1839.] OX APPEALS FROM INDIA. 179

The safer and better course seems tobe, that where the Appellant does notappear, and there are no means of knowledge the grounds of his appeal, theorder should be to dismiss without affirming. In this case he could not be letin to renew his appeal without satisfyingthe Court as to the grounds of default,and complying with such conditions asshould be prescribed. ‘Where the Respondent appears not, ea: necessitate theCourt must hear and determine the caseupon the best consideration of its meritswhich the matters before the Court enables it to give ; but in neither case canthe judgment be pronounced as of coursefor the party appearing, merely on theground of the other party’s absence.‘In the present case the form has beenadopted which has been used in a greatmajority of instances, where the Appellant did not appear at the hearing. It isnot, however, known whether, in these instances, there were ornot cases laid beforetheir Lordships, or such access to the proceedings below, and such recourse had tothese proceedings as might enable theirLordships to supply the defect occasionedby the Appellant’s default ; and in at leastone instance, the order was made, as itought to have been made here, simplydismissing the Appeal, and not atfirmingthe decree below. Their Lordships consider that a simple dismissal is to be regarded as the order which must have beenin the Court’s contemplation, and that nomore could have been intended in substance, although the objectionable form,importing aflirmance, was followed.We, therefore, think that, in the particular circumstances of this case, HisMajesty should be advised to amend theorder of the 16th April 1834, by makingit conformable to what it must be takento have intended, and to let in the Appellant to be heard notwithstanding thedismissal, that is to say, to restore theAppeal; and in case His Majesty shall bepleased so to order, that these conditionsshall be imposed upon the Appellants,namely, payment of Respondent’s costsoccasioned by the default in April 1834,and by this application; and that he shall

‘I-‘,1/2; _

now lodge cases within five months; andto permit the Respondent to take copiesof any part of the proceedings in hispossession, at the charge of Respondent,and undertake to disturb nothing donefrom the date of the judgment, until notice is received of this order.The following order was made in conformity with the above judgment by theKing in Council, on the 22nd December1836; “ That His Majesty’s Order inCouncil on the said Appeal of the 16thApril 1834-, be amended, by striking outso much of the said order as aflirms thedecree of the Sudder Dewanny Adawlut,at Fort William in Bengal, of the 27thof July 1812; and it is hereby furtherordered, that so much of the said orderof the 16th of April 1834 as dismissedthe said Appeal with costs, and the sameis hereby rescinded; and that the saidAppeal be restored; and that the Appellants be allowed to prosecute the same toa hearing; provided nevertheless, and itis hereby further ordered, that such leavebe subject to the several conditions mentioned iu the said report, whereof theJudges of the Sudder Dewanny Adawlut,at Fort VVilliam in Bengal, for the timebeing, and all other persons whom it mayconcern, are to take notice and governthemselves accordingly.” .

The Appeal having been thus restored,came on now for hearing on the merits.

9th May, 1839.

Ma. Jvsrice Bosmousr : .

THE Appellants in this case representSree Narain Rae, who, with his brotherLullit Narain Rae, was co-heir at law inthe seventh degree of Indur Narain Rae,late Raja of the Zemindary of the Pergunnah Havila Purneah, who died in theyear 1784, leaving the Rance lndrawuttee,his widow, in possession of his estate andeffects.On the death of the Ranee, on the 15thNovember 1803, the Zemindary, and allthe estate of which she died possessed,were claimed by Bhya Jha, the son of her

, 222_23

4

4

180 PRIVY COUNCIL JUDGMENTS [Dscsmsrs 20,

uncle, Roodrudhut Jha, who is represented by the Respondent, and who set up atitle as Khurta Pootra, or heir by theadoption of the Rance.Bhya Jha burned the body of the Reneeon the evening of the day on which shedied. He also performed the Sraddh orfuneral ceremony, three days after thedeath, having in consequence of a petition preferred to the Zillah Judge obtained 5,000 rupees for that purpose.Adverse claims having been preferred,the property was secured by authority ofthe Zillah Court, which, after having consulted the Sndder Dewanny Adawlut,put the heirs in

gossessionupon giving

security, leaving hya Jha to establishhis right by adopt-ion.On the llth of December, a Solubmvmah, or Deedof Compromise, was executed by the heirs-at-law and Bhya Jha,by which it was agreed that they shoulddivided the whole of the property, moveable and immoveable, comprising the estate left by the late Rance, as well theformer Zemindary, as the Z0nz1.'nda-ry thenrecently acquired by private and publicsale, in equal moieties. This instrumentwas executed in the presence of manywitnesses.On the 28th December, Srco NarainRae and his brother, the co-heirs, as wellas Bhya Jha, appeared before the Judgeof the Zillah Court, when Sree Narainand his brother being asked why theyexecuted the Deed when the right of noone had been inquired into, they replied,“We understood that the Ranee hadconstituted Bhya Jha her Khurta Pootra,in which case he is also an heir, and healso understood us to be rightful heirs;wherefore we and Bhya Jha agreed to amutual compromise, and have executedthis engagement, which specifies also theobjects.” Being asked if they made thisdeclaration in consequence of the oathset forth in the Deed of Compromise, orof their free will, they answered, “Ourclaim was for the entire estate ; but sincewe have voluntarily entered into this engagement, we are satisfied and agree, ofour free will, to relinquish a moiety ofit."

> 238—4O ,

\

Bhya Jha being also examined, said thelate Ranee constituted me her KhuriaPootra ; Sree Narain and Lullit Narainare kinsmen and rightful heirs of theRanee’s husband. They delivered a petition to the Court, claiming the entire estate left by the Ranee, and also preferreda claim to the whole. Wherefore, toprevent litigation, which might cause theruin of both parties, we agreed toa compromise, and exchanged engagements ac

cordingly. Being asked what he nowclaimed, he answered, I have now noclaim beyond what is stated in the Solubnamah. All of them, on being questionedif they wished to have joint possession ofthe estate, answered, We are desirous ofhaving joint possession, and will hereafter carry into efiect the stipulations ofour reciprocal Snluhnamalur.On the 30th December the Zillah Courtpronounced an opinion that the agreement was manifestly collusive, and couldnot be sanctioned as valid; and furtherstated that the petitions of the partieshaving been sent to the Sudder Dewanny Adawlut, the instructions of thatCourt were, that the nearest of kin, whoaccording to the Shasler should appearto be the legal heirs, should, on givingsecurity, be put into possession of theestate, and that Bhya Jha should prosecute his claim by a regular civil suit. Itwas therefore ordered that he shouldprefer his claim by a regular suit, according to usage, and Sree Narain and LullitNarain were put into possession.Bhya Jha appealed from the decisionof the Zillah Court to the ProvincialCourt of Moorshedabad. In consequenceof petitions to the Sndder DewannyAdawlut the parties appeared there. Theco-heirs asserted that Bhya Jha was notthe adopted son of the Rance, and thatthey had been induced to sign the Solubnamah by threats of Bhys. Jha, Bhya RamMisser, and others, and prayed that Bh yaJha might be required to prove that hewas the adopted son of the Rance, andmight be directed to prosecute, accordingto the existing Regulations, his claims tothe property left by the Rance at herdccease.

___ __ 1" 7 *—- — -1 -1 1'“

1839.] ON APPEALS FROM INDIA. 181

On the 26th September 1804, the Sudder Dewanny Adawlut, after expressingstrong doubts of the validity of the claim,declared that it was necessary for theends of justice, that Bhya Jha’s claim tothe whole of the property of the lateRanee should be judicially investigated;and therefore ordered that Bhya Jha,whether he claimed the whole of the pro

pertyof the Ranee in consequence of his

aving been adopted by her, or whetherhe laid claim to the half of it only, according to the agreement on the Solubnamah with Sree Narain and others,should institute a suit for the purposesin the Court of Zillah Purneah, in conformity to the Regulations.A suit was accordingly instituted byBhya Iha.On the 3rd September l806, the Courtordered the parties to produce all papersand documents, on which they intendedto rely, before the 4th November nextfollowing.Bhya Jha contended that it was notnecessary for him to prove that he hadbeen appointed Khm-ta Poofra, inasmuchas the Defendant had admitted it by theSoluhnamah.Witnesses named ina list were, nevertheless, directed by the Court to be examined. But on the 22nd June 1808,pursuant to a general order of the Government, all the proceedings were transferred to the Provincial Court of Moorehedabad.On the 26th June 1809, Bhya Jha presented a petition, stating that he had twoclaims on the property, moveable and immoveable, left by the late Ranee.That one claim was as Khm-ta Pontra.That the other claim was founded on theSolulmamah, orDeed of Compromise. Thatthe supplemental or annexed claim includcd two counts, first as Khurta Pootrafor the whole estate, real and personal,amounting to sicca rupees 1,315,693; seoondly, on the Deed of Compromise foramoiety of that sum; and that when thecause should come on for trial, he wouldbring forward or rely on either of thesecounts, as he might think proper.On the 28th July 1809, after hearing‘

7-? -.--—

one witness only, the Court of Moorshedabad proceeded to determine the case, andpronounced that it was unnecessary toenter into a further consideration of theclaims of either party; observing, thatwhether Sree Narain and Lullit Nara-inwere the rightful heirs, or Bhya Jahwas or was not Khurta Pootra, they wereequally bound by the stipulations of theengagement, mutually interchanged ; andthe b'0luhnamah executed before the Judgedefined the right of either party. It wastherefore ordered that Sree Narain andLullit Narain should give to Bhya Jhapossession of one moiety of the property,and one-half of the profits received, andeach party should pay his own costs.From this decision Sree Narain andLullit Narain appealed to the SudderDewanny Adawlut. _

An objection was made there to theright of Bhya Jha to enforce his claimunder the bbluhnamah, after having, bya petition to the Zillah Court, 5th ofSeptember 1805, claimed the entire property, and by a letter of the 10th of September 1806, declared that if Sree Narainand Lullit Narain would not abide bythe stipulations contained in it, he, BhyaJ ha, would henceforth consider the samenull and void.The Court ordered an investigation tobe made upon two points: first, as to thefacts of Bhya Jha's adoption by the Ranée; and secondly, the alleged fraud ofBhya Jha, Bhya Ram Misser, and others,in obtaining the Solunama-h. In consequence of this Order, a great body ofevidence was given on both sides, andthe Sudder Dewanny Court, after veryfull consideration of the whole case, bytheir final decree of the 27th of July1812, confirmed the decree passed bythe Provincial Court of Moorshedahad ofthe 28th of July 1809, which orderedBhya Jha to be put in possession of amoiety of the contested property, andalso half of the produce arising therefromsince the time that Sree Narain andLullit Narain had had possession; andmoreover declared that Bhya Jha was entitled to a moiety of the entire propertyleft by the Ranee, specified in the peti

2-l¢O—-42

‘ .

a

'I"*'* 7 4-' ---__1'-~

I

182 PRIVY COUNCIL JUDGMENTS [Dscensss 20,

tiou of the Plaintiff in the cause whichthe Provincial Court, in their Decree.had ordered to be placed in deposit. Butas the objection of the Appellant to theSoluhriamalzv, on which the Decree of theProvincial Court was founded, were notthoroughly inquired into, on which account the Appeal to the Sudder DewannyAdawlut was not without foundation. itwas ordered that both parties should beanswerable for the costs of suit in thatCourt.The first question to be determinedwas whether Bhya Jha was precludedfrom insisting upon the So!-uhnamah.The Court, considering that Bhya Jhawas not the first to swerve from the reciprocal agreement entered into betweenhim and his opponents, but on the contrary, had uniformly expressed his willingness to carry the same into effect,even aft-er his opponents had retractedtheir consent, and until the order of the26th of September 1804 ; which directeda judical investigation into his claim- tothe property of the Ranee, that he preferred his claim upon the agreement before the cause had come to a hearing inthe Provincial Court, and that he hadacquiesced in the Decree of that Court,maintaining the agreement, and prayingthat it might be affirmed; and did notapply for any examination of witnesses tosupport his title to the whole estate, buton the contrary objected to such examinition when ordered by the Court, anddesired a confirmation of the judgmentfor half the estate, in conformity withthe Deed of Compromise; and moreoverconsidering that forms of pleading werenot very strictly observed in the nativeCourts ;—determined, and, as their Lordships think, rightly determined upon thegrounds above mentioned, the Bhya Jhawas at liberty to insist upon the validityof the Soluhmz-n1-ah in support of the Judgment of the Provincial Court of Moorshedabad.The next question to be considered,was, whether that instrument Ought tobe supported by the Court, or whetherit was not impeachable on legal or equitable grounds.

The first ground of objection was, thatit had been obtained by the fraudulentrepresentation of a transaction which wasabsolutely false, namely, that the Raneeby words addressed personally to BhyaJha on the morning of her death, hadconstituted him her Khurta Pool-ra oradopted 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 compromisefounded on an assertion of such matterby him, however deliberately enteredinto by the co-heirs-at-law, would unquestionably be invalid.The Judges of the Sudder DewannyAdawlut, after carefully reviewing all theevidence in the cause, did not feel themselves able satisfactorily to declare thatthe adoption had taken place, neither didthey feel themselves justified inpronouncing that the representation of its havingtaken place was false.VVithout satisfactorily establishing theformer, Bhya Jha could not be entitledto recover the whole estate. But whenafter the assertion of his title on the oneside and the denial of it on the other, acompromise was entered into, in the presence of many witnesses, by parties onthe spot, and solemnly acknowledged bythe parties in a court of law to have beenvoluntarily executed, the burthen ofshowing that it had been fraudulentlyobtained by false representation was castupon those who sought to impeach thevalidity of their own deed.The laborious and accurate examination which the testimony in this case hasundergone at the bar has greatly assistedtheir Lordships in determining whetherthe Sudder Dewanny Adawlut arrived ata just conclusion.They find a great body of positive evidence to the fact of adoption, given bypersons who swear to having been presentat the time when the Ranee, being ofsound mind, addressed Bhya Jha, saying,“When I was but five or six months oldmy mother died, and a. short time after,

my father died ; and ever since your father maintained me, and having brought

24-2-45j

1839] ON APPEALS FROM INDIA. 183

me to this Rajah, gave me in marriage ; Iam therefore greatly indebted to your fa

ther, and thereby you have claims on me;Ihave made you my Khu-1-fa Pootm, property, estate, and effects, which I have bequeathed to you ; after which Words BhyaJha. rose and thankfully accepted them.”These witnesses further swear that shetold Bhya Jha to burn her body and perform the Sraddh; others swear that in

their hearing, the Rance personally de

clared on the same morning that she had

actually made Bhya Jha her KhurtaPootra, and gave her reasons; and others

depose that she ha-d on that same morn

ing consulted them as to the proper hourfor making a Khurfa Pootra. Itis beyondall dispute that Bhya Jha almost immediately after the death of the Raneeburnt her body, an oflice which it belonged to Khm-fa. Pooh-a to perform ;that hisright to succeed as Khm-ta Pooh-a wasclaimed for him by a petition presentedthe next day, and that he also publiclyperformed the ceremony of the Sraddh

three days after the death, as the adoptedheir, on which occasion he was placed onthe Musnud* and the turban put upon hishead. On the other hand it is sworn bymany witnesses who profess to have beenin attendance on the Ranee on that day,that she did not make any Khurta Pooh-a;that she was incapable from extreme illness and insensibility from doing anysuch act ; that several of the persons whoswear to having witnessed the act werenot present at the time; that Bhya Jhahimself was absent from the house duringthat morning, and did not arrive till afterthe death of the Ranee; that he was atanother place at the time when the adoption is sworn to have taken place; andthat he had, for a. long time before, ceased to come into her presence, in consequence of her having been displeasedwith him on account of his having practised sorcery against her. Declarationsof witnesses on both sides, contrary tothe facts deposed to by them in evidence,are sworn to by others; and tampering

‘The cushion or chair of state in whichaRajahor Zem1'mIa=rsits in public.

with the witnesses by the opponents onboth sides is deposed to.It cannot be denied, therefore, thatcircumstances are stated upon the face ofthe evidence which are calculated to excite suspicion, both with respect to thefact of the adoption, and the credit ofseveral witnesses adduced to prove it.But the case of the Appellants is found

ed upon a charge of positive fraud andimposition, and gross _fraud is not to beimputed upon suspicion only. Unlessthe charge be proved, parties are not tobe released from agreements entered intoby their solemn acts. There may beground to pause in giving full c;-edig tothe allegedadoption; but their Lordships,upon _a review of the testimony given onone side and the other, regard being hadboth to the matter and the credibility ofsuch testimony, do not see such a pm.ponderating Weight of evidence againstthe fact of adoption as to justify a determination that the assertion of its existence was an utter falsehood, and theyare therefore of opinion that the groundof impeaching the Saluhnamah by the coheirs, on account of its being founded ona suggestio falsi by his Opponent, BhyaJha, has not been maintained._The next objection to the Soluhnamahis an alleged suppress-£0 ceri.But the evidence does not afford anyfoundation for that objection. If the imputed falsehood of the adoption be laidout of the case for want of suflicient proofto support that imputation, the parties,in respect of the knowledge of nil-cumstances, must be considered to stand uponequal terms. They belonged to the samecaste, they lived in the neighbourhood ofthe Renee at the time of her death ; theyhad the opportunity of making inquiryinto all material facts, and their attentionwas alive to the ground of claim to theproperty ; these grounds havingbeen madethe subject of assertion on the one sideand denial on the other, before the execu.tion of the deed. It does not appear thatBhya Jha was in any respect better informed with respect to the rights of theheirs, the bearing of the law upon theirrights or his own, or the nature or amount

4 .

, 24s_4.1

184 PRIVY COUNCIL JUDGMENTS [D1-:01:-:MBsu2O,

of the property, real and personal, thanthe heirs themselves, still less that anything was concealed which they mightnot be supposed to know as well as he.The ground, however, which is moststrongly relied upon, and to which a greatpart of the evidenceis addressed, is thatthe heirs were induced to execute theSoluhnamah by intimidation and undue

persuasion.The person alleged to have been mostactive in this respect is Bhya Ram Misser,the Mokhtar or manager of the late Ranee,who is said to have urged the heirs toenter into the compromise, by repeatedimportunities, by the representation ofthe injury which they must necessarilysustain by a long protracted litigation,which would prevent both them and theirchildren from deriving any benefit fromthe Zemimlo/ry, and by actual threats thathe would cause the ruin of it, and hadthe means of carrying such threats intoefl’ect.

Other persons, and among them theCollector of the East India Company, arestated to have used persuasion to the

same efiect as Bhya Ram Misser. But itis to be observed, that the charge ofhaving employed intimidation is confinedto the latter; and that as he was dead atthe time when witnesses in support ofthe charge were examined, the opportunity of confronting them by his evidencewas known by the witnesses to be lost.At what precise time Bhya Ram Misserdied, does not appear. In the examination of Doorgapersaud, however, on the16th of April 1811, it does appear thathe was then. dead; and it was not tillafter that day, that the examinationswere ta-ken of the witnesses who chargeBhya Ram Misser with having employedthreats.The advice to enter into a compromiserather than engage in litigation, subjectto be protracted by Appeal, not only tothe Sudder Dewanny Adawlut, but toEngland, could not, in the absence offraudulent intention, be deemed a groundforimpeaching the validity of the Solubnamah. Indeed, Doorgapersaud himself,

the Vakeel of Sree Narain Rae, states in

241_a0 ,

\

his evidence, that he concurred in persuading his client, upon the samegrounds,to_ accede to the compromise ; and hisevidence with respect to fraud, in causingthe Soluhnamah to be executed, is confined to the persuasion and advice inwhich he himself concurred.The allegation of compulsion, by thethreats of Bhya R-am Misser, broughtforward in evidence after his death, cannot countervail the solemn and unequivocal declaration made by the heirs tothe Judge of the Court, that they hadvoluntarily entered into the engagement,that they were satisfied, and had agreedof their free will to relinquish a moietyof the property, more especially when itis recollected, that they were not takenby surprise, having, according to theirown evidence, executed the instrumentafter the respective claims of the partieshad been the subject of dispute.The last ground of objection is, thatthe heirs have given up amoiety of theirundoubted right, under a palpable mistake, of which it is contrary the principles of equity that Bhya Jha should beallowed to take advantage.To judge properly of this objection, wemust look at the circumstances as theystood at the time when the Soluhna-mahwas executed. The Appellants are notentitled to avail themselves of all thelight which subsequent investigation inthe course of the suit has thrown upontheir claims. If the nature or the extentof the rights of the respective partiescould be considered as the fair subject ofdoubt at the date of the deed, and if, toavoid expense and delay by legal inquiry,they agreed to settle the contest by anamicable arrangement, such transactionis not to be disturbed on the ground ofthe inequality of benefit which eitherparty may eventually have received fromit.It has ultimately been ascertained thatthe Rance, without the authority of theRajah, her husband, was not entitled tomake an adopted heir to her husband'sZemindary. But at the date of the Solubnamah, even -this point does not seem tohave been taken as clearly understsood.

0l\l

1839.] ON APPEALS FROM INDIA. 185

Sree Narain Rae and his brother wererelated to the late Rajah in the seventhdegree; and Bhya Jha was her cousin,the son of her uncle; and not only dothey in the Soluhnamah say, if Bhya Jhawas 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 tothe whole estate, real and personal. Itappears further, that besides the Zemindary of the Rajah, the Ranee died possessed of very large Zemindary property,part of which had been purchased duringa long widowhood of nineteen years.Whether any, and what part of suchZemindary property had been given toher by her husband, whether any, or whatpart of it was purchased with the profitsof her husband's Zemindary, or any, andwhat part with her own property, is quiteunascertained. Further it appears thatshe died possessed of more than three lacsof rupees in personal effects, or nearly3:30,000. That she was entitled to dispose of her separate property or Streedhun,consisting of whatever was given to herby her husband, to her husband's family,or any part of her own family, whethermoveable or immoveable, by adopting anheir of her own, appears to have beensufficiently established; whether she wasauthorized to dispose of landed property,purchased with the profits of her husband's Zemindary, and remaining in herpossession at her death, became a subject of discussion in the Sudder DewannyAdawlut; the result of which discussionappears to have been unfavourable to herright; but it could not by any means betreated from the commencement of theadverse claims as a matter free fromdoubt; for Mr. Harington, in his minutewith reference to the final judgment ofthe Sudder Dewanny Adawlut, though heexpresses his concurrence in the resultabove-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 Mitheelaschool, to which this family belonged,whether any moveable property, inherit

ed bya widow from her husband, and in

her possession at

the time of

her death,orany money o

r

other property arising fromthe product o

f

the landed estate, duringher possession, devolves, on her death, to

her own heir or to the heir of her husband.

Under all these circumstances, the trueamount o

f

the relative rights of the litigant parties must be considered a

s havingbeen doubtful, whether the law or the fact

be regarded. The uncertain event of

thelegal part of the case may be inferredfrom what is contained in the minute of

Mr. Harington above referred to. And

it is justly observed by

Mr. Stuart, theother Judge, that even after all the inqui

ry which had taken place, the rights of theparties, a

s they depended on facts, re

mained so doubtful, that they would eventhen afford a fair and equitable basis for a

compromise.Upon the whole, therefore, their Lordships are of opinion, that the Appellantshave failed to establish that the execution

of

the Soluhnamah was obtained by fraudulent misrepresentation, o

r 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 o

f

the Sudder Dewanny Adawlutought to be affirmed.That Court, though it affirmed theDecree o

f

the Provincial Court, did notgive 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 casetook 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 havingomitted to Appeal, the case was heard e

r

parte, and the Decree affirmed. The Appellants upon a special application to HisMajesty in Council were allowed to restore the Appeal, and bring o

n the casefor hearing, their Lordships being of opinion, that instead o

f 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

250–52

186 [JULY 5,PRIVY COUNCIL JUI)GMENTS

Respondent, affirming the determinationof two Courts in India, as well as the former determination here, their Lordshipsare of opinion that the costs of the Appealought to be paid by the Appellants.

29th June and 5th July, 1839.PRESENT

Lord Brougham, Mr. Justice Bosanquet,Mr. Justice Erskine, and the RightHonourable Dr. Lushington.Privy Councillors,—Assessors, Sir Edward Hyde East, Bart., and Sir Alexander Johnston, Knt.

On Appeal from the Sudder Dewanny

Adawlut of Bengal.RAJUNDER NARAIN RAE and

MoHAINDER NARAIN RAE,

the two surviving sonsand representatives ofSREE NARAIN RAE, deceased,” ..

. -

Appellants,

and

BIJAI GovIND SING, son ')representative of

BHYAJHA, deceased, - - - )

The duly authorised admission and consent ofa

Vakeel is binding upon a party though absent at

the time of making it.

The words “interest at

the rate of12 per cent.

per annum” might mean to exclude what is otherwise generally meant in India, the payment o

f interest monthly.

Respondent.

th July LoRD BROUGHAM :

THE first question for their Lordships'consideration is, as to the manner o

f taking the accounts, and whether the liability to pay according to a certain scalewas admitted in a competent manner.The Appellant's Vakeel is examined, andwe find in his evidence, that he admittedthe amount stated for principal, but objected only to the interest. He states a

s

follows: “Under these circumstances, I

observed that before then, often hadmention been made before Mr. John Herbert Harington, the former Chief Justice

of

the Court, of a settlement of the Wasi

*2, Moore's I.A., p. 253.o: * *

laut accounts, but the Respondent'sMokhtar always said that h

e would elicitthe Wasilaut o

n the gross collections, andthe Appellant always objected, b

y

sayingthat a Wasilaut could not be made itemby item, because the estate had beengiven out in farm, and that by such farming out, the sum o

f1, 12,740 rupees, 7

anas, being profits, was forthcoming withthe sureties o

n account of four years,

after paying the public revenues. Thatfrom the year 1216 to 1219, deposits hadbeen made at the above rate. That howcould h

e

account to Respondents item byitem, and strike a balance: in fact, theAppellant has set forth this plea in hispetitions, which are in existence amongthe records. Hence when the said ThirdJudge made the suggestion upon theground that the said amount had beendeposited in the treasury, it was notequitable that the Appellant should oppose objections to the measure, on whichaccount I admitted it. No letter came

to me from Rajah Sree Narain Rae, givinginstructions for our admission of theWasilaut, nor did the Appellant's Mokhtarkar object to it

,but merely objected

to the interest. My colleague, SuddanundPundit, also objected to the interest.After this, Shykh Fyazat, Appellant'sMokhtarkar, brought a petition for thepurpose of

its being laid before the Court,bearing the Appellant's seal. I do notknow whether at that time SuddanundPundit was in attendance in Court or not,

but I filed the petition, putting to it mere

ly my signature. In this Sree NarainRae made n

o objection to the sum of

1,12,740 rupees, 7 anas, but he objected

to the interest and to the paying overthe Wasilaut amount to the Respondent,although good and sufficient security hadbeen taken. At length the Judge o

f

theCourt fixed the nearest at twelve anasper cent. The petition which has nowbeen presented to the Court, containingobjections to the Wasilant, is in opposition to the Durkhast, which was present

ed

on the 3rd of January of

the presentyear.” That petition was not produced,and doubts as to the evidence of the Wa

keel have been thrown out in argument,-

t