On Appeal from the Sudder Dewanny Adawlut of Bombay.
For the Appellant:- Mr. Miller, Q.C., Mr. Wigram, Q.C. and Mr. Jackson. For the Respondent:- Mr. Serjeant Spankie, Mr. E.J. Lloyd and Mr. Edmund F. Moore. Witnesses - Suit fro possession of Zemindary and properties as son of deceased Zamindar - Denial of plaintiff's title - Fifty eight witnesses tendered for examination - Refusal by Court to allow examination of twenty-eight witnesses - Irregularity vitiating decision on merits. [Para ] In a suit of Zemindary and other estates claimed as son and heir of the deceased Zemindar, the Defendants denied the title of the Plaintiff, alleging to he was spurious child, and tendered fifty-eight witnesses to proved that fact; the Zillah Court; having taken the depositions of thirty of these witnesses, refused to permit the remaining twenty-eight to be examined, on the ground, that being to prove the fact deposed to by those already examined, it was unnecessary to take their depositions, and, ultimately, decided in favour of the Plaintiff; the Defendants appealed to the Sudder Court, which refused to examine the witnesses rejected by the Zillah, and affirmed the decree of that Court, On Appeal to Her Majesty in Council, the Judicial remitted case back to the Sudder Court, being of opinion, that the refusal by the Court to admit the examination of the witnesses tendered, was irregular, and that no decision could be come to upon the merits under such circumstances. On the 20th of June 1825, the Respondent, Jet Sing-jee, by his mother and guardian Baee Purtaba, filed a plaint in the Zillah Court of Broach against the Appellants, Jeswunt Sing-Jee, and Chutur Sing-jee Deep Sing-jee, the brother and nephew, and also against Mussumat Gula Bhaee, the widow of Rana Ubby Sing-jee Ubby Singh-Jee, deceased, for recovery of Zemindary and other real and personal estate in the possession of Jeswunt and other real and personal estates in the possession of Jeswunt Sing-jee Ubby Sing-jee, belonging to the late Rana Ubby Sing-jee and which the Respondent claimed to be entitled to as his son and heir. The Appellants, on the 5th of December 1825, filed separate answers to the plaint, insisting, among other things, that the Plaintiff, Jet Sing-jee was not the son of the deceased Rana Ubby Sing-jee, but a spurious and suppositions child, the offspring of a slave, and setting up a deed of adoption, alleged to have been made by the late Rana in favour of the Defendant Jeswung Sing-jee Ubby Sing jee. Gula Bhaee, the other Defendant, also filed an answer to the plaint, disclaiming any interest in the subject of the suit, other than the maintenance due to her as widow of the deceased Rana Ubby Singh jee. After the usual pleadings, documentary and oral evidence was produced on both sides. For the Plaintiff, witnesses were examined to prove his legitimacy, and the circumstances attending his birth and recognitions by his deceased father. The Defendants summoned fifty-eight witnesses in support of their case. The depositions of sixteen of these witnesses having been taken, there being considerable delay on the part of the Defendants in producing the remaining forty-two, the Court directed the Defendants vakeels to be asked what points these witnesses were to be called to prove, and upon receiving their answer, decided summarily that it was unnecessary to examine more than fourteen of these forty-two remaining witnesses, twenty-eight being to prove what had been already gone through by the sixteen first witnesses. On the 22nd of August 1826, the Zillah Judge pronounced a Decree, part of which was in the following terms: "After a most attentive perusal of the whole of the documents filed, and the evidence taken in this case, the Court is quite satisfied that Plaintiff has proved his claim to the Guddy of Amod; for independent of the evidence and documents produced by the Plaintiff, the strong resemblance that Jet Sing bears to his deceased father, the latter of whom was personally known to the Judge when alive, is so great as to leave no doubt in the mind of the Court as to his being his legitimate son." It was accordingly decreed that plaintiff be put in full possession of the whole of the property of his deceased father Ubby Singh-jee, which was in the possession of the Defendants, each party bearing his own costs. The Appellants appealed from this Decree to the Court of the Sudder Dewanny, Complaining, among other things, of the refusal by the Zillah Court, to take the evidence of the witnesses tendered. The Sudder Court however refused to admit this evidence, on the ground that its necessity was not made apparent to the Court, and affirmed the Decree of the Zillah Court of Broach. From this Decree, the Appellants appealed to Her Majesty in Council. The case having been opened,