Rany Srimuty Dibeah v. Rany Koond Luta, and Rany Rung Luta, and Others (India)

IV MOORE INB. ARP., 290 BANY s ~ ~ ~ u T ~ DIBEAH v, RANY K O O ~ LUTA [1847]

in this family, the Mythila law, or the Rcngal Iaw, prevailed; and he was E2901

clearly of opinion, that the Mythila law prevailed, and confirmed the opinion of the

first Judge, and the decision was finally pronounced.

Now, it is admitted, that it is utterly impossible for any European Court to

neigh, very nicely, the effect of evidence of this kind, as to particular ceremonies,

and the weight which is to be due to those particular ceremonies, as estabKishin~ the

fact of OKE law prevailing, or the other, and, therefore, the learned Counsel at the

bar have, very naturally and very properly, abstained from going into any minute

examination of the evidence, upon this point. The question, therefore, for US, is,

i s there evidence before us, which shows that the opinion which was come to, after

repeated investig~tion, and after taking the opiiiions of the various law-officers of

the Courts, all of them concurring in the same conclusion, is an opinion by which we

should be guided S

Now, certainly, so fa r from there being anything in the Pacts, now before us,

which is inconsistent with this, the most important fact appears to us to be consistent

.with it. On the death of Sobhe Sing, Pohput Sing, and Rung La1 Sing, being his

sons, became joint proprietors, and entered into ~ossessio1~ of this estate. Pohput

Sing died, leaving a widow, and, accordirig to the Bengal law, the widow of Pohput

Sing would have been entitled, under these circumstances, to succeed to the share of

Pohput Sing, her deceased husband, for her life. And, certainly it was understood,

from the original statement of the case, that, upon the death of Pohput Sing, she did

so succeed to her husband‘s share, and that she caiiie into possession of the other

half of the estate, upon the death-of Rung La1 Sing. But the evidence upon ex-

amination, turns out to be quite the reverse; [291] for it is clear that Rung La1

Sing, upon the death of Pohput Sing, presented a petition, stating his title, as a

title to the whole estate, and that he was let into possession of it, and that she was

entitled to maintenance out of it, according to the ~ ~ h i ~ a law, and that that main-

terrance was preserved to her.

Again, upon the death of Rung La1 Sing, the Appellant herself presented a

petition, and she claimed, as successor under the Will, the whole of the property of

Rung I d Sing. It seenis, therefore, clear, that upon the death of Pohput Sing,

and upon the death of Rung La1 Sing, the succession was regulated by the Mythila

law, and not by the Bengal law. That was entirely in accordance with the result to

which, after an eKan~~nation of the whole of the evidence, the Court below has come,

and we are of opinion that that decree is perfectly right, and, therefore, that it must

be affirmed, and with costs.

Lord Nroughan1.-It is impossible to praise too highly the great care which the

Court below appears to have taken, in obtain~ng the best possible i I ~ ~ o r m a t , i o ~ ~ upon

the subject, a somewhat nice and intricate subject, of the customs and ceranonies

governiiig: this case. There were three or four separate inquiries, giving the

parties the fullest opportunity of suggest~r~g questions, and directing further in-

quiry, when the reports were not sufficiently decisive; and it was found that the

parties were quite satisfied with the nature of the questions that were laid before

the Pundits. I never saw a case better sifted than the present, and it certainly

affords tbis Court great confidence in coming to the decision which it has now

pronounced.

. - _- _lll__ .

[292] RANI’ SRIMUTY DIBEAH,-AppeZZant ; RANY KOOND LUTA, arid RANY

RUNG LUTA, and Others,-Respadents * [Dec. 2, 3, 18471.

On Appea.3 fiain the Su&er ~ ~ ~ n q ~ ~ Adadict at Bertgaf.

Upon a claim to the inheritance of a Zemindary, situate in idn nap ore, which

Present : Members of the Judicial Committee,-Lord Brougham, Lord Lang-

d‘ile, Lord Campbell, the Right Hon. Dr, Lushington, and the Right Hon. T Pem-

bertort Leigh,

710

__--- .___”_ ~ 1 1 1 ~ 1 111 - --

Privv Councillor,-Asses~or,-~ir E. Rysn, Knt. .

RANY SRIMUTY DIBEAH 25. RANY KOOND LUTA [1847] IV IEOORE INI). APP., 293

had been in posse~ion, for a long period anterior to the institution of tha

suit, by a family of Sutgop Brahmins, who had migrated from Bengal to

Midnapore, but had retained their laws and performed their. religious cere-

nionies according to the Daya-bhaga and other authorities in force in Bengal.

It was held, by the Judicial Coiurnittee, affirming the judgment of the Sudder

Court, that the Daya-bhaga Sastras inust govern the descent, and not the

Mitacshara, which prevailed in Midnapore [4 Moo. Ind. App. 320, 3211.

.A deed of gif t of the Zernindary, to a stranger, by the widow of the Zeniindar,

last seised, who died without issue, which gift was made with the con-

firmation of the Bandhus, the mother’s brother’s sons, the heirs: Held to

be valid by the Daya-bhaga Sastras, as against a party claiming the succes-

sion, according to the Mitacshara, as being descended, in the seventh remove,

in the male line, from the conimon ancestor.

The Appellant in this appeal was the widow and representative of Kundurp

Sing, the urigiiral Plaintiff, who died pendiiig a suit instituted by him, to establish

the right to Sour pergunnas, named Midnapore, Dhakea-Bazar Monohur, Gurh, and

Tuppa Bahndurpore. constituting a Zemindary, situate in Zillali Midnapore, in the

Presidency of Bengal. The Respondents, Rany Koond Luta and Rany Rung Luta,

were the surviving widows and representatives of Raja Mohun La1 Khan, one of the

original Defendants, who also died pending the suit. Kundurp Sing, the original

Plaintiff, claimed [293] the Zemindary under an ikrar-potta, or declaratory instru-

iuent, alleged t o have been executed by Ranp Seeromany, the widow of Raja Ajeet

Sing, the Zemindary last seised, by which she constituted Kundurp Sing the pro-

prietor of the Zemindary. Be also claimed, by hereditary right, the Zernindary, as

the lineal heir male, in the seventh remove, of Raja Ajeet Sing, according to the

Mitacshara and other authorities current in Orissa, which law, he contended,

governed the right of succession to the deceased Raja’s estate.

Raja Ajeet Sing died, in 1755, without issue, leaving Rany Bhowany, and Rany

Seeromany, his widows, surviving, who succeeded to the Zemindary, and held joint

possession thereof till Rany Bhowany’s death, in the year 1757: from that period

Rany Seeromany continued in sole possession of the Zemindary.

On the 1st of July 1800, Rany Seeromany executed a deed of gift of the

Zemindary in favour of Anund La1 Khan, the brother of Mohun La1 Khan, who, by

virtue thereof, entered into possesaion of the Zemindary and the other property of

the Rany.

In the pear 1802, Roop Churn Mahapatur and Mussumat Kownla, alleging

themselves to be heirs of the deceased, Raja Ajeet Sing, instituted a suit in the

Zillah Court of Midnapore, against Anund La1 Khan and Rany Seeromany, to annul

the gift of the Zemindary. In this suit the Rany and Anund La1 Khan put in a joint

answer to the plaint, in which the Rany admitted and maintained the donation to

Anuiid La1 Khan.

On the 24th of September 1806, Rariy SeeronIany brought a suit, && f o r d

p a a p w t s , in the Zillsh Court of Midnapore, against Anund La1 Khan and others,

to [294] set aside the deed of gift executed by her, and to recover possession of the

Zemirrdary. The Plaintiff was nonsuited, on the ground of misjoinder, leave

being reserved to her to bring a suit against Anund La1 Khan alone, for recovery of

the Zemindary.

In pursuance of the leave thus given, the Rany instituted a second suit, in the

Zillah Court, against Anund La1 Khan alone, and Anund La1 Khan put in his

answer: but before the cause came on for hearing, the proceedings were trans-

ferred, agreeably to Reg. XIII. of 1808, to the Provincial Court of Calcutta.

Pending this suit, Anund La1 Khan died, having, previously to his decease, COIJ.

veyed the Zemindary, in dinpute, to his brother, Mohun La1 Khan, who was admitted

to defend the suit.

On the 30th of March 1811, the Provincial Court, after having taken the opirtiorn

of the Pundit of the Court as to the validity of the deed of gift by the Rany, held i t

to be invalid, upon the ground that such a deed could not be effectually made withonri

the roncurrenee of all the expectant heirs of Raja Ajeet Sing, who were his nnottier’s

71 1

This suit was dismissed.

IV IKOORE IND. APP., 2w RANY SRIMUTY DIBEAH v. RANY KOOND LUTA cl8471

brother's sons; the Provincial Court, therefore, decided the case in favour of the

Ranv.

Mohun La1 Khan appealed from this decision to the Sudder Court, but that

Court affirmed the decision of the Provincial Court (see case reported, 2 Ben. Sud.

Dew. Reps., 32). Pending

the appeal, Rany Seeromany died ; and, on her death, the property catue into the

custody of the Court of Wards.

Upon the Rany's death, Kundurp Sing claimed the Zemindary, and, as i t was

also claimed by Mohun La1 Khan, the Judge of the Zillah Court of Midnapore, 011

[295] the 24th of December 1813, ordered that Mohun La1 Khan, and Kuiidurp Sing,

and any other persons who might have claims to the possession of the Zemindary,

either by inheritance or by any other right, might present petitions on the subject

to the Judge of the Zillah, agreeable to Section iv. of M. TT. of 1799.

Mohun La1 Khan and Kundurp Sing accordingly filed petitions in support of

their several claims, and the Judge of that Court proceeded to a sunlrnary trial

thereof.

Kundurp Sing rested his claim. upon an ikrar-potta, or deed of p f t , alleged to

have been executed in his favour, by the Rany, shortly before her death. Mohuii

La1 Ehan rested his claim, not only on the ground of the gift in favour of Anund

La1 Khan, and his appeal to England, but also on the ground that the right of

possession was accorded to him by the heirs of Raja Ajeet Sing, viz., the mother's

brother's sons of Raja Ajeet Sing.

The Judge, on the 24th of December 1813, recorded his opinion, on the several

claims, in substance, as follows :-" The ikrar-potta, o r agreement, dated the 3rd

of Assin, being the end of 1219, Amli, one day before the death of Rany Seerornany,

which Kundurp Sing has presented to the Zillah Court in support of his claim to

the abhishek of the Zemindary, etc., as his right and possession, as having beeri

executed by Rany Seeromany, was f a b r i c a ~ after the demise of the

said Rany, and 16 not genuine nor worthy of confidence, and the right of

Kundurp Sing to the property left by the Raiiy has not been proved or established,

either by the document, or by hereditary right according to the Sastras." The Court

then proceeded:-"According to the [296] bewusta of the Pundit of this Court,

which 'was filed in the suit, M ~ h f l La1 Khan v. Rany SeeromqPzy, and the contents of

which wcre entered in the decree of thiR Court, dated the 31st of August 1812,

Koochil Bhoonya, and Bulbhudder Bhoonya, and Radha Govind Bhoonya, the son\

of Sagrissa Bhoonya, and Ram Kishen Bhoonya, the brothers of the mother of Raja

Ajeet Sing, are the heir6 of Raja Ajeet Sing, the husband of the Rally Seeronianp,

and, after the demise of the Rany, will he entitled to the Zemindary, etc., the pro-

perty left by Raja Ajeet Sing and the Rany. Three of the heirs above-named have,

of their owii accord and will, presented la-davis (or renunciations) to the Zillah

Court, under their own signatures, setting forth that they have received a considera-

tion, in lieu of their rights, from Mohuu La1 Khan, and transferring their hereditary

rights in the property left by Raja Atieet Sing and Rany Seeroniany, to Mohun La1

Khan ; and Koochil Bhoonya, who, after presenting the first petition, in conjunction

with Radha Govind Bhoonya and Bulbhudder Bhoonya, to the effect above stated,

presented a second petition to the Zillah Court, stating his opposition to the con-

veyance of his own rights, subsequently presented a third petition, alleging the

transfer of his own rights t o Mohun La1 Khan, to the Zillah Court, and personally

attended and acknowledged that he was aware of the contents of the petition, and

twice signed the same with his own hand. Notwithstanding the circumstances above

detailed, in consequence of Mohun La1 Khan having appealed to England on accoullt

of the suit decided by this Court, and that the appeal in this suit is pending, it is,

in the opinion of the Judge, proper that the Zemindary in dispute [297] remain in

the custody of the Court of Wards until the appeal to England be decided."

The last proceeding came before the Sudder Dewanny Adawlut, and that Court,

being of opinion that RO s u ~ c i e n t reason appeared for cont inuin~ the Zeniindalp

in the custody of the Court of Wards, by an interlocutory order, bearing date the

14th of February 1814, directed the Judge of the Zillah Court to give effect to his

summary decision, by placing Mohun La1 Khan in possession, if he thought him the

person entitled. on his giving securi4-y Accordingly, by a11 order of the Zillah

71 2

Mohun La1 Khan appealed from this decree to Englaizd.

RANT S ~ € ~ ~ ~ Y DlBEAH “0, M N Y KOOND LUTA [18$?j IV ~ 0 0 ~ ~ INB. APP., 298

Court, dated the 4th of %arch 1814, ~ o h u ~ i Lal Khan was directed to be put in

possession of the Zemindary.

The correctness of the conclus~o~i arrived a t in this suIniiiary proceed~~ig was after-

wards brought by Buiidurp Sing, in the way of appeal, before the Sudder Court,

and Mr. ~ a r i n g t o n , the Chief Judge, after record~ng his opinion, that there was

stronq pre~umption that the deed of gift adduced by ICundurp Sing was fabricated,

s ~ b ~ n i t ~ e d th f ~ l ~ o w ~ n g questions to the Pundits :-

First Question.---“ Supposing the genuineness of the document in question to be

established, and that Rany Seeromany put her signature to i t while in the posses-

sion of her reason, one day before her dissolution, what part of the property in the

~ e ~ ~ i i ~ i d a r y left b Raja Ajeet Sing, and in its produce, and in the other effects left

by Raja Bjeet Sing, which were in the possession of Rany Seeromany, also of the

~ r o p e r t y acquired by Rany Seeromany herself, goes to the Appellant by virtue of

the gift and the wusseeyut of the Rany 7’’

Second Question.--“ Supposing the genuineness and c red ib i~~ ty of the docu~i~eIIt

be not established, and [298] that some of the desce~dants in the line of the deceased

Rany’s father and grandfather are living, is the s t r i d ~ a n a (pe~,sona~ property} left

by the said Rany to go to the descendants of the Itany’s father and g r a n d ~ a t h e ~ ~ ,

or to her late usb band, Raja Ajeet Sing‘s mother’s brotlierk sons, or others of h i s

heirs, as their right of ~nhe r~ ta i~ce?”

To these questions the ~ a w - o ~ c e r s of the Court delivered their opinion in the

following terms : -

” Supposing the genuineness of the aforesaid document be established, and that

Rany Seeromany put her signature to it while in the possessioIi of hex reason, one

day before her demise, yet, as Rany S ~ r o m a n y has, without the p e r ~ ~ i s s ~ o n of the

heirs, also as she has not separated the conditional gift, which goes to state that

the donee shall have possession after the death of the said Rany, and as she has

made a ~usseeyut of the Zemiiidary, left by Raja Ajeet Sing, and of its prodiice,

and of other eEects left by Raja Ajeet Sing, which were in her possessio^^, and the

property she (the said Rany) acquired by means of the Zemindary, and the aforesaid

produce which appertains to the Zernindary, and the produce above adverted to ; and

as the gift and the ~“usseeyut made by Rany Seeromany of three denom~iiatio~~s

of property, as aforesa~d, are invalid under the Sastras, heref fore. the said three

descriptions of property cannot go to the A ~ p e l ~ ~ n t by virtue of the gift and tlie

wusseeyut made by the Rany afo~‘esaid. However, such property as Eany ~eeroI i~any

acquired, independent of the means of the Zemindary, and the produce above adverted

to, is her stridhana. As the Rany can exercise her separate right in making a gift

and a wusreeyut of her stridhana, urith the exception of immoveab~e property given

to her by her 12991 husband, therefore the stridhana of khe Rany in question (with

the exception of the ~mmoveab~e property given to her by her ~ u s ~ ~ ~ i d } can go to

the Appellant by means of gift and a wusseeyut of the same. This bewrrsta lkas

been delivered according to the ~ a y a b l ~ a ~ a . ” The Pundit annexed to this opinioa,

extracts from the authorities,

The second question put by the Court having reference only to the s ~ r ~ d ~ ~ a i ~ a ,

o r personal property of the Rany, it is not necessary to set forth the answer given

hy tphe Pundits to that question.

On the 2nd of August 1818, the Suddcr Court ordered that the s u m I ~ a r ~ dwree

and order of the Zillah Court should be a ~ r m e d and niaintained, and the appeal

dismissed.

On the 6th of ~ o ~ e m b e r 1815, ~ u ~ d u r p Sing instituted a suit, ill. fom& pauperis,

in the Provincial Court of Calcutta, against Mohun La1 Khan, the then Zemindar ill

possession, and also against Radha Govind Bhoonya, Koochil Bhoonya, and Bu~!I-

hudder Bhoonya, his mother’s brother’s sons of Raja Ajeet Sing; and in the plaint

he set forth his title a8 des~ended, in the seventh remove, from the common ancestor,

Lrrkhun Sing, and after admitting that his uncles Gujraj and others were nlore

nearly related to the comnio~ ancestor than h i r n ~ e ~ ~ , said that they had r e ~ ~ n ~ u i s ~ ~ e d

their rights in his favour, and he claimed the Zemindary as the nearest male heir,

a c c o r d ~ n ~ to the usage of the family, and the S a s t r ~ s extant in Orissa, aljd he also

alleged that the late Rany Seeromany had, on the day previous to her decease,

executed the ~ ~ r a r - p o t t a in his favour, whereby she made over to him the entire

P.C. Vli. 113 23a

m MWBE IND. UP., 380 RANY SRIXVLUTY J ~ E A H 'U, RANY KOOND LUTA [1847]

Zernindary and other property and effects which she had in her possession, a i d

constituted him Malik and [a()] Mokhtar of tlieni, and her heir apparent, and he

thereby claimed the Zemindary.

The Defendant, Mohuri La1 KLarr, filed his answer, 011 the JJ rd of January

1816, wherein lie denied that the Plaintiff was related to Raja Ajeet Sing, or had

any claiiii to the Zen~indary; he moreover denied the validity of the alleged deed

of gift of Rally Seerornany, and, after referring and relying upon the proceediriys

already taken, and the judgnieiit and decision of the Sudder Court, in the summary

proceedings, he took issue upon the allegations of tlie Plaintiff relative to the usages

of the family of tlie deceased Raja, aiid tlie Sastras followed by theiii, insisting that

they were the Sastras followed in Bengal.

The other Defeiidants put in their answers.

On the 2Yrd of May 1818, Kundurp Sing filed a s u ~ p l e i ~ e n t a l plaint, .k foi'mii

~)~~~~~~~~ denyiag that the usages of Bengal were current or received in the Panlily

of Raja Ajeet Sing.

Radba Govind Bhoonya and Bulbliudde~ Bhoonya, two of the Defendants, died,

and the Provii~cial Court admitted other parties to represent the respective interests

of those deceased Defendants.

The cause being at issue, evideuce, both oral and docurneiitary, was produced

c m both aides. The Plaii~tiff filed, aniong other documents. the alleged deed of

gift, and exaillined witnesses to prove its execution by the Rally. These witnesses

hpoke to acts done i i r their presence by the Rany. The plaintifl' failed in proving

that the alleged deed was executed with the concurrence of the expectant heirs, whorJe

<.onsexit would be necessary to give validity to the deed, if genuine. The claim,

therefore, by virtue of tlie deed, failed. Atid with reference to the Plaintiff's claim

as heir of [3()11 Raja Ajeet Sing, the Plaintiff failed in proving his descent in point

of fact; and, according to the pedigree on whicli hc relied, it appeared that even

ac~ordiiig to the rules of descent by which he claimed, there were nearer heirs of

Raja Ajeet Sing still living ; and although be called *witnessss on the subject, he

failed in giving any satisfactory evidence to show that tlie ruIes of the Mitacshara

were followed in the family of Raja Ajeet Sing.

The D e f e i ~ ~ a i ~ t , Mohun La1 Khan, produced n ~ i n i e r ~ ~ ~ ~ 1% itnesaes, to prove that

tile alleged ikrar-potta was a fabricated instrument, aiid also that the religious

ceremonies in Ajeet Sing's family were performed accordin? to the ~ a ~ a - b ~ i a ~ a and

other Sastras of Bengal.

After the evidence had been taken, Mr. (Xbert Coventry Master, the First Judge,

before whoin the cause was pending, submitted the following questions for the

consideratioxi and bewustaas of the Pundits of the Courts :-

First Question.-" In the event of the Raja of the Sutgop caste, ivho has beeir

the holder and possessor of his hereditary Zemindary, dying without

issue, and of liis wife, vho has bee11 the holder and possessor of

the Zeniindary Ieft by her husband, dying, supposin~ there to be in

existence sagotras of her husband, of the seventh remore, and bandhus~

viz., mother's brother's sons of her husband, which of those persons, according to

the ~ € i t a ~ s ~ ~ a r a Sast as, and which persons accord in^ to the Daya-bhaga Sastras,

will become the heirs and owners to tfie Zemindary referred to? Write out a

bewusta on this point agreeably to both Sastras under these questions, and file it."

Second question.-" In what particular countries, [3:302] appendant to what

particular soobas, are the bewustas of particular Sastras current and in use?"

On these questions. bewustas were obtained from six Pundits.

In answer to the first question, one Pundit gave an opinion to the effect, that,

as between a person the seventh in descent a i d the mother's brother's son, the

former, and not the latter, would be heir, and that this was the rule both by the

~ i t a c s h a r a and by the Daya-bhaga. R u t the other five Pundits all concurred in

stating that the rule of the Mitacshara and of the Daya-bhaga were different, and

that, according to tfie Mitacs~iara. the seventh in descent would succeed, wliikt

according to the Daya-bhaga the mother's brother's sons woufd be entitled to succeed.

In answer to the second question, one of the Pundits of Midnapore stated that

the D a y a - ~ h a ~ a w s in force in idna nap or^. The opinions of the other Pundits on

the gecond quest~on did not give any express op~nion whether, at Midnapore, the

rules of the Mitacshara or the rules of tlie 13aya-bhaga pw-ailed.

714

R4NY SRIXUTT DXBEAH ‘U. &ANY KOONlt LUTA [I8471 I V NOOSE I l D . APP., 303

%he bewustas having been received by the Court, the cause wa8 tlieii heard at

various dates in the month of February 1826, before Mr. Turn~ul l , the ~ ~ c ~ a t ~ r 1 ~

Judge of the Provincial Court of Calcutta, who directed a genealogical statement

and q ~ e s t ~ o ~ ~ s t be s u b ~ i t t e d to the Pundits of the Sudder Court for their opinion

thereon.

The genealogical statement and questioas Kere as follows :-

t,ux€rus Srst7.

I

I>ros!ttuni.

I

__ __--I --I

Suiigrsnb.

I

Pertsb Mahapatnr.

I I

I

Doorjoodhun. Ran,’ Sing.

I I

,tus\:nut

i

Ajeet Sing became the holder, md

died without issne; his wife

Seeromany beearnc the Itolder,

and died. Since the demise

of ~ ~ I ~ ~ ~ ~ ~ t Seemmany, the

mother’s brother’s sons of her

husband, Ajeet Sing, are claim-

ants for the Zemindary.

Tire iirsi, Question.--‘ According to the ~ e ~ e a ~ o g i c a ~ table given above, does the

hereditary Zemindary (heretofore possessed by Ajeet Sing, and left by I ~ u k ~ ~ ~ i r ~ Siizg,

the great ancestor, after the demise of Rany See ro~~any , the wife of Aject Sing, and

who was possessor thereof, and died) belong to the mother’s brother’s 8011s of Ajeet

Sing, besides whom there are, a p ~ ~ r ~ n t ~ y , no other persons, heirs, of the line of

desceI~dan~s of Sui~gram, the eldest son of Prosottum Sing, alive, or does it belong

to Kundurp Sing, the Plaintiff, who is in the eighth remove, one of the descend an^^

of Pertab ~ a h a p a t u r , the second son of Prosottu~z~ Sing? Write out a bewusla 0x1

this point, a c c o r d ~ n ~ to the Daya-bhaga Sastra.”

Second Question.---“ Under the circur~~stances above de tded , according to tbe

~ ~ ~ t a c ~ ~ a r a Sastras, does it descend to the mother‘s brother’s sons of Ajet-t Sing, or

to Kundurp Sing, above named 1”

The answers of the Pundits of thc Sudder Court to these questions were to the

following effect : -

’’ According to the Daya-bhaga, coitipiled by Jimuta [3@4] Vahana, i f a descendant

froill the same ancestor in the seventh rtmove, and the mother’s brother’s son of

the deceased pro~?rietor of the property, be alive, of these two persons, the mother’s

brother’s son has the right of succession to the property left By tile deceased pro-

prietor thereof ; arid, according to the ~ ~ t a c s h a r a eoiqded by ~ ~ i j ~ y a ~ i e s w a ~ a ’ of

these two persons, the descenda~its in the seventh remove will be entitled thereto,

and not the mother’s brother’s son.”

On the 21st of February 1826, Mr. ~ ~ u r ~ i b ~ i i l proi o~it~ced Itis j ~ I d ~ ~ ~ ~ e i i t . and after

setting forth*at length the proceedings and evidence, proceeded thus : --J‘ It appears

that the claini of the Plaintiff is based upon the cixumstauce that the 51atiy Seero-

itiauy, the wife of Raja Ajeet Sing, deceased, one day previous to Iier demise,

executed an abltishekt-pattra of ttie Zemiridary in dispute, and othw property iti

her possession, in favour of the Plaintiff, who is it dewendant of Raja Lukhuu Sing,

the great ancestor, and a sagotra in the seventh reilrove of Raja Ajeet Sing above

tiartied, and died the following day ; therefore the Flitintiff, agreeably thereto, arid

011 the ground of hereditary right, as being related to the Raja in ttie seventh

rextiove, is, in accordaiice with the ~~ i t acs l i a r a and other Sastras current in the

grovince of Orissa, entitled to the ~ e ~ i n d a r ~ in dispute; but from the papers of

the suit, the Courc have no bdief or faith in the correctness or ~ e n i i ~ ~ ~ ~ ~ ~ e s s of tile

said a b ~ i s ~ e k t - ~ a ~ t r a . ’ ~ The ~ I d ~ ~ e ~ ~ t theu set out at le igtli the rounds for dis-

believing the genuinetiess of the Plaintiff‘s alleged ikrar-potta,, niid then proceeded

its follows: “ Therefore no confidenw tan be itlaced in tfic alleged faet of the e-yeoti

715

XV ~ O O R ~ IluD. APP., 3(M M N Y S ~ l ~ ~ T ~ DIBEAW V. RANY 1100ND LUTA [I8471

tion of the abhishekt-pattra in the lifetime of the Rany ; but adn~ittirig that the Rany

had [m] executed the abhishek~pattra in favour of the Plaintiff, still, accord in^

to the Sastras, while there were heirs to Raja Ajeet Sing, how could it be legal and

valid? and it is obvious, from the proceeding of the Sudder Dewanny Court, dated

the 12th of July 1815, that, according to the bewusta of the Pundits, such an instru-

mont, a l thou~h genuine, is not sufficient nor valid, agreeably to the Sastras, without

the concurrence and consent of the heirs of Raja Ajeet Sing, for a gift and bequest

of the said Zenzindary. Thus the claim of the Plaintiff, based upon the abhishekt,

to the ~ e i ~ ~ i i ~ d a r y in dispute, is in nowise well founded ; c o n s ~ u e ~ i t l y the co~ls~dera-

tion and decision of this suit rest upon this fact, whether the Plaintiff, ~ h o , agree-

ably to the ~ e n e a l ~ g i c a l table filed by h~mself, i s in the eighth descent from Raja

Prosottum Sing, and accordingly a sagotra in the seventh remove of Raja Ajeet

Sing, the husband of Rany Seeromany, is hered~tary a c c o r d i l ~ ~ to the Sastra, the

person entitilcd to the Zemindary in dispute, or whether the Zemindary in dispute

apperta~ns to Koothil Bhoonya and others, Defendants, who are the bandhus, i .e .

the mother’s brother’s sons of tlie Baja. It i s clear from the papers that, if in this

suit the Daya-bhaga and other Sastras current in the province of Bengal be the

test, no doubt whatever exists as to the right of Koochil Bhoonya and the other

Defendants ; and on the other hand, if the consideration and judgment of this s u i t

be conducted with reference to the ~ i t a c s h a r a Sastra and other books subordina~e

thereto, the right of the Plaintiff predominates over that of the Defendants; for,

with exception of the Pundit of this Court, who has recorded his opinion to the

effect of the Plaintiff having no right, whether according to the Dasa”bha~a or to the

Yitacslzara, all the other Pundits [3063 of the Courts of appeal of f3areifl-y and of

Jehangirna~ur, and of Zillah ~ ~ d r ~ a p o r e , whose bewustas have been received agree-

ably tio a call made by the former Senior Judge of this Court, concur in this point :

that the ~ l a i n t i ~ s entitled to the Zenlindary according to the ~ ~ t a c s l ~ a r a nd

other books s u b ~ r d i n a t ~ thereto, and that the Defendants are entitled to it accord-

ing to tlie Daya-Ebaga, eta., current in Bengal; and further, the bewusta of the

Pundits of the Sudder Dewanny Court, which, in conse~uence of the i n ~ o € n p a t i ~ i ~ ~ t y

betweon the opinion of the Pundit of this Court and the opinions of the Pundits of

other Courts, was called for by nie, is a f f i r ~ ~ ~ t o r y f the bewustas given by the

Pundits of the CEiurts above named; but this fact does not a t all assist the views

of the ~ la in t i f f , because the allegat~ons of the Plaintiff in respect to the use of the

Mitaoshara SastraS in his family, in order to establish his claim, are, in niy opinion,

altogether inaccurate, and have not In any way been proved, and no dependence

can be placed upon the de~ositions of the w~tnesses who have given evidence on this

point.” The judgment then finally declared that the claim and alleged rights of

the Pla~i~tiff to the Zeinindary in dispute, had not in any way been proved and

~stab~ished, and ordered that the suit be dismissed, with costs.

The Plaintiff presented a petition to the Sudder Dewanny Adawlut of Bengal,

for leave to appeal from this decree, f o m & ~ ~ ~ ~ r ~ s , which the Sudder Court,

pursuant to Reg, XXVIII. of 1814, permitted.

Pending the appeal before the Sudder Court, and on the 28th of ~ e b r u a r y 1830,

Mohun La1 Khan died, leaving two widows, Rany Koond Luta and Rany Rung Zuta,

the present Respondents, and fiTe sons, named Ajodhya Ram Khan, Ram Jy Khan,

Birjkishor [308 Khan Ram Chunder Khan, and Hurdy Barn Khan, all minors,

surviving. After i~vestigation, the names of the Ranys were recorded‘~n succession

to the deceased, and the appeal defended in their names.

The appeal came before Mr. Alexander Ross, one of the Judges of the Court, who,

on the 21st of August 1830, recorded his opinion, that it seemed proper to ascertain

from. the Sastras, whether the ’fa-davi, executed by the mother’s brother’s sons ex-

cluded the claim of the PlaintifP. It was, therefore, ordered, “ tha t a copy of this

proceeding, together with the bewustas filed in the suit of Rovp C h ~ a ~ Q ~ ~ ~ ~ v,

~~~~~~~~ Lac! K h w , and in the suit, ~ f o ~ ~ ~ Aal Khnm T. R Q ~ E . ~ ~ e e ~ o ~ ~ ~ , be nlade

over to the Pundit of this Court, with this order, that, after a perusaI thereof, he

file a, reply ta the following question, agreeably to the Daya-bhaga Sastras, current

in the f ami~y of Eaja Ajeet Sing, within a period of four days, after he may re-

ceive the question.”

(Euesdioti..-6‘ It is establis~ed by the ~ e w u s t ~ s alluded to, and the decrees of this

716

RANY S R ~ ~ ~ U T Y ~ 1 ~ E ~ H ‘11. RANY KOOND LUTA [1847] IV MOORE IND. APP,, SO8

Court, i n the suits referred to, that, according to the ~aya-bhaga Sastras, current in

the family of Raja Ajeet Sing, after the demise of Ranp Seeromany, the wife of

Ajeet Sing, the property in dispute left by the Raja and Rany referred to, will

descend to ttie mother~s brother’s sons of Raja Ajeet Sing, who are the nearest heirs,

and entitled thereto, and that they being forthcoming, the sagotra cannot become the

heir; and it i s proved by the papers, that the mother’s brother’s sons, notwith-

standing that they were the rightful owners of the property in dispute after the

demise of Rany Seeromany, agreeably to the bewustas of the former Pundits and

the decrees of this Court, relinquished the property t o the possession of [308] Mohun

La1 Khan, and executed la-davi thereof in his favour. It is, therefore, inquired

vhether the mother’s brother’s sons, the subscribing parties to the la-davi, who are

the nearest heirs of Raja Ajeet Sing, and the persons entitled to the Z e ~ i n d a r y in

dispute, after tlie demise of the Rany Seerom&ny, notwithstanding that there are

descendants of the brother of the g r e a ~ g r a n d f a t ~ ~ e r of Ajeet Sing, who are sagotras,

have, or have not, the power to execute a la-dasi, on account of the property in dis-

pute, in favour of Mohun La1 Khan, who is an alien, without retaining ariy portion

of the said property under their own control, or reserving a portion thereof, for the

purpose of performing sradh, and as a means of ma~ntenance to themsel~es, and

whether the said la-davi will be injurious to the rights of the A p ~ e ~ ~ a n t , who i s a

sagotra, or nota ”

The Windoo lawofficer of the Court, on the 8th of Septeri~be~” 1830, returned his

answer to the above question, in the following terms :-

‘‘ If the mother’s brother’s sons executed the la-davi (or deed of relinquishment),

and who are the nearest heirs of Raja ,4jcet Sing, and the persons entitled to the

matter in dispute, or the assessed lands belonging to him after the demise of Rany

Seeromany, v-hlle there are living descendants of the brother of the father of the

rea at-grandfather of Ajeet Sing, who are sagotras, without retaining a portion

thereof, or reserving any portion thereof, for the purpose of performing sradh, and

as a rneans of maintenance for themselves, in favour of Mohun La1 Khan, who is an

alien, in such case the execution by them of the la-davi OR account of the matter in

dispute, without retaining any portion thereof, being contrary to law, as involving

a vritti [3w] lopa, or a deprivation of the weans of support, and a moiety thereof

riot having been retained €or the purpose of sradh, or annual rites of the deceased

Ajeet Sing, and a gift of the whole (property) while there arc descex~da~~ts, being

f ~ r ~ i d d e n a d contrary to usage, whether the person from whoiii one inherib be

living or not, therefore the gift by deed of relinyuislinient of the assessed lands is

not according to law; yet according to the Daya-bhaga current in the fainily of Raja

Ajeet Sing, they may voluntarily make an illegal gift with the concurrence and

advice of their sons, etc., x-ithout force, fear, and fraud, and n o ~ ~ r i t ~ ~ s t a n d ~ n ~ the

existence of a sagotra, or the brother of the father of the g rea t -g randf~ t~~er of Ajeet

Sing, in favour of Mohun La1 Khan, an alien; therefore they are able to give a deed

of relinquishment of the assessed lands, etc., because the mother’s brother’s sons of

Bjeet Sing are the neareet heirs to the said Raja, and the children of the brother of

the father of the ~ r e a ~ g ~ . a n d f a t h e r of Raja Ajeet Sing, or the Ap~ellant, is like an

alien, and cannot forbid the execution of a deed of relinquishment, by the inother’s

brother’s sons ; therefore tlie assessed lands ilk dispute having desceiided to his

rtiother’s brother’s sons hereditarily, and the rontrol of a person to W ~ O I K ~ anything

has descended by hereditary right is apparent to everybody ; but by that law ttie

donor will be held to have c o m ~ ~ i t t e d a sin. Therefore, i f they had retained any-

thing, or a moiety of the assessed lands, for the performance of sradh (or funeral

rites), aiid also a portion of the said lands, to provide food and raiment for those

who are entitled thereto, they can make a gift by a deed of relinquishment to Mohun

La1 Khan, a stranger, while they are in a sound state [310] of mind, and volun-

tarily, and without force or fear or fraud, etc., and with the consent of children

and ~ e i g ~ ~ b o u r s ; in the event of their retaining a portion merely for the sake of the

honour of the thing, they can make a gift while in a sound state of mind, etc., as

above mentioned; but as this kind of retention is not like retaining a t all, i t wiIi

he the sin of the donor. By the mother’s brother’s sons of Ajeet Sing, tvtio are hia

nearest heirs, making a gift by a deed of relinquishment of the property left by

hjeet Sing, the assessed lands which descended to him ~ e r ~ i t a r i l y , to a stranger,

71 7

IV MOORE IND. APP., 311 RANY SRIMUTY DIBEAH ‘U. RANY KOOND LUTA [ 184 ‘71

Mohun La1 Khan, no injury arises to the sagotra or the brother of the father of the

greatcgrandfather of Ajeet Sing, viz., the Appellant, because he had no advantage

before; for while the mother’s brother’s sons exist, the sagotra has no right. This

bewusta is agreeably to the Daya-bhaga and other books current in the family of

Raja Ajeet Sing.”

The appeal came 011 for hearing before Mr. Alexander Ross, one of the Judges

of the Sudder Court, on various dates, and on the 30th of October 1830, that Judge

pronounced the decree of the Court, the material portion of which was in the follon-

ing terms:-“ It is manifest from the bewusta of the Pundit of this Court, that the

claim of the Appellant in respect to the property in dispute left by Raja Ajeet Sing,

and Rany Seeromany his wife, is in nowise well founded, and that the mother’s

brother’s sons of Raja Ajeet Sing above named, who are his nearest heirs, had the

option of executing a la-davi on account of the property in dispute, in favour of

Baja Mohun La1 Khan; under these circumstances, and with advertence to the

argument adduced in the decree of the Provincial Court, [311] in my opinion the

decrm of the Court to the effect of dismissing the claim of the Appellant is riglit

and proper, and affirniable.”

It was, therefore, ordered, and finally decreed, that the appeal of the Appellant

should be dismissed, and the decree of the Provincial Court of Calcutta affirmed and

niaintained, with costs.

Kundurp Sing was dissatisfied with this decision, and, on the 8th of December

1830, filed a petition, praying for leave to appeal therefrom, to His late Majesty

in Council, in forma pauperis, pursuant to sec. sviii. of Bengal Reg. XWIII. of

1814. The prayer of this petition was, after a reference to the Sarrishtahdar as to

the practice of admitting appeals to England, in, fornuz pauperis, granted, and the

Appellant admitted to appeal to England, in f o r m a fiauperis.

After the admission of the appeal, Kundurp Sing died, without learing issue

male, and the appeal was revived by his widow, Rany Srinluty Dibeah, the present

Bppellant, and now came on for hearing.

The Appellant prayed the reversal of the Sudder Court’s decree, for the follon iiig

reasons : -

1.-Because, after the death of ltany Seeromany, the paternal uncles of Kundurp

Sing were entitled to succeed to the Raj or Zemindary as the heirs of Raja Ajeet

Sing, and in consequence of the renunciation, by those uncles, of all their claims in

his favour, Kundurp Sing became entitled to the Raj.

11.-Because Kundurp Sing was legally constituted by the Rany, in her lifetime,

her successor to the Raj.

The Respondents, the widows, Rany Koond Luta and Rana Rung Luta, on the

other hand, relied on the following reasons : -

[312] 1.-Because the Ikrar-nama, or deed of gift, set up by the Appellant‘s

husband, was a forged and fabricated instrument, and, even if genuine, would hare

hem void and inoperative.

11.-Because the Appellant’s husband did not prove his alleged relationship to

Ilaja Ajeet Sing.

111.-Because if he had proved his alleged relationship to Raja Ajeet Sing, lit.

would not have been entitled to the succession, according to the usages of the Raja’s

family, and the Sastras in use a t Midnapore.

The other Respondents, Lukhi Narain Bhoonya, Soondur Narain Bhoonya, arid

Madhoosoondhun Bhoonya, the reprefientatives of Bulbhudder Bhoonya, deceased,

and Radha Govind Rhoonya, deceased, supported the decree for the folloainc

reasons : -

1.-Because, according to the Daya-bhaga and other Bengal authorities (which

they contended regulated the succession to the property in dispute), the Respondents

were entitled to succeed thereto, as the heirs-at-law of the deceased Raja Ajeet Sing.

11.-Because the Ikrar-nama, alleged to have been executed by Rany Seeromany,

and under which the Plaintiff claimed, was a forged and fabricated instrument, and,

even if genuine, would, in the absence of their consent, have been inoperative and

void in law.

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

718

RBNY SKIhlUTY DIBEBH ‘U. KANY KOOKD LUTA [ 18471 IV MOORE IND. APP., 313

Mr. Wigrani, Q.C., Mr. E. J. Lloyd, and Mr. Edniund F. Moore, for both sets of Re-

spondents.

The authorities referred to, were, Jfoh 1m LaZ Idtan [313] v. Rawy Seeroniu?i!/

(2 Ben. Sud. Dew. Reps. 32). Iieprzct Sing v. Tioolnhul Sing (2 Moore’s Ind. Apl).

cases, 331). Rutcheputty Dutt Jlia v. Rajiriader il-urain Rae ( 2 Moore’s Ind. App.

Cases, 132). Rnjc?iumder

Yaraen Clioudry v. Goculchund Go?/ (1 Ben. Sud. Dew. Reps. 43). Aulini Ghumd

Dhtir v. Bejai Govind Biiwall (6 Ben. Sud. Dew. Reps. 224). 1 Strange’s Hindoo

Law (2nd Edit.), 318. 2 W. Macnaghten’s Hindoo Law, 19.

Lord Langdale (Dec. 10, 1847).-This is an appeal from a decree of the Sudder

Dewanny Adawlut of Calcutta, disniissing the suit of Kundurp Sing, deceased, for

recovery of a Zeniindary of four pergunnas, in the Zillali Midnapore, froiii Mohun

La1 Khan, deceased.

The appeal is prosecuted by tlie widow and repreaeiitative of Kundurp Sing,

against the two widows and representatives of Mohun La1 Khan, and others.

The case is as follows:-

On tlie 1st of July 1800. tlie llany Seeroniany being the sole possessor of the

Zeiriindary in question, as klie surviving widow, and heir of lier deceased husband,

Raja Ajeet Sing (who died in 1754), executed a deed purporting to lie a deed of

gift of the Zemindary to Anund La1 Khan.

The gift was opposed by Shamanuna Gujraj, Roop Churn, and Rani Churn,

who claimed to be the heirs of Raja Ajeet Sing. They presented a durkhast i n

support of their application, but the durkhast was rejected. and tlie donation nas

registered and proclaimed.

E3141 The Raiiy was herself a party to this proceeding, and, in her ansrier to

the opposition, admitted the deed of gift, which she had made. But some time

afterwards she complained of, and disputed, the deed, and in 1806 slie commenred

a proceeding of her own, to recover possesaion of the Zemindary from Aiiund La1

Khan. In this proceeding she was nonsuited, but by leave of tlie Court she coiii-

menced a proceeding t o set aside the gift, on two grounds: first, that it had bee11

obtained from her by fraud; and secondly. that i t had been executed ~ ~ i t h o u t the

consent of tlie heirs of Raja Ajcet Sing. lier husband, and of her guardians.

I n the course of these proceedings, it was held, that the iiiale heirs of the Raja

Sjeet Sing were the guardians or protectors of the midon, hit that the niother’a

brother’s sons of Raja Ajeet Sing were tlie heirs elpectant or presuinptire to the

Semindary. And by the decree of tlie Sudder Uenanny Adawlut, dated the 3lst of

Sugust 1512, 011 the appeal from the decree of the First Judge of the Calcutta Pro-

vincial Court, dated the 30th of March 1811, it was stated, that it could not 1)u

ascertained wlietlier the deed of gift nas obtained from tlie Rany by deceit, as slie

alleged ; but that it appeared, by a beivusta of a I’undit of the Court, and the te l t

of the Sastras cited therein, also from the tenor of tlic 11th cliapter of the Daya-

bhaga, which was the most reputable of all the potliees in use in Bengal, which are

observed in the families of the litigating parties, that after the death of Raja Ajeet,

Sing, his relatives, descended in the male line, wlio were living, and capable o f

taking care of the Raiiy, mere Pirblioo, that is, her guardians or protectors, and

that, without their advice and consent, she had not, according to tlie Sastras, tlie

power of making a gift to any one, E3151 of the Zeinindary left by lier hushaur;

It was further stated, that although, agreeably to the Sastras in use in Bengal, tlrc

persons who claimed to be male heirs of Raja Ajeet Sing could not be considered hip

heirs, ahen opposed to his mother’s brother’s sons ; and although Moliun La1 (claim-

ing under Ariund Lal, and then Defendant) had produced deeds purporting to have

heen executed in his favour by Rome of the persons who represented mother’s

hrother’s sons of Raja Ajeet Sing, yet there was no proof, either of the permission of

his relatives, descended in the male line, or of the approbation of all the relatives

descended from the mother’s brother’s sons, and the deed itself did not show that

any one of tlieni had approved a t the time of the execution ; and for these reamrib

i t was held that the deed was not valid.

Ramy PdmaPwti T. Riiboo Doolar Sing (nnte, 259).

From this decision, Mohun La1 appealed to England.

There being no question as to the Sastras in uRe in the family, the opinion of the

719

XV BOORE IND. APP., 316 RANT S ~ I ~ ~ ~ T Y DIBEAH ‘U. BANY KOOND LUTA E18471

Judge, that the deed was not valid, without the consent of the relations descended

i n the male line, as guardians, and that the concurrent% of the heirs {the descendants

of mother’s brother’s sons) a t the time of executing the deed, was necessary to the

sralidity of the deed, were the principal points upon which the decision adverse to

Mohuii La1 was founded, and must have been the grounds of the appeal,

The appeal was not prosecuted, and the death of the Rany (which soon after-

wards took place) gave rise t o a new claim, in new circumstances.

The estate was in the possession of the Collector of Midnapore, or of the Court of

Wards.

Independen~ly of any deed of gift, the descent was [316] cast upon the heirs of

Raja Ajeet Sing, which, according to the Daya-baga, and the Sastras in use in

Bengal, vyere the descendants of the mother’s brother’s sons, but whicb, according to

the M~tacs~iara, were the mate descendants of a distant ancestor of Raja Ajeet Sing.

Immediately afterwards, Kun-

durp Sing, who is now represented by the Appellant, alleged that, on the day before

her death, she had executed to him a deed of gift of the Zemindary, and he, as

donee under that deed, and also alleging himself to be heir of Raja Ajeet Silig,

claimed to be entitled to the possession of the Zemindary. Mohun La1 Khan also

claimed to be entitled to the possession, found~ng his claim on the deed of gift to

him, and the c o n ~ r ~ a t ~ o n of it before that time, by all the persons whom he alleged

to be the heirs of Raja Ajeet Sing.

On the 25th of September 1512, it wa8 ordered, by the Court of Zillah Midna-

pore, that Mohun La1 Khan, and Kundurp Sing, and any other persons having

claims to the po~sess io~~ f the Zemindary, either by inheritance or any other right,

should present petitions to the Judge of the Zillah. Rlohun La1 Khan, and Kundrlrp

Sing, and others, having, accordingly, presented their petitions, the Judge pro-

ceeded to a suInniary trial thereof, and, on the 24th of December 1813, recorded his

opinion as follows :-First, That the deed under which Kundurp Sing claimed, was

fabricated, after the death of the Rany, and that the right of Kundurp Sing to the

property was not proved or establis~ed, either by deed or by here~i ta ry right,

according to the Sastras. Secondly, That, according to the bewusta entered in the

decree of the 31st of August 1812, the sons of the @17] brother of the mother o f

Raja Ajeet Sing were his heirs, and, after the demise of the Bany, entitied to the

Zetnindary. Thirdly, That those heirs had transferred their hereditary r i ~ h t s in

the property to Mohun La1 Khan. But, fourthly, notwithstanding these circuni-

stances, the appeal of Mohun La1 Khan to England being pending, the Judge thought

i t proper that the Zemindary should reinain in the custody of the Court of Wards,

until the appeal to England should be decided.

This proceeding having been transmitted to the Sudder Dewanny Adamlut for

inforniation and orders, that Court, on the 14th of February 1814, after noticing

the reasons for not ~ r o s e c ~ ~ t i I ~ g the appeal, and that the a u t i ~ o r i t ~ of the Court of

Wards had ceased, considered it to be right and proper that, tahe Judge of the Zillah

Court should give effect to h i s summary decision; and if, on coilsideration of the

~ a r t ~ e u l a r s set forth in his proceedings of the 24th of December 1873, he conceived

Mofiun La1 Khan to be the person entitled to the nialik of the Zeniindary, and if

Mohun Lal Khan were able to give security for conforming to the decrees of the

Court,, or other claims, the Judge might withdraw tlie Zemindary from the custody

of the Court of Wards, and put it into the possession of Mohun La1 Khan.

Kun-

durp Sing appealed to the Sudder Dewanny Adawlut, and, continuing to cIaiin

both, as donee under this deed, and also as heir of Raja Ajeet Sing, prayed a review

of the Judgment against him. But the Chief Judge of the Sudder Dewariny

Adawlut, on the 12th of September 1815, considered that, as in tho summary decision

given in the cause, permission was granted to any person who had, according to the

Sastras, claim to the Zemindary left 13183 by Raja Ajeet Sing, to sue for the same

in the Provincial Court, in order that,, after a full and final inquiry ~ a s ~ e r t a ~ n i n g ,

at tlie same time, the rule observed in the family, and the Sastras that were in

force), the right be awarded to the owner: i t was not necessary or usefuI to make

any further ~nvestigat~on i the s u ~ m a r y cause, and the petition of the Appellant,

praying a review of the decision, was not allowed.

7 20

The Rany died on the 17th of September 1812.

Mohun La1 Khan obtained possession, in the result of these proceedings.

RANY SRIMUTY DIBEAH ‘U. RANT KOOND LUTA [1847] IV MOORE IND. APP., 319

In consequence of this decision, Kundurp Sing, in November 1815, commenced

his action against Mohun La1 Khan and others, in the Provincial Court of Calcutta.

to recover possession of the Zemindary. He claimed, as before, to be entitled.

under the deed of gift, of the 16th of September 1812, and also as heir by descent,

in the male line. He admitted that he had four uncles who were more nearly related

than himself, but he alleged that they were satisfied with his being proprietor of the

Zernindary, a n 1 had relinquished and consigned to him all their rights to the

Zemindary.

Mohun La1 Khan, by his answer, alleged, that the deed of gift under which

Kundurp, the Plaintiff, claimed, was a forgery; and that, according to the Sastraa.

the Plaintiff could not in any way be entitled to the Zemindary; and lie insisted,

in substance. that the Sastras in use in Bengal, and not the Mitacshara, were the

authority according to which the persons who were the heirs of Raja Ajeet Sing

were to he determined.

The suit was the subject of great litigation, many witnesses were examined, and

the reports or opinions of several Pundits were obtained and considered. The

decree of Mr. Turnbull, in the Provincial Court, was pronounced on the 21st of

February 1826. He determined that the claim of the Plaintiff, founded on the deed

of gift, could not be supported; and that, if i t [319] had been genuine, it could have

110 effect, for the want of the consent and concurrence of the heirs. And considering

the Plaintiffs claim, in the character of heir of Raja Ajeet Sing, he stated it to

be clear, that if, in this suit, the Daya-bliaga, and other Sastras current in Bengal,

were the test, there was rlo doubt as to the right of the Defendants; but that, on

the other hand, if the judgment was constituted with reference to the Mitacsliara

Sastra, and other books subordinate thereto, the right of the Plaintiff preponderated

orer that of the Defendant; and, on a consideration of tlie whole case, the Judge

expressed his opinion that the alleged rights oi the Plaintiff had not, in any way,

been proved or established, and he ordered that the Plaintiff’s suit be dismissed, with

costs.

The

appeal was heard before Mr. Ross, and, on the 30th of October, 1830, lie pronounced

his decree, and thereby, after referring to the evidence, and the bewustas of the

Pundits, he dismissed the appeal of the Plaintiff, and affir:ned the decree of the

Provincial Court, dismissing the Bill.

From this decree, the Plaintiif appealed to the Sudder Dewanny Adawlut.

From that decree, the present appeal is presented.

There were three questions in the cause: First, Was tlie Plaintiff’s deed of gift

genuine? Secondly, If genuine, was it valid? Thirdly, If genuine, and not valid,

n as the Plaintiff entitled, as heir ?

But, as the validity of the deed, even if i t was genuine, depends on the concurrence

of the heirs, the two last questions depend upon the single question-who were the

heirs? And i f the persons alleged by the Plaintiff to be heirs, were not heirs, the

deed, even if genuine, would not be valid. For this reason, it is not strictly necessary

for us to give any opinion upon [320] the question, whether the deed was genuine or

not. But, considering the circumstances in which the deed is alleged to have been

executed, by the Rany, on the day before her death, the witnesses stated to have been

then present, the length of time during which Kundurp, though often called upon,

neglected to produce the deed, and the whole of the evidence in the cause, we think it

right to state our concurrence in the opinioz which has been entertained by every

Judge who has considered the case, that the deed is not genuine, but a forgery ; and,

consequently, that the Plaintiff could establish no claim under it.

The question, whether the descent in this family is to be regulated by the Daya-

bhaga and the Sastras in use in Bengal, or by the Mitacshara, is really the only one

to be considered.

Now, in the long litigation in which the Rany Seeroniany, under whom Kundurp

Sing claimed, as donee, was engaged with Mohun La1 Khan, it was, without any

ohjection on her part, allowed by her Vakeels, and assumed and held by the Court,

that the descent of this Zemindary was regulated by the Sastras in use in Bengal.

The whole proceeding was conducted on that footing, and the decision in favour of

the Rany was founded expressly on the ground, that the deed then in question was

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executed without the concurrence of the descendants in tlie male line, who (thottgh

they were not heirs) were ~uard ia? is or protectors of the widow.

After the death of the Rany, Kundurp himself alleged tliat the suit between

h h u n IIat Khan and tlie &iiy had been decided in her favour, agreeably to the

Sastras and the customs of tlie family; and, in the present case, it was shown that

decisions afketing lands in ~ ~ d i ~ a i ~ o r e were founded 011 the Sastras in use in [Zl]

Rengal. Several %ewustas, in otlier c a m , were produced ; and froin the hemistas

obtained in t h i s cause, and the other evidence on behalf of the Defendants, we think

that, although the evidence is, in some respects, inconsistent, there is, on the whole,

quite sufficient reaaon to conclude that the Daya-bhap, and not the Mitacs~ara and

Sastrm, ought to be applied to the decision of this cause, and we shall, therefore,

report to Her Majesty, that, in our opinion, the appeal ought to be diamiawd, a i d

the deerex of the Sudder Dewanny ~ d ~ ~ v ~ ~ ~ ~ nffirnted, with costs.

[See 23hyah Rmrt S‘itlgA v. By& Up,. Sinylc, 1870, 13 MOO. Ind. App. 393 ; Thakow

~ ~ ~ ~ ? i a t ~ ~ , S ~ 9 2 ~ A v. Cowrf of Waw&s, 1875, L.R. 2 Ind. .%PI). 164.1

RAJA 13PJIIZ)AKANTH ROJ”,--.Appelln?zf ; ALUK MUNJOOREE UASIAH, I’REM

CHIJND, and RAM DIAL U O S E , - Z ~ ~ s p o i z ~ ~ ~ t s * [Felt. 16, IT. and IS,

18483.

Ozi Appeal front the Xttdder ~ e i ~ ~ ~ n ~ ~ Adazcl& at IrZeicgaJrrl.

Lease for a term of years, of a pergunna in Bengal, to 4. to diicli B, ik-.eaiue

surety for the due performance of the conditions, and afterwards a co-

partner with A. in the lease. Before the expiration of the demised term,

the re~resentati~,es of the lessors evicted the lessee from the pergunua. Held

that a suit would lie by B,’s representativm against the lessors’ representa-

tives, for ouster from the lease, ~ l t l i oug l~ they mere not parties to the rontmet

with the original lessors [4 Moo. Ind. App. 3331.

Damages assessed a t a gross sum by the Judicial Committee, no sufficient

evidence being furnished in the cause, to calculate tlie exact- amount of the

loss sustaired [4 Moo. End. App. 3381.

In this casc, the suit was instituted, on the 13th of July 1826, in the Provincial

Court at Calcutta, by [3223 Narayun Sing and Ram Tunnoo Bose, Ram Diab Bose,

and Deb Narayun Bose, the heirs and re~resentatives of Ram Xursing Base, apainst

one Jugmo~iun Das Moonshi, then manager of tlie estate of tlie A p ~ e l ~ a n t , the niinor

son of Raja Banikantli Roy, deceased, Raja Gopee Nath Roy, and the Collector of

Jessore, to recover Rs. 65,835. 15. 3., as the ainount of profits alleged to have beeri

derived from the pergunna Syedpoor, d u r i n ~ the period of four years, viz., from the

Bengal year I225 to 1231, part of tlie term of the lease of that pergunna.

The lease of the pergunna had been granted in Xai-cli 1816, by Raja Ilanikanth

Boy and Raja Gopee Nath Roy, the joint ~ e i ~ i i ~ d a r s and proprietors of tlie pergunna,

to Narayun Sing, for a period of ten years. Rain Nursing Bose was security for the

lessee, for tlie due performance of the conditions of the lease. He was also co-partner

with Narayun Sing in the lease.

The Appellant was the heir and representative of Raja Bauikanth 1Zoy and Raja

Gopee Natlt Ray, his father and uncle, the lessors. The Res~oiidents represented

Ram Nursing Dose, the partner in the lease mit2h Narayun Sing. The otlier parties

to the suit had died, eseept Narayun Sing, W ~ O withdrew from the suit. soon after it

was commenced.

* Present : Members of the Judicial Committee~---I~ord Langdale, Lord CampheI1,

the Right Hon. Dr. ~ u s h i n ~ o i ~ , and the Right Hon. T. Perriberton Leigh.

Privy Cnuiicillors,-Assessors,-S~r A. Johnston, Knt., and Sir E. &an, Hnt.

- _. I - -- - _ _ - - - -~

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