Special Appeal from the decision of Mr. E. Jenkins, Officiating JUGDWUN SINGH AND OTHERS, (SOME OF THE versus SHEO SUHYE SINGH AND GUJRAJ SINGH, (PLAINTIFFS,) SPONDENTS. Vakeels of Appellants-Moonshee Ameer Alee and Vakeels of (Plaintiffs) Respondents-Baboos Kishenkishore Ghose THIS case was admitted to special appeal on the 13th January 1858, under the following certificate recorded by Messrs. H. T. Raikes and J. H. Patton. "This suit was brought by certain parties professing to be creditors, and disputing the bona fides of a sale of property on the part of their debtors, and seeking to cancel the same and make the property liable for their decree. The suit was dismissed by the principal sudder ameen; but the judge, on the sole ground that one of the vendors was, at the time of sale, a minor, when he attached his name to the deed, held the conveyance to be thereby null and void, and decreed the suit in favour of the plaintiffs. "The special appeal questions the legality of this decision; and as the parties objecting to the sale were neither the minor nor his legal representatives, who were alone legally competent to question the legality of the minor's acts on the ground of minority, we consider that the judge was wrong to declare the sale voidable that ground only. We therefore admit the special appeal to try the point, whether the case should not be remanded to the judge to try it on its general merits." JUDGMENT. on The (plaintiffs) respondents obtained a decree against the defendants, and brought the present suit to set aside a deed of sale, which By a particular compro the defendants had executed in favour of former judgment creditors, on the ground of collusion and fraud. Amongst the objections taken to the deed, and urged as a ground for its cancelment, was the minority, at the time of the execution, of Tekeram Singh, one of the vendors. The defendants pleaded that the conveyance was executed by all the parties interested in the property, for their common benefit, with the view of saving it from any loss that might accrue by allowing it to be sold at public auction. It appears that the transfer was made for the welfare of the minor, who was one of several vendors, and we do not find that the mother, the guardian of the minor, either at the time or since its execution, ever made any objection to the deed of sale, although she was not an attesting party; and in the present suit, as one of the defendants, she acknowledges that it was executed in good faith. We are clearly of opinion that, under these circumstances, the judge, upon the sole ground of the minority of the son, and that his interests should at the time have been represented by the guardian, was in error in considering the deed null and void, ab initio, and that he has failed to consider an important point which is raised by the plea, viz. that, if admitted, it would affect only the rights of the minor, and not the interests of the other vendors in the property. Upon these grounds we reverse the judge's decision, and remand the case to him for re-trial upon its general merits. Regular Appeal from the decision of Ramlochun Ghose, Principal versus DAMOODURCHUNDER ROY AND OTHERS, (PLAINTIFFS,) Vakeels of Appellants-Baboos Kishenkishore Ghose and Vakeels of Respondents-Baboo Shumbhoonath Pundit and SUIT laid at Company's rupees 5,466-0-0. 18,500 was due in this suit jointly. Of this 12,500 were sum, rupees carried to their common credit, and an indigo factory was one of them for all jointly for the balance of transferred to It is unnecessary in this case to recapitulate certain preceding mise, rupees matters in which the parties, now opposed to each other, were on the to the parties same side against Mr. Furlong, manager for the Bengal indigo company. It is sufficient here to state that, in the transaction which has given rise to this suit, it was arranged that Mr. Furlong was to pay them rupees 18,500, of which 12,500 were paid in cash into the joint tuhveel of the parties by Kesubchunder, who received it on their joint account, and for the balance of rupees 6,000, the Kishndebpore indigo factory was to be transferred to them at that price. This was done; the bill of sale being drawn out in the name of the appellant, Kesubchunder, in Calcutta, whither he had gone to receive it, and thereby getting possession of the factory, he had promised to pay respondents their share of the price from the proceeds of the indigo: but on his failure to do so, this suit has been brought by respondents for it, or for rupees 5,466 principal, and interest according to their 9 annas 12 gundas share of rupees 9,110, being the above sum of rupees 6,000 principal, with rupees 3,110 interest added to it. The defence acknowledged the particulars of the transaction as detailed above, but alleged appropriation by Damoodurchunder Roy of rupees 12,500 paid to him by Kesubchunder; and further it was said that, of the entire sum of rupees 18,500, rupees 11,100 belonged to respondents, and rupees 7,400 to appellants, so that rupees 1,400 were still due to the latter from respondents. Against the decree of the principal sudder ameen in favor of respondents, three pleas have been put forward corresponding with the issues raised before him: - First. That the suit cannot lie, until the joint accounts of the parties in all their pecuniary transactions have been investigated. Secondly. Whether rupees 12,50) had been appropriated by respondents, or whether it had been credited in the joint account of the parties by Kesubchunder. Thirdly. Whether any portion of the sum of rupees 18,500 had been received on account of rents of two villages, viz. Gong Simullea and Sukragatchee, the property of Chundermohun alone, and which therefore respondents were not entitled to share in. It will be convenient to consider the first and third pleas first, which the principal sudder ameen held to be invalid, because, as regards the first, appellants had not stated that they had paid rupees 6,000 into the joint tuhveel, so that an adjustment of this claim was not dependent upon the adjustment of all their accounts, and, as regards the third plea, because appellant Chundermohun had his legal remedy with reference thereto. It is objected before us that the principal sudder ameen is wrong in these views, because by the investigation of all the accounts The transferee, share,was sued rupees 6,000. not paying the plaintiff's their fort by them; and the decree of the lower favour was upheld in apants' objec peal. Appeltion, that all the tween the parties should be disallowed, as adjusted, was court in their accounts be this claim arose out of the compromise and it was not open in this suit to consider upon what items it had been effected. appellants might be entitled to a set-off, as regards the sum now claimed, and it only promotes litigation to refer them to another suit on account of the rent of the two villages named. But we quite coincide in the opinion of the principal sudder ameen on both points, and therefore do not admit the pleas; because the question in this suit relates simply to the money received on account of a particular compromise made for the benefit of the parties generally, and to the disposal of the money by Kesubchundur, and it is not open in this suit to consider upon what items the compromise was effected. And this leads to the consideration of the second issue, on which the principal sudder ameen held that the sum of rupees 12,500 had been paid into the common fund by Kesubchunder, and that all proof of its appropriation by respondents was wanting. We also come to the same conclusion after perusal of the evidence taken in the case, as it is convincingly proved thereby that Kesubchunder received the amount for the parties jointly, and that it was brought by him to their common credit in the hands of Bishnath Sircar, their joint treasurer. Both Damoodurchunder, respondent, and Kesubchunder, appellant, were examined on oath; and while the evidence of the first to the above effect is strongly corroborated by the other witnesses and documentary evidence, as set forth by the principal sudder ameen, the evidence of the latter, that he had sent the amount to Damoodurchunder, and what Damoodur had done. with it he did not know, is not only unsupported, but is contradicted by the weight of evidence on the record. It is shown that Kesubchunder was the manager in the settlement come to with Mr. Furlong, for the Bengal indigo company, on the part both of appellants and respondents in this case; and therefore, as he received the equivalent of the balance of rupees 6,000 on their joint account and has retained it, the appellants must make good to the respondents their share of that sum as claimed and decreed by the principal sudder ameen. We accordingly dismiss this appeal, with costs. It has been stated to the Court by appellants, that Bunwaree and Mooraree, minors, for whom Damoodurchunder has sued as guardian, are dead, and that appellants and respondents both claim to be their heirs. Their share is by the evidence of Petumbur Sein a 3 annas, 4 gundas share. The amount due upon it will, upon realisation in execution of this decree, be kept in deposit, and paid to the party who receives the certificate to administer to their estate or who may otherwise be held legally entitled to it. THE 17TH JULY 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, ESQ., Officiating Judges. CASE NO. 308 OF 1857. Special Appeal from the decision of Mr. A. Littledale, Judge of ABHEELAK ROY AND OTHERS, (DEFENDANTS,) APPELLANTS, versus RADHA ROY AND OTHERS, (PLAINTIFFS,) RESPONDENTS. Vakeel of Appellants-Baboo Unnodapersaud Banerjee. Vakeels of Respondents-Baboo Shumbhoonath Pundit and Moonshee Ameer Alee. THIS case was admitted to special appeal on the 13th March 1857, under the following certificate recorded by Messrs. J. H. Patton and A. Sconce. "Petitioners were defendants in this suit, and assert themselves to be solely in possession of, and to be solely entitled to possess, the villages Jubulpore and Porunder, of which plaintiffs, professing to be sharers, now demand a butwarra of their shares and the registration of their names. By the lower courts, decrees have been passed in favor of plaintiffs; and the ground of special appeal is that the judge's decision is substantially defective and is contrary to the requisition of the law. "The first point raised by the petitioner, before the judge, was the question of limitation; and the plea was negatived by the judge with reference to certain depositions made by two of the plaintiffs, two of the defendants, and another person before the survey deputy collector. Petitioners plead that evidence not taken in this cause is not legal evidence, and also that the statements of two defendants cannot bind all the defendants, sixteen in number. "We admit the special appeal to try whether, upon this point, the decision of the judge is legally sufficient." JUDGMENT. The point submitted in this certificate does not appear to us, to have formed a necessary issue in the case. The plaintiffs sued on In a suit, where parties, alleging them. selves co-partners, seek to shares by a butwara, no separate their question of limitation can form an issue; for they must necessarily prove their actual posses sion, or submit to a nonsuit. Special appeal rejected. |