CHOWDRY D. PERSAD v. CHOWDRY D. SING [1844] IIL MOORE IND. UP., ~7

[a471 CHOWDRY DEBY PERSAD and BENY PERSAD,-&pellants; CHOWDRT

DOWLUT SING,-Respondent * [Dec. 11 and 13, 18441.

O n Appeal from the Sudder Dewanny Adawlut of Bengal.

The statement in a Deed of Compromise, that the consideration money was paid,

is not of itself, according to the practice of the native courts in India, con-

clusive evidence of such payment, and may be rebutted by evidence of non-

payment [3 Moo. Ind. App. 3541.

Where payment is denied and evidence of non-payment produced, the burthen

of proof that the money was paid, lies on the debtor [3 Moo. Ind. App. 3581.

The suit out of which this appeal arose, was instituted by the Respondent, to

recover from the Appellants the sum of R. 30,601. 5a. 4k., the amount of principal

and interest on a sum of S.R. 21,000, stipulated to be paid by the Appellants to the

Respondent, in a rufanama (deed of compromise), bearing date the 24th of June

1835, entered into by the respective [348] parties to the original suit, under the

following circumstances :-

In the year 1832, the Respondent instituted a suit, against the Appellants, and

one Domun Sing, for recovery of a mouza called Koolhana, in pergunna Amniartoo,

in the Presidency of Bengal. In that suit the decision was a t first against the

Respondent ; but he appealed to the Sudder Dewanny Adawlut of Calcutta, and by

a Judgment of that Court, bearing date the 28th of July 1834, obtained a Decree

for possession. By an Order of the last-mentioned Court, dated the 7th of November,

in the same year, the Respondent was ordered to be put in possession of the mouza,

with a direction that the wasilat, or mesne profits, principal and interest, of the

mouza, were to be accounted for, and paid to him, from the date of the suit to the

date of possession.

In pursuance of this Order, the Respondent was put in possession, and an Amin

deputed to take the account of the mesne profits of the mouza. No account, however,

was taken, in consequence of an arrangement of compromise, having been entered

into between the Respondent and the Appellants, and Mussumat Jhuldi Kooner, the

widow of Domun Sing, whereby the Appellant and Mussumat Jhuldi Eooner under-

took to pay the Respondent R. 30,000 for the mesne profits of the mouza in question,

from the commencement of the action, up to the date of possession, and R. 52,000

for meme profits for the period intecedent to the institution of the suit. Of the

above sums of R. 30,000 and 52,000, the Appellants were to pay one-half, as their

share, which they engaged to discharge in the following manner:-Of R. 26,000,

half of the R. 52,000, they undertook to [349] pay R. 21,000 in cash, and R. 5,000

by instalments; and the whole of the 15,000, half of the R. 30,000, by instalments;

the instalments to commence from the beginning of 1243, and end in 1252, Fusly,

corresponding with 8th September 1835, to September 1845, A.D.

To effect this arrangement, a kistbundy, or instalment-bond, was executed

by the Appellants, on the 24th of June 1835, and, a t the same time, the Respondent

executed a rufanaina, acknowledging the compromise. I n both of these instruments,

the principal sum of R. 21,000 was mentioned to have been paid.

Some time in the year 1837, the present Appellants presented a petition to the

Zilla Court, alleging that the Respondent received the R. 21,000, when the deeds

were being drawn out, and that he had also received R. 5600, under the instalment-

bond. The Respondent, by a counter-petition, denied the truth of this statement,

whereupon the Court, on the 11th of January 1837, ordered, that the kistbundy

should be produced, and the subject of the rufanama and receipts be explained

within fifteen days; and the attendance of certain persons therein named was

directed, to give evidence in verification of the facts stated in the proceedings.

In conformity with this Order, four persons, who alleged themselves to be s u b

* Present : Member of the Judicial Committee,-Lord Langdale, Mr. Baron

Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A. Johnston, Ent.,

Parke, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

and Sir E. Ryan, Ent.

531

I11 HOORE IND, APP., 3W CHOWDRY DEBY PERSAD

scribing witnesses to the deed of rufanama, the original writer of the instrument,

and the Kazi, before whom the deed was executed, were examined by the Court.

The actual payment of the sum in question was not, however, proved by any of these

witnesses.

0x1 the 31st of Mareh 1837, the Zilla Court of [350] Bahar made ail Order in

the cause, which, after giving the appellant^ credit for R. 8100, paid to the Re-

spondent, on account of the R. 15,000, under the kist~undy-bond, ordered as follows :

-if With regard to the R. 22,000, which is on account of profits for period ante-

cedent to action of Appellant (the present Respondent), no Order can be passed from

this Court; but if Appellant, as alleged by him, has not received the money in ques-

tion, with regard to it, and with regard to the interest on it, he has the option of a

regular suit.”

The present Appellants were dissatisfied with this Order, and appealed to the

Sudder Dewanny Adawlut of Calcutta, which Court, on the 29th of June 1837,

ordered, so fa r as respects the s u b ~ e c t - m a t ~ r of this appeal, that ‘‘ in the event of

Appellant (the present Respondent) not having received the alleged 11. 21,000 from

Respondents (present Appellants), on account of profits for time anterior to action,

with interest, Appellant was a t liberty to enter into a regular suit for the same.”

In pursuance of the leave thus given, the Respondent, on the 28th of June 1838,

hrought an action in the Zilla Court of Bl~agelpoor, against the Appellants, for the

recovery of the above sum of R. 21,000, for principal, and R. 7595, for interest,

making together the sum of R. 28,595.

By an Order of the Zilla Court of the same date, the cause was transferred for

adjudication, to the Court of the Principal Sudder Amin, of the Zilla Bhagelpoor.

On the 19th of February 1839, the Appellants filed their answer to the above

plaint, traversing the claim of the Plaintiff, and coIitending that the R. 21,000 had

[351] been paid to the Plaintiff, upon the execution of the deeds of kistbundy and

rufanama.

Both parties entered into evidence before the Sudder Amin. On the part of the

Piaintiff (the present Respo~~dent) he proceedings in the Zilla Court of Bahar of

the 31st of March 1837, and of the Sudder Court on appeal of the 29th of June 1837,

before referred to, were produced, together with the kistbundy and rufanama, and

the depositions of Ghunsam Lal, the writer of the deed of rufanama, and Dhoorup

Sing and Miter Sing, two of the subscrib~ng witnesses to the deed. The evidence of

these witnesses proved that the R. 21,000 were not paid a$ the time of the deeds being

prepared or executed; that a t the time of the preparation of the deeds, i t was in-

tended that, upon payment of the R. 21,000, a formal receipt should be given; and

chat, a t some months after the execution of the deeds, the money was spoken of, as

being still due and unpaid.

The Defendants (the present Appellants), on their part, filed the d e p o s i t ~ o ~ ~ s of the

Iiaxi, before whom the rufanama had been executed, and of two of the witnesses to

the rufanama; but no evidence was given to prove the fact of payment, nor was

any receipt for the money produced ; and i t appeared that when R. 4000 and R. 1600,

in respect of the in s t a l~e i i t s were paid, these tmm were counted out i n the presence

of witnesses, and formal receipts taken.

On the 29th of April 1839, the Principal Sudder Aniin made his decree, and

thereby ordered, that the Defendants pay to the Plaintiff the sum of R. 30,501. sa. 4k.,

the amount of claim, and 1%. 1384. 12a., costs-altoget~~er R. 31,886. la. 4k. ; and

that Plaintiff should receive interest on the amount of clsim, E3521 from the date of

the decree up to the date of receipt, a t the rate of one per cent. and costs.

Against this decision, the Defendants appealed to the Sudder Dewanny Adawlut

of Bengal ; and, on the 30th of July 1839, filed their grounds of appeal, complaining

of the decree, and contending that it was cont>rary to evidence.

The hearing of the appeaI took place before C. Tucker, Esq., one of the Judges

of the Sudder Court, on the 4th of January 1840, when judgment was delivered by

him, in the following terms :-“ In my opinion, the judgment of the Sudder Amin,

in the absence of proof to support the allegation of the Defendants, appears es-

tremely just and proper, because the parties make no objection to the documents,

only the Plaintiff denies the receipt of the money mentioned in them, and for the

refutation of which denial, Defendants rest upon the bare circumstance, that

532

‘U. CHORDRY DOWLUT SING [I8441 I11 MOORE IND. APP., 963

Plaintiff had, in the documents in question, acknowledged the receipt of the money

by him,-an argument scarcely beneficial to them in this case, as i t is an under-

stood thing that after documents are drawn out, money mentioned in them is paid,

and, therefore, mention of the receipt of money is made in the document; but the

onus of proof as to the actual payment of the money mentioned in the documents,

and its receipt by Plaintiff, must rest altogether with Defendants. The evidence,

however, produced by them, does by no means establish a single iota of the fact, and

although Ahmud Ali, Bazi, and Hyder Ali, and Kishnee Rae, have declared to the

fact of the Iiazi’s seal being impressed on the rufanama and kistbundy-deeds, 011

the acknowledgment by Respondent of the receipt of R. 21,000 by him, yet this

circumstance does not prove [353] the actual receipt of the money, because De-

fendants, in their petition in Zilla Bahar, stated tha t the money had been paid at the

time the documents were being drawn out; and the evidence of the Kaxi and other

witnesses (in whose presence the documents in question were being drawn out a t

the Kazi’s court) shows that the money had not been received in their presence ; atid

the statement of the Defendants (as found in their rejoinder), of the paynient of-

the money by them in the village of Sondhi, while the drafts were being drawn out,

is contradicted by their petition. The evidence of Ghunsani Lal, the transcriber of

the draft and the fair copy of the documents, and of other witnesses, in regard to a

promise being made, that the money would be paid after the deeds were drawn and

executed, confute the Defendant’s statement. Nor can the Plaintiff, who denies the

receipt of the money, be required to prove a denial, because default of proof of

payment on the part of Defendants is evidence sufficient for the establishment of

Plaintiff’s claim. In their defence throughout, in this case, the documents of De-

fendants go but indirectly and evasively to deny Plaintiff’s allegation; and in no

instance is there a direct admission of actual payment of the money.” It was, there-

fore, ordered that the appeal be dismissed, and the Zilla decision affirmed.

The Appellants, after having filed a petition for a review of judgment, which

was rejected, brought the present Appeal.

Mr. Charles Buller, MY. Jackson, and Mr. Forsyth, for the Appellants; and

Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edmund F. Moore, for the Respondent.

[a41 Mr. Baron Parke.-Their Lordships are of opinion, that in this case they

ought to advise Her Majesty to affirm the Decree of the Sudder Court. There is n u

doubt that the deed of rufanama, which was executed between the parties, affords evi-

dence, as to the only fact which we have to dispose of upon the present case, namely,

whether the R. 21,000, which were stipulated as the sum to be paid down, upon

executing the deeds of compromise, were paid or not. There is no doubt that the

rufanama, which contains a statement of the fact, that the R. 21,000, were paid, is

evidence. It is admitted on both sides, that it was not conclusive evidence, as the

statement of such a fact in a deed under the seal would be in a Court of law in

England ; but it is evidence as far as it goes.

Then let us see whether that evidence, which is prima f u c i e proof of the payment.

is or is not rebutted by all the circumstances of the case.

We think, that looking at the mode in which this case has been treated by the

Judge of the Sudder Dewamy Adawlut (who must be supposed to be well informed

of the law and the practice in India in such cases), the statement of such a fact

in a deed of this description, is pimu f a c i e evidence, that the money therein stated

to be paid, was paid at the time of the execution of the deed. But he says “ that i t

is an understood thing that after documents are drawn out, money mentioned in

them is paid, and, therefore, mention of the receipt of money is made iri thc

documents.”

Now that being so, the inference that would be derived from the statement of

such a fact in the deed is, that the rufanama must prima f a c i e be considered as

evidence, that there was at the time that the deed [355] was executed, and as part

of the same transaction, a payment of money. But that evidence is completel-

rebutted by all the parol evidence in the case, and by the admission of the parties.

because all the witnesses present at the time of the transaction of the execution of

the rufanama, either are silent as to the fact of the payment, or they expressly

depose that no payment took place at the time.

533

I11 MOORE IND. APP., 366 CHOWDRY U. PERSAD U . CHOWDRY D. SING [ 18441

The Appellants themselves admit in the proceedings, that such was the fact, for

they have stated in their answer t o the plaint in the Zilla Court, that the morley was

received, without stating at what time-not stating that it was received at the time

the deed was executed. In the rejoinder they make a different statement, and say

that the money was paid antecedently to the execution of the deed, namely, while the

draft of the deed was being prepared, In the petition to the Sudder Court, they

state that the money was paid at the time that the deeds themselves were prepared.

Thus varying in the statement of the time and place of the payment of the money,

but not stating in any of them, that the money was paid a t the time the deed was

executed.

Therefore, the question now is this : the prima facie inference arising from the

statement in the deed being rebutted, how stands the evidence with regard to the

fact of the payment? The witnesses who depose to the Execution of the rufanama,

state that the Plaintiff upon that occasion admitted that he had received the money

a t an antecedent. time. If that fact had been proved, that

the money had been paid a t an antecedent time, not immediately a t the time of the

execution of the deed, but whilst the deed was being prepared, is it probable that

such a sum as [a561 that would have passed from the one party to the other, without

some receipt being given!

Then i t is afterwards alleged by the Appellants, that the payment took place in

the presence of respectable witnesses. Now those witnesses were not called in the

Zilla Court, nor is any mention made of them in the Petition of Appeal; but in the

Petition of Review i t is stated as a fact, that the Defendants had offered to bring

forward those respectable witnesses before whom he said the payment took place,

and that the Judge of the inferior Court, the Amin, had refused to receive them.

Now it is impossible for their Lordships to believe that such could have been the

case; because i t appears, that the proceedings before the Amin are conducted with

regularity, according to the Regulations prescribed by the East India Company.

Amongst these Regulations, it is ordered, that every document should be on tlie file

of the Court, and if there had been any petition to examine those witnesses, there

is no doubt that there would have appeared upon the files of the Zilla Court, some

durkhast or petition, for the examination of those witnesses. Therefore, i t is

impossible, that their Lordships can believe that any such application had been made

to the Amin. Then there is an admission by the Defendants, that there were those

respectable witnesses who might have been brought forward ; and the circumstance

of their not bringing them forward is exceedingly strong, that no such fact took

place, as that there had been, antecedent to the rufanama, the payment of this

sum of money.

Besides all this, it is insisted that there are some circumstances, from which it is

to he inferred that this payment took place, because i t is said, in the first place,

that a t the time when the instalments, stipulated [357] Por in the Deed of Compro-

mise, were paid, no mention was made of the fact of the large sum of R. 21,000 not

having been paid. Now that is a fact, certainly, which at one time weighed with

their Lordships, and which it appeared desirable to have explained ; and explanation

is given of the fact by the evidence of Ghunsam Lal. Ghunsam La1 is a person to

whom both the Judge of the inferior Court and the Judge of the Sudder Dewanny

Court give credit ; both of them have stated that they acted upon his evidence, and,

therefore, they must have formed an opinion that his evidence was worthy of belief.

And they are much more competent to form an opinion than we are. This witness

says, that a t the time the payment was made, this conversation took place between

tlie Appellants and the Respondent :-‘‘ What do you say now about the payment

of the R. 21,000, in cash, mentioned in the document? ” The Appellants, in answer,

said, ‘‘ It is difficult to pay at once R. 21,000. We shall arrange for it, and when

the money is paid we shall take a receipt.” Therefore, it is clear that a t that time

there was mention made of the non-payment of the large svm of R. 21,000. The

Kazi, indeed, as the Appellants’ counsel has observed, when he is interrogated as

t o the same conversation, says that none such took place. But in estimating the

value of evidence, the testimony of a person who swears positively that a certain

conversation took place, i8 of more value than that of one who says that it did not,

534

Now is that fact proved?

NAMBOORY SETAPATY ‘U. KANOO-COL. PULLIA [ 18453 I11 MOORE IND. APP., 368

because the evidence of the latter may be explained, by supposing that his attention

was not drawn to the conversation at the time.

Another circumstance which also had weight with their Lordships a t one time,

is the delay in the institution of the suit. That circumstance is no doubt [358] d e

serving of consideration. It may have been that the Respondent was prevented

from instituting the suit sooner, by delusive and evasive promises made from time

to time. The mere circuirnstances of the delay in the suit, is a Circumstance of

some weight, but not of any great weight, when we look a t the other facts of the case.

Their Lordships are of opinion, that the burden of proof, which lay upon the

Appellants, of showing the payment of the money, has not been discharged. They

have given some prima facie evidence of the payment, but that has been rebutted

by the other evidence in the case, and by the consideration, that if it had been true,

there were witnesses who could have placed the fact beyond dispute had they been

called. It is not likely that the payment of so large a sum, which would require,

according to the habits of the natives in India, a considerable time to effect, could

have taken place, without some persons being present, who could have proved the

facts. Upon the whole, their Lordships are of opinion, that the Judgment of the

Sudder Court, and also the Judgment of the Ainin, are perfectly right; and, there-

fore, that the Decree ought to be affirmed, with costs.

[359] NAMBOORY SETAPATY and Others,-AppelZaittv; K A N 0 0 - C O L A S 0 0

PULLIA and Others,-Respoizdents * [Feb. 7, 8. 18451.

On Appeal f r o m the Sudcler. Dezcanny Adawlut a t Xadraa.

Suit by certain Coniaties of the Vaisyas, or third caste of the Hindoob, against

the Mantriniaha-nad (secret assembly, for avenging encroachments upon

ruies or rights of caste), to establish their right to have performed for them

and their tribe, certain religious ceremonies, called soobha and asoobha

(auspicious and inauspicious), by Brahmins, in the language of the Vedas,

in the enjoyment of which they had been disturbed by the Brahmins refusing

to perform suc% ceremonies. I n the answer to the plaint, the Defendants

denied the right of the Comaties, and set forth certain acts, whereby they had

forfeited their right to have the ceremonies performed for them, by the

Brahmins. The Zilla Court, taking that par t of the Defendants’ answer

which set forth the acts by which the forfeiture of the rights in question was

occasioned, framed it into a statement of facts and law, for the opinion of

the Pundit of the Court; and upon his opinion, declared the Plaintiffs’ tribe

entitled to have the ceremonies performed for them by Brahmins. L T p n

appeal, the Provincial Court remitted the suit to the Zilla Court, to take

evidence, and upon such evidence, and the opinions of the Pundits, which the

Provincial Court took upon the same statement as the Zillah, they affirmed the

Decree. The Sudder Dewanny Adawlut, upon the whole case, reversed these

decisions. Held by the Judicial Committee of the Privy Council, reversing

the decision of the three Courts, that the whole proceedings were irregular,

and contrary to the express provisions of the Madras Regulation SV. of 1816,

sec. T., cl. 3 and 4, which required the Judge to record the points necessary to

be established, before the evidence could be taken ; the opinion of the Puiidits

being also taken upon an assumed statement of facts, not admitted or recorded.

But in consideration of the circumstances, such reversal was without pre-

judice to bringing a fresh suit.

* Present : Members of the Judicial Committee,-Lord Brougham, the Vice-

Chancellor Knight Bruce, the Right Hon. Dr. Lushington, and the Right HOII. T.

Pemberton Leigh.

Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A. Johnstorl, Knt.,

and Sir E. Ryan, Knt.

- - ~- ~ _ _ ~

535