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Smart Summary

Factual and Procedural Background

This opinion concerns a long-standing inheritance dispute over a Zemindary located in Midnapore, Bengal, involving the succession rights under conflicting Hindu customary laws: the Bengal law (Dayabhaga) and the Mithila law (Mitacshara). The dispute arose after the death of Raja Ajeet Sing, who died without issue in 1754, leaving two widows, Rany Bhowany and Rany Seeromany. The widow Rany Seeromany executed a deed of gift in 1800 purportedly transferring the Zemindary to Anund Lal Khan, which was contested by heirs claiming succession rights under different customary laws.

Several suits and appeals were instituted over the decades, including proceedings in the Zillah Court of Midnapore, the Provincial Court of Calcutta, the Sudder Dewanny Adawlut, and finally an appeal to the Judicial Committee of the Privy Council in England. Key issues included the genuineness and validity of the deed of gift, the rightful heirs according to differing Hindu legal traditions, and whether the succession was governed by Bengal law or Mithila law.

The appellant, Rany Srimuty Dibeah, widow and representative of Kundurp Sing (original plaintiff and claimant), sought to establish her husband's right to the Zemindary as heir and donee under the alleged deed of gift. The respondents, widows and heirs of Mohun Lal Khan (the opposing claimant), defended their possession and succession rights based on Dayabhaga law prevailing in Bengal.

Legal Issues Presented

  1. Is the deed of gift (ikrar-potta) executed by Rany Seeromany genuine and valid?
  2. If the deed is genuine, does it confer valid title without the concurrence of all heirs according to the applicable Hindu customary law?
  3. Which customary law governs the descent and succession of the Zemindary: the Bengal Dayabhaga law or the Mithila Mitacshara law?
  4. Who are the rightful heirs entitled to the Zemindary under the applicable law?

Arguments of the Parties

Appellant's Arguments

  • Kundurp Sing, represented by the Appellant, claimed the Zemindary under a deed of gift (ikrar-potta) allegedly executed by Rany Seeromany shortly before her death.
  • He also claimed hereditary right as the nearest male heir in the seventh remove from Raja Ajeet Sing, based on the Mitacshara law.
  • Argued that after the death of Rany Seeromany, the paternal uncles of Kundurp Sing renounced their claims in his favor, confirming his entitlement.
  • Asserted that Kundurp Sing was legally constituted as successor to the Zemindary by Rany Seeromany during her lifetime.

Respondents' Arguments

  • Contended that the deed of gift was a forged and fabricated instrument and even if genuine, it would be void and inoperative without the consent of all heirs.
  • Denied the Appellant's alleged relationship to Raja Ajeet Sing and challenged the claim to succession under Mitacshara law.
  • Asserted that the Dayabhaga law of Bengal governed the succession rights, under which the respondents, as mother's brother's sons, were entitled heirs.
  • Maintained that the deed of gift lacked the necessary consent of the heirs and was therefore invalid under the applicable Hindu law.

Other Respondents (Mother’s Brother’s Sons)

  • Supported the respondents’ position that the Dayabhaga law prevails in Bengal and governs the succession.
  • Asserted that the deed of gift was forged and invalid without their consent.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohun Lal Khan v. Rany Seeromany (2 Ben. Sud. Dew. Reps. 32) Validity of deed of gift and necessity of heirs' consent under Hindu law Confirmed that a deed of gift without consent of all heirs is invalid; deed alleged to be fabricated
Reprat Sing v. Toolnhul Sing (2 Moore’s Ind. App. Cases, 331) Application of Hindu succession laws in Bengal and Orissa Used to contrast Dayabhaga and Mitacshara rules in the family succession dispute
Rutcheputty Dutt Jhia v. Rajinder Hurain Rae (2 Moore’s Ind. App. Cases, 132) Interpretation of Hindu succession customs and validity of gifts Supported the principle that gifts without heirs' consent are not valid
Rajcjumder Yaran Choudry v. Goculchund Go (1 Ben. Sud. Dew. Reps. 43) Succession and inheritance under Hindu law Referenced for the application of Dayabhaga law in Bengal
Aulini Ghumd Dhtir v. Bejai Govind Biwall (6 Ben. Sud. Dew. Reps. 224) Principles of Hindu inheritance and property rights Referred to in the context of customary laws prevailing in Bengal
John Strange’s Hindoo Law (2nd Edition) Authoritative treatise on Hindu law principles Used to explain the differences between Dayabhaga and Mitacshara laws
W. Macnaghten’s Hindoo Law Legal principles governing Hindu succession and property Supported the Court’s analysis of the applicable Hindu laws in the dispute

Court's Reasoning and Analysis

The Court carefully reviewed extensive evidence, including genealogical statements, the opinions (bewustas) of multiple learned Pundits on the applicability of Hindu succession laws, and the validity of the contested deed of gift. The Court noted the complex nature of the evidence and the difficulty for European courts to weigh ceremonial and customary evidence precisely.

The critical legal question was which customary law governed the descent of the Zemindary: the Dayabhaga law of Bengal or the Mitacshara law of Mithila. The Court observed that the proceedings below and the parties themselves had proceeded on the footing that the Dayabhaga law prevailed in Bengal, including Midnapore.

The Court found that the deed of gift (ikrar-potta) was likely a fabrication and, in any event, invalid without the consent of all heirs, especially the male heirs who acted as guardians or protectors of the widow. The Court emphasized that under the Dayabhaga law, the mother's brother's sons were the rightful heirs, and this was supported by the consistent opinions of the Pundits and the decrees of the lower courts.

The Court rejected the appellant's claim based on Mitacshara law, finding insufficient evidence that this law governed the family’s succession. The Court noted that the Dayabhaga law was the customary law in force in the family and region, and that the mother’s brother’s sons had validly executed a la-davi (deed of relinquishment) transferring their rights to Mohun Lal Khan, which was lawful under the Dayabhaga doctrine.

Consequently, the Court affirmed the decree of the Sudder Dewanny Adawlut dismissing the appellant’s claim and confirming the respondents’ possession and title.

Holding and Implications

The Court's final ruling was that the appeal by Rany Srimuty Dibeah must be DISMISSED and the decree of the Sudder Dewanny Adawlut affirmed with costs.

The holding confirms that the Dayabhaga law governs succession and inheritance in the disputed Zemindary in Midnapore, Bengal, rather than the Mitacshara law. It also establishes that deeds of gift affecting inheritance rights require the consent of all heirs under Hindu customary law to be valid. The decision directly affects the parties by affirming the respondents’ title and possession and rejecting the appellant’s claims. The opinion does not establish new precedent beyond confirming the application of Dayabhaga law in this context.

    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

    721

    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 - -- - _ _ - - - -~

    722

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    Comments

    Rany Srimuty Dibeah v. Rany Koond Luta, and Rany Rung Luta, and Others (India)
    (Dec 3, 1847)