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

they were not heirs) were ~uardia?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 nd

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

U. ALUK ~ ~ U ~ . J ~ O R ~ E DAYIAH [ 18481 IV MOORE IND. UP., 313

The nature of the lease, and the cireunistances wvhich led to the lessee bekg dlh-

posseeaed of the pergunna, are fully stated in the judgment of their Ilordships.

Mr. Turner, Q.C., Mr. Jackson, and Mr. FuIton, in support of the u p i m t relicd

OII the following reasons : -

I.--Because the ancestor of the Appellant con-[323]-1 racted with Itaiii Xarayun

Sing aloue (Ram Nursing Bose being only the surety lor the due pwforniance, hy

Karayun Sing, of the conditions of the lease); and as. therefore, there was 1 1 0

contract or privity between the Appellant and Rani Nursing lsosc, or hi% reprc-

sentatives, the latter were not competent to institute tlie prcserit wit.

11.-Because Ram Nursing Bose, being the surety for the Icssee, was inrorrrpctt.rit

to participate in the profits of the lease.

111.-Because Narayun Sing, haviiig permitted tlie ( ~ ~ ~ e ~ i i i ~ i ~ i i t revenue to fall

into arrear, the Collector was justified i n rehutiiiiig, aiid hound to resume, the Itbait’,

uiider the ternis of the en~agement and dowl of the 9th of 9pri l 1SIG.

1V.-Because the debts specified in the agreement not having been paid off b~

Knrayun Sing, according to the terms of the lease, he was, therefore, not entitled to

retain possession of the Zeniindarp.

V.-Because tlie estate being let in farm, and the property of a minor, and, there-

fore, not liable to sale for arrears of the Government revenuc, the Collector waz

bound to obtain good security for the paynieiit of such ievenue; and because the

question of the sufficiency or insufficiency of the security tendered, was purely

within the discretion of the Ccllector or fiscal authorities, aiid that discretion war,

honestly and properly eserrised.

VI.---Because if the Itespor>deIks were entitled to any relief iii this auit, theie

vas no evidence to show that they were entitled to more than four-sixteenth shares i n

the benefit of the lease, inasmuch as it .appears that Bislionatli Bose and Ram Dhun

Bose, who were not parties to this suit. would, in such case, he entitled to eight-

sixteenth shares.

[3!&4] VII.---5ecause the farmer %-as entitled to a moiety of the iirereased pro6ts

arising from the Zemindary, only in case of tlie same being recovered tltrough his

own “ means and endeavours; ” m d the Court decreed payment to the Respondents,

of the augmented profits obtained under the management of the Collcrtor, Zknd iii

no respect by the “ means or endeavours ” of the lessee.

Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edmuiid F. Moore, for tlie B e ~ p i m -

dents, conteiided that the decree appealed f roni, was proper, for tlw folloivi i1g

reasons : -

I.--Because the disposseosion of the lessees from the Perguiina Syedpoor, before

the expiration of the term granted by tlie lease, was uiijust, and contrary to law :

aiid the lessees, and those claiming under them, liecanie entitled to recove- the

artiount of damages occasio~~ed thereby.

11.-Because, in the circumstances of the case, the Plaiiitiffs were justly ez.tit1ed

to demand from the Appellai~t, or his estate, compensation for the loss occasioned

to thenz by their ouster from the pergunna, and the amount nwarded by the decree

of the Sudder Adawlut did not exceed, and in fact did not equiil, tlie s u ~ n Vchidi

they were justly entitled to claim.

The cases and authorities referred to, were, !%taharaja Tea CkiwcI Bdiadw r.

t5’r.c; Kanth Ghose (3 Moore’s Ind. App. Cases, 261). Koonjbehary LnJ v. T?re Govern-

ment (3 Ben. Sud. Dew. Reps. 85). 1

Strange’s IXindoo Lam, 229 (2nd Edit.). Bengal Regulations, II., of 1793, secs. 36

and 37; VI. of 1822.

Coleb. [326] Dig., 22G, 228, 253, 264.

The Right Hon. T. Pemberton Leigh.--This was ail actioii brought by the He-

spondents, against the Appellant, to recover damages for the loss alleged to have

been sustained hy the former, through tlie wrongful act of the Appellant. The wrong

coniplained of, was the ouster of the Respondents, from certain leases, in nhich they

alleged theiiiselves to have been interested, under a grant made by the artcwtms of

ttie AppeIIant. 0

In 1516, the father and uncle of the Appel~aiit held the Perguiina of Syedpoor, in

the district of JeEsore, as Zenzindars, subject to the payment to the (hernment,

of an annual revenue of Ms. 13,296.

7 23

The revenue had fallen into arrear. The ~ e m ~ n d a r s were involved in debt to

a large aniouI~t, and in order to raise a sum of Its. 54,000, they agreed to grant it

lease to a person, ~ ~ a n i e d Xarayun Sing, of the ~ e ~ . ~ n n a of Syedpoor, he under-

taking to raise the required loan, and to pay the ai~iount by ~nsta~ments, out of the

rent of the pergur~na.

~ ~ ~ r a ~ u n Sing appears to have been co~~nected with a family of the name of Bose :

on0 of this f a ~ i l y ? Ram Dhun Bose, was a ~ a n k ~ r , and from him and his partner

this loan was intended to be raised.

The first document connected with this transaction is dated 30th of March 1816,

It is a niemor~ndun~ signed by Narayun Sing, and addr~ssed to the Rajas. Tke

egect of i t is, that Narayun Sing i s to receive the rents of the per~unna , of which the

profits payable to the lessees, after d i s c h a r g ~ n ~ the revenue to ~overn-[326]-ment,

are stated to a m o ~ ~ n t to Rs. 13,100, and of this, Rs. 7 ~ 0 0 per annum are to be paid to

the bankers, leaving Rs. 6100 for the Rajas. Out of this sum, Es. 105 are to be

deducted by way of allowance to Narayun Sing, leaving Rs. 5995 for the Rajas. If

a n ~ h i n g further can be received from the Ryots, one half is to be paid to the Rajas.

If on e~amination of the Roll and papers, and inquiry in the district, the rent i s

found to be less than it is rated at by the parties, an allowance i s to be made to

~ ~ r a y u n Si g.

On the 9th of April, a correspondi~g docuine~t is signed by the Rajas, and

addressed to Narayun Sing: on the same day, a grant is made by tlze Rajas, to

Narayun Sing, of the pergunaa in question, for a period of ten years, which is

obviously intended to be in conformity with the agreement of the same date.

On the 12th of April, a c o r r e s ~ o ~ ~ d i ~ ~ document, or, as we should call it, a

~ o u n t e r ~ ~ a ~ t of the Iease, is signed by Narayun Sing, The material portion of it is

in these terms: ‘‘ This a~reement has been written by Narayun Sing, in the year

1882. You have given me a iease of the entire pergi~nna of Syedpoor, your

~ e m i i ~ d a ~ y ~ upon my application, from the year 1223 to the end of 1232, for a term

of teen years. E do hereby volu i i ta r~ l~ give this engagement of my own accord, that

I shaII have possession in the district, and pay the annual rent according to the Roll,

after deducting the espenses of ~anagemen t and servants’ allowance, at Chaneda, *

ir, the sun1 of S. %s. 56,397, of pi.hich I shall pay the revenue of the pergunna, fixed

iii the ~ ~ l ~ e c t o r a t e , th sum of Rs. 43,296. 3a. 1%. 2k., according to i ~ s t a ~ m e n ~ ,

~ i o n t ~ ~ ~ , into the ~ollector’s treasury, and deliver to you receipts under the f327’J

seal and s ignatu~e of the Collector, and receive receipts from you.” It then provides

for the payment of Rs. 7000, to the bankers, and the Rs. 6100 to the Rajas, omitting

the allowance of Rs. 105, which was provided to be made by the agreement with

Narayun Sing.

From these documen~s, the mode in which. the rent is e s t ~ ~ a t e d s u ~ c ~ e n t ~ ~

appears. ~ ~ s c a r d i n g from considerat~on, for the preseat, the sum of Rs. 11,792 to

which we shall ~f terwards advert, the produce of the estate i s calculated, after

deductions, at as. 58,69~. From this is allowed, for expenses of maiiagement, Rs.

2295, leaving fo r actual rent Bs, 56,397, o m i t t ~ ~ ~ g the smaller d c n o ~ i ~ a t i o n s of coin.

Rani Nursing Bose becanie surety for the due perforniance of the enga~en~ent

of Narayun Sing.

On the 29th of April 1816, a memo~andun~ i s made between R a h ~ u r s i ~ g Bose,

Ram Dhun Bose, and Narayun Sing, by which their interests, as par~nera with him

in the lease, arc recognized; Ram Nursing Bose having a four-anna share,

In the end of the year 1816, i t was represe~ted by Narayun Sing, that the ineoilze

of the estate was less than i t had been represented, according to the Roll, and that

after deducting the sums allowed for management, and also a sum of Rs. 105 (which

had been ~ e n t ~ o n e d in the a g r e e ~ e n ~ , which preceded the lease, but had been

o ~ ~ ~ t t e d in the lease itself), the aet rent, instead of Rs. 56,397, would be only Bs.

54,981. lier re upon this me~oranduni is signed by ~ a r a y u n Sing; and Ram

Kursing Bose, as surety, is a party to i t : which a~reement is simply to reduce the

rent in the manner pointed out in the memo ran dun^*

E t i s clear th$, a t this time, there was no profit upon the lease; that is, no

recognized or ~egi~i inate profit, [a81 beyond that which might arise from the large

a ~ ~ ~ w a n c e s for ~nanageinent.

Previously to the year 1819, by the death of one of the Rajas, and a transfer of

724

.2’. ALUK ~ U N J O ~ R E ~ DASIAH [I8481 IV XOORE IND. U P . , 328

his interest by the other, the pergunna in question became vested in the Appellant.

The new owner being a minor, the property came under the care of the Court of

Wards; a Court which appears to have a double jurisdiction, the ~uardia~is l i ip of

infant estates, and the protection of the public revenue.

111 July 1820, the Collector of the district where this property wan situate, ex-

amined into the circumstances of the minor’s property, and the conditions of this

lease. It appeared to him (not, perhaps, very naturally), that this lease was most

detrimental to the infant, and he considered that it contained much evidence of

fraud and oppression practised by the lessee towards the lessor; and, in a letter

addressed by him to the Court of Wards, on tlie 1st of July 1820, he advised that the

Court, as of their own authority, should annul the transaction, and niake a new

lease of the property.

The Court of Wards, however, considered that this proceeding would not be justi-

fiable, and that the existing arrangement could only be set aside, by a suit instituted

by the minor, for that purpose. They wrote a letter to this effect to the Collector,

on the 11th of July 1820, recommending, that if a new arrangement could be made,

with the assent of the lessees, it should be done, They conclude their letter with this

paragrap~i :-‘‘ As the Court are of opinion that the settlement of Syedpoor, formed

by the late flaja, cannot be disturbed, it will be necessary to require the farmers

to give security for the fulfilment of the esisting en-[329]-gagement, or those which

they may assent to, under the preceding instructions ; at all events, the regular

liquidation of the Government revenue must be secured.”

In November 1820, the Government consented to advance two lacs of rupees to

the Court of Wards, to enable them to pay off the encumbrances on the minor’s estate.

On the 2nd of February, the Collector wrote to Narayun Sing, and required him

to come to a Settlement, upon fair terms, for the property which he held, giving him

notice that if he refused to do so, the money due on the mortgage should be paid off,

and the lease annulled.

What was done upon this does not appear, further than that Narayun Sing did

not consent to make any new arrangement.

The Bengal year 1227 terminated in the month of April 1821, and the only

evidence we have of what took place, is a statement in a letter of the Collector, to

the Court of Wards, of the 5th of July. From this it appears, that, in the beginning

of the year 1228, which would mean in April or May 1821, he called upon Narayun

Sing to give the security required by the last paragraph of the letter of the 11th of

JuIy 1820, and, at the same time, issued a proclamation to the Ryots, prohibiting

them from paying any revenue to the farmers, until such security should be Tendered

and accepted.

It is said that, at this time, tlie revenue was in arrear. The Judges in the Court

below appear to have considered that this was not the fact. There does appear to be

evidence, then, that about two months’ revenue was unpaid a t the end of the year

1227. 30 demand, [ S O ] however, seems to have been niade for payment, and it is

not a t all referred to as the ground on which security was required, or on which the

lease was to be attached.

On the 20th of June 1821, notice was given to Narayun Sing that, unless he

furnished security, the lease would be attached. Several persons were, accordingly,

proposed a8 sureties by Narayun Sing; amongst others, a person named ~ u n ~ a l l y

Bose. They were all, however, rejected by the Collector, who, on the 5th of July

1821, communicated what he had done to the Court of Wards, in the following letter :

-“ It appearing that the farmers of Pergunna Syedpoor have never furnished the

security required by the last paragraph of your predecessor’s letter, of the 6th of

July last, I beg leave to acquaint you that, previously to allowing them to commence

the collections of the present year, and with the view of securing the regular payment

of the revenue of the ~ v e r n m e n t , I called upon them to furnish the security re-

quired; and, a t the same time, I issued a proclamatjon to the Ryots, p ~ o h i ~ i t i ~ g

them paying revenue to the farmers until such security should be tendered and

accepted. Narayun Sing, the recorded farmer of Syedpoor, has offered, as his

security, the five persons noted in the margin ; but as they are all sharers with him

in the farm, I have rejected their security. The security of Bishonath and Bun-

mally Bose is, besides, ~nadmissible for other reasons, as the former is security, to a

785

IV MOORE IND. APP., 331 RAJA XUILI)AK.ANTW ROY

large aniount, for the treasurer of this office, and also for one of the record-keepers."

Then it mentions the objections to other parties. Then he says, * ' A period of fifteen

days having elapsed since the issuing of the above order, and no other security

[a13 having been tendered by the farmer, I beg leave to propose that, as the collec-

tions of the year are a t a stand, tlie pergunna be in~niediate~y attached."

On the 6th of July, the day after this letter, he served a furtlier notice on Nara-

yun Sing, iii these terms:-" Be it known to Marayun Sing, farmer of the Pergunna

of Syedpoor, that you have often been required to furnish good security; you have

not yet furnislied i t ; if you intend to furnish good security, you are to attend at

ten 0'cIock to-morrow, with good security.

On the 17th of July, the Court of Wards wrote as follows to the Collector :-'. I

am directed to acknowledge the receipt of your letter of the 5th instant. Unless the

farmers of the pergunna al)ove-nanied are in balance, the Court consider the measure

pursued by you. as contained in the first paragraph of your letter, premature, and

Rhould not have been adopted witliout a previous report to the Court. With refer-

cme to the last part of your letter, the Court desire that i f , when you receive these

orders, the farmer has not tendered responsible security, you will attach the estate,

and, after the prescribed manner, issue advertisements, invitiiip proposals for the

farm for tlie utrespired period of the minority."

The C o 1 ~ ~ e ~ t ) r appears to have discovered, that the objection which he had made

t o Wuiinially Sose as a surety, viz., that he was interested in the lease, was unfounded,

and he, therefore, withdrew that objection, but he considered that he was not a

sufficient security, and required some additional security to be provided. Narayuu

Sing did not provide such additional security, but he offered to deposit lis. 10,000,

tititi1 the security-bond should be executed by Bbnmally Bose. This [332] offer was

rejected, and, in the month of August 1821, the Collector attached the estate, and

entered into receipt of the rents. On the 15th of August 1821, he wrote to the Court

of Wards, iiiforniing them of what he had done ; and, on the 17th of August, the

Court returned an answer, a ~ ~ r o v i K ~ g of what had been done, but d i r ~ t i n g that

~ d v e r t ~ s e t ~ i e n t ~ should be issued for the re-letting the property, according to the

ltegulatioits (which seem to have required an interval of twelve months), and direct-

ing that if, in tlie meantime, good security was offered, the farmer should be restored

to possession.

In Septci~~~ier 1S21, Narayun Sing appears to have petitioi~ed the ZiIlah Court

ftir relief. The Court refused to interfere, a decision which was confirmed by the

Sudder, on appeal, in June 1822. In the meantime the estate waR let by the Collector

f o r a large increased rent of Rs. 51,026. This arrangement was communicated by

the Collector, to the Court of Wards, on the 18th of February 1522, and confirmed

bp the Court of Wards, on the 11th of June 1823.

Ram Nursing Bose having died, leaving the present Res~ondents, his represew

tar,ives, a suit was instituted, in July 1826, by them, together with Narayun Sing,

against the Appellant, to recover damages for the loss which they had sustained by

being turned out of possession under the lease. Narayun Sing aftersards withdrew

h i s claim, and the suit was conti~~ued by the ~ e s p o n d e n t ~ .

After nt t tc l i l i t ip t ion in the Courts below, and much difference of opinion

icmongfit the Judges, on the 4th of April 1837, final judgment was pronounced for

the Plaintiffs, awarding to tlieni a sum of Rs. 35,531, together with interest upon

part, from the time of [333] their expulsion ; and, upon the whole, for the end of the

term of ten years in the lease.

Against this judgment the present appeal is brought, and the ingenuity of

Counsel has suggested a great niany objections, some of which do not appear to us

to be of much weight.

First. It i s said that tlie Respondents were not parties to the contract with the

Rajas, and, therefore, could not sue for any breach of it. The answer is obvious:

that the suit i s not founded on contract, but is a wrong alleged to have been done bp

the Appellant in depriving the Respondents of property, in which they had a

valuable interest.

Secondly. It is said that Ram R'ursing nose could not B a ~ e any interest in the

lease, because lie was a surety for the due per for~~ance of the obligations contained

in it, by the lessee. A passage was cited from Colebrooke's Digest, to support this

726

Consider this as peremptory."

2'. ALUK ~ U ~ ~ O O R ~ ~ DASIAH E18481 IV MOORE IND. APP., 381

objection. It does not, however, appear to us to have any bearing on the case, and

lye have 110 doubt that Rani Nursing Bose has an interest for any injury to which he

1) aa entitled to compensation.

Thirdly. It was said that this was a mere mortgage traIisaction, which the mort-

gagors had a right to t e r ~ i n a t e by payment of the ~or~gage-n~oney. This does not

appear to us to be the exact nature of the transaction. Xarayun Sing engaged to

Imoeure a loan, in consideration of having a beneficial lease for teri years. He did

procure the loan, and his interest could not be defeated by paying off what was then

due to the lenders.

Fourthly. It was nest said, that the revenue was in arrear at the tirne when the

leahe was attached, and that there was power under the lease, in that case, to resurnth

possession of the estate.

[W] If this had been the ground on wliich tbe a t t a c ~ ~ n ~ e n t took place, it would

have been necessary to examine very particularly into the evidence, iit order to see

whether anything had occurred which enabled the lessor to take advantage of a

forfeiture. But, in fact, it is quite clear that no proceeding was ever taken upon

any such ground, and that tlie lease was annulled because tlie lessee had failed to pro-

ride the security required by the Court of Wards on behalf of the Appellant.

The only ~ubstaiitial questions in the ease are, First, Was that Court justified in

antlulling the lease upon this ground? Secondly, If not, have the damages done to

the Respondents been assessed upon a reasonable principle.

It is clear, froni the documents already referred to, that the security required

TT as for the performance of the engagements contained in the origiiial lease, and not

irierely for the payment of the revenue to the Government. If any doubt could exist

upon the point, it would be removed by reference to the security-bond, proposed by

the Collector for eiecution by Bunnially Bose.

Theri, was there any right in the Court of Wards acting for the minor to require

titis security? The original lease, with a surety whom the lessors considered suffi-

cient, had been granted by the ancestors of the minor. That surety was still alive,

and no change is shown to have taken place in his circumstances. I t would be

singular i f the circumstance of the estate devolving on a minor would enable the

Court of Wards, ori his behalf, to interfere with and alter the terms of a contract

made by those through whom he claims. No authority of any kind has been [a]

produced to show the existence of so estraordinary a power, and we must, therefore,

assume that no such authority exists. If this be so, the dispossession was clearly

iyrongful, and the Respondents were, in our opinion, entitled to maintain their

action.

But there reniains a question hardly less important, upon which we find it quite

iiiipossible to concur in opinion with the Coiwt below, viz. the principle upon which

they have assessed the damages.

In the first place, they have given damages to the Respondents, as beirtg entitled

to a twelve-anna share, 01% t w e ~ v e - s i ~ t e e ~ ~ t ~ ~ of the lease.

Now the only evidence in the case of Ram Nursing Bose having any interest at

all, is found in the agreement of the 29th of April 1816, already referred to, by

which Ram h-ursing Bose would be entitled to a four-anna share, and the answer of

the Appellant in this suit. according to which he would be entitled to a five-anna

share.

A suit was referred to, by Mr. ~ ~ i ~ r a i i i , as decided by the Sudder Court, and set

forth in the papers, from which he argued that it was to be inferred that Narayun

Sing and Ram Nursing Bose were partners in the lease. But, upon evamining that

suit it does not even show that Rani Nursing Bose has any interest whatever in the

lease. HOW, then, is it possible to hold, as the Court

below has done, that Ram Nursing Rose had a twelve-anna share?

Again, wi th respect to the computation of the loss, the Court appears to UR to

have adopted a verv erroneous principle. They have held, that, under the original

lease. the lessee had a clear profit-rent of RB. 12,834, and holding the Respondents

entitled to thyee-fourths of that sum they consider them to have [336] had a profit

of RP. 9632 per annum, and they give them that sum for four years. amounting to

Ne is trustee merely as surety.

atlove RS. ~81500.

The profit-rent i s thus made out : Thev treat the sum o f Rs. I2,193. suspended

737

IY MOORE ZND. APR., 331 R. XURDAKANTN ROY w. ALUK &I. DASAIW [ 18481

in the original lease, as a profi~rent i~iteiided to be kept by the lessee, they then say

that it appears that, in the Bengal year 1227, that i s to say, in the last year of their

holalding, the lessee had increased the reiits of two portions of the property by the sun1

of Es. 2097. To one half of this increase the lessees would be entitled ; and, adding

this sum, Rs, 1048 to Rs. 11,792, the aniount wilI correspond with the sum stated in

the judgment.

The question, then, is, ought the sum of Rs. 11,792 to be treated as a profit-rent

to the lessee, as a consideration for procuring a loan of Rs. 54,000 should have not

only all the other advantages secured by the lease, but a gratuity of Its. 11,792; for

this would be the sum he would receive during the ten years’ term.

If a n ~ t ~ ~ i n ~ so ~ o ~ s t r o u s was intended, it should have been expressed in the most

distinct terms, But so far is this from being the case, that the engagement of Nara-

yun Sing is distinct to pay the annual rent, according to the Roll, and none of the

Counsel on either side, at the hearing, could explain the item from whieh this extra-

ordiiiarg inference is drawn. The natural i ~ ~ t e r p r e t a t ~ o ~ to be put upon it, as we

think, is, that, from the gross sum appearing upon the Roll, a deduction of Rs.

11.792 was made in respect of sunis which, for some reason or other, would not be

received during the lease.

This construction i s quite ~ o n s i s t e ~ ~ with the agreemertt which preceded the lease,

v;ith the subsequei~t reduction of rent in consequence of the deficiency in the Roll,

and with the whole conduct of the parties.

[337] In a letter of the Collector of Jwsore, of the 1st of July 1830, already

referred to, this sum is spoken of as a sum suspended without any assigned cause.

In the answer of the Court of Wards, it is suggested that this suspension could hardly

haye been made without some ~ u ~ c i e i ~ ~ , or, a t least, ostensible cause, and that they

could not assume that the parties were f raudu~ent~y withholding so considerable a

portion of the revenue.

We are satisfied, therefore, that> this was not a sum in whieh the Iessee was

fntended to take any interest. The profit which he was to derive from the lease

was, however, coiis~derable. First, he wths allowed between two and three thousand

iwpees for the expenses of management. Secondly, he was to have five per cent. on

balances. Thirdly, he was to have one half of any increased rent which might be

derived from the property, through nepv arrangements which it was conteniplated

might be made with the Ryots, by a new settlement and 1-e-~neasuren~ent of the

iroperty. If he derived any profit beyond this, such profit would not have been

according to his agreement, but in fraud of it, and we think it cannot be allowed.

We agree with the Court below in thinking, that the Respondents could not claim

a share of the profits made by the new lease, because such profits were not made,

arid it does not appear that they could have been made, by the original lessees, nor

have we any means of judging whether any, or, if any, what profits could have been

made, or mould have been made, by them.

In strictness, the proper order would be to vary the decision of the Court beiow,

by declar~ng that the Respondents, instead of twe~~~e-s i~eenths , were e n - [ ~ ~ - t i t l e d

to five-sixtee~ths of the whole value of the lease a t the time of et-iction. That, in

cornputing the value of such lease, no allowance ought to be mrsiie for the stxpposed

profit-rent of Rs. 11,792, but that allowance ought to be made for one haIf of any

increased rent which has been secured by the lessee before the eviction, and also for

any excess of the sum allowed to the lessor for expenses of managenlent, beyond tlze

necessary expenses of Collector ; and that regard ought also to be had to the cllance

of any increase of rent which the lessee might have fairly expected to receive.

It is obvious, however, that the Judges below could have little better nleans OP

fixing a fa i r amount of damages than we have; and we propose, after declaring the

principle on which we proceed, to name a gross sum, by way of damages, and thus

put an end to all further litigation. Taking the damages for the whole period of

five years, me think a sum of Rs. 10,000 is proper to be allowed, as of the date of our

judgment, till payment. We shall leave the costs below unaltered, and give no costs

of appeal.

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