~ed zen~indaries~ in which a custom might prevail that the

inher~tance should be indivis~ble, but ooly to the Jungle Mahals, and other entire

Districts, where local custom prevails.

The construction contended for, viz,, that every individual zemindary in which

the custom had been that i t should descend entire was exempted, would repeal the

Regulation XI. of 1793 altogether; whereas i t is clear that it was intended to be

partially repealed only.

E4771 Their Lordships, therefore, have arrived at the conclusion, that on the

death of Akbar Hossein, his interest in the zemindary devolved, according to the

Mahomedan law of succession, to several heirs.

The only remaining question is, whether the law of success~on is to be that

\thick prevails amongst the Soonees o r the Sheeahs, the rule as to each sect being

different, and both the litigant parties belonging t o the latter. If the law of the

Sheeah sect is to prevail, the Plaintiff has no title, as a Brother cannot succeed.

By Regulation IV. of 1793, sec. xv., i t is provided, “ t h a t in suits regarding

succession, inheritance, marriage, and caste, and all religious usages and institu-

tions, Mahornedaii laws with respect t o Mahon?edans, and Windoo laws with regard

to Hindoos, are to be considered a8 the general rules by which Judges are to forni

their decisions.’’ According to the true construction of this llegulation, in the

almence of any judicial decisions or established practice limiting or controlling

its meaning, the Mahomedan law of succession applicable to each sect ought to

prevail as to litigants of that sect. It is not said that one uniform law should be

adopted in all cases agecting Xahomedans, but that the Mahoinedan Iaw, whatever

it is, shall be adopted. If each sect Iiah its own rule according to the ~ ~ ~ ~ o ~ e d a 1 ~

law, that rule should be followed with respect to litigants of that sect. Such is the

natural construction of this Regulation, and it accords with the just and equitable

principle upon which it was founded, and gives effect to the usages of each religion,

which it was evidently its object to preserve unchanged ; we feel no doubt, therefore,

that we ought to interpret the Regulation of 1793, to adopt the usage or law of each

sect, unless there be E4781 a courde of judicial decision or establish~d practice to

the contrary.

A s to judicial decision there i s none: and the only precedent hearing upon this

question is in favour of the application of the Sheeah law. It is the case of Wujih-on

S i s n ZiJiclnum v. Mirza H ~ L S F I L I L Ali (1 Ben. Sud. Dew. Ad. Rep. 266), in nhicli ii was

proposed tty the Court as a question to the ~ a ~ i o m e d a n Law-officers, w h a t would be

the d i s t ~ i b u t ~ ~ ~ r i according to the law of either sect; and their direction implies,

that the Soonee law was not the established rule of decision in all cases in our Courts

of Justice. As t o the practice, we hwe svailed ourselves of the means of convulting

several G e ~ ~ ~ l e m e ~ ~ of great experience in tlie adnii~istration of justice in the Indian

Courts, and we cannot find that there i s any course of practice with respect to all

Mahomedxn successions a t variance with this construction. It is t rue that the

Soonee law has generally prevailed, because the great majority of the Indian

X a h o ~ ~ e ~ a ~ ~ ~ are Soonees, there being very few families of the Sheeah sect, except

those of the reigning Princes, which will account for the prevalence of the Xoonee

doctrines in tlie Courts, but there is no practice which excludes the application of

the Sheeah law to the rights of persons professing the tenets of that sect. The natural

and equitable construction of the Regulation must, therefore, prevail.

For these reasons, the advice which their Lordships will give to Her Majesty is,

that the judgment of the Sudder Dewanny Adawlut must be affirmed; and their

Lordships do not think i t right to make any alteration in that par t of the decree

which relates to costs. That part, however, which directs the Appellant to account

to the Defendant for the proceeds of the E4791 moiety of the xenxindary, uhilst he

was in possession, must be altered. Ee must bring the aniount in Court, to be paid

to those who are heirs according to the Sheeah taw of succession and of their re-

383

BABUN W. R. KATIK ‘U. D A 6 0 0 D W. ~ U ~ ~ O O [lS4l] 11 RE INI). APP., 480

presentati~es, and the decree of the Court below, with that ~~iod~fication, i s to be

affiz*~ned with costs.

[For other proce€dings irr ~on~iect ion with this estate see ~ u ~ a ~ Enayet ~ ~ s ~ ~ ~ n v.

&ryzd Abed R e w , 1888, 7 Moo. fnd. App. 238, a d note p. 239.1

BABUN WULLAD RAJA ~ L ~ T I K , - - - A ~ ~ ~ & . Y & ; DAVOOD WULLAD NUNNOO,-

~ e ~ ~ ~ n ~ ~ n ~ * [Feb. 23 and 24, 184‘11.

Qn ea^ from t h e S ~ ~ ~ ~ ~ ? . ~ ~ ~ “ ~ ~ y ~~~w~~ of ~~~~~~.

Claim to the ~ ~ e r e d i t a ~ . ~ office of the headship of the Butchers in the town of

~ h m e d i i u g ~ u r , ~ i sm~ssed , no satisfactory proof being shown of the right

to inherit, and adverse possession of the oEce being had for inore than

thirty years.

This was an appeal arising in a suit inst~tuted by the Appellant agftinst the

~espondent , to recover from him the hereditary office of the hea~shjp of the Butchers,

in the town of Ahmednuggur, in the suburb of Baranuggur, together trith Rs. 351.

damages, by way of compensation for the profits of the office.

The office, vhioh vas of very ancient origin, was formerly held by one Motee, who

was represented as ancestor of both parties.

It was admitted, that ever since the yesr 1800, I b e office had been possessed by

the ~espandent , and his Father, Nunnoo Vullad Sultan, it having been then grantcd

or conf i r~~ed by Scindia.

[&@] The plaint was filed by the A p p e l ~ a ~ ~ t , on the 19th of August, 1826, in the

Zillab ~ o u r t of Abinednug~ur, before the Junior ~ s s i s t a n t Judge. It alleged that

the right to the ~ [ e h t a r ~ , or ~ ~ ~ ~ d s h i p of the Butc~~ers , in the City of A h ~ e d n u ~ g u ~

was the Appellant*s, and had descended to hini from his progenitors ; and that the

papers and ancient d o c ~ ~ r n e ~ ~ t s o n t a i ~ i n ~ the proofs of his right of ~ e a d s h i p fell

into the hands of tlre deceased Nunnoo ~ u l l a d Sultau, in the time of Scindia’.i

~ v e r n ~ ~ e ~ t , about twenty-five years previous, since which time the ~ e a d s h ~ p had

been unjustly exercised by h i m

The Respondent, by his answer, denied the right of the Appellant, and alleged

that ever since the Jaglee era, 1069, A.D. 1661, his elders had possessed a Sunnud

in their name, arid had enjoyed this privilege; that some time since, h i s ancestor

had left the place, and during his absence, this headsh~p was held by other persons,

and the ~ i a i n t i ~ had no interest or control in it. That in the yew Jaglee 1137

(A.D. 1729-301, the Settees, and ~ ~ o ~ i a ~ u n , and others, hereditary Officers of the Citr,

sent a s~iir~mons to his ancestor, and that his ancestor appeared before the ‘3‘ 1. wear

(the head of the affairs of the ~ ~ e r n K ~ ~ e n t ~ , and rweived from Scindia’s ~ ~ u ~ ~ ~ o r i t i e s .

after showing them the Sunnuds and d o c u ~ e ~ t s , and the su~nnions (Kowl) arid other

papers, a confirmation of his right to exercise the privilege of the ~ ~ e a d s l ~ ~ p , and

that to this proceeding, 110 one made any o1)ject~on. That the P l ~ ~ i n t i ~ , in the year

Saka 1760 (AD. 1818-19), f~-audulent~y and falsely made a complaint to the caste,

and stated therein, that in respect to the headsh~p, he was Brother to Iiirn, the

~ e f e n d a n t ; and having gone from village to village, and assembled sonic of tlre

caste, drew up a false [481] opinion a t the village of Bingar, at which t i m e and

place the Father oE the Plaintilf (since deceased) brought forward a fabricated

docurnent ; upon which proceeding he subsequentljr made a cowplaint, before Mr.

Hotkley, the then Judge of the Zillati of A ~ ~ i ~ i e d ~ ~ u g ~ u r , and produced papers, a

sunxiud, and the ~efore-nientio~ed fabricated document. That the Fattier of the

P l a i ~ ~ ~ i ~ was then d ~ s t ~ ~ ~ c t l ~ told, that there was no cause for a suit for the ~ ~ e a d s h i ~

against his Op~onent . That after this, the ~ l a i ~ i t i ~ made a coi~iplaint in the

* Preeent : &fembers of the Judicial Co~~rnittee,-~~ord Brougl~am, Lord Denrnan,

Mr- Baron Parke, Mr. Justice Bosanque~, and the Right ~ o ~ o u r a ~ l e Dr. ~ ,ush in~ton .

Privy Councillor,-Assessor,--Sir Edward Hyde East, Bart.

383

I

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