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Dhurm Das Pandey and Others v. Mussumat Shama Soondri Dibiah (India)
Case Summary: Dhurm Das Pandey and Others (Appellants) v. Mussumat Shama Soondri Dibiah (Respondent)
Factual and Procedural Background
This is an appeal to the Judicial Committee of the Privy Council (dates Dec. 7–8, 1843) from the Sudder Dewanny Adawlut of Bengal, which had affirmed a Decree of the Provincial (Zilla) Court of Moorshedabad. The respondent, Mussumat Shama Soondri Dibiah, claimed a share in certain mouzas and personal estate as widow and representative of Huradhun Pandey (deceased). The defendants (appellants) were Dhurm Das Pandey and his sons.
Key factual background as recorded in the courts below:
- Four brothers (Durm/ Dhurm Das, Suroop Chund, Anroop Chund, and Nihal Chund) formed a joint undivided Hindu family, living in commensality and partnership.
- Huradhun Pandey (son of Suroop Chund) lived in the joint family with his uncles, married the respondent, and died in 1817 after executing an ijazut-nama (a written authority directing his wife to adopt a son and giving his share to her and the son to be adopted).
- After Huradhun's death the respondent was dispossessed by Dhurm Das and his sons. She filed suit in the Provincial Court of Moorshedabad (plaint dated 8 September 1827), claiming a portion of the family property and alleging it to be joint family property.
- The Provincial Court (Judge P. E. Patten) decreed on 19 June 1829 that the plaintiff (respondent) be put in possession of a specified share and awarded costs. The defendants appealed to the Sudder Dewanny Adawlut, which on 9 April 1833 affirmed the Provincial Court's Decree for reasons set out in the judgment. The defendants then appealed to His late Majesty in Council (Privy Council).
- During litigation the respondent adopted a son (Ram Dhun Pandey) pursuant to the ijazut-nama; the appellants relied on an ikrar-nama (alleged written renunciation/transfer by Huradhun) to deny the respondent's claim.
Legal Issues Presented
- Whether the property in dispute was joint family (coparcenary) property or separate/self-acquired property of the appellants.
- Whether the ikrar-nama produced by the appellants (purportedly executed by Huradhun Pandey disclaiming his participation) was genuine and sufficient to defeat the respondent's claim.
- Whether the ijazut-nama (power to adopt) executed by Huradhun Pandey was valid and, if the respondent adopted a son, what effect the adoption had on the respondent's right to prosecute the suit and on possession of the property.
- Whether technical objections (for example, improper parties) not taken in the courts below could be entertained by the Privy Council on appeal.
Arguments of the Parties
Appellants' Arguments
- The property belonged entirely to the appellants: parts were assigned to them individually by Nihal Chund Pandey and Huradhun Pandey, and other portions were purchased by appellants with their own funds; therefore the respondent (widow) had no right to the property.
- Even if a joint family existed, the portions in question were separately acquired and became separate property where common family funds were not employed.
- The respondent did not sue in the proper capacity: she sued as heiress of Huradhun Pandey but evidence established another heir; the Decree improperly awarded to her the share she would have been entitled to if her pleaded claim had been proved.
- When the respondent adopted a son, her interest was reduced from life estate to maintenance; thus her claim should have been dismissed and an account should have been directed because no evidence established the amount of cash said to belong to the family.
- They produced an ikrar-nama (dated 15th Katik 1224 Bengal Era) alleged to be a written admission/transfer by Huradhun disavowing a claim; this, if valid, would defeat the respondent's entitlement.
Respondent's Arguments
- Evidence established that all four brothers and, after Suroop Chund's death, Huradhun, lived and ate together in coparcenary and commensality; under Hindu law the presumption is that property in possession is joint family property.
- The burden (onus) lies on a member of the family to prove separate acquisition; appellants failed to prove separate acquisition or that purchases were made from separate funds.
- The respondent was entitled, as widow of a member who died without issue, to her husband's share of the joint family property; she had power in writing (ijazut-nama) to adopt a son and did so, thereby becoming guardian and trustee of that son's interests.
- The ikrar-nama relied on by the appellants was a fabricated instrument and did not confer right upon Dhurm Das; existing authority and regulation (Bengal Reg. XX of 1812) and other cited decisions supported this position.
- The Court of Appeal (Sudder Dewanny Adawlut) and the Provincial Court were entitled to prefer the testimony and documents that supported the respondent's case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 3 Moo. Ind. App. 2401 (as cited in the opinion) | Presumption that the whole of the property of an undivided Hindu family is in coparcenary; onus lies on a member to prove separate acquisition. | The Court applied this presumption to treat the property as joint family property unless appellants proved separate acquisition; found appellants had not given evidence that purchases were from separate funds. |
| 3 Moo. Ind. App. 2421 (as cited in the opinion) | That the Court will not entertain a technical objection which was not taken in the Court below where it might have been amended. | The Privy Council refused to entertain objections not raised in the lower courts (for example, that proper parties were not before the Court), noting such defects might have been cured if raised below. |
| Keerut Sikgv. KoolahJ Sing (2 Moore’s Ind. App. Cases, 331) (as cited by appellants) | Authority cited concerning the widow's entitlement (appellants used it to argue a widow is only entitled to a life estate). | The Court considered the point but held that adoption (when valid) divests the widow and vests the estate in the adopted son; nevertheless the Privy Council treated the suit as prosecuted for the adopted son's benefit and the respondent as guardian/trustee. |
| Zihoorshed-jee Manik-jee v. Melhrwan-jee Khoorshed-jee (1 Moore’s Ind. App. Cases, 442) | Cited for the principle that the Court of Appeal will not set aside proceedings on mere technical informality where substantial justice has been done. | The Privy Council invoked this principle in support of the view that technical objections not taken below should not defeat the respondent's established substantive rights. |
| Ghidha(d)ree Sh(g) v. Koolahul Sing (2 Moore’s Ind. App. Cases, 344) (as cited) | Cited by respondent as an authority on relevant aspects of Hindu law and practice (exact rule in the opinion is not elaborated beyond citation). | The Court treated it as supporting the respondent's position; the opinion references it among authorities relied on by the respondent's counsel. |
| Anund Mohun, Appellant, v. Hwee Per, Respondent (Decision dated 19 July 1832) (as cited) | Used to meet the objection that the ijazut-nama adduced by the respondent was invalid because the respondent was under age when it was written. | The Privy Council regarded that decision as fully meeting the objection and therefore found no necessity for further argument on that point. |
| Bengal Reg. XX. of 1812 | Regulatory provision cited in connection with the ikrar-nama and its admissibility/relevance. | The opinion notes the regulation in the course of discussing the ikrar-nama and the contention that it was fabricated; the regulation is cited as part of respondent's legal support. |
| Gopeekrist Gosain v. Gzungapersaud Gosain (1554, 6 Moo. Ind. App. 74) (see reference) | Referred to in the opinion (context appears in relation to costs and established practice). | The opinion cites this case as a reference point in discussing costs and established rules in similar litigation; no novel principle was announced by the present Court beyond applying ordinary rules of costs. |
Court's Reasoning and Analysis
The Judicial Committee's analysis proceeded principally on the factual findings and legal principles applied by the courts below. The Court emphasized deference to findings of fact by the Zilla (Provincial) Court and the Sudder Dewanny Adawlut because those tribunals had the opportunity to see the witnesses and documents and were more familiar with local habits and customs.
-
Presumption of Joint Property and Burden of Proof:
The Court reiterated the presumption that where a Hindu family lived and ate together in commensality, the property in possession is presumed to be joint (coparcenary) property. The appellants bore the onus to prove separate acquisition. The Court found appellants did not prove that purchases were made from separate funds; receipts or purchases in one member's name were consistent with joint ownership absent proof of separate funds.
-
Authenticity and Effect of the Ikrar-nama (alleged renunciation/transfer):
The Zilla Court considered the ikrar-nama a fabrication and the Sudder Court considered it possibly signed when the grantor was incompetent. The Privy Council agreed that the instrument could not be given faith and was not sufficient to overthrow the finding of joint property and the respondent's entitlement.
-
Validity and Effect of the Ijazut-nama and Adoption:
The Court accepted the ijazut-nama (power to adopt) as genuine, crediting the witnesses who testified to its validity. It recognized the legal effect under Hindu law that when a widow adopts a son pursuant to a valid power, the property that had been in her possession is divested from her and vested in the adopted son (subject to a right of maintenance for the widow). Nevertheless, because no objection was made below that the proper parties were not before the Court and because the respondent prosecuted the suit after adoption, the Privy Council treated the suit as having been prosecuted by the respondent as guardian/trustee for her adopted son; thus her possession would be as trustee and she would be accountable to him for profits.
-
Deference to Lower Courts on Facts and Documents:
The Committee repeatedly noted the superior opportunity of the lower judges to judge witness credibility and documents (including an inventory purporting to be acknowledged against interest). Though there were doubts, the Committee said it was not justified in declaring the lower courts' conclusions wrong on the facts presented.
-
Technical Objections and Procedural Points:
The Court adhered to the rule that a technical objection not taken below (and which could have been cured) would not be entertained on appeal. It therefore rejected arguments that the decree should be reversed on such procedural grounds.
-
Interest and Discretion of the Sudder Court (earlier part of the opinion):
In an earlier segment of the opinion (appearing in the provided text), the Committee addressed whether a judgment of the described sort carries interest. The Court declined to give a general opinion but accepted that if a practice exists in the Sudder Court granting discretionary interest on such judgments, that practice is neither unreasonable nor unlawful. The Committee found the Sudder Court had properly exercised its discretion regarding interest in that matter.
Holding and Implications
Holding: The Judicial Committee recommended that Her Majesty affirm the Decrees of the Provincial Court and the Sudder Dewanny Adawlut and that the appeal be dismissed with costs.
Direct Consequences for the Parties
- The Decrees below are to be affirmed: the respondent is to be put in possession of the share decreed by the Provincial Court, and the appellants' appeal is dismissed with costs.
- The Court treated the respondent's possession as being in the capacity of guardian and trustee for the son she adopted pursuant to the ijazut-nama; she will be accountable to him for profits of the property and entitled to maintenance from it.
- The property in dispute was held to be joint family property (coparcenary) on the evidence presented; appellants had not discharged the burden of proving separate acquisition.
Broader Implications
The opinion proceeds on accepted principles of Hindu law and appellate practice — deference to findings of fact by lower courts, presumption of joint family property where commensality is shown, the onus on a family member to prove separate acquisition, and the effect of a valid ijazut-nama/adoption. The opinion does not purport to establish a novel legal doctrine; it applies existing principles to the facts and confirms the routine rule that appellants failing to overturn the courts below pay the costs of appeal.
This summary is based exclusively on the content of the provided opinion text and does not add information not contained therein.
111 IUOORE IND. APP., 2a8 DHURM DAS PANDEY
ever, there be any rule of law or practice against the Respondent upon the point,
the Appellant is entitled to the benefit of it.
Upon the general question whether a judgment of the description before US
does, in its nature, carry interest, it is not necessary for their Lordships to give
any opinion. It appears to them, that if a practice or rule of procedure exists in
the Sudder Court, granting discretionary interest upon judgments of this sor t
affirmed by Her Majesty in Council, such a practice or rule of procedure is neither
unreasonable nor unlawful.
One instance, a t least, was mentioned in the Court below, and has been cited
to their Lordships, in which a course as to interest was taken analogous to that
which has been taken here, and furnishing a precedent for what the Sudder Court
did in this case.
The whole aspect of the papers on both sides, showing what passed in the
Court below, appears to their [228] Lordships much more consistent with the existence
of such a practice or rule of procedure, according to the Respondent's contention,
than with the contrary supposition. And it appears to them, on the whole, the
correct conclusion to accede to the Respondent's view of this par t of the case. View-
ing this as a matter of discretion in the Sudder Court, their Lordships cannot say
that the discretion was otherwise than properly exercised. They are of opinion
that the Court did what was just and reasonable under the circumstances. That
the Order of Her Majesty in Council on the original appeal did not touch the question
of interest, does not appear to their Lordships material. They consider that it
left the Court of Sudder Dewanny at liberty to act upon its own rule of practice
and procedure in this respect.
It has been suggested, that a distinction may be made as to interest anterior
to the time when the arrears were reduced, from those of eleven years, to those of
six. The amount un-
questionably due might have been tendered, and might not have been made the
subject of appeal.
Leaving untouched, therefore, the question whether the present was a case in
which an appeal could be regularly brought before Her Majesty in Council, their
Lordships are of opinion that, upon the merits, for the reasons which have been
stated, this Appeal must be dismissed, with costs.
Their Lordships, however, cannot accede to that argument.
[229] DHURM DAS PANDEY and Others,-AppeZlants; MUSSUMAT SHAMA
SOONDRI DIBIAH,-Respondent * [Dec. 7, 8, 18431.
O n appeal from the Sudder Court at Bengal.
The presumption of law is, that the whole of the property of an undivided Hindoo
family is in coparcenary [3 Moo. Ind. App. 2401.
The onus lies on a member of such family to prove that it was separately ac-
quired [3 Moo. Ind. App. 2401.
This Court will not entertain a technical objection which was not taken in the
Court below, where i t might have been amended [3 Moo. Ind. App. 2421.
A childless Hindoo, by Deed, directed his wife to adopt a child. After his
death his widow brought a suit for a partition, and to be put in possession
of her husband's share, in the joint undivided estate. Pending the suit,
she adopted a son. By the Hindoo law, the act of adoption divested the
property from the widow and vested it in the adopted son, subject to the
maintenance of the widow. Notwithstanding the adoption, the suit was
* Present :-Members of the Judicial Committee-Lord Campbell, Mr. Justice
Erskine, the Right Hon. Sir Herbert Jenner Fust, and the Right Hon. Dr.
Lushington.
Privy Councillors-Assessors-Sir E. H. East, Bart., and Sir E. Ryan, Knt.
484
‘U. MUSSUMAT SHAMA SOONDRI DIBIAH 118431 111 MOOBE IND. APP., a30
prosecuted in the widow’s name, and a Decree made, directing her to be put
in possession [3 Moo. Ind. App. 2421.
Held, in such circumstances, that she prosecuted the suit as the guardian of
the adopted son, and was put into possession as his trustee, and account-
able to him for the profits of the property so decreed to her 13 Moo. Ind.
App. 2431.
i h i s was an appeal from the Decree of the Sudder Dewanny Adawlut of Bengal,
which affirmed, on appeal, a previous decision of the Provincial Court of Moor-
shedabad, by which the Respondent, as the widow and representative of one Hurad-
hun Pandey, deceased, was decreed to be entitled to a Sve ana share, o r a third
part, of certain mouzas and personal estate, then in the possession of Dhurm Das
Pandey, and his sons, the original Defendants.
The ground of the Resp~ndent’s claim was, that the property in question was
a joint family property, and that her deceased husband, the nephew of the De-
fen-[230]-dant, Dhurm Das Pandey, was in his lifetime entitled as one of the co-
sharers, and members of an undivided Hindoo family, to participate therein.
E’raii Chund Pandey, the common ancestor, had four sons, viz., Durm Das
Pandey, Suroop Chund Pandey, (the father of the Respondent’s deceased husband,)
Anroop Chund Pandey, and Nihal Chund Pandey. It was not distinctly ascer-
tained by which of the members of the family, the seyeral particulars consti tutin~
the property in dispute were acquired. But the four brothers lived and ate to-
gether, no separation in commensality or property having ever taken place between
them, and Suroop Chund Pandey continued in joint seisin and possession till the
period of his death in 1217, (1810-11, A.D.) when he was succeeded by his son and
heir, Huradhun Pandey. dnroop Chund Pandey, however, the third son of Pran
Chund Pandey, died first, and without issue ; but his wife Mussumat Subanah Musey,
having seceded from her religion, renounced the world, retired into seclusion, and
relinquished a11 claims to the family property. By this means the fanzity property
became divisible into thirds.
Huradhun Pandey, the son of Suroop Chund Pandey, and husband of the present
Respondent, lived in coparcenary and commensality with his uncle Dhurm Das
Pandey and his sons, and while thus living in family partnership, married Shama
Soondri Dibiah, the Respondent. Soon after his marriage, and in the month
3 a t i k 1224, (October and Nweinber 1817, A.D.) he died, having previously duly exe-
cuted an ijazut-nama in writing to his wife Shama Soondri Dibiah, in which he corn-
niaiided her to adopt a son, and gave his share of the joint family property to her,
and to the son which he thus authorized her to adopt. The determi-[231]-nation on
the part of the Respondent, in consequence of family disputes, not to adopt one of
the descendants of Dhurm Das Pundey, led to an open rupture on the part of himself
and his sons with the Respondent, and they dispossessed her of her share of the joint
famiIy property. In order to obtain a restoration bf the possession of her share,
the ~espondent , on the 8th September 1527, filed her plaint in the Provincial Court
of Moorshedabad against Dhurm Das Pandey, and his sons Budun Chund Pandey,
Gooroo Churn Pandey, and Sadhoo Churn Pandey, claiming to be entitled to a
moiety of the family property, on the representation that the fourth brother, Nihal
Chund Pandey, was dead, without issue, and seeking to recover from the Defendants,
rupees 2,18,969, 4 anas, 17 gundas, 3 cowries, as the value of her moiety, or half
share of the zemindary and other rea1 and persona1 property situate in the zillas of
Moorsl~edabad and Bheerboom, the joint undivided property of the Plaintiff and
the Defendants.
Dhurm Das Pandey, filed his answer to the plaint, in which he admitted that
the Plaintiff’s husband was a member of the family, but denied that the property
claimed by the Plaintiff was the joint acquired property of the Plaintiffs father-in-
law, Suroop Chund, while in commensality, but insisted that he and his deceased
son Ram Kaunt, and Budun Chund, had purchased i t with their own money, and
that neither the Plaintiff nor her late husband or her father-in-law had any interest
whatever i n it ; that Nihal Chund had made a deed of gift, and that the Plaintiff’s
late husband, Huradhun Pandey, had executed an ikrar-nama, or written document,
acknowledging that the property in dispute was the self-acquired property of the
485
f > .
I11 MOORE IND. APP., 232 DHURM DAS PANDEY
De-[232]-fendants, and transferring to Dhurm Das his, Huradhun Pandey’s, in-
terest in his father and Grandfather’s estate. At the foot of the answer of Dhurm
Das Pandey, Budun Chund Pandey, Gooroo Chund Pandey, and Sadhoo Chund
Pandey, his sons, recorded their joint answer, corresponding in substance with the
answer of their father.
To these answers the Plaintiff filed a replication, in which she again insisted on
her right to the share sued for, and denied that Huradhun Pandey, her husband, had
ever executed such ikrar-nama in favour of Defendant Dhurm Das Pandey as he set
up by his answer ; she further stated, that under the authority of the ijazut-nama she
had, since the institution of the suit, adopted a son, and named him Ram Dhun
Paridey.
On the par t of the Plaintiff, witnesses were produced, who proved the joint
interest and partnership of Suroop Chund and his son Huradhun with Dhurm Das
and his family, and the ijazut-nama fled in the Provincial Court was proved by
four of the attesting witnesses to have been the one executed by Huradhun Pandey in
favour of his wife, previous to his decease.
The Defendant examined various witnesses, with a view of proving that the
property claimed by the Plaintiff had been acquired by himself and his sons, but
their testimony was met and contradicted by the witnesses examined on the part of
the Plaintiff.
On the 19th of June 1829, P. E. Patten, Esq., the, Judge of the Provincial Court
of Moorshedabad, made his Decree, and finally ordered that the case be decreed to
the Plaintiff, and that she be put in possession of a five anas, six gundas, two
cowries, and two krants share of the property claimed, and enumerated in the in-
ventory thereto annexed, and mentioned in [233] the petition of plaint as in the
possession of the Defendant : and the Defendants were ordered to refrain from inter-
ference and possession of the property, and the name of the Plaintiff was to be
recorded in the office of Government, as proprietress of the talooks therein stated, in
the proportion of the calculation given, with costs, to be paid by Defendants.
From this Decree the Defendants appealed to the Sudder Dewanny Adawlut.
Further documentary evidence was then presented on both sides, the substance
of which is stated in the Judgment of the Court.
On the 9th of April 1833, the Judge of the Sudder Dewanny Adawlut declared
his opinion in favour of affirming the Decree appealed from, and after stating all
the previous circumstances of the case, recorded as follows :-“ In my opinion, the
decision of the Provincial Court, for the following reasons, is worthy of being
affirmed : -
‘‘ First. From the evidence of the witnesses of both parties, and documents on
the file of the Provincial Court, it is clearly proved and established, that all the
four brothers, (that is to say,) Dhurm Das, and Suroop Chund, and Nihal Chund,
and Anroop Chund, were co-partners, and boarded and lodged together, and that
after the death of Suroop Chund, Huradhun, his son and heir, in the same manner
as his father, continued with his uncles as joint sharer.
( ‘ Secondly. m e wedding of Huradhun, husband of the Respondent, was
effected from the joint money.
‘. Thirdly. From the copies of petition filed after the death of Suroop Chund,
bv Dhurm Das Pandey, and Budun Chund Pandey, and Gooroo Churn Pandey, and
Sadhoo Churn Pandey, in the Government office, [234] praying the name of the
deceased be erased, and that their own names, and that of Huradhun Pandey, be
recorded, it is clearly proved that in them the aforenamed acknowledged and
admitted of the partnership and joint interest of Huradhun, which circumstance is
duly corroborated by a copy of the rubakary of the collectorate, dated 28th January
1817, stating that their names, conjointly with the name of Huradhun, were to be
found in the Government records for the talooks in dispute.
“Fourthly. From the copy of the petition filed on the par t of Budun Chund
and Huradhun, jointly in one paper applying for a public sale of the property of
defaulting ryots of Lat Killa, the Plaintiffs husband’s coparcenary interest with
Appellants is also clearly established.
“Fifthly. From among the mahals in dispute, the most important mahals,
such as Lat Killa and Dechapara, were purchased in the name of Suroop Chund.
486
21. M U S S ~ ~ A ~ S ~ ~ A S ~ ~ D R ~ DIBIAH [I 8431 ffI ~~~~~ IND. BPP., 235
Hence it caiinot be imagined that without his possessing a right, his name would
have been inserted ; and it is likewise proved, that Huradhun, the Respondent’s
husband, at the time of his death, was twenty-two years of age, and that n few days
anterior to it he executed an ijazut-nama in favour of his wife, the ~espondent,
for the adoption of a son; and the Respondent some years after his death, agreeably
to the above document, adopted as lier son Ram Dhun Pandey, although from
among the objections of the Appellants, two objections, first, the ikrar-nama, dated
the 15th Katik 1224, Bengal Era, produced by them under the al~egation tha t it was
executed to them by Huradhun Pandey, disclaiming his participation in the pro-
perty of his grandfather and father; and secondly, @%] that the ijazut-nanza ad-
duced hy the Respondent as having been executed by her husband, for the purpose
of adoption, was not valid and admissible, in consequence of the Respondent8
being under age, (that is to say, that when it was written, her age was two years,)
-have on the first appearance some claim to consideration; yet when the matter
was well d t e d , these two objections did not appear to favour the pretensions of the
Appellants, for apparently the ikrar-nania in question was drawn out at the time
when Huradhun was dangerously ill, (so that he died a few days after,) by the
hand of Nub Kishore, one of the ryots of Dhurm Das, and was signed in such ex-
tremity of sickness that .his senses were materially injured. This leads to the
suspicion, that he WBS not aware to what, or to what paper, he put his signature ;
hence the paper in question coming into existence is not free from doubt. With all
this, if, agreeably to the allegation of Appellant’s witnesses, it should be even held
valid, nevertheless it cannot be deemed sufficient to reject the claini of the Respond-
ent, and to annul the decision of the Provincial Court, for it is clear that a deponent
can only depose to such matter as has actually occurred prior to the time of his
deposition : contrary thereto is repugnant to fact, and inadmissible. In the present
instance, this circumstance i s sought in vain, that is to say, as by the testimony of
witnesses and various documents, it is clear that Huradhun’s claim to, and pos-
sesioii of, the property in dispute, existed up to the tinie of the execution of the
ikrar-nama, how then, from the tenor of the ikrar-nama, can it be argued that he
had no claim? A refutation of the second objection i s completely met in the decision
of this Court, dated 19th of July, 1832, in the case of [236] Anund Mohun, Appellant,
v. H w e e Per&, Respondent, which was passed agreeably to the bewusta of the
pundit of this Court ; consequently there appears no necessity for any other argu-
ment. ‘C‘nder all these circumstances, and the reasons detailed in the decision of the
Provincial Court, the decision in question in every wise appears good and valid,
and the objections of the Appellants thereto altogether inadmissible. I t is therefore
finally ordered and decreed, that the decision of the Provincial Court of Moor-
shedabad, dated 19th June 1829, be sErmed and ratified, and that the Decree of
the Provincial Court be executed agreeably to what is stated therein, and the appeal
dismissed with co8ts.”
The Appellant then, after praying for a review of Judgment, which was refused,
appealed to His late Majesty in Council.
Mr. Charles Buller, Jun., Mr. Jackson, and Mr. Forsph, for the Appellants.
The property in question belongs entirely to the Appellants. Part of it was
assigned to them for their individual benefit by Nihal Chund Pandey and Huradhun
Pandey, and the remainder of such property was acquired by the Appellants by
their own exertions, and not as an undivided family with the husband of the Re-
spondent or any &her person under or from whom the Respondent claims. It is
true they may have constituted a joint family, but the property having been solely
acquired, without employ in^ for that purpose any part of common family property,
became separate, and the Respondent has no right in law to participate therein.
1 Strange’s Hindoo Law, 213, 214. There is moreover a fatal objection to the Be-
spo~dent’s E2371 claim. In what capacity does she suet She does not sue as the
guardian of the adopted son. I n the suit she claimed to be the heiress of Huradliun
Pandey, but adduced evidence upon which the Court declared another person to be
his heir ; and the Court in direct opposition to such evidence, and its own declara-
tion, decreed to the ~espondent the same share of the property of her deceased
husband, to which she would have been entitled if her claim had been proved. At
the time of the death of Huradhun Pandey, the Respondent was a childless widow,
487
I11 MOORE IND. APP., 238 DHURM DAS PANDEY
and only entitled to a life estate. Keerut S k g v. KoolahJ Sing (2 Moore’s Ind. App.
Cases, 331). 1 Strange’s Hindoo Law, 121,
134. The moment the adoption took place, she cut down her life estate, and became
only entitled to maintenance. As, therefore,
the evidence adduced by the Respondent made out a case which completely super-
seded the claim set forth in her pleadings, the plaint ought t o have been dismissed
with costs. The mode in which the account is taken is unjust. No evidence whatever
was given of the amount of cash belonging to the family a t the death of the Re-
spondent’s husband, which the Provincial Court assumed to be very large. An
account should have been directed.
Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edmund F. Moore, for the R e
spondent.-It was established by the evidence that the four brothers, and, after the
death of Suroop Pandey, the Respondent’s husband, were an undivided Hindoo
family, and lived in commensality and joint partner-[238]-ship ; that no separa-
tion ever took place between them ; and that the property which formed the subject
of the suit was joint family property, to which the members of the family were
respectively entitled as co-sharers. The presumption of law then is, that all the
property was jointly acquired. By the Hindoo Law, the Respondent was entitled
as the widow of Huradhun Pandey, who died without issue, to his share of the joint
family property, and she has adopted a son, pursuant to a command and authority
in writing duly given by her husband for that purpose. She then became his
guardian and trustee. This Court, as in the House of Lords, will never interfere
for the purpose of setting aside the proceedings of the Court below on a mere
technical informality where substantial justice has been done, and this principle has
been applied to Indian cases. Zihoorshed-jee Manik-jee v. Melhrwan-jee Khoorshed-jee
(1 Moore’s Ind. App. Cases, 442). Ghii-dharee S h g v. Koolahul Sing (2 Moore’s
Ind. App. Cases, 344). The ikrar-nama alleged by the Defendants to have been
executed by Huradhuri Pandey was a fabricated instrument, and conferred TIO right
upon Dhurm Das Pandey, in whose favour it purported to have been made. Bengal
Reg. XX. of 1812.
1 W. Macnaghten’s Hindoo Law, 19.
1 W. Macnaghten’s Hindoo Law, 70.
Lord Campbell.-’l!heir Lordships feel very much indebted to the Gentlemen of
the Bar, on both sides, for the manner in which this case has been argued. It has
been argued with the greatest ability and with great conciseness; and I must say
thai we are better assisted by the Bar when a case is so argued, than when the argu-
ments are extended to a n unnecessary length, and there are repeti-[239]-tions, which
only perplex 11s. I am sure nothing was omitted on either side, that could assist or
he of service to their clients.
This case is of a very intricate and perplexing nature, and it is utterly impossible
to explain all the facts that appear in evidence before us. But we have the Judg-
ment of the Zilld Court, which appears t o me to be framed with great care and
caution, and I am glad to have an opportunity of saying so, because lately in another
case (the case respecting the palanquin), I felt it my duty to declarc the regret of
all their Lordships who heard the case, that much pains had not been bestowed
upon it either by the Zilla or the Sudder Dewanny Court. In this case it appears to
me, and I believe to all their Lordships, that both in the Zilla Court and in the Sudder
Dewanny Adawlut the Judges have shown great industry, great circumspection,
and great discrimination.
There is no disputed
point of law that occurs in the case, and upon a question of fact we must give credit
to the judgment of the Court below, the Judge having an opportunity of seeing the
witnesses and of seeing the documents, and being better acquainted with the habits
and customs of the people than we can be supposed to be.
The Judgment of the Zilla Court in this case has been affirmed by the Sudder
Dewanny Adawlut. The Judge of the superior Court not in all respects taking
exactly the same view as the Judge of the inferior Court, but confirming the Decree of
the inferior Court; we have to determine whether that Decree ought to be affirmed
or reversed; and after the most anxious consideration, their Lordships are of
opinion that the 12401 only course that we can safely adopt is to affirm the Decree.
It is allowed that this was a family who lived in commensality, eating together,
Now the case really involves merely a question of fact.
488
'U. AIUSSUMAT SHAMA SOONDRI UIBIAH [I8431 111 MOORE IND. APP., 241
and possessing joint property. It is allowed that they liad sonie joint property, aud
there can be no doubt that, under these circumstances, the presumption of law is.
that all the property they were in possession of was joint property, until i t was
shown by evidence that one member of the fanlily was possessed of separate pro-
perty. Such evidence may be received, but their Lordships are of opiriion that
auch evidence has not been given in thk case, with regard to ally part of the
Now a h a t has been relied upon, with regard to a portion of the property, has
been chiefly that it was purchased in the name of one member of the family, and
that there are receipts in his name reapecting i t ; but all that is perfectly conaistent
nith the notion of its having been joint property, arid even i f it had been joiiit
property it still would have been treated exactly in the same manner. We hare
lieard froiii the highest authority, from the authority of Sir Edward East arid Sir
Edward Ryan, whose most valuable assistance we have in this case, (and i t gives
iue a confidence that I should not otherwise have felt,) that the criterion in these
cases in India, is to consider from what source the money comes wi th which the
purchase-money is paid. Here there has been no evidence given that the Appellant
liad any separate property, or that it was from his funds that any par t of the
purchase-inoiiey was paid; therefore, I think, that so far on this par t of the case,
110 difficulty can be entertained, and that the whole of the property must be cou-
sidered as joint property.
[241] That being so, the widow is entitled to a third of that joint property unless
credit be given to the ikrarnama which has been set up by the other side. The
Judge of the Zilla Court, who must have seen it, who must have examined it, and
a h o had an opportunity of seeing the witnesses by whom i t was supported, and the
nitnesses by whose evidence the authenticity of it was impeached, came to the con-
clusion that i t was a fabrication. The Judge of the Sudder Court was rather of
opinion that i t bore the seal or signature of the grantor, but that it had been
obtained from him when he was incompetent to execute a Deed. I must for my
own part express, that the leaning of my opinion is rather in accordance with that
of the Judge of the Zilla Court. But a t all events, it seems to me that this is a
Deed to which no faith can be given, and that the two Courts were perfectly right
iii considering that it was not the Deed of the grantor, and that it ought not to
have any weight given to it.
Their J,ordships are of
opinion that the whole of the real property must be considered as joint property,
and the same as to the personal property, because according to the Law of the
EIindoos, as in the Civil Law, no distinction is made between these two species of
property. Their Lordships certainly have felt great difficulty respecting the amount
of personal property-the cash supposed to be in the house-and it would have been
satisfactory to them, if , according to the course of proceeding in this country, a
reference could have been made by the Court below to ascertain the amount. But
we have reason to believe that such a reference could not have been made, and now,
at this distance of time, it could not possibly be niade with any advantage.
[242] To show the amount, there is a document produced, which, i f genuine, is
sufficient for the purpose,-an inventory, supposed to have been acknowledged by
one of the parties against his own interest. The Judge of the Zilla Court and the
Judge of the Sudder Court have both concurred in believing that to be a genuine
instrument, acknowledged by the party. There is no doubt that is subject to some
suspicion, but we do not feel that we should be at all justified in saying that the
Judge of the Zilla Court and the Judge of the Sudder Court came to a wrong con-
clusion. We feel ourselves bound, likewise, to consider that a genuine document,
and if so, it proves the amount of the property to be according to that stated in the
Decree.
An objection has been made, that, pending the suit, an act of adoptioll was
executed by the Respondent, whereby the whole property was divested from the
mother and vested in her adopted son. Now, upon the authorities there can be
no doubt that that is the result of an act of adoption, because the property is in the
widow, from the death of the husband, till the power of adoption is exercised. Then
tha t adoptioii divests i t from the widow, and vests it in the adopted son. But for
]Jropelty.
We now come, therefore, to the question of quantum.
p P . 1-11. 489 16a
IIf MOORE IND. APP., 248 JESWUNT SIKU-JEE UBBY SING-JEE
that reason are we to reverse the Decrees of the two Courts! NO objection was
made in either of those Courts that the proper parties were not before the Court.
If such an objection had been made, i t might have been removed, and I think it is
a safe maxim for a Court of Appeal to be governed by-that an objection, which,
if taken, might have been cured, and which has not been taken in the Court below,
shall not be taken in the Court of Appeal.
We consider that the Judges of the two Courts below were right in coming to the
conclusion, that, the E243-j ijazut-nama, or deed giving the power of adoption, v-a8
a genuine deed. The witnesses who were examined to prove its validity were believed
by the Judges below, and we see no sufficient reason why they should be disbelieved
by us. That, therefore, being a genuine instrument, there was a power of adoption,
and it is always to be borne in mind that that deed goes along with the habits
and feelings of the Hindoos, because we know that a Hindoo dying without issue
male, would be most anxious before his death, by writing or by parol, to yive a,
power of adoption, in order that the sacrifices which are required niay be p r -
formed, and that his departed spirit may be introduced to a state of happiness.
It has been
objected that the effect of the Decree is to put the Respondent in possession, in her
own righi, of that which i e divested from her by the act of adoption; but their
Lordships conceive that, although the Decree is not very skilfully framed in that
respwt, that is not the effect of it. All the facts being stated, it is assumed as
%natter of law, that, after she had evecuted the act of adoption, she prosecuted the
xuit only as guardian of her adopted son. Then, as the suit must be considered as
afterwards prosecuted by her, in her name, for his benefit, the Decree must be coil-
sidered to be for his benefit, and that she is put in possession as trustee foi him.
Ne claimed, as I understand, an undivided share; she is to be put into possession
of an undivided share. That share she will hold accountable ts, him as his
guardian and trustee, being entitIed herself to a maintenance out of it. Some of
their Lordships thought that i t might be expedient to alter the Decree with relatioir
to that [244] point. But upon the whole, after considering the matter more maturely,
their Lordships a re o f opinion that i t is unnecessary-that the effect of the Decree
will be to consider the whole of this property as joint property-that this deed,
giving the power of adoption, the ijazut-nama--is a genuine instrun~ent, that she
prosecuted the suit as guardian for her adopted son. and that, therefore, he will
be entitled to calf upon her to accourit for the profits of the joint property of which
she is to be put i n possession.
Under these Circumstances, their Iiordbhips are of opinion, that it will be pro1)er
t o recommend to Her Majesty that the Decrees of the Courts below be
affirmed, and with costs. There a re doubts upon the facts, but we are proceeding
upon the ground that a forged i n s t r u ~ e n t was given in evidence on the par t of
the Appellants, that that has caused the litigation, and that there is no reason wily in
this case we should depart from the comnion rule, that the Appellant failing Itlust
pay the coats of the Appeal.
[See Gopeekrist Gosain v. Gzungapersaud Gosain, 1554, 6 Moo. Ind. App. 74.1
Then, under these circumstances, what is the effect of the Decree2
By the Xahornedan Law, a child born in wedlock is presumed to be the child of
* Present : Members of the Judicial Committee,--Lord Brougham, Lord Lang-
Privy Counrillor,-Assessor,--Sir E. Ryan.
-- - ---- -_____
dale, the Right Hon. Dr. Lusbington and the Right Hon. T. Pemberton T,eifiIi.
490
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