t^noREPORTS OF SELECTED CASES DECIDED BY THE SUDDER DEWANEE ADAWLUT, BOMBAY. 35 o m K> a g i RE-PRINTED FOR GOVERNMENT AT THE EDUCATION SOCIETY’S PRESS, BYCULLA.ADYERTISEMENT. The Reports in this Volume prepared, with a few exceptions, by the Gentlemen who have held the Office of Deputy Registrar of the Court, are arranged according to the dates of the decisions, which are scattered over a period of twenty years, from a.d. 1820 to 1840. The Cases have in some, the earlier, instances been selected by the Reporter, and in others, the later, been noted by the Judges who sat, as proper subjects for publication.TABLE OF CONTENTS. Subjects. Reported by a Ph 1 jCase of contested inheritance, Hindoo Law. 2 I Liability of a Son for his deceased Father’s I debts—Hindoo law ................................ 3 Action for ditto ................................... 4 Responsibility of a verbal Security................. 5 Broker, liability of, for consignment............... 6 Liability of owners of a boat for property lost.. 7 Adoption, claim of Hindoo, under.................... 8 Action to recover damages for injury to proper- , ty under attachment.......................... 9 Claim under a decree on an Estate of a de- ceased ....................................... 10 Ditto. ditto............................... 11 Trespass. Seizure of cattle on account of tran- sit dues.......................................... 12 Ancestral property, interest of Father and Son by Hindoo law. ................................... 13 Attachment on account of alleged fraudulent transfer of property.............................. 14 Claim of a third party, to a share of property sold in execution of a decree, recognized. . . . 15 Law of limitation................................... 16 Marriage, breach of promise of, by Mussul- man........................................... 1/ Lease, resumption of............................. 18 Farmer of taxes, privileges of................. 19 Jurisdiction, extent of, in regard to Agent and Principal....................................... 20 Contested inheritance and right of adoption. . . 21 inheritance under Deed of gift...................... 22 Defamation of character ................... ........ 23 Caste, Bye-laws of, not universally to be up- held ..................................... ....... 24 Parole engagement, breach of....................... 25 Ship owners, liability of, for loss through act of theii% Tin dal .................................. 26 Restitution of conjugal rights..................... 27 jClaim to exemption from operation of assess j ment fixed by a Revenue Survey.................... Mr. Mr. Mr, Mr. W. E. Frere . Ditto ....... A. Spens . . . Ditto............. Ditto............. W. E. Frere R; T. Webb Ditto........... Ditto............ Ditto........... Ditto........... Ditto........... Mr. W. E. Frere Ditto........... Ditio........... Ditto .......... Ditto........... Ditto........... Ditto .... Di! ! S) . . .... Ditto........... Ditto........... Ditto........... Ditto........... Ditto........... Ditto........... Ditto .......... 4 13 16 19 21 25 32 34 35 36 43 46 52 57 60 65 70 75 80 88 102 105 108 111 115 118VI TABLE OF CONTENTS. o & Subjects. Reported by. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 5 J 52 53 54 •J J 56 57 58 Caste rules, claim to damages for breach of. Enam, resumption of. Interest on final award of H. Majesty in Council, leviable,. Hueks of Kolgurs, Hindoo law................ Inheritance, Hindoo law of.................. Ditto ditto ........................... Claim to amount of a note, to be recovered from land of which Title Deeds were deposited . . ........................................ Validity of actual possession of land, in a disputed claim to such Disputed possession of share of a village mortgaged ................^....... Family property undivided, ing. Hindoo law regard- Deed of release, Hindoo widow cannot grant . . Hucks of Kolgurs—Hindoo law.................. Possession, actual, of mortgaged property— Mahomecian law ............................... Question whether amount of interest must be included in value of stamp to a deed.......... Mortgage by Agent for his Principal not good. Rights of Josees in the matter of marriage fees, Might of pre-emption—Mahomedan law.............. Claim for restitution of land encroached on Mahomedan law............................... Claim to Enam usurped during absence of claimant .................. Undivided property-—one member of a family cannot sue for portion of—Hindoo law Hucks of Patells.......................... Remittances, liability Defamation of character . Adoption, question of validity of, Question of validity of adoption by a Bram-cheree or Bachelor...... ...... Attachment of an Enam granted for religious purposes—Maliomedan law .............. Par see female, validity of a Will by . . . Breach of contract by Ramoosee Naiks, Liability jointly and severally of parties, under decree of a Civil Court................ Shettee Wuttun, privileges of holder of. Hindoo law, regarding right of a younger brother to dispose of any portion of an undivided estate ............................. Liability of a Son for his Father’s debts during lifet-ime of the latter—Hindoo law W. Mr Mr. Mr Mr. Mr. Mr. of consignee. Mr E. Frere............. W. II. Harrison A. Spens........... W. E. Frere .. Ditto................ Ditto............... A. Spens............. Ditto........... Ditto ............... Ditto................ Ditto . ............ Ditto............... Ditto............... W. H. Harrison. A. Spens............. Ditto............... Ditto............... Ditto............... Ditto............... Ditto............... Ditto............... W. H. Harrison. Ditto ............... Ditto............... Ditto................ Ditto................ Ditto............... Ditto................ Ditto................ Ditto................ Ditto................ 121 125 131 137 150 158 164 169 172 175 181 187 190 194 196 201 205 211 2)5 219 223 225 227 229 231 233 237 239 241 243 245TABLE OF CONTENTS. VII o jz; 59 60 61 62 63 Subjects. Punehayet, award of cannot be set aside under certain circumstances..................... Defamation of character and loss of caste . Conspiracy not ground for civil action ... Collector of Customs, competency of, to prohibit levy of hucks on the transit of cotton wool Interest on final award of H. Majesty m Council leviable, also question of validity of a mortgage on property of a security for costs. Reported by. Mr. W. H. Harrison. Ditto .............. Ditto .. „,......... Ditto .............. Ditto................ 251 253 256 259 263REPORTS OF SELECTED CASES DECIDED BY THE SUDDER DEWANEE ADAWLUT, BOMBAY. No. 1. Mt. Muncha, Widow of Kessundass, in behalf of herself and her two Sons, Pur-shotum and Tribowun......................... Appellant, versus Brijbookun and Mutherandass, Sons of Kessundass.....................................Respondents, [ Case of contested Inheritance between the Widow and the Sons of the same person by different mothers; defence founded upon a will, and decree given accordingly; an interlocutory decree passed by the Sudder Dewanee Adawlut (the will being on unstamped paper) reversing the Judge’s decision, and referring the case for trial on its merits; decided by the Zillali Judge on new trial upon reference to the Shastree, that all Sonsi should share alike and maintain the mother of Appellant, the deceased’s widow; Respondents being made liable for Costs awarded by the Sudder Dewanee Adawlut to the extent of rendering the estate liable for the costs of Suit.] This was a suit filed by appellant to recover her and her sons’ shares of the properly left by her husband. The appellant Muncha was the second wife of the late Kessundass Munhurdass, who died in the month of Magsur Sunmit 1876, (November a d. 1819,) leaving 1 d t 1820 16 & 17 March, Surat.2 CASES DISPOSED 01' BY THE ^___ appellant Muncha, and her two sons, the other appellants, Mi. Muncha, I'm-and respondents Brijbookun and Mutherandass, sons by thuium, and l'i-a former wife. These two last took possession of their bow an, 5 1 vs. father’s property, and appellant, on her own behalf, and . fmc* on behalf of her infant sons, filed two suits against her Mutheiandass. ^ step-sons (respondents) to recover one-half of the property left by the deceased, laying damages at an aggregate of Rupees 8,000, and obtained an order for attachment of a part of the property. Respondents defending themselves, filed a will, dated Sumvut 1876, Magsur Shood 13th, (Monday, 29th November 1819,) by which the deceased bequeathed to his four sons, the parties in the suit, all his houses and property, shops, debts, and claims, with a proviso that they should in partnership carry on trade as their forefathers had done, and that Brijbookun should have the control; and in the event of any disputes arising, the person so disputing should have a part of a house given to him with provision and clothing. He also left some jewels, from which the marriage portion of his two unmarried daughters was to be paid, and under this will respondents resisted the claim. The parties filed no other pleadings, but appellant produced two witnesses, who swore to having attended Kessundass’ death-bed, when, on noticing his state to him, they asked what would be the condition of his infant children ; when he said that the room in which he was would belong to his widow Muncha (appellant), and he called his son (respondent) Brijbookun to him, and commended his brothers to him as equal sharers with him, when he fell at his feet and beseeched him not to fear, that he would takecare -of them. The witnesses urged him to leave some writing to prevent dispute, but he refused as it was not the custom of his family to do so. The parties then left him, and he died that evening.SUDDER DEWANEE ADAWIX'T. 3 Respondents produced two witnesses to the will, and 1820 the investigation as carried on before the then Acting Munelia Pur- Judge there closed with the evidence of one of these last shot urn, and Triwitnesses "(Morarjee Keerparam) unattested. Upon the bo^l’n’ case coming on before the Judge, he re-examined the Brijbookun and last-named, who was the only witness to the will then ^K«!Tish^E*q surviving, and after subjecting him to a severe cross- 2b Sept. 1821. examination, found no cause why credit should not be Anderson, given to his testimony ; so considering the will proved, j ^g9<> he threw out both claims, reserving to appellants, however, the tight of suing should respondents not act up to the provisions of the will. From this decision an appeal was preferred $ June 1823. to the Sudder Dewanee Adawlut, when the sitting 3rj'^' Judge, finding that the will was not written on stamp- J. Romer, Esq, ed paper, as required by Regulation XIV. of 1815, Clj Ultgl^<|®riand, referred the case to a competent court, who passed an Esq., 2nd Judge, interlocutory decree, reversing the Zillah Judge’s decision, and directing that the case should be tried on its merits. The Zillah Judge on receipt of this put a question upon the case to the Shastrees, who declared, without quoting any work, that the four brothers should divide the property equally, and that they should maintain the widow during her life-time according to the sta-tion of the family. The Judge upon this exposition decreed that the four sons had equal right by inheritance to their father’s estate, and, consequently, that respondents should make over to Purshotum and Tribowun one-half of the property attached by the Court; and besides, that appellants Purshotum and Tribowun were entitled toequal shares in their father’s estate and property wherever found. With regard to the ornaments held by Mt. Muncha, and made over to her under the will, the Court decreed that if respondents or appellants disputed her right, and considered themselves entitled to share therein, then, in the4 CASES DISPOSED OF BY THE 1820 event of her neglecting to resign the ornaments to the Mt. Muncha, Pur- common estate, both or either of the said parties might shotum, and Tri- bring the point to an issue by suing her. Respondents ’ were made liable for all costs. On the case being return-Brijbookun and ed to the Sudder Dewanee Adawlut, the sitting Judge Mutherandass. concurrec| jn the judgment generally, but considering it doubtful whether respondents were liable for all costs in Courts as before, the two Courts, he referred the appeal to a competent Decree, 27th court, who amended the Judge’s decree to the extent of May 1824, awarding all costs as recoverable from Kessundass’ property previous to any division taking place between the parties. 1823 No. 2. 23 May, ------ Pranvullubh Gokul................................... Appellant, Surat. versus Deocristn Tooljaram alias Dyabhaee ... .Respondent. [Suit brought against the Sons of a person deceased, to recover from them the amount of a Decree against their father, during execution of which the father died in gaol; resisted on the part of one Son that he was adopted by another person and not liable, and on the part of the others that they were not liable to the arrest to which they had been subjected ; decreed by the First Registrar that the adoption was not proved, and that all the Defendants were equally liable for their Father’s debt; on appeal to the Sudder Dewanee Adawlut, the adoption held proved, and that Defendant relieved from liability for his Father’s debt; the other sons being held liable for their Father’s debts under Hindoo Law, but not liable to be arrested in satisfaction of them.] This was an action brought against the sons of a person deceased, against whom a decree of the Sudder Dewanee Adawlut had been passed to obtain from them the amount of that decree. Respondent obtained a decree on the 6th December 1821 against Umbaeedass Wunmallee for the sum ofSUDDER DEWANEE ADAWLtJT, 5 Rupees 647-5-7 due upon#n account and Samadustkhut, 1S23 in execution of which he imprisoned Umbaeedass, who Pranvullubh died in gaol; upon which respondent, in execution of the Gokul, same decree, imprisoned appellant, who petitioned the x)e0C1istrT* Toolja-Court of Sudder Dewanee Adawlut for his release, when ram, alias Dya-the Court referred to the Shastree to know whether when bhaee. a man taken in execution of a decree died in gaol, the bodies of his son or sons could be taken in satisfaction of the same debt. The Shastrees in their answer declared that the point was not provided for in the Dhurrum Shasters, but that in such cases the Court might use their discretion. It was consequently ordered, as being the more regular mode of proceeding, that a fresh suit should be filed against the son, in order to enable the Court to proceed against him, and that the matter might be regularly tried. The Judge was accordingly directed to release Pranvullubh Gokul and 20 June 1823. Morar Umbaeedass. Respondent accordingly filed a suit upon the above decree against Panachund Morar Purboodass and Ma-nuckchund, sons of Ambaeedass. Appellant Panachun-das Pranvullubh Gokul disputed his liability for his father’s debts, on the ground that, in Sumvut 1863, a.d. 1808, Farguttees (releases) had passed between him and his father, and that when he was about 6 or 7 years of age, he was taken in adoption by Gokul Girdhur, since which time he had had no intercourse with his father, having lived with, and been brought up by his adoptive father as if he were his own issue, and never so much as seen a drop of water in his father’s house; that upon his father’s death his three brothers, the other defendants, were left starving, as their step-mother would not give them food, when they came over toGokul’sand supplanted him (Pranvullubh) in his adoptive father’s affections, and got a will made out in their own favour to his injury,6 CASES DISPOSED OF BY THE 1823 but that even that would notre^rse his adoption, or render Pranvullubh liable for his father’s debts. Gokul, Morar and Manukchund pleaded that they were minors Deociistn* Toolja- an(^ ignorant of the whole transaction, except that the^ ram, alias Dya- were imprisoned for their father’s debts, and would bhaee. have been starved to death but for Gokul’s charity; they also pleaded exemption from arrest for all debts due by their father under a precedent in No. 222 (Hurkis-sondass Pursotumdass vs. Runchoe Hurgovun, 25th N. Crow, Esq., October 1811,) in which it was decided that a son could Jud^o ° not be imprisoned though he was liable for his father’s debts. In this answer Purbhoodass subsequently joined, J. Vibart, Esq. and the First Registrar took no evidence in the case, but filed the roll of proceedings held before the Shastrees upon the appellant’s petition for discharge when first imprisoned, and a Mehzur (certificate) from the inhabitants in his street, in which, with the intention of obtaining his release from gaol, they certified that he was Gokul’s adopted son, and that Gokul was at the expense of his marriage, and furnished all money for expenses when his wife proved pregnant. The former document contained the opinion of the Shastrees upon the question referred to them to inquire whether Pranvullubh was the adopted son of Gokul, as, had he been so, the Shastrees had previously declared, though without quoting authority, that he would not be answerable for his own father’s debts. The opinion set forth that there was no evidence to prove the fact of the adoption, although witnesses deposed to Gokul’s having stated that Pranvullubh was his adopted son; but as the Shastrees discovered discrepancies in their evidence, it was thrown out by them, and resting upon a will (copy of which was obtained by the Shastrees from the Registrar’s office, but the original of which was not produced), made by Gokul, dated 10th March 1822, in which all four sons of Umbaee-SUDDER DEWANEE ADAWLUT. 7 dass were named as heirs without any distinction, which would not have been the case had Pranvullubh been Pranvullubh adopted, and left his heir; they held the fact of the will, Gokul, rfnd the manner in which the devisees were named, and Oeocristu* Toolja-that Pranvullubh and Manuckchund were present (as ram, alias Dya-deposed to by him) before the iVlooftee, and received the Wiaee. bequest, fatal to any claims set up by Pranvullubh to be the adopted son of Gokul. The First Registrar, therefore, upon this report, though appellant urged that the evidence of the witnesses to the will had not been taken, and that the report was otherwise partial, held the adoption not proved, and passed a decree against all the sons of the late Umbaeedass for Rupees 812-3-0, the sum of Rupees 79-8-0, subsistence money to the deceased, being to be recovered from his estate. From this decision two appeals were filed in the Sud-der Dewanee Adawlut: the one, Pranvullubh Gokul vs. 14 August 1823. Deocristn Tooljaram, alias Dyabhaee ; and the other 2G December 1823. Manuckchund Purbhooand Morar, sons of Umbhaee, vs. the same. As the grounds of appeal and the decrees of the Court, though passed on the same day, were distinct in both cases, it will be requisite to keep the causes separate, and to consider them as they stand upon the file of the Court. The appeal by Pranvullubh will first claim attention, in which he urged against the decree of the lower Court, that he could prove, by the certificate from the members No. 150. of his caste that he had been adopted by Gokul, and the forms prescribed by the Shaster, and that the Shas-tree’s decision upon his adoption was contrary to evidence, as would appear from that given by Dya Purmanund, Kasseeram Sopkul, and the Goor Bhowaneesunker; that the decisiou by the Judge in the first instance was founded upon the opinion of the Shastrees, and not upon his own judgment; and that subsequent to the adoption8 CASES DISPOSED OF BY THE 1823 Pranvullubh Gokul, vs. Deocristn Tooljaram, alias Dya-bhaee. J. Sutherland, E3q., 2nd Judge. Gokul had defrayed all appellant’s expenses attendant upon his wedding and Sutwasa (wife’s pregnancy) which were performed at Gokul’s house, where appellant had resided for the last sixteen or seventeen years, lfe being now only two or three and twenty years old. The sitting Judge, upon referring to the papers in the case, considered the will executed by Gokul as calculated to throw doubts on the adoption, inasmuch as that deed rendered appellant and his brothers equal heirs to his estate, and provided for no one being considered in a nearer light to him than another, implying that appellant had no peculiar claim upon him. Appellant urged that this had been executed by Gokul for peculiar purposes, and that on his (appellant’s) finding it out, he got Gokul to place the will in his hands, thus cancelling the documents and again recognising appellant as his son. The Judge considered the examination incomplete, and therefore that no arguments could be founded upon the case as it now stood; he therefore issued summonses for the attendance of Gokul Ghirdhur, the person best able to throw light upon the subject. From his evidence it appeared that in consequence of his having no sons, he adopted his niece’s son (Pranvullubh) and paid all the expenses of his marriage, &c. That on Umbaeedass being sent to gaol, his other sons came also to his (Gokul’s) house, and he fed them, and further desired Pranvullubh to give him in writing, on stamped paper, that after his (Gokul’s) death, he (Pranvullubh) would support his brothers in the same manner as Gokul had done; that on Pranvullubh refusing to do so he was angry, and went secretly to the Mooftee’s and wrote a will in the name of all Umbaeedass’ sons, but that lie did not thereby mean to cut off Pranvullubh’s adoption, but merely to show his anger against him ; and that upon Pranvullubh’s release from gaol, when he knew of the w ill, he came andSUDDER DEWANEE ADAWLUT. 9 begged deponent to give it to him, which he did, with 1323 the impression at the time that matters would then stand pranyullubh as they did before the will was written. Upon cross- Gokul, examination by respondent’s Vukeel, he stated that Deocristn'" Toolja-Pranvullubh was not present at the Mooftee’s when the ram, alias Dya- will was drawn up. The respondent’s Vukeel, contrary bhaee- to this evidence, urged that Pranvullubh was present at the Mooftee’s, and attested the will. The silting Judge considered* that if proved, it would betoken a knowledge of the existence of the writing, and so far go to establish an impression that the story of adoption was set up to protect appellant from his father’s creditors, and he determined to require the Mooftee’s immediate attendance with his records. This witness was not, however, able to speak to the certainty of Pranwullubh’s presence, but said he might have been, as it was entered in his record, that he was present and signed both on his own account, and likewise as attorney for his brother Manuck-chund. This witness was not cross-examined, but from the evidence of three of the witnesses to the will itself it appeared that Gokul went with Umbaeedass’ sons, except Pranvullubh, to the Mooftee’s, and passing Purbhoodass off as Pranvullubh, the will was drawn out in favour of the four sons, but Pranvullubh himself was not present. They also deposed to appellants being Gokul’s adopted sons. Upon this evidence the sitting Judge recorded that there could be no doubt of the adoption of appellant by Gokul, nor of the execution of the will by Gokul in favour of all Umbaeedass’ sons, though it was not necessary in this case to go further into the force and effect of such a document than to ascertain its influence on the • -k • previous adoption ; that it admitted of no such act ever having taken place, and from it was clearly to be implied that there never was an adoption, provided appellant came forward in person, as alleged ou the face of the will, 2 d REPRINT10 CASES DISPOSED OF BY THE 1823 and agreed to the terms of the instrument. The evidence, Pranvullubh however, demonstrated that appellant was an entire Gokul, stranger to what was passing, and knew not that such a Deocristn* Toolja- document existed; that he did not appear before the ram, alias l)ya- Mooftee, upon whom an imposition was practised in bhaee. passing one youth off for the other, since in a disposition of property, as made by Gokul, the law provides that he is not competent to the performance of such an act without appellant’s consent. With the view, however, of placing the matter on a less doubtful foundation, the Court asked the Shastree whether from the will, written after Pran-vullubh’s adoption, and from feelings of anger against him, Pranvullubh’s right as an adapted son were affected, and whether he was liable for any debts his own father might have left. The Shastree, without quoting any text, declared that the will had no effect or influence on the adoption, and, consequently, Urnbaeedass’ creditors could not come on appellant, as he had left his real father’s house as if he had never belonged to it. The sitting Judge approving of this exposition, referred the case for the consideration of a competent court, in order that the decree of the lower Court might be amended to the extent of releasing appellant from liability for his father’s debts. He further directed the witnesses to the will, who confessed having lent themselves to a fraudulent act, to be held in attendance when the case was next heard, to await such orders as the Judges might give respecting them ; J. Romer, Esq., but of them no notice appears to have been taken, and the Circuit Judge. competent Court, concurring in opinion with the sitting 3rd Vud^eJ6’^S<1 ’ Judge, amended the First Registrar’s decree as far as re- 24 June 1824. garded appellant Pranvullubh, to the extent recommended No. 475. 0£ rejjeving ijjm from all liability for Urnbaeedass’ debts. J. Sutherland, The sitting Judge having disposed of the appeal pre-sq, uisneJu ge. Pranvullubh Gokul, took up the appeal prefer- red by the other defendants in the original suit, Manuck-SUDDER DEWANEE ADAWLUT. 11 ehund Purbhoo, and Morar, sons of Umbaeedass, vs. 1823 Deocristn Tooljaram alias Dyabhaee, against the same pranvullubh decree, which they founded on the ground of their father Gokul, having- died in prison in execution of a decree for the Deocristn' Toolj same debt, and, consequently, that the debt died with him, ram, alias Dy and the respondents therefore had no remedy, except by attaching whatever property may be forthcoming belonging to Umbaeedass. Respondents urged that sons were liable in person and estate for their father’s debts. The sitting Judge put the question of liability generally to the Shastree, who gave in his answer declaring the liability, and quoting Munoo, the Metakshara and Vyvuya Myooka, in support of his statement, from which, in the opinion of the sitting Judge, the liability of sons to pay the father’s debts was fully established, though the Judge remarked it would appear that when they are “ in indigent circumstances, coercion could not be had recourse to, as a creditor must wait until they can make property. From this it may be adduced that imprisonment of their persons is under such circumstances not contemplated, although the law does not speak in express terms; at all events, where there is no dishonesty by concealment of property, it would be hard to place the sons in restraint, and take away the only means they have of being enabled eventually to fulfil the intention of the law. The power granted to creditors by the laws of other sects go not beyond the property, and without assets no one is held responsible for the debts of a deceased person ; the Hindoo law in this much derogates from all others, and should in consequence be strictly applied ; no case could occur like the present in any other tribe, and it is questionable, according to English law, what effect the death of a person taken in execution has on the debt, whether it is extinguished or otherwise by such an event.”12 CASES DISPOSED OF BY THE 1323 The sitting Judge here adverted to the principle of a Pranvullubh decision pointed out on the part of appellant as bearing Gokul, on the case, being a decree passed in the late provincial Deocristn Toolja- cour*; appeal by a full Court, consisting of Judges Crow, ram, alias Dya- Day, and Romer, on the 25th October 1811. Hurree 11 iaee# Kussun, son of Purshotum Umbaeedass, vs. Runchor, son of Hurgovind Gokul* ; and that although appellant was positively bound by the law of the Dhuram Shaster, and it is to him a primary duty to discharge the debts of his father, yet his person ought not to be arrested in satisfaction for the same, in the event of no assets of the state of the deceased or property of his own being discoverable, and referred the case to a competent court, with the recommendation that the principle laid down above should guide * This case not being one of those contained in Borradaile’s reports, the proceedings of the Court upon it are here given at length :— “ The appellant in this cause in presenting his petition of appeal asserted that the reason of his not having before appealed was that he did not conceive under the decree passed by the Assistant Judge under date 23rd June 1807, his person was amenable to custody, and that he is now under the necessity of bringing it forward in this court in consequence of the respondents wishing to put him into gaol. This cause therefore, involving matter of doubt with regard to Hindoo law* the Court determined to admit it, and it appearing that although it is incumbent upon every Hindoo to pay when he may be able the debts of his father with interest and those of his grandfather without, even should he not have inherited any assets from them, but at the same time it is incumbent upon the creditors to leave him at liberty until he Shall have acquired a sufficient sum for the payment thereof, which, under the circumstances, might subject an unfortunate young person to be confined through the hatred or malice of the foes of his family. Upon his attaining the age of manhood, and remaining in prison for the remainder of his life, the Court do not think that the person of the appellant can be seized for the demands now brought against him. The decision of the Assistant Judge is accordingly modified under the following decree, w hich is directed to be forwarded to the Surat court, under the following precept.”SUDDER DEWANEE ADAWLUT. 13 the Court in this case, with the addition that none of 1823 the sons should be liable until they had obtained their pranvullubh majority. The competent court, as shown by their pro- Gokul, ceedings, concurred in the view taken of the case by the j)eocr;st^S’ Toolja-2nd Judge, but passed their decree only to the extent of ram, alias Dya-the decision by the provincial appeal court, without the court^'before addition recommended by the sitting Judge. 24 June 1824. No. 3. Ramchunder Unoopram and Hurpursad, Sons of Jehbhaee and Juguneshwur Shewbaee......................................Appellants, versus Bhugwan Mansing and Ootumdass, Sons of Gokul.....................................Respondents. [Claim for a sum due on a Bond with Interest of which payment was refused, it being asserted that the Bond had never been executed. It was held in the Sudder Dewanee Adawlut, in reversion of the Zillah Judge’s decree, that the Bond was valid, and the payment was ordered to be made.] This was an* action instituted before the Judge of J- ®entish, Esq. Broach by appellants on the 25th July 1823, to recover the sum of Rupees 689, principal and interest, on a bond given in Surnvut 1870, a.d. 1813. The respondents answered to the following effect,— that being in want of money they went to Jehbhaee, the father of the appellants, to borrow it; that Jehbhaee promised to supply them, provided that one Nurer Purboo-dass Patel would becom^their security ; they drew out a bond for Rupees 345, and named in it the Patel as their security, but on asking him he would not consent to sign the deed as 'security, whereon Jehbhaee (father of appellants) would not advance the money ; that this bond remained in Jebhaee’s possession, and after his death his children laid claim to the amount with interest.14 CASES DISPOSED OF BY THE 1823 The appellants stated in reply that they had formerly Ramchunder received a bond from the respondent’s father, for the Unoopram and amount of which Nurer Purboodass Patel was security; HurP?ursaci> that afterwards, in Sumvut 1870, the respondents came Bhugwan Mansing to an adjustment of their accounts, and at. that time passed and Ootumdass. a taking back that formerly given by their father. In this bond the name of Nurer Purboodass ■was inserted as security, but he was not present at the time it was executed, and on being subsequently asked to become security, he refused to sign the bond as such, affirming that he had not money enough to pay what he already owed. The respondent in a rejoinder declared that the above statement was false ; that the amount of the former bond had been paid, and the bond returned ; that subsequently they (respondents) were in want of money and desired a loan of Jehbhaee (appellant’s father); they made out and delivered to him a bond, but did not get the money because Nurer Purboodass would not endorse it as security. They subsequently demanded that the bond should be returned to them ; but Jehbhaee declared that he had torn it up, and they relied on his word. Appellants in evidence produced the bond for Rupees 345, with two extracts from his account-book, and five witnesses, four of whom had attested the transaction, and the other stated that he had been sent to demand the money from the respondents, who promised to pay. No evidence was brought forward by respondents. On a reference to appellant’s books, it was found that the principal never exceeded Rupees 174, and the remainder of the sum sued for was interest. Mr. Kentish. The Judge decided that the note had been written on adjusting the transaction existing between the parties, but held that by Section IV. Regulation I. of 1814, “ interest is not to be greater than the principal in full,SUDDER DEWANEE ADAWLUT. 15 without reference to the adjustment,” whereon he awarded 1823 the sum of Rupees 174, and the same amount as interest. Ramchunder Appellants not being satisfied with the decision, filed Unoopram and their appeal on the lst# March 1824, on the ground that Hurpursad, investigation should not be carried beyond the date of the Bhugwan Mansing bond, when such has been passed in consequence of an an(* Ootumdass. adjustment of accounts as in this case, there being no regulation sanctioning such a procedure. Respondents urged in a defence that even supposing this to be the case, it could not be of service to the appellants, as the note of hand is an incomplete document and not to be acted upon. The case was brought on before the sitting Judge, who considered the note good and binding ; and that after the adjustment the passing a new bond barred all retrospective inquiry. This being against the Zillah Judge’s decree, the case was referred for the consideration of a full Court. When ,on the 18th November 1824, after due consider- Full Court, ation, the Sudder Adawlut considered the note of hand ^ of 1870 to be a valid and just document, and the full J. Kentish, Esq. amount with interest recoverable under the provisions of Section V. Regulation I. of 1814, and reversed the decision of the Zillah Judge of Broach, dated 11th December 1823, and adjudged to appellants the sum sued for by them. Costs in both cases to be borne by respondents. Decree passed 18 November 1824.16 CASES DISPOSED OF BY THE No. 4. Bheekareedass Udekurm, Joita Samadas, Tarchund Ramchund, and •Mooljeu Hurreebhaee ................................Appellants, versus Doolubh Nurbeeram..............................Respondent. [In this case the Sudder Dewanee Adawlut reversed the Decree of the Zillah Judge, which declared a person could recover from another a sum due by a third, for whom he had become verbally responsible.J AhmedabadAdaw- The respondent originally sued to recover a balance of Judge.W Jones' Rupees 1,158-1-0 from a sum of Rupees 6,‘261-2-0 which Hurreebhaee, the father of Mooljee, and the other appellants, had become verbally responsible for to him on behalf of Koreedas Rugonath. Respondent (then plaintiff) stated that in Sumvut 1876, a.d. 1819, the village of Jytolpoor was farmed to Imaum Ghasee, who relet it to Shumbharam and Hur-reebhaee, who again relet it to Koreedas, for whom he (respondent) was Humeedar, or security; and lastly, that Koreedas under-let the village to the appellants, at which time it was agreed that the appellants should pay to respondents, on account of Koreedas, the above sum, viz. Rupees 6,261-2-0, of which Rupees 5,428-3-0 had been paid by them, and the balance, Rupees 832-12-0, with Rupees 325-8-0 interest, total Rupees 1,158-1-0, he sought to recover. The appellants denied having made themselves responsible to respondent on the part of Koreedas ; they asserted that there was no written document, without which they could not have made such an agreement; that the village was farmed by Koreedas, and respondent was his Humeedar ; that when Koreedas made over the village to appellants, he ordered them to pay the collections to the respond- 1823 25 September. Ahmedabad.SUDDER DEWANEE ADAWLUT. 17 ent, which they did; and that as for the balance which 1823 reraajned, they had settled with Koreedas, and made up Bheekareedass their accounts with him. ‘ Udekurm, Joita The respondent filed his account-book, in which the ch^d Ramclmnd sum of Rupees 6,261-2-0 was entered as paid up by and Mooljee Hur-Koreedas, but placed to the debit of the defendants, and ree^^ae^ the payment of Rupees 5,428-3-0 appeared credited in Doolubh Nurbee-their names. He called three witnesses to prove the iam‘ engagement made by the appellants to pay the money to him in 7 or 8 days, and two witnesses to prove that the defendants had admitted the debt on payment being demanded. The account-book of a shroff was also exhibited, showing that in Sumvut 1876 a sum of Rupees 3,396-2-0 was paid by the shroff on the part of the appellants, and as the account of the village of Jytolpoor. The only evidence adduced by the appellants was that of Koreedas, the person on whose part they were said to have become responsible ; he was examined, and deposed that the appellants did become responsible for the exact sum of Rupees 6,261-2-0, and that the settlement of accounts alluded to by appellants had nothing to do with it. The Judge considered the respondent’s demand to be good, for it having been provided that Hurreebhaee, the father of Mooljee, and the other appellants did make themselves responsible to respondent on the part of Koreedas for the sum of Rupees 6,261-2-0, of which, besides other payments, Rupees 3,396-2-0 had been paid by Foolchund Shroff to respondent on their account, the sum sued for (Rupees 1,158-1-0) was therefore 31 Dec. 1823. awarded to respondent, and all costs to be borne by appellants. From this decision appellants appealed to the Sudder 23 Nov. 1824. Dewanee Adawlut; the case was first heard by the Chief ^oiner> Escl- Judge, who took a different view of it from that*held by the lower Court. 3d REPRINT18 CASES DISPOSED OF BY THE 1823 The question appeared to him to be, whether the appel- Bheekareedasg lants were merely responsible for a balance exhibited, or Udekurm, Joita an account between them and Koreedas, whose security, chund Ramchund or Humeedar, respondent was according to a verbal and Mooljee Hur- agreement; or whether, as under-renters of Koreedas, they reebhaee,^ ought not to account with him alone, and he with Doolubli Nurbee- respondent. ram. He considered that the evidence probably established that the appellants had made a verbal promise to pay the balance due by Koreedas to respondent, and that it may be admitted that they had paid nearly the whole of this balance ; yet as no written agreement was taken at the time or subsequently, and as they had not passed to, or received from, respondent any deed or writing binding themselves as obligees on the part of Koreedas, the nature of appellant’s responsibility was not only undefined, but the whole transaction doubtful. The appellants must therefore be considered responsible to Koreedas alone, the object of respondent having evidently been to bind them without releasing Koreedas, and on these grounds the sitting Judge was of opinion that the judgment of the lower Court should be reversed ; the case was consequently Competent^Court. referred to a full Court, which, agreeing in this view of J.Sutherland,Esq. the case, reversed the judgment passed by the Zillah E. Ironside, Esq. Judge of Ahmedabad, and decreed that respondent should 27 January. ^ear ajj £0gtg of suit in both courts.SUDDJ2R PEWA^EE ADAWLUT. 19 Respondent. Appellant, 27 July. 18P [In a question of tlie responsibility of a Broker for Goods consigned to him to Sell, it was decided in tlie Zillah Court that the Goods or their value be restored, and that the Defendant do pay Costs; on appeal against being burdened with Costs, as Plaintiff had never demanded the Goods,, the Sudder Dewanee Adawlut amended the decree of the Lower Court, am} adjudged the Costs to be paid by Plaintiff.] This appeal was to recover Rupees 212, being the Mr. Jones, Judge, amount of costs in defending a suit which had been decided against appellant in the Zillah Court of Ahmedabad, The original suit was instituted under the following circumstances : the appellant had a house of business at Ahmedabad, but carried on the trade of a broker (Dullal) at Judda, receiving goods on commission, &c. Respondent, in Sumvut 1877, a.d. 1820, sent to him at Judda a consignment of Mushroo (silk) cloth, of which, by respondent’s account, 68 pieces remained unaccounted for by appellant, the value of which respondent sued to recover. Appellant was at Judda at the time the suit was instituted, but his Gomashta was present and defended the case. His defence was—Isf, that he knew nothing of the Mushroo, having been sent to his principal; 2nd, that it was customary that the risk or loss should fall upon the owner of the goods, and not on the Dullal; and further, that the settlement should have been made a$ Judda, not at Ahmedabad. The Judge considered it proved that the Mushroo had been sent to appellant at Judda, of which 68 pieces remained unsold: he#was doubtful whether the Mushroo ox20 CASES DISPOSED OF BY THE 1823 the value should be decreed to respondent, but deter- Nunna Meya bin mined that it should be the Mushroo ; for the app^ant., Wuliee Oala Ak- beinga Dullal at Judda, and the Mushroo having been sent ro^ee’ to him to sell, it was a well known custom that the goods JummadassHeera-remaining unsold should be returned to the owner, and 1 1 ” c un ’ not the value ; and that in case the goods were not forthcoming, that their value should be given instead ; that as respondent had not shown that appellant had ever refused 31 Dec. 1823. to give up the goods, he accordingly decreed that appellant should within a year return the 68 pieces of Mushroo to respondent, or, failing to do so, that respondent might recover the value from appellant. Costs to be borne by appellant. It was to be relieved from the payment of the costs in defending this suit that appellant appealed to the Sudder Adawlut, on the grounds that he had not purchased the Mushroo; the goods were merely sent to him to sell, and a portion remained unsold on appellant’s hands because the market was bad and the prices low ; that respondent never sent to demand back the goods, which, had he done, and the goods had been refused, he might have been entitled to the costs. The appeal was decided ex parte, the respondent not being present, and it was brought on for hearing first J. Homer, Esq. before the Chief Judge, who was of opinion that the respondent should have been charged with all the costs in Competent Court, the lower Court, and referred the case to a competent J SuthTrland^Esq Court, who concurred in his opinion, and adjudged that E. ironside Esq. respondent should bear the costs in both Courts. 27 Jan, 1825.SUDDER DEWANEE ADAWLUT. 21 No. 6. 182G Kessoordass Siieodass Appellant, 13 March. versus Pranatii Bijabhaee Respondent. [This is a question of the Liability of the Owner of a Boat for the value of Property lost, as asserted, through stress of Weather. It was held in the Sudder Dewanee Adawlut, in confirmation of the Decree of the Court below, that in the absence of Proof of a necessary sacrifice of the Property, and on the suspicion of dishonesty or gross negligence that attached to the conduct of Defendant, that the Plaintiff’s claim for compensation was good.] This was an action brought against the owner and Tindal of a boat to recover the value of goods lost and damaged during the voyage. The respondent brought his action in the Zillah Court at Surat against appellant Kessoordass Sheodass,theowner, and another named Prema Rama, the Tindal and part-owner of the Prow called Rampursad, on board of which respondent’s agent at Bombay (Mowjee Poonj») had shipped \mbeaten rice and cocoanuts to the value of Rupees 1,525 ; the boat struck on a sand-bank between Hansote and Barboodh, upon which the Tindal came and told respondent that the boat was wrecked and his goods lost; respondent sent some boatmen to the sand-bank to see whether such was the case, and they returned bringing the boat into Broach safe with the Tindal’s son on board, with some of the goods and the ship uninjured; respondent, consequently, sought to recover the value of his property lost through the fraudulency of the Tyndal and owner. The appellant Kessoordass in his answer to the plaint admitted that he held two, and the Tindal one share of the boat; but urged, that from the time he purchased it, he had made the boat over to the Tindal to ply for22 CASES DISPOSED OF BY THE 1826 freight; and that he (appellant) was not responsible for Kessoordass Sheo- g°°ds which were never delivered into his keeping. dass, The Tindal (Prema Rama) admitted having received Pranath*" Bija- t^ie g°°ds on board, but defended himself on the ground bhaee. that the goods were never given into his charge, and after they had been at sea eleven or twelve days, that one night when they had anchored near Kuntial, their cable broke and the boat drifted to a sand-bank and fell over on its side, when some of the goods on board were washed overboard, and all the sailors left her, except the Tindal and his soa, who stuck to her; that at the flow next morning the boat righted, and they came as far as the banks opposite Barboodh, where she struck again, and after she was left dry, the Tindal took out the plug and let the water off, and having left his son on board came to Broach and reported the circumstances, and then returned with some other sailors to look for the boat, when he found that while he came overland, respondent’s partner (Panachundj had sent some men by sea, who had taken the boat and his son to Broach, and confined both his son and himself (on his return) until they had brought this action against him, when they threw him into the goal for not furnishing security. The first witness called was the Mehta, who went to attach the boat, and who deposed, to the rice which was on board being for about four inches at the top undamaged, but the rest was wet with salt-water, as were the eocoanuts and some cotton which was also on board. The agent (Mowjee Poonja) deposed to having given the goods in Bombay to the Tindal, and that they were not insured, but sent at Pranath’s own risk. The witnesses Gunputram Toolseedass and Luxmeeram Keerparam swore to having gone to respondent Pranath’s partner Panachund, where they saw the Tindal’s son sitting, and on inquiry the boy promised to state whatSUDDER dewanee adawlut. 23 lie knew if Panachund left the room, which he did, and 1826 the boy stated that when they came to Seckoter’s tem- Kessoordass Sheo-ple, near Bhugwa, they anchored, and a boat with a man dass* VS belonging to Bhugwa came alongside and received some pranath Bija- of the freight; he left the ship, but the child did not bhaee. know to what port he went. Witnesses went some time afterwards to look at the boat then lying at the customhouse bunder, and saw the rice, &c. which had the appearance of having been sprinkled with salt-water, not having been damaged by the sea. Two boatmen deposed to having been sent from Broach to bring up the Prow, which they found safe, the sails uninjured, with only one anchor, and the goods on board not injured by the sea, but apparently from water thrown over them. The respondent’s Gomashta deposed to having been sent to inquire about the goods having been landed, and to having found traces of it at Bhugwa, and got entries from the Tullatee’s books of rice having paid customs, landed by Tindal Lucka Narayen, upon which he laid a complaint before the Mamlutdar, and subsequently carried it on before the Collector, who adjourned it until this suit should be decided in the Adawlut. Two witnesses who gave the last information corroborated his statement. m The respondent also filed an examination taken before J. Pyne, Esquire, 1st Assistant Magistrate at Surat, of the Tindal Lucka Narayen, in whose name the rice had been passed at Bhugwa, which closed the evidence for the plaintiff. Appellant in his defence produced two of the boatmen to prove that in consequence of the boat being in danger all the people on board, with the exception of the Tindal and his son, who refused to leave the boat, which was his own, sought the shore upon spars, &c.24 CASES DISPOSED OF BY THE 1326 The Judge was of opinion that the owner and Tindal Kessoordass"Sheo- s^ou^ be held responsible to respondent for the amount dass, of property shipped on his account at Bombay on board Pranath Bija- ^ie'r boat, since they had completely failed to prove, bhaee. even admitting that the accident did happen, which is E. Grant, Esq. extremely doubtful, that it was through stress of weather that the boat got ashore as asserted in Prema Rama’s 6 November 1826. answer; a decree was accordingly given in respondent’s favour awarding him Rs. 1,043-2-0, being the balance due after deducting the amount at which the damaged goods brought to Broach were valued. 13 January 1827. From this decision appellant preferred a summary appeal to the Sudder Dewanee Adawlut at Surat, and subsequently presented his supplemental petition, in which he denied his liability for the Tindal’s acts, who was a sharer in the boat with himself, and to which ar- 25 January 1827. gument, when urged in the lower Court, respondent had given no answer; and, moreover, that the value of the goods had been assumed without any proof to show that they had been received on board the boat. Respondent resisted the appeal, on the ground that the person who shipped the goods had deposed to the fact which, not being rebutted by evidence from appellant, proved the shipment of the goods, and that the owner of the boat was always responsible, even if the Tindal was his servant only, much mofe then when he was his partner. J. Romer, Esq., The case was brought on before a single Judge, who Chief Judge. found that the evidence in the case satisfactorily established the fact of gross negligence or dishonesty, or both combined, in the Tindal (Prema Rama), who, it was evident, either plundered the boat of respondent’s goods, or allowed it to be done by others. That there was no reason whatever for believing the goods wrere thrown overboard to lighten or right the boat, after, as it is alleged, but not proved, she had struck upon a mud-bankSUDDER DEWANEE ADAWLUT. 25 and as the appellant, under the circumstances of the case, 1826 , , , , „ .,1 ,1 r Kessoordass Sheo- would have been equally responsible as the owner ot a boat conveying goods for hire, had the Tindal been only »*• his servant, the Zillah Judge’s*decree was affirmed. ^'bhaee. B^a 18 Dec. 1827. No. 7. Bhasker Buchajee..............................* ...Appellant, versus Narro Ragoonath..................................Respondent. [Hindoo Law of Adoption.] This was an action first instituted by the appellant before the Collector at Poona, to recover from respondent, brother of Buchajee Ragoonath, the second share of their joint property, real and personal, belonging to Buchajee Ragoonath, deceased. The case was this: the two brothers (Buchajee and respondent Narro) lived as a joint family, and the brother Buchajee died in 1720, or a.d. 1798, leaving a wife, Bhageerthee, 11 years of age, who, after her husband’s death, resided with her brother-in-law (respondent) at Poona. In 1742 the widow, after having repeatedly applied to respondent and his relations to give her a son to adopt and been refased, went to Bombay and there adopted the appellant, upon which adoption he set up his claim to the share of the family property of the deceased Buchajee Ragoonath. The claim was thrown out before the Collector, on the ground that the adoption took place without the consent of the relations at a place distant from where the parties reside, and therefore ought not to be upheld. An appeal was afterwards heard before the Sudder Dewanee Adawlut, where it was urged that the adoption was valid, the widow having first sought a son of her 4 d REPRINT26 CASES DISPOSED OF BY THE 1826 husband’s relations, which being refused sh^had a right Bhasker Buchajee, one another family; 2ndly, that the due cere- vs. monies were performed, and the absence of the Sirkar’s >,arro Ragoonath. orcjer arose fr0m the fault of the respondent, who would not give a son, or apply for leave from the Sirkar, and therefore was no ground for setting aside the adoption ; 3rdly, that a son adopted under due ceremonies has a claim to the whole of his adopted parent’s property, without reference to its situation; 4thly, that the Shasters nowhere declare when or where the adoption shall take place. The Court, in affirming the decree of the lower Court, recorded the following reasons,—“ that though parties adopted long after the death of the person whose offspring they are to represent may have been considered heirs, and put iu possession of the property in consequence, in the Deckan such adoptions are manifest abuses of the institution, and when the effect is, as it would be in this case, to give the property of an undivided family to a stranger, they should have the least possible encouragement; the appellant’s claim was therefore dismissed. The appellant moved for a revision of this decree, on the ground that it was inconsistent with itself, as the Court nowhere declared the adoption invalid, but would not award the property claimed under it; and further, the widow having asked for a son from her relations, her adoption in Bombay is good, and ought to be upheld. The motion was first heard before Mr. Sutherland, the sitting Judge, who recorded his opinion as follows:— That it has not been established by sufficient proof, that the custom in the Deckan prevents an adopted^on, such as the present, from inheriting in as full and complete a manner as he could do in any other part of India under Hindoo law or custom ; and as it is to be presumed that an adoption such as appellant's would entitle him otherwise to a share in the family property, it is judgedSUDDER DEWANEE ADAWLUT. advisable to recommend a revision of the judgment 1826 passed by the Chief Judge : referred to a full Court. Bhasker Buchajee, Before which the following Minutes were entered :— *»• Minute of the Acting 2nd Judge, Mr, Anderson.—I *'iarro ^aS00nat^-conclude that the adoption took place in Bombay it does not seem questioned ; still, however, it is not in proof; it does not appear either whether the adoption was made in conformity with the law. I should therefore like to see a case slated to the Shastree on the question. It is not determined either whether the refusal of the Sirkar invalidates the adoption ; it is a principal point, and should be inquired into. I think the custom at the time of the dispute, as taken from the Marathee rule, was for permission in all cases of adoption to be sought from the Sirkar; if so, the refusal would invalidate the act; if not, to seek the permission would be a mere form. A further question, I think, remains to be ascertained from the Shastrees, if any adoption taking place as this out of the jurisdiction, when permission to adopt has been refused by the Sirkar (for in this matter Captain Robertson was in place of the Sirkar,) is nevertheless to be considered good, to the inheritance of all property in that jurisdiction where permission was so refused. Minute of the Acting 3rd Judge, Mr. John Kentish.—-I feel very anxious to support the decree passed by the late Chief Judge, as I consider the decision to be quite consonant to justice and equity; but there are grounds nevertheless for supposing it to be at variance with a point of Hindoo law and custom. I am of opinion, therefore, we are bound to grant the prayer for a review of judgment. The Court, therefore, in admitting the revision, referred the case back to Poona for evidence on the following points—Is#, to prove the fact of the adoption; 2nd, to obtain the opinion of the Shastrees upon the law as applied28 CASES DISPOSED OF BY THE 1826 to the evidence; 3rd, to ascertain the practice according to BhaskerBuchajee, Peishwa’s government with respect to the validity of vs. an adoption made without the recognition of the ruling Narro Ragoonath. authority> The case was returned with the following evidence:— Questions preferred to the college at Poona to know— 1st, whether the permission of Government was requisite to the validity of adoptions under the Peishwa’s government ; and 2ndly, whether the absence of such permission was sufficient to invalidate the adoption. To which it was replied, that for dependents of Government holding Surinjams, &c. the permission was requisite, but not to others; and further, notwithstanding this an adoption made under due ceremonies (Veedeeyookt and Yeedhan) could not be set aside, (Signed by 4 Shastrees.) Questions were also put to the Dufterdar at Poona to know what cases were on record where the Sirkar’s permission had been granted for adoptions made by others than Surinjamdars; and 2ndly, whether any cases were on record wherein the adoptions had been annulled or otherwise invalidated for want of the Sirkar’s permission. To which it was answered that about 60 cases were on record where the Sirkar’s permission had been granted to others than Surinjamdars, and several cases also wherein the parties had been fined for adopting without the consent of the Sirkar,*but none in which the adoption had been annulled. The following three cases were extracted and given in by the Dufterdar:— Bhasker Mahadow Joshee was adopted by Mahadjee Dinker, the adoption was contested, and on its being proved a fine was levied from the adopted party, and from the wife of Dinker Mahadow (Anpoornabie) for having induced her daughter-in-law to make the adoption; 2ndly, Unundeebai, widow of RamchunderSUDDER DEWANEE ADAWLUT. 29 Bhut Kelkur, adopted Mor Bhut Kelkur, a son of her 1826 cousin, without the knowledge of the Sirkar, upon which Bhasker Buchajee, the Enam village of Umbee, in Nassick Purgunna, was *»• attached ; but the adoption having taken place under Narro Rao00nath* due ceremonies, the village was released, and a fine of 316 Rupees levied from the parties; 3rd, Sagoonabai^ the widow of Bajee Shunker Sooktanekur, gave Lukshe- mun Ramchunder to her daughter-in-law to adopt; and to obtain a confirmation of this adoption, and remove the attachment, wjiich, in consequence of Sagoona’s death, had been placed over the * property, a Nuzzur of Rupees 45,000 was paid to the Sirkar. Evidence was then called by appellant to establish the following cases of adoption :— Kessow Trim buck Shastree Raidookur deposes— Trimbuck Shastree had one son (Ragoonath) who died childless; after his death, Trimbuck having a brother (Trevekram) who had thr^ sons ; a son of one not related (Purgotre) was adopted by the widow with the consent of the Sirkar, but deponent cannot say whether on the refusal of the brother to give a son or not. Gungabai, widow of Seetaram Kessow deposes:— Deponent’s husband died leaving a brother (Seedesh-wur Kessoo) and a first cousin (Pandoorung Bulwant), both having sons; deponent having an order from her husband to adopt, applied to them, Jfcd on being refused adopted one not related (Purgotre), who has the family property. Baljoshee Chowker deposes :— Deponent’s uncle Dondjoshee (the elder brother of deponent’s father) died, and his wife, under the deceased husband’s instructions, applied to deponent’s father, who has three sons, for one to adopt, and on being refused she adopted a son five or six years after not related30 CASES DISPOSED OF BY THE 1826 (Purgotre), who has the Enara and all the family Bhasker Buchajee, property. Venaik Chintaman deposes — Narro Ragoonath. Gunputraw Gusiee of Poona died, and his widow (Eshwadabai) three or four years after her husband’s death adopted a son of Ragoopunt Gudree, at Bombay, after the ceremony of Moonje had taken place, and on the adopted son coming to Poona he received the property. The Court also refers to its la^ officers upon the following points :— * ‘ 1. Was the adoption of the widow (Bhageerteebai) of the appellant good in law as regards the person of the appellant, that is, as a person she could legally adopt, nearer relations of her deceased husband being alive, and the appellant being only of the same Gotree, or kin. 2. Does the fact of the adoption having been made 20 years after the d^th of the husband of Bhageerteebai affect the lawfulness of the adoption. 3. Does the fact of the adoption having been made in Bombay, the family residence and property being at Poona, in the Dukhun, affect the lawfulness of the adoption. 4. Is it essential to the validity of the adoption by the widow that the deceased’s husband should have authorised it and instructed it to be done. 5. The adoptiHi being good, is the adopted son entitled to share in all property of the husband of Bhageerteebai, or only in the property of Bhageerteebai herself. The following answers were delivered in by the Hindoo law officers:— 1. An adoption should be made in the following line: A younger son of a brother, failing him a son of a Sugo-tree supindee, failing them of an Usugotreesupindee, and failing them of the Jat.SUDDER DEWANEE ADAWLUT. 31 2. The period for adoption is nowhere restricted in 1825 . the Shasters, but it must be afftr the widow has attained Bhasker Buchajee, the age of puberty ; and, if duly performed, must be »*• upheld. ' Narro Ragoonath. 3. The place for performing the ceremony of the adoption is nowhere restricted to the place of the resideuce of the family adopting; a boy may be taken for adoption wherever he may be found, and if the adoption is made in observance of proper ceremonies it will be valid. 4. The Mitakshura is silent as to whether the husband’s order is requisite or not for a widow to adopt; and the Muyook declares the'order not requisite, though a wife can only adopt under her husband’s consent during his life-time. It is written in the Veeruniitrodyna, —“he who is without children let him adopt that he may avoid the place of torment,” and therefore a widow is permitted to adopt without having received the express command of her husband. 5. The adopted son will inherit the same as a son born in wedlock, viz. the property of both the adopted father and mother. The Court on the above evidence, and also the exposition of its Law Officers on the law in the case, found it established— ]. That the widow received instructions from her husband on his death-bed to adopt a son. 2. That in accordance with this, sh Applied to respondent, as the nearest relation, for a son, and he refused to grant her one. 3. Neither length of time after the decease of her husband, nor the adoption having taken place at other than the place of residence of the parties, nor want of the permission of the ruling authorities, are sufficient grounds for setting aside an adoption once made with sufficient ceremonies.32 CASES DISPOSED OF BY THE 1826 4. That a son so adopted becomes heir to the whole Bhasker Buchajee, of his adopted father’s property. «. Under these findings the Court considers the appellant Isarro Ragoonath. estajjj;s}ie{j jjjg adoption and his right to inherit, and accordingly reverses the decree of the Chief Judge of the Sudder Dewanee Adawlut, passed at Surat under date the 25th February 1828, and the decree of the Court of Poona under date the 19th September 1825, and decrees to appellant, in virtue of the adoption, the property of the said Buchajee Ragoonath as sued for, viz. the half share of the joint personal and real property of Buchajee Ragoonath deceased and respondent. 1830 N°. 8. 25 February. SALLEKHAN UBDOOLAKHAN EsMAELLKHAN and Hussunkhan vd. Davoodkhan................Appellants, versus Dayamkhan Moohomud Ulleekhan Moo-humudkhan and Hoosainkhan vd. Hy-durkhan.........................................Respondents. Rupees 1,515-2-85. [Action to raise an Attachment.] This was an appeal against a decision passed in the Zillah Court, in ifie Southern Konkan, wherein appellant sought to recover damages to the amount of 1,515-2-85 on account of an attachment levied by respondent upon his (appellant’s) property upon a judgment given in the Zillah Court, which was afterwards set aside in the Sudder Dewanee Adawlut. The action embraces three items :— ls£. For the value of the materials of a house removed, Rupees 905-2-85.SUDDER DEWANEE ADAWLUT. 33 2nd. For injury done to trees in the garden, Ru- 18 Pees 485- . . ' Saliekiian" Ub- 3rd. For loss of cultivation and crop on certain land doolakhan Esma- during the attachment, Rupees 125. sunkhan^d HDa- In the lower Court the Judge threw out the claim on voodkhan, the last two items, and gave judgment for the value of Dayamkfom Moo the materials at 30 Rupees, or required respondent to humud Ulleekhan place the house in the same state that it was at the time M°ohumudkhan 1 and Hoosainkhan of the attachment. vd. Hydurkhan. The Court, on going into the case, held the respondent responsible for any damages done to the property whilst under attachment at his suit, but considering that full investigation had not been made to ascertain the extent of damage that bad accrued, referred the case back to the Zillah Court, with directiofs to assemble a Punchayet at Mhar to assess the damages on the three several items, and return the case with the award to the Sudder Dewanee Adawlut. This was done, and the Punchayet awarded on the first item, for the materials of the house Rupees 142-1-0, and on the 3rd item Rupees 12-1-0, making a total of Rupees 154-2-0, and threw out the claim on the second item. This award was affirmed in the Sudder Dewanee Adawlut with one-tenth of the costs of the whole suit, and the Punchayet’s expenses, leaving the remaining nine-tenths of the costs to be discharged by appellant. 5d HEFRINT34 CASES DISPOSED OF BY THE 1830 4 May. No. 9. Luggah Fattajee................................ Appellant, versus Trimbuck Herjee ...................................Respondent. Rupees 100. [Action to raise an Attachment.] The appellant sued in the Zillah Court of Tanna to remove the attachment leyied by respondent, under the following circumstances:— Respondent obtained a decree on the 9th September 1822 against Manoel de Monte (since dead) for Rs. 336-0-56, and otherwise, at any other place without such permission, Suyud Roza, they are declared liable to confiscation. The case was heard first before the Judge at Tanna, and he gave judgment for the respondents on the following grounds—]st, that the evidence in the case establish- ed.clearly that the toll was regularly paid at the bunder (Kambe) at which the cattle passed ; and 2nd, that the toll certificates were produced and shown to the appellant’s people at the time of the seizure ; and that with regard to the 3rd issue, although the appellants in support of their averment exhibited a number of entries from the custom books at the bunder, which showed it to have been the practice from time immemorial for cattle from the ghats to pass at Kaluher and Kuluve, and not at the bunder of Kambe; nevertheless cattle from the mahal had passed at that bunder on paying the established toll, and, therefore, in the absence of any prohibition or definite restriction to the two bunders mentioned by them the bunder of Kambe must be considered open for the passing of cattle (in the same manner as any other merchandize) on discharging the established toll. Judgment was accordingly given for the value of the cattle at an appraised value of Rupees 20 per head, being Rupees 1,937-2-64, and interest thereon at 9 per cent, from the date of the suit, the items for damages being thrown out. Against this judgment the appellants brought a regular appeal in the Sudder Dewanee Adawlut, upon the grounds urged by them in justification in the lower Court, declaring the judgment of the lower Court was erroneous,SUDDER DEWANEE ADAWLUT. 39 inasmuch as it was clearly shown to be contrary to the *830 practice of the district for ghat cattle to pass at any other wittoba Dewjee bunders than Kuluve and Kaluher; and that though the and Moydeen cattle from the mahal might pass at Kambe, this could Cooleekhan, be no ground forjudging that, cattle from the ghat might Syed Boodun vd. also. That at Katnbe, Kharubaw, or Wagubid, there ^avulbhaeeVd1*1 was no choukee, and, consequently, the taking the cattle Suyud Roza, by that route was a fraudulent evasion in breach of the provisions of Sections XV. and XXVI. of Regulation XX., and subjected them to seizure. 2ndly. That articles 4 and 14 of the lease under which the bunder of Kambe was farmed otdy gave the farmer a right to levy customs on goods according to established usage, and that this could not be set aside. 3rdhj. That the depositions of three witnesses called by appellants show that the respondents would not produce the certificates when called upon to do so, nor would they attend at Tanna to answer the complaint, or pay the duties when called upon to do so. That it is clear that the respondents were. taking their cattle by an unauthorised route ; and that the seizure was made and acted up to in conformity to Sections VIII. Clause 1st, XIV. Clause 2nd, XVIII. XXV. XXXI. and XXXII. of Regulation XX. of 1827, and therefore that the respondents could have no claim for indemnification against them, the losses, if there were any, having accrued through their own acts: they therefore prayed the judgment might be reversed. The following are the articles of the lease above referred to :— Article 4.—The farmer and his people will con- . tinue to levy the customs according to usage heretofore, and any breach will be visited by the reversion of the farms to the Sirkar, and it will be relet by public outcry40 CASES DISPOSED Of BY THE 1830 at the risk of the farmer for all deficiency in the amount Wittoba Dewjee on reletting it. and Moydeen Article 14.—A proclamation will be issued announcing Coole^han* the rates of customs payable at the bunder. Syed Boodun vd. The respondent in answer simply declared the grounds ^Davulbhaee”^]1^ UI"ged by appellants to be irrelevant; they had paid the Suyud Roza. rates of toll at the bunder they passed, and produced the certificates when called upon according to the provisions of Section XIV. of Regulation XX., and therefore prayed the judgment of the lower Court might be affirmed. On the case being brought on, and the parties heard by their several Vakeels, the Court, previous to coming to a decision on the case, directed a precept to the Collector of Revenue of the Konkan, calling upon him to report whether cattle coming from the ghats were restricted to passing at Kaluher bunder, or whether they might be brought to Kharbaoo. bunder ; and on examination of the bunder records, to certify any order, issued either during the former or the English Government, extant upon the subject. The Collector reported -that he had inspected the accounts of the Kambe bunder, of which Kharbaoo was a dependency, from the year 1819 to the end of 1827, when the sea customs were farmed, and that he found that no bullocks from the ghats had passed that bunder, that the only cattle that had passsed was from the neighbouring villages below the ghats; this, he observed, would appear to establish the fact that it was not usual for up-country cattle to pass at that bunder, but that no proof was procurable that it was forbidden under the Maratha Government to proceed by that route, and that no orders had been issued on the subject under the English Government. He further adds that as by Regulation XX. of 1827, Section XXVI., the rules by which sea customs in the Konkan were then charged and levied are nowSUDDER DEWANEE ADAWLUT. 41 maintained, it remained for the decision of the Court, J 830 whether such a provision implied that the customs of wittoba Dewjee the country in regard to confining the exportation of and Moydeea certain articles to certain ports must be adhered to; kooleekhan, or whether freedom be permitted of exportation from Syed Boodun vd. any place which may best suit the interest of the ^vuibhae^1' v paid the transit duty, were at liberty to use any ferry Syed Boodun vd. from the mainland to Salsette; and whatever may have vd* been their motives for selecting the district farmed to the Suyud lloza. Kambe farmer of customs, and crossing their cattle at the ferry between Kharbaoo and Wagabila, dependencies of the farmer, it does not appear that any regulation of Government, order of the former or present Government, or custom, operated to prevent them. The pretensions of the farmer of the customs of the Kulahur division, the appellants in this case, cannot therefore be supported, and as the decision already passed by the Judge of the late Zillah of the North Konkan is in every respect just, the same is affirmed. Costs in appeal to be borne by appellant. No. 12. 1830 Duyashunkeu Kasseeram................ ...........Appellant, 13 August. versus Brijvullubh Motheechund..........................Respondent' Rupees 112. [Action to raise an Attachment.] Appellant in this case sought to obtain an injunction to remove an attachment placed on half a house at the instance of respondent, in execution of a judgment held by him against Tooljaram Muncharam, the said house having been conveyed to appellant by purchase from Muncheram Kulian, the father of Tooljaram. The case was this:—The house in dispute was ancestral property, and subsequent to judgment being passed44 CASES DISPOSED OF BY THE 1830 against Tooljaram, was sold by Muncheram (the father), Duyashunker ^o w^ich Tooljaram gave his consent, having witnessed Kasseeram, the deed of sale; on a reference to the Hindoo law Brijvullubh Mo- oncers,* it appeared that in ancestral property a father theechund. and son have equal-interest; it was therefore determined that as the sale took place subsequent to the judgment against Tooljaram, the latter could not alienate such right as he possessed in the property until that judgment was satisfied ; in consequence the attachment was held to be good. This judgment was affirmed in appeal. A special appeal having been afterwards granted in the Sudder Dewanee Adawlut. Appellant urged generally the grounds taken by him in the lower Courts that, having satisfied a former mortgage on the premises, and the son Tooljaram having sanctioned the sale made by the father, his claim was good. On examination of the case, it was found that on the 2nd December 1826 a decree was passed in favour of respondent against Tooljaram ; that on the 23rd March 1827, Muncheram with consent of his son sold the whole house to appellant, which house was ancestral property, having descended from Kuliyan, the father of Munche- * A person dies possessed of property consisting of a dwelling-house, leaving a son and grandson. The son mortgages the house, and afterwards sells it; a debtor of his son (the grandson) places an attachment upon a half share of the house. It is therefore asked whether the son during his father’s life-time has any distinct right over this property ? It was answered, “ In ancestral property the right of the son and grandson is equal, and the son can demand a partition of the property. The father alone has no power to alienate such property, and the son’s right being co-equal with his father’s, his concurrence prior to alienation is requisite. This is according to Matakshura.SUDDER DEWANEE ADAWLUT. 45 ram ; that on the 12th April of the same year, the attach- 1830 ment was placed on the house by respondent, and on the Duyashunker 24th the present action was brought. Kasseeram, The Law Officer of the Sudder Dewanee Adawlut* jjrijvunXh m0. was called ' on for his exposition of the law applicable to theechund. the case, and confirmed the opinion given in the lower Court; therefore, as it appeared that Tooljaram had an interest in a moiety of the house, he could not, according to established practice, alienate his right therein while a judgment remained unsatisfied against him. The judgment of the lower Court was therefore affirmed. * A man died possessed of real property, consisting of a dwelling- house, and leaving a son and grandson ; will the right over this property descend to his son alone, or to the son and grandson jointly ; and if the son is about to alienate such property, can the grandson put in his claim to prevent it, and can the grandson, at his pleasure, claim a partition ? An equal right descends to the son and grandson over such property, and not to the son alone. The grandson can put in his claim for his half share in the event of his father wishing to alienate it, the property being ancestral; and further, the grandson can claim a partition at his pleasure, and if not granted, an action at law will lie to enforce it. This is according to Matakshura.46 CASES DISPOSER OF BY THE 1828 5 February. No. 13. Hurreedass Asaram.............................j Appellant, versus Giiirdurdass Kevuldass, Mooneem of the firm of Jugjeevun Khandass...................Respondent. [An Action brought to remove an Attachment from Property which one Brother* against whom was an unsatisfied Decree, had made over to another Brother under colour of his defraying their Mother’s funeral expenses. Attachment confirmed on one-half by the Assistant Judge, as the exposition of the Law Officer declared that the transfer could only hold if the transaction was bond fide, and the Note upon which the transfer was made was an unstamped paper, Respondent failing to prove the whole of the property to be Appellant’s. Affirmed on appeal to the Judge, the transaction appearing to him to be fraudulent. Modified on special appeal by the Sudder Dewanee Adawlut to the extent of awarding Appellant Rupees 10 out of his Brother’s share of the property for the payment of his Mother’s funeral expenses, that being the amount fixed by the Law Officer.] This was an action brought to remove an attachment. Appellant in his plaint set forth that respondent Ghir-der Parek had attached some property of his in execution of a decree obtained by the said Ghirder against his (appellant Hurreedas’s) brother, Muthurandass, he therefore sought to have the attachment raised. Respondent Ghirder in his answer stated that he, as Jugjeevun Khandass’ Mooneem, brought an action against appellant’s brother Muthurandass, alias Gubba, to recover sums of money which he had made away with when he was Mooneem of the same firm, as well as money due upon his account current, and that in consequence of this plaint Muthurandass was sent to gaol, not being able to furnish security for his appearance ; that subsequently a decree was passed in his (respondent’s) favour, and upon the Regulations of 182? * * Section LXIV. Regulation IV. of a,d. 1827.SUDDER DEWANEE ADAWLUT. 47 coming into operation, Muthurandass obtained his release, 1828 having made away with some of his property, and that jjurreedass Asa- his property, now under attachment, is some which he ram, entered in one of the certificates, but omitted in the last n,. ■, vs\ Tr , ’ . bhirdurdass Ke- which he gave in ; and that the clothes and jewels which vuldass. were entered among- the property attached were Gubba’s own, which he had given to his brother on going to gaol; and that the property was attached in Muthurandass’ house. Appellant in his reply urged that the property was his own ancestral property, and that in consequence of his having defrayed his mother’s funeral expenses, his brother Muthurandass wrote him a note from gaol making over his share of the property to him. That as a strong proof of the property was not Muthurandass’, respondent Ghirder had twice, after this certificate was given in, obtained extended periods to enable him to search for property; and that during the whole time he never found any, but now, being aware that appellant had received his brother on his release, he has attached the property under a false claim and false colour, and that he had even attached a ring, neeklacd, and dhotia, which appellant was wearing, and to which nobody could lay claim. Appellantin support of his claim filed an account he kept of the expenses incurred at his mother’s funeral, amounting to Rupees 300, and a note dated Sumvut 1883, Bha-drawa Wud 11th, Sunday, 16th September 1827, a.d., written by Muthurandass from gaol to his brother (appellant) telling him that he had received his letter informing him that his mother was dead, and telling him that he was aware of the expenses which he had written to tell him he contemplated, and that as he had no money, and his brother knew how he was situated, he wished his brother to make the necessary outlays on account of their48 CASES DISPOSED OF BY THE 1828 mother’s death, and that he would relinquish all claim Hurreedass Asa- to'his father’s clothes, furniture, goods, and chattels, as ram, he had no money to enable him to join in bearing the Ghirdurdass Ke- exPenses 5 an^ support of it he produced the evidence vuldass. of an old woman, whom he had employed to carry the note to his brother telling him of their mother’s death, and who also brought back the answer. He then produced another witness, by nameKunialal Bundoomul, who recognised the note as the one he saw appellant received from the old woman, and of which appellant told him at the time what were the contents. He further deposed to having received from appellant, in want of money to pay a fine against his brother, a necklace and ring which he pawned after he had given the money required, and which were now among the property under attachment, and which he took to one Rusheek Hurreebhaee, an assayer, to whom he pledged them, and from whom they were redeemed by a Gomastha of Hurreeram’s, by name Nundlal. Rusheek Hurreebhaee was called by respondent and corroborated this evidence, but had no books to produce, nor could he show any entry. Appellant stated that he had further evidence which the Assistant Judge refused to hear, as he said it was to prove that he had paid all the expenses of his mother’s funeral. Respondent then produced a rough draft of a petition to the Adawlut by Muthurandass when he was in gaol, making over his property for the benefit of his creditors, and praying for his release, in which the household furniture now under attachment was mentioned as being his property, and which was found and attached with the things, which could not have been the case had they not belonged to Muthurandass. He also produced two notes, apparently written by appellant to Muthurandass when in gaol, but without date, sending him some money, and telling him that Kessundass had brought Rupees 250SUDDEK DEWANEE ADAWLUT. 49 from the Rupees 500 for their expenses, and another l$28 copy of a letter to Hurreeram telling him to send Nun- Hurreedass Asa- dram to him again, as, because the assayer had mention- ram, ed a lower sum than he had noted by him as the worth Qhirdurda'ss Ke- of the jewels, he wanted to speak with him, and from vuldass. these respondent argued that the jewels were Muthuran-dass’, and that he had other resources of which his brother was aware, and money that he had reserved for their own use. The Assistant Judge put a question to the Shastree re- G. Grant, Esq. capitulating the circumstances of the case, and desiring to know whether, according to their law, a brother could under these circumstances give up his share of the family property to his brother without satisfying the claims of his creditors. The Shastree, quoting Munhoo, Cap. VIII. v. 165,# declared that if the Court was satisfied that the transaction was bond fide it would stand, but not otherwise. The Court, considering the note as written by Muthurandnss, with the intention of defrauding his creditors of their claim, that it was on unstamped paper, and that of the evidence adduced to prove it, one of them was appellant’s brother-in-law, held it inadmissible, and the note not proved ; but respondent not having proved the whole of the property attached to belong to Muthuran-dass, and appellant having claimed it as his ancestral pro- 3 ^ay \g2S. perty, the Court decided that the attachment should remain upon one-half, and be raised from the other. The costs being equally divided. From this decision appellant preferred an appeal to the Judge, against that portion of the Assistant Judge’s decree which threw out his claim to his brother’s share * “ When the Judge discovers a fraudulent pledge or sale, a fraudulent gift or acceptance, or in whatever other case he detects fraud, let him annul the whole transaction.—Sir W. Jones, Trans. 1 d REPRINT50 CASES DISPOSED OF BY THE 182S of the property; the appellant failed to present a sup-HurreedasTAsa- plemental petition of appeal, though he stated that he ram, would therein set forth the grounds of his discontent, Ghirdurdass Ke- aPPe^ant was not present when the appeal was brought vuldass. on ; and the Judge finding that the proceedings in execution of the decree obtained by respondent in Case T. Kentish, Esq., 2921 of 1826, against Muthurandass Asaram alias Gubba, had not been filed in the original suit, filed them in the appeal, and from that found the decree upon which the attachment had been levied was dated 15th March 1827, and as the Shastree had declared the transfer illegal if made with a fraudulent intention, and the documents passed by Muthurandass upon which appellant 23 May 1829. rested his claim were subsequent to the decree given against him, the Court felt no hesitation in supporting the previous judgment. Appellant urging that the Assistant Judge had not taken all the evidence he adduced in support of his claim, and that it was not necessary for the release upon which he claimed the share of his brother’s property to be on stamped paper, and that the necklace and rings 13 Nov. 1829. were his own property, obtained the admission of a spe-Esq.', Circuit * aPPeal in the provincial appeal court for Guzerat, on Judge- the ground that probably strict justice had not been done Esq!,'^ 3rd^Judge.n, an(^ ^ie aPPea^ was included among those transfer- E. H. Baillie, Esq. red on the abolition of that court to the Sudder Dewranee 5 Januaiy 1831. Adawlut, in which court, when first brought on, the sitting Judge consulted with the Shastree, who declared that it was necessary that an outlay of Rupees 20 should be incurred for the mother’s funeral expenses, and of that > the brother who was in gaol should pay ten, and the balance should go to his-creditors on account of his being in debt, as if he were not, he might have given all; in support of this position he quoted the Muyooku, and thereupon the sitting Judge referred the case to a fullSUDDER DEWANEE ADAWLUT. 51 court, with the suggestion that the decree of the Zillah 1828 Judge be amended to the extent laid down in the Shas- Hurreeclass Asa- tree’s answer ; and with regard to the necklace and rings, ram, he remarked that it was by no means clear that they . pi * bhirdurdas Ke- were exclusively the property of the appellant, as the re- vuldass. peated admissions in the lower court, that the property T. Barnard, Esq., was appellant’s and his brother Muthurandass’ ancestral , . . . . G. W. Anderson, property, were in his opinion entitled to more weight Esq., P. J. than the unsupported assertions of the witnesses Kunniah E. H. Baillie, Bundoolal and Rusheek Hurreebhaee. The full court J‘ (before which as well as the single Judge respondent did not appear) concurring in this opinion, modified the decrees of the lower courts to the extent of declaring that respondent should pay appellant Rupees 10 as Muthurandass’ share of the funeral expenses, and that the property under attachment should then be left at respondent’s disposal for sale in liquidation of his debt, with the exception of the necklace and rings, as respondent had failed to prove that they were a part of the hereditary property of appellant and his brother Muthurandass.52 CASES DISPOSED OF BY THE 1828- 8 July. No. 14. Luximeedas Laldas..............................Appellant, versus Mt. Hafizboo and Shaibboo.......................Respondents. Mt. Hafizboo and Shaibboo .................. Appellants, versus Luximeedas Laldas. ............................Respondent. [Suit to raise an Attachment from off a part of a House. The house having been sold under the Attachment which should have been levied on the shares of two persons only, it was awarded by the Assistant Judge that the sale should be annulled, with power to re-sell the two shares to which the Attachment should have been confined. Decree confirmed on appeal to the Judge, but defendants rendered liable for costs upon all but their share of the house, to raise the Attachment off which alone the suit should have been filed. Amended on appeal to the Sudder Dewanee Adawlut, to the £Xtent of relieving the original Plaintiffs from all Costs.] This was an action brought to remove an attachment from off a part of a house. The case was as follows : Luximeedas Laldas, as stated in the plaint, had a decree against Bhaeedas Balmookoond, in execution of which he placed an attachment upon a house, the property originally of one Peerbhaee Mu-licksha, and of whom Mt Hafizboo and Shaibboo had been declared with others (in a decree of the Surat Adawlut in No. 3392 of 1826, which they brought against one Eduljee Dosabhaee) the joint heirs ; they consequently sued to have the attachment raised off the house, with the exception of so much of it as was the property of Moosabhaee and Shureef Ali, sharers with them. Luximeedas Laldas the defendant contended that the house was the original property of Adumjee Sultanbhaee, and not of Peerbhaee Mulicksha, from whom Hafizboo andSUDDER DEWANEE ADAWLUT. 53 Shaibboo claim it. That Adumjee carried on trade, and 1828 one Bhaeedass Balmookund having a claim against him, ------------------ got a mortgage in 1230 of Heijra, a.d. 1814-15, from LuXHndas,aS ^ Moossabhaee and Shureef Ali, Adumjee*s sons* who car- vs. ried on the trade in his name upon the house, for Rupees * gim-^b00 4,000, in the name of Laldas Kessundas, and that he Hafizboo & (Luximeedas) received this mortgage bond from Bhaee- Shaibboo. dass, as security for a claim he had against him, and for Luximeedas the recovery of that claim he obtained a decree in No. Laldas. 5212 of 1826, by virtue of which he had placed this attachment; and that, therefore, after Adumjee’s debtor’s claims against the house had been satisfied, the balance was all to which the heirs to his property could lay claim. In support of his plea, that the house was Adumjee’s property, Luximeedas stated that in 1185 of the Heijra, a.d. 1771-2, Adumjee, as agent for the other parties to whom the house belonged, and on his own part, mortgaged the house, and subsequently having himself cleared off the mortgage, expended thousands of rupees in repairs, and that the plaintiffs in the case being children of other sons of Peerbhaee Mulicksha, they could not be heirs of Adumjee their uncle, and consequently, that the decree they obtained in No. 3392 of 1826 must be in error. The plaintiffs moved to have two bonds and a note of inheritance,* which had been filed in Suit No. 3392 of 1826, which they brought against Eduljee Merwanjee, filed in this suit : the first, a deed of purchase dated 12tli Rujub 1181 Heijra, a.d. 5th December 1767, by which Peerbhaee wulud Mulicksha bin Peerkhan purchased the house in dispute of Feejoolabhaee wulud Husseen-bhaee bin Adumkhan for Rupees 550; the other a mortgage bond dated 17th Shaval 1185 Heijra, a.d. 24th January 1772, by Adumjee Peerbhaee on his own * Moonasika.54 CASES DISPOSED OF BY THE 1830 behalf, and that of the other sharers in Peerbhaee’s pro-Luximeedas Lal-< Perty> to one Nanabhaee for Rupees 250. The note of das, inheritance drawn up by Mooftee Sheik Mahomed Ju-Mt. Hafizboo & maloodeen and under his seal, dated 1212 Heijra, a.d. Shaibboo. 1797-98, in which Sahibboo’s share of Peerbhaee’s pro-Mt. Hafizboo & perty was stated to be 174, and Hafizboo’s 231. Shaibboo, Luximeedas also moved to have extracts from Rehum - Luximeedas tala Alije’s day-book (Melil) for Sumvut 1847, a.d. Laldas. 1792, filed, to prove that the house had been repaired by and always esteemed the property of Adumjee Sooltan-bhaee. W. C. Andrews, The Acting Assistant Judge, finding from inquiry of Esc** the plaintiff’s Vukeel that the witnesses he had summon- ed, were to prove that the house in dispiite was in his client’s possession, refused to take their evidence, as he considered that the decree in No. 5157 of 1826 (Bhaee-das Balmookundas, vs. Eduljee Dosabhaee) already filed in the suit, established that Bhaeedas’s claim against the house in dispute extended only to Moosabhaee and Shu-reef Ali’s shares, so that there was no occasion to take their depositions. He also declined receiving the evidence of a witness produced by the defendant Luximeedas to prove that Adumjee Sooltan Bhaee had received a deed of release from the other sharers in the property, and had rebuilt the house at a great expense, and to which release this witness was stated to be an attesting witness, as the Vukeel was unable to produce the release. It further appeared in course of the inquiry, that the house from off which the plaintiffs sought to have the attachment removed, had been sold in consequence of some delay which had arisen from the Judge’s absence, by which the plaintiffs were unable to procure an injunction to delay the sale until too late. The Assistant Judge held it proved from the decree in No. 5*212 of 1826, upon which Luximeedass founded his claim, thatSUDDER DEWANEE ADAWLUT. 55 it was confined to such share of the house as belonged to 1828 Moosabhaee and Shureef Ali, and that the Judge, from Luximeedas Lal-an order attached to that decree, in process of execution, das, directed the attachm'emt and sale of such share only ; he, jj^zboo & therefore, as the whole house had been sold, passed a Shaibboo. decree reversing such sale, leaving Luximeedas at liber- Mt. Hafizboo & ty to re-sell such share as belonged to Shureef Ali and Shaibboo, J & vs. Moosabhaee ; that as Luximeedas had obtained execution Luximeedas of a decree for a sum amounting to Rupees 2,696 only, Laldas. and sold this house in process of that decree, he awarded costs on that amount against him, with the remainder to be borne by the plaintiffs. He further directed the Na- 4 October 1828. zir to return the purchase money if it had been received. Luximeedas, in appeal to the Judge, urged the same arguments as he had set forth in his answer in the lower court against the claim set up by Shaibboo and Hafizboo; he further took exceptions to the plaintiffs’ suit having been entertained in consequence of the attachment having been made on the 31st August 1827, and the suit not having been filed as required by Clause 1st, Section LXV1I., Regulation IV., a.d. 1827, within thirty days from the date of the intended sale. The Judge, on taking up the appeal, filed copy of a J. Kentish, Esq. precept from the Sudder Dewranee Adawlut, dated 20th June 1828, in which they gave it as their opinions that under the above quoted clause and section, the sale should be allowed to proceed, as Shaibboo and Hafizboo had failed to institute their suit within the prescribed period of thirty days. The Judge also filed copy of a decree given in Suit No. 3392 of 1826, Mt. Hafizboo and Mt. Shaibboo versus Eduljee Dosabhaee, whereby it was substantiated that the plaintiffs possessed certain shares in the house in dispute, and that the same were adjudged to them, reserva-tory of the shares of Moosabhaee and Shureef Ali; and, 17 October 1829. therefore, seeing no cause for interference with the former5.6 CASES DISPOSED OF BY THE 1828 decision, he confirmed it; but finding that the property Luximeedas Lai- contained 2376 shares, and that 638 only belonged to das, Shureef Ali and Moosabhaee, as there were many other Mt Hafizboo & heirs, though not in the city, to prosecute their claims, he Shaibboo. therefore threw that amount of cost upon respondents, Mt. Hafizboo & and the remainder upon appellant. Shaibboo, From this decision both parties obtained the admission Luximeedas °f special appeals in the provincial court of appeal for Laldas. Guzerat, before whom it appeared upon Luximeedas’ petition, that the persons who sued to raise the attachment were two out of a number of persons having an interest, but unequal shares, in the house attached ; that the J. Sutherland, decree runs against two of these persons only, and hav-ESqjudgerCUlt Cached the whole house, he complains of the Zillah J. Taylor, Esq., Judge’s decree disturbing tTie attachment further than so 2nd Judge. much as was claimed by the present party, as he would W. J. Lumsden, Esq., 3rd Judge, undertake to showr that by deaths, &c. a larger share m the property actually belonged to the persons against ^ whom he held a decree than had been awarded. Hafiz-22 January 1830. h°° and Shaibboo also obtained the admission of their special appeals against the costs, as being connected with the former, and both appeals were transferred to the Sudder Dewanee Adawlut on the abolition of the provincial appeal G. W. Anderson court- The sitting Judge, in referring the case to a full Esq., Puisne Judge, court,found that Hafizboo and Shaibboo had been in decree 4 iebruaiy 1832. 3390 of 1826, recognised as heirs, with a right to share in the property in question, and consequently that the only point remaining for decision was whether the attachment (supposing the attachment in force) should be taken off from so much as was their right, or from all the property, except the shares of Moosabhaee and Shureef Ali, being himself of opinion that the only right in the property by which the attachment could be levied by Luximeedas was that derived from the mortgage given by Moosabhaee and Shureef Ali; and that the attachmentSUDDER DEWANEE ADAWLUT. 57 ought, therefore, to have gone no further. With this 1828 opinion both appeals were referred to a full Court, as the Luximeedas Lid-one preferred by Hafizboo and Shaibboo was entirely das, dependent upon the former, and supposing the full Court Mt Hafizboo & concurred with the sitting Judge in opinion on the other Shaibboo. appeal, that the attachment ought only to have been levied Mt. Hafizboo & Q] •11 on Moosabhaee and Shureef Ali’s share onlv, no costs suaioDoo, J ’ VS. ought to have been awarded against the present appel- Luximeedas lants. Though if the Court decided that they ought to T B have sued to have the attachment removed from their Aciin” P. J.^'’ own shares only, they would be rightly saddled with Anderson Esq., costs for so much as they had sued beyond the value of e. Baihie Esq^f' those shares. The full Court concurring in opinion with Puisne Judge, the sitting Judge, amended the Zillah Judge’s decree to 24 Maiclx 1831' the extent of relieving Hafizboo and Shaibboo from all costs, and confirmed the rest of the decree in every respect. No. 15. Anundram Balchund....................................Appellant, versus Muncharam vd. Nagoowany.................... .... Respondent. Rupees 191-0-50. [Suit to recover upon a Note of Hand decreed by the Native Commissioner without interest; on appeal to the Assistant Judge interest awarded at 12 per cent per annum for six years ; on further appeal to the Judge, the claim was thrown out, as recovery was barred, by the Law of Limitation ; upon especial appeal to the Sudder Dewanee Adawlut, the law of limitation was not held applicable, and. the Assistant Judge’s Decree affirmed.] This was an action wherein appellant sought to recover from respondent Rupees 95-2-25, principal, on a note of hand, and interest; and the case, as declared by appellant, was this, that the fathers of the present parties 8 d REPRINT58 CASES DISPOSED OF BY THE 1828 Anundram Bal-ehund, vs. Muncharam vd. Nagoowany. traded in partnership together, which was discontinued in 1735, and respondent’s father passed to appellant’s father a promissory note in that year for Rupees 95-2-25, being the balance in his favour on winding up the accounts. Respondent in the defence admitted the execution of the note and the trading transactions between the parties, but pleaded especially that the note was not obligatory, having been obtained from him under duress, and prayed an adjustment of their accoiints. On this plea, issue was joined, appellant averting in reply that an adjustment of their accounts took place, and that the bond was passed for the balance. The case was first brought on before the Native Commissioner in the Zillah of Ahmednuggur, and on the part of the appellant, the following documents were filed :— Various papers of accounts relating to the trade; an adjusted account striking a balance of Rueeps 95-2-25, and under written “ according to a note of hand given “this 10th Ashwin Shood, 1735, if not duly liquidated, “ to be charged at 24 per cent, interest”; a letter from respondent to appellant dated Ashar Wud 14th, 1237, Fuslee, or a.d. 1827, to the tenor, “ You threaten me “ with an action, but that is no use, we have always “ acted friendly towards each other; you say you “ wont allow the four months more ; well, I will be “with you in Bhadrapud, and come with Balloo and “ settle our dispute ; if I fail, you may do what you “ please. I stipulate for Bhadrapud, but will come in “ Shrawun.” A second letter 17th Zillhez 1837 as follows:— “I received your letter, but what is the use of you “ making such a business of it ? I will come in a couple •“ of months, and will settle the balance as shall appear “ on examination of the accounts. There is no occasionSUDDER DEWANEE ADAWLUT. 59 “ for a Punchayet ; we can do it friendly between our- 1828 “selves.”^ Auundram Bal- Two witnesses also deposed that the appellant produc- chund, ed the accounts and note one day to respondent, and Muncharam vd then he (respondent) admitted the note to be his father’s Nagoowany. handwriting, but declared it to have been taken by constraint, and that he would produce his accounts next day, which he never did. On the part of the respondent no witnesses were called, but various papers of accounts relating to the trade were filed. The Ameen held that the onus probandi on the issue Crisnajee Gunesh joined lay with respondent, and therefore that it was in- Enmdole> cumbent upon him to establish proof of the duress, which he had not even attempted to do, either by documents, or oral testimony; and further, that the admission in the two letters sent by respondent, of themselves threw discredit upon his statement, and therefore he considered the note should be upheld ; but in consequence of the claim being of such long standing, struck out the inter- 10December 1827. est, and decreed the principal and half share of costs. On an appeal before the Assistant Judge for the inter- p- w* LcGeyt* est, the Court observed that the agreement for interest appeared in the note to be interlined, and, therefore, was 9 February 1828. suspicious. The Court on this ground set it aside and awarded, under Section XII. Regulation V. of 1827, interest for 6 years at 3 quarters per cent. Against this decree respondent made a further appeal to the Judge, and advanced a fresh plea of the limitation of regulations in bar of this action. The Judge remarked upon the alterations of the ^arr'ot* Es(l- figures and letters of the note as throwing distrust upon its contents, but held the limitation of the regulation a bar to the action, and therefore reversed the Assistant Judge’s decree with costs. * 21 July 1828.60 CASES DISPOSED OF BY THE 1828 Anundram Bal-chund. vs. Muncharam vd. Nagoowany. 13 January 1829. G. W. Anderson, Esq., O. S. Puisne Judge. James Henderson, Esq., Acting Puisne Judge. E. II. Baillie, Esq., E. Ironside, Esq., Puisne Judge. G. W. Anderson, Esq., Puisne Judge. E.H. Baillie, Esq., Puisne Judge. 31 March 1831. A special appeal was admitted in the Sudder Dewanee Adawlut, as the Judge had reversed the whole decision of the lower Courts, when no appeal had been preferred from the decision of the Ameen awarding the principal sued for, and therefore that part of the claim was not before the judge. The appeal was referred to a full Court, the sitting Judge being of opinion that appellant was entitled to a judgment in his favour; and the full Court agreeing with the sitting Judge, and holding that the two letters were sufficient to take the case out of the limitation of the regulations, and that upon the issue as to the merits of the case between the parties, the view taken by the Assistant Judge was correct, they affirmed that decree, and reversed the Judge’s decision with costs. Ahmedabad. No. 16. Kurreem Jeewun...................................Appellant, versus Mt. Muriyum, wife of Juhnsahib, Mt. Fat-ma, daughter of Esahuch Ullijusahib, Sulaman Mahomed, and Mt. Huleema, daughter of Mt. Muriyum......................Bespondenis. [An action brought by a Paresia Sonar, to enforce the Marriage of a girl betrothed to him, thrown out by the Native Commissioner on the exposition of the Cazee, that a girl when she arrived at puberty was at liberty to marry whom she pleased, confirmed by the Judge,, and also upon special appeal in the Sudder Dewanee Adawlut, the Appellant being left to sue the mother for breach of the engagement made by her to marry her daughter to Appellant.] This was an action brought by appellant in the Junior Native Commissioner’s Court at Ahmedabad, against the respondents, for breach of promise of marriage; damages were laid at Rupees 499.SUDDER DEWANEE ADAWLUT, 61 The appellant, an inhabitant of Kaira, on the 10th No- 1830 vember 1828, filed his petition against the above respon- Kureem Jeewun, dents, inhabitants of Ahmedabad, setting forth that he vs-_ had in Sumvut 1S69, a.d. 1^12-13, entered into an en- ^unyur11, gagement with respondent Muriyum, whereby she was to give her daughter, respondent Bulleema, in marriage to him ; that she, together with Ullijusahib, in accordance with this had, in Cliytru Sumvut 1883, (March) April 1827, a.d., agreed to complete the marriage, in consequence of which he had borrowed jewels and money for the purpose of making preparations for the ceremonies; but they having raised a charge of impotency against him, attempted to break off the match; he consequently brought this action against the mother, Mt. Muriyum, and her daughter, Mt. Hulleema, to enforce the marriage, and joined Mt. Fatma and Ullijusahib, as they had taken jewels on account of the marriage, and Sulaman Mahomed, as the person to whom they were now going to give the girl in marriage. The respondents (with the exception of Ullijusahib, who was gone to Malwa and did not appear) gave in one answer, in which the three women pleaded that there never had been a betrothal between respondent Hulleema and the appellant; and that even if there had, it was a custom of their caste for women to break off the engagement before marriage if they choose, and that they harl frequently availed themselves of it. The respondent Sulaman denied having been betrothed to respondent Hulleema, and consequently that he ought not to have been included in the plaint. The appellant replied, and the respondents rejoined, and on the case being brought on before the 2nd Native Commissioner, appellant put in a bond to which he referred in a, supplemental petition, on which he had paid money to respondent Muriyum, and wherein she ac-62 CASES DISPOSED OF BV THE 1830 knowledged the betrothal of one daughter (Hulleema) to Kurefem Jeewun, appellant, and another to his brother ; this, however, the Native Commissioner threw out, as the claim was not Mt. Marijum. Up0n but merely *for the enforcement of the marriage. Both parties produced witnesses, and in the opinion of the trying authority, the contract, and giving the bangles, and dividing the cocoanut, sugar, and sweetmeats, wras proved, but the evidence as to the custom of the caste with regard to dissolving marriage contracts was at variance, each witness deposing in favour of the party by whom he was summoned ; the Junior Native Commissioner accordingly put the following questions to the Cazee, to which he received answers :— Question.—Can an affiance, made according to Maho-medan law, be broken off previous to the marriage taking place ? Answer.—All Moosulmans break off affiance previous to marriage, and the husband can break it off after marriage; but the girl, if she chooses, can break off a betrothment as well as the man. Question.—Can a marriage be enforced by law when the betrothal took place about 15 years before, and neither the father and mother nor daughter consent to the completion ? Answer.—If a woman, after she arrives at puberty, objects to the marriage, it cannot be enforced, nor can her parents oblige her to consummate it if she dislikes. Question.—If a girl should have arrived at 22 years of age, can she betroth and marry whomsoever she pleases, or must she abide by the appointment of her parents ? Answer.—A gill of that age can marry as she pleases in her own caste, or if her father and mother form a marriage for her, they must do it after asking her, and if they should do it without consulting her, and she not approve of the marriage, it would not be good in law.SUDDER DEWANEE ADAWLUT. 63 The appellant also put the following questions to the 1830 Cazee . Kureem Jeewun, 1st Question.—Did you ever see, or have you any vs. records in your possession from the ancients, that a Murl3'uni* betrothal made under the ceremony of giv-ing sugar, putting on the bangles, sending the girl sweetmeats and money, has ever been broken off ? Answer—1 know nothing of the custom of sharing sugur, &c. and making a betrothal. 1 know of two or three which have been broken off, and one in which some Paresia Sonars of Gorasa were concerned during the time of the Paishwa, in which the point was very deeply agitated by the authorities, who decided it according to the Mahomedan law. 2nd Question.—We have been residing at Ahmedabad for 400 years, and we have never married with any other Moosulmans, nor do we break betrothals made with sugar and bangles, and we have strong proof of it, in their not breaking betrothals at Booj and Nuggur, where we have 1,300 houses, and Surat, where we have 100. Do we therefore abide by Mahomedan law or not ? Answer.—I know not how long you have been here, whether 40 years or 1,000, nor how many houses of the Paresia Sonees there may be in Surat, or Booj, or Nuggur; but all cases of breach of betrothal which may have come before the authorities may have been decided according to law, and all Moosulmans are accustomed to marry and give in marriage in their own caste, so what is the difference in yours ? 3rd Question.—Look at all the papers in my case, and say whether you ever saw a betrothal of this nature broken off? Answer.—The answer to this is included in the answer to the 1st question.64 CASES DISPOSED CF BY THK Mt. Muriyum. The Junior Native Commissioner, acting upon this ex-Kureem Jeewun, position of the law, decreed in respondent’s favour, and threw out the claim. From this decision the appellant, on the 3 1st December 18*28, appealed to the Judge, on the law not being applicable to their caste, and on the appreciation of evidence by the Junior Native Commissioner, and the case being brought on for decision, the Judge was of opinion, that no reliance could be placed on the evidence produced by either party, as it was extremely contradictory, and that the parties being Moosulmans, they were bound to abide by the doctrines of Mahomet, as found in the Cazee’s answers, and the appellant not having proved any loss incurred by the dissolution of the marriage, he affirmed the decree of the lower Court, leaving appellant, however, at liberty to file another action for any claims he may have under the deed which he filed to prove the betrothal. From this decision appellant presented a petition of special appeal to the provincial court of appeal for Guze-rat, which was admitted, as it appeared to the Court, that the right to have the Mangnee, or marriage, annulled or otherwise, had not been sufficiently proved, and upon the abolition of the provincial court of appeal for Guzerat, the special appeal was transferred to the file of the Court of Sudder Dewanee Adawlut, and the case was brought on for hearing before that Court, when the sitting Judge recorded that appellant in prosecuting this suit appeared to have set aside all thought of forms and rules regarding Maho-medan marriages, and had in view Hindoo institution. The Cazee’s exposition shows that the bride herself must be a consenting party to the marriage, but as it does not state how this is to be arranged when she is so young, that such consent may be looked upon, as in this instance as an empty form ; it was necessary to refer the point toSUDDER DEWANEE ADAWLUT. 65 the Cazee, who stating that a contract of marriage enter- 1830 ed into for a female minor is of no effect otherwise than Kureem jeewun, as confirmed by herself after she has attained maturity, vs. the sitting Judge was satisfied that the contract entered Mt‘ ^iinyum. into by Muriyum could not be considered as a valid agreement, inasmuch as it was an engagement to do an impossible thing ; he, consequently, confirmed the decrees of the lower courts, leaving appellant to prosecute for any 0 I831' damage he may have sustained by Muriyum’s conduct. No. 17. 1825 Kawul Purbhasungjee Veerumsingjee, his heir Ciiuttursingjee Kooya Khas-baee and Essack Kooya. . .........................Appellants, versus Adumjee Hasbaee & Irkahimjee Kalla . . Respondents. [Suit brought by a person holding a Lease, Jewutchund Dewakur (as long as the sun and moon) against the Lessor for resuming the Land unauthor-izedly, and also against the present tenants for Damages; claim thrown out bv the Registrar as wrongly laid; reiiled by order of the Judge, and a decree passed in plaintiffs’ favour. Affirmed on appeal to the Judge, and also on special appeal to the Sudder Dewanee Adawlut, the Court finding that leases of this nature were not, under the custom of the country, re« sumable at the will of the Lessor.] This was a suit brought by the respondents in the Zillah Court at Broach on the 19th November 1825, for the recovery of land held under a perpetual lease, but illegally resumed by the original proprietor, and also to recover certain damages arising from dispossession. Respondents set forth in their plaint, that they had in Sumvut 1869, a.d. 1812-13, taken on lease, for ever, at Rupees 43 per arm uni, a field of 10 beeg«hs, named 9 d REPRINT.66 CASES DISPOSED OF BY THE 1825 Limreo, in the village of Dewa, part of the Seeree,# of Kawul Purbha- appellant, and his brother Veerungsungjee ; that the sungjee Veerum- latter died, and that Purbhasungjee, after respondents bl”^ee’ had held the land 14 years, and improved it by planting Adumjee Hasbaee on it, gave the land to the two other respondents, who aUd Kalla" 1T^ee CU^ ^ie Jowarree f and Soorum ;[; which had been sown upon about six beegahs of the land in question, and otherwise injured the property ; so that respondents w'ere compelled to sue all parties, laying damages at Rupees 300, being one hundred on account of the produce destroyed, and Rupees 200 for the proceeds of the land and the trees which they had planted. The appellants appeared and gave an answer upon one paper, but in separate heads, the appellants Kooya Has-bhaee and Essack Kooya pleading that the suit was irregularly brought against them, as respondentshadnot proved that they had any title to the land, and,, consequently, until that was done the action would not lie against them, they being admitted to be in possession from the original proprietor ; the appellant Purbhasungjee pleaded that the terms of the lease were matter of form, and that though it had been granted “ Jewutchund Dewakur,” as long as the moon and sun, yet that he had power to resume it whenever he pleased ; and that with regard to the claim on account of the trees, it was entirely false, as the land had only been held by respondents for 14 years, and some of the trees were an hundred years old, so that respondents could have no claim to them. E. Montgomerie, The Registrar, before whom the case was first brought Es(1' on, refused to go into the merits of the case, as he consi- 11 Sept. 182C. .* Land assigned to persons whose Wanta had been seized by the state. X Yaur, f Maize.SUDDER DEWANEE ADAWLUT. 67 tiered the action was irregularly laid, that respondents 1825 should, in the first instance, have sued Purbhasungjee to Kawul Purbha-prove their title to the land, and then they should bring sungjee Veerum- mnp’iPp an action for damages against the other party ; he there- fore dismissed the suit, with all costs upon respondents. Adumjee Hasbae The respondents on the following day presented a and Kalla™^6 petition to the Judge, praying that the Registrar might e. Grant, Esq. be directed to go into the merits of the case, and on the 13th September an order was given, complying with the petitioners’ prayer, and directing under Clause 1st, Section X. Regulation VI., and Clause 6th, Section XXX. Regulation V., a d. 1820, that the suit be x-efiled and tried on its merits. The case was accordingly refiled, and the following lease, upon which respondents claimed the land, putin and recorded,. Maharawul Shree. “ Purbhasungjee “ Veerumsungjee and Maharawul Shree Wukutsungjee “ Veerumsungjee to the undermentioned Khallabhaee “ Hunsbhaee and Adumbhaee Hunsbhaee, Patells of the “ village of Dewa, that our Seree of ten beegahs, Ab-“ ramjee Oodawalla Limreo, is given to you, and we will “ take current rent, Rupees 43, that field is given, Je-“ watchund Dewakur (for as long as the moon and sun), “ on it sink a well and plant mangoe and date trees, the produce of which you may consume.” This writing is true as it is written. Dated Sumvut 1807, Maha Wud 9th, a.d. 1810. The Registrar was of opinion, that from the wording G.C. Wroughton, of the lease it was evident that the land in dispute had Es(1‘ been let to the respondents on a perpetual lease, and considering the defence set up by the appellant Purbhasungjee untenable, declined examining the witnesses he brought forward to show that it was customary to revoke such leases, as their evidence being at variance with the ends of justice, could in no way alter the opinion of the 26th July 1827.68 CASES DISPOSED OF BY THE 1825 courts; he therefore decreed the land to respondents, Kawul Purbha- an(^ considered that the other appellants being relations sungjee Yeerum- of respondents had taken it, knowing that it had been S1^.jee ^ to them ; but he did not consider the damages shown, Adumjee Hasbaee equal to the amount claimed, as there were only 10 bee- and ^brahimjee g^g ]an(jj anc[ ^he cr0ps, at the time the land was taken, had not arrived at perfection; so he awarded Rupees 150 as damages, with all cost against appellants. From this decision appellant appealed to the Judge of J. Kentish, Esq. Surat, on the 15th September 1827, before whom no fur- 5 January 1831. was offered, and he on the 5th January 1828, confirmed the Registrar’s decree, with all costs. A special appeal from the Judge’s decree was on the 28th June 1828, admitted in the Sudder Dewanee 4 January 1828, Adwlut at Surat, and the same was brought on for hear-E. H. Bailhe, Esq. jng ^efore a single Judge, in the court then removed to Bombay, who considering that a fair interpretation had already been placed upon the lease, and that the decisions of the lower Courts should be supported, but referring to the cause of admission of this appeal being in consequence of the point of granting a perpetual lease, being one of general importance to the country, and one that had not been decided upon by the Court of Sudder 17 March 1831. Dewanee Adawlut, he referred the special appeal to a T W* AT<1 ES(* ’ ^ourt’ an(^ 011 case com^n§ on before that court? *ESq., ’ they considered the point to be decided was, what con- E. II. Baillie, struction ought to be placed upon the terms of the deed E. Grant, Esq lease> and that the most satisfactory method of ascer- taining this was, by allowing the parties to adduce evidence to the point. The lease was accordingly returned to the Acting Judge at Surat, with instructions to take evidence from both parties, to show whether the wording of the bond was in accordance with the practice in the Zillah, in the execution of deeds of lease, and, if so, whether under such documents, the property isSUDDER DEWANEE ADAWLUT. 69 considered as alienated to the lessor without power of revo- 1825 cation, and whether a power is reserved, and under what Kawul Purbha-terms to the lessor. The Acting .Judge referred the sungjee Veerum-investigation to the Acting Assistant Judge at Broach, sm^jee before whom appellants produced four, and respondents Adumjee Ilasbaee five witnesses, in support of their several claims. Ap- snd pellants’witnesses, Meeta Jeewa and Bapoo Narayen de- w Birdwood posed to having themselves and their family cultivated Esq. land upon leases “ Jewutchund Dewakur,” but were unable to produce the leases. They, however, considered the resumption unjust, and could not say that they ever heard of leases granted Jewutchund Dewakur being resumed after a tenant had improved the land by planting trees on it. The next witness Ibraham Sulaman had never seen a lease “ Jewutchund Dewakur,” but had heard of them, and that it was not usual to revoke leases so made. The fourth witness Esof Moosa agreed with the witness Bappoo Narayen in thinking that as the Kawul was the lord of the soil, he had power to revoke leases of this nature, but was unable to adduce any instances in support of his opinion. The respondents’ witnesses, Morar Sardar, Malik Sheriff, Abraimjee Hussein, Koya Jeewa, and Ibrahimjee Adam, all deposed to holding land upon leases Jeewutchund Dewakur for many generations, and that such leases could not be revoked by the lessor so long as the lessee acted up to his part of the lease, i.e., duly paid the rent, and the Court of Sudder Dewanee 28 July 1831. Adawlut upon the strength of this evidence was of opinion J?* Ironside> Ksq., 1 ° 1 I. Barnard, Esq., that the tormer decrees were correct, and consequently e. II. Bailie, Esq. confirmed them, with costs.70 CASES DISPOSED OF BY THE 25 May 1827. G. Grant, Esq., .7. Kentish, Esq. No. 18. Ruttonjee Byramjee ...............................Appellant, versus Cawasjee Kuttonjee.......................... .Respondent. [Suit brought by the Toddy Farmer to recover the amount of Tax due upon Toddy drawn and sold within his farm. Claim not held proved before the Assistant Judge and thrown out; reversed on appeal to the Judge, and his latter decree reversed by the Sudder Dewanee Adawlut, in consequence of the peculiar right possessed by Wazeefadars.] This was an action brought by the toddy farmer against appellant for having drawn and sold toddy without his permission. Respondent in his pluint set forth that he had taken the toddy farms.in Kutargaum and other towns for the years 1822-23 from the Government and paid accordingly ; that some persons had drawn toddy on their own account and paid him the duty on it, while others had neglected to do so; he accordingly, after having warned these latter, summoned them before the Collector, who fined them for having drawn and sold toddy without paying him his dues ; and as these persons continued to neglect his demands, he brought an action against appellant to recover Rupees 121 fees due, Rupees 28-2-0 interest, making Rupees 149-2-0, which the Assistant Judge threw out, and from which he appealed to the Judge who explained to him that he had not specified the ground of action, so that this suit was thrown out, but that he was at liberty to sue again upon anew plaint; in consequence of which he brought the present action, to recover Rupees 149-2-0 due as above, with Rupees 15 interest from the date of the former plaint to the present day, to which he had added Rupees 60 cost, which he had before incurred, making a total now sued for of Rupees 224-2-0.SUDDER DEWANEE ADAWLUT. 71 Appellant defended himself on the pleas that the form- *827 er suit referred to by respondent had been tried on its Rutt0njee Byram-merits and thrown out, and further that he sold the toddy jee, in the city and paid customs at the gate, and, consequently, cawasjee* Rutton-as it was not sold within the limits of the farms, respond- jee. ent had no claim for customs. The respondent produced three witnesses who deposed to having met appellant some time before, and his having desired them, as friends of respondent, to persuade him not to demand any dues from him, as the toddy he drew was sold in the city, and, consequently, not liable to pay duty to the farmer. The appellant produced one witness, and filed the evidence tor’s return showed that Government had no demand Cawasjee Rutton- f°r any tax> either on the trees belonging to the Wuzee- jee. fadars in those villages, nor on the toddy produced from them ; nor could respondent, as a farmer of spirit and toddy, have any claim except upon a private agreement with the proprietors for leave to sell toddy within the limits of the farm; the sitting Judge upon the return 7 October 1831. being received, on again taking up the case, corrected the view he had taken in the first instance, considering that the claim now set up had never been recognised by the local authorities ; indeed, that a proclamation which the Collector had issued on the 15th October 1823 and forwarded in return to the court’s precept, distinctly permitted persons to draw toddy and sell it in the city of Surat; or else directed them, previous to selling it within the limits of the farm, to obtain the farmer’s permission ; and subsequently, on the 28th September 1826, E. Ironside, Esq., that another proclamation was issued to the same purport T Barnard, Esq., as ^ie former, which also recognised the right of Wuzee-A. P. Judge, fadars to take toddy for the use of their own family. E ^ The appeal was consequently referred to a full court, in 26 October 1831. order that the Judge’s decree might be reversed, which was accordingly done, and the Assistant Judge’s decree affirmed.SUDDER DEWANEE ADAJVLUT. 75 No. 19 Eduljee Mehhwanjee ................................Appellant, versus Kiiursedjee Manuckjee and Manuckjee Rustomjee....................... ...........Respondents. [Suit brought by an Agent, against his coadjutor and their constituent, to recover money expended in conducting a suit. Claim against the constituent thrown out by the Zillah Judge on the question of jurisdiction, and that against the coadjutor as not established. Appeal struck off in default of Appellant’s attendance. Review of judgment admitted and held by a full court, that there was 110 specific act in the case to render the constituent amenable to the Court’s jurisdiction, and by a single Judge, who subsequently decided the case, that Appellant had employed no funds but those furnished by his coadjutor.] This was an action brought by appellant to recover money due upon an unadjusted account. The appellant Eduljee Mehrwanjee, a prisoner in the civil gaol, was permitted to file a suit in forma pauperis, in the Zillah Court at Surat, in which he set forth that he had in Sumvut 1874, a.d. 1819, been appointed by Knursedjee Manuckjee, an inhabitant of Bombay, agent for him, in conducting some suits, which Kiiursedjee had filed in the Surat Adawlut, against the heirs of Khoorsedjee Kooverjee, and others ; and that the ofher respondent (Manuckjee Rustomjee) was joined with him in the business; that at Khursedjee’s desire, appellant Eduljee filed the suits, defraying all expenses himself, and for the amount of which respondent Manuckjee Rustomjee agreed to be responsible; that certain remittances were made on this account from Bombay, which respondent Manuckjee appropriated to himself; appellant consequently sued respondents Khursedjee 13 August 1825, Surat.76 CASES # DISPOSED OF BY TME 18 25 Eduljee Mehrwan-jee, vs. Khursedjee Mali uckjee & Mali uckjee Rustom-jee. 16 Sept. 1825. and Man uckjee to recover Rupees 13,123-4-0, due as follows:—• Expended on account of suits between Sumvut 1874 and 1876, A.d. ] 819 and 1821 ....................... ...... .Rs. 11,974 4 0 Deduct received from Sorabjee, who, at Manuckjee’s desire, became appellant’s security to others for damages against him....................................... 3,400 0 0 8,574 4 0 Interest......................................4,548 7 11 Rupees 13,122 11 11 Appellant presented a supplemental petition stating that in his petition he had omitted an item of Rupees 1,122-14-0, thereby increasing the amount of his claim to Rupees 14,245-15-11. The respondent Khursedjee Mann cl? jee did not appear, and the Nazir reported he had no property in the Zillah and lived in Bombay, but, respondent Man uckjee Rus-tomjee denied any claim by appellant., and challenged him to produce any documents from him rendering him liable as security; he further stated that all claims on account of the suits in question had been liquidated by bills, &c. on merchants in Surat; and that since the date of the balance struck, he had received a note from appellant Eduljee for Rupees 300, upon which he had obtained a decree, and in consequence of that decree Eduljee was now in gaol; that if Eduljee had any claims against him (respondent) he would never have written a note to him, but that the suit was brought through enmity. The appellant Eduljee replied that the note was a forgery, and that the decree was obtained upon it duringSUDDER DEWANEE ADAWLUT. 77 his absence in Ahmedabad, when he was unable to defend 1825 the suit, and thatlie had on appeal denied the bond, and Eduljee Mehrwan-offered proof of his having a counter-claim, for which he jee, was directed to sue. _ _ Khnrsedj'ee Ma- The respondent Manuckjee rejoined that his claim upon nuckjee & Ma-the bond had been fully investigated on the appellant’s nacKje*^ustoin" return from Gu^erat, when Mr. Anderson on appeal had returned the suit for re-investigation, and that even then the decree was given against appellant. The appellant to establish his claim filed a chopree, (small account-book) in which was entered an account under the following head :— “ Parsee Khursedjee- Manuckjee, a shroff of Bombay, and Manuckjee Rustomjee the plaintain man; account concerning the expenses incurred in the Adawlut at Surat, and in the provincial appeal court for Guzerat, on account of the suits against Khursedjee Cooverjee’s heirs and others, Sumvut 1874, a.d. 1819.” Then followed the several items in detail, the first dated Kartugsood 3rd, Wednesday, November 27th 1819. Making an aggregate for stamps. . Rs. 5,162 Exchange .......................... Wukeel’s fees...................... His, as Mookhtiar’s fees .......... Writers ........................... Interest to 21st July 1820................. 6,275 Per contra were credited1, s. 5,162 1 0 92 0 0 , 1,293 0 0 , 4,769 2 70 40 1 0 11,357 0 70 6,275 3 99 17,633 0 69 3,400 0 0 leaving the balance as sued for. Appellant further produced exhibits to verify his account, but entirely failed in the opinion of the Judge to prove either by verbal or do- w. A. Jones Esq. eumentary evidence, that respondent Manuckjee had in78 CASES DISPOSED OF BY THE 1825 any way agreed to hold himself responsible for the sums Eduljee Mehiwan- expended in carrying on the suits fifed by Khursedjee jee, Manuckjee, or that the sums remitted from Bombay by Khursedjee Mr- Khursedjee, had been appropriated by Manuckjee; he mickjee & Mr,- consequently threw out the claim against respondent nuc^e®j^ubt0rii“ Manuckjee, and with regard to that against Khursedjee, wherein appellant urged that he had defrayed the expenses from his own resources and had further claims for time and trouble; the Judge held that not being an inhabitant of the Zillah and possessing no property within it, the Court could hold no proceedings against him. The SO Nov. 1826. appellant’s claim was consequently thrown out, and all costs awarded against him, to be recovered, as he was suing in forma pauperis, whenever he might be possessed of property. 9 March 1827. From this decision the appellant preferred an appeal to the Sudder Dewanee Adawlut at Surat, from which court it*was transferred to the provincial court of appeal for Guzerat on the institution of that court, and the appeal J. Sutherland, w^s brought on for hearing, but the appellant not ap- Esq., Chief Judge, pearing*, it was struck off the file. From this, appellant 13 April 1829. , . . . , 0 , A 4 October 1830. k(‘Uljee presented a petition m the feudder Uewanee K5 i)ecm ig3Q. Adawlut, the appeal court having in the interval been W.NWuhamEsq., abolished, praying the court to grant him a review of judg-E. Ironside1 F^-q., ment> on the ground of his having been prevented by Puisne Judge, sickness from appearing to prosecute his appeal at Surat E Puisiie1JLde^ * m Person> or to overlook the proceedings of the agent he left there to conduct the case for him. The Sudder Dewanee Adawlut, on consideration of those circumstances, ordered the appeal to be again brought on for review of judgment, and the appeal was accordingly G. W. Anderson, brought on before a single Judge, when appellant Edul- Esq., Puisue jee? {n petition of appeal, urged that he was prepared to show that respondent Khursedjee had property in Surat, which would give the court jurisdiction; andSUDDER DEWANEE ADAWLUT. 79 further, that having been engaged as a suitor in the 1895 Adawlut, and the present action arising therefrom, the Eduljee Mehrwan- Adawlut must have jurisdiction over him. With regard jee, to the other respondent, Manuekjee, he urged that the Khursedjee Ma- lower court was in error in declaring that he had not nuckjee & Ma- rendered himself liable. The sitting Judge recorded nuckJe?Rustom* . . Jee* that the question was, whether this agency being the cause of action, it did not give jurisdiction, although Khursedjee was not an inhabitant of the Zillah. He did not consider that the respondent having property in the Zillah would give jurisdiction, but in order to have the former question decided, he referred the case to a full court, who, if they decided in appellant’s favour, would 19 March 1831. refer the case to the Zillah to be tried on its merits as far as regarded respondent Khursedjee ; and if unfavourable, would return it to a single Judge as respected the claim against respondent Manuekjee; on the case coming on T. Barnard, Esq., in full court, the majority were of opinion that Khursed- A. Puisne Judge. ,, . . • 1 . " • i i • p 1 t G. W. Anderson, jee Manuekjee, being an inhabitant ot Bombay, there Esq., P. J. did not appear in the present action any specific act Baillie, sufficient to render him amenable to the jurisdiction of the 26^1arch 1831. Zillah Court, they consequently confirmed so much of the decree of the lower court as declared Khursedjee not responsible, and referred the case to the sitting Judge for the completion of his proceedings against the respondent Manuekjee; on the case being again brought on before a single Judge, he was of opinion that there being no G. W. Anderson, written agreement by respondent Manuekjee taking the responsibility on himself, and its proof resting on the evidence of one witness, Sorabjee, such proof was not sufficient in an affair of such importance and where such sums of money were at issue, but as it might have occurred that appellant had made the advances averred by him, and that respondent Manuekjee might have received remittances to cover these expenses from respondent80 CASES DISPOSED OF BY THE 1825 Ed’ ljee Mehrwan-je^ vs. Khursedjee Mali uckjee & Manuckjee Rustomjee. T. Barnard, Esq., Puisne Judge. 19 April 1832. Khursedjee, (which, indeed, was so far admitted, but not that appellant had made the advances he stated) the sitting Judge before proceeding further, directed the parties present to submit their accounts to the Guzeratee Sherishtedar, for him to examine and report, where they agreed, where they differed, and then render a general account so as to enable the Court to see what was claimed, what of this appeared to have been paid, and what remained, which appellant could make any titles to. The Sherishtedar compared the accounts, and made his report upon each item, as shown in the books of both parties, from which it appeared that no funds had been employed except such as were furnished by Khoorsedjee; the sitting Judge, therefore, finding there was nothing left to support the appeal, confirmed the decree of the lower court, remarking that appellant seemed to be aware of the circumstance, as he neither attended in person nor appointed a Wukeel to maintain his claim. No. 20. Baee Gunga, widow of Govindram and as guardian of her son Pranshunkur ...... Appellant, versus Baee Sheokoovur, daughter of Hurnath. . Respondent. [This was a case of adoption and the point involved was, whether a Brahmin having a daughter and daughter-in-law living, could adopt the son of a daughter predeceased, and whether that person could adopt his wife’s sister’s child and make him heir to the grandfather’s property. Decreed by the Assistant Judge in plaintiff’s favour. The Judge on appeal holding the adoption not proved, and that respondent was heir to the property, upon the exposition of the law officer, reversed the former decree, and the Judge’s decree was affirmed on further appeal in the Sudder Dewanee Adawlut.] This was a question of contested inheritance and right of adoption between Motala Brahmins.SUDDER DEWANEE ADAWLUT. 81 •The following tables will elucidate the connection of ’ 182f> the family No. 1. Baee Gunga and Pranshunkur, vs. Baee Sheokoovur. No. 2. StIRAT. Appellant on behalf of her husbands’s adopted son 1 February 1828, Pranshunkur, an infant, set forth in her original plaint that Pranshunkur was adopted by her husband Govindram 11 d REPRINT82 CASES DISPOSED OF BY THE 1825 in Sumvut 1881, a.d. 1825, then suffering in the sittk-Baee Gunga and ness °f which 4ie afterwards died, and that previous to his Pranshunkur, death he made a will declaring Pranshunkur to be his Baee Sheokoovur. and Dhurm Pootr, adopted son ; that after her hus- band’s death, his uncle Pranath’s widow (Prankoovur), came to her house and claimed the property, making a great disturbance, and that after she left, Sheokoovur the respondent came and advised appellant to give all her husband’s property into her keeping until such time as the appellant should have effected an arrangement with Prankoovur; that listening to this advice she made over to her charge the whole of the property amounting to Rupees 999, but respondent took every means in unison with Prankoovur to avoid restoring the property. That Prankoovur had ineffectually sought to obtain legal possession of it through the Axlawlut, but her claim had been thrown out even by the Suddur Adawlut, and now appellant had no alternative but to sue in order to compel Sheokoovur to restore the property, which neither she nor anybody else had any right to retain. She therefore gave in a list of the property she laid claim to, consisting of a house, jewels, furnitures, books, &c., valued at Rs. 999. Respondent denied there was any claim against her, as well as all knowledge of the circumstances, and pleaded that she was Hurnath’s heir and had a house of his in her possession, but nothing more of all the things claimed in the plaint, and that Govindram might have adopted Pranshunkur and made a will in his favor, but neither the one nor the other without her consent, could give him any title to more than the property which his adoptive father had himself acquired. The appellant produced three witnesses to prove the removal of the goods, and the fourth, a Mehta, on the nazir’s establishment, to prove the attachment of the pro-SUDDER DEWANEE ADAWLUT. 83 perty in litigation according to a motion made to that 1825 effect by appellant. ^ ^ ^ Baee Gunga and Appellant then obtained permission to file a will dated Pranshunkur, Sumvut 1881, Chytur wud 18th, Saturday 16th April Baee gheokoovur. 1825, written by Govindram in favour of Pranshunkur, and which had been filed in No. 2501 of 1825, Baee Prankoovur, widowof Pranath Hurnath, vs. Pranshunker Juggernath, a minor by his guardian Juggernath Vish- wanath and Baee Gunga widow of Govindram (No.— W.A. Jones, Esq. of these reports') as well as the decree passed in that case by the Judge on 1st November 1826, awarding Pran.- koovur a maintenance only. The only evidence produced by respondent was one Nanahbaee Itcharam, who was employed as a Tullatee in the Oolpar Purgunna, and who deposed to the land held by Hurnath in his village having been entered in his name for two years after his death, and a copy of the permission for removing crops in the village of Koobar, given on the 3rd May 1823 in the name of Hurnath Sudasheo. The Assistant Judge asked the parties whether a re- G. Grant, Esq. gister of the customs of their caste had been filed in the Adawlut, when it appeared, that there being two differ-ent divisions (Turs) in the caste, each had filed its own register, the Assistant Judge therefore did not file copies of them in the case. The Acting Assistant Judge in deciding the case found "W. C. Andrews, that the will upon which appellant founded her claim Esq‘ had been upheld in the suit No. 2505, which Prankoovur brought against appellant, and, consequently, could not discover any ground upon which respondent could found a title to the property. He therefore decreed in appellant’s favour to the extent of awarding her the house which respondent admitted she had in possession, the property of Hurnath, and also several copper basons, &c., which were attached in her house, and upon which84 CASES DISPOSED OF BY THE 1825 Hurnath’s name was engraved, as the witnesses pro- Baee Gunga and duced by appellant were unable to prove the amount or Pranshunkur, value of the property to the extent set forth in the Baee Sheokoovur. an(^ divided the cost accordingly. 27 July 1828. From this decision respondent appealed to the Judge, on the ground of her not being a party in the suit No. 2502 and, consequently, that any decision passed therein could not affect her title ; and further, that according to the Shasters, so long as she (Hurnath’s daughter) was alive, Govindram, his grandson, had no right to Hurnath’s property, and a fortiori, his son could have none. The Judge allowed appellant to file further evidence in the case, viz., the proceedings held before the Magistrate on a petition made by her on the 2nd July 1825, in consequence of respondent having taken possession of, and withheld a will which Hurnath made in Govindram’s favour, and which the Magistrate refused to entertain, as not being of a criminal nature; appellant also filed two notes from the Collector, of permission to remove grain, one dated 25th March 1825, in Govindram Hurnath’s name, and the other dated 21st March 1827, J. Kentish, Esq. in Pranshunkur Govind’s name. The Judge put the following questions to the Shastree : —> A person named Hurnath had one son and three daughters; the son and two daughters died during his life-time, and now a daughter Sheokoovur and the son’s widow, Prankoovur, are living; can Hurnath then adopt his deceased daughter’s son ? and, if so, can that son adopt his wife’s sister’s child, and make him heir to Hurnath’s property ? Hurnath’s son’s widow, Prankoovur, is alive, but has no child, though she has received by a decree of court maintenance and a dwelling, to be provided from Hurnath’s property, and admits that Hurnath adopted his daughter’s son; if under these circumstances HurnathSUDDER DEWANEE ADAWLUT. 85 cannot adopt Govindram, his grandson, by his daughter, 1825 nor make him heir, or if he can make him heir, but the Baee Gunga and fact should not be proved, would Hurnath’s daughter^ Pranshunkur, Sheo, or his son’s widow Prankoovur, be heir to his pro- Baee Sheokoovur. perty ? and if Prankoovur be heir, can she give it to any one or not, or failing her, who would be heir to this property ? To which the Shastree answered, that under the circumstances Hurnath could adopt, a son, but not his deceased daughter’s child, as the child is his (Dohitree) daughter’s son, and to adopt such is according to the Shasters, forbidden to Brahmins; so that Hurnath cannot have adopted his daughter’s son, as is written in the Vyuvuhara Mayooka, CV. 8.* That when once a person was adopted according to the Yedas, the adoption could not be set aside, and that the person so adopted, if he had no son of his own, could adopt his wife’s sister’s son, as is written in the Vyuvuhara Mayookha, CIV. 1 .'\ That if Hurnath’s son’s widow has no son, and she admitted the adoption and consented to receive maintenance and dwelling, the other must in such case give it, as is written in the Mitakshara Daya Baga, 55. 2. 11. That Hurnath could not adopt his daughter’s son, and if it was not proved that he had adopted, then Prankoovur would be heir to Hurnath’s property, but the daughter Sheo, would not be heir to it, while Prankoovur lived, as is written in the Daya Baga, but Prankoovur could not alienate it so long as Sheo is alive, as she is an heir to the property on Prankoovur’s death, as is written in the Mitakshara Daya Baga, 95. 2. 1. The Judge in giving judgment remarked that the action brought by Prankoovur%gainst appellant and the the others was to set aside the adoption of Pranshunkur, * Borradaile’s Trans. 69. f Borradaile’s Trans. 08.86 CASES DISPOSED OF BY THE 1825 though she admitted the adoption ofGovindram by Hur-Baee Gunga and nat;h> and that, on the suit being referred to arbitration, an Pranshunkur, award was passed principally upon the grounds of Pran-Baee Sheokoovur. k°ovur’s admitting the adoption of Govindram, though the arbitrators did not pronounce a decided opinion as to whether any adoption actually took place, but merely acted upon Prankoovur’s admission. This decision, however, in fact confirmed the adoption of Govindram, ousting Prankoovur from the succession, but this decision could in no way affect the rights of the other heirs who were not parties to that suit, it only set the question, as far as Prankoovur was concerned, at rest; consequently that proof of the adoption, according to the rules of the Shaster, must be putin before the right of inheritance vested in Sheokoovur can be set aside. That appellant being unable to produce the writing or deed of adoption said to be passed by Hurnath to Govindram, that material fact was held not proved, as without it there was no possibility of its being ascertained with precision, that the ceremonies or forms prescribed by the Shasters had been adhered to. The Judge therefore held it clearly established according to the Shasters and the exposition of the Shastree, that after the death of Prankoovur the respondent Sheokoovur was Hurnath’s heir, and holding the adoption not proved, he,reversing the Assistant Judge’s decision, decreed that she should succeed to his estate as heir on Prankoovur’s decease, appellant furnishing security to restore to respondent at Prankoovur’s death, any 15 October 1829. part of the estate he may be in possession of during Prankoovur’s life-time. Appellant from this decision appealed to the provincial appeal court for Guzerat, upon the grounds of her original suit, and urging that Sheokoovur had, if she was so inclined, every opportunity to come in and establish her right when the suit brought by Prankoovur, No. 2505,SUDDER DEWANEE ADAWLUT. 87 against appellant was under investigation, and that her 1825 failing to do so prevented her having any right to shelter gaee (junga an(j herself under, not having been a party to that decision. Pranshunkur. The special appeal was admitted in consequence of Baee sheokoovur. its being one. of involved inheritance and adop- j. Sutherland, tion, and the appeal without any proceedings having Esq., P- Judge, been held, was, upon the abolition of the appeal court, Pui'sae^ud^e? ' transferred to the file of the Sudder Dewanee Adawlut, W. J- Lumsden, in which court, the sitting Judge on going into the case, ig^^uary l*83o". recorded the following three points, as being those, which j Henderson, had arisen for his consideration :— Esq., A. P. J. Is/.—Is there sufficient proof before the court, in the first instance, of Govindram being the Dhurm Pootr of Hurnath ? 2nd.—Is there proof of Pranshunkur being the Dhurm Pootr * of Govindram ? 3rd.—Of the consent of respondent Shoeokoovur, and of her presence at the making out of the Warisnama or Dhurm Pootr, whichever it may be considered, in which Govindram gives all the property to Pranshunkur, appellant, in Dhurm; provision being made for the subsistance both of respondent and Pranath’s widow, Prankoovur. “ If this cannot be made out, and certainly by the “ evidence before the Assistant Judge and the Judge, it is “ not so, unless weight is attached to what purports to be a “ report of evidence taken in the matter in the depart-“ ment of the Collector filed in the case, Sheokoovur ap-“ pears to be the eventual heir as held by the Judge.” It is extraordinary that none of the witnesses to the Warisnama are brought forward in the Zillah Court; but in explanation of the failure in producing the original, it * Note by the Judge. He could give his own in this way, but not Hurnath’s property, unless those having claims on it consented.88 CASES DISPOSED OF BY THE 1825 is-alleged, that it is in possession of respondent Sheokoo-Baee Gunga and vur> as we^ as original Dhurm Pootr to Govindram by Pranshunkur, Hurnath as shown before the Collector. Baee Sheokoovur. “ The case involving a question of inheritance on which “ the decision of the courts below are at variance, and as “it might be allowable in certain cases to receive further “ evidence attainable at the time, but omitted to be brought “ forward, although it must be in general received with E. Ironside, Esq., “ suspicion,” the sitting Judge referred it with the above T.^a^nard^Esq., remarks to a full court, who considering the Judge’s Puisne Judge, award both a fair and proper one, without requiring fur*- ^ Ptosne* Judge?'* t^ier evidence, confirmed it with all costs. J. Henderson, Esq., A. P. J. ----------- 8 May 1832. No. 21 Meyajee Allebhoy....................................Appellant, versus Metha Nuthoo and Esoof, sons of Wullee. .Respondents. [Suit brought by a Mussulman upon a Deed of Gift decreed in Plaintiff’s favour by the Judge with the exception of one-third, as the gift being made on the death-bed could only be received as a Bequest. On appeal to the Provincial Court of Appeal for Guzerat it was held that Appellant had not established his claim even to the third of the property, so that his whole claim was thrown out. Upon further appeal to the Sudder Dewanee Adawlut in consequence of Appellant being worse off than if he had never appealed, the decree of the Provincial Court of Adawlut was amended to the extent of deciding that Appellant had not proved his title to two-thirds only of the property, the remaining third concerning which Respondent : had never appealed, being left for future decision if brought before the Court.] 20 June 1826. The respondents in this case represented themselves to- ------- gether with one of the original defendants, Dosa Ibrahim, as the heirs of their uncle Meyajee Hennudjee, who died on the 11th Ramzan 1241 (10th April 1826), during theirSUDDER DEWANEE ADAWLUT. 89 absence in Bombay, when appellant Mezan Allee, together with Baee Shei Mt. Mehbood and Dosa, son of Ibrahim, another brother of Meyajee’s, seized upon the property, in consequence of which respondents sued to compel the defendants to restore the property, except one-fourth share, which, of right belonged to Dosa, as co-heir with them of their uncle. The property was upon motion by respondents attached. Appellant and the others joined with him as defendants, severally gave in an answer upon one paper. Mezan Allee, appellant, stating himself to be deceased’s brother-in-law, and that ever since he was two years of age, he had always resided with him ; and that they had conducted themselves towards one another as father and son, that he was his adopted son, and that the deceased brought him up to his business; that their interests were common, the profits arising from their trade having been laid out in houses, &c., and that Meyajee just before his death, set aside one house for his own use, and made over the rest of his property by a deed to the appellant, who defrayed his funeral expenses, and paid all claims that were brought against him, and all that now remained was of a very trifling amount. Dosa and Baee Shei denied being possessed of any of the property in question, the whole of which was then in the possession of Meyajee; the other stated she wras a slave of Meyajee’s and was possessed of a house, four buffaloes and a cow, which he gave her some time before his death. She afterwards gave in a separate answer, in which she stated that Meyajee had, previous to his death, told her that respondents, his nephews in Bombay, were his heirs. Respondents in their reply stated that it was noncustom ary for Moossulmans to adopt children, and if any man did, the adopted child would not supersede the man’s lawful heirs : they also urged that the deed had 12 d REPJRINT. 1826 Meyajee Allee-bhoy, vs. Metha Nuthoo and Esoof.90 CASES DISPOSED OF BY THE 1826 Meyajee Allee-booy, vs. Metha Nutlioo and Esoof. been surreptitiously obtained, and they denied the statement of the amount of property. The other party entered a rejoinder, denying the above assertions generally, and declaring that Mt. Meh-bood had conspired with the respondents. Respondents filed a list of the deceased’s property, as attached by the court on their motion, valued at Rs. 13,295. . They then called 6 witnesses in support of their claim ; three of whom, Meezamoodeeu Khoobmezan, Mumud Sulee, and Davood Ibrahim, deposed to the deceased having been insensible for 5 or mor# days previous to his death, which took place on the 11th Rumzan 1241, a.h. (20th April 1826, a.d.), and that he was buried the following day. . Davood Rajah deposed to Syuds having come to ask him to settle the dispute between the parties concerning this property, and the remaining two witnesses, Ibrahim Davood and Ishmal Yakoob were called to establish the wealth of the deceased, and that the sum claimed was not excessive. Respondents filed a deed of partition (Monasika) exhibiting that Mehtabhaee Nuthobaee Esoof and Dost Mahomed were all entitled to one share each of the deceased’s property. For the defence, the opposite party filed a deed of gift, purporting to have been passed to his adopted son Meyajee Alleebhaee on the 9th Rumzan 1241, a.ii (18th April 1826), by the deceased being at that time of sound mind, though having been ill for two months past, granting him 2,900 Rupees worth of property, which he, deceased, had himself accumulated, and giving all debts and credit to him, he by the same deed accepting it, and mentioning also the gift to Mt. Mehbood and cutting off all othersclaiming asheirs, they also called nine witnesses,SUDDER DEWANEE ADAWLUT. 91 the first of whom, Oarmujee Hemodjee gave his 1S26 evidence to the same effect as the defence set up on the Meyajee Allee-part of Meyajee. The second, Wyibookundass Kessoor- bhoy, das and Hasseedas Laldass deposed to the fact of the Metha^uthoo adoption, though they stated that they were not present, and Esoof. but understood it from hearsay, the latter also deposed to the deceased’s wealth, for which purpose likewise was the evidence of Salbhaee Khondas, one of the witnesses to the deed taken, and also that of Bhukundass Dalubdass the other witness. Kooburkulyan deposed to the deceased having died suddenly, having been until the time of his death in apparent health, Jey Keshundass Keshoe-dass, the writer of the deed of gift, deposed to his having drawn it out at the request of the deceased, who was at that time unwell, but yet able to move about, and in his right senses. Heramun Lalbhaee knew that the deceased was accustomed to trade, but never heard of the respondents doing any of his work, for him, which had always been done by Meyajee for the last 8^ years, as appeared from the evidence of Dyaram Koobardass. The appellant Meyajee likewise filed two deeds of sale to prove, that the houses were bought by him and not by the deceased Meyajee. The Judge then put a question to the Mahomedan. law officer, from whose answer it appeared that a person making a deed of gift upon his death-bed, the deed could not hold good any further than as it may be considered a bequest by which a man who has heirs can bequeath only one-third to a stranger, and then the party in whose favour it was passed would Eutwaee Huma- be entitled without the consent of the heirs, to one-third _ dee>. H^yah. pi i • i n a i -turayis burajea. of the property, whatever it may be, after all other claims on the estate had been liquidated. The Judge hereupon considering that the defendants \y. a. Jones, Esq. had failed to establish their defence in any point except the deed of gift, and that Meyajee had in no wise proved92 CASES DISPOSED OF BY THE 182(5 that houses had been bought with his monej7 in his Meyajee Allee- narne5 decreed to Meyajee and Mt. Mehbood one-third bhoy, of the property mentioned in the deed, the plaintiffs being Metha^Nuthoo decreed all the rest and likewise whatever other property and Esoof. of the deceased’s may be forthcoming. Nothing hav- 8 May 1827. ing been proved against the other parties, lie divided the costs between the plaintiffs and Meyajee in proportion to the sums awarded. Against this decree Meyajee alone appealed, and the appeal was under Clause 4th, Section V. Regulation VIL, a.d. 1828, referred to the provincial court of appeal for Guzerat, and on the appeal coming on for hearing, it 28 August 1827. appeared to be founded on the following grounds :— ]st.——That appellant lived with the deceased from two years of age as his son, out of consideration that he was brother to deceased’s wife, and helped to the acquisition of property by the deceased. 2?z£/.-r~That by all the books of the law where a gift has been made and possession taken of the same, it is effectual and cannot be set aside. 3rd.—That in the deed of gift the claims of .his heirs are expressly cut off by the deceased. 4th.—That appellant resided with, and assisted, the deceased in the acquisition of the property. 5th.—That deceased did not die in bad health, but suddenly; that he did not die from the sickness under which he laboured at the time of executing the devise. 6th.—That the Mooftee has stated in his Futwa that deceased executed the writing when on his death-bed (u Meerye Mot,” death sickness, literally) but that this is not a fact, for the deceased after writing the deed transacted business, and that in the devise the deponent is stated by the Mooftee, whose seal is attached to it, to have been in good health.SUDDER DEWANEE ADAWLUT. 93 7lli.—That the Judge has stated that “ defendant has failed to prove that he purchased the houses,” but that this point can be proved by the records of the sales by auction. 8th.—That deceased was moved to the gift in consideration of the assistance which appellant had rendered him in the acquisition of the property. 9th.—That, he has been unjustly charged with two-thirds of the costs, the whole of which should have been laid on the estate. 10th.—That the law officer had stated, that half of the whole net property is his, appellant’s right; but the Judge his only awarded one-third of the property recited in the devise 11 th.—-And lastly the Judge has awarded two shares to respondents, but Dosa’s share of right belongs to appellant. To this the opposite party answered— Is#. -That amongst Mahomedans a youth brought up in the manner in question has no right as heir; and that a deed of gift, made on a death-bed, is not a gift, but a devise; and„moreover, neither the heirship nor the right are established. 2nd. —That the deed in question is not a deed of gift, but a devise, and the rights of heirs cannot be set aside by it. The law is fully known to the law officers who have deemed the paper a devise, and no cause is shown, why it should not be taken to be such. 3rd.—That from the introduction in the deed of terms “ to cut off the heirs” it is clear that the claims of heirs were contemplated by the devisor. 4 th.—That the allegation of joint assistance in acquisition is not recited in the devise. 5th.—That it is stated in the devise that the grantor had been sick for two months, which sets aside the allegation of his being in good health. 1826 Meyaiee Allee-bhoy, VS. Metha Nuthoo and Esoof.94 CASES DISPOSED OF BY THE 6th.—That the Mooftee’s Mehta, Jaikisson, has deposed that the deceased was sick, and that he went to his house to execute the writing; whereas, if deceased had been well he would have gone to the Mooftee’s house. 1th.—That the Judge has stated that appellant had failed to prove his purchase of houses, but if they were his by purchase, they ought not to have been entered in the devise. Sth.~That the matter on the 8th ground of appeal has been answered above. 9th.—That appellant is justly chargeable with the expenses, as he claimed to be sole heir in virt ue of the grant, and not merely, as he ought to be heir to whatever might be established as his legal ri^ht. o O 10th.—That the law officers have not stated that one-third of the whole net property, but only one-third of the property in the devise recited, belongs to the devisee. 11th.—And lastly as to Dosa’s share, that they did not sue for this share, but deducted this from their own. W. J. Lumsden, On the 1st point the sitting Judge was of opinion that Esq., 3rd Judge, the respondent’s answer was supported by the exposition of the law officer of the lower court, as it was also by the verbal opinion of the Moolvee of the provincial court. On the 2nd point urged by appellant the court found that the writing dated the 9th Rumzan, 28th April 1826, recited that the grantor had been sick for two months past; that appellant admits he died on the 12th of Rumzan, and it appeared to the court that he was at the time he passed the deed on his death-bed; that the law officer of the lower court had stated that a writing passed on a death-bed, disposing in gift of property, was a devise or will, and not a gift, that the law of gifts urged in the 2nd point or plea was therefore inapplicable, and that of devises, the appropriate law, as was explained by the law officer of the lower court. 1825 Meyajee Allee-blioy, vs. Metha Nuthoo and Esoof.SUDDER DEWANEE ADAWLUT. 95 On the 3rd point urged in appeal, it appeared clear 1826 from the exposition of the* law of devise that the devisor Meyajee Allee- is not competent to cut off his heirs in favour of appellant bhoy, to the extent maintained by him, and the writing to this Meth^Nuthoo purpose is therefore of no avail. and Esoof. That the 4th point urged was merely a repetition of part of the 1st. That the matter in the 5th and 6th was included, in the opinion of the court, on the 2nd, and the evidence bearing on it. The coiart rested upon the investigation of the lower court on allegation 7th of appeal, that certain houses involved in the devise of Mezanjee, deceased, were the property of appellant, purchased by his cash in his name, which Mr. Judge Jones decided was not proved, their introduction into the devise of Mezanjee in favour of appellant, on which he has proceeded being a strong presumption against his, appellant’s, title in his own right. That the matter alleged on the 8th ground of appeal was included, in the opinion of the court, on the other points. That with regard to the complaint of the undue share of costs falling on appellant, and the respondent’s answer, the 9th point in contention, the court was of opinion that the judgment of Mr. Jones in this matter was reasonable. On the 10th plea the court found that the decree of the Zillah Judge, which professed to be founded, as far as the court could discover, solely upon the exposition of his law officer, did not conform to it, and with the verbal advice of the law officer of the provincial court, which concurring with the opinion taken by the court, of the exposition in the low7er court, the sitting Judge laid down the following view of the force of the devise and interests of the parties who are the objects of it, as they come to be96 CASES DISPOSED OF BY THE 1826 Meyajee Allee- by restrictions of the Majiomedan law appli- bhoy, cable to devisees. MethrNuthoo Revise conveyed the whole property of the de- and Esoof. ceased to Meyajee Alii, appellant, except one-fourth of a house, five buffaloes, and a cow to Mehbood. The value of the property generally recited is conjecturally and stated by the devisees for the purpose of information, but in no wise the court conceived fixed, with any view to conversion for the devise bequeathing the whole to Meyajee Alii, there could be no object in this. The court considered this valuation, however, as the best criterion it could adopt for ascertaining the proportions in which appellant Meyajee and Mehbood stood as respected each other, both being devisees, and neither legal heirs, and the terms of the devise being equally favourable to both, in the proportion of property to which the law restrains the operation of the devise. Where Mezanjee is entitled to 2,900, Mehbood is by this principle entitled to Rs. 500, both being the valufe of their respective bequests estimated by the devisor, and in like proportion of 29 to 5. This the law allowed to operate over one-third of the deceased’s entire net property; as the law officer of the court further explained, on such estate as may remain after payment of funeral expenses in such moderation as the law allows, and debts. As to the 11th plea, Dosa, a defendant in the lower court, did not appeal, and was since dead. He was a legal heir, and his heirs should, in the opinion of the court, rank as heirs at law, and have no need of the interposition of the court, if they have the power to give away his share, to assist them in fulfilling their friendly intention of bestowing property upon Mezanjee, appellant. The sitting Judge was therefore of opinion that the court need not step out of its province of determining rights toSUDDER DEWANEE ADAWLUT. 97 assist the free pleasure of any party caste ; it might chance lg2C> to impede, and more especially where it has no legal Meyajee Allee-power, and therefore Dosa’s heirs should be allowed to bhoy, do as they pleased, and with the view of having the de- Metha Nuthoo cree of the lower court amended to the above extent, he and Esoof. referred the case to a competent court, before which it 28 Sept. 1829. was brought on ; when the court was of opinion that it was J. Sutherland, still necessary to ascertain whether on a gift being made j J by a person in his sickness, which immediately preceded 2nd Judge, death, rendering the gift only of the force of the last will by which a third only of the property so granted could fall to the donee, the same formalities in regard to the act are required to be observed as in cases of gift, while in health, such as delivery and possession, without which no gift could be valid. The Cazee required time to prepare his answer, but gave verbally an opinion, that delivery and possession at the time were absolutely necessary to the validity of the act. The court accordingly directed the parties to give in motions for witnesses to be examined on that point, which had been omitted in the lower courts, and to empower the chief Judge, in consequence of the 2nd Judge’s proceeding on circuit rendering it impossible for him to be present, to take the examination of these witnesses. This was done, and on the case coming on again before a competent court, they recorded it as their 16 January 1830, opinion that appellant had entirely failed to prove that (''ourt as betoie the requisites of the Mahomedan law, # necessary to con- * The following is the question put to the Cazee of the Court and his answer :— Meyajee wd. Ahmedjee gave to Meajee wd. Alhbhaee three quarters of his dwelling-house upon the west side and some otlfbr houses, gold and silver ornaments, ready cash, boxes, brass and copper pots, four yoke of oxen, four carts and other things, in gift, and also appointed him heir. He also gave the quarter of his house on the east side, five she buffaloes and a cow by the same deed of gift to his slave girl, Mt. 13 d REPRINT98 CASES DISPOSED OF BY THE _ 182fj stitute a gift, making over possession of the goods were Meysjee Allee- attended to, when it is alleged that the deed in question bhoy, was passed by the deceased. It was consequently deter-Metha Nuthoo mined that no legal gift took place, and that under the and Esoof. document produced as a deed of gift, nothing whatever could be claimed by appellant or any other person. At this same sitting, Umeena, widow of the deceased Dosa, as guardian of his infant son, declared on his behalf, her adherence to the admission and acknowledgment by her late husband of the gift of property made by his uncle, Mezanjee Ahmedjee, to appellant. The Cazee likewise, confirmed the Munasika filed in the lower court, as being conformable to law. Mahbooba, and three days after that died. Upon which the deceased’s nephews Methabhaee Nuthobhaee and Esoff sued Meajee Allibhaee and Dost Mahomed wd. Ibrahim in the Zillah Court, leaving out their claim hgainst the girl. Dost Mahomed admitted the deed of gift and died a few days after TJ«e case is now pending in the Provincial Court of Appeal for Guzerat, and from the exposition of the law officer of the Zillah Court it appears that as the deed was written at the time of the deceased’s death, it is not a deed of gift, but a bequest, but it does not appear from the answer whether a gift made at the time of death should be given in possession in the same way as is necessary when a gift is made by a person in sound health ; and if it is necessary that possession should be given, must possession be given of every article or not, and if the things were in possession previous to the deed being passed, must they be re-given after the deed of gift has been executed ; and if possession should have been given of some articles and not of others, does the deed of gift extend to all the things enumerated, or only to such as have been given in possession, and if one of the heirs should admit the deed of gift as passed by the deceased and thereafter die himself, has he any further claim to share in the property with the other heirs or not ? You are required to answer these according to law.—November 1821). Answer. A gift made at the point of death is not valid without possession being given ; and when a gift is made and possession given at the point of death, it extends only to one-third of the property after paying the funeral expenses and the deceased’s debts, as is stated in the Futwa Humadee and Furazis Surajeea in the chapter 011 gifts.SUDDER DEWANEE ADAWLUT. 99 The court then proceeded at the request of appellant to examine some of the title deeds of houses mentioned in the deed of gift, and which appellant urged were drawn out in his name and were his separate property. It appeared from inspection, that one of these deeds was in appellant’s name, but the court considered, that in order to show that he is to be considered as the owner of the house, possession must be proved, as the house was undoubtedly included in the deceased’s property in the Hibbenama (deed of gift), which had been thrown out. The respondents, however, undertook to prove that the house had been purchased with the deceased’s money; and the Court permitted them to produce evidence, both to that point and also to the Possession of a dwelling house in gift is when the donor leaves the house and takes his goods and chattels along with him, as is written in the Futwaee Alumgeeree. Possession of any other house than the donor’s dwelling is made over in gift by giving the donee the key of the house, having first taken out all the chattels, as is written in Seraee Vigana and Futwaee Alumgeeree in the chapter on gifts. Possession of iron and copper vessels, jewels, cattle andchattels is taken by the donor’s making them over to the donee and his taking them away, as is stated in the Futwaee Alumgeeree. If things given by a deed of gift were previously in the donor’s possession it is not requisite that possession should be given anew, as is written in 3rd Volume of the translation of the Hedagah, in the chapter on gifts, page 1048, paragraph 11, line 7. Those things which have been given in possession are rightly considered a gift, but not those of which possession has not been given, as is written in the Kuzanut-ool-mookeea, in the chapter on gifts. If one of the heirs admits a gift as having been made, it will hold against his share, as is written in the translation of the Hedagah volume 4, in the chapter on heirs, paragraph 6, line 1, page 893. There is no difference with regard to gift between a person’s heirs and a stranger, as is written in the Futwaee Alumgeeree, in the chapter on gifts.—5th November of the above year. (Signed) Cazee Moolvee Sheik Ameeroodeen. 1826 Meyajee Allee-bhoy, vs. Metha Nuthoo and Esoof.100. CASES DISPOSED OF BY THE 1826 deceased’s having received rent for it from the tenants; Meyajee Allee- an^ more clearly establish this point, the court re-bh°y, quired the deceased’s books, which were in the Zillah MethaNuthoo court» to be handed up to them for inspection; from and Esoof. these it appeared that, though the deed was drawn out in appellant’s name, yet that the deceased was the actual purchaser, as the agreement was drawn up in his name, and the cash for the same was actually paid by deceased from his own funds. From the depositions of the witnesses taken at respondent’s desire, it also appeared that appellant never exercised any right of ownership oyer the premises in question, while the deceased did; and as being opposed to the testimony of witnesses and the agreement, the claim of appellant to be considered the owner from the bare circumstance of his name being in the title deed could not stand. The appellant therefore having established no right to a third of the property of the deceased Meyajee Ahmedjee, the court reversed the judgment of the lower court as far as it regarded that part of the claim. The court would. not allow any act of theirs to touch the relinquishment of the deceased Dosa’s share, and passed no order regarding appellant’s right to that share, 6 February 1830. leaving this to be settled between the heirs of Dosa and him. Nor did the court pass any order on the claim of appellant to be reimbursed from the estate, for the expenses of the funeral of the deceased and amount of such debts as were actually satisfied by him, as this matter was not regularly before the court and would involve original investigation in matters not as yet examined in the lower court. As it was obvious that appellant in this case, had acted on what he conceived to be a legal conveyance to him by the deceased, of the property in dispute, and bySUDDER DEWANEE ADAWLUT. 101 his appeal to the judge was rendered worse than he was by the previous judgment, from which respondent had not appealed, the court considered it to be just to exonerate him from all expenses on account of the action. It was consequently declared, that the full costs of each party in both courts should be discharged from the estate of the late Meyajee Ahmedjee. From this decision Meyajee appealed to the Sudder Dewanee Adawlut, as he was now left in a worse condition than lie was before he appealed, and as the provincial court had decided on a point not referred to them. The sitting Judge viewing the case in the same light referred it to a full court, and the Sudder Dewanee Adawlut amended the decree of the provincial court of appeal, so far as to confine its operation to the two-thirds of the property, the claim to which had been thrown E. Ironside, Esq., out by the Zillah Judge’s decree, deciding that the appel- g Bcnlard lant was not entitled to possess those two-thirds, but Puisne Judge. with regard to the remaining third, it was decided that, E-H* Baillie, Esq., .1 Puisne Judge, as neither party had appealed from that part of the deci- j. Henderson, sion, it should remain in force until brought before the Es(l*> 7 • o court in a regular form. Costs in the lower courts were ordered to be borne as awarded by the provincial court of appeal, and appellant was made liable for costs in the 8 May 1832, Sudder Dewanee Adawlut. 1826 Meyajee Allee-bhoy, vs. Metha Nutlioo and Esoof. 15 June 1830. J. Henderson, Esq., A. P. J.102 CASES DISPOSED OF BY THE Ahmedabad, No. 22. Petamber Nurotum Appellant, versus Mukundass Koaber and Raeejee Mukun. . Respondents. [An action brought for defamation of character by slanderous words, decreed by the Assistant Judge in plaintiff’s favour, reversed on appeal by the Judge, on the ground that words spoken in a moment of irritation do not affect men’s character, and that the effect of the slander was to exclude appellant only from a part of, and not the whole of the caste. On appeal to the Sudder Dewanee Adawlut, the Judge’s decree reversed, as the action was necessary to show that an injury had been done.] This was an action brought by appellant against respondents for defamation of character : damages were laid at Rupees 995. The parties were Dosa Desawa Banyans, and the appellant set forth in his plaint, that one Iswur Mooljee of their caste went about the 8th Kartig Sood 1880, a.d. 4th November 1829, to the Nath Goor (priest of the caste) Nanabhaee Visnooram, to obtain .permission, according to custom, to give a caste dinner; that leave was accorded, when respondents told Iswur, that if he would leave out appellant’s family, they would dine with him; that upon enquiring the cause, they assigned as a reason that some one was ill in appellant’s house, when he got a bungia to beat a tom-tom* by which he lost caste; that the priest and others trigd to persuade them, that the mere act of having a tom-tom beaten did not cause loss of caste ; but respondents would not listen to them, and consequently Iswur Mooljee did not give his caste dinner, nor did others, who had intended to have done so, and consequently appellant brought this action for defamation. * A ceremony of exorcism when an evil spirit is suspected of disturbing a family.SUDDER DEWANEE ADAWLUT. 103 The respondents denied ever having defamed appellant, 1829 and further, that not being patells or leading people in the petamber Nuro-caste, even if they had said what was asserted, it would turn, not have had any effect, and that the appellant had since ^jui,„nj5R'gg Koa-the day stated in the plaint, received invitations to caste ber and Raeejee dinners. Moreover, they accused Iswur Mooljee and Mukun. appellant of having brought this charge against them through enmity. Appellant replied, and respondent rejoined, when the case was brought on for hearing before the 2nd Assistant Judge, who took the evidence of Iswar Mooljee and the c. Prescott, Esq., Nath Goor, Nanabhaee Visnooram, to prove the slander Assist. Judge, by respondents, and that in consequence of that report, caste dinners, which had been proposed, had not taken place, as stated in the plaint, and dismissed 14 other witnesses to the same point whose evidence was not required by him; these two having in his opinion proved the point: appellant further called four other witnesses to prove, that the bungia who beat the tom-tom did not come into the house, but beat it outside, and never threw water on his (appellant’s) wife, who was the sick person, so that the house could not have been polluted. The Assistant Judge considered this evidence sufficient to this point, he therefore dismissed the other two witneses which appellant had in attendance, and gave judgment, that appellant had proved the defamation of his character, 15 February 1830. and further that there were no grounds for such defamation, as no act of exorcism alone was such as to occasion butla, or estrangement from caste ; he therefore in consideration of the defamation and appellant’s loss of dinner, awarded Rupees 99 damages with all costs, and dismissed the witnesses which respondents had summoned to prove the negative of the plaint, as the court considered them unnecessary. * From* this decision the respondents appealed to the104 CASES DISPOSED OF BY THE 1829 Petamber Nuro-tum, vs. Mukundass Koa-ber and Raeejee Mukun. E. Grant, Esq. 13 March 1830. 25 March 1830. 28 June 1830. J. Henderson, Esq. 4 April 1832. E. Ironside, Esq., S. P. J. T. Barnard Esq., Puisne Judge. E. H.Baillie, Esq., Puisne Judge. J. Henderson, Esq., A. P. J. 8 May 1832. Judge on general grounds of dissatisfaction, when no further evidence was taken ; but the Judge looking upon the case as instituted maliciously by appellant and Iswur Mooljee against respondents, and to the fact that so long as appellant was not expelled by any formal act of the caste, and while some of the caste continued to associate with him, he had no right to file a suit against respondents; and considering that slanderous words, uttered in moments of irritation, do not affect men’s character, and are not recognised by the caste, he reversed the Assistant Judge’s decree. From this decision a special appeal was admitted in the Sudder Dewanee Adawlut, in consequence of the whole evidence offered not having been gone into in the lower courts, and the decisions of the lower court, though grounded on the same evidence, being diametrically opposite. On the case being brought on, it was referred to a full court as involving a caste question, and being one that should engage their attention, when ^appeared that appellant fully admitted being a member of the caste, but averred that his original suit was on the score of the calumny promulgated against him, and not for restitution to his caste; the Court was therefore of opinion that it was necessary for appellant to prosecute, in order that it might be proved that an injury had been done to him, as until that was settled, it was impossible to say how far the slanders circulated against him were injurious to his character. It therefore awarded him one Rupee da*nage, carrying with it all costs in all courts.SUDDER DEWANEE ADAWLUT. 105 No. 23. Gerdhur Mooljee. ................................ Appellant, versus Jugjeeyun Luxmeechund, on the part of the Vitnarah Punchayet.......................Respondent. [Suit brought by the gold thread spinners at Surat, against a member of their body, for working for a wire-drawer, contrary to a bye-law of the caste, decreed for Respondent, by the Assistant Judge, and Judge; the Appellant having been proved a party to the agreement. Reversed in the Sudder Dewanee Adawlut on the ground that engagements of this nature, tending to the injury of the public, cannot lawfully be made the ground of action.] This was an action brought by the gold-thread spinners’ Punchayet against one of their body, for breach of a bye law. The respondent on behalf of the Punchayet originally sued appellant, to recover the sum of Rupees 105-1-0 due by him on account of a bye-law dated Sumvut 1884, Badrawa Vud 2nd, Tuesday, 25th September 1828, which he had infringed, and wherein it was provided, that in consequence of Vundravun Mooljee, Dhoolubh Utmaram, Kussoo Wittul, Utmaram Joita, and Jevur Joita, the wire-drawers, having conspired not to give them work, the gold-thread spinners had also united and determined not to take any work from them, until they should have paid the amount of injury which the latter thought they had sustained from that conspiracy, and that if any member who signed the agreement should hereafter infringe it, he should pay about Rupees 105 towards a caste dinner. The appellant had worked for Vundravun Mooljee, and therein lay the ground of action. Appellant defended himself as not having signed the agreement, and as having been exempted from the operation of the bye-law, in consequence of his being deeply 14 d UEPRINT 25 Sept. 1828.106 CASES DISPOSED OF BY THE is28 indebted to Vundravun, who would have prosecuted him? dhur Mooljee, f°r the amount. He further took ol)jections to the res- vs- pondent suing on behalf of the caste, he having no pow- they reversed the decrees of the lower courts, thereby relieving appellant from the responsibilities incurred, and making respondent liable for all costs. No. 24. Mooftee Muslehoodeen, wd. Moolvee Mahomed Saleh ..............................Appellant. Surat. versus 5 Febiuary 1828. gHEIK KhEIROODEEN, wd. MooFTEE NlZAM Oodeen......................................Respondent. [Suit brought to recover a sum of money due to the son of the late incumbent of the Mooftee,'s office in Surat upon a parole engagement with his successor, decreed in Plaintiff’s favour, by the Ameen, as there appeared no reason why a written engagement should not have been exacted, had the necessity for such been contemplated; affirmed by the Assistant Judge, but reversed by the Sudder Dewanee Adawlut, on the ground, that the engagement was only binding, so long as it was voluntary.] This was an action for breach of a parole engagement. Mooftee Nizam Oodeen, late Mooftee at Surat, died about 1824-25, leaving a widow and one son Sheik Kheiroodeen, respondent, who being a*man of no learning, and having suffered public disgrace for perjury, could not succeed to his father’s situation. The then Judge of Surat, Mr. Jones, appointed appellant, Mooftee Muslehoodeen, to the vacant situation, and got him to allow the deceased’s son, respondent, and widow, Salia Begum, Rupees 15 per mensem for their support; the former receiving Rupees 10, and the latter the balance. The appellant had failed to pay respondent his allowance for the last four months, as well as that due to his mother, she having formed a second marriage; and respondentSUDDER DEWANEE ADAWLUT. 109 brought the present action, claiming as his right, the 1828 whole Rupees 15 per mensem, in arrears, having pre- Mooftee Musle- viously applied to government, who would not order pay- hoodeen, wd. J * v , 6 , . * J Moolvee Maho- ment to be made to him. saleh, The appellant defended himself upon the ground of *»• ,, ,i-i i • c Sheik Kheiroo- the grant having been made m consequence ot a private deenj W(j Moof- recommendation from Mr. Jones ; and that as the respon- tee Nizam Oodeen. dent led a dissolute life, squandering his money in drinking, and letting his children starve, he had discontinued the allowance to him, but had always provided for the children. That government, upon a petition presented to them from respondent, abusive of both appellant and Mr. Jones, had refused to interfere with the granting or withholding the allowance, which depended only on the present incumbent’s free 'Will. All the evidence adduced was upon respondent’s side, and went to prove the allowance being made upon a verbal agreement and arrangement made between the parties by Mr. Anderson or Mr. Jones, (the evidence was not quite clear which) the then Judge of Surat. It also appeared that the whole sum of Rupees 15, was for some time taken by respondent alone; but that, afterwards respondent took, and passed a receipt for Rupees 10 of it, and the remainder was taken by Mt. Salia’s Wukeel, who ga# her receipt for the same. The Ameen, who originally tried the suit, threw out Ferozsha Dunjee- the claim for Rupees 5, which had been given to Salia s^all> Begum, considering that it was granted to her alone, and consequently, that she should sue for it, if she claimed it. He however gave a decree for the balance in respondent’s favour, and directed the continuance for the future of the monthly salary, as he was of opinion, that the absence of a written agreement was no bar to the suit being entertained ; as if the Judge, Mr. Andersoon, had any idea when he appointed him, that he would not have acted110 CASES DISPOSED OF BY THE 1828 up to a verbal engagement, there was little doubt, but Mooftee Miisle- ^iat he would have required him to pass a writing, or hoodeen, wd. else have given the situation to some other person. He ‘loolvee Mah' med Saleh, Moolvee Maho- &jgo egteemet| f]ie answer from government as of no VS. weight against respondent, as though government refused deen^w^Moof- to interfere> they did not prohibit respondent’s suing to tee Nizam Oodeen. recover his claim. 27 June 1829. Appellant from the above decision appealed ; relying 28 July 1829. mostly upon the answer given by government regarding respondent's claim, and urging the hardness of his case, in being called upon to labour in the public service, and from the salary of that service, to maintain a dissolute relation in idleness. The appeal was brought on before G. Grant, Esq. the Assistant Judge, who considered there were no Junc 183°’ gi^unds for appealing, anch affirmed the former decree. 30 October 1830. Appellant obtained the admission of a special appeal J Esq1* Puisne ln Sudder Dewanee Adawlut, on the ground that the Judge. allowance being part of the emoluments of office, a claim E. Ironside, Esq., ^ g}lare jn them, was doubtful. Puisne Judge. ’ E. II. Baillie, Esq. The presiding Judge referred the case to a full Court, J. Henderson, considering the agreement to pay the family a monthly Esci' allowance for their subsistence, as it was apparently E Ironside. Esq., subsequent to his appointment, revocable. The full Puisne Judge. Court reversed the decrees of the lower courts, being of T'Puisner Judge1 ’ 0P'n'10n t^at the arrangement was a pirate one, and not E. II. Baillie Esq., of a binding nature after it had ceased to be voluntary on J Henderson^6" ^le Par^ appellant. A. P. J. 8 May 1832.SUDDER DEWANEE ADAWLUT. Ill No. 25. Diioolubh Premchund..............................Appellant, versus Pranjeewun Laldass...............................Respondent. [Suit against the owner and tyndal of a boat, to recover the value of cargo seized, in consequence of the illegal act of the tyndal, decreed by the Assistant Judge against the owner and boat. On appeal to the Judge he considered the tyndal was proved to be the responsible person in this case, and as a special case, amended the Assistant’s decree. On a special appeal to the Sudder Dewanee Adawlut, it was "decided that the owner was the responsible person and decreed accordingly.] This was an action brought by the appellant against 18 May 1827, respondent, and .Cheeba Kullyan, under the following circumstances. Appellant through his Agent at Broach, Sorabjee Dun-jee, shipped on Board the Rooparell, of which respondent was owner, and Cheeba Kullyan tyndal, a quantity of wheat to be delivered to Nuthoobhaee Hurruckchund, his agent in Bombay, but in consequence of the tyndal attempting clandestinely to break bulk of the Surat bar, the custom master of that port, Mr. Bird, sent a peon and some kulasees to take possession of the boat; and appellant then brought the present action against the owner and tyndal, to recover either the goods themselves, or the amount of loss sustained on them. The respondent and tyndal did not appear, and documents were filed to prove the shipment of the grain, and the selling price of the day, and also a decree in No. 4085, Evan Loyd, Esq., versus Alana Badroodeen, to prove the liability of the owners of boats in cases like the present, and the Acting 1st Registrar swore appellant to the truth G Grant, Esq, ofhis claim, and gave a decree against the respondent 24 July 1827. and the boat.112 CASES DISPOSED OF BY THE 1827 From this decree, respondent appealed to the Judge Dhoolubh Prem- liability removed from himself and the boat, chund, as the goods, if any were proved to have been delivered, Pranjeewun Lai- were entrusted to his servant, the tyndal, without res-dass. pondent, who is an inhabitant of Bombay, being engaged in the transaction. The appeal was therefore made for the difference between what the wheat fetched, when sold, and the amount at which it was valued, the appeal being admitted after the time allowed for appealing, in consequence of respondent’s absence, he being an inhabitant of Bombay. Appellant appeared and responded in the case, when the Judge taking further evidence, allowed respondent to file a deposition, given by appellant in case No. 2367 of 1823, in which he said, that when the owner was not at the port, and he gave goods to the tyndal, or when he made arrangements with the tyndal, he deducted the freightage, and looked to the tyndal for the balance of any damage done to the freight at sea. Appellant filed the decree given by the Sudder Dewanee Adawlut in Appeal No. 63, Kessoordass Sheodass, versus Prannath Bi-jabhaee (No. 6 of these reports) whereby the owner was declared liable for goods damaged in the voyage by the misconduct or negligence of the tyndal. Respondent filed some answers given by Motabhaetf incase No. 2463 of 1823, to questions put to him, wherein he stated among other matters connected with the custom of merchants, that the person who signed the bill of lading, or else the tyndal in small craft, and nacodah in ships, was considered responsible for damage done or loss accruing J. Kentish, Esq., to the freight. The Judge, from the above, considering Judge. pr0ved by appellant’s evidence in No. 2367 of 1823, that he had always been in the habit of considering the tyndal, and not the owner, answerable for goods shipped, and consequently in the present case that appellant mustSUDDER DEWANEE ADAWLUT. 113 be held to have looked to the tyndal and not to the 1827 owners, he amended the Assistant Judge’s decree so far DhoolubhPrem-as to render the tyndal alone liable ; declaring at the same ehund, time, that the present decision was not intended to inter- pranjee^un Lal-fere in any way with the general responsibility of own- dass. ers, but was a special case, and rested solely on the ] 7 March 1828. private understanding between the parties. The appellant urging objections against this being made a special case, and contrary to the usual custom of merchants, obtained admission of a special appeal in the 2 August 1828. Sudder Dewanee Adawlut, on the ground of its being a good case to form a precedent: and the case was brought on before a single Judge, who, on referring it to a fall E. H. Baillie,Esq., court, gave it as his opinion, that there might be some 5^arCh^iU83ie doubt as to the quantity of wheat shipped, and the selling price of the day in Bombay, as the manifest had been lost in the custom house, and the memorandum upon which the price was determined was very imperfect; but as these were points to which objections had not been urged, it was unnecessary to enter upon them. The responsibility of the owner was the only question left for consideration, and that, in the opinion of the sitting Judge, was beyond doubt. He therefore considered that the Judge’s decree should be reversed, and that the liability of the tyndal under the Assistant Judge's decree, should be removed, and that respondent, as master of the tyndal, and owner of the boat, should be made responsible for the full amount, On the appeal being brought on in full court, it was 1 * decided on the circumstances of the case, and evidence a. P. J.' ^'* adduced in ^support of it, that the owner of the vessel is W. Anderson, liable for the loss arising to appellant, the consigner jj. H^Baillie, Esq. of the goods, from the illegal act of his tyndal, who had charge of the vessel; but in order to assess the damages, it was deemed necessary that the accounts, in detail, 1.5 d REPRINT114 CASES DISPOSED OF BY THE 1827 should be produced, showing the quantity of grain ship- Dhoolubh Prem- Pec^ an(i afterwards sold. The Yukeels of the parties ehund, were therefore ordered to produce their accounts at the Pranjeewun Lai- next sittin8'- dass. Upon the case being again called on appellant did not 29 July 1831. produce his accounts, so the Court directed the Zillah E. Ironside, Esq., * . , . A. S. P. J. J udge by precept to receive the appellant s evidence to the J. Barnard Esq., point, respondent being allowed to produce any evidence E.H. Baill'ie, Esq., he might have to rebut it. Puisne Judge. Before the Acting Judge, appellant only appeared, E. Grant, Esq. an(j respondent, though the usual notice and proclamation was made, failed to attend; the investigation was consequently carried on ex-parte, but from that it appeared, that appellant's agent, Sorabjee Dhunjee, had shipped on board the Hooparell, 25 kulsees of wheat to be sent to Motabhaee Hurruckchund at Bombay; that the boat, as stated above, was seized by the Custom Master at Surat, and Rupees 362-1-62, collected as the proceeds of wheat sold, and which was, after the suit was decided, in the first instance, made over by process of court through the Nazir, to appellant; that the market price of wheat at that time, was Rupees 24-2-0 per candy in Bombay, and consequently the value of the assignment would be Rupees 535-3-75, of which appellant had as above received Rupees 362-1-62, leaving Rupees 173-2-73 due, as sued for. Upon these proceedings being returned to the Sudder Dewanee Adawlut, the Court, quoting appeal 9 May 1838. No. 63, as quoted above, as a precedent, in declaring '•s.7sf,ESq'’ that the owner of a boat is alone responsible, reversed E. II. Baillie, the Judge’s decree, and amended the Assistant Judge’s, J ^Henderson s0 ^ar> as t0 render it conformable with the above view Esq., A. P. J. of the case, awarding appellant interest, and all costs.SUDDER DEWANEE ADAWLUT. 115 No. 26. Mt. Dosun Beebee, daughter of Yacoobjge. Appellant, verstis Sheik Munoo Sheik Ucchun..........................Respondent. [Suit by a Musselman to compel his wife to come and live with him, resisted on account of cruelty and the full amount of her dower not having been paid; decided by the Sudder Ameen that Appellant having a Decree for her dower, must reside with her husband; Decree affirmed on appeal to the Judge with a proviso that the husband should afford his wife suitable maintenance; reversed in the Sudder Adawlut, on the exposition of the law officer that a wife need not live with her husband until her dower be paid.] This was an action brought by a husband against his wife, to compel her to come and reside with him. The respondent originally sued appellant, and her father and mother, setting forth that he had about five months before married appellant, who came and lived with him for about a month, when her father came one morning and asked, as it was one of his fast days, that his daughter might come and spend the day at his house, to which respondent assented ; and having decked' her according to custom, in her jewels, &c., sent her with her father, but that since that, she has never returned, but procrastinated, although he had sent three or four persons to call her, and that her parents, instead of sending her back as they ought to have done, encouraged her in her misconduct, and were otherwise leading her astray. He therefore included them in the action, laying damages at Rupees 20. Yacoobjee and his wife defended themselves, on the plea that the action would not hold against them, their daughter being of full age ; and that they, the parents, had only given her shelter, in consequence of her Surat. 12 Sept. 1828.116 CASES DISPOSED OF BY THE 1828 Mt. Dosun Bee-bee* vs. Sheik Munoo Sheik Ucchun. 26 June 1839. Ardaseer Dunjee-shah. J. Kentish, Esq. husband annoying her for having sued him on account of her dower. Appellant urged in justification, that her husband had not paid her full dower of Rupees 127-8-0, and that of the sum he had paid, he had taken back a portion, for which she had sued ; that consequently according to law she could not be compelled to reside with him ; that moreover he ill-used her, but that upon his paying her full dower and agreeing to maintain her suitably, she would not demur. The parties offered no evidence or exhibits in the case, and the Sudder Ameen, finding that a decree had been passed in the suit, brought by appellant against respondent for the recovery of her dower, awarded that she should go and live with her husband. It was objected to this, that although the decree had been passed, it was not executed, and that until then, appellant ought not to be compelled to go. This however was overruled by the 2nd Ameen, and appellant and her parents made liable for costs. From this appellant preferred an appeal to the Judge, urging that although she obtained a decree forherdowrer on the same day as the decree was passed from which she now appeals, that respondent had not only not liquidated the amount, but distinctly refused to do so ; she further brought a charge of cruelty against him and his mother, and prayed that upon her dower being paid, and her being obliged to live with him, that security should be taken for his conduct. The Judge filed the decree obtained by appellant for her dower No. 6350, of 1828* and took no further evidence, but declaring that there appeared no ground for interfering with the decree of the lower court, except so far as to award that respondent should afford his wife the usual and customary maintenance, directed each party to bear their own costs.SCJDDEU DEWANEE ADAWLUT. 117 A special appeal, at the prayer of Dosunboo, was admitted in the Provincial Court of Appeal for Gujarat, as it appeared to be necessary by the law that appellant should receive the amount of her dower before she could be compelled to go to her husband’s house, and this was not provided for in the decree. No new grounds were urged in the petition, except, that in neither of the lower courts, had the law been consulted. The appeal was brought on in the Sudder Dewanee Adawlut, to which Court it had been transferred on the abolition 8f the Provincial Appeal Court, and a question was by the sitting Judge referred to the Cazee, to know whether it is imperative on appellant to return and reside with her husband, the amount of her dower never having been paid, the Cazee stated, that it was declared in the Futwaee Door Oolmooktar, that there was no necessity for her so doing until her dower was paid. The appeal was consequently referred to a full Court, in order that the Zillah Judge’s decree might be reversed, which was done in conformity with the above exposition; and respondent made liable for all costs. 1828 Mt. Dosun Bee-bee, vs. Sheik Munoo Sheik Ucchun, E. H. BailliejEsq.j Puisne Judge. 8 February 1832. E. Ironside Esq., S. P. Judge. E. Baillie Esq.. Puisne Judge. J. Header! on. Esq., A. P. J. 9 May 1832.118 CASES DISPOSED OF BY THE StTRAT. No. 27. Dessaee Ruttonjee Bheembhaee..................... Appellant, versus Purshotum Laldass, Jugjeewun, and Dul- put, heirs of the firm of Lalkisn ............Respondents. [In tills case the action was brought to recover possession of some land held on Bandee Jumma tenure, and to have the assessment on it reduced to the rate paid previous to the survey. The tenure addmitted by the Assistant Collector, but the suit thrown out on the question of limitation. On appeal to the Sudder Dewanee Adawlut, no decision was passed as to the applicability of the statute of limitation, upon which the suit was thrown out in the lower Court, to this particular tenure, but the decree was confirmed, as the Court saw no cause for exempting this tenure from the practical application of the measurement of the Revenue Survey.] This was a suit brought by the appellant Ruttonjee, to recover from respondents 23 beegas of land, more or less, held by appellant, on Bandee Jumma tenure,# but which respondents had siezed ; the damages were laid at Rupees 1,265-3-75, ten times the actual income of one year. The appellant set forth in his plaint, filed on the 22nd July 1828, that the village of Majeegaum in the Chicklee Purgunnah, had been given by Government in Sumvut 1862, a. d. 1805-6 in jagheer to the heirs of Lalkisn, that appellant had in partnership with others held land in this village, and their ancestors before them on Bandee Jumma tenure, paying to the Government a fixed rent of * * A peculiar system of assessment by Khotas or district estates, calculated to equalize the distribution of the good and bad lands among the cultivators and to keep up the cultivation of the one in proportion to the other. Each cultivator ploughing a certain quantity of good land must also be answerable for a proportionable quantity of bad, and the whole together is termed his Khota or estate.SUDDER DEWANEE ADAWLUT. 119 Rupees 116. That the appellant paid his share of the 1828 rent, Rupees 38-14-6, until Sumvut 1865, a.d. 1808-9, Dessa^i^onjee when the jag'heerdar as Cama^isdar of the purgunnah, Bheembhaee, took possession of it; that lie was prevented from suing purs]10*„m ^ before, in consequence of the power possessed by the dass, Jugjeewun Camavisdar, against which there was no contending, but and DulPut- that he now sued alone for his own fourth share, as his partners were at enmity and would not unite with him to recover the land. That previous to Sumvut 1859, a.d. 1802-3, the land had been assessed as 60 beegas, and for which he paid Rupees 38-12-0 ; but in the survey of that year, it was entered as 93j, to which amount they now seek to assess him ; he however claimed a right to a continuance of it, on the former terms, as it was held on Bandee Jumma tenure. Purshotum Laldas, Jugjeewun, and Dulput Nana-bhaee, alone defended the action claiming to be the sole heirs of Lalkisn. They urged their right to assess the land according to actual measurement, pleaded possession for 22 years, as barring Ruttonjee’s claim, and took objections to the mode in which he had brought his action, on the probability of his wishing to establish his claim by the evidence of his co-partners, who ought to have united with him in the suit. Objections were likewise taken to the tenure upon which the land was claimed. Ruttonjee in his reply, waived the question regarding the persons entitled to be considered as Lalkisn’s heirs, and dwelt strongly upon the peculiar tenure under which he claimed the land, and that the village having been transferred in jagheer, did not affect any rights he had ; that his claim was in the nature of a wuttun, and consequently, that the limitation to his suit being heard would be thirty years; that not having sued in conjunction with his co-partners, in no way affected his claim, as formerly all the sharers paid their dues to Government separately.120 CASES DISPOSED OF BY THE ]8'28 In support of his claim, Bheemjee produced three wit- Dessaee Ruttonjee nesses> who established the existence of the tenure, and Bheembhaee, proved that so long as tfeey could remember, appellant Purshotum Lai- cultivated the land sued for ; one of these witnesses, the dass, Jusjeewun Mujmoondar also further proved, that so long as the land and Dulput. wag un(jer Government, subsequent to the survey, and prior to its being given in jagheer, the rental had not been increased. The Assistant Collector, Mr, Andrews, who originally tried the suit, demanded a sight of the deed granting appellant the lease of the land. This Bheemjee agreed to produce, stating, that it was in the village Patel’s possession, as his rights were included in it. The Assistant Collector consequently gave him ten days to produce it, which he failed to do. The Assistant Collector therefore in passing judgment acknowledged the existence of the tenure, but doubted the appellant’s title, as he had not produced the grant under which he held the land ; and being of opinion, that the tenure was not in the nature of free land, and consequently that the claim should have been brought forward many years before, and shortly after appellant had been dispossessed, he threw out the suit. 7 December 1829. From this decision, an appeal was presented on the 19th February 1830 to the Zillah Judge, who agreeably to the provisions of Section VI., Regulation VI., a.d, 1830, transferred the case to the Suddur Dewanee Adawlut, in which Court the appeal was filed on the 15th March, in the same year. The appellant in his appeal, recapitulated the points upon which he rested his claim, and the reasons why he had not urged his suit before; and further contended that the limitation in claims of this nature, extended to 30, and not 12 years, as erroneously applied by the Assistant Collector.SUDDER DEWANEE ADAWLUT. 121 The appeal was brought on before Mr. Baillie, sitting 1828 as a single Judge, and refurred by him to a full court, as OessaeeRntton-involving a question of great importance to land-hol !ers jee, Bhecmbhaee, and Jagheerdars in general, and as it appeared to him x^ursholom Lal-contrary to reason, and the utility of the survey, to admit class, Jugjeewun such a right as was set up in the case. an(i DuiPut- On the case coming before a full court, the court Mr. Ironside, giving judgment, confirmative of the Assistant Collector’s j^uVlie1^ decree, declared that it was doubtful whether the tenure Mr. Ifenderson, of Bandee Jumma conveyed a pToprietarv right, and if 16 ^ay not, that appellant’s claim would fall under the statute of limitation to 12 years, which it had greatly exceeded ; but independent of this question, the practical application of I he measurement made by the revenue survey had been so generally taken as a rule in the Gujarat Zillah s, that the court saw no reason for excepting this claim. The appellant was consequently made liable for all costs. No. 28. Deojee Madowjee..................................... Appellant, versus Bhanabhaee Rugoonath and Duya Bug-wan, Mooktears of the Punchayet of the Sidhpooria Gaunchees...............................Respondents. | Suit brought by a Punchayet of a Caste, to recover damages due upon a breach of caste rules. Claim thrown out by the City Commissioner as the rule appeared contradictory ; reversed on appeal by the Judge, on the ground that the contradiction was an error and written by mistake ; reversed again on appeal to the Sudder Dewanee Adawlut, oh the ground that the agreement upon which the action was brought should have been drawn up on stampt paper.] This was an action to recovcr damages due upon Surat, broach of a caste custom, " 16 d REPRINT122 CASES DISPOSED OF BY THE 1828 Deojee Madowjee, vs. Bhanabhaee Ru-ghoonath and Duya Bugwan. The tur or division of the Sidhpooria Gaunchees, of which the parties are members, on the 1st Badrawa Wud Sumvut 1884, 24th September 1828, made an agreement, on account of an insult they imagined the pun-chayet had suffered from Mehta Gunnesh, and others, concerning a feast of sweetmeats, on the occasion of their buying new cooking vessels for their caste entertainments, that they would not eat with the offenders, though they were willing to meet them in any other way, and that if any of the parties signing the agreement, broke through it, they should, “ paying a fine of Rupees 8-1-25, to “ the punchayet, remain under the agreement, and that “ the divisions having been separated, they might eat with “ them.” To this agreement were attached the signatures of 25 persons, and among them, that of the appellant Deojee Madowjee, who, notwithstanding, went thereafter and dined with Khooshal and Ramjee, sons of Khanjee, members of the other division of the caste. Respondents therefore on the part of the punchayet, brought the present action against appellant to compel him to pay Rupees 8-1-25, due under the above agreement, but which he had refused to pay. Appellant Deojee denied having been a party to the agreement, and pleaded that his signature to the agreement was a forgery, as he belonged to a division distinct from either of those contemplated in the agreement, and that he associated with all of those who were separated by that agreement, both in caste-feasts and intermarriages. The respondent filed the caste agreementandanOojanee (paper with the names of persons clubbing for a dinner) dated Sumvut 1884 ShrawunSoodSth, Monday, 18th August 1828, to which the names of the parties to the agreement were attached, to show that previous to this agreement being made, appellant and they were of theSUDDER DEWANEE ADAWLUT. 3 23 same division. Appellant offered evidence, but the City '828 Commissioner considering the rule contradictory, as it Deoj,,e Madowjee, provided in the first instance, that there should be no »«• . , , . . . n i • xi Bhanabhaee Ku- mtercourse between the divisions ot the caste, and in me gh00nath and latter part it provided for it unrestricted, and not con- Daya Bugwan. sidering the explanation offered by respondents, that the R-uttunram Raja- restrictions were to intercourse among them as divisions of a caste, and the clause unrestricted as to the intercourse among relations, he threw out the claim, not considering it necessary therefore to take the evidence offered by 28 April 1829. appellant. Respondents appealed from this decision, upon the 19 May 1829. original grounds of complaint, and the Judge remitted the case to the Commissioner, in order that respondents T. Barnard, Esq. might prove the appellant’s signature to the agreement, which he had denied. Four witnesses were examined, who deposed to having dined at Patel Ramjee Poonja’s house, in Kuttargaum, on the day in question, when the paper was drawn up by Madowjee, and Deojee’s signature attached to it by Mahadew Rugoonath, when appellant Deojee took the pen and certified it by his mark. The fifth witness produced by respondents, deposed to having been at the dinner on the day in question, but did not see nor hear any thing relating to the agreement, On the proceedings being handed up to the Judge, he considered it satisfactorily proved, that appellant Deojee had signed the agreement, and consequently refused to file an extract from the rules of caste as delivered to Mr. Borradaile, for which appellant filed a motion. With regard to the meaning to be attached to the agreement, in which the concluding sentence appeared to contradict the rest, the Judge was of opinion, that as urged by respondents, they were written by mistake, but under any circumstances they could only be construed as admitting of the parties joining in repasts, under the pre-124 CASES DISPOSED OF BY THE 1828 scribed penalty. He consequently reversed the former Deojee Madowjee, decision, and decreed for respondents. From tbis decision, appellant on the grounds of his VhoonadieandU" defence, urged a special appeal in the Sudder Dewanee Duya Bug wan. Adawlut, which was admitted on the grounds of con- f> March I80O. flictin^ judgments, and the assertions that it was at 14 June 1830. r , • .(1 J Sutherland direct variance with the caste rules given in to Mr. Esq., S. P. J. Borradaile. The sitting Judge, though considering that k*lVis^re Jp,d^e^*> aPPe^ant had failed to prove that he belonged to the J.Henderson,Esq. °*her division, still, referred the appeal to a full court, considering that a question might arise whether such agreements likely to uphold divisions and enmities, when there was little or no ground for their existence, ought to be upheld, and in consequence of appellant’s assertion that he would by a confirmation of the decree of the lower court be thrown out of both divisions of the caste. On the case coming on before a full court, it was noticed that the agreement upon which respondents brought their action was written on plain paper, and it was ruled, that in order to render it a valid document upon which an L. Jronsijde, Esq , ac^on C0llld be maintained, it ought, in conformity with E. II. Baillie'Esq., Clause 1st, Section X, Regulation XVIII. of a d. 1827, j ^enderson^ *° ^ave been drawn out on stampt paper. The Judge’s Esq., A. 1\ J. decree was consequently reversed, and all costs thrown 19 June 1832. cm respondents.SUDDER DEWANEE A DAW MIT. 125 No. 29. E. B. Mills, Esq., Collector of Ivaira...............Appellant, versus Modee Pestonjee Khershedjeg..........................Respondent,. Rupees 2,10,000. [Claim for an Enam village, and 11 years’ produce thereof, granted to the Plaintiff by the late Peishwah and attached before the commencement of the British rule, by the Farmer of the Province, he, as asserted, not having authority for the act. The question at issue being on the validity or otherwise of the resumption of the village as the act of the Peishwall’s Government; It was held that the Farmer was not proved to be a competent authority to attach tl# village ; and the same was ordered to he restored to Plaintiff. The claim for 11 years’ revenue considered a money debt, was held to he unsustainable, under Regulation V., a.d. 182/, Section III., and six years’ produce was awarded, in conformity with the provisions of said Regulation. This appeal arose from the following circumstances. Ahmedabad. In the year 1803, the late Peishwah, Bajee Row, for services performed, granted in Enam, the village of Raulej in the Pitlaud Purgunnah, Zillah Kaira, to Kher-shedjee Jemsetjee and his heirs for ever ; and the family continued in enjoyment of the said village until March 1815, when it was attached by order of Trimbuckjee Danglia; who then held the farm of Ahmedabad, under the Peishwah. The attachment was continued by the British Government, on the country coming into their possession, and on the 22nd March 1828, Modee Pestonjee Khershedjee, the representative of the family, filed a suit in the Zillah Court of Ahmedabad, against the Collector of Kaira, as representing the Government, to recover possession of the village together with* the revenues for eleven years. In support of his claim, the126 CASES DISPOSED OF BY THE 1803 plaintiff alleged, that the confiscation of the village, by E B Mills Esq. Trimbuckjee Danglia was void,—he not having had-the vs. power to attach an Enam village, as not being Sir-Soobah ^Kherrffedjee66 ^ie province of Ahmedabad, nor holding the Mootalikee seal from the Peishwah, which was requisite to constitute his acts those of the Government: that on the contrary, he was merely farmer of Ahmedabad, and its dependencies, for the Peishwah. The defendant replied, that Trimbuckjee Danglia had full authority to attach the village of Raulej, having been Sir-Soobah of Ahmedabad ; and, as a matter of course, possessing the Mootalikee seal: That plaintiff admitted him to be a Prudhan, or chief minister, consequently, his acts were those of the Peishwah’s government. Also that plaintiff's claim had been investigated by government, and disallowed. The Zillah Judge, on a consideration of the evid ence oral and documentary, held, that it was not proved that Trimbuckjee Danglia was Sir-Soobah of Abmedabad E. Grant Esq., and its dependencies, or, that he held the Mootalikee Ahmedabad'1^'1 sea^ » that it was established that he was only recognized as farmer of that district, by the Peishwah’s government: that there was no proof of any Sunnud, for the attachment of the village Raulej, having ever being issued by the Peishwah, as was the practice in the resumption of Enam villages; without which its attachment by Trimbuckjee was void as an act of government: that the proceeds of the village not being credited to the account of the Peishwah’s government, it appeared evident that the attachment was placed on the village by Trimbuckjee, on private grounds, for his own benefit. Zillah Judge’s De-Consequently, he considered the plaintiff’s claim, in lS^81^ *^u®ust every respect just, and ordered, that the village, with 11 years’ revenue of the same, should be delivered to him.SUDDER DEWANEE ADAWLUT. 127 In appeal against this decision to the Sudder Dewanee 1803 Adawlut, the appellant urged, that there were no fixed e#b! Mills,' Esq. rules for the guidance of the officers of the Peishwah : vs. that Trimbuckjee being one of the chief of them, his acts khershedjee^6 were those, of the government: that it was the practice sudder Dewanee of the said government to attach Enams on the death of Adawlul. the holders, without heirs : that such was done in the present case, there being a dispute regarding the validity of respondent Pestonjee’s adoption by Khershedjee : and further, it was affirmed, that the wording of the Sunnud from the Peishwah, admitted of the Enam descending only to the offspring of the loins of Khershedjee. The respondent replied, that he had been acknowledged by the Peishwall’s own hand as the heir of Khershedjee, and that he was ready to prove the validity of his adoption. The case was first taken up by a single, the Senior E. Ironside, Esq., Puisne, Judge of the Sudder Dewanee Adawlut, who S‘ recorded his view of the case, as follows : “ It appears to the court, that under all circumstances “ as Trimbuckjee Danglia did not possess as Eznedar or “ farmer, the power and authority to resume villages “ granted in Enam, without the authority of the Poona “ court. The Enam had been granted for most faithful “ services performed by Khershedjee, for many years while “ in employ at Poona,—services which are proved “ to have been as fully appreciated by the British Govern-“ merit, as by the Peishwah himself. That without “ any alleged fault, or misconduct on the part of Kher-“ shedjee’s family, they had been deprived of it since the “ beginning of 1815; and that during the period it re-“ mained under Trimbuckjee, and his successor, Luximun “ Ramchunder Nagarkur, the proceeds of the village had “ not been satisfactorily shown to have been carried to the “ credit of the government: —indeed it is admitted by the128 CASES DISPOSED OF BY THE 1803 E. B. Mills, Hiq. vs. Modee Pestonjee Khershedjee* T. Barnard, Esq., Puisne Judge. E. II. Baillie,Esq., Puisne Judge. J. Henderson, Esq., A. P. J. u Karbaree of the latter, that they were otherwise appro* “ priated. With respect to the cause that led to the Sitting J. respondent Nagur, and respondent admits their right to the fees, but employs another Brahmin to perform the ceremonies; is respondent at liberty to employ whom he likes to perform the Goorpudda ceremonies, or is it sufficient if he pays the fees to appellants, and at the same time employs another to do his duty ?” The Shastree answered, that according to the Shasters, respondent Nagur was obliged to employ the appellants as his Kool-Goors, in all ceremonies, and that it was not sufficient to pay them the fees only, having the ceremony at the same time performed by another Brahmin ; that in “ Munnoo” and the “ Mitakshura” which treated upon the subject, it was written that, 66 The Jujrnan who cast off his Kool-Goor, and employed another Brah- G W Ande 44 inin to perform a ceremony, must pay a fine.” * A llge j011j This exposition of the law being in opposition to the J- Henderson, decisions of the lower courts, which the sitting Judge d. G^enhilf Puisne Judge.134 CASKS DISPOSED OF BY THE thought, should be reversed, brought the case before a Mooljee Purseram, full court, when the following resolution was recorded. and Gowreshun- statement made by Boola Heera. and Gowreshun- Respondent moved the court to examine eight wit- sinmkur, nesses. vs. Heera Bhaee Lala deposed, that he and respondent ^d^Nurtoam. Nagur Ramjee are of the same sect: that they have no Kool-Goor in their sect: that appellant Mooljee, and the other appellants, and respondent Umbaram are Nyat-Goors, and that appellant Mooljee performed the ceremonies of his sect, and received the fees : that respondent Umbaram performed the ceremonies of another sect in Nanpoor, and appellant Mooljee performed the ceremonies at marriages, funeral obsequies, &c., in the Shu-grampore sect. The other witnesses called by respondent deposed to the same effect. Appellants moved the court to examine a deposition which respondent Nagur had made in a suit No. 1396, decided in the year a.d. 1818. in this statement, respondent Nagur admitted, that in consequence of Mooljee’s (appellant) absence, he had employed Umbaram to perform the Wersee (annual ceremony); but that when his wife died that appellant Mooljee performed the funeral obsequies, the fees of which ceremony, he (Nagur) paid to Mooljee, according to his means. A report given by the Shastrees in case 943 of 1824? and another in case 2384 of 1828, were next read^and recorded, shewing that the Jujman (disciple) cannot discharge his family priest. Respondent next exhibited a certificate, signed by upwards of 100 persons of his sect, certifying that Mooljee and the appellants, and Umbaram were Nyat-Goors and not Kool-Goors.136 CASES DISPOSED OF BY THE 1803 Mooljee Purseram, and Gowreshun-kur, and Bhaee Shunkur, vs. Nagur Ramjee, and N nr bar am. The Judge remarked, that the witnesses on both sides were of the caste of respondent Nagur : that the witnesses of appellants had stated, that appellants were the Kool-Goors of the Katchya caste of the Shugrampore sect: that he performed the duties and received the fees, and that Umbaram was a priest of the Nanpore sect. That respondent’s witness had stated, that respondent Nagur was of the Shugrampore sect, and that appellants were his Nyat-Goors. The Judge considered that respondent had not shewn who was the priest of the Shugrampore sect if the appellants were not, but that it appeared, that appellants had for a long time performed the Gorpudda duties in the house of respondent Nagur Ramjee, and the Shugrampore sect; and that there was only one difference in the evidence of the witnesses on both sides, viz. that the appellant’s witnesses state, that appellants are the Kool-Goors and the respondents’ witnesses say, that they are Nyat-Goors: but it appeared to the Judge, that as the appellants performed the Gorpudda duties, and received the fees, and had sued the respondent for the fees, they were entitled to the fees, as well as to the right of performing the Gorpudda duties. With this opinion, the case was returned to the Sudder Dewanee Adawlut. The Sudder Dewanee Adawlut, on receiving back the case, passed the following judgment: — 44 The court finding, on reference to the law officers, “ that it is obligatory on the respondent Nagur to “ egiploy the appellants in performing the Gorpudda 46 duties in his family, and that therefore appellants are “ entitled to their fees ; and that respondent Umbaram, “ having no right to act as Goor, interfered with the “ duties which belonged to appellant, determines to reverse the decrees of the lower courts, and to make “ the respondent Nagur liable to appellants for theirSUDDER DEWANEE ADAWLUT. 137 “fees; and hereafter to entertain appellants only, in 1831 “ performing the Gorpudda duties of his family. The Mooljee Purseram, “ court likewise decrees that the respondent Umbaram, ^d Gowreshun-c< Pay Rupees 35 as sued, for interference in the ivUrshunkur^aee 64 appellant’s rights; and thrown out the claim for vs. “ damages on account of loss of character, as such does a?uf lnutvi! “ not appear to have been sustained.” 23 July 1831. 64 Costs to be borne by respondents.” No. 31. Dessaees Kurrei&iiunkur and Roopshun-kur, sons of Ootumram Roopsi-iunker, being an idiot, by his guardian Hurree-shunkur, and after his death, by his heir Roopsi-iunker.....................................A ppcllant.s, versus ■# Baet's Mankoovur and Umba.........................Respondents. [Suit brought to rccover possession of some Dessaeegeree land decrecd by the Sub-Collector upon evidence against Plaintiffs. Upon Appeal the Sudder Dewanee Adawlut decided that under Section XX. Regulation XVI. Respondents could not hold the Dessaeegeree land and consequently reversed the Sub-Collector’s decision; upon a review of judgment it was held that the above Section had not a retrospective effect, and consequently that Respondents were entitled to hold their share of the wuttun.] This was an notion to recover some Dessaeegeree land founded on the law of inheritance. J 8 d REPRINT. 22 May 1831, Jrnnboo i>rrJi ruins.J38 CASES DISPOSED OF BY THE 1834 Dessaees Hurree-shunkur and Roopshunkur, vs, Baees Mankoovur and Umba. 22 May 1834. From a pedigree filed by appellants in the ease, and admitted by respondents, the parties appeared to be descended as follows, from Dessaee 1 Klianjce. I Kerrpa- j Lal- ram. | bhaee. Keyulram. Govindram. Kaka- bhaee. Kussuncliund. Sookram. Jakecr, daughter. Kopa- ram Umba, a daughter. Umrut, a Uttchrut, a Ootumram. Jirmuck died Hurree- daughter. daughter. childless. shunkur. Umba, Respondent. .____________ Mankoovur, Respondent. IIurree-shunker, Appellt. Roopshunkur, Appellant. ____________1 and the suit was brought by appellant to recover 49f koombhas, and 16j malas * Dessaeegeree land in res- * The mode of measuring land in Jumbooseer, is in koombhas and malas, or koombhas and hundrelh parts. The standard rod or bans or guntha, sometimes also called mala for measuring the koombhas, is nine guz in length ; the length of the guz is 27 inches and a quarter : therefore the bans, or rod is, in length 20 feet, 5} inches English measure. A square measuring 10 of these rods on each of itsSUDDER DEWANEE ADAWLUT. 139 pendent's possession, appellant setting forth, that Des- 18.34 saee Khanjee, the head of the family, held pussaieta land j)essaeea Ilurree- amounting to about 86f koombhas and 16g; malas in shunkurand the following proportions in the undermentioned villages RooPsji"nliU,'> in the Jumbooseer purgunnah : Baees Mankoovm- and Umba, Leemuj. Koombhas. Mala. ... 50i ... 41 ... 10J ... 11 1 .10 ... 0 . 2 ... 0 , . . 8 ... 0 that the revenues arising from this land were equally shared by Sookram, and Kakabhaee, who both filled the Dessaee’s office until the de^th of Sookram in Sumvut 1850, a.xx 1793-94, when the whole came into Kakabhaee’s possession. He however alloted to Rutton, Sookram’s widow, for her maintenance, the pussaieta of the three villages of Pelloodra, Lemuj and Mundnagaom, which she held until Sumvut 1869, a.d. 1812-13: that about two years after this appellant’s father Ootumram died, leaving Hurreeshunker, about 4 years old, when Umba fraudulently appropriated the revenue of that land which had been given for her grand-mother, Rutton’s maintenance, which being Dessaeegeree, could not be held by a woman. That at the survey of the Zillah, made under Major Monier Williams, appellants were unable from youth, to attend, and consequently should not be held bound by any thing shewn in that survey ; but the land in the villages of Seegaom, Mooradpoor and Chandpoor sides, is a koombha, which is equal to 3 rods 33 perches 422 decimals English land measure, or 100 koombhas are equal to 95 acres, 3 rods, 22 perches and 2 decimals. Vide Lieut. Col. Monier Williams5 memoir on the Zillah of Broach,140 CASES DISPOSED OF BY THE • 834 had been enjoyed by appellants and their fathers, since Dcssaees'llurree- Sookram’s death, until the year Sumvut 1888, a.i>. shunkur and ]831 -2, when Umba, being instigated by some persons lloopshunkur, (|;gtur])e(] their possession of land in the following Baees Mankoovnr villages: and Umba. Seegaom. . ,..................... 33|- .... 4| Chandpoor........................ 6 .... 1 Mooradpqor. .,............... 10$ .... 11 49| 16* whereupon appellant represented the case to several of the authorities, who confirmed his possession until it was brought before the Collector, who finding from Major Williams’ survey, that the land was in respondents’ name, directed appellants to make it over to respondents, and if they had any claim upon it, to sue ; in consequence of which they filed this plaint, damages were laid at Rupees 1,000. The respondents defended the claim on the ground of their being Sookram’s descendants, and according to the custom of their caste, the lawful heirs to his property. No further pleadings were put in, and the ease came on for trial, when appellants produced only oral evidence in support of their claim, they produced no leases or receipts for rent of the land, and consequently the N, Kirkland, Esq. Acting Sub-Collector considered it fell short of proof. The respondents on the other hand filed copy of a memorandum given in by the Dessaees to Major Willaims for Sumvut 1874, a.d. 1817-18, in which the property of the parties’ ancestor in this suit, was entered as follows :—-SUDDER DEWANEE ADAWLUT. 141 Dessaee Kussumchund Laldass, and Dessace Kaka-bliaee Laldass. Pussaieta. Koombha. Seegaom ............ ...... K>t Chandpoor........................ 4;| Mooradpoor .................... 5 Mugnad .......................... 1 1834 Dcssaees Ilurrce-shunkur and lloopshunkur, vs. Baers Mankoovur and Umba. 27* Dessaee Sookram Kewulram. Pussaieta. Koombha. Seegaum............................. 33^ Chandpoor........................... 14 J M ugnad ....................... 8 Mooradpoor ......................... 10 Pelloodra .......................... 10 76 and also copy of a schedule prepared by the committee, fixing the amount of Pussaieta belonging to each party as follows : Names and Villages. Quantity awarded. .Now in possession. Decrease. I lcrease. Dessaees Kussum- chund & Kakabhaee. Mugnad 1 0 1 0 C hand poor, M ar woo* 0 6 1 0 6 l Seegaom 16f 2 n 0 3 21* Esunpoor 0 91 17 0 17 Total. . . . 17| 261 14* 1 141 * A species of soil, called also (sometimes in this and most commonly in other districts,) gorat, or eight colored. Williams’ Memoir ot the Zillah of Broach, p. 13.142 CASES DISPOSED OF BY THE 1834 Dessaees Iiurree-shunkurand Iloopshunkur, vs. Baees Mankoovur and Umba. Names and Villages. Quantity awarded. Now in possession. Decrease Increase. Dessaee Sookram Kewulram. Jambooseer 0 2 12$ 0 i m Mugnad 8 n 18 0 * 18 Leemuj 0 H 13 0 li 13 Pelloodra 10 10 15 0 0 15 Seegaom . . f 331 m 8 i 17 ) Mooradpoor 12“ 10* 11 H u 0 Jutran 0 5 7 0 5 7 Chandpoor Baroof. 10 0 10 ) Total.... 731 681 91 !2i 6 7 5 * from which the Sub-Collector deduced that the parties’ land being described separately to the committee by whom the division was confirmed, and each individual established in his respective lands, it appeared that the family must have had their land divided previous to the survey, as if that was not the case, appellants’ father should have objected to the arrangement made by the committee; but as it did not appear that he had done so, the Sub-Collector thought it conclusive that he had consented to it. Respondents likewise filed two mehzurs, certificates, the one by the dessaees and muzmoondars, bearing fifteen signatures, and the other by all the Brahmins of Jumbooseer, bearing eighty-five signatures, in which they declared, it was the custom of their caste, that when a man died, leaving a daughter and no male issue, that the daughter and her daughter should inherit f A species of black soil “ Kalee Bhoee.” The black soil of the villages called the “ bara” villages, and of which 110 part of the land is of another description, is very inferior to the “ Kalee Bhoee” of the villages which have portions of their lands of the Marwa kind.SUDDER DEWANEE ADAWLUT. 143 Jiis property, and not his cousins or collateral relations, 1834 who could only succeed in failure of all other heirs. Dessaees Hurree- The Sub-Collector considered that these proved the shunkurand customs of the caste in favour of a daughter, or daughter’s ®'00P^ullkur> daughter inheriting, and that the pedigree showed the Baees Mankoovur respondents to be the lineal descendants in the female anc* line from Sookram, and looking to the rules of the Shasters, that in cases of property divided between brothers, if one of them dies without male issue, his daughter’s male issue shall inherit ; and finding that respondent Umba had male issue, he considered respondent’s claim upheld by the custom of the caste, and also the Shasters. In addition to these documents, respondents also produced oral evidence to shew that after Sookram’s death, they and their husbands had held possession of the litigated property and received the rents arsing from it; and these witnesses, including amongst them a koma-visdar, dessaee, muzmoondar, and village tullatee, the Sub-Collector considered more worthy of credit, from their higher rank and character, and from being free from all suspicion of bias, than the witnesses produced by appellants, who swore diametrically opposite to them, but who it appeared, had had some dispute regarding some mangoes with the respondents, and gave their evidence under feelings of ill-will. He consequently threw out appellant’s claim. 20 May 1835. Appellants appealed from this decision to the Suddur Dewanee Adawlut, urging the grounds of their original plaint, and further that their evidences, which had been rejected by the Sub-Collector, proved that their father had held possession of the litigated property for (40) forty years : that the Sub-Collector had in his judgment recorded, that the non-objection of their father to the entry and award by the committee, must be considered144 CASES DISUSED OF BY THE 1834 as a consent on his part, but this was impossible, as the Dessaees Hurree- committee carried on their enquiries in Sumvut 1874, sliunkurand a.d. 1817-18, and their father died two years before, viz : Itoopshuuku1, gumvu|; j872^ a.d. 1815-16: moreover that, had the Baees Mankoovur property ever really been divided, the two branches of and Umba. famjjy Would have held equal shares of the 86f koombhas and 16| malas, the original pussaietaof dessaee Khanjee: whereas from the papers of the committee, upon which the decision is founded, it appears that the share awarded to appellants’ ancestor, was only 17£ koombhas ; while the respondents’ ancestor, Sookram,had 73h koombhas awarded to him. The fourth Puisne Judge, before whom the case was IX Greenliill, Esq. brought on, as a single Judge, recorded, that it nowhere appeared, nor could respondents shew that Ootumram, appellants’ father, ever had admitted Sookram’s right as entered in the survey papers; and which consent, the Sub-Collector considered proved: he however, remarked that if appellants’ family had had possession as they affirm, at that time and ever since Sookram’s death, in Sumvut 1850, a.d. 1793*94, it would have been so record -ed in the accounts ; and in all probability, would have been known to the survey committee. He further remarked upon the unequality of the division as shewn in the survey papers, and urged by appellants, and recorded an admission by the respondents’ wakeel, that, the proceeds only, and not the land, were divided. The Judge then proceeded as follows : 66 It appears to me that nothing has been clearly esta-“ Wished on either side, and therefore that it may be neces-“ sary to look back to what is admitted by both sides to “ have been the relative rights of both families, and then “ to decide according to the law of inheritance, either “ according to the Shasters, or the caste usage, if any 44 distinct rule be found to exist.SUDDER DEWANEE ADAWLUT. 145 It then being' indisputed that during the life of 1834 “ Sookram the two farniles enjoyed equal shares of the Dessaees Hunce- “ Dessaegeree inherited from their common ancestor shunkur and “ Ivbanjee, as stated by the survey committee, it remains liooPs^“n'-u,> “ to be shewn whether by anv well known rule of the Baees Mankoovur d U p |) ^ 46 caste, the succession goes by the female line or not. If it an ni a‘ “ does, respondents will be entitled to the half only of the “ usufruct of the whole, and appellants to the other half. “ If it does not, the law of the Shasters will decide the “ rights of the parties.” On this view of the case, the respondents’ vukeel objected that it depended upon the separation of the families; and that if a separation is not found to have taken place, inheritance goes acccording to the law of the Shasters, which both parties admitted to be to the exclusion of the female line. The sitting Judge then concluded. “ I cannot come “ to a very satisfactory conclusion on this case, but “ under the want of proof I see no other mode of decid- “ ing it than on the principle above explained, which “ would lead to a reversal of the Sub-Collector’s decree, “ which appears to me erroneous in assuming as facts, “ what I cannot think the records justify.” The case 24 February 1831, was accordingly submitted to a full court; when that S,g1pr j11, ^SCi* court deciding that a separation of interest had not been E.IL Baillie,Esq.f established, resolved to call upon the caste to report Esq whether under such circumstances, respondents were 4th P. J. entitled, on any settled usage of the caste, to ‘any and what share of the disputed property. The Acting Sub- Collector certified a return from sixty members of the 12 July 1836. caste,'wherein, at great length, they went into the merits .90l,^t as ’ & t i . Wlth tne addition of the case. They were accordingly desired, on the case of G. L. Elliott, being again brought on, to confine their answer to the original question; when they declared that, it was the custom of their, caste, in all cases, whether the family was divided, or not divided,-forwomen to succeed, and 19 d REPRINT146 CASES DISPOSED OF BY THE 1834 that, in this case, respondents were heirs to all the Dessaees Hurree- property. Appellants’ vukeel then urged that in No. 223 shunkur and of the Sudder Adawlut file— Roopshunkur, Baee Goo]ab) daug, iter of Soobaram, appellant, versus Baees Mankoovur Umbaram and two others, sons of Mungulram, Dholab- 1 TT \ a m a' ram Itcharam and Pruntal Piirjaram, respondents, it S. Marriott, Esq., been decided that under Section XX., Regulation S. P. J. XVI. a.d. 1827, a female was precluded from participa- ^ Act^3°d’p^SJ'* t'on hereditary inujmoondaree, and ptissaieta land. D. Greenhill, Esq., The court accordingly under this precedent, amended 4th P. J. the Acting Sub-Collector’s decree, and adjudged appellants’ claim to be established ; but upon a consideration of the case decreed that each party should bear their own costs. Respondent Baee Umba, being dissatisfied with this decision, presented an application for a review of Judgment, urging the merits of her case; and likewise th;it the application of the law was erroneous, as she held 6 February 1838. possession of the land previous to the passing of the regu- J. B. Simsori, Jation, upon which her title was thrown out: and the re-Esq., A. S. P. J. . i*iii i i John Pyne, Esq.. view was admitted on tne last ground urged, as it was a *A. J. P. J. point not previously considered, and the Judges were of D.Greenhill, Esq., . . . , J, „ 4th P. J. opinion the law had not an expost-iacto enect. U pon the appeal being brought on for re-hearing, Hurreshun- kur, opponent to the review, having died, Roopshunkur alone appeared, when the Judges gave their opinions seriatim in the following minutes. 6 Sept. 1838. “ After a careful perusal of this case, I am of the same ^ A^^nd'p ^ ’ U °P™on as ^ie Acting Collector, whose decree I should “ confirm, reversing the late decree of the Sudder Adaw- “ lut upon which a revision of judgment has been admit- “ ted on the grounds that the law by which the Sudder “ Adawlut gave its decision operated ex-post-facto, and it “ appears to me that the evidence in favour of the en- “ joyment of the wuttun, and lands attached thereunto■ CASES DISPOSED OF BY THE 147 by the respondents, is very strong and conclusive. 1^34 “ The tullatee, and the mamlutdar, both, depose to the Dessaees Hurree- “ same, prior to 1827, and other witnesses strongly shunkurand “ corroborate this best of evidence; the witnesses also on ®oops^“ukur» “ the part of respondents are far more worthy of credit, Baees Mankoovur “ than those of the appellants.” an<* “ In addition to this, I conceive with the Sub-Collector “ that the interests of the two families of appellants and “respondents, are shewn as distinct in the survey re-“ cord's; for to Kessumchund Laldass, and Kakabhaee “ Laldass, from whom appellant is descended, there were “ 28g beegas of land entered, and in the name of Sook-“ ram, from whom respondents are descended, there are “ 106g beegas entered. It does not follow that because “ the quantity of land is unequal, their interests are not “ separate; Sookram may have acquired more since the “ division. I conceive from this very authentic docu-“ ment that the interests of the two families were distinct, “ and being so, that the respondents could succeed, al-“ though females. This custom is proved :—instances of “ the same may be found in abundance, of females suc-“ ceeding to hereditary offices and wuttundar rights. At “ present the interpretation of Section XX., Regulation “ XVI. of 1827, by the Sudder Dewanee Adawlut, forbids “ this; but the fact occurred before the introduction of “ the regulations of 1827, and therefore, should not be “ disturbed.” “ The parties are descended from a common ancestor, J°lin Pyne, Esq., “ Kaorjee. The respondents cannot establish the fact, “ by evidence, beyond the entry in the survey papers, “ that they are entitled to more than a half share. It is “ stated in reply to a reference from the Sudder Adawlut “ by the assembled caste, that by the usage among them, “ a female inherits property whether divided or other-“ wise.148 CASES DISPOSED OF BY THE IS34 “ The wife of Sookram died in Surmvut 1869, or Dessaees I-Iurree- “ twenty-four years since, when the respondents ought slnmkur and “ to have come into possession. The right therefore Roopbmmkur, u existed before the passing of the regulation, which can- Baees Mankoovurnot have an ex-post-faclo effect. I would therefore and Lmba. « award an equal division of the wuttun.” D. Greenbill, “ Suit to oust females in possession or supposed pos- 1 * * “ session of pussaieta land, decided against females on “ precedent, de.claring that the law prevented them suc-“ ceeding to such service lands. Review admitted as the “ application of the law seemed erroneous, as Jbeing ex-“ post-facto. “ The precedent related to a claim brought forward “ before the passing of the law, although decided after. “ The meaning of the law if it be that, by the expres-“ sion, ‘ shall in future be considered,5 is meant that fe-“ male incumbents, or co-shares shall be removed or de-“ prived of their shares, then if the precedent against fe-“ males continue to hold good, the decree was correct, “ and the same decision should be given, but if it is to be “ interpreted that the succession only of females from that “ date, shall be barred, and that the next male heir shall “ succeed on the demise of the then female co-sharers, “ the respondents are entitled to a decree in their favour.” 14 In common cases, no claim existing before the time “ of passing a new law, could be effected by the new “ law, unless specially provided for. The law now to be “ decided on, provides that the allowances derived by a “sole proprietor, &c. “shall in future be considered “ strictly as the official remuneration of the person filling-“ the office ” and the law has been declared to exclude “ females from the office altogether. The respondents “ however may be said to have been in possession before “ the law was passed, then are they to be turned out “ under the new law ? The interpretation of the courtSUDDER DEWANEE ADAWLUT. •149 “ determines lliat it is contrary to the letter and spirit of 1834 “ the enactment that females should succeed to the office, Dessaees Hurree-“ but it is doubted whether this exclusive law, could, or sliunkurand “ was intended, to have effect in regard to the parties l'00Ps^un^ur» “ already in possession of the emoluments as co-sharers, Baees Mankoovur “ under a well known and recognised usage of the coun- an(1 Umba* “ try, ascertained since the case was before the single “ Judge. Section XX., Clause 2nd, and Section XVII., “ Clause 4th and Section XVIII., recognise and provide “ for the division of allowances without reference to “ capacity ; and although it may not be lawful for females “ to succeed after the passing of the regulation, it appears “ to be equitable and not opposed to the spirit of the “ same, that those who acquired a previous right, should “ continue to enjoy the benefits, as far as the arrange-'' “ ment provided for in the chapter, from which the “ above clauses are quoted, will permit. 1 am of opinion “ therefore that a decree should be given in favour of “ respondents’ claim, to retain possession of .half the “ wuttun.” The Acting 3rd Puisne Judge recorded his assent to j0|m pvnP> Esq., the interpretation contained in the latter part of the A. 3rd P. J. above opinion; and it wras thereupon resolved in supercession of the former decree of the court, and upon the grounds on which the revision was admitted, that respondents Baee Umba and Mankoovur, be permitted to hold half the wuttun, under the provisions of Chapter III. Regulation XVI. a.d. 1827, and a decree was passed accordingly, awarding costs to be borne by each party respectively.150 CASES DISPOSED OF BY THE No. 32. Ambawow, widow of Pateck Balcrjstna Ramchunder......................... ........ •Appellant, versus Rutton Kristna, Virja Kristna, and Gunga Kristna, sons of Balcristna Yenee-cristna and his wife, Ranee.....................Respondents. [Suit brought by the widow of a grandson who had died before his grandfather, to recover property taken possession of by the children of his grandfather’s daughter. Decreed in all Courts upon a consideration of the Shasters in Defendant’s favour.] R. C. Chambers, This was an action originally filed before the 1st Assist-ant Collector at Surat on the 27th June 1834, to recover one half of the village of great Burachee in the Oolpur purgunna, which appellant claimed by inheritance as heir of the original jageerdar Wamun Pateck. Damages were laid at Rupees 50,000. No genealogical table was filed by either parly, but the following taken from the evidence in the case, will exhibit the relationship of the parties and save much repetition in explanation. Wamun— Pateck Slioobdr Balmookun I I Ruveebudr Ramchunder Balcrist Veneno-----Baee Raoec Balcristna-----Umbawow Rutton Virja Gunga Plaintiff. Defendant. Defendant. Defendant. Appellant Umbawow originally sued for possession of half of the Jaghecr village and rents of greatSUDDER DEWANEE ADAWLUT. 151 Buracliee in the Oolpur Purgunna, as heir of her 1S34 husband Balcristna, to whom the one half of the village Ambawow, widow descended from his grandfather Ruveebudr, who inhe-of Pateck Balcrist-rited that much of the village which was originally na Ra™chunder, granted to his grandfather Wamun Pateck. That Ruvee- button Kristna, budr dying in Sumvut 1886, a d. 1829-30, after bath his son Ramchunder and grandson Balcristna, she as heir of Borradaile’s Re~ her husband Balcristna, was entitled to the estate of ports, vyl. II. which the respondents had taken possession. case Io2, The respondents defended the suit claiming as the lineal descendants of Ruveebudr, being his grand children, through his daughter Baee Ranee, and urging consequently that appellant was not heir to the property in question, and moreover that Ruveebudr had during his life-time made a will in which provison was made for appellant, and that she had never until this present, advanced her claim, though they, respondents, had been involved in litigation both here and at Benares, as Ruveebudr’s heirs. Appellant replied that the village was given to Wamun Pateck and the heirs of his Gotra;# called Guttum, that she was of this Gotra, but that defendants’ mother was not, and consequently the property* would not descend to them; and that respondents had never been confirmed as heirs of Ruveebudr in opposition to her. To this the defendants gave in a rejoinder, and the * A relation ; in law, the term is nearly equivalent to the “ Gentile’’ of Roman Law and is applied to kindred of the same general family, who are connected by offerings of food and water,-and stands opposed to “Bhund hur” or cognate kindred who do not partake in the offerings of the common ancestor.—Yide Wilson’s Sanscrit Dictionary co : nom : page 276 ed: 1819, Calcutta. “ After marriage a wife’s Gotr becomes that of her husband.—Stevenson’s late caste customs. Page 33 Note.*152 CASES DISPOSED OF BY TIIE 1834 Ansbawow, widow of Pateck Balci ist-na Ramchunder, vs. Rutton Kristna, Virja Kristna and Gunga Kristna. Assistant Collector proceeded to record the evidence which was offered, and on giving judgment recorded that the matter at issue confined itself to one point alone, viz., whether the property now claimed descended on the dlath of Ruveebudr Paleck in Sumvut-1886, a. o. 1829- 30 to plaintiff, the widow of his grandson, or to the defendants, his daughter’s sons. The points therefore for decision, as laid in plaintiff’s claim, divided themselves into the four following:— 1st. That defendants could not inherit this property, as they are of different u gotrs. ” 2nd. That plaintiff is by the Shasters heir to the property. 3rd. That according to the customs of her caste, she, appellant, is heir. 4th. That decrees have been passed in the Zillah and Sudder Adawlut, giving prior right of inheritance to the widow and her children over the daughter’s issue. In support of the 1st point, appellant relied upon clause 2nd, Section XX., Regulation XVI., a.d. 1827, and two decrees of the Sudder Dewanee Adawlut, No. 223, Baee Goolab, versus Umbawovv Mmigulrarn and others, and No. 98Cf,# Dessaee Hurreeshunkur Ootum-ram and others, versus Baee Munkoovur and another, wherein it is decreed that a woman could not claim a wuttun of the description therein alluded to. These arguments however were overthrown by the Assistant Collector, as the wuttuns therein litigated were in lieu of service, viz. one Mujmondaree, and the oilier Dessaee-geree. Appellant then argued, that the sunnuds, from the Raja of Sattara and his Highness the Peishwah, granting * This decree has since been amended on review of judgment, No. 31, of these reports.SUDDER DEWANEE ADAWLUT. 153 the village to Wamum Pateck, bestowed it upon him and 1834 his heirs of his own gotr, that she was of that gotr, and Ambawow, widow respondents were not. Appellant did not produce the of Pateck Balcrist-original sunnud, but filed two Maratha deeds, the one na Ka™°|lun on the 30th January 1837, a decree in respondents’ of Pateck Balcrist- favour. na Ramchunder, prom this decree appellant appealed to the Principal Rutton Kristna, Collector, on the 24th February 1837, 'who referred to ^ GungarKristiuu^ Shastree of the Zillah Court, to know -whether the inheritance of Ruveebudr’s property fell to his grandson’s J. Vibait, Esq. wj(jow or to his daughter and*her sons. The Shastree answered that appellant had a right to the inheritance, and respondents no right; but this being at variance with an answer he gave before to a question put to him by the Judge of Surat, W. J. Lumsden, Esq., on a previous occasion, and which respondent had filed in the original investigation, wherein he stated that he was not able to point out exactly from the Shasters the answer to the question, but quoting Mr. Macnaughten’s work, Vol. II. 106, 7 and 8, he gave an answer in respondent’s favour, the Principal Collector did not consider that the Shastree had made good his statement, and therefore overthrew this argument. The appellant likewise urged the decrees of the Surat Sudder Dewanee Adawlut, No. 926, Mt. Khoosalee Des-sayen and another, versus Baee Jeejee, and also No. 980, as urged before the Assistant Collector, but these the Principal Collector did not consider to bear upon the case, and he further doubted the correctness of the decisions. He therefore declared that the respondents’ title, as shown both by the Shasters and caste customs was good, and that appellant had not been able to prove a claim for anything more than a maintenance. He therefore, on the 28th November 1837, affirmed the Assistant Collector’s decree. From this decision appellant urged a further appeal in the Sudder Dewanee Adawlut, referring therein to the Hindoo law, according to the authorities recognized onSUDDER DEWANEE ADAWLUT. 157 this side of India, and objecting to Mr. Macnaughten 1834 and Sir Thomas Strange’s translations, and explana- Ambawow, widow tion of those in use at Benares and Bengal generally, as Pateck Balcrist-quoted by the Principal and Assistant Collector, and na Ran^hunder» contending that by the Shasters that guide the courts on Rutton Kristna, this side of India, and as expounded in the case, and from ^(^uD^Kristiw!^ precedents in the Sudder Dewanee Adawlut, she was entitled to succeed to the inheritance of her husband’s share of the undivided estate of Sheobudr. The 4th Puisne Judge, before whom the case came, sitting as a D. Greenhill, Esq. single Judge, referred the opinions and expositions already recorded in the case to the Shastree of the Sudder Adawlut for his opinion, which he gave to the effect that under the circumstances of the case the appellant is not entitled to succeed, it being held that by the death without issue of one of an undivided family during the lifetime of others, his share of the undivided inheritance reverts to his father or his direct heirs and not to his widow, and applying the law to the present case, that Ruveebudr succeeded to the share of Balcristna Ram-chunder, and after him his daughter and her sons. This opinion the Shastree stated was given on a consideration of the law laid down in the Metakshara 2nd, chapter 3, the same declaring the wife to be joint owner with her husband from the day of their marriage, the object of which is in the same book explained to be that in the absence of her husband, she may be able to incur all necessary expenses, evidently meaning, in his opinion, that such ownership is limited by the life of her husband, in which he is supported by the Veer Mitrodaya, # which explains the Metakshara according to the above exposition. The Judge, on delivering judgment, recorded that the question to be decided on was important, and not unat- * Pages 201 and 202.158 CASES DISPOSED OF BY THE 1834 tended with difficulty in consequence of the unsatisfac-Ambawow, widow tory manner in which the opinions of the law officers of Pateck Balcrist-have been recorded, they leaving it uncertain whether na Kamchunder, n 1 , , . , . , vs they were rounded on any authority better than the Rutton Kristna, isolated judgment of each with reference to a particular ^Gun^Krbtna^ or whether they consulted the author quoted by the officer of this court, or any other of weight, or took into consideration the law as read by the Shastrees of the other side of India that it was purely a point of law ; and alter consulting the books on Hindoo law, and adverting to the authorities quoted by the lower courts, he saw no reason to doubt the correctness of the opinion of the Shastree of this court, which was against the appellant's claim. The decree of the Principal Collector was therefore affirmed with costs to respondents. No. 33. Muncharambhaee Jugjeewundass, Manager of the Firm of Utmaram Bookun. .. . Appellant, ver'sus Moola Kutboodeen Hussain, Son of Moola Ubdool Tutta, and Pestonjee Rutton-jee ........................................Respondents. [This action was brought to recover on a Samedustkhut, a sum of money from some land of which Appellant held title deeds in deposit. Decree passed by the Principal Native Commissioner in Appellant’s favor, but not rceoverable from the land, as the land had not been given in mortgage ; affirmed also on appeal to the Judge and likewise on special appeal to the Sudder Adawlut, the Cazee of that Court declaring that having title deeds in deposit did not tie up the property as in mortgage.] This was an action to recover Rupees 8,171*6-0, claimed upon a Samedustkhut (an entry made by theSTJDDER DEWANEE ADAWLUT. 159 party having an account with a firm in the books of that 1836 finn'in his own hand-writing, or his signature to an Muncharambhaee entry made by the firm in acknowledgment of the truth Jugjeewundass, of the entry, is called a Samedustkhut,) and which ap- jioola^Cutboo pellant sought to recover from respondent Moola Kut- deen Hussain, boodeen's property and person. The appellant originally filed a suit on the 5th January 1836 in the Adawlut at Surat against respondent Moola Kutboodeen, on the grounds that in Sumvut 1884, a.d. 1827-28, Mahomed Sadek, as the Moola’s attorney, left the title deeds of the Moola’s property in the village of Bhestan, in Atmaram Bookun’s firm, and wrote an agreement upon the subject, and commenced an account witli the firm from a Samedustkhut: that the accounts were adjusted every year, and upon the 1st Kartug Sood Sumvut 1841, a.d. 2nd November 1834, the sameattor-ney examined the account, and by a Samedustkhut acknowledged the balance shown of Rs. 7,337-9-4 as due; that since that time, Ks. 33-12-8 have accrued in interest and commission, the whole of which sum he sought to recover from appellant’s person, and the property in Bhestan, of which he held the title deeds. On the 6th January 1836, Pestonjee Ruttonjee moved the Court, that as he held deeds for the property from which appellant sought to recover, he might be admitted as a defendant in the action, neither of the others having any title to the lands. The Assistant Judge in charge j. G. Lumsden, complied with his request, and directed the Native Judge £s(l-to include him among the defendants. The defendant, the Moola, in his answer of the 4th February 1836, denied the defendant Pestonjee’s claim, and pleaded ignorance of the appellant’s claim, as at the time mentioned in the plaint he was a minor ; his vukeel, however, on the 29th April following, admitted his client’s signature to the Samedustkhut of Sumvut 1891,16(5 CASES DJSPOSED OF BY THE 1836 Muncharambhaee Jugjeewundass, vs. Moola* Kutboo-deen Hussain. a.d. 1834-5, and that the signature to the agreement of Sumvut 1884, a.d. 1827-28 was his client’s carbaries’ (agent) Mahomed Sadek, his client being at that time a minor, so that no point remained at issue between the appellant and respondents as to the debt being due. The respondent Pestonjee in his answer claimed 337 beegas of the other respondent’s land as bis by purchase, under a release dated Sumvut 1890, Chytur vud 1st, Thursday a.d. 24th April 1834, from the Moola. The admission of the debt by the respondent, the Moola, left no question as to the justness of the demand ; the only question for decision was whether appellant was entitled to recover from the land. The terms of his bond were as follows :—“ Sumvut “ 1884, Budrawa vud 10th, Friday, 3rd October 1828, “ 22nd Rubeeool avul 1244 Hegira, writes to the mana-“ ger of Atmaram Bookun’s firm, Parek Muncharam “ Jugjeewundass, Mea Mahomed Sadek bin 'Abdool “ Khadur, as attorney for Moola Kutboodeen Hussain, “ son of Moola Abdool Futte Sahib, deceased, that “ I, by virtue of a power of attorney from the afore-“ said Moola, have this day opened an account of deal-“ ings with you on behalf of the said Moola for money for “ his expenses and for repairing his ships and other “ outlay by a Samedustkhut; so it is now necessary “ to write that whatever money I shall from this day “ to the end take from your firm upon Samedust-“ khut, that whole sum, together with interest at § of a “ Rupee per cent, per mensem, shall be paid to you, “ principal and interest, from the aforesaid Moola’s sir-“ kar (estate property) ; and for your assurance (Khatu-“ riumma Saroo) eight leases* (Kaballa) of land in Bhes-“ tan, in the Chowrasee purgunna, are left in deposit * The date, &c. are detailed in the original.SUDDER DEWANEE ADAWLUT. 161 “ with you, and I will every year, having settled the 1836 “ accounts with you, write you a new Samedustkhut, and Muncharambhaee “ so long as I shall continue dealing with you, the effect Jugjeewundass, “ of this agreement shall remain confirmed and in force. jy[00]a Kutboo-“ I have written this of my own will and pleasure, and it deen Hussain. “ is acknowledged and confirmed.” The Principal Native Commissioner in giving judg-Ardaseer Dunjee-ment decreed in appellant’s favour for the sum sued for, s^aw-but considering that the bonds were left with Utmaram Bookun’s firm in deposit as assurance and not as security, or in mortgage, he refused to make the property, to which they referred, answerable for the debt. Fie consequently on the 30th April 1836, decreed against the Moola personally for the full amount, together with interest to the date of the decree, and his own and appellant’s costs. The respondent, the Moola, denied the sale to respondent Pestonjee having been completed, as he had not received the purchase money; but the Principal Native Commissioner refused to go into that question, as it did not affect the appellant; and as Pestonjee had been included as a defendant at his own request, he decreed him to pay his own costs. From this decision an appeal was preferred to the Judge on the 11th of July 1836, and on the 28th November 1837, the Acting Judge perfectly coinciding in opinion with the Principal Native Commissioner, con- Simson, Esq., firmed the decree, on the grounds that it did not appear ActlDS •fudSe-from the bond that appellant had any right to recover from land in the village of Bhestan, but, on the contrary, that he was to recover the whole of the debt, whatever it might be, with 9 per cent, interest, from the person of the Moola, the deeds having been left with the firm merely as a kind of assurance, and that it was right they should be given up to the Moola whenever he chose to ask for them. 21 d REPRINT162* CASES DISPOSED OF BY THE 1836 Muncharambhaee Jugjeewundass, vs. Moola Kutboo-deen Hussain. Moreover, it appeared to the court that the land had never been in the appellant’s possession, but had been sold by the Moola to respondent. Pestonjee, to whom the Moola had passed a document, signed and sealed, and by whom also the land had been rented to Ardaseer* the jagheerdar of the village ; and that as tlie bond appellant had was not a mortgage of the land, nor even as security for the cash, and appellant had never been put in possession, his claim was in no way good against the land. The costs of appeal were consequently thrown upon appellant. Appellant continuing dissatisfied, obtained, on the 2nd July 1838, admission of a special appeal in the Sudder Dewanee Adawlut, as the court were of opinion that there was considerable room for doubt as to the correctness of the decrees in considering a title deed deposited as security as of no value and giving no claim on the land to which it relates, and the appeal was broifght on 1). Greenbill, Esq. for hearing before the 4th Puisne Judge on the 26th September, when the court remarked that the Same-dustkhut on which the claim was brought was on unstamped paper, and being of the nature of a bond,f the court was doubtful whether the claim was not invalid on that account, and should be thrown out; but as the respondent, the Moola, had admitted the debt, and as that admission was sufficient evidence without the document, appellant need not be non-suited on that ground. The Judge then went into the case, and referred the document passed by the Moola to appellant and also the Samedustkhut to the Cazee, and asked if, after having written these two documents to appellant, the Moola should sell the land, the title deeds of which he had given * The Principal Native Commissioner who tried the suit, f Yide Borradaile’s reports, II., Case No. 48.SUDDER DEWANEE ADAWLUT. 163 with the bond abovementioned, and should make over 1836 possession to the purchaser, the appellant had, by law, Muncharambhaee any right to recover the "money from the land, the title Jugjeewundass, deeds of which we&e given with the agreement. To Moola^Kutboo- which the Cazee on the following day replied, that ap- deen Hussain, pellant could not recover from the land in question, as the land was not mortgaged, i.e. tied up in the appellant’s claim, and so long as the property should not be mortgaged to the creditor for his claim, he cannot, when he chooses to seek tlie recovery of his claim, tie up that property in satisfaction of it, and on this account the Moola could sell the land to another person, as with the exception of this Kutboodeen, nobody else has any title to the land ; the appellant’s vakeel upon this submitted to the court, that from the allusion to possession by another in the question to the Cazee, it might be inferred that it had been proved, that it was in another’s possession, and that, therefore, some explanation should be recorded ; upon which the court declared that the reference was not to be taken in that light. The court then affirmed the decree of the lower court with appellant’s and respondent Kutboodeen’s costs in both appeal courts to be paid by appellant; respondent Pestonjee Ruttonjee paying his own costs, he having come forward of his own accord.164 CASES DISPOSED OF BY THE No. 34. Hunmuntrao Junardhun...............................Appellant, ve?'sus Sullowdin wullud Abdool Rayman and Shaik Ahmed wullud Shaik Mahomud Hooseyn..........................................Respondents. [Claim by Appellant, as Khote, for possession of some land irregularly pos-sesssed by Respondents,, who pleaded legal possession* and their having brought the land into cultivation. The Mamlutdar considered that Respondents have proved their possession, and decreed that they could not be ousted as long as they paid the dues to Appellant as Khote. The Collector held the same opinion; but on being appealed to the Sudder Adawlut, that Court declared Appellant’s right to the land; subject, however, to any just claims for outlay incurred by Respondents.] ichunder Bab- The appellant, as Khote of the village of Metta, brought , Mamlutdar. an action, on the 24th September 1832, before the Mamlutdar, to recover from respondent certain lands which had been appropriated by them. Appellant’s case was in substance this,—that he was the hereditary Khote of the village, but having left it in Shuke 1738 in charge of his wife during his absence, the respondents seized it in Shuke 1740, and following up the unauthorized act, built a house, and made a garden and fields on the ground, for possession of which he sued, together with the profits which have been obtained from it, stating that he did not lay the claim before as he was absent from the village. The respondents resisted the claim, pleading their right to the Khoteship by a virtue of a decision of His Highness the Peshwa; further alleging that all the ground of the village did not belong to the Khote ; that the appellant’s claim, if he ever possessed any, was nulled by theSUDDER DEWANEE ADAWLUT. 165 lapse of time since it was recognized, and that their possession was only resisted by appellant from enmity. Several witnesses were examined, and documents filed by both parties, in proof of their respective rights. The Mamlutdar considered it proved that appellant, as Khote, had established his right to receive rent; but was of opinion that respondents could not be dispossessed of the land so long as they paid the usual rent. He decreed that respondents should pay the dues on the garden and rice-grounds only when under cultivation, and not till after the next survey by Government took place; and that with regard to the land occupied by houses, appellant might lay a suit for it in the Adawlut in the regular way. The Collector in appeal confirmed this decision. He considered that respondents had Hot proved their right to the Wutton; hut it appeared that they had held possession of the land 17 or 18 years, and the management was carried on by them; he therefore confirmed the Mamlutdar’s decree. From which a further appeal was made to the Sudder Dewanee Adawlut, which was grounded chiefly on the assertion that respondents are not Dharee Kurries;^ that the custom laid down by the former decrees of the local courts, are not applicable to them; that ryots not being Dharee Kurries are required to give half of the produce to the Khote, who is responsible to Government for the dues ; that according to regulation, his claim could be admitted any time within 30 years; and that the reason given by the Collector in his decision was no bar. The case came on, in the first instance, before the 4th Puisne Judge. 1832 Hunmuntrao Jun-ardhun. vs. Sullowdin wullud Abdool Ravrnan and Shaik Ahmud wullud Shaik Mahomud Moose vn. 27 July 1833, 30 July 1834. D. GreenhiiJ, Esq. * Dharee Kurries, independent permanent holders of Land.166 CASKS DISPOSED OF BY THE 1832 The respondents did not pretend to be Dharee Kurries Hunmuntrao Jan- when referred to by the court, but laid claim to the land ardhun, on the terms set forth in the Mamlutdar’s decree. It Sullowdin* wullud aPPeare(^ to Judge, that the spirit of the claim Abdool Ravman was to establish whether, as Khote, the appellant had a aiwnfliul ^ShnikU^ to Possessi°n °f the land in question ; and that Mahomud Hoo- the spirit of the defence was to show that the appellant seyn* Was not Khote, and had no claim whatever. The sitting Judge was of opinion that appellant was entitled to whatever might be the claims of the Khote 011 land brought into cultivation of the nature of that in dispute ; but that it had not been shown in a satisfactory manner what these rights might be ; nor with respect to the Bhat and Bagayet land, whether the Khote had a right to take such land out of the hand of the party, not beingaDhareeKurrie, wiiohad hroughtitinto cultivation; or what conditions, if performed, might affect the rights of either. It became necessary to establish these points. For that purpose a precept was issued to the Collector of Rutnagherrie (Mr. A. Elphinstone) who made the following report:— “ According to the custom of the Severndroog Talooka “ and of the greater part of the Zillah in which this dis-“ pute has arisen, the proprietary right to the whole of “ the land, not belonging to Dharee Kurries (indepen-“ dant permanent holders of land) situated in any “ Khotee village, is vested in its Khote exclusively; and “ in Khalsa villages (or those held under the direct “ management of Government) it belongs to Government. 2nd. “ It is admitted likewise by the custom of the “ above Talooka, that the Khote’s right to take such “ land (whatever may be its description) from the hands “ of any person (not excepting even Dharee Kurries) “ who may have taken possession of, or prepared and “ brought it into cultivation, without his (the Khote's)SUDDEIl DEWANEE ADAWLUT. 167 “ previous consent, is undoubted; but, (as an exception to 1832 44 the rule) it has been usual to show favourable considera- xLunmimtrao Jun-44 tion to length of possession, although there are no ardhun, 44 fixed rules to guide the decision in such cases; still gLl]]0WCj^" wul!ud 44 length of occupancy, and the circumstances under which Abdool Rayman “ it was obtained, if satisfactorily established, being an^i^kshaikUd “ weighed, it generally determines the continuance of pos- Mahomud Hoo-“ session to the tenant on his engaging to pay to the se^n> 46 Khote the usual Thul of the produce, or it may he 44 merely on payment of the Dhara, the determination of 44 the amount of rental at either of these two rates being 44 dependent upon the circumstances under which the “ possession was originally acquired. If, moreover, the 4* possession of such land be satisfactorily proved to be 44 of that consequence to the Khote, as to warrant the 44 dispossession of such land from such tenant, the Khote 4‘ is considered liable to the payment of all the expenses 44 the tenant may have incurred. It is also further said, 44 that by the payment of such expenses, the Khote’s 44 right to resume such land even in ordinary cases 44 (where the recovery may not be of consequence to “ him) is absolute; but I beg leave to state that 1 am 44 not aware of a single instance in which a Khote has ‘‘ ever been allowed to exercise it. If, on the other 44 hand, it be proved that the possession of such Khotee 44 land was originally acquired by unfair means, when 44 resistance was not in the power of the Khote, such a 44 person is, as a-matter of course, compelled to surrender 44 his claim and interest in the possession of the land 44 as well as the amount of expenses incurred by him. 3rd. 44 From the foregoing it will be perceived that the 44 right of the Khote can never be invalidated ; but he is 44 not able to exercise this power in its fullest extent to 44 the detriment of others, as Government have always 44 reserved to itself the right of holding to a certain de-168 CASES DISPOSED OF BY THE 1832 “ gree, a seasonable control over the Khote’s actions: Hunmuntrao Jun- “ consequently the practice is governed by expediency.” ardhun. The sitting Judge was of opinion that appellant was Sullowdin* wullud e°titled to ^ie possession of the land in question, and Abdool Ray man proposed to amend the decrees of the Collector and and Shaik Ahmud ]\famlutdar, and to declare the right in favour of appel-wuliud Shaik 5 . . Mahojnud IIoo- lant; liable, however, to any just claim for outlay incur-seyn. re(j foy respondents, for which they may not have been reimbursed by the receipts, which, if not privately adjusted, might form the cause of another action ; but that appellant’s claim for arrears should be disallowed. Full Court. The case was consequently referred to a full court, wThen John Pyne, Esq, Mr. Pyne, the Acting 3rd Judge, remarked that “ had D. Greenhill, Esq. J & \ T_ P. \V. LeGeyt, the respondents been in possession as lJharee Kurries, Es(l* “ and had converted the Wurkus land into Bhagayet, or “ the Bhurrud into Bhat, which previously yielded no “ rent, they could not have been assessed until the next “ general survey ; but with respect to an interloper, this “ does not hold good, as stated in the report.” The view 30 January 1839. °f ^le sitting Judge was therefore concurred in, and costs placed upon respondents.SUDDER DEWANEE ADAWLUT. 169 No. 35. Joona Naikeen......................................Appellant, versus Baiza Baee, widow of Meera Mahate, and Dawul wullud Hukeem Mahate ....................Respondents. [Claim to recover a sum of money lent on a mortgage, with interest, or quiet possession of the mortgaged property, according to the terms of the bond, in the enjoyment of which Appellant had been interrupted by the Respondents. The Assistant Collector considered it proved, that a certain sum had been received by Appellant from the village, and that Appellant was entitled to recover only the balance of principal without interest, which had not been specified in the bond. The Collector in appeal confirmed this decision. The Sudder Dewanee Adawlut decided that Appellant had a right to the full amount with simple interest at 9 per cent, from the period of the interruption by Respondents up to the date of the decree; to be paid within one month, or that Respondents should deliver over the mortgaged property to Appellant, leaving the latter to sue for damages sustained by the Respondent’s interference.] This action was originally filed in the revenue court, G. Malcolm, Esq., before the Second Assistant Collector, on the 19th July CollectarS'StaUt 1834 by appellant, as a pauper, to recover Rupees'1,106 being principal and interest on a mortgage bond, passed to her by Maeena (deceased) on the receipt of a loan of Rupees 553, or in lieu thereof quiet possession of her share of the village of Bendwarree, according to the terms of the mortgage, in the enjoyment of which share, she (appellant) had been interrupted by the respondents, who had prevented her realizing the money arising from it. It appeared from the appellant’s statement that the Jth share of the village belonged to Maeena, who mortgaged it to appellant for Rupees 533, according to the 22 d REPRINT170 CASES DISPOSED OF BY THE 1834 terms of the mortgage bond ; that as long as Maeena Joona Naikeen, ^ve Baiza Baee, widow only a right to the balance ot principal, or Jtiupees Meera Mahate, 33-5-6, and that each party should bear their respective and Dawul wullud II u k e e m M abate. costs. In appeal by appellant, the above decree was confirm - R- Mills, Esq., i i i i-i n i -i j .i Principal Coled by the Collector; but with regard to costs, he icctor.' adjudged that as appellant was a pauper, the respondents should pay both their own and appellant’s costs. This caused a further appeal to the Sudder Dewanee Adawlut by appellant. She did not g?ive any particular grounds for appeal, but alleged generally that the case had not been properly investigated, and that the decrees passed were not equitable. The case came on first before Mr. Green hi 11, sitting as Sudder Adawlut, a single Judge. He considered appellant entitled to a decree for the full amount of the bond without interes at the least, because Chapter V. Regulation V. of 1827, provides that when no stipulation has been made for the payment of the interest, the profit shall be considered as an equivalent. He thought that appellant might perhaps have been entitled to more had she been able to show, in a satisfactory manner, that she had expended more than the receipts in the payment of the expenses to which she was liable, or had incurred on account of the mortgagee. The principle on which the Collector seemed to have thrown the costs on respondents appeared to him as unjust, as it was inconsistent with the intention of the law. The sitting Judge was of opinion that a decree should be given in favour of appellant for the principal sued for, with interest from the date when the respondents deprived her of her share, and respondents172 CASES DISPOSED OF BY THE 1834 failing to fulfil it, that appellant should be put again in joona Naikeen, possession of the share, with such damages as she _ . rs- l might be entitled to for the period during which she Baiza Baee, widow i i , 7 n . of Meera Mahate, been kept out oi possession. and Dawul wullud As this led to a reversal of the Collector’s decree, the llukeern Mahate. P , P1, , . t • i i ^ n case was rererred to a mil court, when it was decided Full Court. ’ . . J. Vyne, Esq. that respondents should pay to appellant the principal D. Greenlnli, Esq. amount of the bond, with simple interest at 9 per cent. P. W.LeGeyt, Esq. ’ . 1 . 1 irom 1 /54, the date or the interruption by respondents, up to the date of the decreee, within one month, or deliver over the mortgaged share to appellant, leaving the latter to sue for damages sustained by the respondent’s interference ; costs to be borne by respondents. No. 36. Dadjee Deorao Raj Gooroo.............................Appellant., versus Wittul Deorao Raj Gooroo (deceased) his widow Rukhma Baee.................................Respondent. [Respondent sued his brother for a particular portion of family property. The claim was resisted on the grounds that the claimant was a cripple that the family property had not been divided, and because the parties did not reside within the jurisdiction of the Court. The Moonsiff held the defence to be insufficient. The Assistant Judge decreed in opposition to the decision of the Moonsiff, on the grounds that Respondent was a cripple, and consequently excluded from inheritance. In appeal to the Judge, he reversed the Assistant Judge’s decree, as at variance with the exposition given by the law officer. The Sudder Adawlut finally dismissed the case, on other grounds, viz. that as a division of the whole property had not taken place, a particular item could not be divided; and because the parties being residents of a foreign territory, the division should take place there.] This was an action brought by respondent Wittul Deorao in the Moonsiff’s court at Poona on the 21stSUDDER DEWANEE ADAWLUT. 173 November 1835, against appellant, his elder brother, for 1835 his share of a Wurshasun allowance of Rs. 100 per an- j)ajjee Deorao Raj num. His case was in substance this,—that he and his Gooroo, brother were the sons of Deorao ; that after their father’s wittul Deorao Raj death, his elder brother assumed possession of the family Gooroo. property, and would not give him his share; that they had lived separate for o or 6 years; that he intended at some future period to sue his brother for a division of the whole property, but at present only sought to obtain the half of a Wurshasun allowance of Rs. 100 per annum, which had been granted by the former government, and continued by the British government to their ancestors, and was paid annually to his brother from the Poona treasury. The cause of action was laid'at 500 Rupees, being at the rate of 10 years’ purchase, “ Dusput.” The appellant in reply stated that respondent h&d no claim upon him ; that the suit had been designedly laid against him in Poona, where they did not reside; That the family property had not been divided, and that respondent was a Pungoo (or helpless cripple), and had not even the power to help himself to meat and drink, and was indebted to appellant for the means of living. The MoonsifF held that the defence of appellant was not sufficient, and that whether respondent was a Pungoo or not was immaterial, as the respondent had shown that the Wurshasun was derived from their common ancestor. He therefore decreed that respondent should receive annually from appellant a moiety (50 Rs.) of the Wurshasun allowance, and placed costs on the appellant. From this decision appellant appealed to the Assistant J. Langford, Esq., Judge, on the plea of his answer, and that by the Hindoo AssistaI t ^lia£e* law a cripple could not inherit property. The Assistant Judge referred the question to the Shastree, whether a Pungoo, or helpless cripple, could inherit property, inti-174 CASES DISPOSED OF BY THE 1835 mating at the same time, that the respondent could walk Dadjee Deorao Raj a l^tle, that he was married and had two children, one Gooroo, 5 years old, and the other two months. The Shastree, , J:5, -p» . in reply stated that according to the Shasters a Pun- Wittul Deorao Raj 1 J ® Gooroo. goo, or helpless cripple, was excluded from inheritance : that the term “ Pungoo” was not very clearly defined, but in his opinion a person deprived of the use of his hands or feet was a Pungoo : and that “ Nirandrya,” or such as were deprived of a sense, were excluded from a share of inheritance; that persons only deformed in a hand did not come under the term iNirandrya, though persons afflicted with an obstinate or incurable disease did ; and he did not consider that the respondent came under any of the above exceptions, and that, therefore, according to the Shasters, there was nothing to prevent his sharing in the inheritance.# The Acting Assistant Jud<>e remarked that the Silases o tree had given his opinion that a person deprived of the use of his hands or feet could not inherit property ; that in this case the person was deprived of the use of both his hands and feet, and was therefore, according to the Hindoo law, not entitled to share in the inheritance. He therefore decreed in opposition to the Moonsiff, and nonsuited the respondent. A. Bell, Esq., On an appeal to the Judge, that authority reversed the ^ucl»e* decree of the Acting Assistant Judge, as he considered it at variance with the exposition given by the Hindoolaw officer. Appellant then moved the Court of Sudder Dewanee Adawlut for the admission of a special appeal, which was * Yanynwalkya declares that “ an impotent man, an out-cast and “•his issue, one lame, a madman, an idiot, a blind man, and a person “ afflicted with an incurable disease, as well as others (similarly dis-“ qualified) must be maintained ; excluding them, however, from participation of inheritance.’' Borradaile’s translation of Vy wuhar Mur-zookher, Ghapter IV., Section VI.SUDDER DEWANEE ADAWLUT. 175 granted, and the case coming on before Mr. Giberne, as J835 sitting Judge, lie was of opinion that on other grounds the Dadjee~DeoTao Raj respondent had no claim at present to half the Wurshasun. Gooroo, “ It is,” he remarked, u granted in the name of appellant, ^yiUui Deorao Raj “ his elder brother. It is clear from respondent’s state- Gooroo. u ment in his original petition, that the property of the “ family has not been divided; if, therefore, such be the “ case, why should a solitary item, that of a Wurshasun, “ be divided ; it is contrary to the Hindoo law., as express-“ ed by the Shastree of the court? Had the family pro-“ perty been divided, it would even then have been a “ question whether a decree should be given on a grant “ by this government to an individual by name. The “ parties reside in the Sattara territory, their property is “ situated there, and the division must take place there. “ Until this is established and proved, the sitting Judge “ conceives that respondent has no claim for a share of “ the Wurshasun.” He therefore proposed to reverse the Full Court. Judge’s decree, and, consequently, under Clause 2, Sec- ^lbenie> . . , J. rvne, Esq. tion X. Regulation 1L of 1827, referred the case to a full D. Greenhil), Esq. court, who concurred in the view taken by the sitting keGeyt, Jtudge, and placed costs on respondent. No. 37. Moteechund, Goolabchund, Nanachund, Gheerdhur, and Kesor.........................Appellants, versus Kiiooshal Dulsa, Wunarsee Jeta, and Trebhownnath...............................Respondents. [Claim to Recover tlie amount of a bond, the validity of which was admitted by the respondent Khooshal, but who exhibited a deed of release given thereon by the widow of Appellants’ father. The Sudder Ameen considered the payment proved by this deed of release and nonsuited Appellants. This decision was confirmed by the Judge, anc^Appellants176 CASES DISPOSED OF BY THE appealed to the Sudder Adawlut, when it was held that the widow had no power to grant a deed of release, as by the Hindoo law two of the Appellants, who were sons of the deceased, possessed a claim on their father’s property, although it had been shown that they had lived separate from him previous to his death, The decrees of the lower Courts were therefore reversed.] This suit was filed by the three first appellants on the nath. 25^ ]$37? jn the Sudder Ameen’s court at Kaira, Syed Shekh, Sud-to oblige respondent Khooshal Dulsa to fulfil the terms der Ameen. of a bond which he had executed to the father of appel- lants. 1 he action was laid at Rupees 757. The plaint set forth that respondent Khooshal had, on the 11 tli Chytur Shood Sumbut 1881 (a.d. 1824) passed a promissory note to Jeta Jewun, the father of appellants, for the sum of Rupees 471, which he stipulated to repay by nine annual instalments, the first being due on the 2nd Chytur Shood Sumbut 1882, and the last on the 2nd Chytur Shood Sumbut 1890 ; that the instalments not having been paid according to agreement, appellant sought to recover 757 Rupees, being 471 Rupees principal, and 329 Rupees interest, less 43 Rupees, which had been paid between the 13th Phalgoon Vud Sumbut 1883, and 13th Shravun Vud Sumbut 1885. Appellants stated that their brothers Gheerdhur and Kesor (who were subsequently admitted as plaintiffs in the original suit) were joint heirs of their father, but had lived separate from him previous to his death, and previous to the passing of the bond, and had therefore no claim on the bond. Moteechund, the first appellant, said he had had possession of the bond for some time previous to his father’s death and had kept it ever since. With regard to the other respondents, they (appellants) stated that Khooshal would have repaid the money had he not been instigated by the respondents Wunarsee Jeta 1837 Moteechund, Goo-labchund, Nana-chund, Gheerdhur and Kesor, vs. Khooshal Dulsa, Wunarsee Jeta, and Trebhown-SUDDER DEWANEE ADAWLUT. 177 and Trebhownnath not to do so. Appellants therefore prayed that they might be prevented from giving such jvioieecliunr], Goo'- bad counsel. lnbchund, Naua- Appellants exhibited the bond passed by Khooshaldas clm^^eSgl,.^llul Do Isa to Jeta Jewan, dated llt.li Chytur Sood, Sum but vs. 1881. By it Khooshal Dulsa (respondent) promised to y/^na^ee^Jeta’ pay 471 Rupees, by nine instalments, as they became and Trebhown-due; and if not paid when due, the amount was to bear liallx‘ interest at 9 per cent. Further, that the amount of each instalment was to be endorsed on the bond as they were paid, otherwise the payment would not be taken into account. Respondent Khooshal alone appeared. He admitted that he had passed the bond to appellant’s father; but declared that he had repaid the money, and had received from Baee Nuvee, the widow of Jeta Jewun, a Farikhut, or deed of release. This Farikhut respondent showed. It was dated 8th Chytur Vud Sumbut 1886, from Baee Nuvee as guardian for her three children (the three first appellants) who were minors, to Khooshal Dulsa. It was to the effect that Baee Nuvee having mislaid the original bond, and being anxious to settle with respondent, had given him this Farikhut, or deed of release, for the whole sum, receiving in compensation Rupees 281, without reference to what had been paid, or was still due : thereby cancelling the bond. At this stage in the proceedings, appellants Gheerdhur dnd Kesor came forward, and stated that on the death of their father they were joint heirs with their brothers, the other appellants, to all their father’s property, and, as such, to shares in the bond ; and this having been admitted by the three first appellants, their names were added to the number of the original plaintiffs. The Sudder Ameen ha ving examined two witnesses on behalf of appellants, and five on the part of respondents; 23 d REPRINT-178 CASES DISPOSED OF BY THE 1S37 Moteeebund, Goo-labchund, Nana-chund, Gheerdhur, and Kesor, vs. Khoosbal Dulsa, Wunarsee Jeta, and Trebhown-nath. SO May 1837. E. Grant, Esq. was of opinion that the Farikhut was established, and that respondent Khooshal had paid the amount mentioned in it, and had received the release in consequence* He therefore nonsuited the appellants. Upon which they appealed to the Judge. They set forth that the bond had been written in Sum-but 1881, and instalments were due up till Sumbut 1890; that respondent admitted this, but stated that a release was written in Sumbut 1886; that in 1886 five instalments had accrued, which respondent had not been able to pay, and therefore it was not to be expected that he could pay the whole in Sumbut 1886: that appellants’ father had five sons, of whom Gheerdhur and Kesor were adults ; and in Sumbut 1886, Moteeebund (the first appellant) was also able to read and write, yet none of their names appear to the deed of release,-which, without their signatures, they contend cannot hold good. Respondent’s vakeel stated that Jeta Jeewun had two wives,—one the mother of appellants Gheerdhur and Kesor, who had been dead many years ; and the other Baee Nuvee, who was alive, and mother of the three appellants Mooteochund, Goolabchund, and Nanaeliund; and that Gheerdhur and Kesor had lived separate from their father previous to his death, which took place when his wife Baee Nuvee was living with him ; that after his death, his widow collected his debts on account of her own sons, who were minors, and on that account had received this money and given a release; and that it was admitted by Baee Nuvee’s sons that Kesor and Gheerdhur were living separate from Jeta Jeewun. The Court asked Gheerdhur whether he and Kesor had lived sepai'ate from their father Jeta, and in whose possession the bond had been. He answered that they had lived separate, and that on their father’s death Nuvee,SUDDER DEWANEE ADAWLUT. 179 fais wife, having lived with him, the bonds and books, 1837 &c. remained with her. _ ^ Moteed^ Goo- The Court therefore was of opinion that Gheenlhur labchund, Nana-and Kesor had lived separate from their father, and that C^Ua^GKesor^Ur’ Jeta Jeewun’s papers were all in Baee Nuvee’s possession, vs. and that, on that account, Baee Nuvee had received the K^ooshal Dulsa, amount of the bond apd had passed the release; so that an(j Trebhown-appellants’claim could not be held .good against respond- nat!l-jents. He therefore affirmed the decree of the Sudder 22 July 1837. Ameen, and adjudged tlie appellants to bear all costs. The special appeal to the Sudder Dewanee Adawlut was admitted on t.he 12th February 1838, and the case came on for tjuul before the 2nd Puisne Judge. G. Giberne, Esq. Appellants contended that it was a specific condition of the agreement that the payment of the instalments were to be endoi’sed upon the note, and that if this was not observed that the respondent was to forfeit the amount. That up to 1886 no instalments had been paid, with the exception of the item of 43 Rupees ; that 4 years had to run before all the instalments became due, and therefore that it was not likely that the respondent should have anticipated the payments and made good the full amount at once. Further, that the stamp on which the Farikhut was written is of two rupees value, whereas only one of one rupee value was required, by which it appeared as if the stamp had been obtained for other purposes, and therefore, that the bond was a forgery ; that their father had two wives, and that appellants were all heirs; but though it was declared that three were minors, yet Gheerdhur- and Kesor were of age, and therefore, without their consent, the money could not have been received by Baee Nuvee, who could not have passed a receipt. The sitting Judge referred the question to the Shastree of the court, who gave an opinion in favour of appellants.180 CASES DISPOSED OF BY THE 1837 Moteechund, Goo-Jabchund, Nana-chund,Gheerdhura and Kesor, vs. Khooshal Dulsn9 Wunaisee Jeta, and Trebhown-nath. Full court. J. Pvne, Esq. D. Greenhili, Esq. P. W. LeGeyt, Esq. 30 January 1839. to the intent that the two sons of Jeta Jeewun, although living separate, had a claim on their father’s property if they had not already received their shares; and that Baee Nuvee was not therefore authorized to receive the amount of the bond, or to give a release. The .sitting Judge observed that “ the bond was pecu-64 liarly drawn up ; it runs, that 4 the instalments when “ 4 paid shall be so endorsed, and in failure thereof the <£ £payment shall not be accounted/ The instalments “ were also to run on annually, from Sumlm.t 1882 to “ Sum but 1890. Now the full payment was made in “ Surabut 1886, thus anticipating the period of the in-“ stalments, a circumstance which conveys to the mind a “ shade of suspicion touching the transaction. The re-(t spondent should certainly not have paid the amount of “ the bond until satisfied that Baee Nuvee had the right “ to redeive it; and it appears that she had not; and he u must suffer for his imprudence/5 The sitting Judge therefore proposed to reverse the decrees of the lower courts, and referred the case under Clause 2, Section X0? of Regulation II. of 1827 to a full court. The Sudder Dewanee Adawlut agreed in the view taken by the sitting Judge, and decreed that the amount should be given to appellants as family property, and that respondent Khooshal Dulsa should pay the costs.;SUDDER DEWANEE ADAWLUT. 181 No. 38. Muncharam Shunkaham, and his two brothers, who are Minors...............................Appellants, versus Umba Pragjee and Bhandut Mahadeo....................Respondents. [Action brought by Appellants to establish, tlieir sole right to be employed as Kool Goors, or family priests, in Respondent Umba’s family, and that the other Respondent should not be allowed to officiate. It was decided that Appellants were the family priests, and, consequently, had the right of employment.] This action was brought by appellants in the Moon-sifTs court at Olpar on the 27th March 1835, to establish their sole right to be employed as Kool Goors# in the family of Umba Pragjee, and to obtain an injunction against the other respondent Bhandut Mahadeo, that he should not officiate as Kool Goor in Umba Pragjee’s family ; laying their damages at Rupees 30. Appellant Muncharam appeared for himself and brothers, who are minors. He stated that they were the hereditary Kool Goors in Umba Pragjee’s family, but that on the occasion of the ceremony of “ Sheernut” f when the wife of his son, Koer Bhaee, became pregnant for the first time, Umba Pragjee instead of sending for him, called in Bhandut Mahadeo to perform the ceremony, and presented him with a fee of Rs. 5, which was justly appellant’s due; and this proceeding was contrary to the Shasters and universal custom : nor was it proper * “ Kool Goor” is a family priest; he officiates only in particular families. The word is derived from “ Kool” a family or tribe, and “ Goor” a spiritual guide. f Sheemut, one of the Sanscarus, or a purifactory and sacrificial ceremony observed by women in the 4th, 6th, and 8th month of their first pregnancy. Hemut Ram, Moonsiff.18*2 CASKS DISPOSED OF BY THE 1835 that the business should be performed by any other Brah-Miincharam Shun- Tn^n* He therefore sought to recover the 5 Rs. for karam and his two “ Sheemut Survarzum,” and Rs. 25 to continue the Goor-*}r°^erS> S^P In family of Umba Pragjee, and that Bhandut Umba Pragjee Maliadeo may be restricted from again performing the tod ^adeo' Ma' business in question. Umba Pragjee in defence declared that appellants were not the hereditary Kool Goors of his family ; that appellant Muncharam had at one time been employed as his “ Ghamot*” the duties of which office a Kool Goor never performs; that the office of “ Ghamot” is not necessarily confined to any particular person, but held at the pleasure of the person employing him ; that appellant Muncharam had not given him satisfaction, and he had therefore changed him for another Ghamot, named Gooneeshunker, and had subsequently employed Bhandut (the other respondent) who has since performed the Ghamot duty ; that on all ordinary occasions the Ghamot performed the ceremonies, but on the occasion of a marriage, or funeral obsequies, he was in the habit of calling in a “ Sookul” f ; that there was no established fee of Rs. 5 for the ceremony Sheemut,and that it was not the case, as asserted by appellant, that he paid that sum to Bhandut. Bhandut, the other respondent, made answer that he had performed the business of Ghamot in Umba Prag-jee’s family, but received no fee of Rs. 5 for performing the “ Sheemut” ceremony; he received some presents from the relations who w~ere present for attentions paid to them ; but had no claim to a fee of 5 Rupees for per- * “ Ghamot” a village priest. f "Sookul” a priest of a high order, employed exclusively by Brahmins. The word is derived from the Sanscrit (sukl) white, or pure. 'SUDDER DEWANEE ADAWLUT. 183 forming the “ Sheemut” ceremony ; he did not prevent 1835 Umba Pragjee from calling in appellant Muncharam Muncharam Shun- liad he wished it, and therefore that appellant’s could karam and his two r ■, . , , . brothers, nave no claim against him. ^ Appellants quoted as a precedent in their favour a de- Umba Pragjee cree of the Sudder Dewanee Adawlut, No. 608 of 1834, ancl '^adeol4 filed by Mooljee Kaseeram and others, appellants, vs. Nagur Ramjee and Umbaram Bhekari, respondents, by which it appeared that Mooljee Kaseeram and the other appellants sought to establish their right to be employed as “ Kool Goors,” and respondents pleaded that the appellants were his “ Neath Goor” # and not his Kool Goors”; and the Sudder Dewanee Adawlut decided that it was obligatory for Nagur Ramjee to employ the appellants in performing the Goor Pudda duties in his family, and that therefore appellants were entitled to their fees, and that respondent Umbaram had no right to interfere with the duties which belonged to appellants. They also exhibited a copy of a decree passed by the Commissioner of Olpar. Vishnoo and Bhawani Shun-ker, appellants, versus Wunarse and Bhaeedass, respondents, in which the hucks were established to the plaintiffs, who claimed the fees as “Kool Goor and Ghamot ” on the occasion of a death in defendant’s family. The case was decided exparte, on the plaintiff showing that he was the Kool Goor and Ghamot in defendants’ family. Appellants next produced a copy of an opinion given by the Shastree of the Zillah court of Surat, in a former case, viz. that a Kool Goor had the right to be employed, and could not be dispossessed of his right; that it * “Neatli Goor” a caste priest.184 CASES DISPOSED OF BY THE 1835 was written in Munoo 8th, v. 388 :—“ The Jujman* who Muncliaram Shun- forsakes his Kool Goor and the Kool Goor who abandons karam and his two his Jujman (pupil) must each pay a fine.5’ brothsAppellants produced other evidence in proof of their Umba Pragjee being* the hereditary Kool Goors in the family of Umba and Bhaudut Ma- D hadeo. Pragjee. On the other hand, respondent Umba produced two certificates; one signed by 78, and the other by 40 persons of their caste, to show that it was not the custom in their village to employ a Kool Goor: that they can employ whom they like to go through the ceremonies usually performed by a Ghamot; and if the person does not give satisfaction, they are not bound to employ him again. The Moonsiff considered that by the precedents quoted by appellants it had been established that a Jujman cannot put away his Kool Goor. He was of opinion that appellants had proved by their evidence that they were the Kool Goors in the family of Umba Pragjee, and in, five or six other families; and that the ancestors of appellants had exercised the functions of their office in respondent Umba’s family for upwards of 60 years; that it had not been shown that 5 Rupees was a fixed fee for performing the ceremony Sheemut, which depended upon the circumstances of the donors, and varied from 1 to 2 Rupees. It appeared clear to him that appellants were 27 Jan. 1836, ^*e family Kool Goors, and therefore he decided that respondent Bhandut should pay to appellant 2 Rupees, and that Umba should again employ appellants in the Goor-Pudda duties of his house. He saw no cause for awarding the damages sued for, but placed costs on respondents. * Jujman, an employer of Priests at a sacrifice, the person who institutes its performance, and pays the expenses of it.—Wilson's Sanscrit DictionaryaSUDDER. DEWANEE ADAWLUT. 185 From this decision an appeal was carried by respond- 1835 ents to the Native Judge, on the grounds that appel-Munc]“^sliun, lants had not been proved to be Kool Goors, and there- karam and his two fore the award of 2 Rupees was incorrect; that the plaint brothers, should have been laid against Kore Baee, who is 35 Umba Praajee years of age, and on whose wife’s account the ceremo- and nies were performed ; that Kool Goors were not employed 5 in respondents’ caste; and that it had been shown that similar ceremonies had frequently been performed in respondents’ family by other Brahmins. The Native Judge held the same opinion as the Moon- Feroshah Dlmn-siff as to appellants’ rights, but added that Umba Njltlve Pragjee might employ whom he pleased to perform the is”April 1836. ceremonies, but it was incumbent on him to pay the fee to the appellants, as it had been shown that appellants were the family Kool Goors, and had enjoyed the office for upwards of 60 years. This decision dissatisfied both parties, who preferred separate appeals to the Judge. W. Simson, Esq., Appellants objected to the addition made by the Prin- ActiuS Jucl=c cipal Sudder Ameen, that Umba Pragjee might employ whom he liked to perform the ceremonies, stating that they were the family Kool Goors, and that no other Brahmins could perform their duties, and that this had been established by precedents. The respondents grounded their appeal on the plea of their answer in the original suit. The Judge was of opinion that the appellants were the Kool Goors of respondent Umba’s family, and that respondents’ allegation that appellant was not his Kool Goor, but his Ghamot, was groundless; for it had been clearly shown by appellants’ witnesses that he was the Kool Goor; and further that it did not appear that there was any other Goor of respondents house. 24 d REPJUNT186 GASES DISPOSED OF BY THE 1835 With regard to the appeal against the decision of the Muncharam Shun- Native Judge, that Umba Pragjee might employ any karam and his two Brahmin he pleased to perform the service, but it was brothers, necessary that he should pay the fees to appellants, the Umba Pragjee Judge remarked that he considered appellants had a and Bhandut Ma- jjgh). feegj ^ut no t0 perform the service by force in the house of any one. He consequently rejected both appeals, and confirmed the decree of the Native 14 August 1837. Judge, and adjudged costs to be borne by the appellants respectively. The parties still feeling aggrieved by the last-mentioned decision, preferred special appeals in the Sudder Dewanee Adawlut. The appellant Muncharam and the others urged that it had already been decided in the three lower courts that they were the Kool Goors, and that it was contrary to evidence and the Shasters, and prejudicial to their character, that the respondent Umba should be left free to engage the services of others, and at variance with the decree No. 608 of the Sudder Adawlut. The respondent Umba Pragjee urged that the precedents adduced, and the exposition of the Shastree, did not apply to his case. That the witnesses had not established the fact that appellants had been employed as their Kool Goors for the period of 60 years, nor had it been shown that it was the custom to pay fees. The court rejected the last-mentioned petition of Umba Pragjee, and Bhandut Mahadeo, but admitted the appeal of Muncharam and his brothers, on the grounds that the judgments given were contrary to the precedents recorded by the court. G. Giberae, Esq. The case came on for hearing before the Acting 2nd Puisne Judge. He held a different opinion from the Zillah Judge, which he conceived was contrary to the precedents of theSUDDER DEWANEE ADAWLUT. 187 Sudder Dewanee Adawlut, given in its decree by a full 1835 court, No. 608, in which case the Shastree of the court Muncharam Shun-was applied to, and from whom it appeared that the; kara^is two Kool Goor had the right of employment, and such being the law by which the parties were to be judged, it should U ^a be followed. The sitting Judge considered the fact estab-an hadeo^ lished that appellants were the Kool Goors to respondent Umba, and as the decree of the lower court must, Full Court, under these circumstances, be amended, he referred the ^ ^gg’,^11'Esq case to a full court, which concurred in his view of the p.w. LeGeyt.Esq, case, and placed costs on respondents. 30 Jan> 1839, No. 39. M ahomedkhan wullud Babookhan....................Appellant, versus Keerojee wullud Morajee.........................Respondent. {Respondent sued to remove an Attachment from a house he had purchased andlDccupied. Appellant produced a mortgage bond of a prior date to the deed of sale. It was nevertheless decided that the possession of the house by the purchaser gave him a preferable claim to the mortgagee, who had never been in possession.] Respondent sued to remove an attachment from a Madhao Rao Go- house he had purchased and occupied. vind. Principal , . i , c , , * , Sudder Ameen. The case was tiled m the Principal budder Ameen s court at Ahmednuggur on the 28th April 1834. Respondent set forth that Jamajee wd. Kannajee had sold the house to him on the 8th Poush Vud, Shuke 1753, and had passed a deed of sale to that effect; furthermore188 CASES DISPOSED OF BY THE 1334 that he was in possession of the house when appellant had Mnhomedkhan ^ attached, as being still the property of Tannajee, in wd. Babookhan, execution of a decree, which he (appellant) had obtained Keerojee wd against Mahomedjee, the son of Tannajee; he therefore Morajee. sued to have the attachment removed. Appellant answered that the house in question had been previously mortgaged to him by Tannajee and his son, and a mortgage bond passed to him, and that he held a decree against Tannajee, given in consequence of the property having been mortgaged to him, and had attached the house in execution of the said decree. Respondent exhibited the deed of sale passed to him by Tannajee wd. Kannajee, dated 8th Poush Vud 1753, (a.d. 25th January 1832). Appellant produced the mortgage bond, which is*dated 8th Bhadrapud Vud 1752, or a.d. 1830. Both of these documents were proved, and Tannajee wd. Kannajee, whose evidence was taken, admitted that he had sold the house to Keerojee wd. Morajee (respond-ent) which he had previously given in mortgage to appellant; he said he had done so being in want of money. The Principal Sudder Arneen held that the mortgage bond being of a prior date to the deed of sale was good; 5 November 1835. he therefore nonsuited respondent, who appealed to the C. Sims,Esq,. Assistant Judge. This authority confirmed the decree passed by the Principal Sudder Ameen, being of opinion that Tannajee had no power to dispose of the house without first redeeming the mortgage, and that respondent had his remedy in an action against Tannajee. 13 xiutt, Esq.. Respondent then appealed to the Judge, who remarked that it did not appear from the proceedings of the lower courts, in whose possession the house had been from the dateSUDDER DEWANEE ADAWLUT. 189 on wliich. respondent purchased it, and therefore returned 1834 the case to the Principal Sudder Ameen, in order that Mahomedkhan that point might be ascertained. wd. Babookhan, The Principal Sudder Ameen forwarded his further j£eeroje’e W(j# proceedings, from which it appeared that the house had Morajee. been in possession of respondent from the time he had purchased it according to the terms of the deed of sale, and that appellant’s vakeel had admitted that the house bad never been taken possession of by appellant. The Judge held that although the mortgage bond was of a prior date, yet that it was not in conformity with the regulations or the Shasters, inasmuch as the house was not taken possession of by the mortgagee ; the deed of sale was proved to have been properly drawn out, and the seller, Tannajee, admits having sold the house* The Judge therefore considered respondent’s claim to be good, and reversed the decrees of the lower courts, and ordered the attachment to be removed, appellant paying all costs. Appellant prayed the admission of a special appeal against this decision, which was granted, as the Judge G. Giberne, Esq. appeared to have reversed his Assistant’s decree on insufficient grounds. The, sitting Judge considered that as the mortgage bond was executed in a.d. 1830, and the deed of sale not until a.d. 1832, there was no doubt but that the mortgagee had a claim to the property, whether in possession or not. He therefore proposed to reverse the decree of the Acting Zillah Judge, and confirm that of the Assistant Judge, and under Cl. 2nd, of Sec. X., Reg. II. of 1827, referred the case to a full court, who having consulted j. pyne) Esq. the law officer, the following decision was recorded :— D. Greenhill, Esq. “ That as this case is governed by the Mahomedan law, W.LeGeyt,Esq. “ the possession of the house by the purchaser gives him “ a preferable claim to the mortgagee, who has not been190 CASES DISPOSED OF BY THE 1834 Mahomed ldian wd. Babookhan, vs. Keerojee wd. Morajee. 7 July 1837. NatayenAtmaram, Sudder Ameen. “ put in possession, and therefore the decree of the Act-“ ing Judge is hereby modified to the above effect; costs “ upon appellant.” This question was proposed to the Quazee :— “ A person mortgages his house, but subsequently sells it to another t( person, to whom he gave immediate possession, and the mortgagee “ never had possession ; in such a case, according to the Mahomedan “ law, which party has a preferable claim to the property V* The Quazee replied that according to the Futavee Alumgerrie, and other authorities, the person who had purchased the house, had a right to it, for it had been made over to him, and the mortgagee never had possession, until which takes place the agreement is not binding. Vide trans. Hedaya, book XLVIII. cap. I., and cap. II. of the same book. No. 40. Weroopakshapa Ayah bin Appa Narroo Ayah.......................................Appellant, versus Bheemana wullud Veerapa.......................Respondent. [Respondent sued on notes for value of grain delivered, with interest also in grain. One note was for 15 maunds and the other for 5 maunds, with 50 per cent, interest, to be repaid at the season of harvest. The grain was valued at 1 Rupee a maund. The defence was that the note for 15 maunds was not valid, not being on stamped paper, as with interest the amount came to above the sum not requiring a stamp. It was held by the Sudder Adawlut that interest could not be included as part of principal, and therefore that the note did not require a stamp.] This cause was originally brought by respondent in the ■ Sudder Ameen’s court at Sholapoor, to recover from appellant a balance due on two promissory notes, passed by him under the following circumstances:— The first dated 5th November 1836 for 15 maunds ofSUDDER DEWANEE ADAWLUT. 191 Joowaree, to be returned at the season of harvest, with 1836 an addition of 7| maunds as interest, the second dated Weroopakshapa 25th November 1836 for 5 maunds of Joowaree with Ayah bin Appa 2\ maunds as interest; making a total of 1 khandy and karroo Ayah, a-half; of which 15§ maunds had been repaid, leaving a Bheemana fwullud balance of 10| maunds, at 1 Rupee a maund, equal to Veerapa. 10 J Rupees, and deducting 13 annas exchange, a balance of Rupees 9-7-0, the sum sued for. Appellant in his answer remarked that the note bearing date the 5th November 1836 was for 22| maunds, valued by respondent at Rupees 221; and was therefore invalid, as it should have been written on stamped paper, according to Regulation XVIII., Sec. X., Clause 1st, and that as he had repaid respondent 22\ maunds, he had a counter-claim against him for 15 maunds in excess of what was due on the note dated 25th November 1836, which was for 7i maunds. Respondent produced the two bonds, and two witnesses to prove that he had sold his Joowaree at a maund and a-half per rupee. Appellant also called witnesses to prove the fact of his having paid back the 22§ maunds of Joowaree to f%-spondent. The Sudder Ameen, who tried the case originally, was of opinion that the note dated 15th November 1836 did not require a stamp, as it appeared from the evidence of the witnesses called by respondent that he was disposing of his grain at the rate of 1|- maund per rupee, in consequence of its having been damaged by damp ; that according to this rate, the value of the grain was reduced to 15 Rupees, which brought the note within the sum that did not require a stamp ; that with regard to the evidence of the witnesses on the part of appellant, to establish the fact of his having paid back twenty-two and a-half192 CASES DISPOSED OF BY THE 1836 maunds, he could not place confidence in their credibility, Weroopaltshapa consequence of one being a relation, and all in the Ayah bin Appa service of appellant, and because the evidence of two of Narroo Ayah, tfa t variance> VS. Bheemana wullud The Sudder Ameen therefore awarded the sum sued Veerapa. fQr reSp0nc|ent. C^H^P'tt^Fsq decision was confirmed in appeal by the Senior 7 November 1837. Assistant Judge, and a further appeal was made to the Judge, who objected to receive a special appeal. This case being brought before the Sudder . Dewanee Adawlut, a special appeal was admitted on the grounds that the Sudder Ameen had rejected the evidence of appellant’s witnesses, as to the repayment of the grain to plaintiff, on insufficient grounds. The case came on for J. Pyne, Esq. hearing first before the Acting 3rd Judge. He gave his opinion as follows :— “ The reasoning by which the Sudder Ameen pro-“ nounces the note to be for a sum under 16 Rupees, “ cannot, I think, be allowed weight against the value “ which the respondent himself set upon his grain, and “ according to which value he brings his action for its “ recovery. I am therefore of opinion that the note “ No. 9 (of 5th November 1836) is, under the provisions “ of Section X., Clause 1st, of Regulation XVIII., of 1827, “ invalid, and as the delivery of the grain is not proved “ by other witnesses, No. 15, deposing that the grain was “ not delivered in his presence, and No. 16 vitiating his “ evidence, by stating that 5 maunds were delivered first, “ and three days after, 15 maunds ; whereas an inspec-“ tion of the notes shows that 15 maunds were delivered “ on the 5th of November, and 5 maunds on the 26th of “ the same month. I should reject the note. The ap-“ pellant admits that he paid back twenty-two and a-“ half maunds of grain to respondent, which fully proves “ that he received more than is entered in the note No. 10SUDDER DEWANEE ADAWLUT. 193 (t (of ‘25th of November 1836 ); but as the respond- 1836 fl ent has failed to prove the quantity he gave to the WeroopaUshapa “ appellant, the latter must be, I think, entitled to the Ayah bin App» ftarroo Ayah, benefit ot tins miscbsince. “ As the respondent’s claim is reduced to the contents Cheemana^wnllu “ of note No, 10, and as he admits that he has received “ 15§ maunds from the appellant, 1 can see no course but to non-suit him, though I do it under a persuasion “ that he has a claim against the appellant, but which ^ “ for the reasons ’above recorded, 1 fear cannot be “ allowed.” ' The case was consequently referred to a full court, when the 4th Judge recorded the following minute :— Greenhili, Es< “ The respondent sued on notes for value of grain de-“ livered, with the interest also in grain ; one note is for “15 maunds with 50 per cent, interest, to be paid in a “ certain time ; the other is for 5 maunds ; of this quan-“ tity respondent admits having received 16 maunds. “ There is no reason to doubt the genuineness of the “ notes. There is no sum of money specified, and re-“ spondent sued at the value of a rupee per maund, “ which would bring it within 15 Rupees, for wh$h “ amount no stamp is required. There may be a doubt “ whether as the interest in grain is fixed and specified, “ the money value of the interest should be included as “ part of the principal. Let us instance a money note “ for 100 Rupees, at 5 per cent, to be paid at the end of “ one year, making in all Rupees 105, If that required “ a stamp for Rupees 105, then the present required a “ stamp valued for the whole amount of grain bargained “ for ; but if not in the one, then not in the other, “ A note for Rupees 100, with interest at 5 per cent. “ to be paid at the end of a year, would clearly only re-“ quire a stamp for Rupees 100, and it would, in fact, be “ the same as the above example, though different in 25 d REPRINT194 CASES DISPOSED OF BY THE 1836 Weroopakshapa Ayah bin Appa Narroo Ayah, vs. Blieemana wullud Yeerapa. J. Pyne, Esq. “ words. I would give it the most liberal construction, “ and would first hold the note to be for 15 rnaunds, at “ one rupee per maund (for the claimant may value it “ as low as he pleases,) and award him the balance as “ done by the lower courts; but if it be decided that a “ stamp was necessary for the whole sums, I still think him “ damages. Balumbhut bin Gopeenathbhut, and Ababhut bin Damodliui'bhut. “ Costs on respondents.” No. 43. Boo Murium, widow of Humeed Joomah and Khadur Abajee, and Anajee Joo-mar ............................................Appellants, versus Peermud wullud Mahomud .........................Respondent. [Suit brought by Respondent to recover, by right of pre-emption, a piece of ground adjoining his house, which Appellants had sold to another. Respondent’s claim was dismissed in the Sudder Adawlut, because he might have had cognizance of the sale of the ground, but did not prefer his claim to it for a considerable time, which, by the Mahomedan law, he should have brought forward within one month.] This was an action brought by respondent in the MoonsifFs court at Ahrnedabad, on 21st November 1837, against appellants, to recover a piece of ground adjoining his house, to which, by right of neighbourhood, he claimed a priority of right to become purchaser by the Mahomedan law, but which appellants had sold to another. The cause of action was laid at Rupees 30. Respondent stated in his plaint that appellants had agreed to let him have the piece of ground for Rupees 25, but had subsequently, without consulting him, sold it to one Bhadur Mahomud, who had come to the place with the Quazee of the village, and had made out a plan of 26 d RETRINT202 CASES DISPOSED OF BV THE 1837 the ground. Respondent was from home, and did no Boo Mumum, wi- ^ear t^lls f°r some days after, when he went to the dow of Hum meed Qnazee and explained to him that he had a prior claim Jdur Abajee, oncT to PulcI‘ase tiies ground, and begged that he, the Quazee, Anajee Joomar, would not make out a. deed of sale for Bhadur Ma- ■n e?‘ n , hornud. He further stated that he wras ready to Jreermud wullud # Mahomud. pay 27 Rupees, the amount which appellants were to have received from Bhadur Mahomud, and prayed that the deed of sale might be cancelled, and the ground made over to him. Appellant Boo Murium, in answer, denied respondent’s claim. She stated that she and Anajee Joomar had inherited the ground and jointly agreed to sell it, but that respondent had sued her alone, and in his plaint had written no date. That his petition was therefore irregular, and not to be acted upon. She stated that about 15 months ago, she wished to dispose of the ground, and respondent offered her J 5 or 17 Rupees, and said he would not give more. That she therefore sold the ground a year ago to Bhadur for 30 Rupees, and was paid the money. That respondent knew this at the time, and should then have complained. That the front door of the respondent’s house does not communicate with the ground in question; a window only looks out into it, and therefore respondent had no claim by right of neighbourhood. The other appellant, Bhadur, urged that he had purchased the ground a year ago and had given 30 Rupees. That respondent knew of the transaction, and had no claim on the ground. It appears that the plaint was originally laid against Boo Murium alone as owner of the ground, and Bhadur Mahomud as purchaser; and that the name of Anajee Joomar was afterwards added, on an application being made by respondent, that he might be included among the original defendants.SUDDER DEWANEE ADAWLUT. 203 The Moonsiff was of opinion that respondent had not 1837 established his right to become purchaser of the ground, $00 Murium, wi-but on the contrary it appeared clear from the evidence dow of Ilumeed of appellants’ witnesses that respondent had offered 16 ^dur'^bajep and*' or 17 Rupees for the piece of ground, and would not Anajee Joomar. give more, which sum had been declined by appellants, peerlni7d*wullud who were therefore at liberty to sell the land for a Mahomud. higher sum, which they had done ; that it was clear, that respondent had been fully aware of the sale of the property at the time, but had not offered a larger sum, and did not bring his action for a year afterwards. He therefore threw out the respondent’s claim, and con- 10 January 1838. demned him to bear the costs. Respondent appealed to the Judge, who reversed the 6^Marchn\83y decree of the Moonsiff. He considered that respondent’s claim was good, as it appeared from the evidence that he had filed his suit within the year from the time when first the question of sale arose, and again, that respondent was not present when the land was sold, so that it could not have been known how much he would have given for the land; that although he had said he would not give more than 17 Rupees at one time, yet when another person offered 30 Rupees he should first have been asked if he would give more; that this did not appear to him to have been done, nor did it in any way appear that respondent had resigned his right. The Judge therefore for these reasons reversed the decree of the Moonsiff, and decreed that respondent should give appellants 30 Rupees the value of the land, and receive possession of it, and that appellants should bear all costs in both courts. Appellants having moved the court of Sudder Dewanee Adawlut for the admission of a special appeal, the court admitted it on account of the doubts which existed as to the last decree being in conformity with the law of the parties.204 CASES DISPOSED OF BY THE 1837 The case came on for hearing first before the Acting Boo Murium. wi_ 2nd Puisne Judge, who was of opinion that “ respond-dow of Ilumeed “ ent had full notice of the intention of the appellants ^dur^Ai'ajee! U se^ ^le ground, —his offer of 15 and 17 Rupees Anajee Joomar, “ proved it; and from it, it would appear that he had Peer mud wullud U declined giving more. Appellants therefore were fully Mahomud. u justified in selling the ground for more without asking G. Giberne, Esq. “ respondent again; which opinion the Quazee of the 7 Nov. 1838. “ Court confirms in his reply * to a reference made to “ him on this subject; showing also that the suit “ should have been brought within one month from the cause of action.” The sitting Judge proposed therefore to reverse the the Acting Judge’s decree, and confirm the sale already made, and under Section X. of Regulation II. of 1827 Full Court. referred the case to a full court. J. Pvne, Esq. It was finally decided, that “ as the respondent might P. W.TeGeytfS(1* “ have had cognizance of the sale of the ground, and did Esq. “ not prefer his claim till a considerable time afterwards, ' Febluar^ “ his claim is thrown out by the Mahomedan law, and “ that the decree of the Acting Judge, under date 16th “ March 1838, shall be reversed ; respondent bearing “ all costs.” * The Quazee answered, “ tliat if the neighbour declined giving €t more than 17 Rupees for the ground, and was aware that it had been sold for 30 Rupees and delayed making his claim for it for so long a u period, he had forfeited his prior claim to become purchaser by right u of neighbourhood, the ground having become the property of another. “ That if a neighbour declines to purchase in such a case, or delays to “ bring an action to recover the ground, after he has heard it has been “ sold, he forfeits his right. That he should, on hearing of the sale, “ have filed a suit within one month against the vendor, but if he “ delays beyond that period, his claim is forfeited.” This opinion is taken from the “ Fatavee Alemgerrie” and “ Jamoy llarnvoy.”SUDDER DEWANEE ADAWLUT. 205 No. 44. Special Appeal, No. 1315. HurjEEfbN Jadow and Lalla Jadow.....................Appellants, versus Ramshunkur Rajaram.............................. . Respondent. Special Appeal No. 1316. Above Respondent as Appellant. vei'sus Above Appellants as Respondents. [Claim for possession of a piece of ground on which Respondent Ramshun-kur Rajaram had erected a building. The Moonsiff was satisfied that a portion of the ground had been usurped, and decreed in favour of the claimants, giving Respondent, however, the option either to restore the ground, or pay Rs. 50, us it had appeared that claimants had delayed bringing their action till after the Respondent had laid out a large sum of money on it. The Sudder Adawlut did not agree in this view, but nonsuited the claimants for the ground, as it had not been shown that the person who sold the ground to them had any right to it.] Tlieo riginal suit, whence arose these cross appeals, E. C. Watkins, was instituted by Hurjeevun Jadow and Lalla Jadow in Moonsiff. the Moonsiff s court, Zillah Ahmedabad, on the 3rd June 1837, to recover possession of a piece of ground belonging to them, on which the respondent Ramshunker Rajaram had erected a building. # They stated that they had purchased the ground which adjoined respondent’s house from Bora Abdool Hu-meed, on the 27th Saban 1249 (a.d. 1833), but that during their absence from the village, respondent had commenced the building, which extended over a portion of their ground, measuring 27 guz by 3J guz on the south side, and on the eastern side a site for a room 10 guz by 4206 CASES DISPOSED OF BY THE 1837 broad; they required that the building should be re- Hnrjeevun Jadow Moved and the ground restored to them, laying their and Lalla Jadow, damages at Rupees 200. Ramshunkur Ram sh unker Raj a ram made answer that the whole llajaram. of the land covered by the building was his; that he had raised the new walls on the old foundation ; that appellants had no claim to the ground ; and that they should have asserted their rit>ht to it at the time the building 5? O was commenced, instead of waiting till he (respondent) had expended Rupees 2,000 on it. Appellants first exhibited the Quazee Khut, or deed of sale, dated 27th Saban 1249, on which a plan of the ground in dispute is drawn out at the foot, according to which Abdool Humaed conveyed over for the sum of* G4 Rupees to appellants two bits of ground situated in the town, measuring together 172 square guz. This deed is signed by the Quazee of the town, and attested by two witnesses. Appellants then called witneses to prove that they were absent from the village at the time the building was commenced. Respondent called four witnesses to prove that no obstacle had been made by appellants at the time the building was going on. The parties separately preferred questions to the Quazee of the court. In his answers to appellants he stated that at the time of preparing a deed of sale it was customary to measure the ground, and either mention the length and breadth in detail, or merely state the aggregate number of square guz. That it was usual to make inquiries of the neighbours regarding the right of the vendor previous to measuring the ground (viz, the ground in dispute). In reply to the respondent he said “ That if the owner of the adjoining ground happened to be at home, heSUDDER DEWANEE ADAWLUT. 207 would be called upon to be present; otherwise any two 1837 other persons would be asked to attend at the time of the Hurjeevun "jadow inquiry and measurement; that the absence of the neigh- and'Lalia Jadow, bour could not invalidate the claim of the purchaser, and T> f5* , 1 < ’ Kamshunkur that it was not absolutely necessary that the neighbour llajaiatn. should be a witness to a deed of sale. Respondent next exhibited the title deed for the ground on which he was building. It showed that he had purchased a piece of ground from Abdool Bukkur for Rs. 40 ; but the dimensions of the ground were not noticed. The Moonsiff considered that the respondent’s witnesses had not proved his right to build on the ground, and as the title deed exhibited by him did not specify the extent of his ground, it could not be acted upon. That although appellants’ witnesses did not clearly establish their claim to the land, }’et he was satisfied with the validity of the Quazee Khut, by which it appeared that there were two bits of ground conveyed over to appellants, measuring respectively 13 guz by 10, and 14 guz by 3, total 17*2 guz; that by the present measurement, there were only 103f guz, and therefore that 68| guz had been taken by respondent. He, however, hesitated to order the land to be given over, because it appeared that appellants did not lay claim till after the respondent had spent a large sum of money on the building; but decreed that if respondent did not give over the land to the appellants, he wras to pay 50 Rupees, and directed that respondent should pay the costs. Against this decision both parlies appealed, appellants in No. 1315 that the ground might be restored to them, and appellant in No. 1316 that the decree of the Moonsiff might be entirely reversed. The Assistant Judge, before whom the case came on, ^ e. Frere Esq was of opinion that appellants in No. 1315 had not Assist. Judge, established their claim ; he entertained doubts of the 28 Sept. 1837.208 CASES DISPOSED OF BY THE 1837 Hurjeevun Jadow and Lalla Jadow, vs. Ramshunkur Rajaram. J. G. Lumsden, Esq., Actg. Judge. 26 Dec. 1837. validity of the Quazee Khut, as it appeared in the fifth line, where the extent of the land is entered, that the figures had been erased and clearly to have been re-written. Appellant’s vukeel argued that the extent of the land was again entered in the plan at the foot of the Khut, but the Assistant Judge also had doubts of it; for it is drawn upon a piece of unstamped paper affixed to the bottom of the Quazee Khut, which is on stamped paper, and he thought it likely that it might have been added in order to clear the alteration which had been made in the figures, with regard to the number of guz, and to this paper which has been affixed there is no signature of the Quazee or the vendor. The Assistant Judge observed that it had not been shown how Abdool Humeed had authority to sell the ground. It further appeared that the Quazee in a former case had given his opinion that it w7as necessary for the neighbour to attest the deed of sale ; and in this case he had given his opinion, that if the neighbour did not attest the bond, the claim of the purchaser would not be invalidated. The Assistant Judge for the above reasons decided that appellants in case No. 1315 had not established their claim, and reversed the decree given by the Moon si ff. This produced an appeal to the Judge from appellants in case No. 1315 (the original plaintiffs). The Judge having taken the evidence of the Quazee respecting the alterations which had been made in the deed of sale was satisfied that no fraudulent alteration had been effected, but that it had arisen out of a mistake having been detected in the entry of the aggregate quantity of ground by the Quazee’s carcoon, and that the alteration was made by the Quazee himself. The Judge therefore approved of the decree given by the Moonsiff. It appeared to him that the respondent had erected aSUDDER DEWANEE ADAWLUT, 209 building on the ground in dispute, and had not proved 1837 in any way that the hind was formerly in his possession, Hurjeevun Jadow neither had he produced any documents to prove the Lalla Jadow, said ground to be his ; whereas appellants have shown Ramshunkur that they had purchased the ground on a Quazee Khut Rajarain. from the person in whose possession it was. The Judge therefore wTas of opinion that the deed of sale should be received as a valid document, and accordingly decided that respondent should abide by the terms of the Moon-sifFs decree, and reversed the decision of the Assistant Judge, dated the 28th September 1837, adjudging the respondent to bear all costs. Both parties prayed the admission of special appeals in the Sudder Dewanee Adawlut, which were admitted. Appellants in No. 1315 that their ground might be restored to them, instead of an option being left with respondent to compound by the payment of Ks. 50, and appellant in the other case that the decree of the Judge might be reversed in toto. The case came on before the Acting 3rd Judge. J- Pyne, Esq. 14 "’Vov 1 He submitted a question to the Quazee of the court, 1 * ' whether by the Mahomedan law it is required that ground appropriated by another should be restored, or its value in money, after buildings had been erected upon it, supposing the owner of the ground was absent. It was answered that according to Mahomedan law the ground itself must be restored if the proprietor w ishes it, and not its value; and if a building has been erected or trees planted, it is necessary that they should be removed without reference to the amount expended, unless they were put there by permission of the vendor,* * Note.—“ If a person usurp land and plant trees, or erect a building upon it, he must in that case be directed to remove the trees and clear the land, and to restore it to the proprietor ; because the prophet 27 d REPRINT210 CASES DISPOSED OF BY THE The sitting Judge considered that the authenticity of Hurjeevun Jadow ^ie deed of sale had been established by the statement, of aud Lalla Jadow, the Quazee of Ahmedabad, which the Judge had deemed VS, , Hamshunkur satisfactory ; and that there appeared no reason to doubt Ilajaram. the correctness of the measurement of the land made by the Moonsiff himself, which showed that Ramsliunkur Rajaram had included within his premises 68^ guz of ground belonging to Hurjeevun Jadow and Lalla Jadow. The witnesses for appellants Hurjeevun Jadow and Lalla Jadow deposing that they were absent at the time the building was commenced upon their ground, and the exposition of the law being that the ground itself must be restored, the sitting Judge proposed to amend the decree of the Judge to the extent of ordering that the ground be given up instead of an option being left to pay Rupees 50. J. Pyne, Esq. On the case coining on before a full court, it was de- W that the decree passed by the Judge under date 8 February 1839. 26th November should be reversed, on the ground that it had not been shown that Abdool Humeed, the person who sold the ground originally to appellants, had any title to the land ; and that costs should be borne by Hurjeevun Jadow and Lalla Jadow. has said “there is no right over the seed of the oppressor” (alluding to the planting of trees), and also because the property of the proprietor still exists as it did before, since the land has not been destroyed, nor has the usurper become proprietor, inasmuch as he cannot become the proprietor but by some one of the causes which establish property, of which none here exist.” “ If, however, the removal of the trees or the building be injurious to the land, the proprietor of the land has in that case the option of paying to the proprietor of the trees or building a compensation equal to the value they would bear when removed from the ground, and thus possessing himself of them, because in this there is an advantage to both, and the injury to both is obviated,”— Trans, of Hedaya, Book XXXVII. vol. Ill, page 534.SUDDER DEWANEE ADAWLUT. 211 No. 45. Pandoorung Padya bin Sudasew Padya. .Appellant, versus Narroo Padya bin Shunicur Padya. .. .Respondent. [Claim by Respondent to recover possession of a bouse built by him on land which had been bestowed on him by a writing by the Enamdar, in possession of which he found Appellant on his return to the village, after 16 years’ absence. Appellant alleged that the writing was false and irregular; and that the house had come into his possession in the regular manner as Khote, on Respondent quitting the village. The Sudder Ameen awarded only the value of the materials of the house, as Appellant had admitted that Respondent built it; but considered the grant invalid. The Assistant Judge reversed this decision, being of opinion that the wrriting was a forgery. The case w7as finally dismflsed in the Sudder Adawlut, on the ground that the document was illegal according to the opinion of the Shastree, and because the materials placed on the land by Respondent had long ceased to exist.] The original suit was brought by the respondent in the Succnram Chun-Sudder Ameen’s court at Rutnagherrie, on the 24th of dur»SudderAmeen. December 1836, to recover possession of a house, which he stated was built by himself on land which had been bestowed on him and his heirs for ever by Ramchunder Padya, the elder brother of appellant, who had given him a writing or deed, dated Shuk 1741, to that effect; which house, he (respondent) entrusting to Maneck Bhut Supereh, together with his furniture, &c. went to Benares, and returning some 15 or 16 years afterwards, he was informed that appellant had obtained possession of the house, and on his refusing to give it up this suit was filed. Appellant, as defendant, denied the claim, and objected to the suit as irregular, alleging that respondent212 CASES DISPOSED OF BY THE 1836 should have sued for the ground at the rate of 10 years’ PnndooningPadva Purc^ase» that the writing was false, and had evidently bin Siuiasew been altered; that Ramchunder’s signature was not to i/* d 'Is]n’ the document; that it was the usage of the country for Nan-oo Padya bin all houses of persons leaving the place for any length of fchuakui Padya. ^lme to revert to the Khote (appellant is the Khote) ; and that he had offered to pay respondent the amount of any outlay he would swear to in the manner pointed out. The deed of gift is dated 11th Bhadrapud Shood Shuk 1741 from Ramchunder Padya, Khote and Enamdar of the village of Golewullee, to Narroo Padya. By this document, Ramchunder, after entering into the reasons which induced him to do so, bestows the piece of ground in question upon respondent for the use of himself and his heirs for ever, to build a house on and make a gar-deji, &c., and promising that he should never be disturbed in possession. It is signed by Wasdeo Padya, and attested by three witnesses. Wasdeo Padya deposed that the deed of gift was written by him, by desire of Ramchunder Padya his father, w’ho inscribed at the top of the paper, according to the custom of the family, the words 64 Pandoorung Sirun.” He stated that it was true that his father had given the land to respondent in Shuk 1741, who the same year built a house on the ground and lived in it a few months; after which he went to Benares on a pilgrimage, leaving Maneck Bhut Supereh in charge of his house. Several other witnesses were examined by the Sudder Ameen, and in the course of the investigation, respondent stated that he had been in possession of the house about JO months, when he set out on his pilgrimage; and that Wasdeo Padya, the son of the donor, had obtained from him a portion of the ground, which he has held in cultivation ever since.SUDDEH DEWANEE ADAWLUT. 213 Appellant admitted that he had heard that respondent 1836 had built the house, but said that it had become in a ruin- pand00run£Padya ous state, and that he had renewed it. This the Sud- binSudasew der Ameen conceived to be in favour of the writing, which he considered proved by two witnesses ; but not- Narroo Padva bin withstanding he was of opinion that neither thegroundnor Shunkur ladya, the house should be given to respondent, for the following reason, viz. that respondent should have laid his damages at 10 years’purchase, and he has only sued appellant, whereas others were enjoying the land ; and the land was in part arable, as appeared by respondent’s own statement, on which account the suit should not have come into the Adawlut, That it appeared to him evident that the date of the bond had been altered from the 13th to the 11th Bhadrapud Shood, to avoid the stamped paper regulation, which commenced on the 12th of that month; that according to Regulation XV., Sec. XX. of 1827, an enamder was not competent to alienate any part of his enam, and that as there were other sharers of the wuttun, Ramchunder Padya could not alone give away the ground. Under these circumstances, the Sudder Ameen decided that the house and ground could not be given to respondent, but he thought him entitled to compensation for the value of the old house, as appellant had admitted that respondent had built it. An award to this effect was 29 May 1837. passed, yet respondent was not satisfied ; and in an appeal to the Acting Senior Assistant Judge, claimed to have possession of the property. The Senior Assistant Judge was clearly of opinion H. Brown, Esq., that the deed of gift was a forgery, and had no faith Acting S As-p . n • Bistant Judge, in the evidence oi the witnesses, one oi whom w^as interested. He therefore nonsuited respondent, and fined him, 31 July 1837. under Sec. LIU. of Regulation VI. of 1827 for bringing a vexatious complaint, upon which respondent preferred a second appeal to the Judge’s court.214 CASES DISPOSED OF BY THE 1836 The Judge considered that it was not necessary to file PandoorunirPavdaa su^ ^or ^ times the amount, as the ground was bin Sudasevv granted merely for the erection of a house, which con-tinuing in the same posture during the life of the donor, Narroo Padya.bin reverts after his death to the heir, who would be entitled Snuiikur 1 ad) a. ^ ^ p]easecj • an(| that it was not neces- ' JutKe’ ^'* sary to nonsuit respondent because he had not included in 11 April 1837. his action Wasdo Padya, who held possession of a portion of the land claimed, for he might subsequently sue him in the Collector’s court. The Judge did not attach any weight to the doubts expressed by the Sudder Ameen and Senior Assistant Judge in regard to the deed of gift, which he considerd proved from the evidence of the writer. For these reasons the Judge reversed the decrees of the lower courts, and remitted the fine. Whereupon appellant preferred an application for the admission of a special appeal in the Sudder Adawlut, maintaining that the value of the land sued for should be 10 times the amount; that Ramehundur was not the only sharer, and could therefore not give away the land by himself; that the bond was false, and the evidence of the witness Wasdeo false ; and that the land in question was arable. The appeal was admitted on the grounds of the conflicting opinions shown in the three courts through which the case had passed ; and came on first for D. Greenhill, Esq., hearing before a single Judge. f^Dec ^l^0 Greenhill remarked that it was admitted by re- spondent that the writing was prepared by Ramchunder’s youngest son ; that Ramchunder, the grantor, wrote at the top u Pandoorung Sirun,” the usual and only attesta-toin of the family ; and that the eldest son did not witness the grant, which circumstance the Shastree of the court, on being verbally consulted, declared constituted the grant not binding. That appellant had admitted thatSUDDER DEWANEE ADAWLUT. 215 therespondenthad built the house, but thathehad renewed 1*36 it in consequence of its having become in a ruinous state, pandoonin< FVlya The sitting Judge therefore, under the opinion of the bin Sudasew Sudder Arneen, that the date of the writing had been fraudulently altered, under the suspicion at tached in Narroo P;idva bin other respects to the writing, together with the illegality ^unkiu *atba« of the same in the opinion of the Shastree, and on the opinion of the Zillah Judge himself, that the appellant was entitled as one of the Enamdars to charge rent although the property had been given unconditionally; and it appearing that any materials broughtby the respondent had long ceased to be of value, proposed to reverse the decree of the Zillah Judge, excepting so much as remitted the fine. On being referred to a full court under Sec. X. of Reg. ^ Jail Court. II. of the 1827, the view taken by the sitting Judge was ^ Gree’nhni, Esq. concurred in, and costs placed upon respondent. P. W.LeGeyt,Esq. 8 February 1839. No. 46. Dewakur Josee bin Bhutt Josee and Bap- poo Venaik Goreh .............................Appellants, versus Nauoo Keshoo Gorijh. .............................Respondent, [Claim to recover a third share of an hereditary house which Respondent asserted had been unlawfully mortgaged to appellant Dewakur by the son of his elder brother, deceased; Appellant pleaded the validity of the mortgage bond and 16 years’ possession. The case was dismissed by the Principal Sudder Ameen, and his decision confirmed in appeal to the Assistant Judge. On a further appeal to the Judge that authority reversed the decision of the lower courts, as he considered the216 CASES DISPOSED OF BY THE 1836 mortgage bond invalid. The Sudder Dewanee Adawlut admitted a —— ^ special appeal, and gave judgment in favour of appellants, on the Dewakui Josee bin grounds that the bond was good, and that by Hindoo law one member Bhutt Jo«ee and ° J Bappoo Venaik a fam% cannot sue to recover the share of an undivided estate.] Goreh, This was an action instituted by respondent in the Prin-^Gordif100 cl*Pa' Sudder Ameen’s court at Poona on the 1st of No-Moro Trimbuck vember 1836, to recover a third share of an hereditary Principal Sudder house which he asserted had been unlawfully mortgaged Ameen* to appellant, Dewakur Josee, by the representative of his elder brother deceased, in whose name it had stood. He stated that the house had been in possession of his family for an hundred years, and was registered in the Government accounts up to the year 1750 (a.d. 1828) as belonging to his father, and subsequently had been set down in the name of his elder brother Suddaseo; that he and Suddaseo, and Moropunt their younger brother, had equal shares in the house, the middle share being his, respondent’s ; that some time after this, on his desiring to repair his share of the house, he found it in the occupation of Bappoo Venaik, who refused to move out, on the plea that he held it of Dewakur Josee, who stated that the same had been mortgaged to him by Luxmun Suddaseo, the son of Suddaseo, respondent’s brother. He (respondent) therefore prayed for the restoration of his said share, on the ground of his considering that one brother had no right to interfere with the property of another; and that he was prepared to prove that the house had been the property of his father. The appellant Bappoo Venaik was included in the action for the recovery of the house, as being in possession and refusing to move out. Dewakur Josee answered that the hou^e in question had been mortgaged to him by Luxmun Bhutt Ghoreh (respondent’s nephew) in Shuk 1742 ; that the mortgage had been made out in the name of Keshoo KrishtSUDDER DEWANEE ADAWLUT* 217 who is his friend and neighbour; but that he (appellant) 1836 had paid the money, and had been in possession of the Dewakur Josee bin house 16 years, although he had not himself been living Blunt Josee and in it; that the said Luxmun Goreh had been the unin-terrupted possessor of it for 32 or 34 years, and that he ^ ^ never heard that respondent had any claim upon it; that Goreh. respondent lived in another house in Poona, which he would not have done had lie possessed a claim on this house ; and that he should have laid his action against his brothers or co-sharers, and not against him. Bappoo Venaik in answer said that he had been living in the house by permission of Dewakur, to whom the whole house had been mortgaged, in the year Shuk 1742? by Luxmun Bhutt Goreh. The Principal Sudder Ameen considered that respondent had not proved that a division of the property had taken place; but was of opinion that the mortgage bond had been verified by 3 witnesses; and that as the respondent Naroo had been living apart from Luxmun for many years in a house of his own, and as it had been proved that the appellant Dewakur had been in posses- sion of the house for about 16 years without any attempt having been made to dispossess him of it. and respondent having himself admitted that he had not possession of the house for 10 years, the respondent’s claim appeared entitled to no credit. He therefore nonsuited respondent, and decided that he had acted wrong in suing Bappoo 19 January 1837. Goreh, who was merely a tenant. From this decision respondent appealed to the Assist- J. W. Langford, ant Judge, who confirmed the decree of the Sudder Esq > Acting As- . , . P . . sistant Judge. Ameen, m consideration of the house being mortgaged 19 August 1837. to the appellant Dewakur Josee, and his having had uninterrupted possession for 16 years. Respondent not satisfied appealed to the Judge. He G. Giberne, Esq., contended that the evidence proved that the house in ActinS Judge. 28 cl REPRINT218 CASES DISPOSED OF BY THE 331mtt Josee and Bappoo Venaik Goreli, vs. Naroo Keshoo G or eh. 1836 which he claimed a participation of ownership was here Dewakur Josee bin ditary and that the three sharers were himself, and his brothers Suddaseo Keshoo (deceased) and Moro Keshoo, and that Luxmun, the son of Suddaseo, had no business without his consent to mortgage the property. The Judge took quite another view of the case from that given by the lower courts. He considered that appellant Dewakur Josee had failed to prove that he held the house in mortgage; he did not consider the bond valid, as it was not drawn out in the name of appellant, but in that of Keshoo Khrist, who appeared not to have been even acquainted with Luxmun Suddaseo, and was not concerned in the transaction, and did not pay the money. The Judge remarked that the bond may have been executed in favour of the appellant Dewakur Josee, by substituting for his name the name of a stranger to the transaction, but that these deeds with fictitious names should never be allowed. He therefore reversed the former decree, and awarded the share of the house to respondent. This decision caused the appellants to prefer an application for a special appeal to the Sudder Dewanee Adawlut, which being granted the case came on for hearing before the Acting 3rd Judge. He was of opinion that respondent had failed to make out his claim to the house. He did not agree with the Judge in objecting to the validity of the mortgage bond, merely in consequence of its being passed in the name of another person Keshoo Khrist; but, on the contrary, felt inclined to attach credit to the evidence that witnesses gave on the subject. He considered that a separation of interests had taken place, and that as the house was entered in the sircar’s books in Suddaseo’s name, the inference was that Luxmun (his son) and his brothers were the sole heirs to the property; and as it had been proved that the appellant 28- 1838. J. Pvne, Esq. IS Dec. 1838.SUDDER DEWANEE ADAWLUT. 219 Dewakur was in possession of the house, he proposed not 183(3 to disturb him. This decision being in opposition to that Dewakur .Toseebin of the Judge, brought the case before a full court, when Bhutt Josee and the following judgment was passed : “ The court consi- CaP1Goreb,Cnai “ ders that the mortgage bond was bond fide made by the vs. “ family, and by the Hindoo law, one member cannot ‘ (joreh. “ sue to recover his share of an undivided estate. The Full Court. “ respondent may recover the whole property by redenip- Jolm Pyne,^Esq. “ tion of the whole mortgage; the subsequent adjust- p/vp.LeGeyt, Esq'. “ ment of the particular shares between the members of 8 February 1839. “ the family resting with themselves. “ The decree of the £illah Judge is therefore hereby “ reversed. Costs to he borne by respondent.” No. 47. Girdhur Gawinahat and Dhunjee Kaoo- jee ...................,....................Appellants, versus Sorabshah Taleyarkhan...........................Respondent. [Appellants sued to recover from Respondent the amount of a certain Tax called “ Kurnee,” due for two years, which they asserted they had paid to Government on Respondent’s account, also for their “ Sookree” fees due to them as Patails for the same period. Respondent resisted the claim by alleging that Appellants had paid the amount to Government in part payment of a debt they owred him. The claim was thrown out in the Moonsiff’s and Judge’s courts. The Sudder Dewanee Adawlut decided that Appellants had no authority to sue for dues belonging to Government, the claim for the Kurnee tax was therefore thrown out, but the amount of Sookree awarded to them, with costs to be borne in proportion.] This action was brought by appellants in the Moon- Sheikh Iiamudt sifFs court at Surat, on the 21st February 1834, to re- Moonsiff-cover from respondent the amount of a certain tax called220 CASES DISPOSED OF BY THE 1834 Girdhur Gawina-hat and Dhnnjee Kaoojee, vs, Sorabshah Taley-arkhan. “ Kurnee” for 1884 and 1885 (a.d. 1827-28) which, they asserted, they had paid to Government, on respondent’s behalf. It appears that respondent held a Moglaee wuttun in the village of Segunpoor, yielding certain dues which he sold to one Manuekjee Pestonjee; appellants are the Patails of the village, and instead of paying these dues direct to Manuekjee, they passed an authority for him to receive in lieu of the said Moglaee hucks the Government Kurnee tax, certain dues of the Patail called “ Sookree” due by respondent for the two years 1884 and 1885, which, however, respondent refused to pay to Manuekjee; whereon he (Manuekjee) sued appellants, in conjunction with respondent, to recover the amount of the Moglaee wuttun, and obtained a decree in his favour against the appellants only, to the effect that they probably having claims on the respondent on account of the Kurnee tax, in exchange for it and the Sookree appropriated respondent’s Moglaee dues to themselves, giving Manuekjee an order to recover the said tax and Sookree, but that they had no right to make such a transfer, and were bound to settle their claims on Sorabshah (respondent) with Sorabshah, and to make good to Ma-nuckjee his claim on the Moglaee hucks, assigned to him by Sorabshah. The appellants therefore prayed that respondent might be caused to refund to them the amount of Kurnee tax, due on three Wuzeefas of respondent’s land which they had paid to Government on account of respondent, for the years above stated, their Sookree for the same period, due to them as Patails, and interest on the sums, besides the cost of defending the suit above alluded to instituted by Manuekjee. Respondent resisted the claim by alleging that the appellants paid the amount due by him for the Kurnee tax to Government, in part payment of a sum they owed himSUDDER DEWANEE ADAWLUT. 221 for the Moglaee hucks, and other claims in arrears for 1834 dues called 4 Mookat,’ in proof of which it need only be Girdhur Gawina-mentioned that they (appellants) recovered the said tax hat and Dhunjee by application to the Collector for the years 1886 and K"a^ee* 1887 without reference to what was due for the two pre- Sorabshah Taley-vious years, which they would also have recovered in the an- same manner had they not paid it on the account alluded to. The Moonsiff considered that it had been shown that respondent had a counter claim against the appellants on account of a Mookat due, for five years in arrears, to which effect appellants had passed him an acknowledgment ; and that it appeared that the amount of the Kur-nee dues in question had been paid by appellants to Government on account of respondent, and deducted from the said Mookat balance, and that therefore appellants had no claim to recover it from him. Dissatisfied with this decision, appellants made an ap- \v. Simson, Esq., peal to the Judge. ActinS JudSe- It appeared by the pleadings before this court, that appellants admitted that they had no writing authorizing them to pay the Kurnee tax for respondent, and that they had no receipt from Government for the payment, because, as they said, they had to receive from respondent the amount of the Kurnee tax, whilst at the same time they owed to him the amount of the Moglaee dues, which balanced the mutual claims. The Acting Judge held that appellant’s claim against respondent was not valid, as they had not shown that they were authorized by respondent to pay any Kurnee tax to Government on his account; but that it appeared that they must have paid the tax in part payment of a debt they owed respondent; under these circumstances, the Acting Judge confirmed the decree of the Moonsiff', Decree, 26 August and placed costs of both courts on appellants. 1837,222 CASES DISPOSED OF BY THE I834 A special appeal having been admitted in the Sudder Girdhur Gawina- Dewanee Adawlut, the case came on first before the 4th hat and Dhunjee Puisne Judge. The appellants contended in their peti- K'a°^ee’ tion that they had not paid anything to Government on Sorabshah Taley- account of respondent, but that as he had claims on the 1 \\ ar an- Government for his Moglaee hucks, they (appellants) D. Greenhill, Esq. gave the order on him for the Kurnee tax being paid to the holder of the Moglaee hucks. That having had to pay the Moglaee hucks to his creditor Manuckjee, by refusing to pay the Kurnee on their order in his favour, they (appellants) were now entitled to recover the said amount of Kurnee tax, denying existence of claims on respondent’s part, and referring him to civil action on their account. The sitting Judge was of opinion that appellants were justly entitled to a decree in their favour, unless it was shown that the appellants had no right to sue at all for dues belonging to Government. Jt appeared to him clear that respondent had not paid the tax and Sookree for the years in question, nor had the appellants paid the former for him to Government, and that therefore the claim on the part of Government for the Kurnee tax, and on the part of appellants for the Sookree, appeared to remain ; but he conceived that it was for Government to recover its own dues, and not within the authority of the appellants to file a suit in their own names for the purpose. The sitting Judge therefore proposed that the appellants should be nonsuited in their claim for the Kurnee tax ; but as the Sookree was a personal claim, that a decree should be given for it, with costs in proportion. U court ^ie case waS re^eiTet^ a full court for its considera- A. Bell, Esq. tion and final decision, when the view taken by the sitting J. Pyne, Esq. Judge was fully concurred in, and the decrees of the D. Greenhil), Esq.. & J , , ’ , lower courts were amended accordingly.SODDER DEWANEE ADAWLUT. 223 No. 48. Sewlal Oodakishun......................,.........Appellant, versus Nainsook Soobaram............................ Respondent. [Suit to recover part of a sum of money which Appellant had consigned to Poona through the hands of Respondent, but which Respondent had failed to deliver. It was decided in the Sudder Adawlut that the owner was subject to loss from robbery, but as in this case the robbery had not been proved, and Respondent had acknowledged the receipt of 1,501 Rupees, the Court considered him responsible.] Appellant filed the suit from whence this appeal arose Ragoba Suda- in the Native Judge’s court at Ahmednuggur, on the 6th seo, Natlve^ud§e# February 1836, against respondent, to recover from him Rs. 266-15-9, which was part of a sum which he had consigned to Poona through the hands of respondent, and which respondent had failed to deliver. It apears that respondent agreed to take charge of, and deliver to one Nundram Balchund, the sum of Rs. 1,537, in consideration of Rs. 3 commission. The money was contained in two bags, one holding Rs. 793-2-0, which was regularly delivered, the other containing Rs. 743-2-0, of which belonged to plaintiff Rs. 507-2-0, and to Tattia Gopaul Rs. 236. This bag was never delivered. Appellant sued respondent for his share, and obtained a decree in his favour. Tattia then came down upon appellant, and recovered the amount which was in the bag belonging to him, viz. Rs. 236, and for which sum appellant now sues respondent. The respondent in defence declared that the money was not counted on being delivered over to him. Appellant told him that the bags contained Rs. 1,501, and he made an entry in his books of having received that sum ; that he forwarded the money with other sums in the224 CASES DISPOSED OF BY THE 1836 manner he had been accustomed to do ; but that at Shi- Sewlal Ooda- karpoor, the persons entrusted to carry the money were kishun, attacked by thieves, and one bag was stolen ; that had Nainsook Sooba- appellant a claim against him, he should have made it ram. when he sued him first, and recovered the sum of Rs. 507-2-0, and that he was not answerable for the correctness of the amount, nor for the loss from robbery. The Native Judge was of opinion that respondent was responsible; that it appeared that he had entered the sum of Rupees 1,501 as credited and received from appellant, to transmit to Poona ; that one bag had been delivered, and the other had not; and that respondent had failed to prove the robbery, which, had he established, the owner of the money would have been the loser, according to the custom among soucars. J. W. Muspratt, The Assistant Judge confirmed the decree of the Native Esc*’ Judge on the same grounds, and an appeal was made to B. Kutt, Esq., the Judge. This authority reversed the decrees of the lower courts, as he considered that it was established that the owner of the money should suffer the loss from robbery or otherwise; that as it appeared that respondent did not count the money, it was a proof he did not consider himself responsible, nor could appellant show by his books what sum was contained in the bags. It appeared to him that respondent had merely received three Rupees, undertaking to deliver the money in Poona; but no stipulation was made as to who was to bear the loss; moreover, that appellant had not proved that in either bag was a sum of money belonging to Tattia Gopaul; and that by the evidence of certain soucars, it was proved that the loss, if any, should be borne by appellant. A special appeal against this decision was admitted in the Sudder Adawlut, owing to the liability of the consignees or consignee in the remittance of money having been so differently stated by the Native Judge and the Judge,StTDDER DEWANEE ADAWLUT. 225 The case was first heard by the Acting 2nd Judge, 183^ He recorded his opinion that the owner of the money Sewlal Ooda- was liable to the loss by robbery when remitting money, as in the present case ; that this point had been proved Nainsook Sooba- and admitted ; but as the robbery had not been establish- rara‘ ed, he proposed to reverse the Judge’s decree, as he held ^erne, that the entry of Rs. 1,501 in the respondent’s accounts was a fair acknowledgment for that amount; and if, as he says, he did not count the money, it W'as his own affair A- Bell, Esq. , . , mi • ,.G. Giberne, Esq. and interest that he should have done so. Inis view ot j. pyne) Esq. the case was concurred in by the other Judges on coming 11 April 1839. before a full court. No. 49. Shreenewas Rao, heir of Rao Bahadoor Krishna Rao .....................................Appellant, versus Yeswnuth Rao Wittul, Mamlutdar.....................Respondent. [Action for defamation of character, Defendant having, in a report to his official superior, made statements against Plaintiff that he was unable to substantiate. Held that a Police Officer cannot be considered liable for a statement made by him on information that he has cause to believe to be true, although not eventually proved to be so.] This was an action for defamation of character. The father of appellant Krishna Rao (deceased), Principal Sudder Ameen of Zillah Dharwar, originally sued the respondent Yeswunth Rao Wittul, Mamlutdar of Dharwar, for having, in an official report to his superior, the Principal Collector of Dharwar, slandered him by stating that he had entered into a conspiracy to defeat the ends of justice, and that he could prove the same, which he subsequently failed to do, on the prosecution of Krishna 29 d REPRINT226 CASES DISPOSED OF BY TII12 Shreenewas Eao, vs. Yeswunth Rao Wittul. G. Farranf, Esq. J. Shaw, Esq., Judge. A. Bell, Esq. A. Bell, Esq. G. Giberne, Esq. J. Pyne, Esq. Rao in the Session court on the said information. The answer of Yeshwunth Rao was to the effect that if he was held liable for every statement made by him in his public capacity on the information of others, which could not be eventually fully established, there would be an end to his police functions. The Assistant judge of Dharwar, who first tried the case, considered that Yeswunth Rao having failed to prove the allegations he had made against Krishna Rao, must be held responsible for the same, and considering paliritiff’s situation and rank, that his reply was no defence, decreed in plaintiff’s favour to the amount of Rs. 5,000, the full sum claimed as damages, with costs. This decree was reversed on appeal by the Zillah Judge, who did not consider Yeshwunth Rao could be held responsible for what he had stated in his official capacity on the* information of others, and which he believed to be true; nor for the publication of the report containing the calumny, such being a part of the records of the Magistrate’s office. On appeal to the Sudder Dewanee Adawlut, the case was first heard by the Acting Senior Puisne Judge, and the appellant, son of the original plaintiff, who had died in the interim, claimed damages on the grounds of the original action. The sitting Judge’s opinion went to reverse the Judge’s decree, as he considered the want of proof of any regular information laid before the defendant against plaintiff, rendered Yeshwunth Rao responsible for what he had adduced, and with this view he referred the case to a competent court. The opinion of the majority of the court was opposed to that of the sitting Judge, as it was held that Yeshwunth Rao could not be considered liable for what he had reported to his official superior on the information of others whose depositions are forthcoming; that neitherSUDDER DEWANEE ADAWLUT. 227 was he liable for the publication, which consisted in the Shreenewas Rao, criminal prosecution ordered by the Magistrate, without Yeswunth Rao due investigation on his part; that the slander, if any, Wittul. lay with the informants, and the publication of it with the Magistrate; that the practice of rendering police functionaries liable for information given by them on hearsay evidence, because they were unable eventually to prove the case, would be dangerous, as fettering the powers of those officers. The decree of the Zillah Judge was therefore affirmed, and the costs placed on appellant. No. 50, Nursoo Keishu, Koolkurnee, and Moo- TALIK DESHPANDEE, KuREEAT YeKOON- dee............................. ............Appellants, versus Ragvendapa Champgoomkur.........................Respondent. Rupees 2,223-0-6. [A claims from B the half share of a Koolkurnee Wuttun, as the adopted son of the widow of the nephew of the original holder, who died without issue. B resists the claim on grounds of A’s adoption being incomplete, and himself having been adopted by the original holder during his lifetime. It was held that the adoption of A was not satisfactorily established, and his claim could not stand, and judgment was given accord-ingly.] This appeal arose from an action brought by the re- Dharwar spondent Ragvendapa to recover from the appellant the half share of the Koolkurnee wuttun of the village of Yekoondee. The original holder of the wuttun, Krish-napa, died without issue, his nephew and hereditary successor, Govindapa died also childless, and Bugoobaee, Govindapa’s widow, adopted respondent, on which he founded his claim.228 CASES DISPOSED OF BY THE IS27 Nursoo Keishu Koolkurnee, and Mootalik Desh-pandee, Kureeat Yekoondee, vs. Ragvendapa Champgoomkur. A. Campbell, Esq., Assistant Collector. J. Dunlop, Esq., Collector. J. Pyne, Esq. G. Giberne, Esq. J. Pyne, Esq. D. Greenhill, Esq. The appellant replied that he was himself adopted by Krishnapa during his life-time, that Govindapa’s widow had no right to adopt the respondent, and also urged that on Rugoobaee suing before the Sub-Collector of the Zillah for the entire wuttun, he (Nursoo) had been declared the adopted son of Krishnapa. A document was produced to prove the adoption of respondent, the witnesses to which, in separate depositions, state the adoption to have been incomplete, in consequence of the interference of Shreeput Koolkurnee, who declared the consent of the Sirkar to be necessary for the validity of the act. The Assistant Collector of Belgaum Zillah first tried the case, and considered the adoption of respondent established, and discredited the subsequent testimony of the witnesses as to its incompetency. He therefore decreed in respondent’s favour, which decision was affirmed on appeal to the Collector. In the Sudder Dewanee Adawlut, the case being further appealed, was first heard before a single Judge, who agreed in the opinion of the Shastree of the court, that the adoption of respondent could not be considered established by the document recorded alone and in the absence of collateral evidence to show that the same was recognized. The sitting Judge also held that the fact of Bugoo-baee having brought an action for the recovery of the wuttun in her own name in the year 1832, whereas the adoption was stated to have taken place in 1827, threw doubts on its validity, and as his opinion went to reverse the decrees of the lower courts, the case was referred to a full court. The view of the sitting Judge was concurred in, and final judgment given, reversing the Collector’s decree, and placing costs on the respondent.SUDDER DEWANEE ADAWLUT. 229 No. 51. Gunnapa Deshpandee...............................Appellant, versus Sunkapa Deshpandee...............................Respondent. Rupees 500. [A sued B for a share of an estate inherited by the latter in virtue of adoption, on grounds that adoption by a Brumcharee, or bachelor, was invalid, It was held in the Sudder Dewanee Adawlut, that the right of bachelors to adopt rested on local usage, and that the long possession by defendant established his title.] In this case the plaintiff (above respondent) sought to Dharwar. recover from defendant (above appellant) a share (one-fifth) of a landed estate in his possession under the following circumstances. The original holder left his estate among his six sons, one of whom, Sunkapa, having no issue, adopted his nephew Balapa, the father of defendant, who inherited the share held by his father and adoptive grandfather. The plaintiff claimed on the ground that Sunkapa was a Brumcharee, or bachelor, and incompetent to adopt, and that the act was never agreed to by the other brothers. The amount of the suit was Rupees 500, or ten times the annual profit on the share of the land. It was replied that the six sons of the original holder had made a division of the property sixty years since, and that had the adoption of the defendant’s father been illegal, the other brothers would not have allowed defendants possession for 40 years. The Mamlutdar of Dharwar, after inquiries as to the Bugwant Rao, local custom regarding the right of Brumcharees to adopt, Mamlutdar. decided in defendant’s favour, nonsuiting plaintiff. This decision was reversed in appeal to the Principal j jj Ba|,er j;Sq Collector, who considered the adoption informal and also Principal Col-illegal, as contrary to the Shastre, and being of opinion *ector-that defendant had obtained the share by fraud, and230 CASES DISPOSED OF BY THE 1839 consequently that the length of possession did not avail, Gunnapa Desh- ^ie decreed the share to be given up to the plaintiff. pandee, On further appeal to the Sudder Dewanee Adawlut, Sunkapa Desh- the case was first heard before a single Judge, who record-pandee. ed his view of the case as follows: “ It is evident, I D.^reenlnll^Esq., “ think, that Sunkapa wished to adopt the father of appel-“ lant, although the consent of the brothers may have “ been withheld; that nevertheless Balapa, the nephew “ whom he desired to succeed him, did actually succeed, “ and had possession more then 40 years ago; that he did “ not obtain it by fraud, since it was in the face of the “ whole world, in the village with his uncles, and evidently “ with their consent; that his son, the present appellant, “ after him succeeded, and has possessed the share of Sun-“ kapa, as proprietor bona fide for upwards of 30 years, “ and it therefore appears to me, that setting aside the “ adoption, even Clauses 1 and 3, Section I, Regulation “ Y. of 1827, confirm his title.” “ On these grounds, I am disposed to think the Col-“ lector’s decree should be reversed, and that respondent “ should pay the costs. “ Regarding the privileges of Brumcharees, it is un-“ derstood that there are several kinds with various usages, “ and if the title of the appellant is found not to be con-“ firmed by the above quoted regulation, but to depend “ solely upon the validity of the alleged adoption, I “ should hardly be satisfied with the reason assigned by “ the Collector for rejecting the evidence on that subject “ and corning to a conclusion contrary to the opinion of “ the Mamlutdar, but would desire further testimony G. Gibeme, Esq., “ and explanation.” John'pyn^Esq A full court adopting the view taken by the sitting , Acting P. J. Judge, final judgment was given on the 16th July 1839, D ^Une' jud^e'1 ’ revers^nS the Collector’s decree, and placing costs on the respondent.SUDDER DEWANEE ADAWLUT. *231 No. 52. Syud Hoossein Allee wullud Syud Ush-ruf Allee (deceased), his heir Hajee H umMeedoodeen ...............................Appellant, versus Rowjee Ramajee Dunjeh ........................Respondent. [Claim to raise an attachment from certain Enam land granted for the service of a Musjid, a mortgage of the same being an illegal and invalid transaction. Replied that the Enam not having been appropriated to the service for which it was originally granted, the claim was bad. It was held, in conformity with the Mahomedan law, that the mortgage was illegal, and that the attachment should be raised.] The respondent in this appeal had attached a Musjid and tomb, with certain Enam land appertaining thereto, in satisfaction of a decree obtained by him against Syud Kazee, Syud Ahmed, and Syud Morah, who mortgaged the property to him, they being descendants in common with the appellant of one Hummeedoodeen, on whom the said property had been bestowed by royal grant for religious purposes. The appellant sued in the court of the Principal Sudder Ameen of Ahmednuggur to raise this attachment, asserting that the abovementioned persons had no power to mortgage the property without his being a consenting party to the transaction, and that it was unlawful to mortgage property bequeathed for religious purposes, laying his claim at Rupees 1,500. The respondent replied that he attached the property in execution of the decree he had against the parties, which ordered the sale of the enam land, and that appellant had no right to interfere in it. The Principal Sudder Ameen, on the exposition Ragoba Sudasew. of the law by the Zillah Quazee, that land appropriated to religious purposes could not be sold or mortgaged by232 CASES DISPOSED OF BY THE Syud Hoossejn any 0f the descendants of the original proprietor, decreed Syud Ushruf *n appellant’s favour, and raised the attachment. On Allee, appeal to the Assistant Judge, this judgment was reverse- Rowjee^Ramajee ec^ 011 ^ie grounds that it was proved that the produce of Dunjeh. the enam land had not been appropriated to the religious T „r,, _ services of the tomb, &c. by the maintenance of burning J. Webb, Esq., „ . „ J. . . . . & Act. Asst. J. lights, ottering of prayers, &c., and also that precedents were shown of the sale of tombs and edifices which had fallen into disuse. J. Pyne, Esq., Jn the Sudder Dewanee Adawlut the appellant came into court, praying the reversal of this last decree. The case being first heard before a single Judge, he recorded as follows:— “ I am of opinion"that the exposition of the law afford-“ ed by the Zillah Quazee, and which is concurred in “ by the Quazee of this court, places the question at rest “ as to the want of right on the part of the mortgagers “ to mortgage the land to respondent; and since the “ wukeels of both parties admit the correctness of the “ genealogical tree recorded, and the reply of the Quazee “ of the court states, that the relation in which the appel-“ lant stands to the original grantee entitles him to “ prohibit the alienation of the land, I see no course but “ to reverse the decree of the Assistant Judge and con-“ firm that of the Principal Sudder Ameen.” G. Gibeme, Esq., The case being accordingly referred to a competent D d^eenhU?' Esq court’ a decree was passed in conformity with the sitting Judge’s opinion.SUDDER DEWANEE ADAWLUT. 233 No. 53. Burjorjee Bheemjee .............................Appellant, versus Ferozshaw Dhunjeeshaw...........................Respondent. Rupees 10,480-7-6. [Action brought by Plaintiff to recover the dowry of his deceased wife (from whom he had separated) from Defendant, her brother, to whom she had bequeathed it, such testamentary disposition being [illegal. Replied, that the disputed property was in no way derived from the Plaintiff. It was decreed in the absence of proof that the property was derived from Plaintiff, and on the opinion of the Parsee Punchayet that the will under which Defendant claimed was valid, that Plaintiff be non-suited, and bear all costs.] In Sumwut 1853, Ferozshaw Dhunjeeshaw, the above espondent, married Heerabaee, sister of Burjorjee Bheemjee, the appellant, and on that occasion bestowed on her property consisting of jewels and clothes. The parties separated shortly after marriage -and in Sumwut 1876, and subsequently respondent advanced money to her. On Heerabaee’s death in Sumwut 1881 she bequeathed, by will, all her property to her brother, the appellant, who took possession of the sums standing in the banker’s books'to her credit. The respondent filed a suit to recover his deceased wife’s property, claim- ing on account of jewels.........................Rs. 6,000 Clothes........................................... „ 1,500 Subsequent payments of ready cash, and profit of the same.................................. ,, 17,000 Total..Rs. 24,500 urging that he was rightful heir to all his deceased wife’s property derived originally from himself, and that her will devising it otherwise was invalid. 30 d REPRINT Surat.234 CASKS DISPOSED OF BY THE 1839 On the other hand, it was contended that part of the Burjorjee Bheem-Jewe^s were returned to the plaintiff’s family, that the jee> clothes could not now be valued at the original cost, and Ferozshavv Dhun- that the money payments went to liquidate debts con-jeeshaw. tracted by Heerabaee for her own maintenance, plaintiff having neglected to support her according to agreement; that the property bequeathed by Heerabaee was not derived from her husband, and that her disposition of the same was perfectly lawful. H. Hebbert, Esq., The Assistant Judge of Surat, who first tried the case, Judo’e’.* 011 careful examination of the accounts of the bankers pro- duced, found that the date of the first credit to Heera-baee’s name was anterior to that of the first money payment to her from her husband, and concluded that the sums standing in her name were really on account of her father, whose affairs she managed (he being blind) in preference to her brother, who was then of tender age The jewels were not forthcoming in the defendant’s possession, and the clothes could not be supposed to last for 40 years. Tbe Assistant Judge on these grounds nonsuited the plaintiff with costs. C. L. Elliott, Esq., In appeal to the Judge of the Zillah, this decision was ^Hlal1 ^udge* amended, on the ground of a Parsee punchayet having given as their opinion that Heerabaee’s will was invalid, although no precedent or written law was quoted as authority for their statement. The Judge awarded to the present respondent Rupees 10,480-7-6, the amount credited to Heerabaee in the banker’s books at the time of her decease, and admitted to have been drawn out of their hands by the appellant. The value of the jewels and clothes was, for the reasons set forth by the Assistant Judge, disallowed. J. Pyne, Esq., The appellant prayed the revision of this decree in the Acting Puisne Sudder Dewanee Adawlut, where the case was first heard ° * by a single Judge, who considering the admission of theSUDDER DEWANEE ADAWLUT. 235 respondent that he could lay claim to no property not 1839 derived from himself, or the profits thereof, and that it Burjorjee Bheem-was nowhere proved that the property bequeathed by jee, Heerabaee to the appellant was derived from her husband, j?eY0ZShw Dhun-was of opinion that the Judge's decree should be jeeshaw. reversed, and that of the Assistant Judge confirmed, and referred the case to a full court. The Judges who composed the competent court were G. Giberne, Esq., unanimous in considering the validity or otherwise of j py^"6^^86’ Heerabaee’s will to be a question of caste usage, no Acting Puisne written law on the subject existing* and it was determin- Judge. , i r ^ D. Greenhill, Esq., ed to take the opinion of the Parsee punchayet of Bombay3 Puisne Judge. that given by the punchayet at Surat having been unsupported by precedent or any written authority to give it weight. The question proposed to the Parsee punchayet was, “If a wife separated from her husband, 44 contrive* by the sale of her jewels and clothes derived 44 from her husband, or by her own labour, or by saving 44 from her allowance given by her husband for her 44 maintenance, to accumulate property, can she by will, “ or otherwise, bequeath it past her husband, or would “ all such testamentary disposition be void. The puncha- “ yet is requested to state precedents or authority for 44 their opinion, and also to explain whether they give it 44 on acknowledged and settled usage, or only their own 44 opinion, of what may be equitable V’ The reply was as follows,—“If a person has separated his wife from himself, 4* and she has an allowance from her husband for mainte- 44 nance, or for food or clothes, and that allowance was 44 fixed either by order of the Judge or by mutual agree- 44 ment, and if she contrived to make a saving from her 44 allowance, and sold her jewels and clothes derived 64 from her husband, and thus, or by her own labour, 44 continued to accumulate property, or if she obtained it 14 from another person, she can, by will or otherwise236- cases DISPOSED OF BY THE 1839 Burjorjee Bheemjee, vs. Ferozshaw Dhun-jeeshavv. “ bequeath it to another person, and past her husband, “ and such testamentary disposition will not be void. If “ there be no such testamentary disposition, then the “ property would go to the nearest relative of her parents. “ The cases of Parsee Dorabjee Muncherjee Bomanjee, “ Framjee Rustomjee Doobas, and Manuckjee Nana-“ bhaee Columbawalla, and others, are of this nature. “ This answer we beg to give to the Honorable and “ respected Judges, and we further beg to state that the “ above usage has been in existence for a long time, and “ acknowledged and settled by our punchayet. “ If a person has separated his wife from himself, and “ if she, at that time, passed a writing to her husband re-“ gardingher maintenance, jewels, and clothes, to the ef-“ feet that if she dies the property shall go to her husband, t€ while such writing be in existence she cannot by will “ or otherwise bequeath the property to another, and in “ the absence of a testamentary disposition, the property “ which had belonged to her, and which she had derived “ from her husband, would go to him. But if no such “ conditions be specified in the aforesaid waiting, thehus-“ band can have no claim to her property.5’ In accordance with this clear exposition of the Parsee usage in the matter, and in the absence of any proof that the disputed property was actually derived from the respondent, final judgment was given on the 10th September 1839, the Zillah Judge’s decree being reversed, and the Assistant Judge’s confirmed, and costs placed on the respondent.SUDDER DEWANEE ADAWLUT. 237 No. 54. Muradkiian, Shbik Ahmud, Hirjee bin Ramjee, and Toolseeram, security of the two first.......................................Appellants, versus Ensign Brown, Superintendent of Bazars, Poona. . .....................................Respondent. [Ramosee Naiques held liable in the Sudder Dewanee Adawlut, under their agreement, for property lost by robbery within certain limits.] The appellants in this case were Ramosee Naiques in the pay of Government. They had signed a contract binding themselves to make good all losses by robbery within the limits of the Poona cantonment on failure (tf securing the robbers within a specified time after the robbery. Under this agreement they were sued (the three first as principals, and the fourth, with another, as securities), by the Superintendent of the Poona Military Bazar, on the part of Government, to make good a loss by a robbery committed in the house of Mr Randell, Ridingmaster to the horse brigade situated within the cantonment limits. The objections to the claim were that the agreement entered into did not include the appellants’ liability for such robberies as the one in question, on the grounds that it was committed before 11 p.m., the hour at which their responsibility commenced. That it was not a gang robbery. That the house in which it was committed was without the prescribed limits. That the appellants’ bond exempted them from responsibility as to the soldiers’ barracks, and merely referred to officers’ quarters, and that the individual robbed was not an officer.238 CASES DISPOSED OF BY THE Muradklian, Sheik The defendants entirely failed to establish the two last All mud. Hirjee i • bin Ilamjee, and objections, Toolseeram, * The Principal Sudder Ameen nonsuited the plaintiff ^ . vs‘ being of opinion that the defendants were not liable .l°1wn\ for a robbery committed before 11 p.m.. unless it were Moro I rimbuck, J Principal Sudder perpetrated by a gang, which he considered not proved. Ameen. The Assistant Judge reversed the Principal Sudder G. A. E.Campbell, Ameen’s decree, on the grounds that theplaintiffhad estab-Esq., Assistant # .... Judge. lished the facts of his case in evidence, and that the terms of defendants’ agreement left no doubt of their liability. The appellants came into the Sudder Dewanee Adawlut, urging, in addition to their original defence, that the depositions recorded threw suspicion on the servants of the parties robbed ; and, moreover, that the owners of the lost property were not good evidence of the amount stolen, nor of the matter in general. It was also contended that the securitv bond of Lalla Ram for the appellant Hirjee, which was stated to be missing, was not produced, as the terms of it would r, . invalidate respondent’s claim. Present. 1 P. Greenhill, Esq. It appeared to the court that the security bond of Puisne Judge. .Toolseeram for the two first named appellants showed clearly, that if a party (as in the present case) had no Ramosee guard, they (appellants) were only responsible for robberies committed after 11 p.m.; but it was also provided that the appellants were liable for all losses by robbery, of whatever nature, after that hour. And it being established in evidence that the robbery in case took place about midnight, the question of the liability of Moorad Khan and Sheik Ahmud was thereby determined. As regarded Hirjee, the third appellant, his security, Lalla Ram, did not appeal from the Assistant Judge’s decree, and although the absence of his security bond was, in the opinion of the court, a matter of regret, as leaving the terms of it to be established by secondarySUDDER DEWANEE ADAWLUT. 239 evidence, yet there could be little doubt of its nature, Muradkhan, Sheik from the manifest improbability that any difference ^ R^mjee^and should exist in the conditions entered into by the parties. The fact of the non-appeal by the security confirmed this view, and the evidence as to the value of property lost being satisfactory, the decree of the court below was affirmed with costs. No. 55. Muckundram Govindram ...........................Appellant, versus Girjashunker Mottychund, A in undram Govindram and Keerparam Ambaram. . Respondents. [Ruled in the Sudder Dewanee Adawlut, that parties against whom a claim under a decree of Civil Court lies, are jointly and severally liable for the amount.] This action arose from a decree passed in the year Dated a.d. 1831. 1831, in a suit brought by the respondents Girjashtinker and Keerparam Ambaram, against the appellant, for an injunction to him to give up to plaintiffs a house alleged to be mortgaged to him, and receive from them Rupees 51, the amount of the mortgage bond. The decision was to the effect that no mortgage was established, but that the sum alluded to appeared to be due by the plaintiffs (present respondents) to the defendant (present appellant) on a note of hand, and that if it were not paid, he (Muckundram) should bring an action against them for it. Muckundram accordingly sued the three respondents for the sum due on the note, with interest. Of the three respondents, one Anundram did not appear to answer the plaint. The Sudder Arneen of Surat held that the note was Ardaseer Dhun-proved to be good by the acknowledgment of the respond-jeeshah. ents in the former suit, and decreed for the plaintiff, Toolseeram, vs. Ensign Brown.240 CASES DISPOSED OF BY THE Muckundram Go-and ordered that the amount should be recovered from vlnd™m> the two defendants who appeared if the third (Anund- Girjashunker ram) were not forthcoming. Girjashunker and Keer- Mottychund, param appealed against so much of this decision as Anundrarn Go- J 11 . ° vindram and Keer- burdened them with Anundram’s share of the amount param Ambaram. (]ecreecI? and the Judge of the Zillah, on hearing the case, G. L. Elliot, Esq., was of opinion that the suit was altogether irregular, Zillah Judge. ma|;j:er having been decided in the decree of 1831. He therefore reversed the Sudder Ameen’s decree entirely, and nonsuited the plaintiff. Present. A special appeal was allowed in the Sudder Dewanee A. Bell, Esq., A. Adawlut for the reasons ur^ed by the appellant, as to Puisne Judge. b # ? . . J. Pyne, Esq., the irregularity of the Judge’s procedure in reversing the Judge ^U1Sne W^°^e Sudder Ameen’s decree, the justice of which was acknowledged by the respondents having merely appealed against the mode or execution laid down in it. The respondents did not appear in the Sudder Dewa-Present nee Adawlut, anc^ the case was decided ex parte. The G. Gibeme, Esq. Court considered the grounds of the Zillah Judge’s Puisne Judge. c]ecree? vjz> |jiat the matter had been decided in the former suit, erroneous, as the decree dated a.d. 1831 specified that appellant should sue for the amount of the note; and also that his procedure in reversing the whole of the Sudder Arneen’s decree was irregular, as touching a point not at issue before him. Present. On reference of the case of a full court, final judgment G. Gibeme, Esq., was given reversing the decree of the court below, in J. Pyne^Esqf6' conformity with the view of the sitting Judge, and the Acting Puisne respondents declared jointly and severally responsible for D.i^reenhill Esq amount awarded;* The Sudder Ameen’s decree Puisne Judge, was hereby affirmed, and the costs ordered to be paid 10 Sept. 1839. by respondents. * Ruled in the matter of the petition of Ramcoover, wife of Mun-charam Wullubram, on the 31st August 1835.SUDDER DEWANEE ADAWLUT. 241 No. 56. Bussapa Bussup Shettee............................Appellant, versus Ragapa Bingairee..................................Respondent. [Claim of exemption to a certain extent from customs in right of Shettee Wuttun. It was held in the Sudder Dewanee Adawlut that the privileges of Shettess varied according to local usage, and Plaintiff’s claim being greatly in excess of what he could establish as his right, judgment was given for Defendant with costs.] This appeal arose from the following circumstances. In Fusli 1244-45, the farmer of customs at Hooblee, in tlie Dliarwar Zillah, detained five bullock-loads of grain, the property of appellant Bussapa, in satisfaction of alleged dues claimable thereon. The appellant claimed exemption from taxation in right of his wuttun of Shettee, and sued the respondent, who was the farmer’s security, for the recovery of the value of the grain, Rupees 60, expected profit on the sum of Rupees 125, and expenses Kupees 15, being a total of Rupees 200. In reply, an order of the Collector of the Zillah was filed, which authorized the farmer to levy dues on all bullocks in excess of three, the number allowed to the Shettee to admit free. The Sudder Ameen who first tried the case held that Bhim Rao Anunt, the farmer had no right to detain the property, and he Slld(Je|' Ameen of i j <■ *1, n f u icj Hooblee, Zillah decreed to the appellant tor expenses Kupees 15, and Dharwar. on account of loss of profit on the goods Rupees 35, in all Rupees 50. The Judge of the Zillah reversed this decree. He J. Shaw, Esq., considered that it was not established that respondent’s Zillah Judge-principal held the farm for Fnsli 1245, and that tlie question of his (respondent’s) liability was confined to Fusli 1244. It appeared evident from the order of the 31 d REPRINT242 CASES DISPOSED OF BY THE 1839 Collector, that the farmer had authority to levy dues Bussapa Bussur fr°m appellant, on his imports in excess of three bullock-Shettee, loads, and that the value of property detained by him, Rao-apa^Bino-airee.'vas no’: *n excess °f his claim under this right; consequently there appeared no objection to the proceeding. G G^resentj? sPec’al appeal was allowed in the Sudder Dewanee Actg. P.J. ’ Adawlut, on the grounds of the conflicting opinions in J. Pyne, Esq., the courts below. Act0", P. J < „ „' ' The case was first heard by a single Judge, who held G. Giberne, Esq., ° Acts. P. J. the Collector s order to be indefinite in its terms, and further that the farmer had no right to attach the Present property, and being of opinion that the Judge’s decree G. Giberne, Esq., should be reversed, he referred the case to a competent Puisne Judge, court. The case being brought on, was then ordered to ^ Actg. P.8}.’ be returned to the Zillah, for the purpose of taking D Greenhill, Esq., further evidence as to the right of exemption from customs Puisne Judge. . . , . claimed by appellant. 10 Sept. 1839. On final hearing, the court was opinion that the ex- tent of exemption from customs to which Shettees are entitled varies according to local usage. That the O O evidence in the present case went to show that appellant was entitled to freedom from taxation on three bullock loads, whereas he had made a claim greatly in excess. Under this view it was held that the farmer was justified in detaining the property, and the appellant was nonsuited, and ordered to bear the costs in all courts.SUDDER DEWANEE ADAWLUT. 243 No. 57. Ballojee Bappoojee Hurbareh ......................Appellant, versus Venkapa Newada (deceased) his son and heir Mahadeo bin Venkapa Newada .. Respondent. [A younger brother declared incompetent to mortgage an undivided estate without consent of the elder, and claim under a mortgage bond so passed cannot be sustained.] In this case the appellant Ballojee was original plaintiff, and sued for an injunction to raise an attachment from his house, placed on it by the defendant, present respondent, in execution of a decree obatined by him under the following circumstances: It appears that Ballojee’s younger brother, Balcrishna, mortgaged the house in question in Shuke 1748 (a.d. 1827) to the father of defendant, Mahadeo. Four or five y.ears subsequently, Balcrishna left that part of the country, and Ballojee took possession of the house. In Shuke 1758, or a.d. 1837, Mahadeo obtained a decree in the Sudder Ameen’s court attaching the house in satisfaction of the amount of the mortgage bond passed to his father by Balcrishna. In support of his prayer for attachment to be raised, plaintiff contended that his brother Balcrishna had been degraded from his caste, that the mortgage bond was forged, and also pleaded his possession of the house and the long absence of Balcrishna, who, moreover, was not of age at the time he was supposed to have passed the note. The defendant’s reply was that plaintiff was not resident in the house when the mortgage was effected, but that he subsequently resided there by defendant’s permission, and under a promise to liquidate the bond. He denied the other allegations of plaintiff. The case was first tried by the Moonsiff of Poona, who RamchunderMul-considered it established that the mortgage bond was good, pgonaMoons*ff244 CASES DISPOSED OF BY THE 1839 and that Balcrishna was competent to grant it. He non- Ballojee Bappoo- suited plaintiff. jee Hurbareh, In the appeal court additional evidence was taken by Venkapa Newada. Assistant Judge, wherein it appeared that plaintiff’s J. W. Langford, father had built the house, and that plaintiff had repaired Esq.,Asst. Judge, it. The court also considered that had defendant possessed a good claim on the house, it was improbable he would have allowed 6 or 7 years, the time that had elapsed since Balcrishna’s departure, to pass without seeking possession. On these grounds the decree of the court below was reversed. A. Bell, Esq., A. further appeal was made to the Judge of the Zillah. ° ' The court held it proved that the house was the joint property of the plaintiff and his brother Balcrishna, and gave judgment, in amendment of the Assistant Judge’s decree, that the attachment should remain on one-half of the house. Present. A special appeal being allowed in the Sudder Dewanee G Riisn^Jud^e.’ Adawlut, the case was referred for trial to a single Judge; J. Pyne, Esq. defendant did not appear, and the case was decided Puisne Judge. . ° ex-parte. D. Greenliill, Esq., The sitting Judge held the question to be whether Puisne Judge. p|ajnt^ad, improving the'property, acquired a right to his brother Balcrishna’s share, as it appeared to be established that the house was the property of their father; and he therefore consulted the Shastree as to whether a mortgage by a younger brother of an undivided property, without consent of the elder, who had added to and improved it and had possession, held good to the extent of his share, or to any part, so as to oust the elder brother. The reply of the Shastree was to the effect that a younger brother was incompetent to mortgage an undivided property without the consent of the elder, except in cases of great necessity, such as extreme distress, Which have been recognized by the Shaster, but that inSUDDER DEWANEE ADAWLUT. 245 liquidation of a debt contracted during the life of their 1839 father, and during the time they lived as an undivided Ballojee Bappoo-family, the share considered as that of the younger would jee Hurbareh, go to the mortgagee, although possessed by the elder bro- Venkapa*Newada. ther. Applying this expositon of the law to the case, it appeared that the share or its value cannot be alienated, and that therefore the attachment must be entirely raised. The full court concurring in this view, final judgment Present. was given accordingly on the 12th Septermber 1839, and G’^sn^judge? ’ the costs in all courts placed on the respondent. J- Pyne, Esq., Actg. P. J. —... -_____ D. Greenhill, Esq., Puisne Judge. No. 58. Amrut Row Trimbuck Pehtay....................... .Plaintiff, versus Trimbuck Row Amrutayshwur, and Nar-rain Row Trimbuck Rajmecheekur, a minor, his mother and guardian Bageer-thee Baee .......................................Defendants. [Ruled in the Sudder Dewanee Adawlut, that by Hindoo law a son’s share of ancestral property specially appropriated for his maintenance is not attachable in satisfaction of his father’s debts during the life of the latter.] This appeal was from a decision in the court of the Agent for Sirdars at Poona, the parties being of the privileged class. The appellant was plaintiff, and is the son of respondent Trimbuck Row Amrutayshwur, against whom the other respondent Narrain Row Rajmecheekur had a claim for Rupees 10,470-13-6. This claim was by mutual consent referred to arbitration. The award was given against, Trimbuck Row, and ordered to be satisfied from the estate of his family situated at Nassick, and which had : been held in possession for some time by his son Amrut Row Trimbuck. An attachment was placed246 CASES DISPOSED OF BY THE Amrut Row Trim-on the estate in conformity with the arbitrator’s award, kUCk and the plaintiff then brought his action against the de- Trimbuek Row fendants jointly to raise it, laying damages at Rs. 5,550. and”N^rraia"row. support of this claim it was urged that plaintiff held the property in question as part of the ancestral family estate, which had been made over to him by his father by a Farkhuttee, or deed of release; that he had held possession and sole management of the estate for 20 years past; that by plaintiffs exertions and perseverance, the property had been continued in the family at the time the British power succeeded that of the Peishwa, and that it stands in plaintiff’s name in the records of Government; that plaintiff’s father, the defendant Trimbuck Row, is of a profligate character, and under Hindoo law it is allowable in such cases for a son to preserve the ancestral property from being squandered away ; that on account of differences with his father, he lived on the Nassick estate and his father resided and lived on that at Poona ; that his father has no claim on him, and he (plaintiff) is in no way liable for his debts. The defendants filed separate replies. Defendant Trimbuck in his answer corroborated the statements of the plaintiff, and renounced all claim to the Nassick estate, and stated that he was induced by the Rajme-cheekur to mortgage the estate to him, and that the Rajmecheekur is alone liable for the transaction. The defendant, the Rajmecheekur, in his answer denied the right of plaintiff to interfere in the management of the family estate during his father’s life-time, and asserted that it was contrary to law and precedent; that plaintiff had only filed copy of the Farkhuttee asserted to have been passed to him by his father, of which the original had been denied by the latter, and that the father and son had combined to deprive defendant of his money.SUDDER DEWANEE ADAWLUT. 247 The Agent of Sirdars was of opinion that the point at Amrut Row Trim-issue depended on the Hindoo law of inheritance, and buckJ^e^tay> referred to the Shastree whether a son can hold family Trimbuck Row property during the life-time of his father, and, if so, a^NaJrabRow. whether he is liable for debts incurred by his parent. The answer of the law officer was :— ^ ^ 1st. During his father’s life-time a son has a claim Agent, on his father’s property, but he cannot dispose of it as he pleases. 2nd. Whether a father possesses property or not, and whether a son takes charge of it or not, he must, by reason of his consanguinity, pay his father’s debts. This reply being deemed unsatisfactory, the law officer was further asked— 1st. Can a father, by Hindoo law, during his lifetime, alienate property ? 2ndly. Can property so alienated be held available for the debts of the father, supposing it to have been for a period of twenty years, under the separate management of the son, by, and with the father’s consent, the latter disavowing all claim thereto ? The reply elicited by these queries was to the effect that— During the life of a father, the consent of his son is requisite for the disposal of property by gift or otherwise. if the immoveable property has been divided, and the son has managed his share separately for twenty years, nevertheless the son’s share of the property is liable to be claimed for the liquidation of his father’s debt in consideration of his having received it from his father, and of the relationship existing between them. This opinion, was stated to be derived from the chapters on division of inheritance and liquidation of debts contained in the Myookhs Mitakshura and other books.248 CASES DISPOSED OF BY THE Amrut Row Trim- It appeared to the court, from consideration of the b“k£hto* evidence brought forward, that the plaintiff had held Trimbuck Row uninterrupted possession for twenty years, of property atvd™Nan'allr'l'low. set aPart by his father for his maintenance ; that the imbecility and incapacity of the latter were evident, as also that the same had been taken advantage of by the defendant, the Rajmecheekur, and the single arbitrator who passed the award that led to the sequestration of the estate; nevertheless, under the Shastree’s exposition that a father cannot alienate property in favour of his son, the court was reluctantly compelled to record judgment, nonsuiting plaintiff. In consideration, however, of the circumstances, the whole costs were placed on the defendant. In appeal to the Sudder Dewanee Adawlut, the plaintiff quoted as precedent in his favour Nos. 221 and 537, of the Sudder Adawlut’s file, under which, as well as on the original grounds of action, he claimed a decree. The two cases quoted by plaintiff were of disputed succession, and the opinions of the Shastrees recorded in them were to the effect that a father cannot by Hindoo law dispose of hereditary property without the consent of his son or other heirs, and that should a son during the life of his father wish to live separate, he is authorized by the Shaster to take his share of the hereditary property. The G. Giberne, Esq. sitting Judge who first heard the case, resolved to take the opinion of the Shastree of the Sudder Dewanee Adawlut, as to whether the property assigned to a son by a Farkhuttee passed to him by the father, could be held available for the liquidation of debts incurred by the father before the date of the deed. The Shastree’s reply was as follows :— “ A father and son have equal claim on ancestral pro-“ perty, according to the laws laid down in Metakshura (line 7, leaf 50, page 1, chapter II, on inheritance)SUDDER DEWANEE ADAWLUT. 249 u Hence it follows that if a son has taken possession of Amrut Bow Trim- “ his share of the ancestral property, and a release has buck ^e^tay’ “ been passed, and if his father be free from any incur- Trimbuck Row “ able disease, the father’s debt cannot be recovered from a^d^Nan-ain'llow. “ the share allotted to his son. Again, the precepts laid down in Metakshura (chapter II.) regarding the dis-“ charge of debts, enjoin that in the absence (death) of “ a father, the son should discharge his debts. From “ this it follows that during the father’s life-time his “ son is not obliged to liquidate his father’s debts.” Under this opinion, which would reverse the judgment of the court below, the sitting Judge referred the case to a full court. The court considered that the opinion given by the Shas- Present. /"'I * 1 "|^ tree of the Poona Adawlut required further elucidation, ’p^sn^Judge'' and reference was ordered to be made to the Agent to J. Pyne, Esq., know whether his law officer intended to declare that, D tirfenhil^Esq under Hindoo law, a son was liable for the debts of his Puisne Judge, father still living, although holding a share of the ancestral property made over to him by his father for his separate maintenance. The reply was as follows:— “ In the former answers I made no allusion to ances-“ tral property, which was not referred to in the question, “ but if a son possesses a share of property received from “ his father, and his father be in debt, the son should “ discharge the debt—my former exposition of the law “ was to this effect, and it is borne out by the authority “ of the Shastree, viz. in Vuvher Myhook (line 5, page “ 179, commencing from the precept of Katyegne) it is “ stated that a debtor after death becomes a slave, servant, “ wife, or beast of burden to his creditor. Again, in “ Bruhusputtee (line 2, page 100) it is stated that a son “ should pay off his father’s debt as his own. Again, “ Yudneevulkee (same page, line 3) states, if a father be 32 d REPRINT250 CASES DISPOSED OF BY THE Amrut Bow Trim-buck Pehtay, . vs. Trim buck Row Amrutayshwar, and Narrain How. J. Pyne, Esq., Actg. P. J. D.Greenhill, Esq., Puisne Judge. 19 Sept. 1839. “ gone out of the country, or if he be dead, or affected “ with incurable disease, his son or son’s son must pay “ his debts. It is further stated in the commentary on “ the precepts of Yudeea Vukea (line 9, page 1, leaf 20, “ Section on debt of Meetakshara) if the father dies “ without paying his debts, or be gone out of the country, or is affected with incurable disease, &c., his son or “ son’s son should pay off his debts, even if the father “ have left no property.” “ The expression * incurable disease’ is to be under-“ stood as referring to disease either mental or bodily, and “ a father having the anxiety of his debts on his mind, “ may be considered as suffering from mental disease, and “ therefore it is binding on his son to discharge them. “ The exposition of the law that I have given is support-“ ed by the authorities I have quoted, as well as other “ law books, and finally I have to give it as my opinion, “ that as the circumstance of a person being in debt “ renders him unhappy both in this world and in the next, “ and is more distressing than any disease, therefore a “ son is bound to discharge the debts of his father during “ the latter’s life-time, and if he have derived no property “ from him. If the son have a share of the ancestral “ property, still he should give it up for the liquidation “ of his father’s debts, since the possession of that share “ does not destroy the relation existing between them.” This answer was insufficient to convince the court of the liability of the appellant, and under the exposition of the Shastree of the Sudder Adawlut, final judgment was passed raising the attachment in reversal of the decree of the Agent, and placing all costs on the respondents.StJDDER DEWANEE ADAWLUT. 251 No. 59. Geereeappa Dessaee.................................Appellant, versus Bishtapa Poojaree..................................Respondent. [The award of a Punchayet under a mutual and voluntary deed of reference cannot be set aside.] This was an action to recover the Dessaeegeeree wuttun of the village of Jegoor. Geereeappa, the appellant, sued as lineal descendant of the original holder of the wuttun, defendant claiming to have preferable right by inheritance, as well as by the adoption of his father on failure of issue in the direct line. The plaintiff disputed the validity of the adoption of defendant’s father, he having belonged to the younger branch of the family, as contrary to the Shaster and the custom of the country, while there was a representative of the older branch living. The suit was first brought forward before the Principal Collector of Dharwar, and, by mutual consent, the matter Deedofreferenee was referred to a Punchayet, whose award was to be Novem" final. The award was in favour of the plaintiff, and notwith- Award of arbitra- standing the conditions as to the finality of the decision, 15t!l an appeal was admitted in the Collector’s court, which was transferred to that of the Judge under the act for changing the jurisdiction. The Judge held that plaintiff s claim was good accord- J. Shaw, Esq., ing to the custom of the country and the law of the Shas- Zll!ah Judge, ter, but it was also held that defendant had possession under a sunnud from the Goklay government before the British rule obtained in that part of the country, and the Judge considered it established that the family in the252 CASES DISPOSED OF BY THE 1810 Jegoor line having become extinct, the Government had Geereeappa Des- a right to confer the wuttun on whom they pleased, and saee, although the plaintiff held the sunnud, dated a.d. 1722, B«'shtapa Poojaree. conferring the Dessaeegeeree on his ancestors, yet on its lapsing by the failure of heirs in the direct line, the defendant’s sunnud, dated a.d. 1810, superseded the former. 8 December 1838. The award of the Punchayet was therefore reversed, and a decree passed for defendant with costs. In the Sudder Dewanee Adawlut an appeal was admitted specially, it appearing to the court that the arguments of the Judge rather set forth the justice of the A. Bell, Esq., plaintiff’s claim, and because it is not the practice of Actg. P. j. Government unnecessarily to interfere with hereditary ^ Actg6' pf J' rights, which are usually left to the decision of the civil courts. The plaintiff sought a decree in his favour, on the grounds of the original action, and also quoted Nos. 417 and 754 of the Sudder Dewanee Adawlut’s file, as showing the practice of the court with reference to the degree of importance to be attached to awards of a punchayet passed subsequently to districts coming under the operation of the regulations, the deed of reference being entered into previous to that date. J. Pyne, Esq., The sitting Judge considered it clearly established by Actg. P. J. reference that the award made was to be final, and also that by the precedents quoted, this award should be treated according to the provisions of Regulation VII. of 1827, and, under this view, he recorded his opinion that the Judge’s decree should be reversed, and the award G. Giberne, Esq., the punchayet in plaintiff’s favour should be affirmed, Puisne Judge, and all costs thrown on defendant. ^ Acto-!’RSj.’ A court agreeing in the above view, a decree was D.Greenhill, Esq., passed accordingly. Puisne Judge. Decree, 12th Oct. 1829.SUDDER DEWANEE ADAWLUT. 253 No. 60. Baee Gunga, daughter of Bhawanee.....................Appellant, versus Sukharam Cristnajee, and two others. . . .Respondents. [Action for damages on account of defamation of character. The plea of justification of the libel not being sustained, the defendants were held liable, in the Sudder Dewanee Adawlut, in mitigated damages, with costs.] This was an action for damages on account of defamation of charaqjter and exclusion from conjugal rights, and was brought by the appellant against her husband, Sukharam, for an injunction to receive her back into his house, and against the other respondents as heads of the caste, and one Gunputtee, her husband’s brother, claiming Rupees 30 as damages for excluding her from the caste, on the asserted grounds that she had eaten or drank, or had illicit connection with a Mussulman. It appeared that the plaintiff was detected in a suspicious situation with a Mussulman one night in the village of Khoorsud, where the parties resided, near a well, in consequence of which her husband turned her out of his house, and she retired to that of her father at Surat. Some months afterwards, on the death of her mother-in-law, she was refused participation in the funeral ceremonies, as being excluded from the caste, and in consequence she brought the action as above. The defendants pleaded as a justification that the imputation against plaintiff’s character was well founded, to which they called evidence. The Sudder Ameen of Surat was of opinion that the Ardaseer Dhun- defendants had not proved the fact of an illicit il>tei'course ^mee!^ Sudder between the plaintiff and a Mussulman as asserted, and254 CASES DISPOSED OF BY THE 1840 Baee Gunga vs. Sukharam Crist-najee, and two others. Ferozshah Dhun-jeeshah, Principal Sudder Ameen. H. Hehbert, Esq., Acting Assistant Judge. G. E. Elliot, Esq., Zillah Judge. as she had suffered in her character by the imputation* he decreed in her favour to the extent of the amount sued for, and ordered that her husband should receive her back. Defendants appealed, stating that plaintiff’s husband having been obliged to perform “ deshood praschit ” (purifying ceremony) on account of her conduct, it was proper she should do so also, after which they were willing to admit her to caste privileges ; and the Principal Sudder Ameen, agreeing generally in the decision passed in the Sudder Ameen’s court, held nevertheless that there being a suspicion on the conduct of plaintiff, that it was proper she should perform the cc deshood -praschit ” according. to the Shaster, after which the decree of the Sudder Ameen should be carried out, by her restoration to caste and conjugal rights. To this effect he decreed, amending the judgment of the court below, and throw* ing all the costs on defendant Sukharam. The plaintiff appealed against this decree, contending that her consent to perform the “deshood praschit” would be an acknowledgment of the truth of the imputation cast on her character by the defendant, and that she would be thereby disgraced, and praying the affirmation of the decree of the Sudder Ameen. The Assistant Judge of Surat recorded his opinion that as the criminal act with which the plaintiff was charged was in no way established in evidence, it was unjust to treat her as guilty by obliging her to perform the “ deshood praschit.” The plaintiff had sued for damages to the amount of Rs. 30 on account of loss of character, but the Assistant Judge held that Rs. 5 would be sufficient to award on this account, and under this view he amended the decree of the lower courts, and laid the costs of the appeal on the defendants jointly. The defendants, with the exception of Gun puttee, still dissatisfied, appealed against this decision to the ZillahSUDDER DEWANEE ADAWLUT. 255 1840 Judge, whose view of the case agreed with that of the ^ I , . io ti . . Baee Gkmga Principal Sudder Ameen. He considered that suspicion vs. must necessarily rest on the plaintiff on account of the Sukharam Crist-, i-ii . • najee, and two circumstances under which she was detected m company others. with a Mussulman, and as the defendants were willing to admit her to caste rights on the performance of “ des- hood praschit,” and he considered that no disgrace would thereby attach to her, he was of opinion that it was proper she should go through this ceremony. He affirmed the decree of the Principal Sudder Ameen, and reversed that of the Assistant Judge, with costs in appeal on the plaintiff. A speciifl appeal was admitted in the Sudder Dewanee ^Pre^nt-Adawlut on the petition of the plaintiff, the grounds of the ^g Puisne^iudge. Judge’s decree appearing to the court to be erroneous. pyne.> Esq. Act-The Judge who first sat in the case recorded in his mg Puisne Judoe* opinion that nothing being proved against the plaintiff, G. Giberne, Esq. the enforcement of a penance was arbitrary and unjust. He would therefore award Rs. 5 as damages, unless Present, plan tiff’s husband consented to receive her back. Under S. Marriott, Esq., this view, the case was referred to a full court, when the A.^ell^Esqf^ct-majority of the Judges present agreeing in the above view ing Puisne Judge, of the case, a decree was passed in conformity to the same, ^ ^isne^Jud^e^ and all costs thrown on the respondents. 28 January 1840. Mr. Greenhill dissented from the judgment. He considered the act of defendants justified by the strong suspicion that attached to the conduct of the plaintiff, and that the appeal should be dismissed.256 CASES DISPOSED OF BY THE No. 61. Special. No. 1352. Narroo Gunnish Puranjey..............................Appellant, versus Govindrao Bhiccajee Abbenkur........................Respondent. Special. No. 1353. Buggoobaee, widow of Ramchunder Gun- gadhur ..........................................Appellant, versus Govindrao Bhiccajee Abbenkur........................Respondent. Special. No. 1354. Juggonath Sumbhajee Goklee...........................Appellant, versus Govindrao Bhiccajee Abbenkur.....................Respondent. [Claim for damages on account of conspiracy cannot be sustained in a Civil Court.] These suits arose in consequence of a charge made by the appellants against Govindrao Bhiccajee, the respondent in all three cases, before the Magistrate of Poona, of forging a mortgage bond, conveying to himself a house, the property of one Sudasew Bhasker. To answer this charge, Govindrao was called on to give security for his appearance in the sum of Rs. 2,000, and being acquitted in the court of the Assistaut Judge, he brought an action against the three appellants jointly, laying damages at Rs. 496 as compensation, viz. Rs. 200 for theSUDDER DEWANEE ADAWLUT. 257 expense incurred in obtaining bail, and Rs. 100 1840 vakeel’s fees, with Rs. 196 for loss of time, occasioned jfaroo Gunnesh by the false accusation of the defendants against him, Puranjey, . VS, interest, &c. Govindrao Bhicca- The defendants filed separate answers to this plaint- jee Abbenkur. Naroo pleaded that he did not accuse the plaintiff, but merely gave evidence to the fact that plaintiff asked him to witness the mortgage bond, which he refused, believing it to be a forgery. Defendant Bugoobaee pleaded likewise that she was merely a witness for the prosecution ; and Juggonath answered that believing the mortgage bond to be forged, he gave information of the same to the proper authority, for which he could not be liable to damages, as he might have been punished for concealing the transaction. The Principal Sudder Ameen of Moro Trimbuck, Poona, before whom the case was first tried, considered j^een^ ®U(^der that the defendants had, by their accusation of the plaintiff, caused him a certain loss, in the amount required to furnish bail, and that the charge being subsequently proved false by the acquittal of plaintiff before the Session court, that they were bound to make good the actual expense incurred on the above account, and also that for vakeel’s fees. He therefore awarded to plaintiff Rs. 300, disallowing the claim for loss of time and interest. From this decision cross appeals were preferred by the parties, the plaintiff to recover the amount claimed for interest disallowed by the Principal Sudder Ameen’s decree, and the defendants for the reversal of that decree, to which end they filed separate plaints, on the grounds of their original answers. The Assistant Judge considered the grounds of the J. W. Langford, Principal Sudder Ameen’s decree to be erroneous, since /-ftmg As-, , v. i i, 11111.1 ip i sistant Judge, the defendants could not be held liable tor merely giving evidence, which, moreover, was not proved to be false against plaintiff. He reversed the decree of the court 33 d REPRINT258 CASES DISPOSED OF BY THE 1840 below, and threw all costs on plaintiff, who again appeal- Naroo Gunnesh ec^ *n cour*; °f the Zillah Judge, stating that as it Puranjev, was established that defendants had given such evidence Govindrao Bhicca-as to a c^arge> subsequently disproved, being prefer-jee Abbenkur. red against him, which did actually occasion the loss complained of by him, his claim on them for compensation was good. The Judge of the Zillah disagreed with the Assistant 6,^Giberne,Esq.^ Jll(jgej and holding plaintiff’s claim to be just, he revers-Judge! ed the Assistant Judge’s decree, and affirmed that of the Principal Sudder Ameen. The defendants presented petitions of special appeal in J Pyne^Esq ^ie Sudder Dewanee Adawlut, praying to be relieved Acting P.’ J. severally of their share of the damages awarded, and urging that being liable in a criminal court to punishment D ’ f°r perjury if their evidence against the plaintiff before the Magistrate were false, they could not be liable in a civil action. The appeals of the defendants were admitted specially on the grounds of the case appearing to be excluded from the civil courts by Section II. Regulation XIV. of 1827. D.^reenhill^Esq., The cases were first heard by a single Judge, who ° ’ considered that, independent of the abstract merits of the case, there was an important question to be decided before they were entered upon. The cause of action being an alleged crime on the part of the defendants, viz. conspiracy, as defined in Section 1 Regulation XVII. of 1828, the point to be decided was whether conspiracy can be made the subject of litigation in a civil court with reference to Section II. Regulation XIV. of 1827, which was accordingly referred for the decision of a full Present. ° J G. Giberne, Esq., c°Ul’t. J. Pyne, Esq. Act- In a full court it was held that the provisions of 1). G^eenhHij Esq! j Regulation XIV. Section II. are precise, and the penal Puisne Judge, acts liable to be the cause of a civil action, detailed, andSUDDER DEWANEE ADAWLUT. 259 conspiracy not being one of them, it was ruled that dam- *840 ages arising from conspiracy cannot form the subject of Naroo Gunnesh litigation in a civil court. Puranjey, On the cases being again brought on for hearing, the Govindrao Bhicca-sitting Judge under the above interpretation recorded jee Abbenkur. his opinion that the decree of the Zillah Judge should D. Greenhill, Esq., be reversed, and that the costs should in accordance Puiane JudSe-therewith be borne by the respondent, and referred the case to a full court for final decision. It was finally decided in full court, in conformity with „ „ *>ri:sent\, , . . , . . t i i i i i i i S. Marriott, Esq., the opinion ot the sitting Judge, that the appeals should puiSne Judge. be affirmed, but in consideration of the peculiar circum- Alex. Bell, Esq., stances of the case, the court awarded all costs to be borne dGreenhill, Esq., by the appellants. Puisne Judge. 31 January 1810. No. 62. J. H. Pelly, Esq., Collector of Customs for Guzerat and the Conkan. ........................Appellant, versus Nusserwanjee Pestonjbe...........................Respondent. [Action to establish right to levy Hucks on the transit of Cotton Wool, disallowed by proclamation of the Collector of Customs, who replied that the transit duties having been abolished by Regulation IV. of 1834, all hucks dependant thereon must cease. It wras held in the Sudder Dewanee Adawlut that by Act XX. of 1839, the authority of the Government was required by means of proclamation before the rights of individual huckdars could be interfered with, and defendant was declared liable for the amount claimed.] This was an action brought by the present respondent to recover from appellant Rs. 93, being the value of certain hucks, on the transit of cotton wool into the city of Surat, the levy of which by the plaintiff had been prohibited by an order of the defendant, issued in his official capacity of Collector of Customs. The plaintiff260 CASES DISPOSED OF BY THE 1840 claimed the hucks by right of purchase from the original J. H. Pelly, Esq., huckdar. The defendant pleaded specially that Regulation IV, ^usservvanjec Pes- ^ i§34, abolished all transit duties on cotton wool, and that consequently all fees or hucks dependant thereon ceased. The case was brought before the Sudder Ameen of Surat, and it was held that defendant’s plea in justification could not be sustained, the law quoted not abolishing all duty on cotton wool, but substituting* an export duty of 5 per cent, for that previously levied on transit. The said enactment wras likewise silent regarding huck-dar’s fees; and the defendant having thus failed to establish his right to prohibit their levy by the plaintiff, 31st July 1838. an(^ ^e amount sued for being satisfactorily established to be due under the claim, judgment was given for plaintiff, with costs. II. Hebbert, Esq., ThiS decree in appeal to the Assistant Judge was Af'J’ino* A^ Judsre’. affirmed on the 19th November 1838, and further affirmed G. L. Elliot, Esq., by the Judge of the Zillah court of Surat on 6th February 8 ’ 1839, on the same grounds as those that guided the first judgment. The defendant still dissatisfied, prayed the admission of a special appeal in the Sudder Dewanee Adawlut, and when his petition was considered, in addition to the Pr6S6nt «»' n . ... G. Giberne, Esq., original plea, the defendant disputed plaintiff’s right to Acting Puisne the hucks. The new ground of objection was held to be J Pyn^Esq, inadmissible, plaintiff’s right to the hucks not having Acting Puisne been disputed in the original investigation, nor questioned D "oreerthill Esq *n ^ie previous appeals. The special appeal was, however, Puisne Judge, admitted on grounds of doubts as to the application of the Regulation quoted by the defendant to the case, and consequently as to the legality of the decisions of the courts below. A. Bell, Esq., The case was first heard by a single Judge, who record- Actm0* Puisne . Judge! ed his opinion that by every consideration of equity,SUDDER DEWANEE ADAWLUT. 261 the plaintiff was entitled to judgment in his favour, but I8*10 that Act XX. of 1839 rendered it imperative on the court j jj peiij, Esq., to affirm the appeal. By the above law it is enacted r that the legality of any orders which may have been 1’s'usse^'™i<'e ^e3‘ heretofore issued, or of any orders which, conformably with this Act, hereafter shall be issued by the Governor in Council of Bombay, for prohibiting the levy of any such hucks, fees, or customs, or alienated shares of any such items of revenue aforesaid, shall not be questioned in any court of law. Under this view, the sitting Judge referred the case to a full court. Final judgment was given on the 13th February 1840, Present. S Marriott Es when the appeal was dismissed, and the decrees of the p^^ud^e?’ courts below affirmed, with costs. A. Bell, Esq., Act- The grounds of the decision, concurred in by Messrs. D^Greenhiil, Esq., Marriott and Greenhill, were as follows :— Puisne Judge. Mr. Marriott.—“ Act XX. of 1839 makes it lawful 46 for the Governor in Council to prohibit the levy of “ hucks and fees of every description on customs after “ the relinquishment thereof by Government. But the “ customs were not virtually abolished by Regulation 46 IV. 1834, so far otherwise indeed that, judging from “ its preamble, there would appear to be a virtual negative “ admission, that the law wras not even designed to abolish “ a duty, but merely to put the levying of it in a more “ convenient form, the object being, as specially stated “ in the preamble, to prevent temptation to fraud, trouble, “ and delay to the mercantile community, from the “ working of the system as it then stood. Accordingly “ a fixed duty was established in lieu of the various “ items then existing, and as nothing is said to the con-“ trary in the preamble, it may fairly be presumed that “ the new duty was estimated to be an equivalent for the “ aggregate of those for which it was substituted. The “ abolition of the hucks is made by the law to be dependent262 CASES DISPOSED OF BY THE 1840 J. H. Pelly, Esq., vs. Nusserwanjee Pestonjee. Dated, 11th Mar. 1835. No. 28. “ upon the relinquishment of the duty by Govern-“ ment, and as this latter has not been proved, but “ rather the contrary, the hucks in question continued “ unaffected. “ It appears that respondent was deprived of his hucks “ by virtue of a proclamation issued by the Collector of “ Customs forbidding the levy of hucks by any person “ whatever. It is not stated that this prohibition is made “ under the order of Government, nor does any order ap-“ pear in the case from Government to that purport. But “ such authority was essential to give validity to the pro-“ cedure under the provisions of Act XX. of 1839, even if “ the other objections against appellant were overruled. “ In adjudicating upon an ex-post facto law, which “ goes to abolish private rights or possessions, the court “ cannot be too guarded and scrupulous, both in the “ admission of evidence and forming its decisions, parti-“ cularly when it is considered that in point of fact the “ Government is both the legislator and defendant. “ Upon a view of the whole case, I am of opinion “ that appellant was not justified in depriving respondent “ of his hucks. I would therefore dismiss the appeal “ with costs on appellant.” Mr. Greenhill.—“ Regulation IV. of 1834, Section I. “ abolishes all duties upon cotton wool whether in the “ shape of sea or land customs or transit duties (hucks “and town duties not mentioned here), and Section V-“exempts it from town duties only where it has previ-“ ously paid the new sea custom substituted for the old. “ This general rule and exception would go to show that “ hucks were not abolished more than town duties; and “ it is more important to bear this in mind, as it may be “ of weight in considering the application of a subsequent “ law. In the mean time I would note that it does not “ appear that an abolition of the right in question hadStJDDER DEWANEE ADAWLUT. 263 “ taken place when the suit was filed, there being no 1840 “ legal proclamation on the record. j n.lpeilyTEsq., “ The claim was preferred in 1835. vs. “ In 1839 an Act XX. of that year was passed mak- ^USSe™njneee.e *>6S" “ ing it lawful for the Governor in Council to prohibit “ the levy of hucks and fees of every kind enjoyed by ** holders of rent-free land or other persons, and of “ alienated shares of any item of revenue, after the aboli-‘‘ tion or relinquishment thereof by Government. Now *' referring to the previous remark that hucks were not “ abolished by the Act of 1834, it would appear by this “ last enactment that the abolition or relinquishment “ must take place before the prohibition can be binding. “ The second Section of the Act of 1839 does not admit “ the legality of any orders heretofore issued for prohibit-“ ing to be questioned, but I again observe that the “ hucks in question have never been prohibited, and there-“ fore there are no orders to question. “ The third section provides that any person levying “ hucks, &c. after their prohibition has been published “ in the Government Gazette and by notice fixed at the “ port where claimed, shall be punishable, &c. “ In a few words there is no proof that the huck has been prohibited at all by a law or by an order of Govern -“ ment, or that any publication has appeared in the “ Government Gazette or at the port or place where they “ are usually collected, excepting a notice by the Collec-“ tor of Customs of his own authority, and therefore it “ appears to me that the respondent’s claim is good.” “ I am of opinion, therefore, that the appeal should be “ dismissed, and that appellant should pay the whole “ costs.”264 CASES DISPOSED OF BY THE No. 63. Sorabjee Wacha Gandy.................................Appellant, versus Koowurjee Maneckjee .................................Respondent. [It was ruled in tlie Sudder Dewanee Adawlut that simple interest at 6 per cent, per annum is leviable on the sum awarded by a decree of H. Majesty in Council, from the date of deposit in execution of the decree of the Sudder Dewanee Adawlut to the date of execution of the final decree. It wras likewise ruled in this case that a lien on property under a mortgage bond cannot be set aside by a claim on a surety bond for cost, under a deed of prior date to that of the deed of mortgage.] This is a case in which appellant Sorabjee had obtained a decree of H. M. in Council, dated 1st December 1836, in reversal of two several decisions of the Sudder Dewanee Adawlut of the dates 14th April 1818 and 12th May 1819 respectively. In process of execution of the above decree, the appellant presented a petition in the Surat Adawlut, praying that interest might be allowed on the sum awarded under the decree of H. M. in Council from the date on which he had deposited the said sum in satisfaction of the decrees of the Sudder Dewanee Adawlut, up to the date of execution of the final decree he now held in his favour. Esq., It was ordered on the 23rd January 1838 that appellant Zllidh should recover simple interest at the rate of 6 per cent, per annum. On this the appellant petitioned the Sudder Dewanee Adawlut that the above order of the Zillah court might be amended, and interest allowed him at the rate of 12 per cent. The heirs of the respondent likewise petitioned that the order of the Zillah Judge awarding interest to appellant should be annulled, as there was no mention made of interest in the decree of H. M. in Council. The case was decided on the 19th March 1838,SUDDER DEWANEE ADAWLUT. 265 when both petitions were rejected, and the orders of the 1838 Zillah Judge awarding simple interest at 6 per cent, per Sorabjee Wacha annum was affirmed. The majority of the court held Gandy, that the case was governed by a decision in the case of Koowu^e’e Ma-Burjorjee Ruttonjee Entee, versus Eduljee Cowasjee, in neckjee. which the appellant, holding a decree of H. M. in Present. Council in his favour, moved the court in execution of the ‘ Acting^’senwr same, and it was ruled on the 2nd February 1829, under Puisne Judge, the opinion of the Advocate General, that in respect to J‘Actg6’V*x’’ interest on any sums paid over to respondent in D. Greenhill.Esq., execution of the decree of courts in this country, that simple interest on such sums should be recovered from g. w Anderson, the respondent at the rate of 6 per cent, per annum. It ®S(J,> Offg. Sr-was likewisfe so ruled on the 30th December 1830, in the j.Henderson,‘Esq!j case of Burjorjee Ruttonjee Entee, versus Cursetjee Ko- Acting Puisne masjee and Pestonjee, sons of Palunjee. Judge. Mr. Greenhill recorded his dissent from the above decision; he held that the appellant had been burdened with compound interest at 12 per cent, by all the decrees of the courts in this country, and that he should in equity recover at 9 per cent, compound interest, otherwise the opposite party would be the actual gainer, although the case had gone against him ; under these circumstances he held that the precedents quoted should not govern the case in regard to the rate of interest. In further process of execution of the decree of H. M. in Council, the appellant then moved the Zillah court of Surat to attach the property of Sorabshaw Talyarkhan, respondent’s security, in satisfaction of appellant’s claim on him, which was done on the 6th July 1838. It appears that the above Sorabshaw Talyarkhan became security for respondent on the appeal to H. M. in Council being admitted in a.d. 1819, and that he subsequently, on the 28th September 1826, mortgaged a portion of his property to one Pestonjee Nusserwanjee, 34 d REPRINT266 CASES DISPOSED OF BY THE- 1838 deceased, whose son Nusserwanjee Pestonjee, on the 24th Sorabjee Wacha October 1837, issued a notice against the purchase, mort-Gandy, gage, transfer, &c. of tlie said property. Koowurjee Ma- The said Nusserwanjee Pestonjee further, on the 3rd neekjee. July, obtained a decree in the Zillah court against the said Sorabshaw Talyarkhan on his mortgage bond ; and on the 7th August following, on application an order of the said court in execution of this decree for the sale of the defendant’s property, which had been attached by the appellant Sorabjee, was issued ; the Judge considering the claim of Nusserwanjee Pestonjee under a mortgage on the property superior to that of the appellant. Sorabjee presented a petition to the Sudder Dewanee Adawlut on the 8th October 1838 for this order of the Zillah court to be set aside, his attachment of the property being prior to that of Nusserwanjee, who likewise petitioned the court to confirm the Zillah Judge’s order for the sale of the estate in his favour. The matter was heard on the 19th November 1838, when the court decided that there was no cause for interfering. Present. Sorabjee again prayed the court to revise their decision 4 ^ on P°’nt’ which was finally decided, on the 1st April U. GilTerne.Esq., 1839, by a resolution referring the petitioner to the Puisne Judge, former order, but with the amendment that should there j Pyne Escj. Actg.’ P. J.’ be any property of the security Sorabshaw Talyarkhan I). Greenhill, Esq., not included in the deed of mortgage, that the attachment Pmsne Judge. pjace(j Sorabjee should hold good on such portion. Mr. Bell considered that the party who obtained a decree on the mortgage bond should be required to institute a suit to raise the attachment placed by Sorabjee Wacha Gandy on the property. The grounds of the court’s decision, concurred in bv ” 7 */ the majority, appear from the following opinions of the sitting Judges. Mr, Giberne.—“ It does not appear to me that anySUDDER DEWANEE ADAWLUT. 267 “ further order is necessary. The Judge considered the 1838 “ claim to the property by Sorabshaw Talyarkhan para- gorabjee Waclia “ mount, and might release the attachment undertaken Gandy, “ through Sorabjee Gandy, as Section LXVII. Regula- Koowurjee Ma-“ tion IV. of 1827 allows of the court having this neckjee. “ power; it provides for a claimant establishing his claim “ to the property to the satisfaction of the court, 'when “ the court is at liberty to relinquish the attachment.” Mr. Pyne.—“ The point for consideration is whether “ Sorabjee Wacha Gandy, from having attached the “ property of his surety on the 6th July 1838, prior to “ Nusserwanjee Pestonjee (who had obtained a procla-‘‘ mation prohibiting any one receiving it in transfer), “ but who had not attached it till the 7th August 1838, “ has a stronger claim upon it than Nusserwanjee, who “ had a lien founded on his mortgage bond. “ At the period Sorabshaw Talyarkhan became security “ for Koowurjee Manuckjee, it is clear from the decree, “ No. 156 of 1824, that he had mortgaged some portion “ of his property to Ruttonjee Manuckjee; in order “ to redeem this mortgage, he borrowed from Pestonjee “ Nusserwanjee Rs. 9,000, and transferred the property “ or a portion of it to him. The honesty of this “ transaction cannot, I think, be questioned, and I there-“ fore uphold the decision given by the Judge, and “ confirmed by the Sudder Adawlut, that the proceeds “ of the mortgaged property should be applied to the “ liquidation of the mortgagee’s decree, as Section LIX. “ Regulation IV. of 1827 provides that when a party “ makes default, the court shall investigate the matter, “ and pass such order as shall be consistent with justice. “ Now I think it consistent with justice that Nusser-“ wanjee should recover to the extent provided in his “ decree, that he has bonu fide advanced on a transaction “ antecedent to Sorabshaw being security, in preference “ to Sorabjee Wacha Gandy.”268 SUDDER DEWANEE ADAWLUT CASES. 1838 Mr. Greenhill.—“ The question at issue is whether Sorabjee Wacha “ an appellant has a claim arising out of a security bond Gandy. “ for the due execution of a decree when given in Koowuree Ma- “ appeal, on all the property of the surety from that neckjee. “ date, in supersession of all sales, mortgages, debts, See. “ entered into subsequent to that date. “ I do not think he has. “ If he had, it would be in vain to require security ; for “ every bargain a merchant made after passing a security “ bond, if it were for a suit of 100 Rs. only, would “ be void, if at any future period, the merchant became “ bankrupt, and the amount of suit not forthcoming. “ A security bond can only give the successful “ appellant a claim to sell the free estate of the surety. “ A prior sale or mortgage cannot be evaded. By “ Section LXVIII Regulation IV. of 1827, the first “ attachment under a decree has a preference over one “ subsequently obtained on a decree of prior date. “ As to the inadequacy of the security, it is the busi-“ ness of the party interested to see that it is sufficient “ at the time given, and that it does not become “ insufficient afterwards, see Section XCIII., wherl the “ course on the surety becoming inadequate is laid down. “ The appeal in this case was made about 19 years ago. “ The property was mortgaged to Nusgerwanjee Pes-“ tonjee’s father, Pestonjee Nusserwanjee, 12 years ago, “ and is his, and must be sold in his favour in preference “ to any other general claimant. The other property not “ mortgaged will be liable to appropriation according to “ the date of attachment. The petitioner Sorabjee Wacha “ Gandy being first, has a preference, and to this effect “ I think a resolution should therefore be passed, refer-“ ring to the last decision of the court, with the above “ modification. The petitioner may institute any action “ he pleases as a matter of course.” BOMBA'S I PRINTED AT THE EDUCATION SOCIETY’S PRESS, BYCULLA.