Reports of cases heard and determined by the Judicial Committee ..., Volume 11 online

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REPORTS OF CASES

HEABP AND DETERMINED



BY



TnE JUDICIAL COMMITTEE,



AND



THE LOEDS



HER majesty's MOST HONOURABLE

/, 7 PRIVY COUNCIL,



APPEAL FROM THE SUDDER DEWANNY ADAWLUT

AND man courts of judicature

IN

THE EAST INDIES.



BY EDMUND F. MOORE, ESa, M.A.,

ONE OF HER MAJKSTY'S COUNSEL.



YOL. XI.
1866-7.



BANGALORE:
RICHMOND F. HAYES, PUBLISHER;

EXiLttUfEB TBESS, BESIDEKCT BOAD.



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LIBRARY OF THE
STANFORD JR. UHiyERSITh

JUL 15 1901



LmARY OF THE



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LIST

OP THE

JUDICIAL COMMITTEE

OP

HEEMAJESTY'S MOST HONOURABLE

PRIVY COUNCIL,

ESTABLISHED BY THE 3RD & 4TH WILL. IV., C. 41, ,

FOE HEAKDCO AXD REPORTINCf ON APPEALS TO IIER
MAJESTY IN COUNCIL.



1866-7.



The Duke of Buckingham and Chandos, Lord President.

Lord Chelmsford, Lord High Chancellor.

The Duke of Buccleuch, formerly Lord President.

The Marquis of SaUshury, formerly Lord President.

The Earl Granville, late Lord President,

Lord Brougham and Fau.u, Lord HighChancellor (deceased).

Lord Cranworth, late Lord High Chancellor (deceased).

Lord 8f, Leonardos, formerly Lord High Chancellor.

Lord Westbury, formerly Lord High Chancellor.

Lord Wensieydaky formerly one of the Barons of the Court
of Exchequer.

Lord Kingsdown, formerly Chancellor of the Duchy of
Cornwall.

Lord Romilhj, Master of the Rolls.

Lord Cairns, one of the Lords Justices of the Court of
Appeal in Chancery.

The Right Hon. Stop/ten Lns/iington, D.C.L.,late Judge of
the Admiralty Court.



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IV LIST OP THE JUDICIAL COMMITTEE.

Tlie Right Hon. Sir James Leivia Knight Bnue, Kut., one of
tho Lords Justices of the Court of Appeal in Chancery (de-
ceased).

The Right Hon. Sir Edward Ryan, Knt., formerly Chief
Justice of the Supreme Court at Caicnf/a.

The Right Hon. Sir Frederick Pollock, Bart., late Lord Chief
Baron of the Court of Exchequer.

The Right Hon. Sir George Jmves Turner, Knt , one of tho
Lords Justices of the Court of Appeal in Chancery (deceased).

The Right Hon. Sir Lawrence Peel, Knt., formerly Chief
Justice of the Supreme Court at Calcutta.

The Right Hon. Sir Alexander James Edmund Cockbnrn^
Bart., Lord Chief Justice of the Court of Queen's Bench.

The Right Hon. Sir John Tayhr Coleridge, Knt., formerly
one of the Judges of the Court of Queen's Bench.

The Right Hon. Sir William Erie, Knt., late Lord Chief
Justice of tho Comt of Common Pleas.

The Right Hon. Sir James William Colrik, Knt., formerly
Chief Justice of the Supreme Court at Calcutta.

The Eight Hon. Sir Edward Vaughan Williams, Knt., late
one of the Judges of the Court of Common Pleas.

The Eight Hon. Sir James Plaisted Wilde, Knt., Judge of
Her Majesty's Court of Prohate and Divorce.

The Right Hon. Sir Fiiz-Roy Edward Kelly, Knt., Lord
Chief Justice Baron of the Court of Exchequer.

The Right Hon. Sir Richard Torin Kindersky, Knt., late
one of the Vice-Chancellors of the Court of Chancery.

The Right Hon. Sir William Bovill, Knt.,T^rd Chief Justice
of the Court of Common Pleas.

The Right Hon. Sir John Roll, Knt., late one of tho Lords
Justices of the Coiu't of Appeal in Chancery.



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A

TABLE

OF THK

NAMES OF CASES REPORTED

IN THIS VOLUME.



Page.

-Appovior t\ Rama Subba Aiyan - - - c 75
Ashrufood Dowlah Ahmed Hossein Khan Bahadoor v,

Hyder Hossein Khan 94?

Baboo Dhunpnt Singh r. Gooman Singh - - - 433

Baboo Miheen Lall, Mussumat Cheetha v. - - - 369

Baboo Rewun Pershad v.' Jankee Pershad - - - 25

Bamundass Mukerjee, In re (Note) - - - - 3

Bhugwandeen Doobey v. Myna Baee - - - 487

Busheer Khan, Meethun Bebee «?. - - - - 213

Cavaly Vencata Narrainapah v. The Collector of Masuli-

patam 619

Delhi, The estate of the Ex King of Delhi, Lalla Narain

Dossr - 277

Dhurma, Mussumat Mooneea v (Note) - - - 393

Eshcnchunder Singh v Shamaohum Bhutto - - 7

Gooman Singh, Baboo Dhunput Singh v. - - - 433

Gopaulchunder Chuekerbutty, Sreomancliunder Dey v. 28

Goree Monce Doss3e r. Jiijgut Indro Narain Chowdery 1



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VI TABLE OF CASES REPORTED.

Page.
Greedharee Doss v, Nundokissore Doss, Mohunt - - 405
Grunga Gobind Mundul v. The Collector of the Twenty-
four Pergunnahs 345

Guthrie v. Lister 129

Hjder Hossein Khan, Ashi-ufood Dowlah Ahmed Hossein

Khan, Bahadoor v. 94

Jankee Pershad, Baboo Rewun Pershad r. - - - 25

Jodonath Bose v, Shumsoonnissa Begum - - - 651

Juggomohun Bukshee r. Roy Mothooranath Chowdry - 223

Juggut ludro Nai'ain Chowdery, Goree Monee Dossee v. 1

Katama Natohear, Zemindar of Shivagunga, Srimut
Rajah Mootoo Vijaya Raganadha Bodha Gooroo

Sawmy Periya Odaya Taver v. - - - - 50

Lalla Narain Doss v. The estate of the Ex-King of

Delhi - - - - ^ - - - 277

Lister, Guthrie v. -129

Maitland, Tareeny Chum Bonnerjee v.' - - - 317
W asulipatam, The Collector of, Ca valy Vencata Narraina-

pah r. 619

Meethim Bebee v, Busheer Khan - - - - 213
Mohummud Zahoor Ali Khan v, Mussumat Thakooranee

RuttaKoer 468

Mohun Lall, Thakoorain Sahiba v. - - - - 386

M-onshee Buzloor Ruheem t\ Shumsoonnissa Begum - 551

Mussumat Cheetha v. Baboo Miheen Lall - - - S69

Mussumat Doolhin Badam Konwur, Seetul Pershad v. 268
Mussumat Jariut-oll-Butool v, Mussumat Hoseinee

Begum 194

Mussumat M ohumdee Begum, Nawab Umjad Ally Khan 617

Mussumat Mooneea r. Dhurma (Note) - - - 393

Mussumat Thakoor Deyhee v. Rai Baluk Ram - - 139
Mussiunat Thakooranee RuttaKoer, Mohummud Zahoor

Ali Khan v. 468



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TABLE OF CASES RKPORTBD. VU

Myna Baee, Bhugwandeen Doobey v. - - - 487

Nawab Umjad Ally Khan t\ Mussuiuat Moliumdeo

Bbgum 517

Nugenderchunder Ghose v, Sreemutty Kaminee Dossee 241

Nundokissore Doss, Mohunt Qreedharee Doss r. - - 405

Bai Baluk Ram, Mussumat Thakoor Deyhee t?. - - 1^9

Rajah Ameer Hussun Khan, Shah Koondun Lall v. - 120

Rama Subba Aiyan, Appovier r. - - - - 75

Roy Mothooranath Chowdry, Juggomohun Bukshee v, 223

Ruttonji Edulji Shot v. The Collector of Tanna - - 295

Seetnl Pershad v. Mussumat Doolhin Badam Konwur- 268

Shah Koondun Lall v. Rajah Ameer Hussun Khan - 1 20

Shamaohum Bhutto, Eshenchunder Singh r. - - 7

Shumsoonnissa Begum, Jodonath Bose v. - - - 551

Shumsoonnissa Begum, Moonshee Buzloor Ruheem v. - 551

Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 28

Sreemutty Kaminee Dossee, Nugenderchunder Ghose v, 241
Srimut Rajah Moottoo Yijaya Raganadha Bodha Gooroo
Sawmy Periya Odaya Taver v. Katama Natchiar,

Zemindar of Shivagimga 50

Sunduloonissa Chowdranee, Wise V. - - - - 177

Tanna, The Collector of, Ruttonji Edulji Shet v. - 295

Tareeny Churn Bonnerjee v, Maitland - - - 31 7

Thakooram Sahiba v. Mohun Lall - - - - 386
Twenty-four Pergunnahs, The Collector of the, Gunga

Gobind Mundid v. - - - . 345

Wise t?. Sunduloonifisa Chowdranee - - - - 177



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CASES

IX

THE PRIVY COUNCIL

ON APPEAL FROM

THE EAST INDIES.



GoKEK MoNEE DossHK, Hud others - Appellants,



AND

JuGGUT Indro NAR.4IX Chow- i „ , , ^

DjsRY, and others - ,\ Respondents *

On petition from the High Court at Fort William^

Bengal.

X HIS was a petitioa for leave to appeal from certain 18th Jtine,
Orders and decrees of the Civil Judge and Sudder ^-^^
Ameen oi the ZiUah Rungpoor^ affirmed upon appeal ^twincum*

♦Present: Members of the Judicial CommitUe.—UhQ'Biighi m^forapwiS"
Hon. the Lord Justice Knight Bruce, the Eight Hon. the Lord ^®*^® ^ *^P"
Justice Turner, and theKightHon. Sir Edward VaughanWiUiams. fn&e^titilm

Assessor : — The Bight Hon. Sir^Lawrence Peel. a full state-

ment of the *

grounds, to show that there is a substantial case on the merits, and a
point of law involved, proper to be determined by the appeUate Court.

A petition forspecial leave to appeal contained a general statement of
the proceedings in India, and an averment that they were irregular and
contrary to law. Such petition ordered to be dismissed or to stand over
for amendment as being too general and vague.

On the amended petition, stating in detaS the facts and specifically
showmg le^l ffrounds of objection to the decrees and Order of the Court
below refusing leave to appeal, special leave to appeal was eranted,
VOL. XI A



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2 CASES IN THE PRIVY COVNCIL

1866. ty the High Court of Judicature at Fort William^

GuREB MoNBE BcTiffal^ which Court refused leave to appeal to Her

V*^ Majesty in Council on the ground, as it appeared from

iwDRo^ the petition, that it was only a decision in a Miscel-

Narain laneous case, and not a final judgment, decree or

Order, within the meaning of sec. 39 of the Charter,

dated the l4th of Mat/^ 18G2, constituting the High

Court of the Presidency at Fort WiUitwi, or the

previous Order in Council of the lOth of Aprils 1838,

relating to appeals.

The petition set forth the proceedings taken
in India under a decree of the Zilluh Court of
Bungpoor^ of the 26th of June^ 1837, and in which
the ancestors of the Respondents wore interested,
and stated generally the facts of the case, submitting
that the proceedings and Order of the High Court
refusing leave to appeal were irregular and contrary
to law.

Mr. Wdod^ in support of the petition.
The Lord Justice Knght Bruoe : —

Their Lordships are of opinion, that the statements,
both of law and fact, contained in the petition are of
too general a character to enable them to Judge of the
propriety of granting the special leave to appeal prayed
for. The petition, therefore, must be either dismissed,
with liberty to present another petition, or stand over
to amend the petition. In either case the facts alleged
in the petition must be verified by an affidavit.

The petition was amended, and, after fully de-
tailing the proceedings in the Courts in India and
the decrees of the Principal Siidder Ameen and
Zillah Judge of Rungpoor and the High Court,



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ox APPEAL FROM THE EAST II^DIES.



alleged that the Petitioners, feeling aggrieved by the ^see.
decrees, presented a petition for leave to appeal, ooreb mokm
which was rejected by the High Court (the Hon.
G. Loch and the Hon. F. A. Glover present), the
Court saying, "The Order passed on the petition
of Bamundass Mukerjee^ No. 265 of 1865, is appli-
cable to this petition, which is rejected " (a). That



V.

JUGOUT

Inpro

Naraix

Chowdery.



(a) The judgment in the case oi Bamundass Mukerjee referred:
to and set out in the petition was as follows : —

**This is an application for permission to appeal to the
Privy Council against the Order of the High Court passed in
the execution of a decree of the Privy Council. Notice was
ordered to be issued to the opposite party to come in and show
cause against this application within one month from the date of
service of notice. Subsequently, both parties having appeared, and
as the case involved a new point of considerable importance, it was
ordered on the 26th Atigmt^ 1865, to be brought up before the
miscellaneous Bench of Judges. It accordingly came before the
Court (present, Justices Loch and Glover) on the 1 3th SepteyTiber,
1865. Mr. Justice Loch delivered judgment and an Order was
passed by this Court on the 27th Aprily 1865, confirming an Order
passed by the Principal Sudder Anieen in execution of a decree for
a sum above Es. 10,000, and application is now made to the Court
for permission to appeal to the Privy Council under section 39 of
the Charter of the High Court. The words of tho Charter quoted
in support of the application are from any ' final judgment, decree,
or Order ' of the said High Court made in appeal. The words, no
doubt,arfr verywide : we think that they are not intended to extend
the privilege of appealing to the Privy Council in miscellaneous
ca^es, or to alter the present rules which restrict an appeal to

* judgments, decrees, or decretal Orders.' In Eegulation XYI. of
1797, the word 'judgment* was alone used, but, notwithstanding,
parties had been allowed to send miscellaneous cases to the Privy
Council : the practice was put a stop to in 1837 by a construction of
the late iSwJrfw- Court, dated the 18th August, 1837, No. 1102.
In 1838 an Order in Council was passed, bearing date the lOth
Apiil, issuing rules for the admission of appeals to the Privy
Council ; and in the first of these rules we have the words

* judgment, decree, or decretal order.' all of which words, we think.



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CASES IN THK PRIVY COUNCIL



D088SB

V.
JUGQUT

Indro

Nabain

Chowdkkt



1866. the Petitioners were precluded by the practice of
ooreTmonke the Court and their interpretation of the Order in
Council of the lOth April^ 1838, and of the Charter
of the High Court, from obtaining the leave of such
Court to appeal to Her Majesty in Council ; that the
value 9f the subject matter in the original decree of the
26 th June J 1837, was, at the date of the judgment of
the High Court sought to be appealed against, consi-
derably in excess of Rs. 10,000, the appealable amount,

are intended to have one and the same meaning, viz.,' the judgment
or decisions come to in a suit/ and that they do not refer to Orders
passed in execution of a decree. Such has been the interpretation
put upon the words by the public, for up to the present time no
application has been made to submit miscellaneous appeals to the
Privy Council through this Court since the rules of 1838 were
promulgated. In the Charter of the High Court the same words
are used, with the omission of the word * decretal ' before ' Order : '
no doubt it is a remarkable omission, but reading it with the
assistance we have from the letter of the Secretary of State for
India, oi the 14th 3fay, 1862, par. 37, we do not think that so
m&terial a change in the past practice of the Court as the permission
to appeal from miscellaneous Orders would have been passed by

without comment, when henoticesvery particularly the introduction
of a section in the Charter allowing of appeals from interlocutory
Orders with the permission of a Judge of the High Court. In the
paragraph of the letter referred to it is distinctly stated, that in
regard to appeals to the Privy Council theobjecthas been to avoid
unnecessaryinnovation; that the existingruleswhichregulate these
appeals are, therefore, left in force, with one or two additions only •
and the writer proceeds to instance the introduction of a section
permitting appeals from interlocutory Orders : and we think that
there is a very great and sufficient reason why an appeal from
Orders passed in execution of a decree should not be allowed
which is, that if allowed it would open a fresh door far harassing an
Opponent who has already had to fight his battle perhaps up to the
PrivyCouncil,and deprive him of the power of executing his decree
without further trouble and vexation. We think, therefore that
this and such like appeals cannot be received, and we reject the
application."



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ON APPEAL FROM THK EAST INDIES.



the sum which was sued for in the original suit being ^sce.
Rs. 9,925, and the amount awarded by the decree being guree mo m
Es. 5,800, with interest at the rate of 12 per centum ^""^^^
per annum to the date of payment ; that the grounds Juggot
on which the Petitioners applied for special leave to Naeain
appeal were, amongst others : — ^First ; that the con- ^^^^^"^^y-
struction put by the High Court upon the Order
in Council of the 10th April^ 1838, and the Charter
of the High Court was incorrect. Second; that
by Ben. Reg. of 1814, and by the express terms
of the Act, No. VIII. of 1859, ss. 207 to 2l7,
it is rendered obligatory that applications for exe-
cution should be made to the Court which passed
the decree ; and it had been repeatedly adjudged by
the Indian Courts, that appliiutions for execution to
a Court without jurisdiction wi»re void, and, therefore
wholly insufficient to prevent execution being barred
by limitation. Third ; that the Indian law requires,
in order to enable another Judge than the one who
passed the decree to execute it, that an execution case
should be referred to such other Judge by the Judge
who passed the decree, and when such execution case
has been struck off the file of the Judge to whom it
has been referred, his jurisdiction is ended, and to
revive it a new reference is required. Fourth ; that
according to decided cases of Indian law and the
principles of jurisprudence the process of a Court nat
having jurisdiction can in no case be legalized by the
subsequent sanction of the Judge having jurisdiction
but new process must be issued. Fifth; that the
proceedings in the Court of the Principal Sudder
Ameen were, therefore, wholly void from the 19 th
Juney 1844; and that, consequently, any money re-
covered thereunder was illegally exacted, and would



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CASES IN THE PRIVY COU^'eIL



1866. j^Qt prevent the operation of the rule of Limitation ;



GuRFK MoNEE aud that under the old law of Limitation the execution
DossEK .^ ^^.^^ Sixth ; lliat the execution was also barred,

:;o. XIV. of



V.

JUGGUT

Indro

Narain

Chowdeuy.



under the provisions of the Act, 2^o. XIV. of l85U,
ss. 20 and 21, no proceedings having beeu taken in a
competent Court within throe years from the passing
of that Act. Seventh ; that the decision contained
in the judgment of the High Court was at variance
with both previous and subsequent decisions of the
Sudder and High Courts respectively, and if unre-
versed would cause great uncertainty and confusion
as to the limits of the jurisdiction of the inferior
Indian Courts, and also as to. the law of Limitation
of executions, and the construction and operation of
the Acts hereinbefore referred to, which it is of the
greatest importance to have accurately defined, main-
tained, and settled; and prayed for special leave
to appeal from the decrees of the Civil Judge and
the Principal Sudder Ameen of the Zillah Rungpoor
of the 9th of June^ 18d4, and the 22nd of Juncy
1864, and also from the decrees of the High Court
of Judicature at Fort William in Bengal^ of the 9th of
January^ 1865,the 29th of April^ 186&, and the Order
of the 13th of September^ 1865, rejecting the petition
of special appeal.

Upon this amended petition special leave to appeal
was granted.



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ON APPEAL FROM THE EAST INDIES.



EsHE^CHTJNDEK SiNGH * ^ • Ap2)ellant^

AND

Shamachukn Bhutto, Koilashux- ) „ / / #

DER Singh, and others - ) ^

On appeal from the High Court of Judicature at
Fort William^ in Bengal.

illlS was a suit foi- s,>ecific performance of an 2nd&3r(l
agreement brought by the Eespondents, the Bhuttos^ Nov^^e.
against the Appellant and the Respondent, Koil- A decree of
aschunder Singh, The object of the suit was to re- Com-tof
cover possi:siou of a four annas undivided share of ^^l^^^^
a Puinee Talook, called Mouzah Balooka, and Mqu- founded on an

V ^ ^ ' assumed state

zah Srecrampoore. appertaining to Perqunnah. Ookra. of facts, con-

„ .7 \ \ -r* 1 ry^iT •» tiadictory to

the Leramdary 01 the liespondent, Sutteeschunder the case
Roy Bahadoor (usually designated as the Maharajah pf^f^a of

of Kishnaqur\ and to have a deed of conveyance of *^® evidence
•^ ^ "^ adduced m

support of it;
* Present : Members of the Judicial Committee,'^ The Eight upon appeal

Hon. the Lord Westbury, the Right Hon. Sir James WiUiam ®^^^ ^T^th

Colvilo, and the Right Hon. Sir Edward Vaughan Williama. costs. The

Assessor : — The Right Hon. Sir Lawrence Peel. Judicial Com-

mittee hold-
ing (lythat it
was incorrect to conclude parties by inferences of fact, not only incon-
sistent with the alle<3ation8 in the plaint, constituting the case the
Defendants had to meet, but which were in reality contradictory to the
case made by the Plaintiff in the Court below ; and (2), that the lo^l
conclusions doducei by the High Court were from assumed facts, which
wore not consistent with settled principles of law or equity.



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CASES IN THK PRIVY COUNCIL

18C6. (he Tahok executed in the Plaintiff's favour by the

EsHEN- Defendants.

^SS* The plaint stated to the effect, that it was agreed

** between the Appellant and his co-Defendant, of the

HAMACHUR5C ^* '

liHDiTo. one part, and the late Kiatomokun Bhutto^ the father
of the Respondents, Shamachurn Bhutto^ Kalu
chum, and Bhowaneechum^ and of Oomachurn
Bhutto J deceased, of the other part, that the Putnee
should be taken jointly by them from the Maharajah^
the Zemindar y in the following proportions, viz., a
twelve annas share by the Appellant and his co-De-
fendant, and the remaining four annas share by their
father, at a certain annual rent of Rs. 756, exclusive
of establishment expenses ; the consideration being
the sum of Rs. 11,000, payable to the Zemindar ; and
that an Ekrar (written agreement) to the above effect
was executed on 1 5th Kartickj 1265 (Slst October^
1858). The plaint then stated the cause of action to
be that the Defendants in violation of the terms of the
Ukrarj had fraudulently got a Putnee lease executed
in their own names on the 28th Kartich of that year,
and has taken possession of the property ; and had
refused to make over to them the four annas share,
or to take the consideration-money (i.e. the price
payable to the Zemindar) for the same.

The Ekrar in question was filed with the plaint,
and purported to have been signed by the Re-