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.

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dale, the Right Hon. Dr. Lusbington and the Right Hon. T. Pemberton T,eifiIi.

490