Munni Ram Awasty v. Sheo Churn Awasty and Mussamat Neeut Kooer (India)

i w m I RAM AWASTY li. SREO CEURN AWASTY [1846] IV MOORE INR. APP., 114

[1141 ~ w ~ ~ 1 RAM ~ ~ ~ ~ ~ ~ , - A ~ ~ ~ e ~ ~ a n . ~ ~ SHE0 CHUEN AS^^- atid

~ ~ ~ S S A ~ ~ ~ T NEEUT IiCtOF,Zt,--~espondents * [Dec. 2, 3, 4, 18&6].

O n Appeal ~ ~ o m the ~ S ~ $ ~ ~ e ~ ~ e ~ L ~ ~ ~ ~ ~ ~ A d a i j ~ ~ ~ ~ at 3 e ~ ~ a ~ *

By deeds of farigh-kutti (release) and ikrar-nania ~ackno~~ledgn ie i~ t~ , entered

into by parties t o a suit then pending, a co~~~proniise was agreed upuii, in

c*onsideration of Rs. 2000, to be paid by the Defendants to the Plaintif?, the

Plaintiff undertaking to execute rind deliver in to the Court, a deed of ran-

nama ; which the Plaintiff afterwards refused to execute. Held by the Judi-

cial Committee of the Privy Council, affrriiing the Sudder Court’s deci ce,

that tlie deeds of farigh-kutti and ikrar-nama constituted a binding obliga-

tion on the Plaintiff, and that he could not a.i.oid the comproiil~se~ by refusing

to execute and enter up the razi-narna [4 Moo. Ind. hpp. 1341.

The Plaintiff instituted the suit, in, fo?-nza p t i p e r u , and by the terms of ~ l t e

deed of cor~~promise, the ~ e f e n d ~ ~ n t s undertook to pay the costs, npo i~ his

entering up the raei-nama. The Courts in India sustained the coniproiii iqe,

and decreed the Plaintiff to pay. out of the ~OKis~de~ation-rnoney to be it‘-

ceived by him, the costs incurred subsequent to the deeds of c o r ~ i p r o ~ ~ ~ ~ e .

Such decree a%rmed on Appeal.

Senibla. A ~ t ~ ~ o u g h the Courts in India admit a party to appeal to ~ n g l a ~ ~ ~ ,

in )‘otmo puuperis, yet the Appellant ought to inake a special application t o

the Queen in Council, for leave to prosecute such Appeal, in. forma p u p / zs

f-t Moo. Ind. App. 136.1

T h i s Appeal arose out of a suit, originally instituted in the Provincial Court t ~ f

Patna, by the B~pcllant, suing, urt formca pat&per&, against ~ ~ ~ d ~ u ~ 1 Moliuii dx traty

(the husband of the Respondent, ~ ~ ~ ~ s s ~ ~ ~ a t Neeut Kooer) and Sheo Churn Awasty, for

the p a y - ~ ~ l ~ l - ~ ~ e r ~ t of S. xls. 55,135. 12., being the amount of a fourth part or share

of certain effects, estates, in villages, houses, orchards, imn~ovea~le and moveable pro-

perty, together with the produce of the bhiraj and la-khiraj villages, situate in the

pergunnas Nurhut Roh and PilIuh, in tlie presidency of Bengal, the entire amount

of which was est~nlated a t the sum of S. Rs. 340,543, then in the possession of the

Defendants, who were carrying on in partnership together the business of mahajuns,

or bankers, in the town of Shahabad.

The Plaintiff claimed as the son of She0 La1 Awasty, one of the Eye sons of Fyne

Sookh Awasty, the eldest son of Bholanath Awasty, the common ancestor and founder

of the family, against the Defendants, the sons of Deokishen Awasty, the son of

Sookhnundun hwasty, the second son of ~ho lana th Bwasty, insisting that the de-

scendanb of the common ancestor were an undivided family, and that the capital,

etc., was the joint property of the Defenda~~ts and himseff.

On the 26th of January 1815, the ~ l a i ~ t i f f filed his plaint, 2.n forma p i ~ p e r i a .

1x1 the Provincial Court of Patna, against Muddun Mohun Awasty and Sheo Churn

Amsty, in which he traced his descent with the Defendaiits, from their corni~~on

ancestor, ~ ~ ~ o l a n a t ~ I Bwasty, and alleged that a partnership subsisted from his t i m v

down to the present, and claimed to be put in possession of a fourth part or share of

the real and personal estate then belonging to the ~efendarits, to the a ~ o u n t before

stated.

The ~efendants, by their answer, denied that the Plaintiff, or N p e Sookh

Awasty, tlirougli whom he claimed, had any interest in the house a t Shahai)ad, or

any other cstates belonging to them, and then [I161 in their possession, iijsistirig

that the whole o f their property was created and acquired by their own exertions,

or those of their immediate ancestor, and was un~ar t i c~pa ted in by the Plaintiff’y

ancestor, and could not, therefore, be claimed by the Plaintiff; they insisted also

that the suit was barred by the Bengal ~ e g u ~ a t i o n s of ~ i m ~ t a t i o n , 111. of 1793, aiid

* Present : Members of the Judicial C o ~ n ~ ~ i t ~ e e , - ~ o r d ~roughanl, Lord Lang-

Privy Cuuncillors,-Assessors,-~ir E. R. East, Bark, and Sir E. Ryan, Knt.

643

IT. of 1805. -- I -- _” ___ - -- - I

dale, the Right Won. Dr. I , ~ i s l ~ i n ~ o n , and the Right Hon. T. Peii~berton Leigh.

IV IOORE IND. U P . , 117 MUNNI RAM AWASTY ‘U. SHE0 CHURN AWASTY cl8461

The Plaintiff, by his reply, contended that the suit was taken out of tlie operation

of the Regulations of Limitation, the claim being for hereditary property of a

partnership, still subsisting.

At this stage of the cause, the Defei~darit, Xuddun Mohun Awasty, died, leaving

the present Respondent, Mussamat Neeut Kooer, his widow, and Chintaxnun and

Balgovind, his sons, who were minors, eo-heirs, surviving.

In support of the alleged partnership, the Plaintiff filed a sharaka~nama, or

deed of partnership, dated 11th ICatik, Sumvut 1558 (1801-2 A.D.), and produced

some accounts and letters, but no proof was given of their authenticity, or of an)--

thing to connect them with the Defendants.

An order was issued by the Provincial Court, directing that the Defendanth

should be called on for the books of their house from the year 1787 to 1807-8 A.D.

It appeared however that these books had been accidenta~ly destroyed by a fire in

the year 1810-11.

The Plaintiff presented a durkhast tendering a list of sixteen witnesses, to prove

the above deed of partnership, and also that his grandfather’s (Kyiie Sookh

Awasty~s) property was partnership property, and undivided. Of the whole of

these witnesses, the P la~n t~ f f [I171 eventually produced only three, x+ho were

examined by the Court.

On the 26th of April 1819, and subsequerstly to the examination of these wit-

nesses, the Plaintiff executed a farigli-kutti, or deed of release, and discharge of the

suit, to the Defendants, in the followiiig ftirm :-

“ Whereas, I entered an action, as a pauper, in the Patna Provincial Court, for

one-fourth share in the cash, property, etc., belonging to the house at Shahabad

alias Saheb-gunge, zilla Bahar, on an affirmation of my grandfather’s and father’#

partnership therein, and demanding that they be divided, and that 1 be put in

possession thereof, rated a t Rs. 85,135. 12., including the three-fold and eighteen-

fold malguzary and (yearly) produce of the khiraj and la-khiraj villages, against

Muddun Mohun Awasty and Sheo Churn Awasty, sons of Deokishen Amasty, son of

Sookhnundun Awasty ; and after Muddun Yohun Awasty’s death, conformably to

the revised petition, against ~ ~ s s a m a t Neeut Kooer, widow of the said deceased,

the guardian of Chintamun Awasty and Balgovind A~vasty, niinor sons of the above,

deceased, which suit is pending in the Court aforesaid. Whereas Deokishen Awasty,

the father of the Defendants aforesaid, in Suinvut 1845, during the lifetiine

of his f ather, Sookhnundun Awasty, was, together with his dependants,

separated, and had his victuals distinct from his own father and brothers,

and without receiving any share in his grandfather’s and father’s pro-

perty, came froin Futtoohabad to Saheb-gunge, where he established his

residence; and, by his own exertions, having carried on trade, and the

business of a shroff, at the said town, and conducted by himself the concerns of

the house, unparti~ipat%d by any individual, till 1847 Sumvut, from the profits

[118] thereof created and acquired the cash, property, dw~lling-~~ouses, orchards

and villages, Ivhich he possessed, unparticipated and unoccupied by any other

person, and which, after his decease, descended by inheritance to his sons, that is,

to the Defendants, and are in their possession and occupancy. In these, neither

I nor my brothers have any claim or right ; but whatever outstaiiding demands and

price for goods sold, were (due) at the time the business was carried on by Sookli-

nundun An asty and Suiiguni I d aforesaid, first at Boniad-gunge, and afternwdh

a t Saheb-gunge, till Aghun, 1817 Sumvut, and which the said Deokishen Awast?;

collected, c o I ~ f o r m a ~ ~ ~ y to a ~ o k l ~ t a r - n a ~ a nd ikrar-nama of S U I ~ ~ U I I I Lal Awasty,

out of these one-eighth share belongs to me. I have, therefore, with my own free

mill and consent settled this action aiiiong ourselves. By the terms of this settlc-

inerit, tlie wni of Rs. 2000 account, mine and inv brother Doorga Ai+a+i c.iglltll

share (after deducting Sungum Lal’s debts to the Mahajuns, and the quarter share

for the said Deokishen’s right account, his trouble, and the sliares of his other

brothers and partners), is due to me and to my brother by the D ~ f ~ n d a n t s aforesaid,

which, that is, the sum of S. Rs. 2000 in question, I have taken from the Defendaiit

aforesaid, and have received, and have appropriated and applied it to mine arid

my brother’s uses, and have relinquished and withdrawn the residue of m y claiin

in the a~ove-~ent ioned case, property, articles, cash, dwellin~-houses, orchards,

estates, or villages aforesaid, the possessions and occupancies of the father of the

644

~~U~~~ RA&I AWASTIT ‘U. SEEO CXURN AU’ASTP ~ 1 ~ 4 6 ~ Tv M ~ ~ ~ E IND. APP., 119

D e f e ~ ~ d a ~ ~ t e , and their Q W I ~ . Aid neither the ~efendai i t s aforesaid, nor their

successors, have or shall have any right, title, claini in, or litigation for, the

[119] property, articles, dwell~n~”houses, dues or orchards, etc., aFpertaining to

the town of F u t t o o ~ a b a ~ ~ etc., zilla Getwnpore, the possessions and occupancies of

myself, of my brother, and of my uncles. The costs of the Court are agreed to be

at the r e spon~~b~l i ty of the Defendants.” This instrument was signed by the AppeF

€ant, and was witnessed by three w~tnesses) named Ram Chund, otherwise Ram

Persad, Kokil Chund, and Bhoop Sing.

On the 30th of the same month, the Appellant executed an ikrar-nama, or deed

of acknowled~~en t , in the Respondents’ favour, in the following form :-

.‘ Whereas, I entered an action, as a pauper, in the Patna P r ~ v i ~ c i a ~ Court, for

the division of, and entry into, the property and estates belonging to the house a t

the town of Sha~~abad, atins S a h e ~ ~ ~ ~ g e , zilla ~ a h a ~ , agaiost ~ ~ ~ d d u n ~0~~~

Bnasty and Sheo Churn Aurasty, and, after the death of Muddun Xohun h w a ~ t ~ ,

against ~ u s s a m a t Neeut liooer, widow of the said deceased, the ~ u a r d i a n of Chin-

tamun Awasty and Bafgovind Aurasty, minor sons of the said deceased. Now I, by

my oim free will and consent, have taken Rs. 2000 as my eighth share in the dues

and price of goods sold a t the t h e the deceased Sungum La1 Awastfs business was

carried on, which were (out~ tand~ng) till Sunivut 1847, and have executed and

delivered a deed of farigti-kutti and la-dava to the said Defendants, by which a

~ a ~ i - n a ~ ~ ~ ~ i the above s u i t was effected, And the surn of Rs. 1000 has been fixed by

the Defendants as the share of the widow of my uncle Sheo Das kwasty, deceased

(who lives with me, and is without issue), out of the amount collected account the

dues and price of the goods sold aforesaid; I, therefore, E1201 engage and give in

writin5 that I will deliver in a razi-nama in my action, c o n f o r ~ a ~ ~ y to t,he above

condit~ons, to the Provincial Court, and will get a ~ a ~ ~ ~ ~ ~ - ~ ~ ~ t ~ ~ executed to tahe De-

enda ants by the widow of my uncle %eo Das Bwasty, deceased, w i t ~ ~ n two ~ ~ o n t h s ,

and deliver the same to them, at, which time I will receive the sum of Rs. 1000

aforesaid, and until I shall have got the farigh-kutti executed 137 the ~ ~ u s s a m a t

above mentioned, the Rs. 1000 in question shall remain in deposit with Ram Persad

~uhessree , ~ a h a ~ ~ i n , in~iabitant of the town of ~ h a h a b a ~ . Further, I engage aiid

give in writing, that should the widow of the deceased Sheo Das Awasty aforesaid

make hercafter any deniand what,ever on the ~ e f e ~ d a n ~ , beyond the Rs. 1000 in

question, the ansxver thereto shall rest -with me, and with this ~ r e s p o n s ~ b ~ l i t y ~ the

Defeiidants shall be whoIly u n c o ~ i i e c t ~ and u i i c ~ ) ~ i ~ e ~ r ~ e d . This writing has,

therefore, been executed as an ikrar-nama, that it rnay be of use, when required.”

In pursuance of the conditions of the firstmentioned instrument, the Defendants

paid t-he swn of Rs. 2000, which was deposited with Ram Fersad Muhessree, and

an u n d e r t ~ k ~ n ~ given bp him to hand the xnoney to the Appellant, upon the razi-

nama being delivered in. The k p p e ~ ~ a n ~ , , however, afterwards declined to deliver

in the razi-nanrla, or t o stay the proceed~ngs in the action.

The Defendants, in consequence, presented a durkhast, together with the deed

of ~ a r i ~ h - ~ u t ~ i , to the Provincial Court, stating the P l a i n t i ~ s refusal to pe~form his

part of the agreement.

On the 4th of August 1819, the plaint^^ and D e f ~ n d a ~ i t ~ were suiiii~oned before

the Provincial Court: the farigh-kutti was shown to the Plaintiff, and he was

[121] asked, ‘‘ Did you, or did you not, execute and deliver this f a r i ~ I ~ - k u t t ~ to the

Defendant B and if you did execute it, what i s the reason you do not submit a razi-

nama f I’ The ~ ~ a i z i t ~ ~ stated, ‘‘ My ~ ~ n ( ~ u v ~ s gnature, affixed t o the ~ a r i ~ ~ i - k u t t i ,

i s authentic and genuine, but the Defendant got me to sign this farigln-kutti, by a

deception : that is, the Defendants engaged that i[ should inspect, and have explained

to me, the books and accounts of S ~ ) k h K ~ ~ i i ~ d u n A~as ty’s and Sungurn La1 Awasty’~

concerns, which Deokiehen Awasty e o ~ l ~ t e ~ , receive t ~ ~ e r e f r o ~ o ~ ~ - e i ~ ~ ~ t ~ ~ share,

which i s my right, and execute and deliver him a farigh-kutti; and Sheo Churn

Awasty, one of the ~ e f e n ~ a n t ~ , said to me, ‘ Qo you, in the first place, execute

paper, stating that an accom~odation has been determjned on ; and, afterwards,

do you understand, and take whatever jour eighth share may amount to by the

accounts.

that the plain^^^^ having

acknowledged tho f a r igh -k~ t t~ , delivered in by the ~ e ~ e n d a n t ’ s vakeel, it i s de0med

unmcessary to call the witnesses to prove it ; but the P I a ~ n t ~ ~ having declared~ that

645

I will pay it you hereafter.’ 1 then signed this paper.”

Upon this reply, the Provincial Court were of opinion,

sv NOORE IND. APP., 122 ~ J N N T RAM AWASTU 8, SHEO CHURN AWASTY [l.846]

the fariglr-kutti aforesaid was exocuted on the condition that the accounts

should be explained (to him), the Court ordered two of the witnesses to the

f a r~g~~-ku t t i , Ban) Persad and Kokil Chund, to be examined, who deposed

to the due execution, and denied that any stipulation or engagement had been

made by the ~espondents to explain the books to the Appeliant.

The ease came on for hearing, on thc 6th of September 1820, before Mr. Rilliam

M’alcolnz Flerning, who delivered the following .Judgment : ‘‘ As the Plaintiff i[122]

adduces a variety of objections to the f a ~ i ~ h - k u t t i . a ~ o v e - ~ e n t ~ o n e d , which l i a ~ e

been entered at length in the proceeding of the 4th of August 1819, and as. esclusiw

of that consideration, the Plaintiff has not, taken the amount stated in the farigh-

k n t t i aforesaid, nor delivered in a razi-naina, in the usual form, the decision of this

suit, on a f a r i ~ ~ ~ - ~ u t t i of hat naxure not carried into execution, is deemed e‘i-

ceptionalsle.”

On the 26th of April 1821, the Provincial Court of Patna (Eifr. John S a ~ i d f o r ~ ~ ~

Judge,) pronounced its decree, the material portion of which was in the following

terim :-‘‘ It is adjudged that the Plaintiff’s action is liable to dismissal, for t.uio

reasons ; tlie first is as follows :---that the Plaintiff aforesaid made an adjustment

a i c l i the Defendants. and took the sum of Rs. 2000, his own share, and euecuted

and delivered to the Defendants the aforesaid farigh-kutti; and that he acknon-

Ledged the farigh-kutti in this Court. As ta his demur, that the deed i t1 ~ u [ I s t ~ o ~ ~

vas on (bondition of the explanation (to him) of the accounts and books of the concern

of S ~ ~ o ~ ~ r ~ ~ u ~ d u n Awasty and S u n ~ i i ~ La1 Awasty, this point is in no shape proved,

inasmuch as there is no condition whatever entcired therein. On tlie contrary, it I S

stated that they made an adjustnient among themselves, regarding the lulina price

of property sold, and the rest of ~ o o l ~ l ~ n u i ~ d u ~ ~ Awaaty’s and Sunguin La1 Bwasty’r

concern, and that, by the ad~ustment, the sum of Rs. 2000 was found due, account

h i s (the Plaintiff’s) eighth share, and that he had received it from the Defendants ;

110~‘. froiri the depositions of the witnesses, entered in the margin (of the deed). does

it appear that there was any condition and verbal engagenient regarding an ek-

plaaaticm of the accounts. Thus, E1231 such exceptions, on the part of the Plaintiff,

are ii~ac~rt~issil~le By the Court. Now, notw~~l i s tand~ng all these facts, arid his

liarlug received the money, the Plaintiff’s excepting against the farigh-kutti o ~ i an

idfe pretex?, is manifestly a fraud.”

It wa\ therefore ordered,--~hat the P l a i r ~ t i ~ s claim be dismissed, and that he

pay the whole costs of suit ; and, in the event of his property being to be found. that

it he l i~~uidated tlieref~oni.

‘Ctre Appellant presented a petition of appeal, in forma pattperis, to tlie Suddckr

I )e17 army hdamlut of Bengal.

The Appeal was set down, in tlie first iristance, for lreariiig befoie Mr. Courtney

Smith, the Second Judge, who recorded iris opinion, that the claim of the Appellaii~

for a fourtli share was untenable, inasmuch as i f his claim was just and well-founde4,

lie was only ~ ~ t ~ ~ ~ ~ ~ d to a sixteenth share in the ~ a r t n e r s ~ ~ p concern, and that the

deeree of the Provincial Court ought to be annulled. and the A p ~ e ~ l a n t declared

entitled t o rtlceire froin the Respondents, without interest on the wasilat, the sun1 of

lis. 19,764. IS., as well as entry into a sixteenth share of the real estate; and then lie

t d c r rd that the papers be laid before the sitting of another Judge.

The proceedings were then laid before Mr. John Herbert Earrington, the Acting

Senior Judge, hy ~ l t o ~ n the cause was heard ; he recorded his op~nion as follows :--

‘I The hppellarit’s claim against the Respondents, for more than the Bs. 2000,

a d ~ i t ~ e d by the Respondents, is not, in my opinion, proved and e s t a ~ l ~ s ~ i e d , for the

follomirrg reasons :-1st. The sharakat-nama, dated the 11th Ratik, SuxI1vut. 1858,

or 1st ?\‘overriber 1801, filed by the Appellant, in the Provincial Court, is [I241

without signature, nor has it, in any shape, been established; but even had it been

proved, adverting to the failure of the houses, as stated therein, in S u t ~ ~ v ~ ~ t aforesaid,

a paper of this nature cannot be a substantial and valid plea in proof of tlie

~ppellant’s par t~ersh ip in the house of S a ~ ~ e ~ ~ ~ u l l g e , which was upen in Sunlrut

1859, in the firm of Sheo Churn and ~ u d d u n Mohun, and is to this day carried on

in their names. Xor has the partnership of the Appellant’s father, and of the

~ ~ ~ p e ~ l a n t himself, in the said house, from the time it was opened, in 1889 Sumvut

aforesaid, till the institution of this suit, in January 1815, been $atisfac~orily proved

bs any other document or depositions of witnesses. 2nd. Adverting to the above

646

~ u N ~ ~ RAM AWASTY 21. SNEO CHURN AWASTY [1846] IT ~ o o ~ IND. UP., 1%

~ ~ a t e ~ k ~ e ~ I r , and to the period of twelve years, which i s the term fixed by cl. 1 4 ,

ReguIa~~on 111. of 1793, for the l i e a r i n ~ of suits of this nature, the Appellai~t~s claim

from the length of time which had elapsed, was not eligible to hearing ; and had

the ~ e s ~ ~ o ~ ~ d ~ n t s not agreed to pay the sum of Rs. 2000 (account of the share in thr

IUEkno, etc., property belonging to the house in pai.t~iersliip at Sahe~~-g~~nge , t i l l

Sunirut 1847, diich was carried on in the firm of S ~ k ~ i n u n d u n a i d ~ u K i g u ~ h l ,

and the luhna and property of which was collected by ~ e o k ~ s ~ e n , the predecesmr of

tlie Respondents, conformably to a makhtar-narrm, of Sungum Lal), the Appellant’s

action vas, pursuant to the Rrgulation aforesaid, subject to rejection in toto, and

would liave heen d i s ~ ~ ~ ~ s e d ; hut as the 1~espo~idents, notwithstandiii~ the Appel-

lant receded from settliag this suit, for the sun1 of Rs. 2000, accord~ng to the farigh-

kutti and ikrar-nama, signed by the A ~ ~ p e l I a n ~ ~ dated the 26th and 30th of Apr i l

1819, have a ~ ~ n o ~ ~ , l e d ~ e d the said sum to be justly due from them to the A p ~ e l l a ~ ~ ~ ~

account his share in the luhna [I251 in parinership aforesaid,-for that reason tbs

causing the ~ c s ~ O n d e n t s to pay that sum to the Appellant is, in the decision of this

wit, just, From the contents of the farigh-kutt~ aforesaid, it. appears that, i n case

this suit sliould be settled by the delivering in of a rai-nama, on the part of the

A p p e l ~ a ~ ~ r , the ~~espondents consented to pay the costs of suit independent of the

Ks. 2000 aforesaid. But as the - ~ i ~ p e ~ l a n t has not delivered in a razi-nama, and

that d i s ~ J ~ I t e ~ arid heavy chargm, account fees to vakeels, etc., in the ~ r o ~ ~ i n c i a ~

Court, and in rhis Adawlut, liave been also ther&y occasioned ; therefore, the costs

of lmth parties in this are not, according to the f a r ~ ~ ~ ~ - k u t t , i , justly payable by the

Iiespondent. Conformably to the &qgdations and the usual fornis, i t becarries

iiecessar~ that (with the exception of the regular costs on th. Rs. 2000 out of the

~ p ~ ~ ~ ~ l ~ ~ ~ ~ ’ s claim, which, by the above e ~ p o ~ i t ~ o ~ ~ , is due from the ~ e ~ ~ ~ ~ d e r ~ r s )

the ~ e ~ ~ ~ a i n i ~ ~ costs of both parties, account of the residue of the ~ ~ ) ~ e l ~ a n t ’ s claim

which has not heen e ~ t a ~ ~ ~ i s h e d , be paid from the Appe~lant~s property, provided

it can be met with ; and until the property of the Appellant shall be found (who has

entered this prosecutioi~ and appeal, in [ o ~ m ~ ~ ~ ~ ? ~ ~ s ~ , the one half of the fees of

the ~es i~onde~ i t s ’ vakeels be paid them by the Respondents. Adverting to the

clifferenct, heri*icen my opinion and that of the Second Judge of this Court, the sitting

of another Judge of this Court for a decision and conclusive order in this case

ir ~ ~ ~ d ~ s p ~ ~ i s ~ l ~ ~ e . Ordered, t e r e f o r e , - ~ ~ ~ a t the whole of tlie papers, together wit11

the present i ~ r ~ ~ , e e d ~ n g , be ~ ~ r o u ~ ~ i t forward at a sitting of another Judge of this

Court.)’

The ~ r o ~ ~ e d ~ n g s were then b r o u ~ ~ ~ ~ before Mr. Cutlibart ~ h o r i ~ h i l ~ Sealy, ~ 7 1 1 0

directed a reference to the [I261 Provinrial Court, to take the evidence of Bhoop

Shg, the third attesting witness to the f a ~ ~ ~ h - k u t t ~ , and who had not been e ~ a ~ n ~ n ~ d

as TO the due execution of the ~ n s ~ r u ~ i ~ e r ~ t , and the ~ ~ a t e ~ i ~ ~ i t at the t i m e of irs

excution, of any a g r e e ~ ~ e n t or stipulation, as alleged by the AppelIant,,

This witness was a c [ ~ o r d ~ n g l ~ e ~ a n ~ i ~ ~ e d . Wis evidence ~ o 1 ~ ~ r ~ ~ 3 ~ d the other

a ~ t ~ s t i n ~ vitnesses, before eraniind, snd negatived any- such agreement or stipii-

lation iiai-ing ever been made.

On the Wth of Noveniber 1826, Mr. Cuthbert 1’. Sealy recorded his opinion, arid

niade h i s filial decree in the suit, ~ ~ o n c ~ r r i n ~ wit11 the reasons of tlie A

Judge. and declared that i t appeared to him, that t h * A f a r ~ ~ ~ ~ - k u t t i ancl

eflant, dated the 26th and 30th of April 1819, were in every point

Iy ~ ~ ~ ~ ~ t a i i t ~ ~ t e d , and {ha the ~p~)e l l an t ’ s cIaim, beyond its. ZOO<).

a d i ~ ~ i ~ ~ e ~ ~ Iry die ~ e s ~ ~ ~ ~ ~ d e i i r ~ , was in no shape proved ; therefore, as his opiniot~

~ i i ~ ~ r e s p o ~ i ( ~ ~ ~ d and concurred with the opinion of the Acting Senior Judge of tllr

Court, a ooclcluliive order and decree was passed, and the fysala of the I’atna Pt-2

vincial Court, dated the 26th of April 1821, directed to be modified, in the foilowiiig

nmX1Tlcl’ : ’‘ That the Appellant’s e l a h to the amount of Rs. 2000; a b i t t e d by

~ e ~ ~ o ~ d ~ t ~ ~ s . be a ~ - a r d ~ d ; that the residue of the Ap~e11~nt.s claim, which has UT

b e n proved, be dis~nissed and rejected ; that costs propori~oi~ate o the Its. 2000

aforesaid he payable by the Respo~de~~t s , and the remaining costs of the partieh,

account the residue of tha ~ppel lan i ‘8 claim, be entered a t the Ap~e~lant ’s r,isponni-

bility ; chat for the present, in consequence of the A p p ~ ~ ~ a n t ’ s pauperism, out of the

fees 0x1 the r~esp~~)dents ’ E1271 part, which are deposited in tlie treasury of this

Court. half be paid to the vakeels, and the other half, on the Bespondents ftirnishirig

647

IV MOORE IND. APP., 128 MUNNI RAM AWASTY ‘U. SHE0 CHURN AWASTY [1846]

the receipt, be repaid to them, and that in the event of the Appellant’s property

being found, the whole of the costs be paid therefrom.”

The Appellant applied for leave to Appeal from the above decree, in f o r m

pauperis, pursuant to cl. 6, Reg. XXVII. of 1814, which was allowed. The Appcal

now came on for hearing.

Mr. Buller, Q.C., Mr. Jackson, and Mr. Forsyth, for the Appellant.-By the

Jliiidoo law, the prima facie supposition is, that every Hindoo family is an undivided

family, Strange’s Hindoo Law, 225 (2nd edit.), and the onus lies upon those who

claim a separate estate, to prove that i t was separately acquired. Dhurnz Das

Pandey v. Mussumat Shama Soondri Dibenh (3 Moore’s Ind. App. Cases, 229). In

this case, the hereditary partnership in the house a t Shahabad is sufficiently proved.

The Court below made no decision on the merits, but proceeded entirely upon the

deeds of farigh-kutti and ikrar-nama. These deeds, not having heen followed up

by a razi-nama, cannot be held to be conclusive against the claim of the Appellant,

and so it was held, in the first instance, by Mr. Fleniing, in the Provincial Court. The

farigh-kutti was but an escrow, which was to take effect upon a certain condition

to be performed, namely, the production of the books and accounts of Sookhnundun

and Sungum La1 Awasty. The farigh-kutti was conditional and imperfect, and

incapable of being carried into execution. Mehunt Ramper-[l28]-shaud v. Mehunt

Odaumgir (1 Ben. Sud. Dew. Rep., 188). The Bengal Regulations of Limitation do

not apply to this case, as the cause of action does not arise until the property is

divided. Admitting the validity and conclusiveness of the deed of farigh-kutti, the

decree is erroneous, inasniuch as i t does not give the Appellant the costs of suit,

up to the date of that deed, as well as the proportion of costs since that date, on the

sum due to him under the farigh-kutti.

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

dents.-The Appellant is bound by the farigh-kutti executed by him, the sanie being

for a valuable consideration. There is no ground for disputing the validity and

effect of that instrument. The claim made by the Appellant was absolutely barred

by the Bengal Regulations of Limitationb. 111. of 1793, and 11. of 1805. He had

no right or title either in himself, or his ancestors, to share in the proceeds of the

banking business, carried on by Muddun Mohun Awasty and Sheo Churn Awasty.

Lord Langda1e.-This is an Appeal from the Sudder Dewanny Court, in a suit in

which the Appellant was the Plaintiff, in the Provincial Court of Patna. He alleged

himself to be one of a numerous family, which had not been divided, or in any way

separated. He claimed to be entitled to a certain share, of what he stated to be the

common and undivided property of the family. The plaint was filed so long ago

as the month of January 1515. The answer put in by the Defendants, (the now Re-

spondents,) to that action, contained a denial [I291 of the Plaintiff’s right. A

replication and rejoinder was filed, the parties proceeded to the examination of

witnesses, and two were examined on the part of the Plaintiff, and one on the part

of the Defendant. There had been directions given f o r the production of some

documents, which however were not produced, in consequence of their having been,

as was alleged, lost, or destroyed by fire.

It was in that state of things, that a proposal for a compromise seems to have been

made. It does not distinctly appear from whom that first proceeded, nor is it in

any degree material: it came to a conclusion in the month of April 1819. It does

not appear to have been entered into with any haste or precipitation; on the

contrary, sufficient time was taken for deliberation, the time which was asked for

by the Plaintiff himself, in order that he might choose what he considered a

lucky day, for the completion of this assignment to him; but on the 26th and 30th

of April, he signed two documents, one of which is called a farigh-kutti, the other

an ikrar-nama. In the farigh-kutti, after the introduction, which does not appear

to be material to be stattd at length, he says, “ I have, therefore, with my own free

will and consent, settled this action among ourselves: ” by the terms of this settle-

ment, the sum of Rs. 2000 ‘‘ account, mine and my brother Doorga Awasty’s eighth

share (after deducting Sungum Lal’s debts, etc), is due to me and to my brother,

by the Defendants aforesaid, which (that is, the sum of Rs. 2000, in question) I have

taken from the Defendants aforesaid, and have received, and have appropriatrd and

648

XUNNI RAX .&WASTY 2). SfIEO CHURN AWASTY [l846] IV NOORE IND, APP., 130

applied it to urine and my brother’s uses, and have relinquis~ied and aithdraw 11 tlie

residue of mp claim in the a~ove-mentioned case, e% j and neither the ~ ) e f e n ~ a i ~ t s

aforesaid, nor their [130] successors, have, or shall have, any right, title, claim

in, or l i t i ga t io~~ for, the pr:perty, articles, etc., the possessions and occupancies of

myself, of my brother, and of my uncles, The costs of the Court are agreed to Be a t

the responsibili~y of the Defendants.” On the 30th of April, he executed the other

ii~struIiient, called an ~ k r a r - n a ~ a ; nd there he stated, ” Wliereas I entered an

action as a pauper in the Patna Provincial Court, fox the division of, and entry into,

t he property and estates belonging to the house a t the town of Shahabad, alias Saheb

Gunge, Zillah Bal-rar, against Muddun Mohun Awasty aiid She0 Churn Awast>-, aiid

after the death of ~ u d d u n hlohuxi Awasty against Mussui~at Neeut Kooer, xsidou;

of the said deceased, the guardian of Chintatnun Awasty, and Balgovind, nlinor sons

of the said deceased. Now I, of my own free will and consent, have taken Ns.

2000, as my eighth share in the dues and price of goods.sold at the time ttie deceased

Sungum La1 Awasty’s business wau carried on, etc., arid the sum of Rs. 1000 has I)eeii

fixed by the ~ e f e ~ ~ d a ~ i t s , as the share of the widow of my brother, Sheo Ram hx asty,

deceased, (who lives with me, and is witliout issue,) out of the amount collected, the

account, the dues and price of the goods sold aforesaid; I, therefore, engage and 6ii-e

in writing, that I will deliver in a r a ~ i - ~ a i ~ a , in my action, conforn~a~1~- tu tlie

above conditions, to the Provincial Court, and will get a farigh-kutti esecuted

to the Defenda~~ts, by the widow of my iincle She# Das Awasty, deceased, withirk two

months, and deliver the same to them, at which time I will receive the sum of

Hs. 1000, aforesaid, and until I shall have got the farigh-kutti executed, bp the

Muswarnat above mentioned, the Rs. 1000 in question shall remain an deposit wit11

Rani Persad Muhassere.”

[I311 Now taking these two instruments together (which were coi~te~~rporaireoua),

they anrount to a decided agreement for the settlemexrt of this action ; by that agTee-

inent, Ex. 2000 were to be paid to the Plaintiff, and he signed a receipt upon it-

*‘ 1 have received Rs. 2000 ; ” and the same instrument says, ‘’ I engage and give in

mitiug, that I will deliver in the razi-nmna.” Two things, therefore, seem to be

understood by this i i i s t ru~~ie i~ t : one is, a r e l i n q u i s ~ e n t of the claim made in the

suit, and the other an engagement to deliver in a razi-nama; and this was in COII-

\ideration of the Rs. 2000. The Ea. 2000 were f o r t ~ i c o m i ~ ~ ~ from that moment : LUG

at the time that this farigh-kutti was executed, there was something else to be done,

for both these i ~ ~ t r u ~ ~ ~ e ~ ~ t s were executed out of Court, they were not instrumeuts to

be detivercd to the kazi, to put an end to the cause, and, therefore, it is stipulated,

that, in addition to the former instruiiieiits, the PlaintifT should give in a radi-

llama, eipressing his satisfaction on record j and while that was pending, it would

iiot Iiave been prudent to give over the Rs. 2000, or to give security for the payiuerit

thereof. ff’ltat was done, which was the natural course of proceeding, was this:

the Its. 2000 were not to be paid over, because the razi-nania had not been delivered

but the ~ ~ l a i n t i ~ was not to be left ~ ~ i t ~ ~ o ~ i t some security, and, therefore, he had

delivered to hini a sort of note, or bond for the execution of these instrurneiits,

leaving the razi-nania to be delivered on the part of the Plaintiff.

Upon trhis, ~ ~ a t t e r s appear to have ended, and thus remained down to the time

\then the dispute arose, no razi-nama having been delivered in. The PIaintiff’ ill-

sisted that he was in J ~ O respect bound by the farigh-[l3~]-kutti, or deed of relra\e,

because it had been obtained by fraud, and lie alleged some circu~~stanees. by nli1ct1

fraud was to be inferred. One of those was, that it had not been properly sealed by

tlie kasi : tbere were several other things more particulai.ly mention~d :o11e of tlleiii,

to which the greatest weight seems to have been attached, is that, cotemporary \.iitlr

these instruments, there had been another agreement entered into bet-cceell the

parties, that notwithstanding the statement, of the specific sum of Rs. 2000, I ~ ~ C I I -

tioned three times over in the f a r i ~ ~ ~ - k u t t i , and also in the ikrar-nama, as giver1 bp

the Plaintiff, it was not intended that he should be bound by that sunk, but that t i le re

qhould be an account taken of what might be due to him, upon the foot^^^^ of j ~ i ~

original claim ; and this w m alleged by hiin in the Court below as the reagozl ~ t h v he

should not be bound by the ikrar-nama.

Now we have attended to this matter, with a11 the care we could, aod to -cvhat }ias

been stated by ttie learned Counsel, and we have looked through all the papers : blrt

P.C. VII. 649 210

Iv MOORE m. u p . , 133 mmm RAM A w m w 2%. smo CHuRx A w A m x pwq

tvt! cannot tiiid the s l ~ ~ ~ ~ t ~ t evidence, that there over was any such agrectiieut. The

Plaintiff’s witnesses were cross-e~anii~~ed or1 the subject, but they wholly denied the

existence of suclr. an agree~ner~t, or ~ i ~ ~ d e r ~ t a ~ ~ d ~ i ~ g : so much credit Fas Itowerer

ob ta~i~ed for the statement, that it produced a great deal of I ~ t i g a t i o ~ ~ ; and *lie

Plaintiff even obtained a decision, that this instrument was not to be considered

sufficient to stop the proceedings. It appears to their Lordships that that decisioii

is very ex t r ao rd~~~ary . We should not hare adve&ed to it at all, if the ~ o u n s e l for

t h e Appellant had not done so : and with great reaso~ablei~ess on their part, because

they wish to avail themselves of e v e r y t ~ ~ i ~ ~ g they can, they say, here we have the

~ u d ~ - ~ l ~ ] - ~ ~ i e n t of Mr. Flerning in our favour, upon this point ; he did iiot consider

that the farig~~-kutti was binding.

Be refers to the

former proceedings, and to the exainination of the witnesses, and then he says, ‘‘ As

the ~ l a i n t ~ ~ adduces a variety of o b j ~ t ~ o n s to the f a r i~h -ku t t~ , abo.r.e-meritioiied.

whicli have been entered a t length in the proceedings of the 4th of August 1819,”---

there is not a word about this having beers proved,-‘i and as exclusive of that con-

s~dera~~on,”-that is, the cons idera t~o~ of the Plaintiff a d d u c ~ i ~ ~ The

~ ’ I a ~ ~ ~ t i ~ has itot taken the a ~ n o u i ~ t ~ stated in tlie f a r i~ l i -~u t t i , aforesaid,”-not i n

the least s t a ~ ~ r i ~ tlie reason why he did not take it, or ~ o ~ ~ s i d e r i n g whether it might,

or might I ~ T , have been his own fault that he had not got it,-“ nor delivered in a

razi-nanra in the usual form,”---he had not done that which he had co~,enai~ted to

do.---(‘the decision o f this sui t on a f a r ~ g h - ~ u t t i of that nature not carried into

execution is deemed exceptionable.” This opinion amounts to this, that because tlte

~ I a i I ~ t ~ f f has egtercd into an e n ~ a ~ e n ~ e ~ ~ t , which he does not like to perform, he is,

therefore, not bound to perform it. Their i,ordships cannot see thRt there is any

weight to be attached to a decision founded upon such reasons.

The matter, however, vent forward in consequence of this decision, and tfie pro-

ceedings were after~.ards laid before Mr. John Sai~dford, whert tlie ~ I ~ i n t ~ f f s clainr

was ~ ~ i ~ ~ ~ s s e d , and h was ordered to pay the whole costs of the suit.

‘l%ere were then other proceediI~~s before Mr. Courtney Smitli, who seemed to

have formed a more f a ~ o u r a ~ ~ e opinion of the validity of the i r i s t r u ~ ~ ~ e ~ ~ t , and then

the case went before Mr. ~ a r r i i i ~ t o i ~ , and af te rw~rds f1%J before &Ir. Sealy : a i d

it. strikes us as a conclusive fact, that Mr. ~ a r ~ ~ ~ i ~ t o x ~ , after having exanxilied a11

ht that the ~e€e I ida~ i t s had not made out any case, iiidepei~dent

It is riot necessary fur us to consider that point, because we

think that the case is conclu~ed by tlte f a r ~ ~ ~ ~ - ~ u t t i , and that nrithout reference tu

the evidence of Rhoop Sing, which witli great ingenuity i s sfio.rviz to be erroneous :

but looking nierely to the other evidence, with the inferences which are uecessarilp

to be drawn from it, there is not the s1ighter;t su~gestion, that the P ~ a i i ~ t ~ ~ might not

have had his money from the first niomeut after the execution of the fariglt-kutti :

it was there ready for him. There was an act to be done by him, to entitle IiiInseIf

to it, viz., by the giviug in the razi-nania, and that act he never did : but be cannot

avail h ~ ~ s e l f of his own neglect. E t a~pea r s , therefore, to their ~ o r d s h i ~ s , that so

far as relates to the dimissal of this plaint, the decree was perfectly correct.

The farigh-kutti contains the clause,

which has been so often referred to-“ The costs of the Coui-t are agreed to be a t the

r e s p o ~ ~ s i l ~ i l i t ~ of tfie ~efex~dar!ts ; ” therefore, if the Plaintiff liad ~ e r f o ~ ~ i e d his

duty according to liis engagement, in entering up a razi-nama, and had tliert

received title Rs. 2000, he would have received tliose Re. 2000, quite free froui any

charge of costs, and the ~ ~ e f e i ~ d a n t s would have had to pap the costs beion7 ; but it

does not follow that the ~ e ~ e n d a I s t s would be res~ons ib~e for all the costs, n41iclt vert,

afterwards incurred, in consequence of the unsuccessful aiid apparently most urtj ust,

~ i t i g a t ~ o I ~ , in reference to the p l a i ~ ~ t ~ f f ’ s claim, and which he instituted and carried

on, for the purpose of freeing himself from the obligation [1S] eiitered into by the

farigh-kutti. There seems to be no reason at all for that, unless bv h i s suing as a

pauper he ought not to be subject to any costs. But he was not strictly wing as a

pauper, for it cannot fail to strike us, as subject to some question, l ~ ~ k ~ i ~ ~ to thehe

proceedings, the propriety of Ills beiirg allowed to sue, G t fomtA ~ x i t p ~ i ~ . 11 ap.

pears, by this f a r i ~ l i - ~ u t t i , that he had some property. It appears. further. that.

that property had been made subject to attacl~~~ient. and had been ac tua l l~ attached ;

650‘

Xow what are the reasons which Ite gives for that opinion?

There arises a question as to the costs.

REWUlU PERSAD II. h~USSUMAT RADHA HEEBY E18461 IV MOORE IND. APP., 136

there was real property, and there was property in deposit, property which was

attached after the decree was pronounced.

Although, therefore, the Appellant lias declared Iiimself a pauper, he is, in fact,

not a pauper ; and notwit~istandin~ he possessed property in dwelliii~-~ouses, and

houses, and has had in deposit Rs. 2000, piith Tarn Chund and Utna Ram, he has

snorn that he is a pauper. The Plaintiff is proved to have Rs. 2000, and he is

shown to have other property, because tliere has been an attachment issued. The

order which is made upon that, is only material for the purpose of showing, that i n

this case there was no attempt to make him personally liable to tlie payment of tlie

costs, but oiily out of this property. The order is, “ that tlie Judge is to be careful to

issue the decree of this Court, and to obtain paynierit of the sum of Rs. 2000, entered

in the Teep, from Ram Persad, Mahajun. Moreover if, conformably to the re spot^-

dents’ stateI~iei~t, any other property Sbelongiiig to the Appellant, in the town of

F~~ttoohabad, may have been attached, or xnay now be obtained, by the Respondents

pointing it out, the same be sold by public sale, and therefrom paying the Kespon-

dents the sum of Rs. 39.1. 1. 18. 3., costs of this Court, and also the costs of the Pro-

B inc i al Court.”

Now that sum of Rs. 394, the sum which appears [I361 as coming for costs after

the Defendant’s former amount, has been paid, by the arran~einent pursuant to the

decree, which is appealed from. Whetlier i t was intended to include it in tlie

Rs. 2000, the property in question, amongst the property out of whicli the Rs. 394

were to be paid, does not seem at all to be material, for the result at which their

Lordships think they ought to arrive, is, that the costs which are ordered to be paid

after this litigation, are costs to be paid out of the property: therefore, we think

there is no inconsistency in doing so in this particular case.

Their Lordships, therefore, will report to Her Majesty, that, in their opinion.

this Appeal must he dismissed.

There is one observation now arising, upon which their Lordships are ready to

hear any information which can be given to them by Counsel. Leave x-as granted by

the Sudder Court, to appeal, inform6 pat4cperi-q. It does not appear that there has

been any order, in this country, authorising him to sue, in form& pauperis.

Mr. Moore.-In appeals from the colonies, it is the practice to apply by Petitio11

here, for leave to prosecute the Appeal, inz foirnci pauperis. ~ r o ~ ~ a r ~ v. fhimn-

vesgue (3 Aloore’s P.C. Cases, 451). A different practice, however, prevails in caseu

where the Appeal is prosecuted by the East India Company, under an Order i r i

Council, made in virtue of the Act, 3 ancl 4 Will. IV., c. 41, sec. 22. An Appeal being

allowed by the Sudder Court, in India, iia f o ~ r n d pauperis, pursuaiit to Ben. Rep.

SSVIII. of 1814, the Appeal is prosecuted without any order being made here. Rany

S r i m ~ t t y Dibinh v. Rn71y Koortd Ltitn (2nd Dec. 1847).

[137’j R E W N PERSAD,-AppeUamf ; M‘FXSrti‘MAT RADHA BEEBT,-

Respondent * [Dec. 3 and 5 , 18461.

(In Appeal front the ~ ~ ~ ~ ~ e ~ , Derc rozny f?owt crf ~ ~ ~ ~ z ~ ~ ~ ~ ~ i ~ ~ , ia Nengctl.

Effect given to an instrument, in the nature of a testamentary disposition, made

by a Bindoo, domiciled in the North-West I’rovinces of Bengal.

By this instrument, the Testator gavo his widow a life estate, in all his property.

and after her decease he gave a moiety thereof to his brother B., arid !lis son&.

C. and D. B. and C . died in the lifetime of the tenant for life. C . and D.

were divided brothers. Held by the Judicial

Conimi t tee,---

I. That C. and D. took vested interests ia the nioietp, as tenants in comnioit.

* Present : Members of the Judicial Conimittee,-Lord Brougtiam, Lard Lang-

Pr ivp Councillors,-dssessors,-S~r E. H. East, Bart., and Sir E. Rpan, Knt,

65 1

C.’a widow claimed his share.

-- _ _ - - ~ -

dale, the Right Hon. Dr. Imihington, and the Right Hon. T. Peiirberton h i g h .