It is necessary to remark here that, when this case was before the lower court, another suit was pending before the same tribunal, prosecuted by the other wife and a daughter of Ahmed Alee against Huzoor Alee, to set aside this very ikrarnama, on the ground of its fabrication by Huzoor and of its existence interfering with their own rights as the sole heirs of Ahmed Alee; and that case resulted in a decree for the heirs declaratory of the invalidity of the ikrarnama, and establishing their right to the undisturbed possession of the estate. This decree was subsequently carried by appeal before the Sudder Court, and there confirmed in favour of the heirs. The principal sudder ameen, relying on the view he took in that case of the invalidity of the ikrarnama, has in the present suit cancelled the kuboolyut taken by Huzoor Alee by virtue of that deed; and the appeal now before us questions the soundness of that ruling, on the ground that the decree should not be allowed to govern any question raised between these parties, as the present plaintiffs were not a party to the other suit, and do not show that any fraud was practised by Huzoor Alee to induce their husband's agent to grant the kuboolyut, which must therefore be regarded as a free and voluntary act on his part. JUDGMENT. On referring to the case of appeal decided by the Sudder Court on the 31st March last, in which Huzoor Alee was appellant, and Mohoboonissa and Akrumoonissa were respondents, we find that the ikrarnama was impeached by the respondents as a forgery, under cover of which Huzoor Alee had granted leases and collected rents without authority, and that the said ikrar was neither produced in court nor its authenticity proved, and that the Sudder Court, by their decision of the 31st March last, upheld the judgment of the court below, which had declared the deed to be spurious. As then it appears from the above circumstances that the deed of ikrarnama, under which plaintiffs were induced through their agent to execute the kuboolyut now in suit, has been set aside and cancelled by operation of law, and that the party now holding that kuboolyut no longer possesses either right or possessory title in the property leased, and might use that instrument to their prejudice, while they now hold possession of the farm under direct engagements with the rightful owners, we hold them entitled to be released from all further obligation under the kuboolyut, and confirm the order of the lower court to that effect, with costs of this appeal on the appellant. Where A. bound himself to B's widow individually, not also to his executors, to a pecuniary payment, and kept faith with her, in lieu of dividing certain property, she could yet sue him under B's will to THE 13TH NOVEMBER 1858. H. T. RAIKES, Esq., Judge. H. V. BAYLEY, Es, Officiating Judges. CASE NO. 181 OF 1858. Special Appeal from the decision of Mr. H. C. Halkett, Officiating Judge of Hooghly, dated 23rd October 1857, affirming a decree of Baboo Kasissur Mitter, Principal Sudder Ameen of that district, dated 18th July 1856. GOURMOHUN GOSSAIN, (DEFENDANT,) APPELLANT, versus MUSST. KADUMBUREE DEBEA, (PLAINTIFF,) RESPONDENT. Vakeel of Appellant-Baboo Ashootosh Chatterjea. Vakeel of Respondent-Baboo Obhoychurn Bose. THIS case was admitted to special appeal on the 11th March 1858, under the following certificate recorded by Messrs. B. J. Colvin and J. S. Torrens. "Petitioner was sued by plaintiff for payment of interest on the sum of rupees 15,000, payable to her by petitioner under her husband's will. Both the lower courts decreed in her favor. It is objected in special appeal that plaintiff was not competent to sue, as the suit should have been by the executors to the will. "We admit the special appeal to try the point. "We observe that the judge states the executors were defenddivide without ants, but this would appear to be a mistake." intervention of the executors. JUDGMENT. We find that the executors alluded to are the executors appointed under the will of the plaintiff's husband, who, together with the plaintiff's husband, sued the defendant for the division of their father's property; and in the settlement they all came to in that case, the defendant bound himself in the ruffanama then executed o hold the sum of rupees 15,000, as the share of her husband, who had intermediately died, as a deposit for the benefit of her adopted son, if she adopted one, and to pay to her the interest yearly amounting to rupees 1,500: he also executed a mortgage bond as security for the principal. Thus it appears to us that the defendant bound himself to the payment of the interest to the widow, without reference to the intervention of the executors appointed by her husband; and as the executors have made no objection, though made parties to the suit, a payment to her must exonerate him from liability. We see no ground for doubting the legality of the judge's ruling, in declaring the plaintiff competent to maintain this action, and therefore reject this special appeal, with costs. THE 13TH NOVEMBER 1858. H. T. RAIKES, Esq., Judge. H. V. BAYLEY, Esq.,} Officiating Judges. CASE NO. 923 of 1857. Special Appeal from the decision of Baboo Doorgapersad Ghose, RAMTUNOO CHAKEE, (PLAINTIFF,) APPELLANT, versus RAMDHONE GHOSE, (DEfendant,) Vakeel of Appellant--Baboo Taruknath Sein. THIS case was admitted to special appeal on the 21st November 1857, under the following certificate recorded by Messrs. J. Patton and J. S. Torrens. lent a certain Where A. H. sum to B. upon a bond for a larger sum, 42. "This is a case to recover a debt due on a bond for rupees Defendant, whilst he denied having received rupees 42, did not deny the execution of the bond, but pleaded that he had only received rupees 13 of the sum entered in the bond. The principal sudder ameen having reversed the decision of the moonsiff and dismissed the claim, special appellant urges that his decision is in fault, inasmuch as it should have placed the onus of proof, to the non-receipt of the full amount entered in the bond, on the defendant. "We admit the special appeal, to try the question, and whether the decision of the principal sudder ameen should not be reversed or amended." JUDGMENT. On reference to the lower appellate court's decision, we find that the suit was not laid on the averment that the whole amount entered in the bond was lent, but only that the bond was executed for G and admits while B. ad advance stated, Suit was rightly dismissed. rupees 42, while rupees 32 was taken, rupees 16 of which was repaid, and the suit brought for the remainder. Under these circumstances defendant's admission, that he executed the bond, does not lead to the conclusion that he received the whole amount therein recorded, nor throw upon him the onus of proving if it was less. But as the plaintif asserts that he advanced a certain sum only, not the amount recited, and the defendant declares that amount not to be the amount stated, the onus still lies on the plaintiff to prove his own averment. As the lower court has found the evidence insufficient to establish the exact amount really paid by the plaintiff, the court below was right in dismissing the claim; and we reject this special appeal accordingly. Case remanded for trial, as the appellant was misled by a custom prevailing in the lower court, under which appellants from the orders THE 13TH NOVEM ER 1858. PRESENT: J. H. PATTON, Esq., A. SCONCE, Esq., } Judges. G. LOCH, Esq., Officiating Judge. Special Appeal from the decision of Mr. L. S. Jackson, Officiating ISSURREENARAIN ROY, (Defendant,) Appellant, versus HUROMOHUN TALOOKDAR, (PLAINTIFF,) Respondent. THIS case was admitted to special appeal on the 6th April 1858, under the following certificate recorded by Messrs B. J. Colvin and A. Sconce. "Petitioner appealed in this suit to the judge from the order of the moonsiff; but as the grounds of appeal were not filed within 30 days from the date on which the copy of the moonsiff's decision was tendered, the appeal has been struck off. It appears that of the moonsiffs the moonsiff's decree, given on the 18th December 1856, was ready for delivery to petitioner on the 24th, that he appealed on the 17th January 1857, and that he filed his reasons of appeal on the 5th February 1857. were allowed six weeks to file their reasons of appeal, besides the one month allowed by law for fil The ground of special appeal is, that as the judge, by his order ing the appeal. dated 4th February, gave to petitioner four days for the submission of his grounds of appeal, and as the grounds were filed on the 5th February, the judge must be held to have extended the time within which the appeal should be admitted. We admit the special appeal to try that point." JUDGMENT. It appears to have been the custom of the lower court to permit appellants to file their reasons of appeal within six weeks after the petition of appeal was filed. On 4th February 1857, the judge directed the appellant, petitioner in this case, to file his reasons of appeal in four days, and he complied with the order on 5th idem. We think, therefore, the petitioner having acted in conformity with the orders of the court, his appeal should be heard. We therefore remand the case for trial on its merits. Special Appeal from the decision of Mr. O. W. Malet, Judge of GYARAM MUNDUL AND RAMCHUNDER MUNDUL, versus GYARAM NAIK AND OTHERS, (DEFENDANTS,) Vakeels of Appellants-Baboos Onookoolchunder Mookerjea Vakeels of Respondents-Baboos Obhoychurn Bose and Taruknath Sein. Case remanded for THIS case was admitted to special appeal on the 20th April 1858, under the following certificate recorded by Messrs. B. J. Colvin on its and A. Sconce. merits, as the omission of the name of a co "Petitioners, dur-putneedars, have preferred this claim to resume beegas 2-15. The collector gave judgment in their favour, but in sharer as party appeal, the judge, on the objection of defendants, has nonsuited to the suit plaintiffs, because, as he appears to mean, they had not made a party the circumnot named, who possibly had an interest in the plaintiffs' dur-putnee, of no injury ve a defendant in the suit. could, under stances, prove him. |