The 15th September, 1851. Present: H. W. DEANE, CASE NO. 197 of 1851. } Judges, S. S. BROWN, Offg. Judge. Sperial appeal from the decision of Mohumed Kureem-oollah Khan, Principal Sudder Ameen of Agra, dated 14th March 1851. JOHN LAMBOURN, (Defendant), Appellant, versus KUNHYA LALL, AND OTHERS, (Plaintiffs), Respondents. THIS was asuit to recover Rs. 44-4, principal and interest of a debt. Plaintiffs state that the defendant on the 1st December 1845, borrowed Rs. 30 from them on the security of Mr. J. P. Conolly, under a promise to repay the amount, with interest at 12 per cent. by the 1st February 1846, giving an acknowledgment under his own hand, which was countersigned by Mr. Corolly. The last named person has since demised, leaving no property; and the defendant, though frequently importuned for payment, has left the debt unsatisfied. The defendant, in reply, denied the truth of the plaintiffs' claim, and that he ever received a cowree from them, as a loan, or got Mr. Conolly to be his security. The Rs. 30 in question, he alleged, was advanced to him by Mr. Conolly, on pledge of certain articles belonging to defendant. This debt he had subsequently repaid, and held Mr. Conolly's receipt for the same. Defendant cannot say where Conolly got the money which he lent to him. The Moonsiff of Agra, Mr. R. Garland, gave a decree in favor of the plaintiffs, on the strength of what he designates the defendant's receipt for the Rs. 30, the execution of which, by the defendant, he considered to be established. This decision was affirmed, on appeal, by the Principal Sudder Ameen. A special appeal was admitted to try, "whether the Moonsiff and Principal Sudder Ameen were justified in giving plaintiffs a decree in consideration of a document, which, being on unstamped paper, was not legally admissible as evidence." The Court find, on examining the document, in consideration of which the lower Courts have given plaintiffs a decree, that it is not a mere receipt; had it been so, the amount being below Rs. 50, it would have been admissible in evidence, under Article 45, Schedule A, Regulation X. of 1829, although on unstampt paper. The document is in fact a promissory note for Rs. 30, payable three months after date, and should therefore have been written, (agreeably to Article IV. of Schedule A,) on a stamp of one-anna value. The lower Courts, therefore, have contravened the law, and overlooked the Circular Order of the 7th January 1842, by receiving this unstamped promissory note in evidence, in support of the plaintiffs' claim. The Court accordingly annul the decisions of both the lower Courts, and remand the case to the Moonsiff, in order that he may proceed in the manner indicated by paragraph 7 of the Circular Order above referred to, viz. by "exercising his discretion in regard to granting or not granting the party, who presented the deed, an opportunity of remedying the defect in it, in the mode laid down in Rules 1 and 2, as either may apply, and by disposing of the case accordingly." The 15th September, 1851. Present: CASE No. 188 or 1851. A. W. BEGBIE, Judges, H. W. DEANE, S. S. BROWN, Offg. Judye. Special appeal from the decision of Moulvee Kureem-oollah Khan, Principal Sudder of Agra, dated 11th April 1851. MOHUN AND OTHERS (Defendants), Appellants, versus. LOUTUN AND OTHERS, (Plaintiffs), Respondents. THIS suit was brought to obtain a division of 3 biswahs in a 5 biswah share of mouzah Bhudonuh, and a decree was given by the Moonsiff, which was upheld by the Principal Sudder Ameen in appeal. A special appeal was admitted to try, whether the decree of the lower Courts for division of the interests represented by fractions of a beegah in a Bhyacharah mouzah is consistent with law and precedent. The Court observe that this objection to the suit was urged in both the lower Courts, but that it was not noticed. The description of tenure under which the estate ranks has been shown from the copy of the Wajib-ool-urz, or settlement agreement, which has been filed by the appellant. The mouzah is an imperfect putleedaree property, a term which has been defined and explained in the Circular Instructions of the 3rd August 1847, No. 1050. It comprises three thokes, or sub-divisions, and each thoke is held and cultivated by a proprietary body. Some land is held in common by the proprietors of the three thokes, and there is a specific provision in the Wajib-ool-urz, which prescribes the rule to be followed in the event of a division of this land being called for. This agreement, it is clear, did not contemplate any other kind of division than a separation of the actual holdings in fields, and the apportionment of the common land, for the thokes, according to the recorded shares, and for the individual shares in each thoke, in the proportion of their holdings. The suit, which has been brought for a division of an individual share in one of the thokes in fractions of a beegah, is therefore not only opposed to the general rules appended to the Circular Order of the 24th March 1842, that any claim to, and in, a Bhyacharah community must be regulated by the actual holdings, and not by hereditary shares, or nominal interests, which are equally applicable to suits for division, but it is at variance with the express conditions in the Wajib-ool-urz, and the decree, under the existing constitution of the vil lage, would be found incapable of execution. The Court accordingly nonsuit the respondents with costs. Present: The 15th September, 1851. CASE No. 15 OF 1851. A. W. BEGBIE, H. W. DEANE,} Judges. S. S. BROWN, Offg. Judge. Special appeal from the decision of S. G. Smith, Esq., Judge of Banda, dated 27th March 1851. THE COLLECTOR OF BANDA, (Defendant), Appellant, versus MUSSUMAT CHOONA, (Plaintiff), Respondent. THE decision appealed from is in the printed decisions of the month. The plaintiff brought an action to contest a revenue demand of Rs. 657-14, and further sued, in an amended plaint, to remove an attachment of a house, valued at Rs. 500, which had been made in pursuance thereof. The liability of the plaintiff to the demand was decided in favor of defendant, but the attachment was declared to have been irregularly made, and, in the apportionment of the costs, defendant was charged with Rs. 98-12-7, out of the total costs of Rs. 113-13-9. In appeal by the defendant, the Judge, being of opinion that the real point at issue between the parties in appeal was the question of the costs alone, held that the plaintiff should have been declared liable for the whole costs of suit, and decreed accordingly, but charged the appellant with three-fourths of the costs in appeal, on the ground of the appeal having been overvalued by him at Rs. 500, instead of at the amount of the costs, or Rs. 98-12-7, for which he had been made responsible. From this part of the Judge's decision a special appeal was preferred, which was admitted to try, whether the order regarding the costs was correct, and in accordance with the practice of the Courts. The Court, on reference to the reasons of appeal preferred in the Judge's Court, find the Judge to be in error in supposing that the appeal was confined to the matter of costs. The appellant sought for a reversal of the judgment of the lower Court as far as it affected him, and the only course open to him was to value the appeal as he did. The Judge has purposely waived any decision on the merits of the subject of the appeal, but until the merits be entered into any order passed regarding the costs will necessarily be imperfect. The case is remanded to the Judge's Court, who will dispose of it on re-trial in advertence to these remarks. The stamp will be refunded, and costs charged, as usual. The 16th September, 1851. Present: CASE No. 76 or 1851. A. W. BEGBIE, Judges. S. S. BROWN, Offg. Judge. Special appeal from the decision of MUSSUMAT BRIJA, (Plaintiff), Appellant, versus JEWUN SUHAI AND OTHERS, (Defendants), Respondents. Ir appears from the record of this case that the property of Fakeerchund, husband of the plaintiff, was ordered for sale, in satisfaction of a decree, in 1844. The sale did not, however, take place, and the case was struck off the file of the Court in December of the same year. In 1848, Fakeerchund transferred the above property to his wife, the plaintiff. The property was afterwards sold, in satisfaction of a decree, as the property of Fakeerchund, and purchased by the defendants in this action. Mussumat Brija has now brought suit to obtain possession of the property in virtue of the alienation in her favor by her husband. The Moonsiff decided for the plaintiff. The Principal Sudder Ameen held, in appeal, that the property must be still considered liable to sale under the attachment in 1844, notwithstanding that the case was afterwards struck off, and has urged this as a main reason for reversing the judgment of the Moonsiff, and for dismissing the plaintiff's claim. A special appeal was admitted to try, whether the Principal Sudder Ameen was right in dismissing the plaintiff's claim on the ground that the property in dispute was not, at the time of its alienation, alienable. The Court remark that the Principal Sudder Ameen is plainly in error in ruling that any lawful bar to the transfer by Fakeerchund to the plaintiff in 1848 was created by the attachment of the property and order of sale in 1844, after that attachment had been taken off, the sale formally stayed, and the case struck off the file. The important plea in defence, that the transaction between the husband and wife, in 1848, was fraudulent, has been very lightly touched upon by the Principal Sudder Ameen, the whole weight of his judgment being made to rest on the untenable position above recited. He writes that the transfer wears the appearance of fraud, but he does not distinctly find the facts. If he found it, he would of course be fully justified in dismissing the suit on that plea alone. The suit is sent back to the Principal Sudder Ameen in order that he retry it with reference to these remarks. The 16th September, 1851. Present: CASE NO. 112 or 1851. S. S. BROWN, Offg. Judge. Special appeal from the decision of BICKRUM SINGH AND OTHERS, (Defendants), Appellants, versus JOWAHIR SINGH, (Plaintiff), Respondent. THE particulars of this case are to be found in the volume of printed decisions of the Sudder Dewanny Adawlut for December 1850, page 449. The suit, for the reasons therein recorded, was remanded for retrial to the Principal Sudder Ameen on the 28th December 1850. The case has again come before the Court in special appeal. A special appeal has been admitted to try, whether the Principal Sudder Ameen is not in error in supposing that the decree of |