JUDICIAL COMMITTE OF PRIVY COUNCIL
Rajunder Narain Rae, and Cower Mohainder Narain Rae (the two surviving Sons and representatives of Rajah Sree Narain Rae),-Appellants;
Bijai Govind Sing (Son and representative of Bhyajha, deceased),-Respondent 1
ON APPEAL FROM THE SUDDER DEWANNY ADAWLUT OF BENGAL
(REPORTED 2 SUD. DEW.AD. REPS. 23).
Original Citation: (1836-39) 2 Moo Ind App 181
English Reports Citation: 18 E.R. 269
DATE: Dec. 13, 14, 15, 16, 20, 1839.
S.C. 1 Moo. P.C. 117.
Commented on and approved in regard to review of judgments in The Singapore, 1866, L.R. 1 P.C. 388: Ex parte Kisto Nauth Roy, 1869, L.R. 2 P.C. 277; 6 Moo. P.C. (N.S.) 360: Maharajah Pertab Narain, Singh v. Maharanee Subhao Koer, 1878, L.R. 5 Ind. App. 171: Venkata Narasimha Appa Row v. Court of Wards, 1886, 11 A.C. 660; L.R. 13 Ind. App. 155: See also Keerut Sing v. Koolahul Sing, 1839, 2 Moo. Ind. App. 341; Bhugwandeen Doobey v. Myna Baee, 1867, 11 Moo. Ind. App. 506. See next case.
1- Present: Members of the Judicial Committee-Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine], and Dr. Lushington. Privy Councillor-Assessor, Sir Edward Hyde East, Bart.
RAJUNDER NARAIN RAE, and COWER MOHAINDER NARAIN RAE (the two surviving Sons and representatives of RAJAH SREE NARAIN RAE),-Appellants;
BIJAI GOVIND SING (Son and representative of BHYA JHA, deceased),-Respondent *
[Dec. 13, 14, 15, 16, 20, 1839].
On appeal from the Sudder Dewonny Adawlut of Bengal
(reported 2 Sud. Dew. Ad. Reps. 23).
A Soluhnamah, or deed of agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. to compromise conflicting claims, entered into in the presence of witnesses and solemnly acknowledged in Court, by parties who were mutually ignorant of their respective legal rights, cannot afterward be set aside upon plea of ignorance of the real facts, when the party seeking to avoid the deed had the means of ascertaining those facts within his reach [2 Moo. Ind. App. 249, 251-2].
Gross fraud and imposition are not to be imputed upon mere suspicion, and unless the charge is proved, a party cannot be released from an agreement entered into by his own solemn act [2 Moo. Ind. App. 246].
The onus of showing that a compromise has been fraudulently obtained by intimidation and false representation, is cast upon those who seek to impeach the validity of their own deed [2 Moo. Ind. App. 244].
By the Common lawCommon law The legal system that originated in England and is now in use in the United States. It is based on court decisions rather than statutes passed by the legislature. this Court possesses the same power as the Courts of Record and Statute have of rectifying mistakes which have crept in by misprision or otherwise, in embodying- its judgments [2 Moo. Ind. App. 215, 216, 222, 223].
Where, therefore, an Order had been made ex parte, upon the appearance of the Respondents alone, for the dismissal, of an appeal and affirmance of the judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) of the Court below, which purported to be upon the hearing of the cause, the Judicial Committee held, that such Order must be held simply as a dismissal; and it appearing that the Appellants were infants, under the protection of the Court of Wards in IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more, and that the AgentAgent An agent is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. Indian Contract Act appointed by the Court to act as their guardian ad litem, in, the matter of the appeal, had absconded, and abandoned the cause, their Lordships rescinded the Order of dismissal, and restored the appeal on the terms of the Appellants paying the costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. and giving access to the transcript of the proceedings in the Court below, in their hands, and undertaking to lodge cases within five months [2 Moo. Ind. App. 222, 223].
In this case there were three appeals between the same parties. The first respected the validity of a deed of compromise entered into by parties having adverse claims for the property in question. The second, which was incidental, arose from the judgment below being affirmed upon the non-prosecution of the appeal; and the third involved the mode of taking the rests in an account upon which interest was decreed to be paid at the rate of one per cent, per mensem. A claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. to the same property had been the subject of a previous appeal (see Eutchmeputty Ttutt Jha v. Rajunder Narain Rae, Ante [2 Moo. Ind. App.] p. 133).
Rajah Inder Narairi Rae was at the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) of his death absolutely entitled for an estate of inheritance to the Zemindary of Pergunnah, Havila Poorneah, and was also possessed of personal property consisting of jewels and other effects of great value: he died in the year 1784, without issue, leaving his Widow, Ranee Indrawuttee, him surviving.
Upon his death, the Ranee (who was herself possessed of real and personal estate, which she had enjoyed separately during the Rajah’s life) took possession, according to the Hindoo law, of the zemindary and other property belonging to the late Rajah, both real and personal, and continued in possession during her life.
On the 15th of November, 1803, the Ranee died, having, as it was alleged, about six hours previous to her death, adopted Bhya Jha, the Son of her Uncle, Roodsohut Jha, and the Father of the Respondent, Bijai Govind Sing, as her Khurta Pootra, or adopted Son, and appointed him sole heir to her real and personal estate.
By virtue of such adoption or appointment, and pursuant to the established law and custom of the Country, Bhya Jha performed the Shradh or funeral rites over her corpse, and the other ceremonies required from her constituted legal heir; but the Nazir of the Zillah Court of Poorneah, not being aware of the fact of the adoption, or not crediting it, on the day of her death reported to the Zillah Court that the Ranee had died intestate, that there were none but her servants to take charge of her property and estate, and that it was unknown who was her heir or successor; and expressed his fears that unless measures were taken to protect the moveable property, it would be embezzled and made away with.
In consequence of this report, the Judge of that Court, on the same day, ordered possession of the Ranee’s dwelling-places to be taken by the Darogah of Police, for the purpose of protecting her property.
On the 16th of November, 1803, proclamation was made by the Zillah Judge announcing the attachment of the property belonging to the Ranee, and requiring those who claimed to be entitled to inherit the property of which the Ranee was in possession at her death, to appear and state their claims.
In pursuance of this proclamation, petitions were presented by Sree Narain Rae, (the Father of the present Appellants), Lullit Narain Rae, his Brother, and Ram Narain Rae, a Nephew, stating their descent with the Rajah from a common ancestor, and claiming the property of the deceased Ranee, of which they prayed to be put in possession.
Bhya Jha also filed his claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. as the Khurta Pootra, or adopted Son of the Ranee.
Pending these petitions, and before any Orders were made thereon by the Court, Sree Narain Rae, Lullit Narain Rae, Ram Narain Rae, and Bhya Jha agreed to compromise their claims, and for that purpose executed a Soluhnamah, or deed of compromise, bearing date the 11th of December, 1803, which was in the terms following: –
” We, Sree Narain Rae, and Lullit Narain Rae, Sons, and Ram Narain Rae, Grandson of the late Rajah Chunder Narain Rae, Zemindars of the Pergunnahs Kudooah : Whereas Ranee Indrawutte, Zemindar of Pergunnah, Havila Poorneah, having after a short illness died on the 1st of Aughun 1211, Moolkie, being Tuesday, and in consequence of her having no Son, having on that same day, being of a sound mind, and being in full possession of her faculties, constituted Bhya Jha, her maternal first cousin (Mother’s Brother’s Son), her Khurta Pootra and proprietor (Malik) of her zemindary, etc., and the said Bhya Jha, after performing the Shradh of the said Ranee, having presented petitions to the Judge and Collector, praying to be permitted to assume the management of the said zemindary, and to possess himself of the whole zemindary and property, moveable and immoveable, to the exclusion of all other persons, in like manner as they were possessed by the said Ranee, but whereas we are descended from the same common stock with the late Rajah Inder Narain, the Husband of the late Ranee, by seven and eight removes, and are thus entitled, and Bhya Jha is also entitled in virtue of the Khurta Pootra, as well as from his near relationship ; and whereas the contest for so great a zemindary from the Zillah to the Presidency, nay even to EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”., would require the age of Noah to be passed in seeking jus-[185]-tice, and in anxiety and care, and make us waste our existence, and after all be like the dispute of Ummur and Zaid ; considering these things, and considering, moreover, that life is unstable and precarious, and that nothing that this world can give is worth kindling discord among us and deceiving ourselves for the encouragement of incendiaries, and to gratify the malice of the envious, and that from such contest nothing could result but reproach and dishonour to our illustrious family, which our predecessors in this great Raj having deemed unworthy, and from the beginning of the Raj to the time present, such domestic disputes have never happened, and life is but a few days, and enmity between relations is esteemed by men of elevated rank the worst of all things, therefore, we and Bhya Jha, the said Khurta Pootra, who is a person having right, and not a stranger calling to mind the name of Bhugwan, than which there is nothing more precarious either in this world or in eternity, have mutually pledged our faithFaith πίστει. and truth, and by firm agreement and fearful oaths entering into peacePeace εἰρήνη and concord, declaring and meaning both of us, the same have agreed to become satisfied with equal shares of the whole of the property, moveable and immoveable, composing the estate left by the late Ranee, and consisting of cash, goods, Pergunnahs, both of the former zemindary and the zemindary recently acquired by private and public sale, revenue and rent free debts, Nankur credits, mercantile concerns, etc.; that, is to say, the said Bhya Jha shall hold the right and property of one half the said zemindary, etc., and we the other half, whatever profits shall be forthcoming from the Malguzary after discharging the revenue of Govern-[186]-ment from the zemindary right, etc. We will at the end of the year account for to each, that is to say, the profits of eight Anas, or one half of the zemindary, shall be our right, and the profits of the other half Bhya Jha’s, and we shall have no claim thereunto. If, which GodGod People in most cultures believe in the existence of supernatural beings and other supernatural concepts. God is attributed to both anthropomorphic properties (“listens to prayers”) and non-anthropomorphic properties (“knows everything”). Conceptualizing God is associated with willingness to get the COVID-19 vaccine or Vaccine hesitancy. Pope requested people not to practice “Jesus is my vaccine”. For the Jewish, family (Avestan universal) god became national God: I am the God of Abraham, and the God of Isaac, and the God of Jacob,”(ex 3:15). See Ishwar. forbid, the public revenue should fail, both parties, to wit, We, the three persons .aforesaid, and Bhya Jha, will personally make good the loss, and after our own names and Bhya Jha’s shall be made current in the zemindary, and we shall have obtained a Perwannah and Sunnud from the ruler, for the time being, and shall have secured the revenue for 1211 Moolki, if such be the will of both parties, We the said three persons, and Bhya Jha, making a partition between us, will take eight Anas of the whole property, moveable and immoveable, etc., being his share. Designing, therefore, to enter into given engagements, we have of our own free will and consent, and on our own faith and truth, granted this writing as an agreement and declaration, the intent of which is to establish firm records between the parties to terminate our differences, and to perpetuate the illustrious name of the deceased Ranee, so that it may be a valid document for the future, and prevent any fraud or deceit on either side; and that as we have no longer any claims against Bhya Jha, should we prefer any claim of right or inheritance according to the Shiruh, or in the Adawlut of the Hakim, it may be deemed incapable of being entertained or heard with a view to proof; and should we violate this agreement, or in any other way, either of ourselves, or at the suggestion of others, and attempt by colour or pretext to establish any fraudulent objections against it, [187] we shall merit hell and to be deemed bastards and outcasts of our race. We have accordingly granted this declaration, as a valid document of partition, to serve when needed. Dated the 27th of Aughun, Moolki 1211. or llth nf December, 1803.”
A counterpart deed was executed by Bhya Jha, in favour of Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae, of which the following is a copy: –
” I, Bhya Jha, Cousin of the late Ranee Indrawuttee, am become Zemindar of the Havila, Pergunnahs Poorneah, etc. When the Ranee was in her perfect senses, and collected in her mind, she appointed me her adopted Son, to succeed to the whole of her property and estate; and, after a short illness, expired on the 1st Aughun, 1211, B. S.; upon which I, according to the Shaster, performed the funeral rites, informed the Judge and Collector of all the circumstances, and prayed to be put in sole posses¡sion of the Malguzary lands.
ò’ In the meantime, Sree Narain Rae and Lullit Narain Rae, Sons of Rajah Chunder Narain Rae deceased, Zemindar of Pergunnah Koodooah, and Ram Narain Rae, Son of Deo Narain Rae deceased, who was the eldest Son of Rajah Chunder Narain Rae deceased, are the seventh and eighth lineal descendants from Rajah Inder Narain deceased, Husband of the Ranee, and collateral Grandson with Ram Chunder Narain Rae, of one Grandfather ; and Ram Naraiii Rae, set forth to the Judge and Collector their claims, as heirs-at-law ; from which it appearing that there must be many appeals to the several Courts for adjusting the claims on this immense estate, that one ought to be immortal, for it can never end during our lifetime; and in observ-[188]-ing this, and that life is precarious and uncertain, why should we quarrel? We cannot benefit; it must fall to the lot of others : it will only bring disgrace upon our ancient house, which our forefathers would disapprove, and which has never yet fallen upon our illustrious family : it is also highly improper for good men to quarrel; God, therefore, being my witness, at the consent of both parties, i.e. Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae and myself, an Ikrarnaniali hath been entered into, firm and binding as being positively sworn to, advising that the whole of the moveable and immoveable property of the late Ranee, i.e. money and effects, lands formerly belonging to the estate, and lands lately purchased, lands in whatever way purchased (i.e. by public or private sale), Rarajee Lakhiraj lands, Nankar lands, Luknee (or debts due to the estate), Tujanet (or commercial property), should be divided half and half; and that after paying the revenues to Government, and receiving the rights of the Zemindary, and observing the accounts of the house and other expenditure, whatever may remain should be divided between the parties; i.e. the produce eight anas, or one half of the zemindary, etc. etc. etc. becomes my share, and the other half devolves upon the three Brothers, i.e. Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae. That in case losses should fall upon the Malguzary lands, they are to bo repaid by each paying according to their shares. That after affixing each party their signatures, and receiving a Perwannah and Sunnud from the Judge, and the revenues paid to Government for the year 1211, B. S., that, if I should then wish the distribution to take place, I should be enabled to receive my share as above stated, and the Brothers theirs in the like manner.
” Having written this in the form of an Ukudnamah, in perfect peace, from promise and upon oath that if I or they act contrary to what has been written, or deny the above, or are in any way deceitful, we will certainly depart to the infernal regions,-I, therefore, have written the above in the form of a Bond of Hissanamah, which, when required, may appear against me.”
Petitions were presented by all the parties for the confirmation of these deeds of compromise, the validity of which, as well as the claims stated therein, were mutually admitted in open Court by Sree Narain Rae, Lullit Narain Rae, and Bhya Jha ; but some dispute having arisen between them and Ram Narain Rae, who complained that though made a party to the deed of compromise, he was excluded in the proceedings before the Court, the Court entered upon an examination of the validity of the claims made by the several Petitioners, and on the -30th of December, 1803, declared that the Soluhnamahs were collusively executed, and could not be admitted as valid, having been entered into three days after the Ranee’s decease, while the property, which was of considerable amount, was under attachment, and before the rightful heirs were ascertained, the parties being in ignorance of their own rights, and seeking only to divide the property, without any proof of title, when there were other parties claiming to be relatives of the late Ranee; and that Sree Narain Rae and Lullit Narain Rae, having proved themselves the heirs at-law of the late Rajah, should, on giving security, be put in possession of the zemindary, and that Bhya Jha should be left to prosecute his claim in a regular suit.
The heirs-at-law being thus put in possession of the Rajah’s estates, Bhya Jha still preferred his claim to the estate of the Ranee. The Judge of Zillah Poorneah, there¡fore, on the 10th of January, 1804, stated the following case for the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. of the Pundit of the Court:-” It having appeared that the Ranee, after the death of her Husband, the Rajah, succeeded to his entire property, moveable and immoveable, and that during the time they were in her possession she purchased other zemindaries with the profits arising from the landed property, and that considerable sums in cash had been accumulated from the profits of the Malikana, in addition to what was left by the Rajah, all of which she left behind at her death; and a Bewusta given by the Pundit having declared Sree Narain Rae and Lullit Narain Rae entitled to the whole as kinsmen in the seventh degree of affinity to the Rajah,-therefore they have both of them been now put in possession of the immoveable property, and the moveable effects are still under the seal of the Court. Bhya Jlia preferred claims as Khurta Pootra to the Ranee, and alleged himself to stand in the relationship of maternal cousin to her, but his statement respecting his being the Khurta Pootra, being liable to suspicion, an Order has been already passed for Bhya Jha to establish his claims by a regular suit; but before putting Sree Narain Rae and Lullit Narain Rae in possession of the moveable property left by the Ranee, the following question was put to the Pundit, for the information of the Court. ‘ In case it should be proved that Bhya Jha is a maternal cousin of the Ranee, is he, according to the Shasters, entitled to the moveable property vacated by her death ?’ “
The answer of the Pundit was, that ” Bhya Jha being related in the female line to the Ranee, who succeeded to the whole of her Husband’s property after his death, he cannot succeed to the aforementioned property, for there is no authority given by Manu, for any descendant in the female line to succeed to property, but Sree Narain and Lullit Narain, who are related in the seventh degree, can succeed to it.”
Although it appeared after a perusal of this Bewusta that Sree Narain Rae and Lullit Narain Rae were the legal heirs to the moveable property of the Ranee, yet before giving them possession, it appeared advisable for the Court, according to Section 2, Regulation V, of 1799, to send a copy of the proceedings held on the 10th of January, 1804, with a copy of the Bewusta of the Pundit, to the Sudder Dewanny Court, that the proceedings and Bewusta might be laid before the Pundits of that Court.
On the 4th of February, 1804, the Bewusta of the Sudder Pundits was forwarded to the Zillah Court. The question proposed to them, on the same statement as that laid before the Zillah Pundit, was as follows: –
” In case it should be proved that Bhya Jha is a maternal cousin of the Ranee, is he according to the Shasters entitled to the moveable property vacated by her death? “
The opinion of the Pundits was in these terms : –
” Having considered what is above written, and reflected on the question proposed, we give our opinions. The Ranee Indrawuttee, after her Husband’s [192] death, was heir to his property moveable and immoveable, and from the profits of the landed estate, she purchased other zemindaries. After her death Bhya Jha, in consequence of the relationship as maternal cousin, cannot succeed to any of the property, moveable or immoveable, vacated by the Husband, which devolved to his Widow, neither do any of the profits which might have accrued from it become the property of the cousin, according to any Shaster, but Sree Narain Rae and Lullit Narain Rae, who are related in the seventh degree to Rajah Inder Narain Rae, Husband of the Ranee, are the heirs. In support of this Bewusta, it is written in the Daya Bhaga, and Dae Tannoo, and in the Bibad i Bhukarun, and Buchun i Kautain Moon, ‘ let the woman who is without children, for the sake of her virtue, remain with her Father-in-law, and as long as she lives, apply her Husband’s fortune to charitable acts, and after death it devolves to her Husband’s heirs,’ “
Upon receiving this answer, the Zillah Court was of opinion that Bhya Jha, as maternal cousin, i.e., the Son of the Kanee’s Mother’s Brother, had no claim whatever, according to the Shaster, to the property vacated by her, but Sree Narain Rae and Lullit Narain Rae, who were related within seven degrees to the Rajah Inder Narain Rae, Husband of the late Ranee, were according to the Shaster entitled to the property moveable and immoveable left by her. The Bewusta given by the Pundits of the Zillah Court, and by those of the Sudder Dewanny Court appearing, on comparison, to agree, an Order was pronounced by the Zillah Court on the llth of February, 1804, as follows: –
” That Rajah Sree Narain Rae, and Lullit Narain [193] Rae do take possession of such moveable property left by the Ranee as may be under the seal of the Court, and that a Perwannah giving them possession be issued.”
On the 13th of February, 1804, Perwannahs were addressed, giving possession of the moveable property at Mohunnee and at Pusserah, to Sree Narain Rae and Lullit Narain Rae.
Ai’ter various petitions and proceedings, both on the part of Bhya Jha, Sree Narain Rae, and Lullit Narain Rae, a final Order was passed by the Sudder Court, whereby it was ordered that Bhya Jha, ” whether he claimed the whole property of the Ranee, in consequence of his having been adopted by her, or whether he laid claim to the half of it only according to the agreement contained in the Soluhnamah, with Sree Narain Rae and others, should institute a suit for that purpose in the Uewanny Court of Zillah Poorneah, in conformity to the Regulations.”
In pursuance of this Order Bhya Jha, on the 17th of June, 1805, filed a plaint in forma pauperis in the Zillah Court, against Sree Narain Rae and Lullit Narain Rae, alleging and insisting on his adoption by the Ranee, and setting forth the circumstances attending the execution of the Soluhnamah, and after stating that though he was ready and desirous of carrying the conditions of that deed into effect, the Defendants refused to concur with him ; he claimed the entire estate as Khurta Pootra, by virtue of his adoption.
To this petition of complaint, Sree Narain Rae and Lullit Narain Rae put in their answer, denying that Bhya Jha had been constituted Khurta Pootra, by the deceased Ranee, and contending that even if he had, [194] the Ranee was not authorized by the Shasters to dispose of the property in question.
On the 20th of May, 1806, Bhya Jha filed his replication, in which, after putting at issue the Defendant’s statement, he submitted that proof of his adoption as Khurta Pootra was unnecessary, inasmuch as the Defendants had admitted his title as such, upon the occasion of their acknowledgment of the Soluhnamah in open Court.
The Plaintiff filed no rejoinder, but, on the 26th of June, 1809, Bhya Jha put in a supplemental petition, setting forth, his claims to the moveable and immove¡able property, left by the Ranee, first as Khurta Pootra for the whole estate real and personal, amounting to S. R. 1,135,693; secondly, on the deed of compromise for a moiety of that sum, and that when the cause should come on for trial, he, Bhya Jha, would bring forward or rely on either of these counts as he might think proper. The Provincial Court of Moorshedabad pronounced, on the 28th of July, 1809, their decision in the cause, and after going over and examining the various circum¡stances and proceedings already detailed, and the Soluhnamah, stated that it appeared unnecessary to the Court to enter into any further consideration of the claims of either party, whether Sree Narain Rae and Lullit Narain Rae, were or were not the rightful heirs of the Ranee, and Bhya Jha, whether he was or was not Khurta Pootra, they were equally bound by the stipulations of the engagement mutually interchanged, and the Soluhnamah executed before the acting Judge, defined the rights of either party. It was, therefore, but just that the Defendants, who were in possession of the whole zemindary of the late Ranee, should make [195] over half of it to the Plaintiff, Bhya Jha; and Bhya Jha, under the present terms of the agreement, was entitled to one half of the estate, property, and effects of the Ranee, and also to a moiety of the profits of the zemindary since the time that Sree Narain Rae, and Lullit Narain Rae had possession.
From this decision, Sree Narain Rae and Lullit Narain Rae appealed to the Sudder Dewanny Adawlut, stating and insisting that the decree of the Provincial Court was contrary to justice and law. and that from the contradictory manner in which Bhya Jha had at different times stated his appointment, or adoption, to he the Khurta Pootra of the Kanee, he was not entitled to sue as such, and ought not to have been so considered;-that the Ranee had no authority to give away the property of her Husband;-that the claim made by Bhya Jha was inconsistent, since in the Zillah Court at one time he alleged, that he was entitled to the whole of the property left by the Ranee, by virtue of his appointment as Khurta Pootra, according to the law and usages of Tirhoot, without any donation or declaration of the Ranee, while at another time he pretended that the Ranee had declared him, to be the proprietor of all her property, moveable and immoveable; that if he had been in fact appointed Khurta Pootra, he would have communicated that fact to the Zillah Judge, when he proceeded to attach the property of the Ranee ;-that by an Order of the Sudder Court on the 26th of September, 1804, it had been recorded that the Appellants had denied the adoption of the Respondent, and had urged many objec¡tions against the Soluhnamah, which objections had not been controverted, or judicially examined. The petitioners also alleged, that doubts had been enter¡tained [196] by the Sudder Court, respecting the validity of the Respondent’s claim, and that the Court had declared, that it was induced to believe that the Soluhnamah had been improperly obtained for the purpose of preventing a due investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. of the claim which had been preferred by Bhya Jha. They stated also, that they had insisted that Bhya Jha’s claims to the property in question should be judicially investigated, but that no such investigation had taken place; and that the Sudder Court, when it directed Bhya Jha to institute a regular suit in support of his claim, meant thereby to put him to elect to sue either for the entirety of the property as Khurta Pootra, or for the moiety thereof, under the agreement contained in the Soluhnamah ; that the Respondent accordingly made his election and disclaimed that to which he might have been otherwise entitled, under the Soluhnamah, and preferred his claim as Khurta Pootra. That although it had been declared by the Sudder Court, that it was necessary for the ends of justice, that the claims of Bhya Jha as Khurta Pootra should be judicially investigated, yet the Provincial Court had refused to require, or receive proofs of J:he fact of the Respondent’s adoption, and had made their decree on the same facts which had been before the Sudder Dewanny Adawlut, when it had declared, that further investigation was necessary for the ends of justice. That the Respondent in the Court below, having claimed the whole of the property in dispute, in virtue of his adoption, as Khurta Pootra, it was not competent for him, under the Regulations, by a supplementary petition to pro¡ceed on the Soluhnamah. The decree, therefore, of the Provincial Court was contrary to the Order of the Superior Court, and in opposition to the claim [197] asserted in the petition of plaint, and the Provincial Court decided on a claim irregularly preferred, which had been previously abandoned, and which had not undergone any judicial investigation. The Appellants also urged, that according to the practice of the Provincial Courts, established by the Regulations, the claims and meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. of all cases were required to be maintained in the plaint, answer, replica¡tion, and rejoinder, and that according to such Regulations, and the practice of the Courts, the opposite and inconsistent claims which had been brought before the Court of Moorshedabad ought not to have been admitted. That Bhya Jha, in his petition of plaint, expressly declared, that in consequence of the renunciation of the Soluhnamah, or deed of compromise, by Sree Narain Rae and Lullit Narain Rae, he preferred his claim to the whole of the property left by the Ranee; that he had, therefore, positively and expressly waived his claim to the moiety of the estate, in virtue of the Soluhnamah, and had asserted and extended his right to the whole as Khurta Pootra and donee of the Ranee; and the Petitioner further alleged tha^, Bhya Ram Misser, who prepared the Soluhnamah, had employed stratagems and artifices to defraud and intimidate the Appellants ; that the Collector had told them that the contest never would be terminated, and that they would be reduced to poverty and distress if they persisted in litigation ; that the zemindary had been placed under the superintendence of a Public Officer of Government-; that the Appel¡lants were persons who had chiefly resided in the Country, and had but little intercourse with the City, or Capital, and were alike unacquainted with the pro¡visions of the Regulations and the usages of the Court; that they were utterly unsuspicious of the artifice or fraud practised on them by the Respondent and his Agents and .that the Soluhnamah was prepared and drawn under the direction of Bhya Ram Misser, and that the language and composition of it clearly demonstrated that it had not been prepared or written at the instance of the Appellants, and that, therefore, the Provincial Court ought not to have pronounced for the validity of that instrument. The Appellants also submitted, that if the Respondent had been entitled to a moiety of the Ranee’s property, in virtue of the Soluhnamah, and without further investigation, the same would have been decreed by the Sudder Court, when that instrument was regularly brought before it; but they insisted that the Re¡spondent had taken undue advantage of their ignorance of their lawful rights, and had thus obtained the instrument in question, which ought, on that account, to have been declared null and void, and that moreover the parties, at the time of the execution of the Soluhnamah, were not in possession of, and exercised no authority over, the property which constituted the subject of the Soluhnamah, which was, therefore, prematurely executed, contrary to Hindoo law. That the validity of the Soluhnamah could not have been maintained, unless the adoption and appoint¡ment of the Respondent to be Khurta Pootra, and to be Master of the property in dispute, had been clearly and satisfactorily established, and the admission of that fact contained in the Soluhnamah ought not to have been received as conclusive evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 of such fact, when it was specifically alleged, that such fact had never existed, and the instrument and its admissions had been obtained by fraud.
Bhya Jha, by his answer to the Appellant’s reasons of appeal, asserted the validity of the deed of compromise, and that the Judges of the Provincial Court had decided justly. That although he had, by his petition of plaint, claimed the whole of the Ranee’s property as Khurta Pootra, yet he had also in the same petition stated the particulars of the Soluhnamah under which he was entitled to a moiety of the property: that his witnesses had attended the Provincial Court to prove his case and his adoption : that one witness had actually been examined, and that he had frequently petitioned the Provincial Court to examine his other witnesses, but that his application was not complied with : that the Provincial Court had considered the admissions contained in the Soluhnamah as affording sufficient evidence to establish the validity of that instrument, and that thereupon they had pronounced him entitled to a moiety of the property in dispute; that when he should obtain possession of a moiety of the property thus decreed to him, he should consider whether he was not entitled to appeal to the Sudder Dewanny Adawlut against the decree of the Provincial Court, inasmuch as it had not decreed to the Respondent the whole of the property which he had claimed as Khurta Pootra; that he had not renounced his claim founded on the Soluhnamah, and that such instrument, had not been obtained by misrepresentation or intimidation ; that he had filed a supplementary petition, asserting his claim under the Soluhnamah; and that such petition was not objected to by the Appellants, and was admitted and received by the Provincial Court; that he was entitled to prefer his plaint in any manner he deemed most desirable, and that it was the duty of the Judges to ascertain, [200] whether he was entitled to the whole or to a part only of what he had claimed; that even if the Re¡spondent had not expressly preferred his claim under the Soluhnamah, the Provincial Court, on the perusal of that instrument, which had been regularly brought to its notice, would have been justified in pronouncing the decree which was then im¡pugned ; that it appeared from the deposition of Mr. Laing, who had been Collector of the Zillah Poorneah, and which had been taken in the Nizamut Adawlut on the 1st of April, 1809, that the Appellants had frequently applied to him on the subject of their claims, and the claim of the Respondent, and that Mr. Laing had advised them to agree to a settlement between themselves without a suit in Court; that the Appellants had then stated to Mr. Laing, that when they wished to speak to the Respondent on the subject of entering into an amicable agreement, it was difficult to see him, or to have any conversation with him, for he was sur¡rounded by his advisers; that he (Mr. Laing) thought the Appellants had requested him to advise the Respondent to make a settlement, to which Mr. Laing replied, ” that it was so desirable to compromise, that there was no neccessity for advice,” and that in fact he did afterwards advise him to agree to a compromise. The Respondent, therefore, contended, that it appeared from this deposition that the Appellants had first mentioned the subject, of the settlement; that he had no wish to have any collusive or irregular settlement with them; on the contrary, he wished to have no intercourse with them. He further contended, that’the petition, which was afterwards presented to the Collector by the Appellants, and the answers given by them to the Zillah Judge when interrogated respect [201]-ing the Soluh-namah, abundantly contradicted the assertions contained in their petitions of appeal. That these acts, and the admissions of the Appellants in open Court, clearly proved that they had not been imposed on by misrepresentations, and that the Appellants had not then conceived the intention of imputing the execution of the Soluhnamah to conspiracy or fraud. That the Soluhnamah was attested by respectable witnesses, including the Vakeels of the Appellants. That after these solemn admissions of the adoption of the Respondent, the Appellants ought not to lie allowed by a Court of justice to deny that fact.
The Appellants replied to this answer, insisting that, according to the Hindoo law, when one or more persons, not having property at his or their disposal, enter into an agreement between themselves, in expectation that the property will thereby be obtained, such an agreement is not valid, and cannot be sustained, and that an agreement respecting property can only lawfully apply to that which is in the actual possession of one of the contracting parties. The Appellants also contended, that Ram Narain was a party to the Soluhnamah, and that it had been determined that he was not entitled to any benefit in virtue of the Soluhnamah. That, if it was inoperative with respect to Ram Narain’s interests, inasmuch as he was not otherwise entitled to participate in the estate of the Ranee, it ought to be deemed for the same reason insufficient to sustain the claims of the Respondent. They also insisted that the rights of Bhya Jha, under the Soluhnamah, entirely depended on the due proof of his title of Khurta Pootra, and of the donation of the Ranee; and that no such proof had been submitted to the Provincial Court; and that, even if it were satisfac-[202]-torily proved that he had been appointed Khurta Pootra to the Ranee, that appointment would not entitle the Respondent to the property of the Rajah. To this the Respondent rejoined.
The Widow of Deo Narain, as the Mother of Ram Narain, claimed to be associated with the other parties’ Appellants, in order to obtain a share of the property of the Ranee, but her claim was not sustained by the Sudder Dewanny Court.
At this period of the cause, Lullit Narain Rae died, leaving a Widow, but no children, him surviving.
The appeal being thus before the Sudder Dewanny Court, the Judge of that Court, with the view of ascertaining the Hindoo LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. applicable to the case, referred the proceedings, with the following questions, to the Pundits of the Court: –
” Supposing Bhya Jha, though constituted the Ranee’s adopted Son, and Malik of her property, not legally entitled to any part of the property in the Ranee’s possession at the time of her death, besides the Stridhun (the sole property of a woman, possessed and transmissible independently of her Husband), whether there be any tests in the Mitheela law-tracts, authorizing the Appellants to resist the enforcement of the deed of compromise, voluntarily executed by them, oil the plea of ignorance on this point when the deed was executed?
” Whether the Appellants can object against the enforcement of the deed volun¡tarily executed by them, on the plea, that since the time of executing it they have ascertained that the Ranee’s Stridhun amounts to an inconsiderable part of the estate?
” Whether there be any authority for annulling the conditions of the deed on the grounds stated by the Appellants; that at the time of its execution the pro-[203]-perty therein referred to was not in the possession of either party, but under attach¡ment by the Zillah Court till it could be ascertained who were the legal heirs; that there were other Claimants to the estate, and that owing to the objections of the Appellants, the Respondent had not obtained possession of the estate by virtue of the deed?”
To which questions the Pundits answered: –
” If Sree Narain Rae and Lullit Narain Rae, the heirs of Rajah Inder Narain Rae, without fraud on the part of Bhya Jha, with their own free will, signed the deed of compromise, they are not at liberty under the Mitheela law, to avoid the conditions of the deed, (by which half of the property was agreed to be given up to Bhya Jha,) on the plea that they were ignorant at the time of executing the deed ; that besides file Stridhun, Bhya Jha was not entitled to any of the property possessed by the Ranee; and that they have, since the execution of the deed of compromise, ascertained that the Stridhun property, left by the Ranee, bears a very small propor¡tion to half of the entire property possessed by her at her death; for there is no text authorising the setting aside a deed of this nature on a plea of ignorance, although at the time the deed of compromise in question was executed, the property real and personal, which devolved to the Ranee from Rajah Inder Narain Rae, was under attachment by the Court, on account of the rightful heirs not having been ascertained; and although in consequence of the objections of the Appellants, Bhya Jha had been kept out of possession, yet under the law of Mitheela, the afore¡said deed will not be void, for there is no text by which possession of the subject of an agreement is declared necessary to its validity.”
On the 12th of September, 1810, the cause came on for consideration before Mr. Harrington and Mr. Stuart, and it was resolved to remit the cause for the purpose of taking evidence both as to the fact of adoption and the circumstances under which the compromise had taken place.
Witnesses were examined by the Provincial and Zillah Courts, under the Orders of the Sudder Dewanny Adawlut, with respect to the fact of adoption of Bhya Jha, by the Ranee, and also as to the fraud and intimidation stated to have been used by Bhya Ram Misser, acting, as it was alleged, on behalf of Bhya Jha.
The witnesses for Bhya Jha proved that the Ranee had constituted Bhya Jha her Khurta Pootra, or adopted Son, and made over to him her property real and personal.
Mr. Harrington and Mr. Stuart, the first and third Judges of the Sudder Court, filed a long and elaborate opinion in favour of the claim of Bhya Jha under the Soluhnamah. The Sudder Dewanny Adawlut on the 27th of July, 1812, pronounced their final decree as follows: –
” In the opinion of both the said Judges, in consideration of the pleadings, the depositions of the witnesses, the Bewustas of the Pundits, and all the other papers in this cause, the objection of the Appellants to the right of Bhya Jha to the Soluhna¡mah, executed on the 27th Aughun, 1211, Moolki, (llth December, 1803,) are not valid and sufficient. Wherefore, the decree passed by the Provincial Court of Moor-shedabad, on the 28th July, 1809, which ordered Bhya Jha to be put in possession of a moiety of the contested property, and also of the produce arising therefrom, since the time that Sree Narain Rae, and [205] Lullit Narain Rae, have had possession, ought to be confirmed. Moreover, Bhya Jha is entitled to a moiety of the entire property left by the Ranee Indrawuttee, specified in the petition of plaint in this Court, which the Provincial Court in their decree ordered to be placed in deposit until there was a decision given on the claims of the other Claimants to the property under trial in any Court, except the present: therefore an Order and final decree was passed, confirming the decree passed by the Provincial Court, on the 28th of July, 1809, that Bhya Jha should receive a moiety of the landed estate, assessed, and rent free, furniture, cash, and other property, moveable and immoveable, left by the Ranee Indrawuttee, deceased, which were given in possession to Sree Narain Rae and Lullit Narain Rae, deceased, in the summary inquiry, and are now, in addition to the cash, Company’s paper, and other property, which, by Order of this Court, were placed in deposit in the Zillah Court, in the hands of the Appellant, Sree Narain, with a moiety of the produce arising from the landed estate, and ex¡pended by Sree Narain and Lullit Narain, during the time it was in their possession, till the year 1215, with the interest thereon, at the rate of twelve per centum per annum, at the end of each year, and a moiety of the Company’s paper is placed as a deposit in the Zillah Court for the produce of 1216, 1217, and 1218, from Sree Narain Rae (who is in possession of his own and the late Lullit Narain Rae’s share, with his share of the interest thereon); and it is incumbent on the Zillah Judge, to put the Respondent in immediate joint possession of one half of the landed estate, according to the Regulations ; afterwards, if the parties, or either of them, shall petition to have the [206] landed estate divided, they ought, according to Regula¡tion V., 1810, to file a petition before the Collector; whereas this cause is decided according to the Soluhnamah, in which there is a stipulation to take joint possession, with the power of afterwards dividing the property: therefore the expense of division will fall, half and half, on both parties; and the Judge of the Zillah Court, in carrying into execution this decree, having given to Bhya Jha one half of the Company’s cash, paper, and other property in deposit, will keep the remainder in deposit until further orders : and having required from Sree Narain Rae an account of receipts from the disputed estate, from the time that Sree Narain Rae and Lullit Narain Rae obtained possession till the issuing of this decree, and allowed for the necessary disbursements, the Government revenue, the money in deposit, the profits of the year 1216, 1217, and 1218, which were placed in the Court, without any account of them; and having, in the presence of both parties, made an accurate account of the entire remaining profits of each year, he will send the particulars of it, with the necessary papers for the information and approval of this Court; after which, such orders as may be right will be passed with respect to Bhya Jha’s receiv¡ing a moiety of the profits coming to him. Whereas the objection of the Appellants, Sree Narain Rae and Lullit Narain Rae, deceased, to the Soluhnamah, on which the deciee given by the Provincial Court was formed, were not thoroughly inquired into, on which account the appeal to this Court was not without foundation; therefore, the costs of suit of both parties are not to be at the expense of the Appellants.” And it was ordered, that both parties shall be answerable for the costs of suit in this Court, (6th June, 29th November, 1836.*)
At the period of the presentation of the appeal, the Appellants were infants under the protection of the Court of Wards, and the Agent, Robert Walter Poe, whom that Court had nominated to prosecute the appeal on their behalf, and to take charge of their interests, though supplied with ample funds for that purpose, misapplied those funds, and wholly neglected their interests, having abandoned the Country. In consequence of this neglect, the Appellants were unable to prosecute the appeal.
On the 29th of July, 1833, a peremptory Order was made by the Privy Council, directing the Appellants to deliver printed cases within a fortnight, otherwise the Court would proceed to hear the case ex parte.
The Appellants having neglected to comply with this Order, the case came on ex parte on the 5th of April, 1834, when no Counsel appearing for the Appellants, an Order was made affirming the decrees of the Court, and dismissing the appeal with costs.
In December, 1835, the Appellants presented a petition to have the Order for dismissing the appeal, and affirmance of the judgment of the Court below recalled, and for leave also to prosecute their original [208] petition of appeal, or to file a new petition, as they should be advised.
The Petitioners set forth the grounds of appeal as contained in the original petition of appeal; and after stating the facts above mentioned, and that one of the Appellants, Raj under Narain Rae, attained his age of eighteen years in October, 1830, and was consequently of age, but that the other Petitioner, Coower Mohunder Narain, was still a minor, proceeded to state, that in consequence of the very great importance of the case to the Petitioners, the great value of the property in question, and the great loss they would sustain if the judgment pronounced against them were allowed to remain without their being permitted to prosecute the appeal; they had incurred the expense of sending their own Solicitor, for the purpose of attending to their interests, and to prosecute without delay their appeal, if he should be per¡mitted to do so ; and they submitted, that where an appeal is dismissed on account of, and through the wilful neglect of, the Guardians of infants to bring it to a decision, the infants, when they come of age, ought to be permitted to have the appeal restored or revised, and that under all the circumstances of the case, and more especially by reason of their infancy and inability to prosecute the appeal to a hearing at an earlier period, and the circumstances that the Agent’s negligence and misconduct had been the cause of the delay and miscarriage which had occurred, and that he was appointed by the Regulations of the Supreme Government to act for the Petitioners, they ought not in a matter of such great value, and so highly important to their interests, to be deprived of an opportunity of having the same heard on its merits. The Petitioners [209] also stated, that they were advised that they had a good case on the merits, and prayed that the Order dismissing their appeal for want of prosecution might be recalled, and that, on payment of the costs, they might be permitted to prosecute their original appeal.
The petition was supported by affidavits.
Sir Charles Wetherell, K.C., and Mr. J. Stuart, for the Appellants.
Sir Charles Wetherell.-The Order of the 16th April, 1834, affirming the judgment of the Court below, and dismissing the appeal, is wrong; it ought to have been only for a dismissal, and must be held to operate as such. The first part of the Order is mere form; it cannot be intended that the judgment of the Court below should be affirmed by this Court, which to this moment is uninformed of the grounds of that judgment. It may be absurd or unjust, or even illegal, and yet if really affirmed, it would be the law, and binding on all Courts in similar cases; such a position will not bear argument. The Order is erroneous on the face of it; it pur¡ports to be on the hearing of Counsel; there was no hearing, the case was merely opened, pro forma, by the Respondent’s Counsel, none of the facts or circumstances were stated, nor was the Court informed that the Appellants were infants: the merits were not gone into, nor was the magnitude of the property mentioned. The special circumstances on which the Order purports to have been made are not true. Where there is palpable error on the face of an Order, the power to correct such is incident to the Court by which it has been made; the error here is clerical, it is a mis-statement of the circumstances under which the Court pronounced its decision ; there is no C°urt of Law or Equity in which such an error would not be amended. No printed case was put in by the Appellants; can the printing of the Respondent’s case be said to be a hearing? The amount of the property in question is 60,000 per annum; how could the Court know anything of the facts, unless the case was stated on both sides? Yet the Order is to affirm the judgment below on the hearing of the appeal. It was never stated to the Court that this was the case of infants, whose interests were under the protection of the Court of Wards. That Court appointed Poe to act as their Agent in this Country; he was not the personal Guardian of the infants, but the mere Agent of the Court of Wards, and was, at the utmost, but a Guardian ad litem. No application was made to enlarge the time, nor was it stated at the hearing (if such it can be called) that the Agent of the Court of Wards had absconded. Could the Court have made an Order to dismiss the appeal, if they had known that fact?
The rights of an infant cannot be prejudiced by the acts of his Guardian; that is part and parcel of the law of England. Kelsatt v. KelsaU (2 Myl. and K. 409) establishes the right of an infant Defendant to put in a fresh answer on coming of age, though a decree has been made against him upon his appearance and answer by Guardian; he may even state a new case, and go into evidence in support of it. If such is the course in the Court of Chancery, how can it be contended here that he is precluded by his Guardian’s default? By the law of Scotland, ” Restitution lies not only against extrajudicial acts, but judicial; ex. gr. against the sentence of a Judge, though pronounced in font contradictorio, where the proper allegations or defences, either in law or in fact, have been omitted; or when others, false in fact or hurtful to the minor, have been offered to the Court by his Guardians ” (Erskine’s Inst. B. I. tit, vii., sec. 38). In The Orphan Board v. Van Reenen (1 Knapp’s P.C. Cases, 94), it is laid down as a position not to be disputed, that ” infants are not to be prejudiced by the negligence of their Guardians”; and the Court held, that the appeal having been dismissed on account of the neglect of the Guardians of the infants to bring it to a decision, the infants, on coming of age, had a right to revive it. If the Order here operated merely as a dismissal, as I contend it must, the authority of that case is conclusive. The Privy Council dismissed the appeal for want of information, concluding the party in culpa who was not in culpa : it is, therefore, perfectly competent for your Lordships to advise His Majesty to rescind an Order made in ignorance of the facts, and which consequently contains statements directly at variance with the facts. The Lord Chancellor is accustomed to exert a similar authority when he orders a Patent to be rescinded by fieri facias.
Mr. J. Stuart.-It is no fatal objection to this application that the report made on the hearing of the cause has been confirmed by the King in Council. Admitting this to be a Court of last resort, there is no authority for maintaining such to be the practice. A decree made in default of one party, does not stand in the same light as a decree made on the hearing of both parties. Such a decree is never treated as res judicata. The statement on the face of the Order is, that it was made on the appearance of one party only: that makes the Order, in fact, only a dis¡missal for want of prosecution. Where, as in this case, the default is by the party complaining, the business of the other side is not active. A Kespondent is never an actor, except to rid himself of the appeal. The affirmance of a decree is a solemn act, and can never be said to have been intended in the absence of the party complaining of the decree. The justice of the case is satisfied by the simple dis¡missal of the appeal; the Respondent has no right, nor does he suffer any hardship. That is the course in the Court of Chancery; in Palmer v. Palmer, 5th November, 1836, on appeal to the Lord Chancellor, the Appellant not appearing at the hear¡ing, the appeal was dismissed with costs ; there was no affirmance of the judgment below. It is impossible to carry the case higher than one of dismissal for want of prosecution. As to the merits, they were never entered into ; and there is no con¡tradiction to the affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. made in support of the present application. The cases cited show, that there may be cases of affirmance of a judgment below, where the infant has by his Guardian appeared and been a party at the hearing, and which notwithstanding, the Court will review; but here there was neither hearing, in the proper sense of the word, or materials for hearing.
Mr. Serjeant Spankie and Mr. Stinton, for the Respondent.-This, is an appli¡cation to change the practice of this Court. The rule has hitherto been, that where an Appellant makes default at the hearing, the judgment below is affirmed; that has always been understood to be the course. If a contrary practice is now intro¡duced, the inconvenience that must result is inconceivable: there is no case in which such an application as the present may not be made, and your Lordships will be occupied with applications for re-hearings in every cause that has been heard ex parte. The Order of 16th April, 1834, only purports, that the cause was heard in the usual manner, and the usual Order made. The petition for re-hearing is in misericordia, and your Lordships will weigh very maturely any advice you may deem it right to give for the alteration of a practice that has so long prevailed. With respect to the merits, as far as they appear upon this petition, the parties have not been damaged. The decree appealed against was pronounced in 1812. The regula¡tion of the Sudder Court is, that an appeal must be prosecuted within six months after the decree is pronounced, unless by special leave of the King in Council; * the Father of the present Appellant had the judgment standing against him for nine years. The Statute of limitations runs against infants as well as adults; twelve years is the period within which a demand can be made in India; of that period nine years had expired. They make no case to ask for a review, and the question is, whether your Lordships will let them in under this petition to open the whole pro¡ceedings in the Court below. Where there have been laches, the Courts are not accustomed to grant such indulgence, even to an infant. Fraser, the Agent on the other side, knowing the defalcation of Poe, ought to have applied to the Court of Wards. It is said that he applied to the East India Company, but that was [214] vain and nugatory; they had nothing to do with it: he ought to have appeared at the hearing, and stated the facts now insisted on; that might have induced the Court to stay the hearing of the appeal till further inquiry had been made; more than a year was allowed to elapse before any steps were taken to revive the appeal: we stand upon the fact that the appeal was dis¡missed. The consequence of admitting the application now made will be to unsettle the whole practice of this Court.
* Bengal Reg. XVI., 1797, sec. 7. [As to condition of appeal from Bengal to Privy Council, see Letters Patent of 28th Dec., 1865, arts. 39-42 (Stat. R. and O. Rev. IV., 93-95); Code of Civ. Proc. (Act XIV. of 1882), ss. 595 et seq.; and Civ. Proc. Amend. Act (Act. VII. of 1888), s. 57.]
Lord Brougham (Dec. 14, 1836).-This was a petition to rehear the cause upon which their Lordships had given their judgment on the 16th April, 1834, after an Order of the 29th July, 1833, calling on the Appellants to deliver printed cases in a fortnight, otherwise their Lordships would proceed to hear the cause ex parte; 110 cases were delivered, and the cause came on accordingly. The Appellant not appearing, an Order was made in what is understood to have been the usual form in the Privy Council in such cases: it was, that after hearing the Counsel for the Respon¡dent, and no one appearing for the Appellants, the decree appealed from be affirmed, and the appeal dismissed with costs. This Order was confirmed, that is to say, the report of their Lordships was adopted, and made an Order of the King in Council.
The ground of the present application is, that there has been no hearing, but that the affirmance was pronounced merely on the Appellant making default. This it is contended entitles their Lordships to amend the Order, and advise His Majesty to revoke the confirming Order; and if the power do so exist, the Appellant then contends that it ought to be exerted in this instance, inasmuch as he makes out a strong case for the indulgence of the Court. The parties were infants under the Court of Wards in Calcutta, and appeared by a public functionary, through the appointment of that Court, as their guardian ad lit em. This person neglected the case altogether, and not only did not provide funds for carrying it on, but absconded with funds in his hands which had been allowed for the expense of the suit, and he was not to be found when the Agent here desired to communicate with him; nor has he since returned. Although some delay occurred in prosecuting the appeal, during the lifetime of the party, the Father of the infants who had commenced the appeal, it is clear that the infants had been substituted in his room, and steps had been taken which waived any objection on the ground of his laches; and whether this was waived by the Respondent ot by the Court is immaterial for the present purpose; the case for indulgence is, therefore, a strong one, provided there is the power to grant this application.
It is unquestionably the strict rule, and ought to be distinctly understood as such, that no appeal in this Court can be re-heard, and that an Order once made, that is, a report submitted to His Majesty and adopted, by being made an Order in Council, is final, and cannot be altered. The same is the case of the judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parlia¡ment, as it is sometimes expressed, the only other Supreme Tribunal in this country. Whatever, therefore, has been really determined in these Courts must stand, there being 110 power of re-hearing for the purpose of changing the [216] judgment pronounced; nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts possess, by Common law, the same power which the Courts of Record and Statute have of recti¡fying the mistakes which have crept in. The Courts of Equity may correct the decrees made while they are in minutes; when they are complete they can only vary them by re-hearing; and when they are signed and enrolled they can no longer be re-heard, but they must be altered, if at all, by appeal. The Courts of Law, after the term in which the judgments are given, can only alter them so as to coorrect mis-prisions, a power given by the Statutes of Amendment. The House of Lords exer¡cises a similar power of rectifying- mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled in¡consistencies. But with the exception of one case in 1669 (Dumaresq v. J,e Hardi, llth March, 1667, and 26th March, 1669), of doubtful authority, here, and another in Parliament of still less weight in 1642 (which was an appeal from the Privy Council to Parliament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a re-hearing upon the whole cause, and an entire alteration of the judgment once pronounced.
It may be .material to observe in what way the House of Lords has exercised this power of correcting errors which have occurred in drawing up the judgment pro¡nounced. The cases are chiefly where some trivial mistake made it impossible to carry the decree into execution, as in Hill v. Spence (Lords’ Journ. 46 vol., 536), April, 1808; a reference having been directed to the Master of the Exchequer in Ireland, and there being no such Officer, their Lordships amended the Order by inserting ” the Chief Remembrancer or his Deputy; ” or for the purpose of supply¡ing a plain omission and executing the manifest intention of the decree, as in Dent v. Buck (Lords’ Journ. 17 vol., 76; Colles, Parl. Cases, 182), March, 1702, where an Order had been made, reversing the decree of the Exchequer in England, affirmed in the Exchequer Chamber, dismissing a Bill for tithes, on the foot of an agreement, and no direction had been given to proceed on hearing or determining the right to tithe. This direction was added to the judgment of reversal. Or where, as in Oundle v. Barton (Lords’ Journ. 15 vol., 170), January, 1692, a Charity information had been dismissed, and the Lords reversed the decree of Lord Chancellor Jeffries, dismissing, but gave no decree for establishing the charity, and the Lords Com¡missioners had refused to make such decree. Upon the petition of the Attorney-General (Sir John Sommers), the House oi Lords amended their former Order by adding a direction to decree for the prayer of the Information. So where the Courts below had misunderstood the Orders of the House, to save new appeals, explanatory additions have been made, with Orders setting aside whatever had in the meantime been done below under the misapprehension, as was done in Calthorp v. May (Lords’ Journ. 19 vol., 435), April, 1712. But the instances are numerous, and at all times, of rejecting applications for re-hearings and fundamental alterations, on whatever grounds made; and often in cases of apparent merits and great claims to indulgence.
Their Lordships have carried their discretionary power of alteration no further than to rectify errors of a subordinate kind, and, in very peculiar circumstances, to indulge parties by keeping partial questions open, which the decree had con¡cluded, without there having been any distinct intention of that kind on the part of the House. The cases which have gone the furthest in granting such indulgences, and in rectifying such errors, are Sedgwick v. Hitchcock (Lords’ Journ. 14 vol., 601), December, 1690; Page v. Hamilton (Lords’ Journ. 47 vol., 116 and 322), May, 1809 ; Agnew v. Dunlop (Lords’ Journ. 55 vol., 565), March, 1823. In the first case the Lords Commissioners had declared a Mortgagee only entitled to 800 out of 2200, claimed by him on his mortgage, and had ordered that the deed should be delivered up, and the residue divided among the other Creditors. The Lords reversed this decree, and ordered the party to be treated in every respect as a Mortgagee, paid his full mortgage money, with interest, costs, etc. The other Creditors applied to the House to re-hear and alter. The House refused to allow any re-hearing, except on one point, the application to be permitted to try their title at law. This was granted ; the judgment being amended by striking out all after the Order reversing the decree below, namely, directing to sell and distribute, excluding the Mortgagee, and instead of the part struck out, inserting an Order that the Respondents be allowed to try their title at law. Afterwards, by a second amendment, their Lnrd-ships, on the Appellant’s application, added a particular direction in furtherance, however, [219] of their former’ one, that the question should be particularly tried, whether or not the mortgage deed had been fraudulently obtained. It is to be observed, as Lord Redesdale has remarked, that proceedings of this kind were more frequent during the long period immediately after the Revolution, when the Great Seal was in commission, and the Speaker of the House of Lords was a Commoner, and could take no part in its debates.
In Page v. Ham-Aton, 1809 [Lords’ Journ. 47 vol., 116 and 322], the House, after hearing Counsel, rectified several material errors which had been introduced into an Order of August, 1807, the Order of amendment stating expressly that the original judg¡ment had directed variations of the decree below, inconsistent with the parts of it affirmed by the same judgment, which rendered the decree contradictory; and that it had described parties as Trustees who were not Trustees, and directed an account, against them in a character which they did not sustain. The ground of the amend¡ment here allowed expressly is that the Order amended had been framed under a mistake as to the variations which the House really agreed to make in the decree appealed from. This amendment was made upon great consideration, and after a Committee had been appointed to search for precedents.
The last case mentioned is that of Agnew v. Dunlop [Lords’ Journal, 55 vol., 565], in 1823, in which an application to re-hear the very important judgment that had been given was without hesitation refused. But it being represented that the Order reversing the decree appealed from, and adjudging the estates in question to the Appellant, had also decided in his favour another question, which had not been argued at the Bar, namely, his claim to the rents and profits since the title accrued, the House took this into consideration. It is certain that the question was adverted to in the printed cases, and though not argued at the Bar, that it might have been argued: and that the Respondent might have taken, at the hearing, the objection which he now put forward, that the matter had not been argued in the Court below. All this is stated in the preamble of the Order made by their Lordships on the application to amend, in which Counsel were heard. Nevertheless their Lordships, ” conceiving that the neglect of the Respondents, either to discuss the question on the hearing of the appeal, or to request that it might be remitted to the consideration of the Court below, arose from the mistaken apprehension that the House of Lords could not regularly hear it because it had not been discussed below,” think fit, ” under the particular circumstances of the case, to order that the judg¡ment be amended by omitting the words, etc.,” that is, the part of the judgment disposing of the question of debts and profits, which is saved entire for both parties to proceed upon in the Court below.
It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.
Where a party makes default in any of the Courts below, and the judgment is perfected against him upon that default, it cannot be amended upon any suggestion, unless there has been misprision, and the judgment has been entered contrary to the truth of the proceedings, as judgment for the Defendant instead of nonsuit. So where on writ of error the Plaintiff does not appear after joinder in error, the judgment is of affirmance. But in this case no final judgment can be said to be pronounced, because the party making default may proceed again. Whereas if in the Courts of the last resort, the like judgment of affirmance be pronounced, the matter is final, and that judgment stands as a precedent in whatever points were raised in the cause. For this reason, where the Appellant or the Plaintiff in error does not appear in the House of Lords on his writ or appeal coming on for hearing, the judgment is to dismiss merely, and not to affirm, unless their Lordships have considered the merits of the case.
This they may do whether the party appealing shall appear or not, for they may consider the cause upon the printed cases laid before the House, though one of the parties does not appear to argue the question, or even though neither party argue it; nay, though there be no printed cases delivered in, provided that the proceedings in the Court below, being before their Lordships, are by them taken into considera¡tion, and that the matter in question appears in the proceedings, there seems to be nothing which should absolutely preclude them from giving judgment, either against or for the absent party. But then there must have been a hearing of the case, and on both sides; that is, either a hearing at the Bar, or by the cases delivered, or by examination of the whole proceedings below, as well on the one side as on the other. In no other circumstances would it be safe to give a judgment of affirmance in the last resort, that judgment making a precedent binding on all other Courts, and that judgment also being conclusive forever between the parties.
The safer and better course seerns to be, that where the Appellant does not appear, and there are no means of knowing the grounds of his appeal, the Order should be to dismiss without affirming. In this case he could not be let in to renew his appeal without satisfying the Court as to the grounds of default, and complying with such conditions as should be prescribed. Where the Respondent appears not, ex necessitate the Court must hear and determine the case upon the best considera¡tion of its merits, which the matters before the Court enables it to give; but in neither case can the judgment be pronounced as of course for the party appearing, merely on the ground of the other party’s absence.
In the present case the form has been adopted which has been used in a great majority of instances, where the Appellant did not appear at the hearing. It is not, however, known whether, in these instances, there were or not cases laid before their Lordships, or such access to the proceedings below, and such recourse had to these proceedings as might enable their Lordships to supply the defect occasioned by the Appellant’s default; and in at least one instance, the Order was made, as it ought to have been made here, simply dismissing the appeal, and not affirming the decree below. Their Lordships consider that a simple dismissal is to be regarded as the Order which must have been in the Court’s contemplation, and that no more could have been intended in substance, althought the objectionable form, importing affirmance, was followed.
We, therefore, think that, in the particular circumstances of this case, His Majesty should be advised to amend the Order of the 16th April, 1834, by making it conformable to what it must be taken to have in-[223]-tended, and to let in the Appellant to be heard notwithstanding the dismissal, that is to say, to restore the appeal; and in case His Majesty shall be pleased so to order, that these conditions shall be imposed upon the Appellants, namely, payment of the Respondent’s costs occasioned by the default in April, 1834, and by this application; and that he shall now lodge cases within five months; and to permit the Respondent to take copies of any part of the proceedings in his possession, at the charge of the Respondent, and undertake to disturb nothing done from the date of the judgment, until notice is received of this Order.
The following Order was made in conformity with the above judgment by the King in Council, on the 22nd December, 1836: ” That His Majesty’s Order in Council on the said appeal of the 16th April, 1834, be amended, by striking out so much of the said Order as affirms the decree of the Sudder Dewanny Adawlut, at Fort William in Bengal, of the 27th of July, 1812; and it is hereby further ordered, that so much of the said Order of the 16th of April, 1834, as dismissed the said appeal with costs, and the same is hereby rescinded; and that the said appeal be restored; and that the Appellants be allowed to prosecute the same to a hearing ; provided, nevertheless, and it is hereby further ordered, that such leave be subject to the several conditions mentioned in the said report, whereof the Judges of the Sudder Dewanny Adawlut, at Fort William in Bengal, for the time being, and all other persons whom it may concern, are to take notice and govern themselves accordingly.”
The appeal having been thus restored, come on now for hearing on the merits. Sir Charles Wetherell, Q.C., and Mr. J. Stuart, for the Appellants.
Sir Charles Wetherell.-The decision of this appeal is to be guided by the same principles as if the lands in dispute were of English tenure, and the question between the Heir-at-law and the Devisee. It must be determined on the abstract and general principles of Equity. The Provincial Court is a Court both of Law and Equity, governed by its own peculiar rules, I admit, but the principles of Equity, so far as the circumstances of this case are concerned, are the same as prevail in our Courts here. There are two questions; first, as to the point of the adoption; second, as to the validity of the compromise. The Provincial Court refused to enter upon the first question, and decided the cause wholly upon the ground of the agreement of compromise being a valid and subsisting agreement; they would not inquire into the question of title. The Sudder Court pursued the same course, notwithstanding that both that Court and the Provincial Court had deemed it requisite, in the first instance, to put the Defendants, Sree Narain and Lullit Narain, to the proof of their title, and to require the opinions of the Pundits upon their right of succession; but which they rejected as so much waste paper. Under these circumstances, I shall reverse the order of these points, and inquire, in the first instance, what effect is to be given to the Soluhnamah under the circum¡stances in which it was executed. It must be borne in mind, that at the date of the deed, Bhya Jha was a Claimant for the whole of the estate, real and personal, of the Ranee and her late Husband, the Rajah. He alleged himself to have been constituted Khurta Pootra by the Ranee; a title which, if she was capable of con¡ferring it, and it was created with proper solemnities, would be superior to all others. The present appellants were the nearest heirs of the Rajah; they are de¡scended in the seventh degree from a common ancestor; that is admitted, and was proved to the satisfaction of the Court; so that if no adoption had taken place their title at least to the real estate would have been paramount. Now, in these circumstances, let us see what takes place. The property of the Ranee is in the possession of the Government. Notwithstanding all the allegations of Bhya Jha as to his having been solemnly adopted, and having performed the funeral rites, the Collector, who is on the spot, knows nothing about it, and seeing that there is about to be a general scramble for this lady’s property, he applies for and obtains an Order from the Government, authorizing him to take possession of her estate and effects. In this state of things, there being petitions from Sree Narain and Lullit Narain for possession on the ground of heirship, and counter-petitions from Bhya Jha on the ground of adoption, which were still pending, a deed of compromise, or, as it is termed, a Soluhnamah, was prepared, and, with a counterpart deed, executed by both parties. These instruments in form are like deeds of the same nature in this country; their legal effect is precisely similar; they are of even date; that executed by Bhya Jha admits the heirship of Sree Narain and Lullit Narain, by descent; the other admits, or rather assumes, the adoption of Bhya Jha. Now these, I contend, are not such admissions as, if made in utter ignorance of the fact, from false and fraudulent representations, could be binding on the parties imposed [226] upon. The admission of Bhya Jha that the other Claimants were the legal heirs of the Ranee, could not bind any third person, or preclude a thousand Claimants, if they could prove a higher title ; the Court, therefore, called on them to prove their descent. Neither could the admission of the adoption of Bhya Jha be used to the prejudice of any other Claimant by the same title. But the title of Bhya Jha was riot proved; it stood alone upon the admission in the deed of compromise. Now, it must be remembered, that Bhya Jha was at this time a Claimant for the whole property. If he was really Khurta Pootra, and his appointment a valid one, there was an end to any claim on the grounds of heirship by descent. His putting for¡ward, therefore, such claim when he knew it unfounded in fact as well as law, was a blind to those claiming by descent, calculated to alarm and induce them to a compromise. That this was the object is apparent from the Soluhnamah; it states that the zemindary was the property of the Ranee; that was contrary to the fact. It then states and proceeds upon the assumption of Bhya Jha’s adoption being a valid adoption, and having been actually made, which again was contrary both to law and fact; and the real heirs, in opposition to their own undoubted claims, are made to recite and admit those statements as facts, and acknowledge the title of Bhya Jha, when in truth they neither did nor could know anything about it, and the facts stated were in direct opposition to the truth. Now, at the time he executed this instrument, Bhya Jha knew that his claim as Khurta Pootra was worth nothing. He, in the first place, knew that the Ranee had no power to adopt; there is no evi¡dence that the Rajah gave her any such authority, and without his [227] authority she could not, by the law of the country, name a successor to his property. The alleged performance of the funeral rites by Bhya Jha was not true. It appears from the proceedings in the cause that they were performed by Bhya Misser, the Mooktar, whose expenses on account of the funeral were allowed by Government. The representation made by Bhya Misser of the adoption was fraudulent. If he was cognizant of the fact of Bhya Jha’s adoption, why did he, Bhya Misser, perform the funeral rites? If the fact of adoption was within the knowledge of Bhya Jha- ” suppressio veri ” is ” suggestio falsi “-it would be evidence of the legality of his claim; and, therefore, it is assumed and stated in the Soluhnamah, that he did perform the Sraddh of the Ranee. But such assertion was contrary to a fact; in ignorance of which the legal heirs were induced to release their rights. Of what avail would such a recital, made as this was, fraudulently, be in our Courts here? Even where there is no fraud, a deed may be avoided here from ignorance, mistake, misapprehension, or improvidence. In Broderick v. Broderick (1 P. W. 239), a release given by the heir to a devisee, upon a representation that the Will was duly executed, which was contrary to the fact, was set aside. In Pwey v. Desbouvrie (3 P. W. 315), a Freeman of London, by his Will, gave his Daughter 16,000 upon condition that she should release her orphanage part, together with all her claim or right to his personal estate by virtue of the custom of the City of London, and made his Son his Executor. In compliance with this advice, she executed a release; her orphanage share, it appeared, was much more than the legacy so substituted, and as she was not informed at the time of executing the release that she might elect, this omission was held by the Court to be so material as to avoid her release. The principle of that decision is precisely what we are contending for here. But the case of Lansdowne v. Lansdowne (Mosely, 364; 2 Jac. and Wai. 205) is in its circumstances still nearer; there, upon the death of a second Brother, his eldest and youngest consulted a Schoolmaster as to which of them had a right to the lands; the Schoolmaster gave his opinion in favour of the youngest, whereupon they agreed to divide the estate; but the Court set aside the conveyance of the moiety as being given under a mistake. Also in Gee v. Spencer (1 Vern. 31), a release was set aside by reason of the misapprehension of the party. In Evans v. Llewellyn (2 Bro. C.C. 150), the conveyance was set aside merely on the ground that the parties were misinformed of their rights, though there was neither fraud nor imposition practised. Bingham v. Bingham (1 Ves. Sen. 126), Cocking v. Pratt (1 Ves. Sen. 400, and 3 Ves. Sen. 176), are to the same effect. In Leonard v. Leonard (1 Ball and Beat. 323), it was established as a principle, by Lord Manners, after a most careful examination and comment on all the authorities, that a compromise of rights, doubtful in point of law, but founded upon a misrepresentation or sup¡pression of facts in the knowledge of one of the parties only, cannot be supported, and a deed of compromise was set aside on that ground. The correctness of that decision has never been doubted. In Gordon v. Gordon (3 Swan. 467), Lord Eldon says, ” though family agreements are to be supported, where there is no fraud or mistake on either side, or none to which the other party is accessary, yet where there is mistake, though innocent, and the other party is accessary to it, this Court will interfere.” All these authorities show the uniform principle upon which a Court of Equity acts in cases where there is mis¡take, even without fraud; where that is an ingredient, the case is much stronger.
II. Upon what foundation does the alleged adoption rest? It is said to have been a verbal nuncupative adoption. In the first place had the Ranee any power to appoint an haeres factus? By the Hindoo law, a Widow who succeeds to her Husband’s property has no power to dispose of it (2 Mac. Princ. of Hindoo Law, vol. 2, p. 33); nor can she adopt a Son without the permission of her late Husband (11). 175; see also Strange’s “HinduHindu A geographical name given by non-Hindus, who came to visit Bharatvarsha (Hindusthan). Sanatan Dharma is the actual Dharmic tradition of the Hindus. People who live in Hindusthan are Hindu, whether they Follow Islam, Chris, Buddha, Mahavira, or Nanaka. In this way, Tribals are also Hindu. Law,” vol. 1, p. 78-9); nor can she alienate, either by gift or Will, “acquisitions made by means of the property devolved on her from her Husband (76. 259). Now there is no proof of her authority to adopt here. But assuming she had the right, was it duly exercised? Of the twenty-six witnesses which Bhya Jha proposed to examine to prove his adoption, one only was produced, Gujeraj Sing; his evidence is worthless; it is mere hearsay. The impossibility of supporting his claim as Khurta Pootra seems to have struck Bhya Jha himself, for he suddenly changes his ground of claim, and insists on the deed of compromise. The Provincial Court take no notice of his failure of proof of the adoption (notwith¡standing the suit was originally preferred by him in the character of alleged Khurta Pootra, and that the assumption of that title alone gave him a locus standi in Court), but proceeds upon the deed of compromise executed by Lullit Narain and Sree Narain, at the least in ignorance of their rights, if not upon the fraudulent representation of Bhya Jha. Upon that instrument, they award him a moiety of the property in question; and that decision is afterwards affirmed by the Sudder Court. Such a decision cannot be supported; it is against all principles both of equity and justice.
Mr. Stuart.-The whole question in this case is, was the deed of compromise fairly executed? If mistake or ignorance would avoid the deed, far more will fraud practised by either party do so. Our title is, as the heirs at law; everything, there¡fore, done to conceal our title is a fraud upon us ; and if an instrument is procured from us in ignorance of our rights, or under a mistaken apprehension of the rights of others, such instrument is invalid, and cannot be maintained in Equity. The third Judge, Mr. Stuart, admits the want of proof of the fact of adoption, and says (I quote from his printed judgment): “If we were now called upon to decide upon taat fact, we should feel the greatest difficulty in determining upon which side the balance inclines; and should we even think, that the evidence in the negative pre¡ponderates upon the whole, that surely would be no reason for setting aside the Soluhnamah.” Now, that is, I submit, bad law as well as bad reasoning. The proof of want of title of one party representing himself as Khurta Pootra, when in fact he was no such tiling, would in every Court of Equity in the world, I apprehend, be a reason, and a most cogent one, for setting aside a deed made on the faith of such a statement. But the Judge goes on to say: ” An agreement having been entered into with the utmost delibera-[231]-tion, one chief purpose of which was to prevent the necessity of litigating a particular fact, to rescind that agreement for fraud, upon the ground of very doubtful evidence against the fact in question, would be contrary to every principle with which I am acquainted. To consider the matter more generally, proof of fraud ought not to be derived from contradictory and nicely balanced evidence.” Now, without combating these principles, which I apprehend might easily be shewn not to be consistent with the authorities here, it is sufficient answer to say, that the third judge has thrown entirely out of his con¡sideration, the effect of ignorance or mistake, and proceeds upon the assumption that nothing but fraud, and that not proved from ” contradictory and nicely balanced evidence,” ever can avail to set aside an instrument of compromise. The cases already cited show how erroneous this doctrine is; and though I contend, that the fraud practised by Bhya Jha was abundantly sufficient to rescind this agree¡ment, yet the ignorance or misapprehension of their rights, under which Sree Narain and Lullit Narain laboured when they executed it, is enough to preclude their being held bound by it.
Mr. Serjeant Spankie, and Mr. Turtori, for the Respondents.
Mr. Serjeant Spankie.–The principles derived from our Courts of Equity, regarding instruments executed in ignorance, mistake or misapprehension of the rights of the parties, are not strictly applicable to this case. The Soluhnamah is not, as it has been assumed in the argument on the other side, an instrument declaratory of the rights, but of the claims of the parties; it is an agreement to compromise conflicting and doubtful interests, the grounds of which are stated as incidental and introductory to the proposed arrangement. It does not profess to investigate or decide, but to waive the decision of the strict rights of the parties, and to settle the amount each party is to receive, for the sake of certainty and peace. It is a ” transactio,” a dealing of its own particular nature in ” re dubia,” which stands precisely on the same footing as ” res judicata,” and according to the Civil Law, is in effect of equal force with a sentence or decree in which both parties have acquiesced (Cod. Lib. II. Tit. IV. de transactionibus). This is very different from an agreement such as it is argued to be.
I. The parties are, if there is any ignorance, mutually ignorant. It is said that Lullit Narain and Sree Narain had proved their titles as heirs at law, but that was not so at the time the instrument was executed; they had petitioned the Court as such, and so had Bhya Jha as Khurta Pootra, but each party was in ignorance of the validity of the other’s claim, and must have remained so until a legal decision was come to on the validity of those claims: it is clear that if they litigated their rights, one or other must fail, their claims being adverse. Then if no surprise was practised, what ground is there to impute fraud? The heirs at law, or those claim¡ing as such, might commit fraud with the same facility as the Khurta Pootra. But what is the conduct of the parties? They deliberately execute this instrument in the presence of witnesses, and acknowledge it in open Court. They say, we have conflicting claims; we agree to settle them without further litigation ; here is our deed of compromise; it is a voluntary act; we acknowledge and desire to be bound by it. Nothing can come more near to the ” transactio ” than this. Would a party levying a fine in the Court of Common Pleas, or a woman separately examined, be allowed to say afterwards, I was imposed on; though I knew the good¡ness of my own title, I did not know the badness of yours, and that ignorance entitles me to rescind and annul the proceedings? Such a thing was never heard of here. But it is contended, that the principles of our Courts of Equity must be imported into this case, and that according to those principles this agreement cannot stand. The cases cited are where the title concealed was ascertained and had actual exist¡ence; in Pusey v. Desbouvrie [3 P. Wms. 315], the party compromising her rights was ignorant of them; but they were valid and subsisting rights known to the other party, and not, as in this case, about to be the subject of contest. In Gordon v. Gordon [3 Swans. 467] there was concealment of a material fact, the legitimacy of the elder Brother; yet Lord Eldon’s remarks show, that if both parties had been ignorant of that fact, the arrangement would not have been overturned. Gee v. Spencer [1 Vern. 31]”cannot be relied on as an authority; the facts are not stated sufficiently to show the grounds of the decision. In Naylor v. Winch (1 Sim. and St. 555), the Court held, that it could not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made; the interests of the parties turned upon the construction to be given to the bequest of an annuity, and the Court observed, that, it being a question of doubt, it was extremely reasonable that the parties should terminate their differences by dividing the stake between them. In Leonard v. Leonard [1 Ball and Bea. 323] there was concealment of a material fact. In Stockley v. Stockley (1 Ves. and Bea. 30), Lord Eldon says, that family compromises of doubtful rights are, if reasonable, to be favoured; and he adds, that in such arrangements the Court does not go the length of doing relief upon the principle that prevails between strangers. It is no reason for setting aside a release because the party releasing has a right; he must be ignorant of his right, or it must be concealed from him, Cann v. Cann (1 P. W. 727). All these authorities show the distinctions between an agreement made in fraud of an ignorant or mis¡taken party’s rights, and a ” transactio ” such as this.
II. The question of adoption cannot be decided upon this appeal; it was not strictly litigated in the Court below ; both Provincial and the Sudder Courts proceeded on the Soluhnamah, and from the first proceedings, Bhya Jha’s claim was directed to that instrument. That accounts for the non-production of twenty-six witnesses summoned by him. The Court felt that there was ground to infer his title sufficient to give him a locus standi and entitle him to compromise. That is sufficient for my argument; but I apprehend the circumstances go much further. There is no ground for supposing that the Ranee had not the power to make a Khurta Pootra; she had property distinct from her Husband; that is in evidence; she was allowed to enjoy it during her Husband’s lifetime, and there is no evidence of his having made any disposition of it. Under such circumstances the natural inference is, that [235] he gave her power over it; and if so, it would seem to follow as of course, that, in the absence of any evidence to contradict such intention, he should have given her power over his own as well as her estate; if so, the power to make a Khurta Pootra would follow as of course. But there is much doubt on this subject even among the Hindoo lawyers. In the Mitdcshard, ch. II. sec. i. (Trans, by Colebrooke, p. 335), the succession of women to their Husband’s property is shown to be allowed ; the same doctrine appears from the Ddya Bhdga, ch. XI. sec. i. (Trans, by Colebrooke, p. 158); and in the Digest (3 Cole. Dig. of “Hindu Law,” 557), the succession of females is treated of at large. From these authorities, as well as the evidence in the case, the right of the Ranee to make a Khurta Pootra seems undoubted; and Mr. Stuart, the Judge in the Court below, certainly assumes that power, and shows it to be consistent with Hindoo law and authority.
Mr. Turton.-To reverse the decision of the Provincial and Sudder Courts, this Court must be satisfied that the Judges below have miscarried in fact or law. The artificial rules of the Courts of Equity here cannot be applied to the native Courts of India. The general principles of Equity are, no doubt, the same all over the world, and to that extent the principles of the Court of Chancery may be said to apply to the Sudder and Provincial Court; but the practice contended for here is the application of a refined rule, arising from a state of morals and society, that has no existence in India. It is said this was an unrighteous bargain, because Bhya Jha knew at the time he made it he [236] could not prove that he was Khurta Pootra; that was concealment enough to vitiate the contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act.. Now, supposing that on investigation of his title previous to the decision of the Court on it, he had discovered that there was a fatal objection to it, would that be a ground even here for annulling such an instrument of compromise made previous to such examination, and pending his claim? Clearly not. But what is his conduct? In fact, on the first opportunity that presented itself, he makes his claim; he petitions the Government, claiming to be Khurta Pootra; that act put his title in litigation, and until his plaint was rejected by the decision of the Court, it was a valid and subsisting claim, amply sufficient to give him a right to compromise, if he thought fit. It is not enough to prove that without the adoption of Bhya Jha, Sree Narain and Lullit Narain would have been entitled as heirs at law; Bhya Jha must be shown to have conspired with his witnesses to prove a fraudulent title, such title being the ground of the compromise; this is inconsistent with all the evidence in the case. It is not necessary to enter upon the Eanee’s right to make a Khurta Pootra; that may be, although I apprehend it is not, a disputed question; neither is it necessary for the purpose of this argument to go into the details of the adoption; the Court below declined very properly entering upon them; all that is sufficient is that Bhya Jha should be shown, at the time he executed the Soluhnamah, to have had a locus atandi in Court; that is abundantly proved. The party impeaching a deed, valid on the face of it, on the ground of fraud, must prove such fraud, Field v. Soivle (4 Russ. 112); and where there has been ample opportunity in the Court below to the party to tender such proof, if he neglect it this Court will not interfere, Motee Lai Opudhiya v. Juggernath Gurg (1 Moore’s Indian App. Cases, 1). In Attvood v. (1 Russ. 353), the Master of the Rolls (Lord Gifford) held that where a person, after due deliberation, had entered into an agreement for the purpose of compro¡mising a claim made bona fide, to which he believed himself liable, and with the nature and extent of which he was fully acquainted, the compromise of such a claim was sufficient consideration for the agreement, and that a Court of Equity would compel specific performanceSpecific performance The remedy of specific performance is special and extraordinary and is at the court’s discretion, which the court would only exercise “if, under all the circumstances, it is just an equitable to do so”. Factors affecting the court’s discretion include considerations such as: (a) whether damages would be an adequate remedy; and (b) whether the person against whom the relief of specific performance is being sought would suffer substantial hardship., without inquiring whether he was in truth liable to the claim. The same principle was held in Naylar v. Winch (1 Sim. and St. 555). I contend, therefore, that the Courts below were, even upon the refined principles of the Equity Courts here, amply justified in rejecting Bhya Jha’s claim for the whole property on the ground now contended for; and it is enough for me to show that Bhya Jha’s claim at the time the compromise was made was a bona fide claim as Khurta Pootra. It is not necessary to enter into an examination of the evidence on that subject; there is enough to satisfy the Court; but the Judges below pro¡ceeded on a different ground, and much evidence we might have tendered was withdrawn by us. If that question is to be agitated, the case must go back to the Provincial Court.
Mr. Justice Bosanquet (May 9, 1839).-The Appellants in this case represent Sree Narain Rae, who, with his Brother, Lullit Narain Rae, was co-heir at law in the seventh degree of Inder Narain Rae, late Rajah of the zemindary of the Pergunnah Havilah Poorneah, who died in the year 1784, leaving the Ranee Indra-wuttee, his Widow, in possession of his estate and effects.
On the death of the Ranee, on the 15th of November, 1803, the zemindary, and all the estate of which she died possessed, were claimed by Bhya Jha, the Son of her Uncle, Roodrudhut Jha, who is represented by the Respondent, and who set up a title as Khurta Pootra, or heir, by the adoption by the Ranee.
Bhya Jha burned the body of the Ranee on the evening of the day on which she died. He also performed the Shradh, or funeral ceremony, three days after the death, having in consequence of a petition preferred to the Zillah Judge obtained Rs. 5000 for that purpose.
Adverse claims having been preferred, the property was secured by authority of the Zillah Court, which, after having consulted the Sudder Dewanny Adawlut, put the heirs in possession upon giving security, leaving Bhya Jha to establish his right by adoption.
On the 11th of December, a Soluhnamah, or deed of compromise, was executed by the heirs at law and Bhya Jha, by which it was agreed, that they should divide the whole of the property, moveable and immoveable, comprising the estate left by the late Ranee, as well the former zemindary, as the zemindary then recently acquired by private and public sale, in equal moieties. This instrument was executed in the presence of many witnesses.
On the 28th of December, Sree Narain Rae and his Brother, the co-heirs, as well as Bhya Jha, appeared before the Judge of the Zillah Court, when Sree Narain and his Brother, being asked why they executed the [239] deed when the right of no one had been inquired into, they replied. ” We understood that the Ranee had con¡stituted Bhya Jha her Khurta Pootra, in which case he is also an heir, and he also understood us to be rightful heirs ; wherefore we and Bhya Jha agreed to a mutual compromise, and have executed this engagement, which specifies also the objects.” Being asked if they made this declaration in consequence of the oath set forth in the deed of compromise, or of their free will, they answered, ” Our claim was for the entire estate ò but since we have voluntarily entered into this engagement, we are satisfied and agree, of our free will, to relinquish a moiety of it.”
Bhya Jha being also examined, said, ” The late Ranee constituted me her Khurta Pootra; Sree Narain and Lullit Narain are kinsmen and rightful heirs of the Ranee’s Husband. They delivered a petition to the Court, claiming the entire estate left by the Ranee, and also preferred a claim to the whole. Wherefore, to prevent litigation, which .might cause the ruin of both parties, we agreed to a com¡promise, and exchanged engagements accordingly.” Being asked what he now elaimed, he answered, ” I have now no claim beyond what is stated in the Soluh-namah.” All of them, on being questioned if they wished to have joint possession of the estate, answered, ” We are desirous of having joint possession, and will here¡after carry into effect the stipulations of our reciprocal Soluhnamahs.”
On the 30th of December, the Zillah Court pronounced an opinion, that the agreement was manifestly collusive, and could not be sanctioned as valid; and further stated that, the petitions of the parties having been sent to the Sudder Dewanny Adawlut, the instruc-[240]-tions of that Court were, that the nearest of kin, who according to the Shaster should appear to be the legal heirs, should, on giving security, be put into possession of the estate, and that Bhya Jha should pro¡secute his claim by a regular civil suit.. It was, therefore, ordered, that he should prefer his claim by a regular suit, according to usage, and Sree Narain and Lullit Narain were put into possession.
Bhya Jha appealed from the decision of the Zillah Court, to the Provincial Court of Moorshedabad. In consequence of petitions to the Sudder Dewanny Adawlut, the parties appeared there. The co-heirs asserted, that Bhya Jha was not the adopted Son of the Ranee, and that they had been induced to sign the Soluhnamah by threats of Bhya Jha, Bhya Ram Misser, and others, and prayed that Bhya Jha might be required to prove that he was the adopted Son of the Ranee, and might be directed to prosecute, according to the existing Regulations, his claims to the property left by the Ranee at her decease.
On the 26th of September, 1804, the Sudder Dewanny Adawlut, after expressing strong doubts of the validity of the claim, declared that it was necessary for the ends of justice, that Bhya Jha’s claim to the whole of the property of the late Ranee should be judicially investigated; and, therefore, order that Bhya Jha, whether he claimed the whole of the property of the Ranee in consequence of his having been adopted by her, or whether he laid claim to the half of it only, according to the agreement on the Soluhnamah with Sree Narain and others, should institute a suit for the purposes in the Court of Zillah Poorneah, in conformity to the Regulations. A suit was accordingly instituted by Bhya Jha.
On the 3rd of September, 1806, the Court ordered the parties to produce all papers and documents on which they intended to rely, before the 4th of November next following.
Bhya Jha contended, that it was not necessary for him to prove that he had been appointed Khurta Pootra, inasmuch as the Defendant had admitted it by the Soluhnamah
Witnesses named in a list were, nevertheless, directed by the Court to be examined; but on the 22nd of June, 1808, pursuant to a general order of the Government, all the proceedings were transferred to the Provincial Court of Moorshedabad.
On the 26th of June, 1809, Bhya Jha presented a petition, stating that he had two claims on the property, moveable and immoveable, left by the late Ranee.
That one claim was as Khurta Pootra. That the other claim was founded on the Soluhnamah, or deed of compromise. That the supplemental or annexed claim included two counts, first as Khurta Pootra for the whole estate, real and personal, amounting to S.R. 1,315,693; secondly, on the deed of compromise for a moiety of that sum ; and that when the cause should come on for trial, he would bring forward or rely on either of these counts, as he might think proper.
On the 28th of July, 1809, after hearing one witness only, the Court of Moorshedabad proceeded to determine the case, and pronounced that it was unnecessary to enter into a further consideration of the claims of either party; observing, that whether Sree Narain and Lullit Narain were the rightful heirs, or Bhya Jha was or was not Khurta Pootra, they were equally bound by the stipulations of the engagement, mutually inter-change, and the Soluhnamah executed before the Judge defined the rights of either party. It was, therefore, ordered that Sree Narain and Lullit Narain should give to Bhya Jha possession of one moiety of the property, and one-half of the profits received, and each party should pay his own costs.
From this decision Sree Narain and Lullit Narain appealed to the Sudder Dewanny Adawlut.
An objection was made there to the right of Bhya Jha to enforce his claim under the Soluhnamah, after having, by a petition to the Zillah Court, on the 5th of September, 1805, claimed the entire property, and by a letter of the 10th of September 1806, declared that if Sree Narain and Lullit Narain would not abide by the stipulations contained in it, he, Bhya Jha, would henceforth consider the same null and void.
The Court ordered an investigation to be made upon two points: first, as to the fact of Bhya Jha’s adoption by the Ranee; and secondly, the alleged fraud of Bhya Jha, Bhya Ram Misser, and others, in obtaining the Soluhnamah. In consequence of this Order a great body of evidence was given on both sides, and the Sudder Dewanny Court, after very fi-11 consideration of the whole case, by their final decree of the 27th of July, 1812, confirmed the decree passed by the Provincial Court of Moorshedabad of the 28th of July, 180’9, which ordered Bhya Jha to be put in pos¡session of a moiety of the contested property, and also half of the produce arising therefrom since the time that Sree Narain and Lullit Narain had had possession ; and moreover declared that Bhya Jha was entitled to a moiety of the entire pro¡perty left by the Ranee, specified in the petition of the Plaintiff in the cause which the Provincial Court in their decree, had order to be placed in deposit. But as the objection [243] of the Appellants to the Soluhnamah, on which the decree of the Provincial Court was founded, were not thoroughly inquired into, on which account the appeal to the Sudder Dewanny Adawlut was not without foundation, it was ordered that both parties should be answerable for the costs of suit in that Court.
The first question to be determined was, whether Bhya Jha was precluded from insisting upon the Soluhnamah.
The Court, considering that Bhya Jha was riot the first to swerve from the re¡ciprocal agreement entered into between him and his Opponents, but, on the contrary, had uniformly expressed his willingness to carry the same into effect, even after his Opponents had retracted their consent, and until the Order of the 26th of September, 1804, which directed a judicial investigation into his claim to the property of the Ranee, that he preferred his claim upon the agreement before the cause had come to a hearing in the Provincial Court, and that he had acquiesced in the decree of that Court, maintaining the agreement, and praying that it might be affirmed; and did not apply for any examination of witnesses to support his title to the whole estate, but, on the contrary, objected to such examination when ordered by the Court, and desired a confirmation of the Judgment for half the estate, in conformity with the deed of compromise; and, moreover, considering that forms of pleading were not very strictly observed in the Native Courts;-determined, and, as their Lordships think, rightly determined, upon the grounds above mentioned, that Bhya Jha was at liberty to insist upon the validity of the Soluhnamah in support of the judgment of the Provincial Court of Moorshedabad.
The next question to be considered was, whether that instrument ought to be supported by the Court, or whether it was not impeachable on, legal or equitable grounds.
The first ground of objection was, that it had been obtained by the fraudulent representation of a transaction which wag absolutely false, namely, that the Ranee by words addressed personally to Bhya Jha on the morning of her death, had con¡stituted him her Khurta Pootra, or adopted heir.
If this were clearly proved to be untrue, it must necessarily have been untrue within the knowledge of Bhya Jha himself ; and any deed of compromise founded on an assertion of such matter by him, however deliberately entered into by the co¡heirs at law, would unquestionably be invalid.
The Judges of the Sudder Dewanny Adawlut, after carefully reviewing all the evidence in the cause, did not feel themselves able satisfactorily to declare that the adoption had taken place, neither did they feel themselves justified in pronouncing that the representation of its having taken place was false.
Without satisfactorily establishing the former, Bhya Jha could not be entitled to recover the whole estate. But when after the assertion of his title on the one side and the denial of it on the other, a compromise was entered into, in the presence of many witnesses, by parties on the spot, and solemnly acknowledged by the parties in a Court of law to have been voluntarily executed, the burthen of showing that it had been fraudulently obtained by false representation was cast upon those who sought to impeach the validity of their own deed.
The laborious and accurate examination which the testimony in this case has undergone at the Bar has greatly assisted their Lordships in determining whether the Sudder Dewanny Adawlut arrived at a just conclusion.
They find a great body of positive evidence to the fact of adoption, given by persons who swear to having been present at the time when the Ranee, being of sound mind, addressed Bhya Jha, saying, ” When I was but five or six months old my Mother died, and a short time after, my Father died; and ever since your Father maintained me, and having brought me to this Rajah, gave me in marriage; I am, therefore, greatly indebted to your Father, and thereby you have claims on me; I have made you my Khurta Pootra, property, estate, and effects, which I have bequeathed to you; ” after which words Bhya Jha rose and thankfully accepted them. These witnesses further swear, that she told Bhya Jha to burn her body and perform the Shradh; others swear that, in their hearing, the Ranee personally de¡clared on the same morning, that she had actually made Bhya Jha her Khurta Pootra, and gave her reasons; and others depose that she had on that same morning consulted them as to the proper hour for making a Khurta Pootra. It is beyond all dispute, that Bhya Jha almost immediately after the death of the Ranee burnt her body, an. office which it belonged to Khurta Pootra to perform ; that his right to succeed as Khurta Pootra was claimed for him by a petition presented the next day, and that he also publicly performed the ceremony of the Shradh three days after the death, as the adopted heir, on which occasion he was placed on the Musnud (the cushion or chair of State in which a Rajah or Zemindar sits in public), and the turban put upon his head. [246] On, the other hand it is sworn by many wit¡nesses who profess to have been in attendance on the Ranee on that day, that she did not make any Khurta Pootra; that she was incapable from extreme illness and insensibility of doing any such act; that several of the persons who swear to having witnessed the act were not present at the time; that Bhya Jha himself was absent from the house during that morning, and did not arrive till after the death of the Ranee; that he was at another place at the time when the adoption is sworn to have taken place; and that he had, for a long time before, ceased to come into her pre¡sence, in consequence of her having been displeased with him on account of his having practised sorcery against her. Declarations of witnesses on both sides, con¡trary to the facts deposed to by them in evidence, are sworn to by others; and tampering with the witnesses by the Opponents on both sides is deposed to.
It cannot be denied, therefore, that circumstances are stated upon the face of the evidence which are calculated to excite suspicion, both with respect to the fact of the adoption, and the credit of several witnesses adduced to prove it.
But the case of the Appellants is founded upon a charge of positive fraud and imposition, and gross fraud is not to be imputed upon suspicion only. Unless the charge be proved, parties are not to be released from agreements entered into by their solemn acts. There may be ground to pause in giving full credit to the alleged adoption; but their Lordships, upon a review of the testimony given on one side and the other, regard being had both to the matter and the credibility of such testi¡mony, do not see such a preponderating weight of evidence against the fact of adoption as to justify a determination that the assertion of its existence was an utter falsehood, and they are, therefore, of opinion, that the ground of impeach¡ing the Soluhnamah by the co-heirs, on account of its being, founded on a sufjpestio falsi by their Opponent, Bhya Jha, has not been maintained.
The next objection to the Soluhnamah is an alleged suppressio veri.
But the evidence does not afford any foundation for that objection. If the imputed falsehood of the adoption be laid out of the case for want of sufficient proof to support that imputation, the parties, in respect of the knowledge of circumstances, must be considered to stand upon equal terms. They belonged to the same caste, they lived in the neighbourhood of the Ranee at the time of her death; they had the opportunity of making inquiry into all material facts, and their attention was alive to the grounds of claim to the property; these grounds having been made the subject of assertion on the one side and denial on the other, before the execution of the deed. It does not appear, that Bhya Jha was in any respect better informed with respect to the rights of the heirs, the bearing of the law upon their rights or his own, or the nature or amount of the property, real and personal, than the heirs themselves, still less that anything was concealed which they might not be supposed to know as well as he.
The ground, however, which is most strongly relied upon and to which a great part of the evidence is addressed, is that the heirs were induced to execute the Soluhnamah by intimidation and undue persuasion.
The person alleged to have been most active in this [248] respect is Bhya Ram Misser, the Mooktar or Manager of the late Ranee, who is said to have urged the heirs to enter into the compromise, by repeated importunities, by the representation of the injury which they must necessarily sustain by a long protracted litigation, which would prevent both them and their children from deriving any benefit from the zemindary, and by actual threats that he would cause the ruin of it, and had the means of carrying such threats into effect.
Other persons, and among them the Collector of the East India Company, are stated to have used persuasion to the same effect as Bhya Ram Misser; but it is to be observed, that the charge of having employed intimidation is confined to the latter ; and that as he was dead at the time when witnesses in support of the charge were examined, the opportunity of confronting them by his evidence was known by the witnesses to be lost. At what precise time Bhya Ram Misser died, does not appear. In the examination of Doorgapersaud, however, on the 16th of April, 1811, it does appear that he was then dead ; and it was not till after that day, that the examina¡tions were taken of the witnesses who charge Bhya Ram Misser with having em¡ployed threats.
The advice to enter into a compromise rather than engage in litigation, subject to be protracted by appeal, not only to the Sudder Dewanny Adawlut, but to Eng¡land, could not, in the absence of fraudulent intention, be deemed a ground for impeaching the validity of the Soluhnamah. Indeed, Doorgapersaud himself, the Vakeel of Sree Narain Rae, states in his evidence, that he concurred in persuading his Client, upon the same grounds, to accede to the com-[249]-promise; and his evidence with respect to fraud, in causing the Soluhnamah to be executed, is con¡fined to the persuasion and advice in which he himself concurred.
The allegation of compulsion, by the threats of Bhya Ram Misser, brought for¡ward in evidence after his death, cannot countervail the solemn and unequivocal declaration made by the heirs to the Judge of the court, that they had voluntarily entered into the engagement, that they were satisfied, and had agreed of their free will to relinquish a moiety of the property, more especially when it is recollected, that they were not taken by surprise, having, according to their own evidence, executed the instrument after the respective claims of the parties had been the subject, of dispute.
The last ground of objection is, that the heirs have given up a moiety of their undoubted right, under a palpable mistake, of which it is contrary to the principles of equity that Bhya Jha should be allowed to take advantage.
To judge properly of this objection, we must look at the circumstances as they stood at the time when the Soluhnamah was executed. The Appellants are not entitled to avail themselves of all the light which subsequent investigation in the course of the suit has thrown upon their claims. If the nature or the extent of the rights of the respective parties could be considered as the fair subject of doubt at the date of the deed, and if, to avoid expense and delay by legal inquiry, they agreed to settle the contest by an amicable arrangement, such transaction is to be dis¡turbed on the ground of the inequality of benefit which either party may eventually have received from it.
It has ultimately been ascertained that the Ranee, without the authority of the Rajah, her Husband, was not entitled to make an adopted heir to her Hus¡band’s zemindary. But at the date of the Soluhnamah, even this point does not seem to have been taken as clearly understood. Sree Narain Rae and his Brother were related to the late Rajah in the seventh degree; and Bhya Jha was her Cousin, the Son of her Uncle; and not only do they in the Soluhnamah say, if Bhya Jha was Khurta Pootra he was also an heir; but the Judge of the Zillah Court says, if Bhya Jha was really Khurta Pootra, he would be entitled by the Shaster to the whole estate, real and personal. It appears further, that besides the zemindary of the Rajah, the Ranee died possessed of a very large zemindary property, part of which had been purchased during a long widowhood of nineteen years. Whether any, and what part of such zemindary property had been given to her by her Hus¡band, whether any, or what part of it was purchased with the profits of her Husband’s zemindary, or any, and what part with her own property, is quite un¡ascertained. Further it appears, that she died possessed of more than three lacs of rupees in personal effects, or nearly 30,000. That she was entitled to dispose of her separate property or Stridhun, consisting of whatever was given to her by her Husband, or her Husband’s family, or any part of her own family, whether moveable or immoveable, by adopting an heir of her own, appears to have been sufficiently established; whether she was authorized to dispose of landed property, purchased with the profits of her Husband’s zemindary, and remaining in her possession at her death, became a subject of discussion in the Sudder Dewanny Adawlut; the result of which discussion appears to have been unfavourable to her right; but it could not by any means be treated from the commencement of the adverse claims as a matter free from doubt; for Mr. Harrington, in his minute with reference to the final judgment of the Sudder Dewanny Adawlut, though he expresses his concurrence in the result above mentioned, and refers to the Bewustas of the Pundits in support of it, remarks that it is not clearly decided by the authority of works of the Mithila school, to which this family belonged, whether any moveable property, inherited by a Widow from her Husband, and in her possession at the time of her death, or any money or other property arising from the product of the landed estate, during her possession, devolves, on her death, to her own heir or to the heir of her Husband.
Under all these circumstances, the true amount of the relative rights of the litigant parties must be considered as having been doubtful, whether the law or the fact be regarded. The uncertain event of the legal part of the case may be inferred from what is contained in the minute of Mr. Harrington above referred to. And it is justly observed by Mr. Stuart, the other Judge, that even after all the inquiry which had taken place, the rights of the parties, as they depended on facts, remained so doubtful, that they would even then afford a fair and equitable basis for a compromise.
Upon the whole, therefore their Lordships are of opinion, that the Appellants have failed to establish that the execution of the Soluhnamah was obtained by fraudu¡lent misrepresentation or concealment, or the execution of it compelled by fear, or that the agreement at the time when it was entered into was not a fair subject of compromise of disputed and doubtful rights: and, consequently, that the decree of the Sudder Dewanny Adawlut ought to be affirmed.
That Court, though it affirmed the decree of the Provincial Court, did not give the costs of the appeal, because a full opportunity of investigating the case in the Court below had not been allowed. But a very full investigation of the case took place in the Sudder Dewanny Adawlut. From the decree of that Court an appeal was made to the King in Council, and in consequence of the Appellants having omitted to appeal, the case was heard ex-parte, and the decree affirmed. The Appellants upon a special application to His Majesty in Council were allowed to restore the appeal, and bring on the case for hearing, their Lordships being of opinion, that instead of affirming the decree, they ought to have dismissed the appeal. The case has now been fully considered, and the judgment being in favour of the Respondent, affirming the determination of two Courts in India, as well as the former determination here, their Lordships are of opinion that the costs of the appeal ought to be paid by the Appellants.
Note
[S.C. 1 Moo. P.C. 117. Commented on and approved in regard to review of judg¡ments in The Singapore, 1866, L.R. 1 P.O. 388: Ex parte Kisto Nauth Roy, 1869, L.E. 2 P.C. 277; 6 Moo. P.C. (N.S.) 360 : Maharajah Pertab Narain, Singh v. Maharanee Subhao Koer, 1878, L.E. 5 Ind. App. 171: Venkata Narasimha Appa Row v. Court of Wards, 1886, 11 A.C. 660; L.R. 13 Ind. App. 155: See also Keerut Sing v. Koolahul Sing, 1839, 2 Moo. Ind. App. 341 ; Bhugwan-deen Doobey v. Myna Baee, 1867, 11 Moo. Ind. App. 506. See next case.]
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