latter were bound to account to plaintiffs for the sum of rupees 1,000, which by the former had been paid to their ancestor. But on appeal the judge has held that the claim against the defendants, heirs of Willayet Hossein, will not lie, as the grounds thereof were not distinctly set forth in the plaint or in the reply of the plaintiffs. "The plaintiffs' suit is primarily for an arrear of rent; but, at the same time, plaintiffs were careful to bring before the court all parties who were interested in the issue which the answer of the farmer Meiss should raise, and, in their reply, plaintiffs distinctly set forth the peculiar lien which Meiss professed to hold upon his rent, on account of the sum lent by him to the ancestor of his codefendants. Willayet Hossein, upon these pleadings, may be said to have taken rupees 1,000 as rent in anticipation of the time when it fell properly due; and we admit the special appeal to try whether the decision of the judge upon the points in question should not be set aside, and that of the principal sudder ameen affirmed."

JUDGMENT.

It is admitted that Willayet Hossein had authority to grant the lease to Mr. Meiss, and he received the advance of rupees 1,000 from the lessee, not for any private purpose, but for the benefit of the estate as security for the due payment of the rents, and it was agreed that the amount of the advance should be deducted from the last kist of the lease. When the partition of the estate took place, and the villages held by Mr. Meiss fell to the share of the plaintiffs, special appellants, it was incumbent on Willayet Hossein to have accounted to them for the money thus advanced; and his heirs, and they only, must still be held responsible for it to special appellants. The agreement with Mr. Meiss was bona fide, and he must not suffer for the fault of Willayet Hossein, by whose act special appellants as regards this lease are bound. Moreover, we think that, in a suit for rent, plaintiffs could not obtain a decree for money appropriated by their co-sharers. We therefore confirm the order of the judge and dismiss the appeal, with costs. Special appellants are of course at liberty to bring an action against their co-sharers for sums misappropriated by them.

Held, in accordance with

the view of the

lower court, that it is not necessary in order to bind a party to a deed that a

CASE NO. 828 OF 1857.

Special Appeal from the decision of Mr. E. S. Pearson, Additional
Judge of Dacca, dated 14th March 1857, reversing a decree
of Baboo Nityanund Gangooly, Officiating Additional Sudder
Moonsiff of that district, dated 31st July 1856.

MUSST. ZUHUROONISSA, (PLAINTIFF,) APPELLANT,

versus

DENGOO KHAN AND OTHERS, (DEFENDANTS,)
RESPONDENTS.

Vakeels of Appellant-Baboo Ramapersaud Roy and Mr.
R. T. Allan.

Vakeel of Respondents-Baboo Kishenkishore Ghose.
THIS case was admitted to special appeal on the 6th November
1857, under the following certificate recorded by Messrs. A. Sconce
and J. S. Torrens.

MR. J. S. TORRENS." The judge's decision will be found at 55 of the reports of the month.

page

66

I admit this special appeal to try whether the judge was right person should in acknowledging the validity of a lease of petitioner's share in be directly a party to a deed land, to which, it is admitted, petitioner had not formally given her or have ad- signature, or if the assent assumed by the judge can be legally mitted its con- binding against the petitioner to cancel her rights on the land under the alienation by a deed executed by her co-parceners."

ditions in

writing. Ac-
ceptance
of rent

under a potta,
or other subse-
commission or

quent acts of

omission, are sufficient on principle to raise the infer

ence of assent
to a deed.
then the prin-
ciple on which

the judge has

MR. A. SCONCE." I doubt if the special appeal be open in this case, considering the judge's conclusion from the evidence. The lease was made, and, as I understand, possession given to the lessee; and as it seems to me to be not illegal to infer, that the petitioner had actually assented to the execution of a lease, which she did not personally sign, I think that the judge's decision is not open to further hearing.

JUDGMENT.

The question raised before us in special appeal is one of some proceeded is nicety. The admitting judge in his certificate, and the majority correct in law, of the Court in the case of Musst. Ranee Hurosoonduree Debea, petent to the appellant, versus Bajer Shah and Buddun Shah, respondents, reported at page 1465 of the Decisions for last year, seem to hold, that

it is not com

Court to

enquire into

a

the sufficiency found to support the inferhas been found

of the facts

ence, which

as a fact also

by the court

below.
The special
appeal is dis-
missed, with

a deed cannot be held binding on one who has not been a party
to it or admitted its conditions in writing. In the case just cited,
though the special appellant had not signed the potta, yet he had,
through his gomashta, received rent paid under that potta; and two
judges were of opinion that the receipt of the rents could not be con-
sidered to constitute any consent on the part of the recipient to the
terms of the potta. We think that this doctrine will not hold, but
that the acceptance of rent under the potta must be considered
confirmation of the lease as against the person accepting the rent. costs.
In the present case, there is no positive act done by which the
consent of the plaintiff can be presumed; but there is an act of
omission, viz., the non-demand of rent from the parties and other
circumstances, such as the fact of the plaintiff's gomashta having been
a subscribing witness to the potta, from which plaintiff's assent can
be inferred. As then we consider the principle upon which the judge
has proceeded to be a correct one in law, in other words, as we think
that consent to a deed may be inferred by subsequent acts of
omission as well as of commission, we do not think that, under
the special appeal law, we can enquire into the sufficiency of the
facts found to support the inference, which has been found as a
fact also by the court below. We therefore dismiss the special
appeal with costs.

THE 3RD MAY 1858.
PRESENT:

J. H. PATTON, ESQ., Judges.

A. SCONCE, Esq.,

PETITION NO. 1249 of 1857.

Case re

having failed

IN the matter of the petition of Kaleepersaud Singh Roy, one of the defendants, filed in this Court on the 14th August 1857, manded, the praying for the admission of a special appeal from the decision of lower court Mr. G. P. Leycester, judge of Midnapore, dated 14th May 1857, to enquire into affirming a decree of Mr. A. Davidson, principal sudder ameen defendants' of that district, dated 7th June 1856, in the case of Peareemonee part of the and others, (paupers,) plaintiffs, versus Kaleepersaud Singh Roy land sued for and others, defendants.

Vakeel of Petitioner-Baboo Bhoobunmohun Roy.

Vakeel of the Opposite Party-None.

It is hereby certified that the said application is granted on the following grounds.

This suit was instituted for the recovery of certain land, and, judgment having been given for plaintiff in both the lower courts,

plea that a

was not in their possession.

petitioner, defendant, presents two grounds of special appeal. First, it is said that petitioner should be exempted from wasilat on account of the occupancy asserted by a third party; and secondly, that the judge should not have awarded 4 beegas to plaintiff, who in her reply had admitted that it belonged to the petitioner,

defendant.

It appears that plaintiff in all sued to recover 89 beegas, but of this quantity defendant, petitioner, asserted that he possessed 4 beegas only. So far as an issue is taken in respect to the plaintiff's admission that the petitioner held 4 beegas, we find that plaintiff stated the land so held by defendant, petitioner, was exclusive of the land sued for: and as the judge finds on the evidence that petitioner had failed to prove that the land of which he had acquired a separate settlement was included within plaintiff's land, with that matter we cannot interfere.

So far therefore it may be held to be established that defendant, petitioner, had 4 beegas of the disputed land; but in spite of the specific remonstrance addressed to the judge by the petitioner, as to the non-possession by him of the remaining land embraced in the plaint, the judge has failed to discuss that plea, and has not recorded the reasons on which he considered petitioner's possession to be proved so as to render him liable for the wasilat.

We therefore remand the case to the judge that he may consider whether or no Kaleepersaud Singh, defendant, did oust plaintiff from the whole 89 beegas described in the plaint or drew the rent thereof.

Suit re

manded, that the lower ap pellate court may consider

THE 3RD MAY 1858.
PRESENT:

J. H. PATTON, ESQ., Judges.
A. SCONCE, Esq.,

PETITION No. 1601 OF 1857.

IN the matter of the petition of Musst. Muk bool Beebee and another, filed in this Court, on the 2nd November 1857, praying for the admission of a special appeal from the decision of Mr. R. Abercrombie, additional judge of Chittagong, dated 31st July 1857, of the plaintiffs reversing a decree of Moulvee Sooker Alee, moonsiff of Futtickis bound by an cherree, dated 19th August 1856, in the case of Musst. Mukbool Beebee and another, plaintiffs, versus Ramzan Alee and others, defendants.

whether one

engagement, ratifying the sale of the land held by defendant, to which she was no party.

Vakeel of Petitioners-Moulvee Aftabooddeen Mahomed.
Vakeel of the Opposite Party-None.

Petitioners instituted this suit to recover certain land from which they asserted that defendant's father, Mynooddeen, had dispossessed them. The land originally belonged to Tahir Mahomed, who left a son, Soonaoollah, and a daughter, Beayshah, one of these petitioners. Soonaoollah is dead; and the answer made by defendant is that his widow, Kermula Beebee, had sold the land to Mynooddeen, and that Mukbool Beebee, her daughter, on coming of age, ratified her mother's sale.

The moonsiff gave judgment for plaintiffs; but the judge, holding the ikrar submitted by defendant to have been executed by Mukbool Beebee in recognition of the sale effected by her mother, has dismissed the appeal.

The ground of special appeal is, that the claim of one of the plaintiffs, Beayshah, daughter of Tahir Mahomed, cannot be prejudiced by a deed to which she is no party, and that she is bound neither by the sale of Kermula nor the ikrar of Mukbool Beebee.

The respondents, though summoned, have not appeared in this Court; but as it appears that the judge has overlooked the claim preferred by Beayshah, who was not a party to the ikrar, upon which alone he dismissed the suit, we remand the case that the appeal may be reheard with respect to the share asserted by Beayshah Beebee.

Special Appeal from the decision of Baboo Taruknath Sein, Act-
ing Principal Sudder Ameen of 24-Pergunnahs, dated 23rd
January 1857, affirming a decree of Baboo Obhoykoomar Dutt,
Sudder Ameen of that district, dated 15th May 1856.
ANUNDMOHUN KHAN, (PLAINTIFF,) APPELLANT,

versus

ROY SHUMBHOONATH CHUCKERBUTTEE AND OTHERS,
(DEFENDANTS,) RESPONDents.

Vakeels of Appellant-Baboos Shumbhoonath Pundit and
Sreenath Dass.

Vakeel of Respondents-Baboo Unodapersaud Banerjea.

THIS case was admitted to special appeal on the 15th July 1857,

Plaintiff's

under the following certificate recorded by Messrs. J. H. Patton and case nonsuited, J. S. Torrens.

с

as he had not brought all the