ant Keshubchunder Roy, in whose name the consideration money was likewise credited, and that, until an amicable arrangement is made between the parties or the dispute is settled by an order of the court, she must consider the defendant as the putneedar, and that all sums of revenue that may have been paid by the plaintiffs must be considered to have been on his behalf. The principal sudder ameen, upon the whole evidence produced by the parties before him, held that it was clearly established that the putnee lease had been executed in the name of the defendant, Keshubchunder Roy, for himself and the plaintiffs as co-sharers jointly, and that the consideration had been paid for it from the common stock, and consequently gave a decree in favor of the plaintiffs. The defendants appeal from this decision upon the merits of the controversy between the parties; and the voluminous evidence produced by them to substantiate their claims, and the arguments of the pleaders respectively in support of them, have occupied to an unusual length the time and attention of the Court. The consideration of the effect which this evidence may have upon the questions argued before us narrows itself into the determination of the sole issue raised by the pleadings on the merits, viz. whether the lease was executed in favor of the plaintiffs and defendant as co-sharers jointly, and whether the consideration was paid from the common funds. The latter point, if proved, we admit, would, as argued by the defendants' pleaders, establish the joint execution of the deed. But if, from the oral and documentary evidence, it should in the least be doubtful whether the money at the time of the execution of the deed actually passed from the common stock, that doubt might be removed, and such payment might be fairly presumed, if, notwithstanding, it could be proved that the parties, as co-sharers, had, with respect to the deed, acted together in concert, looking upon it and using it as a title held in common, and enjoying the property conveyed under it in joint tenancy. The mere fact of the parties being a joint family, living in commensality, would be no evidence of itself, if a deed was executed in the name of one of its members, that it was executed for the benefit of all, unless it could be shown that the joint interest of the other members in it, as co-sharers, had been acknowledged or admitted by him, or that the deed had been used by his assent, or with his knowledge and without objection, as a joint title-deed for their common good. There is nothing of course in the restrictions of the Hindoo law to prevent his employing his own private funds in the execution of a separate deed for himself. Having made these preliminary remarks, it remains for us to determine whether or not, or to what extent, the evidence, oral and documentary, supports the plaintiffs' claim. Regarding the oral evidence, that of Shamachurn Bhutto, one of the most respectable pleaders in the civil court at Moorshedabad, appears to us to have considerable weight. He declares that the settlement of pergunnah Plassee was obtained by means of the joint funds belonging to all the contending parties, in the name of Keshubchunder Roy; that the five co-sharers paid the rents of it jointly, an in like manner held possession and enjoyed the profits, and that their legal affairs were managed by them all conjoiatly; that he as a pleader conducted the litigations of the five co-sharers in the district of Moorshedabad; that both in the civil court and in the collector's office suits were entertained by the five co-sharers jointly regarding the said talook; that at the time it was taken in putnee he was employed in their joint service; that after death of Domun Singh Roy, Rughoonath Baboo was the sole manager of their affairs; that Keshubehunder Roy went to Moorshedabad to secure the putnee settlement of the mehal under dispute as a joint estate, and paid the earnest money for the putnee lease, and subsequently the purchase money was sent from the common treasury of all the co-sharers and the putnee settlement obtained; that he was employed as the treasurer of the parties in their lodging house at Kishnaghur; that the putnee lease was taken in 1251 B. S. Gudadhur Tewaree, another witness, who was formerly a common servant of both parties, gives also important evidence. He also states that the putnee lease was taken jointly by the five co-sharers and the consideration paid from the common fund. He states that he was sent, he thinks in Assar 1251 B. S., by Rughoonath Roy, Chundermohun Roy, and Damoodurchunder Roy, to Cassimbazar, to meet Mr. Herklotts, the dewan of Raja Kishennath Roy, and arrange the terms of the settlement of the putnee lease; that on arriving there he agreed to give Mr. Herklotts rupees 10,000 as earnest money, fixing the jumma at rupees 48,000, and the consideration at twice that amount; that, on communicating these particulars to the Roys, about 10 days after Keshubchunder Roy arrived and put up with him in the same lodging; that, after an interview with Herklotts, he was introduced to the raja, and on his return intimated to the witness that he had consented to pay an annual jumma of rupees 51,500 and twice the amount, viz. rupees 1,03,000 as consideration. Upon this, the witness represented to him that be had been instructed by the senior members of the family to fix the jumma at rupees 44 or 45,000, and had consented to give as much as rupees 48,000, and expostulated with him for settling at a higher rate, He adds that the Baboo replied that he had pledged his word and that correct money must be paid, and that he took out bank notes for rupees 10,000, which were in his box, and paid the earnest money in his own name, and that he went away for 10 or 12 days for the purpose of bringing the balance of the consideration; that he afterwards fell sick, and that Chundermohun Roy arrived with the money and with a power of attorney executed by Keshubchunder Roy in favor of the witness; that as the money was of old coinage they were exchanged by Mudhoosoodun Podar, and paid to the raja. This witness further states that, after the putnee settlement was concluded, the co-sharers held the estate in joint possession, and that the profits were remitted to Nekashepara and shared amongst them. We then have the evidence of Mudhoosoodun Podar, formerly employed in the service of both parties. He distinctly states that all the Roys, as co-sharers, took the putnee lease of pergunnah Plassee jointly in the name of Keshubchunder Roy, paying the consideration from their joint funds, and that they held joint possession of it to the end of 1258, or a few days of 1259, when Keshubchunder Roy became sole proprietor; that he accompanied Chundermohun Roy in 1251 B. S. to Moorshedabad, and was present when rupees 1,03,000 was paid from the joint funds of all the co-sharers as the purchase money of the putnee estate; that the deed was executed in his presence and the presence of many respectable persons, and that he and Gudadhur Tewaree and Dwarknath Bose were witnesses to it; that the rents collected from the talook were remitted to Damoodurchunder Roy and entered into the common treasury, and that the revenue was paid to the zemindar from their joint funds; that the earnest money had been paid by Keshubchunder Roy before the execution of the putnee lease. There is the evidence then of Denonath Ghose, who states that he was a servant of the family at Nekasheparah and saw the consideration money taken out from the common treasury. These facts are all more or or less corroborated by other. witnesses produced by the plaintiffs and by some too of the defendants' witnesses, the chief difference being that, while the latter admit the previous payment of the earnest money by Keshubchunder Roy, and the subsequent payment of the purchase money by Chundermohun Roy, they maintain that the money came from Keshubchunder's own funds, and the lease was taken solely on his own account. It has been objected by the defendants' pleaders that the plaintiffs' witnesses have made discrepant statements regarding the circumstances attending the execution of the deed. We observe that, although there are unexplained discrepancies, there is a general agreement as to the more important facts. Then, in addition to the oral testimony, there is a mass of documentary evidence on the record, to which Baboo Ramapersad Roy has made copious reference, explaining them consecutively, consist ing of petitions put in, in summary and regular suits, decrees of court, settlement proceedings, settlement tahoods, from 1251 B. S., the year of purchase up to 1259 B. S., the commencement of the family quarrels, showing that whether the papers were signed "Damoodurchunder Roy etcætera," or "Damoodurchunder Roy and Keshubchunder Roy," or by all the Roys, whatever was done with reference to lands within pergunnah Plassee was done in behalf of all the co-sharers, as having a joint interest in the property under the putnee lease. We would allude, as specially bearing upon the claim of the plaintiffs, to a petition presented in the names of all the sharers as joint putneedars of pergunnahı Plassee, on the 17th Bhadoon 1251 B. S., that is, the month following the execution of the lease, in which all, as putneedars, applied for permission to carry on a suit instead of the zemindar, from whom they had acquired the putnee, and also to the fact that the potta for the putnee, although in Keshub's name alone, was filed in a civil suit before the principal sudder ameen of Moorshedabad in behalf of all the sharers, and it was stated by the respondents' pleader, without any denial on the other side, that the court has refused to return it except upon their joint application. There is nothing in the evidence adduced by the defendants to rebut the strong presumptions arising out of this voluminous evidence, or to prove to us that Keshubchunder Roy paid the purchase money for the putnee lease from his own funds and for his own sole benefit, that he had possession of it as a separate talook, or, during the period above mentioned, he ever acted alone with respect to the lease in any of the proceedings to which reference has been made, as having only a separate and personal interest in the property. Under these circumstances, we see no reason to interfere with the decision of the lower court, and dismiss the appeal, with costs. Special Appeal from the decision of Baboo Kasheeshur Mitter, Principal Sudder Ameen of Hooghly, dated 17th July 1857, reversing a decree of Moulvee Syed Moazzum Hossein, Moonsiff of Mohanad, dated 26th November 1856. NUBOKISHORE BOSE, (ONE OF THE DEFENDANTS,) APPELLANT, versus GOBINDCHUNDER PAL AND RAMGOPAL PAL, (PLAIN- Vakeels of Appellant-Baboos Kishenkishore Ghose and Vakeel of (Plaintiffs) Respondents-Baboo Banymadhub Banerjea. A previous suit, involving the land sued for in this ed, reserving a fresh suit, pressed by the disposed of the moonsiff who first suit, relative to 8 "Two special pleas have been advanced in this case. One, that action, having the grounds of objection from the moonsiff's decision had been filed been dismiss in the lower appellate court beyond a month from the date of the plaintiffs' moonsiff's decision, which was contrary to this Court's precedent right to file of 8th January 1857, in case No. 348 of 1856; but we do not think an opinion exthat the precedent applies in this suit, in which the appeal was heard and determined, notwithstanding the imputed laches, which must therefore be held to have been cured. "The second plea is, that the question in this case turned upon whether Shibchunder Pal died before or after his father, Sumbhoochunder Pal; and that the principal sudder ameen had accepted, as decisive that he had died after his father, a decision of the moonsiff, dated 16th November 1854, in a case in which the present special respondents, plaintiffs, were also plaintiffs. It is contended that the decision did not judicially decide that fact, but merely recorded it incidentally; and that it was irrelevant to the issue for decision then. This is the view that the moonsiff in the present case took of the mention of the circumstance in the decision against this adverted to; but the principal sudder ameen has considered the defendant. question of fact, was held clusive in the second action, as in appeal the point in question was affect the decision and was not definitely determined not to be con held not to |