On appeal from the High Court of Judicature at Calcutta.
For the Appellant :- Mr. Field, Q.C., and Mr. Pontifex. For the Respondents :- Sir R. Palmer, Q.C., and Mr. Leith. Mahomedan Law - Gift and will in favour of eldest son - Eldest son appointed executor - Directions for giving allowances to widow and children out of estate - Family disputes about gift and will - Summary suit under Act XIX of 1841 (Succession (Property Succession) ) - Eldest son put in possession - Acquiescence in gift and will and relinquishment of their calms by family members subsequently - Receipt of allowances by them under will - Suit by holder of decree against one son of testator seeking to make liable latter's share in testator estate as on intestacy - Fraud, No allegation as to - Suit barred by limitation - Running of limitation from date of eldest Son's being put in possession - Beng. Reg. III of 1793 (Zila Courts), Section 14 - Execution sale and assignment or conveyance, claims under, Distinction between. [Para ] A. died in 1841, having executed a deed of gift in favour of his eldest Son B. and also a Will, making B. Executor, and directing certain allowances to his Widow and children out of his estate. Disputes arose among A.'s heirs respecting these instruments, which led to a summary suit under Act, No. XIX of 1841, in which B, was, in 1842, put in possession of the whole of A.'s estate. Afterwards the members of A.'s family acquiesced in the deed and Will, renounced their claims as heirs and received certain stated allowances given by the Will out of A.'s estate. In 1846, C., the youngest Son of A. in consideration of advances made to him, executed a Bond, and was afterwards sued by the Bond-holder, which suit resulted in a decree against him, and ultimately an execution sale under such decrees in 1853. The decree-holder sued C. in 1857, seeking to make his share in A.'s estate liable, as in case of an intestacy:- Held, by the Judicial Committee, reversing the decree of the High court (1) that the burthen was on the decree holder to show circumstances to take the case out of the operation of the Regulation of limitations; and (2) in the absence of such evidence, that the time began to run in 1842, when B. was put in possession, and consequently that the suit was barred by Ben. Reg. III. of 1793, section 14. Held, further with respect to the operation of that Regulation, that there is no distinction between a person claiming under a execution sale and who claims under an assignment or conveyance. These appeals, substantially involving the same question, the operation of the Bengal Regulation of Limitation, III, of 1793, section 14 as a bar to the suits, were heard together. With respect to the first appeal, the facts were these:- Rajah Deedar Hossain, the Father of the Appellant, a Mahomedan, died in the month of Aughan, 1249 Moolky, leaving a Widow, five Sons, and several Daughters. The Appellant was the eldest Son, and one of the younger sons was named Bahadoor Hossain. Prior to his decease, Rajah Deedar Hossain executed a Hebah-bill-ewas, or deed of gift, bearing date the 26th of the month of Shabun, 1255 Hijree (corresponding with the 19th Kartick, 1247 Moolky), and thereby, in consideration of Rs. 10,000, gave one-third of his immoveable property, and the whole of the moveavle property specified in the schedule thereto, to the Appellant, and after acknowledging that he had received the consideration-money, put the Appellant into possession. Rajah Deedar Hossain also executed a Will of even date with the deed of gift, and thereby constituted the Appellant his Executor and representative, and the Testator directed, that out of ever kind of property belonging to him (after deducting one-third) of which he had made the deed of gift to the Appellant, the remaining two-third should be divided into three portions, whereof one portion was to be applied by the Executor for Charitable and religious purposes, and the remaining two-thirds, after payment of debts, the Executor was to pay to the Testator's heirs, male and female, and salary-holders, in certain proportions as therein mentioned. At the date of the execution of the deed of gift, the Soorjapoor Zemindary was under attachment, and collections were made by a Surburakar. After the death of Rajah Deedar Hosain, the Appellant entered into possession of the entire estate. But three of Rajah Deedar Hossain's Sons and four of his Daughters, for some time disputed the validity of the deed of gift and Will, and threatened to act in opposition to the terms thereof by taking possession of Rajah Deedar Hossain's property. The Appellant, in consequence of such disputes, instituted a summary suit under Act, No. XIX of 1841, for the protection of the property; and on the 19th of November, 1842, the judge of the Civil Court of Zillah Purnear ordered that the Appellant should give security, which he did, and was put into possession of the property. During the pendency of the summary proceeding, Bahadoor Hossain, on the 19th of December, 1841, presented a petition in support of the validity of the deed of gift and Will, and he and the three other younger Sons and the five Daughters of Rajah Deedar Hossasin, received from the Appellant their allowances, in accordance with the terms of their Father's Will. On the 16th of Assar, 1254 Moolky (July, 1846), Bahadoor Hossasin executed a money Bond, to secure to Lukkee Saho and Doulut Saho, Bankers, the sum of Rs. 5,400. with interest and Ranee Kheernoonesse (the Widow of Rajah Deedar Hossain) executed to Lukkee Saho and Doulut Saho, a security Bond, by way of suretyship, for payment by Bahadoor Hossain of that sum. Lukkee Saho and Doulut Saho, some time afterwards instituted a suit against Bahadoor Hossain and Ranee Kheeroonessa on these Bonds; and on the 18th of November, 1847, a decree was made against them for the payment of the sum of Rs. 6,168, principal and interest. The decree-holders took proceedings in the suit for the purpose of realising the amount decreed to them by attaching and selling what was alleged to be the right and interest of the surety, Ranee Kheeroonessa, in the Soorjapoor zemindary, as Widow of Rajah Deedar Hossain. The Appellant, however, submitted a petition of objection in the suit, stating that by reason of the deed of gift and Will, the Ranee had no interest in the zemindary besides her allowance under the Will, and objecting to the attachment and contemplated sale; and an Order was, on the 6th of January, 1852, passed by the Principal Sudder Ameen of Zillah Purneah, to the effect, that inasmuch as no share of the Ranee had been found to exist, it could not be properly sold; and it was ordered, that the property which had been attached should be exempted from sale. Against this last-mentioned order the decree-holders appealed to the Sudder Dewanny Adawlut at Calcutta; and on the 21st of April, 1852, it was ordered by the Court, that the Order of the Principal Sudder Ameen of Zillah Purneah be reversed, and a copy of proceedings, with a direction, that according to the request of the Petitioner's decree-holders, the rights and share of the judgment Debtor, whatever that be, in the property attached, be sold by auction. On the 3rd March, 1853, an auction sale, in execution of the decree of the 18th of November, 1847, was held of the right and share of Bahadoor Hossain, and at such sale one Motee Lall became the Purchaser for the price of Rs. 4,025; and subsequently, on the 17th of June, 1853, a Bill of sale of his share in the Pergunnah Soorjapoor was made, and on the 5th of October, 1858, Motee Lall, by deed of that date, in consideration of Rs. 20,000, transferred to the Respondent what he had purchased at the auction sale of the 3rd of March, 1853, with mesne profits. On the 18th of February, 1859, more than twelve years after the date of the Bond given by Bahadoor Hossain to Luckhee Saho and Doulut Saho, the respondent instituted the present suit against Appellant and other Defendants (the heirs of Rajah Deedar Hossain), for possession of 1 anna, 13 gs. 1 c. 1 Kt. of the entire Pergunnah Soorjapoor, with mesne profits. The Appellant, by his answer, denied the Respondent's right, and pleaded that the suit was barred by limitation; and the other Defendants (co-heirs of Rajah Deedar Hossain), by their answers, also denied the Respondent's right to sue them, admitting the validity of the deed of gift and Will. The Principal Sudder Ameen of the Zillah Court of Purneah Abdool Azeel, gave judgment on the 2nd of October, 1860, as follows:- "From the date of the Bond upon which a suit was preferred against Bahadoor Hossain, and a decree obtained, after the lapse of twelve years and some months, this suit has been instituted, and there is not doubt that at the time of the execution of the Bond, Bahadoor Hossain, was of years of understanding and full age; and from a copy of a petition of Bahadoor Hossain, it is evident that Bahadoor Hossain, in accordance with the Wasseeutnamah (Will) of his Father, having renounced his right and share in the zemindary, has retained satisfied with the allowance; when to the right of judgment Debtor, Bahadoor Hossain, in respect to a claim to a share in the zemindary, seeing that the entire zemindary has been in the continuous possession of Enayet Hossain, limitation applies;" and dismissed the suit with costs. In dissatisfaction with this judgment, the Respondent appealed to the Sudder Dewanny Adawlut at Calcutta. The appeal came on for hearing on the 13th of April, 1863, before Messrs. Bayley and Campbell, two of the Judges of the High Court of Judicature at Calcutta, and on the same day judgment was given, reversing the decree as to the operation of the Regulation of limitations. The judgment concluded as follows:- "It may be very much regretted that under the old system, rights and interests in action, and not in possession, should be absolutely sold; but since they have been sold under the system then existing, we cannot think that, in the present case, the Purchaser are debarred from trying their rights by time. We, therefore, order that the case be remanded to the Court of original jurisdiction to be tried on its merits." The facts of the second appeal in no way differed from the first, so far as related to the deed of gift and Will of Rajah Deedar Hossain, and the possession under the summary decree. That suit arose under these circumstances:- Shortly after the summary Order, a deed of release was executed by the five Daughters of Rajah Deedar Hossain (Including Ruheem Onissa), and by the Widow, to the Appellant, which recited the execution by Rajah Deedar Hossain of the deed of gift and Will, and the summary proceedings before mentioned, and the Order made thereon, and that liberty to bring regular suits was reserved to the heirs of Rajah Deedar Hossain. The release contained the following declaration:- "We, therefore, having of our free will and accord, foregone our claim to a share in the inheritance, have agreed to all the terms of the Will of our ancestor, and engage and give in writing, that we and out heirs, from generation to generation, shall receive the allowances inserted in the Will, as mentioned below in cash, from the said Trustee (the Appellant) and his heirs." At the foot of the deed was a detailed statement of the allowances referred to in the deed, including the allowances to be paid to Ruheem Oonissas, who received such allowances as it became due. On the 5th of Kartick, 1255 Molkee, Rusheem Oonissa executed a money bond, to secure to Luchmee Put and Motee Lall, Bankers, the sum of Rs. 335.8a. Afterwards, Luchmee Put and Motee Lall instituted a suit against Ruheem Oonissa on the Bond, and on the 14th of March, 1850, a decree was made against her for the payment of the sum of Rs. 426 and costs. On the 4th of April, 1853, an auction sale, in execution of this decree, of the right and share of Ruhee Oonissa was made; and Motee Lall, one of the decree-holder, by his Gomashtah, became the Purchaser for the price of Rs. 211. 4a. which was set off against the amount of his decree. Subsequently, on the 17th of May, 1853, a Bill of sale was made to Motee Lall, of the property or right sold of Ruheem Oonissa in the Pergunnah Soorjapoor. No further proceedings were taken by Motee Lall until the 21st of Assur, 1265, when he, by deed of that date, in consideration of Rs. 6,500, transferable to the Respondent, Sumeerchand, what he had purchased at the auction sale of the 4th of April, 1853, with mesne profits. On the 1st of March, 1859, Sumeerchand instituted a suit against the Appellant and others, being the majority of the heirs of Rajah Deedar Hossain, for possession of the share of Ruheem Oonissa in Pergunnah, Soorjapoor (being 18 g., 2c., 2k.), with mesne profits. The Appellant, by his answer, denied the right of the Respondent, Sumeerchand, and pleaded that this suit was barred by limitation. The majority of the other Defendants, the co-heirs of Rajah Deedar Hossain, also put in their answers, denying the right of the Respondent, Sumeerchand, to sue them, and admitting the validity of the deed of gift and Will. Rujeem Oonissa, by her answer, also admitted the validity of the deed of gift and Will, and her own acquiescence in the provisions thereof, and the receipt by her of allowances in conformity therewith. The principal issue recorded by the Judge of the Civil Court of Zillah Purneah was, whether limitation has been incurred in the suit of the Plaintiff, or not. On the 2nd of October, 1860, Abdool Azeel, the Principal Sudder Ameen of the Civil Court of Purneah, gave judgment in the suit as follows:- "The suit which the Plaintiff has instituted for the possession of the rights and share of the Debtor in the entire zemindary for 18gs. 2 cs. and, kts. is fully barred by limitation. Because it is manifest from the proceedings, dated the 19th of November, 1842, that after the decease of Rajah Deedar Hossain, the Appellant did according to the purport of the deed of gift and Will executed and delivered by his Father, prefer a suit under Act, No. XIX of 1841, and by a decision of the Judge, the Appellant obtained possession upo this this day. Upon inquiry from the pleaders of the Defendants, it appears that Ruheem Oonissa is older than Rajah Enayet Hossain, and from the date of the possession of the Appellant, this suit is preferred after twelve years. And when the claim of Ruheem Oonissa must, in consequence of limitation, be dismissed, the Plaintiff, who is the representative of Ruheem Oonissa, cannot in that event be entitled to possession and mesne proceeds of the share. Therefore, by reason of limitation the investigation of any other matter is unnecessary. It is accordingly ordered, that the claim of the Plaintiff be dismissed with costs." On appeal, the High Court of Judicature at Calcutta, consisting of Messrs. Bayley and Campbell, on the 13th of April, 1863, gave judgment over-ruling the decree of the lower Court on the question of limitation. The material part of the judgment was in these terms:- "It may be very much regretted that under the old system rights and interests in action, and not in possession, should be absolutely sold; but since they have been sold under the system then existing, we cannot think that in the present cause the purchaser are debarred from trying their rights by time. We, therefore, order that the case be remanded to the Court of original jurisdiction, to be tried on its merits." The appeals were from both these decrees, and as the same point was involved, they were directed to be heard together. There was no dispute about the facts, the question turning upon the operation of the Bengal Regulation III of 1793, section 14, as a bar to the suits. In both appeals- With respect to the first appeal, it was submitted, on the part of the Appellant, that Bahadoor Hossain, as one of he heirs of Rajah Deedar Hossain, had not in his lifetime disputed the deed and Will, but, on the contrary, had, with a majority of the heirs of Rajah Deedar Hossain, accepted the allowance under the Will, and the he took no step aside the summary decision in 1842; that Motee Lall having had personal dealing with Bahadoor Hossain, was acquainted with the fact of his acquiescence in the validity of the deed and Will, and, as it would have been impossible for him to bring a suit against the Appellant with any chance of success, the transfer by him to the Respondent was resorted to. That more than twelve year had elapsed from the date of the Bond before the institutions of the Suit, without any proceedings being instituted or claim made against Bahadoor Hossain or any persons claiming under him in respect to Rajah Deedar Hossain's estate; and, as to the second appeal, that Ruheem Oonissa had also confirmed the provisions of the deed of gift and Will, and accepted her allowance under the Will, and that more than twelve years had elapsed from the date of the judgment in the summary proceedings in which Ruheen Oonissa was a party, and from the date of her confirming the deed, and Will, before the institution of the suit. For the Respondents it was contended, that the rule laid down by the Courts in India, in giving effect to the Regulations of limitation, was that when fraud is charged, the period of limitation is not reckoned from the time when it is committed, but only from the time when it was discovered; and that the period of twelve years, prescribed by Ben. Reg. III, 1793, section 14, had not expired when the present suit was brought, inasmuch as the Respondents were from "good and sufficient cause, precluded from redress," as the Appellant had acquired and held possession of the immoveable property of his Father, Rajah Deedar Hossain, by "fraud of other unjust or dishonest means," and therefore, under Ben. Reg. II of 1805, section 3, the Respondent were entitled to the extended period of sixty years; that the Appellant had not held "quiet and unmolested to the claim being preferred in a competent Court, so as to bring him within the exception contained in Ben. Reg. II of 1805, section 3, cl, or to authorise the Court to apply the twelve years rule of limitation, and lastly, that, being decree-holders at an execution sale, the Regulations did not apply.