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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 130 of 155)
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and cannot, in the settlement of accounts, recover iuterest at 12 per cent,
in respect of the default in payment of the first instalment from the date
of tbe sulehnamah to the date of the realizttioo of that instalment except
upon the amount of the instalment, interest upon tbe remaining portion
of tbe debt during that period being calculated at 6 par cent, per annum.
In determining upon what amount interest at 12 per cent, per annum,
is to be allowed in consequence of a default in payment on the due date
of she second or any subseqaent instalment, the decree-holder is not
bound by the construction put by him upon the 3rd clause, nor by any
admission or settlement in respect of the default made in payment of the
first instalment. The wordings of tbe second and third coating -ncits res-
pectively are very different. The second is clear and explicit. It declares
that in case of default the decree-bolder shall be entitled to take out execu-
tion and realize interest on tbe entire decre'al money from the date of such
default to the [259] date of realization, at the rate of Rs. 1 per cent, per
mensem. " What their Lordships meant is made still clearer by their decree.
It is obivous that the^ decree-holder was contending in the appeal to Her
Majesty in Council that be was entitled in the taking of accounts to have
interest allowed at the rate of 12 per centum from the date of the suleh-
namah on the whole amount remaining unpaid from time to time of the
decretal principal sum of R^. 2,38,000 after giving credit, as they were
made, for payments which were first to be anplieri in discharge of interest
andthe balance in reduction of the principal. Taeir Lordships by their decree
limited tbe 12 per centum interest to the amount of each instalment after
the first, for the period during which such instalment was due and unpaid,
an<i allowed the 12 per centum interest on the first instalment from the
date of the sulehnamah to the date of its realization, and applied payments
as they were made, first in discharge of interest and tbe balance to the satis-
faotion of the principal. Although their Lordships considered the third
clause of the decree in all its bearirgs, and certainly as to the first and
second of the three contingencies provided for, expressed their opinion that
the stipulation for payment of interest at 12 per centum instead of at 6
was not a penalty, they said nothing which suggested that in their opinion
that stipulation as to interest in the third contingency, which was that if
the first instalment was not paid on the 25 jh September 1875, the decree-
holdar should have power to realize the principal of the first instalment
with interest at the rate of Ra. 1 per cent, per mensem from the date of
the sulehnamah, was a penalty, or other than a contract. Tue stipula-
tions as to all these contingencies would according to the English doctrines
as to penalties ba penalties. The stipulation as to the tbird contingency
would apparently be held by some authorities in India to be a penalty,
whilst that as to the second contingency would apparently be held
by the same authorities not to be a penalty. It is doubtful what
construction those authorities would pub upon the stipulation as to
the first contingency, but as appears from page 165 of L. R. 10 I. A.,



JUNE 28.


13 A. 232

(F.B.) =
13 A.W.N.
(1893) 130.

15 All. 260



JUNE 28.


IB A. 232

13 A.W.M.

(1893) 130

the High Court at Calcutta had held on the 29bh of July 1878, that
the stipulation as to interest in the first contingency WAS a penalty.
[260] Tbe passage which we shall now quote from page 170 of L. E., 10
I. A., apparently had immediate reference to the stipulation as to iniwresD in
the second contingency. It further shows that their Lordships, although
dealing with a decree drawn up on a compromise, thought that they were
entitled to consider whether the stijulation which we are now referring to
was one of contract or was a penalty to be relieved ag-iinsfc. The passsage
is as follows : " It is scarcely necessary to refer to the argument that the
stipulation for payment of interest at 12 per cent, per annum ucon the
whole decretal money was a penalty from which the parties ough^ to be
relieved. It was not a penalty, and evon if it were so, the stipulation is
not unreasonable, inasmuch as it WHS a mere substitution of interest at
12 instead of G per cent, per annum in a given state of circumstances."
So, we may observe, is the substitution of a higher rate of interest, as
from the date of a contract for a lower rate of interest on default in paying
the latter, a substitution of one rate of interest for another in a given state
of circumstances.

In. our opinion the decision of their Lordships of the Privy Council
in Bat Balkishen Das v. Raja Run Bahadur Singh (1) is a clear authority
that on questions of interest we are not to treat stipulations in contracts
substituting, in a given statb of cin urns' arces, a higher for a lower rate
as penalties, but are to interpret them, as other parts of a written
contract should be interpreted, according to the expressed intention of the
parties. That view of the law is in opinion consistent with common

In conclusion, our opinion is that the agreement as to a higher rate of
interest in this case is an agreement to be performed, and from the perfor-
mance of which no case has been ^leaded or proved to entitle the defen-
dants to relief. With this expression of our opinion the ca&e will go back
to the Bench which made the reference.

13 A. 261 (P. C.i = 6 Bar. P.C.J 378 = 17 Ind. Jur. 167.

Lords Hobhousp, Macnnqhtcn and Morris and Sir R Couch.
[On appeal Jr cm the High Court at Allahabad.}

AND ANOTJdfcR (Defendants).

[16th and 17th November and 10th December, 1892.J;
Evidtnce affd>aid by \rior records.

Where the main qua^tion was whether, in fact, the heir to an estatp, a minor
in possession through the manager under the Court of Wardp, hud teen, as the
plaintiff alleged him to have been, put forward by false personation, a divisional
Court of appeal decided in favour of the defence and dismissed the suir.

Pending this decision, a Full Bench (2) disposed of questions of 1-w as to the
hdmifsibility in evidence in tbis suit of the j idgment and record in a prior suit ;
in which it had been found, as a fact, tbat there had been at one time, in

(1) L R. TOLA. 162 = 10 C. P05.

(2) The Collector ol Gorakhpur v. Palakdbari Singh, 12 A. 1.



existence an heir born of the parentage which the defence in this suit alleged to 1892
be that of the minor defendant.

It was disputed in the present; suit whether the minor defendant was the same
individual whom his alleged mother, the defendant in the former suit (there
being the sama plaint'ff in bath suits), stated to be her son ; also, whether, if
th*t identity were proved, the suit would be barred as res juiicd'a. COUNCIL.

This latter question wag decided in the negative by the Pull Bench, which held -
the judgment in the former suit not to be conclusive upon the present one ; but 15 A. 261
also held the record to be admissible. Tbere was no appeal from that decision ; (p (j \
and on an appeal from the decree of the divisional Court, the Judicial Committee p n J
affirmed, on the facts, the decree nude 7a_'i'r *

[N.B. See in thh connection 12 A. 1 iF.B.) supra.] , ,.

APPEAL from a decree (15th April 1889) of the High Court,
reversing a decree (14th September 1887) of the Subordinate Judge of

In this suit the plaintiff claimed title by inheritance to, and posses-
sion of, the Bansgaon villages an<l estate in Gorakhpur, under the manage-
ment of the first defendant, the Collector of the District for the Court of
Wards, the Collector appearing aiso as guardian of the second defendant,
a minor when the suit was instituted. The claim was that the' plain-
tiff, a collateral relation, was the heir, and that the minor defendant, being
really one Radha Kishen, son of Narsing Sewak, was not the son, or heir,
of H-inuccan Singh, the last owner of Bansgaon, who died on the 24tb
May 1872

[262] The plaint alleged that Hanuman Singh died childless, leaving
a widow, Pan Kuar, who died in 1879. It referred t-o a judgment
delivered in a suit between the present plaintiff and Pan Kuar in 1874, to
the effect that a posthumous son and heir, name i Dalio Nirain S ngh,
had been born of Pan Kuar to Hanuman Singh, and stated that this sup-
posed son had disappeared. A pedigree table was annexed, from which
it appeared that the plaintiff would have been the next heir-to Hanuman
Singh if no child had been born of his widow. A declaration that the
minor defendant was not Dalip Narain was claimed. Written statements
alleged that the minor was the son and heir, denying the personation
alleged. The issues raised the question whether the defendant was the
Dalip Narain, whom Pan KURT alleged to be her son, born on the 31st
January 1873, or was Radha Kishen.

The first Court found r.hat the boy whom the Court in the judgment
of 1874 recognized as Dalip Narain, son of Pan Kuar, was not the minor
defendant in the present suit, who was, in fact, as the Court believed,
Radha Kishen.

The High Court, on appeal, reversed this finding.

A Division Banch found that Pan Kuar had a child in 1873, which the
law presumed to be the child of her then deceased husband ; that the evi-
dence was in favour of the view that the present minor defendant was
D.ilip Narain who was so born ; and dismissed the suit.

The former suit, above referred to, decided in 1874, was brought by the
present appellant against Pan Kuar, claiming the property, and in it the
issue whether Dalip Narain was the son of Hanuman, was decided in the
affirma ive, with the result that the suit was dismissed. During the hear-
ing of the appeal in the present suft, a question as to the admissibilir.y, as
"evidence in it, of the judgment and record of the suit of 1874 was referred by
the Division Bjnch to a Full Bench. Th^ result of that reference is reported
in the Collector of Gorakkpur and another v. Palakdhari Singh (1), where

(1) 12 A. 1.



1892 [263] the facts of the case are stated. They also appear in their
DBC. 10 Lordships' judgment.

On this appeal,

PRIVY Mr. H. Cowell and Mr. W. A. Baikes, for the appellant, argued that

COUNCIL. t" ae evidence showed that the minor defendant was Radha Kishen, and a
stranger to the estate. There had been a failure to prove that be was
IB A. 261 born, as he alleged, a son and heir to Hanuman Singh in 1873.

Mr. J. D. Mayne and Mr. G. E. A. Ross, for the respondent, the

8 Bar P.C.J. Collector of Gorakhpur, argued that the appellant, on whom lay the

378-17 Ind. burden, bad failed to prove that the minor was not the son of Hanuman

Jm. 167. D y his wife Pan Kuar ; whereas the respondent had succeeded in proving

that he was such son.

Mr. B. Cowell replied.

Their Lordships' judgment was delivered by Sir B. Couch.


The suit in this case was brought by the appellant against the res-
pondent, as manager on the part of the Court of Wards of the Banpgaon
estate, and against another defendant, described in the plaint as " Eadha
Kishen, who calls himself Dalip Narain Singh, under the guardianship of
the Collector." The appellant sought to recover possession of the
Bansgaon estate, of which Hanuman Prasad Singh was formely the
owner. He died on the 24th May 1872, leaving a widow, Pan Kuar.
The appellant is the grandson of Drigpal Singh, a brother of Mabpal
Singh, the grandfather of Hanuman ; and if Hanuman died childless the
appellant would be the heir to the estate, subject to the life estate of the
widow, Pan Kuar. On the 9th June 1873 t-he appellant brought a suit
against Pan Kuar, the plaint in which alleged that Hanuman died child-
less, leaving only Pan Kuar his widow; tha*; the property left by him
devolved upon the plaintiff as a near heir, and that the defendant
had only a life interest ; that the defendant (Pan Kuar) having
procured a mile child of unknown parentage, gave out that it was
brought forth by her although she had not been pregnant at the time
[264] when Hanuman died. The defendant pleaded that sbe was preg-
nant when Hanuman died, and after his Heath Dilip Narain Singh was
born. The issues settled were, Is Dilip Narain the son of Hiouman or
not? In case the birth of the child is not proved, whether the plaintiff
is entitled to inheritance or not? The case was tried hy the officiating
Subordinate Judge of Gorakhpur, and judgment was given on the 23rd
January 1874. In it the Court decided the first issue in favour of the
defendant, and it being unnecessary to decide the second gave no opinin
upon it. The suit was dismissed with the cos r s. Palakdhari, the present
appellant, appealed to the High Court at Allahabad, which, on the 7th
December 1874, affirmed the decree of the lower Court, and dismissed the*
appeal. The judgment contains the following passages : Mr. Justice
Turner says, " Furthermore, no sufficient motive is sho^vn to exist to in-
duce her (Pan Kuar) to be a party to a fraud. By setting up a son she
loses her estate in her husband's property, and is reduced to a right of
maintenance. She is not shown to have had any personal animosity to the
appellant." Mr. Justice Brodhurst says, "Very clear and positive evi-
dence would be required to establish a claim such as has been instituted
by the plaintiff-appellant in the present case ; but the evidence he has
adduced in support of it is exceedingly weak and unreliable ; and although
be asserts that the defendant-respondent has never given birth to a child,



he is unable to furnish any clue as to whence sheobtained the infant 1892
which she alleges is her own, and which she certainly has bad with her DEC. 10.
since some seven or eight months subsequent to her husband's decease.
The respondent;, on the o^.her hand, has, in support of her allegations, pro- PRIVY
duced as valid proof as could, under the circumstances, have been expected COUNCIL,
of her whilst this case was pending in the lower Court."

In 1874 Pan Kuar left Bansgaon and went to live at Sarehri with her lfl * aB1
father and mother taking the child with her. In 1877 she made an appli- (P.O.)
cation to the Collector of Gorakbpur that the child which she alleged to 8 8ap- PO.J
have been born of her should, under Act XIX of 1870, be placed under 8 78=17 Ind.
the Court of Wards. This application had [265) not, for some reason Jup - 1M *
not apparent, been disposed of when in October 1879 Pan Kuar died in
the house at Sarehri. Her father was dead, but her mother, Ati Kuar,
survived her. Sarebri is 72 miles distant from Bansgaon. On the 5th
February 1880 the appellant presented a petition to the Court of the
Subordinate Judge in which he described himself as " paternal uncle and
guardian of the minor Babu Dalip Narain Singh," and asked for a
certificate of guardianship and administration of the property of the
minor, under Act XL of 1858. The petition refers to the previous
litigation ard to the Court having declared the minor to be the son of
Hanuman Siogh. On the 1st July 1880 the appellant presented another
petition, in which he said that the certificate case was thrown out on his
application, and asked to be appointed manager of the property of Hanuman,
on the ground that the child called Dalip Narain Singh, who was declared
by the Court to be the son and heir of Hanuman, was missing, and that
the two boys who had been set un as Dalip Narain Singh were fictitious
persons. On the 3rd July Ati Kuar presented a petition in opposition
asking that Pal&kdbari's application might be disallowed, and that she
might be arpointed manager, On the snme day the c fficiating Jurga of
Gorakhpur ordered that the Collector might "take the property of Dalip
Narain S ngb, the minor son and heir of Hanuman Singh, under his
management." AM Kuar appealed, but, having died in April 1881, this
appeal abated, and her application to the Subordinate Judge was finally
dismissed for the same reason on the 23id August 1882. On the 12th
March 1883 Rukmaoi Sewak Singh, the grandson of the eldest brother of
Har Sewak Sit gb, the father of Pan Kuar, applied to the Subordinate
Judge of Gorakhpur for a certificate of the guardianship and management
of the property of Dalip Nrain S>r gh. The application was opposed by
the Collector, who stated in his petition of objection that the identity of
the minor, whom the appelicant wished to set up as Ddlip Narnin Singh,
had been questioned by the other rmn b^rsof the family. The application
was rejected by the Judge on the llth June 1833, on the ground tnat the
estate bad been for nearly three years in charge of the Collector, to the
great; advantage of the minor, and the Collector was ordered to remain
[26j] in charge. No notice is taken in the judgment of the statement
that the identity of the minor had been questioned.

In the suit which is the subject of this appeal and will be afterwards
referred to, the appellant was examined as a witness, and in his evidence
he said that when Pan Kuar died " two minors came forward to claim
the property. One of them was a resident of zila Chapra, and the other
belonged to Azamgarh. Both these persons proclaimed themselves to be
Dalip Narain Singh. I then discovered that the boy from Azamgarh was
the son of Narsingh Sewak, and that the people of Sarebri wished to make
him out to be Dalip Narain Singh. I cannot tell with certinty the year



1892 in which this event happened, bub approximately it was in 1890. Then
DEC. 10, I commenced inquiring in all directions about the particulars of Radna
Kishen. From those inquiries I learnt that this defendant now present
PRIVY in Court is Radha Kishen, the sou of Narsingh Sewak." This appears
COUNCIL, to be the origin of the Collector's statement that the identity of the minor
had been questioned. Matters being in this state, the Board of Revenue
15 JL 261 directed the Collector to nominate the owner of the property, and betook
(P.C.)= steps to enable him to do so. The case of the Chapra claimant was dis-
6 Bar P.C.J. p O8 ed of by a Sub-Divisional Officer, Mr. MacLeod, who, on the 21st
378 = 17 Ind. January 1884, reported that he was not proved to be Dalip Narain Singh.
Jor, 167. Regarding the identity of the boy at Azamgarh, by which was mrant
Sarebri, that village being in the Azamgarh district, Pandit Sundar Lai,
Deputy Collector to the Collector of Azamgarb, was by an order of the
Collector, dated the 10th Mrch 1884, ordered to make a local inquiry.
He made his report on the 15' h March 1884. It begins by stating that
on the day the order was communicated to him, the Collector directed
the parties, i.e., Rae Rukmani Sewak Singh and Babu Palakdbari Singh,
to be present on the spot on the day fixed for the inquiry, and that he
took the precaution of obtaining their signatures with a view to obviate
any future objections on the score of ignorance of the date fixed for the
inquiry ; that in spite of this, however, neither Babu Palakdhari Singh nor
any representative on his part was present on the spot, so he had to hold the
inquiry in[267] the p/esence of Rae Rukmani Sewak Singh only. The ap-
pellant, in his evidence before referred to, said: "The inquiry into the iden-
tity of D-ilip Narain Singh made by the Collector of Azamgarh was not made
in my presence, but, on the contrary, the officer just mentioned caused me
and my vakil to be turned out." Their Lordships do not believe this. If
the Deputy Collector had acted so, the appellant or his vakil would certainly
have complained to the Collector about it. The report continues : " In
order that the inquiry might be as complete and independent as possible,
I was not content with examining the witnesses offered by Rae Rukmani
Sewak Singh, as that would have been objectionable, but selected the
witnesses m.v self from among the residents of mauza Sarehrr and of some
of the adjoining rnauzas, as well as from among the servants of Rae
Narsingh Sewak, Rae Rukmani 8ewnk, and the late Muaammali Ati Kuar,
the grandmother of Dalip Narain bitigh. These witnesses were summoned
through the agency of the police, and located in a place under proper
supervision. The result of the inquiry has been to satisfy me fully that
the boy produced is Dalip Narain Singh, son of Babu Hanuman Parshad
Singh and MusammaC Pan Kuar, and not of Radha Kisben, son of Rae
Narsingh Sewak Singh." Narsingh Singh was an uncle of Pan Kuar and
of Rukmani Sewak. The rerjort then states that 38 witnesses were
examined on oath, and among them vrere the residents and zemindars of
mauza Surehri and of adj lining mauznis, and that all agreed that the boy
was Dalip Narain Singh, son of Htnurnan and Pan Kuar, and that Radha
Kishen, the eldest son of Narsingh Singh, died at Allahabad the year
before during the bathing fair. It then gives the Deputy Collector's
reasons for his conclusion, which is given at the end, where be says, "In
conclusion, I beg to state that the result of the local inquiry held by me
has thoroughly sa'i^fied me that the boy is D ilip Narain, the son of
Musammat Pan Kuar, and that Rtdha Kishen died a year ago at

On the 15th September 1886 the appellant brought the present suit.
The plaint sought to recover possession of the property. It alleged that



Pan Kuar did not give birbh to a son ; that the boy [268] named Dalip 1892
Naraia Singh was brought and kept; by her clandestinely in her house DEO. 10.
and was the eon of another person ;-that shortly af'er the decision of the
High Court on the 17th December 1874, Pan Kuar caused the said boy to PRIVY
disappear, and from that time it was not known what had beaome of that COUNCIL,
boy, an;i that the plaintiff received that information in 1885. The issues
settled were " 1. Wnether the defendant in the present case is the same IS A. 261
Dalip N-train Singh whom Pan Kuar, widow of Hanuman S ngb, had (P.O.)
alleged to have been born of her. or wheuhar he i* flea <, an 1 th defendant 6 Sar. P.C.J
in this case is iu reality Radba Kmhen, son of Na^singh Sewak? 2. If 378 = 17 lod.
the 6rst part of the above issue is proved, in the present case barred as res- Jur. 161.
judic'ita ?" This second issue was decided in the plains. in" s favour by a
Full Bench and there is no apueal from than decUiou. On the aop'.ication
of the plaintiff's pleader's an issue was added, " Whether, af f er the d^ath of
Hanuman Singh, any son was born of Musammat Pan Kuar or not ?" The
Subordinate Jud^e found that the defendant was Radba Ki*hen and said
it was unnecessary to record a finding on the 3rd issue. Toe High Court on
appeal found that Pan Kmrhad a child, and ir appeared to their Lordships
during the hearir g of this appeal that this finding could not be contested.
The important question is whether the defendant is Radha Kishen. Uoon
this the onus was strongly upon the pUintiff, especially when it was estab-
lished that Pan Kuar had a son. Many witnesses were examined for
the plainiift, but it is stated in the judgment of the High Court that the
learned counsel who repn swted him there relied uoon nine witnesses with
regard to this issue. They all deposed to the defendant who was present
in Court being Radha K'.shen. Tue first is Ram S-wik Singh. He
said: "Tnere was no D.lip Na.rain Singh in mauza S^rehri." This
is at variance with the s augment in the plaint that thre was a boy
named DUip Narain Singh .bat not the son of Pan K rar. Ha also
said: " When Pan Kuar went to Aztmgarh from this district, no
boy accompanied her . ... I do not know whether there was
any boy or not when the former suis was baiug li.igatel ia this
C~>urt " Either this s'atemenr, i* false or he was not'ieiiant to
[269] prove that there was no D-,linNirain Singh. Another witness is
Jagcuo Siugh, a cousin of Radha K^hen, who deposed that tne defan laufc
was Ra iha K'shen, and said that; Ridba Kishen never weot to Ailahabtd,
which it was proved he did. Ram Sewak Sineh had said thai Rtdha
Kishen went to Benaree and not to Allahah d. The remaining witnesses

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 130 of 155)