Maharajah Hetnarain Sing v. Baboo Modnarain Sing (India)

VXX MOOBE XND. APP., SlO MAHARAJAH HETNARMN SIKG

the parties must have been cognizant at the time, and, therefore, would be 110 excuse

for delay; and a reference to certain proceedings had in the Foujdary Court. We

are somewhat surprised that this last c i rcum~ance should have been introduced as

a reason for a review; for we apprehend that tha jurisdiction of that Court is

confined to cases of ~ o s s ~ s i o n , and %hat it i s beyand their province to inquire into

and ascertain the titles to landed property.

We derive no light from the decision of the Commissioner allowing this review;

110 further reason is assigned. Upon a consideration of all these proceedings, we

have come to the conclusion that, in granting this review, the reasons alraigned are

wholly iKisu~c~ent; that the requisites of the Regulations have not beeri complied

with; that 110 just and reasonable cause has been shown for the delay in presenting

the petition; and that that petition does not state any circumstances which, i n

justice, require the granting the review, It necessariIy follows that i f the review

was granted without due regard to the Regu~ations ~ o v ~ r n i n g such proceedings,

it, and all that hae been done under it, must fall to the ground. We shall, therefore,

humbly advise Her Majesty to reverse the decree of the 8th of June, 1848, and to

aErm the decree of the 8th of March, 1842; and, further, as imperatively required

b? justice, to condemn the [310] Government in all the costs incurred both in the

Courts below and upon the appeal, in all the proceedings since the 8th of March,

1842.

We believe that a decree of this tenor will be in strict conformity with the

Regulations which have the force of law in India, and, at the same time, may con-

tribute to ensure a just confidence that these special jurisdictions, which in some

degree displace the ordinary Tribunals of the country, will carefully observe those

rules whieh have been prescribed to regulate their proceedings ; rules which have

been wisely introduced to guard against the possible abuse of authority, and a

departure from which would be likely to produce distrust, and to defeat the principal

objects of their institution.

[See Forbes v. Bm+ee?~oonissa Begum, 1565, 10 Moo. Ind. App. 359; Sheonath v.

~~~~~~~~ 1865, 10 Moo. Ind. App,. 423; Skah M u k h m LalE 8. Bob,, Sree

Kishem ' S ~ ~ 9 7 ~ ~ 18G8, 12 Moo. Ind. App. 185; ~ ~ € r k ~ ~ ~ ~~~~~~ v, S h ~ ~ T ~ ~ ~ e ~ e

Singh, 1874, L.R. 2 Ind. App. 68.1

[311] ~ A H ~ ~ A JAH HE~NARAIN S I ~ ~ , - ~ ~ ~ e Z ~ o ~ ~ ; BA300 MODNARA~N

SING,-Reqmndeat * [June 17,18, 18591.

On ~~~e~~ from t i ~ e S'i&fer ~e~~~~~ Adadut of CaZcu.tta.

A deed of partition of a ~ e n ~ ~ n d a r ~ between two brothers, c a r r ~ i n g into effect

a solunamah and family arrangement to put an end to litigation previously

entered intoby their father, and for a division of the family estates, upheld.

Such a deed call only be set aside upon strong evidence, either of mistake, in-

equality, undue influence, coercion or fraud.

This appeal arose out of a suit brought by the Appellant against the Re-

spondent, in the Court of the Principal Sudder Ameen of Zillah Behar. The object

of the suit was to set &ide and cancel on the ground of fraud and deceit, a deed

of partition executed in December, 1810, by the Appellant and Respondent, to give

effect to a e o m p r ~ m i s ~ and adjustment of family disputes, and to set aside an agree-

ment for a division of the family estate, including an apportionment and division of

estates at Patna.

* Present : Members of the Judicial Committee,-~he Right Hon. The Lord

Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. The Lord

Justice Turner, and the Right Hon. Sir John Taylor Coleridge. Assessor,-The

Right Hon. Sir Lawrence Peel.

_I--

326

V. BABOU MODHARAIN SING E18591 VI1 MOORE IND. APP., 312

The circuI~stances under which the suit arose were as follows:-

The parties were brothers, the Appellant being the eldest, and the Respondent.

the youngest, son of Maharajah Mitterjeet Sing, the late Zemindar, who was [312]

seised of the entire Zeniindary. Family dissensions having arisen during the life-

time of MitterJeet Sing, certain proceedings were instituted, and on an appeal

to the Sudder Dewanny Adawlut, in a suit in which Mitterjeet Sing and the Appel-

lant arid Respondent were parties, a compromise was entered into, and a Razanamali

and Ikrarnamah, dated the 7th of February, 1824, was filed by Mitterjeet Sing, which

instrument was 'CO the effect, that the real and personal estates held by him, after his

death, was to be divided between the Appellant and the Respondent. The former

was to take a nine annag share, and the tateter a seven annas share. Partition deeds

of the same tenor were also filed, and on the 4th March, 1824, the Sudder Court

decreed, that the parties should act up to the terms entered by them in the ab0.i.e-

mentioned instruments. Mitterjeet Sing died on the 3rd of October, 1840, whe~i

disputes immediatel~ arose between the Appellant and the RespoAdent as to their

respective portions of the estate of the fate Mitterjeet Sing. The Revenue Com-

missioner of the Patna District having heard of the dissensions, recommended both

parties to settle their disputes by an amicable arrangement, which was agreed to

on the 24th of December, 1840, and accordingly, on the 30th of that nionth, a deed

of partition of the Zemindary, as well also another deed of partition of some house

property of the late Mitterjeet Sing, were executed by both parties in accordance

with the terms of the original compromise. This latter deed was, however, not in

dispute.

Tile Appellant a t first was satisfied with the partition. but soon afterwards

impu~ned the whole transaction, on the ground, that fraud had been practised [313]

upon him iu the division of the e&ate; and after proceedings before the Collector

of the District in which the estate was situate, and objecting to the transfer of

names, he brought the present suit in the Zillali Court of Behar, on the 3rd of August,

1849, against the Respondent, to set aside the partition of the Zem~ndary, alleging

in the plaint that gross fraud had been practised upon him in the division of the

property, and in preparing the partition deed, and also upon the grounds of in-

equality, concealment and fraud, and insisting that the deed of partition was on

those grounds fraudulent and void. The answer of the ~espondei~t stated, that the

claim of the Appellant was unfound~d, and set forth facts showing that the amicable

ndjustrnent and settlement, through the friendly intervention of the Commissioner,

was consented to by both parties with a full knowledge of all the facts; and further

stating that the deeds and instruments were all executed in the presence of the

Commissioner and other witnesses, and were to be considered as part of one and

the xanie ~ransaction. The answer also set forth s u b s ~ u e n t acts of the A~pel lar~t ,

which it was insisted operated as a confirmation of the partition. Witnesses were

examined by the Appellant. The evidence in support, of the Appellant's allegations

was weak and unsatisfactory. Three of these witnessee were examined as to the

alleged excess of the number of the villages, and the amount of produce of the entire

Zemindary, but without proving any fraud or deceit on the part of the Respondent,

or that the division and apportionment in the deed was different from that agreed

to by the parties. Other witnesses were examined as to the Appellant having been

ill previously to the execution of the deed of partition, but E3141 without proving

anything to lead to an inference even that he was not perfectly sound in mind and

understanding, or that he was otherwise than fully capable of protecting his own

interest when he personally attended before the Commissioner, and took part in

the adjustment and settlement of the disputes between him and the Respondent, or

when he executed the deed of partition. He did not examine any of the subscribing

witnesses to the deed, or his dewans, or servants, who were engaged on his behalf

in the e ~ a i ~ i n a t i o n f the Zemindary books and papers in preparing the list of the

villages and the draft of the deed of partition, or any one who was privy to the

division and apportionment of the villages or the principle and agreement on wliicli

such division was based and intended to Be carried out by the parties to the deed.

The fact of the due execution of the deed of partition and other cote~iporaneous

deeds, and that the AppeIlant was of sound mind at the time of execution, as also the

321

XOoRE MIt. UP., 316 ~ A ~ ~ ~ A ~ A H H ~ T A R A ~ ~ SING

participation of the Appellant and his agent in all the proceedings, was established

by the evidence of the Respondent’s witnesses.

On the 7th. of June, 1847, Xr. William St. Quintin, the additional Judge of the

Civil Court of Zil’tah Behar, before whom the case came, considered the deed valid

and binding in every respect, and passed a decree in the ~espondent’s favour, dis-

missing the Appellant’s claim with costs. The material part of his decree was as

follows:-

The objections now raised by the Plaintiff to the deed in question, are,

first, that he was deceived by the Defendant as to the real income and extent of the

property under division; second, that the deed was exacted from him by the threats

and undue haste of the commissioner^ and, lastly, that a t the [316] time when he

signed the deed he was too ill to know what he was about. It is in evidence that the

details of this division of the property were drawn up by the agents of both parties,

so that the allegation of deception on the part of the Defendant is untenable.

Besides, if deception was practised, the Plaintiff ought to have discovered it during

&e time the affair was under negotiation, and before his seal and signature to a

deed so complete in its legality as the one under review. The only threat on the

part of the Commissioner which appears in the proceedings in the Perwanah dated

the 24th of December, 1840, in which the Commissioner threatens a fine of Rs. 10,000

on the ~ l ~ ~ n t i f f if he did not refrain from disturb~ng the public peace of the Raj.

The Co~missioner obtained the consent of the brothers to an amicable ad~us tmen~

on the 24th of December, and the deed of adjustment was signed on the 30th of

that month. The allegations of threats and undue haste on the part of the Com-

missioner is, therefore, untenable. Besides, on the 3rd of March, 1841, the Plaintiff

addresses to the Commissioner his thanks for a Bhelut and other titular distinctions

about to bo conferred on him by the Government, and takes the same opportunity to

tliank hini for his amicable adjustment of the dispute between him. and his brother,

and to report that he has possession of his property in virtue of the deed of partition,

having, between the date of his address to the Commissioner and the date of the

deed of partition, brought to the notice of the Collector the frauds that had been

practised upon him at the time of the division of the Raj. It is proved Beyond doubt

that a t the time the Plaintiff signed this deed he was of sound mind and body.

the same day a second deed of partition E3161 was drawn out in the same legal

form, to divide the houses left by the late ~ a h a r a j a ~ ; and to this deed no objection

is urged by the Plaintiff .”

The Appellant appealed from that decree to the Sudder Dewanny Adawlut, ill

which Court he again urged and relied upon in support of the appeal the allegation

of the undue haste in which the deed of partition had been drawn up, and the

imperfect manner in which, in consequence thereof, the division of the property hitd

been affected.

The appeal was finafly heard in the Sudder Dewanny Adawlut on the 24th of

April, 1848, before Xobert. Haldane Rattray, Esq., one of the Judges of that Court.

when that Judge affirmed the decree of the Zillah Court of Behar with costs.

The present appeal was from that decree.

The case of the Appellant was, that the deed of partition of the Z e ~ ~ ~ n d a r y did

proof of intentional fraud to fail, he submitted that the error5 in the deed were so

gross and so ~ani fes t Iy unjust in their operation upon his interest that it could not

be upheld in a Court of Equity. The Appellant also urged that he was deceived

as to the real value of the estates comprised in the division ; that the matter had been

concluded with undue precipitation, and that he was coerced by the threats of the

Commissioner at a time when he was too ill to know what he was about, and to notice

the fraud which was practised By the Respondent.

The Respondent, on the other hand, insisted that the Appellant had failed to

prove the existence of any suck grounds of objection. That, notw~thstanding the

E3171 burthen of proving such charges lay on the Appe~lant, the Res~ondent had

proved that the settlement wm made bona! $a%, by and with the full knowledge and

active coaperation of the Appellant, and that the deed of partition, as weU as the

other deed respecting the houses, were prepared by the agents of both parties

8.cting tagether, and were deliberate~y executed by the Appellant with a full know-

ledge of their contents. Moreover, he insisted that the Appellant had shown l?y h i s

328

On ,

* not carry out the arrangement of the 7th of February, 1824 ; that even supposing the

9, BABOCI ~ O ~ ~ ~ R A I N SING [ 1 8 591 VII ~~~~ IND. UP., a8

subsequen~ conduct and acts that he acquiesced in the deed and in the division and

partition of the estate, and that he had so dealt with diiferent portions of t!e pro-

perty held by him under those deeds as now to prevent him putting the ~espondent

ill the same position with respect to such property as he would have been in if the

de& had not been executed; and lastly, he insisted that the p r ~ v ~ s i o n s of the deed

of p a r t ~ t ~ o n excluded a new d ~ y ~ s ~ o n , Ben. Reg. XIS. of 1814.

Nr, E. Palmer, Q.C., and Mr. W. Field, argued the case for the A ~ p e l ~ a i ~ t ; and Sir

Hugh Cairns, Q.C., and Mr. Leith, for the Respondent.

Their ~ordships’ judgment was delivered by

The Lord Justice night Bruce (June 23, l $ ~ ~ ~ . - ~ ~ l ~ s is an a p ~ e a l from a de-

cision of the Sudder Dewanny ~ d a ~ ~ l u t at ~ a ~ c u t t a , con f i rm~~~g a decision of the

Zillah Court of Behar, by which the Appe~~ant’s suit was dismissed with costs. That

stxit was instituted to set aside a deed of partition, which had [318f been executed by

the ~ p p e ~ ~ a n t , and his brother the Resp~ndent, and which p a r t i t ~ o ~ was, as to the

silares of the b r o ~ e r s , based on a ~olunamah, or inst~ument of c o ~ p r o m ~ s e of suit,

ratified by the decree of the Sudder Court. This compromise was entered into in a

suit in which the Appe~~ant was the ~ l a i n t i ~ , and his father, ~ a h a r a j a h ~ ~ t t e r j e e t

Sing, and the A p ~ e ~ ~ a n t 5 s younger brother, Nodnara~n Sing, were the

That suit i ~ v o ~ v ~ s ~ r ~ o u s and portan ant questions of d ~ ~ c u ~ t y concernii~g the parti-

bility of and success~on to the estate8 and property of the father, held by him in con-

nection with his Raj, and his power of disposing of any part thereof by alienation

in his lifetime. ‘It, involved also the validity of a donation by him to his son,

~ o d n ~ r a i n Sing, and a further ~ u ~ t ~ o n whether the P ~ a ~ n t ~ ~ had forfeited his

~nheritance by d~sgraceful ond duct ~nvo~ving s loss of caste.

The Appellant had succeeded in the i I~fer~or Court, and from the dec~sioK~ of that

Court the Naharajah had appealed. Xn the course of the suit, c ~ , i n ~ i ~ a t ~ o n s had

been ~ u t u a l ~ y made by th& father and the son, and the litipztiort, had it proceeded,

would probably have caused to the family niucli p e ~ u n i ~ r y loss and some disgrace.

By the con~promise, a family arrangement was effected, by whiclr the father agreed

to pay certain a~lowances to his sons respectively during his life, and they confirmed

certain gifts of the father ; he agreed to dismiss his appeal, and the sons agreed that

~ e t n a r a ~ n Sing ~ ~ ~ o u ~ d ~ after their father’s death, divide the a ~ c e ~ t r a ~ as well as

other pro~er ty between himself and ~ o d n a r a ~ n Sing, in the p r o ~ o r t i o ~ f nine to

seven annas, the elder son t ~ i n g the larger share. The Court acted on this

instrument, dismiesed the appeal, [319’J ordered’the costs of the Vakeels to be paid

out of a, moiety of the deposit, and the other moiety to be re-

turned to the fa~her, toge~her with the s ~ ~ ~ - m o n e y on the ~ n s t i t u t ~ o ~

of the appeal. The p a ~ i ~ ~ e nature of this estate, d i ~ ~ s ~ ~ ~ % in these pro-

p o ~ i o n s , stood, ther%~ore, ~ t w e e n these bro t~ers oa the footing of this compromise

only. The i n s t r ~ ~ t , of c o ~ p r o ~ i s e , though termed by Hetnarain Sing one of

partition, contained no express prov~sion for a partition ; but that power flowed

from the relation of jo in t~wnersh~p in which they had agreed to stand.

After their father’s death, the sons acquiesced in the ~ n s t r u ~ e n t of compro~ise.

I t i s i m n ~ ~ t e r i a l to consider whether either could hav0 disputed it, and whether any-

thing had i n t e r ~ ~ i a t e l y been done which entitled either, a c c o r d i ~ ~ ~ to the law a&

a d n ~ ~ n ~ s t e r e d in the native ~ ~ u r ~ ~ , to recede from it. The disputes and ~ ~ ~ i ~ a t i o ~ r

wfiick s u ~ e q u e n t ~ y ensued turned upon matters e ~ n s ~ s t e R ~ with such acqu~es~ence ;

each claimed the share of the estate which the comprom~~e s cured them, and these

proportions had no other foundation.

The partition which took place, and which the suit of the A p p ~ l ~ a n t seeks wholly

to ; ~ K I X X U ~ and set aside, was, in c o ~ s ~ q ~ e n c e of fresh disp~tes between the ~)rot~lers,

a r~s ing from their unfr~endly feeling to each other, and their mixed enjo~nlent of

the estate under such e ~ t r ~ ~ ~ e ~ e ~ t , ~ ~ ~ ~ e s t e d by Mr. ~ v ~ n s ~ a ~ , the Revenue

~ o m m i s s ~ o n ~ r for the District ~her1‘8 the property wag situate. It was a measure

e u b s t a n t ~ ~ ~ l y in ~ u ~ h e r a n c 0 of the instrume~t of cor~promise. From the evidence

of the r e s p ~ t a b ~ e and wholly uni~peached witnesee8 who took part in the p r ~ ~ p a r a t i o ~

of the partition deed under the direction of the Gorn-[32~]-missioner, and, to some

extent, under his own superjntende~c~, it appears to their Lordships that, the par-

tition was prepared and settled with care and de~~bera t ion~ without haste or

p r e c ~ p ~ t ~ n c y , and was exscufed by the brathere openly and p u b ~ e l ~ , ~ ~ ~ 1 ~ 0 ~ ~

P.C. VIXX. 329 1 ia

VI1 MOORE IND. APP., 321

restraint or coercion, and with full opportunity for inquiry; and 011 the part of

both, with presumable competent knowledge, a presumption which is not rebutted.

The Appellant, in excuse of his own appareat negligence, (supposing his case to

be as he states it,) alleges that he was sick at the time and incapable of attending

to business; but his own temporary incapacity would not have extended to his

competent agents and assistants in the work; and his own witnesses do not re-

prebent him a8 wholly incapable of acting in matters of business during this time,

but, on the contrary, as occasionally taking part in the transaction of them. The

alleged haste and precipitancy of the settlement, another explanatory cause which

he alleges as conducive to the success of the deceit which he alleges to have been

practised against him, is also disproved, in their Lordships’ opinion, by the evidence

as to the fmctum of the deed ; and the alleged force upon him, which is said by him

to have proceeded from the Commissioner, is altogether without proof. That the

wishes and influence of the Commissioner may have operated upon the mind of the

Appellant so as to induce hini to join in the partition which the Commissioner

applied himself to effect, is very probable ; and that species of influence a dissatisfied

party may readily transmute in his own mind into pressure and coercion. But

their Lordships can find no evidence in the case of anything amounting to force or

coercion [321] of the Appellant ; and the letter of the Commissioner to the Appellant,

on which so much stress was laid by Mr. Palmer in his reply, seems to the$ Lordships

to bear really the meaning which the Counsel for the Respondent gave to it. It

contains matter of suggestion ; and the allusion to the Rs. 10,000, is an allusion to

a species of recognizance not unknown in similar transactions, *hereby a landed

proprietor engages for the peace and good order of his Zemindary. If, then, there

really were any gross inequality in the partition, and, as it is said, the T aiina shiirer

really got in point of profit that which the 9 anna sharer should have received, so

that their positions were in a manner inverted, their ~ r d s h i p s would in this case,

under all the circumstances in proof of the participatioh in the transaction of the

Appellant’s own competent agents, be unable to ascribe the failure to negligence or

mistake.

But the case is

abandoned on the ground of fraud; and the same weakness, indirectness, and

argumentativeness of the evidewce, which displaces that ground ef charge, applies

equally, if not in greater degree, to the ground of mistake, which can have no

f o u ~ d a ~ i o n , if the inequality of value be not established. Now, if this inequality

really existed to any such extent as would have vitiated the partition, it is difficult

for their Lordships to conceive that stronger and more direct proof of it could not

have been given by the Appellant. He must have known, and have had the means of

"

proving, his actual receipts soon after the partition ; the actual value was capable of"

direct proof, yet he offered none of that character.

E3221 The Courts in India are very particuIar in requiring the strictest proof

when a deed prepared and executed as this has been, especially where it is one in

furtherance of a compromise of suit, is sought to be set aside: a precaution which

should never be relaxed, where the spirit of litigation has so little check, and so much

wider means of mischief, than it has here. It appears, therefore, to their Lordships

that the Courts below rightly dismissed the suit, and that it would be of dangerous

consequence to allow a deed of this nature to be impeached on evidence no stronger

than that which this case presents.

The view which their Lordships have taken of the evidence as to value, renders

it unnecemary for them to express any opinion on the other parts of the case.

They have no hesitation in recommending to Her Majesty to dismiss this appeal,

with costs.

MAHARAJAH H. SING 21. 3381300 11. SING [ 18591

Corruption of such agents would be the more probable solution.

330