Radha Jeebun Moostuffy v. Taramonee Dossee
BS649285
PRIVY COUNCIL
Before:-Members of the Judicial Committee - The Right Hon. Sir James William Colvile, the right Hon. the Lord Justice Selwyn, and the Right Hon. the Lord Justice Giffard, Assessor,- The Right Hon. Sir Lawrence Peel.
0 D/d.
23.2.1869
Radha Jeebun Moostuffy - Appellants
Versus
Taramonee Dossee - Respondent
On appeal from the High Court of Judicature at Calcutta.
For the Appellant :- Mr. Cave, in both appeals.
Solenamah - Suit for share family estate - Compromise of suit - Elder brother charged under compromise decree with duty of performing deb Sheba (worship of family idols) - Rents of specified part of estate to be given to elder brother for such purpose - Failure of younger brother to put elder brother in possession of specific share - Award of mesne profits in execution of compromise decree applied for by elder brother - Religious worship, Proof of performance, by elder brother not condition precedent for his taking out execution of compromise decree - Allegation by younger brother against elder brother of non-performance of worship and consequent performance thereof by him - Right of younger brother to claim damages from elder brother to be enforced by suit, not in execution - Onus of proof of no default on his part giving him right of action on younger brother - Trust in favour of elder brother implies beneficial interest also - Hindu family - Manager's position.
[Para ]
Under the terms of a Soluhnamah compromising a suit brought to obtain possession of a share in a family ancestral estate, it was provided (inter alia) that S., the elder Brother, should, in consideration of the rents of a specified part of a family estate, estimated to cover the expense, perform the Deb Sheba (worship of the family idols) and other religious ceremonies for the family. This compromise was sanctioned by the Court, and a decree made thereon. On a motion by S. to enforce the decree on an allegation that R, his brother, had not performed his part of the compromise by putting him in possession, the Court decreed execution of the decree, and awarded mesne profits; R. also obtained a further Order for execution on the ground that S. had not performed that trust, and that he had been compelled to perform the religious ceremonies at his own expense. This the Court refused to enforce of the lands. Held, that proof of the non-performance of the religious ceremonies at his own default in non putting S. in possession of the lands. Held, that proof of the non-performance of the religious ceremonies by S. was not a condition precedent to the enforcement by S. of the decree.
In a suit brought by R. against S. to recover moneys alleged to have been expended by R. in the performance of the Deb Sheba, in consequence of B. neglecting to perform the trust as to the family worship, the Plaintiff's witnesses having failed to prove any damages, he called the Defendant as a witness, who gave evidence to the Plaintiff to cross-examine him. Held, that although the refusal to cross-examine was not justifiable, yet, from the other evidence in the suit, it was clear the Plaintiff had sustained no damage or had, in the circumstances, a right of action.
There were to appeals in this case from decrees of the High Court at Calcutta.
The Appellant and Surbessur were Brothers, and the question involved in the first of these appeals, was the right of the Respondent, as representing her deceased Husband, Surbessur, to sue out execution under a decree made by the Court sanctioning a Soluhnamah, compromising a suit, respecting the ancestral estate, and allotting the rents of part of the family estate to Surbessur for the performance by him of the Deb Sheba (worship of Idols)of the family. Surbessur claimed possession and mesne profits of such estate in consequence of the Appellant keeping him out of possession of the share so assigned to him for the religious observances. The Appellant contended, that Surbessur had not performed the trust in performing the worship of the Idols for him.
The second appeal was brought against a decree of the High Court made in a suit by the Appellant against Surbessur for damages by reason of the non-performance by him of the Deb Sheba for the Appellant. In this decree the Court refused the Appellant leave to cross-examine the Defendant, whom the Appellant had called as a witness to support his case, and dismissed his suit as the Court considered he ha not right of action.
These appeals arose under the following circumstances:-
On the 12th of March, 1850, the Appellant instituted a suit in the Court of the Principal Sudder Ameen of Zillah Nuddea against his elder brother and Guardian, Surbessur, against Lucky Doss Mitter Moostuffy, the Son and heir of another Brother, Casissur Mitter Mootuffy, and thereby sought to obtain possession of his share of the ancestral property, and the mesne profits during the period of his minority. At that time there were other suits pending between the same parties, and ultimately a compromised was entered into and a Solunamah executed on the 24th of August, 1853, of the matters in litigation. The fourth article of which provided, that Surbessur should perform at his own expense the Deb Sheba (worship of the Idols), and other religious ceremonies for the three, the cost of which was fixed at Rs. 2,900 a year, and that, in consideration of his so doing, he should hold possession for his life of a specified part of the joint property estimated to produce that amount. This compromise received the sanction o the Court on the 24th of August, 1853, and it was ordered, that both parties should carry out the terms of the compromise.
It appeared that, in respect of the family worship, this part of the compromise was not carried out, and, in 1860, Radha Jeebun obtained on Order for the execution of the decree of the 24th of August, 1853, against Surbessur, for failure in complying with the terms of the compromise in other respects. Surbessur alleged, that he had never received possession of the property set apart by the deed of compromising to answer the expense of the Deb Sheba, and claiming a right to set-off the mesne profits of this property against Radha Jeebun's judgment, and prayed that the execution of the decree might be stayed. On the 13th of July, 1860, the Principal Sudder Ameen considered these objections, and ordered that the execution sought for by Radha Jeebun should be carried out, and declared that Surbessur was at liberty to take out execution for the recovery of any amount that might be due to him under the decree. Accordingly, on the 20th of July, 1860, Surbessur filed a petition in the Court of the principal Sudder Ameen of Nuddea, praying for possession of the property, and that the mesne profits from the date of the compromise might be set off against Radha Jeebun's judgment . By another petition, filed on the 18th of August following, Surbessur alleged the amount to which he was entitled to be Rs. 9,463, per annum, with interest. As this amount exceeded, Surbessur, on the 27th of August following. prayed that the balance might be realised by attachment and sale of Radha Jeebun's property.
Notice of the application, and requiring him to bring forward his objection, was served on Radha Jeebun, who filed his petition of objection, and alleged that Surbessur had not performed the Objector's share of the family religious rites and ceremonies, in consequence of which, the Objector had to defray them at his own expense, and consequently that Surbessur, not having performed his part of the compact, was not entitled to call upon the Objector to perform his part. Surbessur answered, that he had performed a part of the worship of the deities in accordance with the terms of the compromise, and was prevented from performing the residue of the want of the necessary funds, Radha Jeebun having kept him out of the lands assigned for that purpose. The principal Sudder Ameen at Maherpore, to whose Court the case had been transferred, by a proceeding of the 29th of November, 1861, admitted Surbessur's claim, and directed that execution should proceed as prayed, on the ground that the Order of the Principal Sudder Ameen of the 13th of July, 1860, was conclusive as to his right to obtain possession of the lands and the mesne profits claimed.
Radha Jeebun appealed from this Order to the High Court at Calcutta, but on the 30th of August, 1862, that Court, consisting of Mr. Justice Steer and Morgan, dismissed the appeal, on the grounds, first, that as the decree confirming the terms of the compromised had not been complied with, the Court had power to put the decree in force; second, that the alleged breach of trust could not be inquired into in this proceeding, but that the Appellant could prefer his claim in a regular suit; and, third, that as Surbessur had not been put in possession of the lands, he was entitled to mesne profits.
Nothing further took place until the 19th of May, 1864, when Taramonee Dossee, the Widow of Surbessur, who had died in the interval, filed a petition, asking for a revivor of the executed case, and to recover the mesne profits and interest from the date of the compromise, amounting to Rs. 16,575. 2. 6. Radha Jeebun filed objections to this petition and Taramonee Dossee put in her answer, in which she alleged, that the Order of the Principal Sudder Ameen of Maherpore of the 20th November, 1861, and the Order of the High Court on appeal therefrom, dated the 30th of August, 1862,were conclusive.
On the 8th of April, 1865, the case came on before Baboo Juggobundhoo Bundopahdya, the Principal Sudder Ameen of Zillah Nuddea, who decided that the Orders relied on by Taramoonee Dossee were final, and overruled Radha Jeebun's objections, with costs.
Radha Jeebun appealed against this Order on the following grounds:- First, that Surbessur, the late Husband of the Applicant for execution, having been a mere Trustee for the entire family, with respect to family worship and other charities, and the properties, wasilat of which was claimed, having been agreed to be left in his hands only in the character of a Trustee, and she not being the representative of her late Husband as regarded the matter of the trust, was not entitled to claim wasilat with respect to the property. Second, that the main question which was before the High Court on the former occasion was, whether her late Husband who entitled to take out execution at all, therefore, any opinion pronounced with respect to the other points, could not be considered as convulsion between the parties. Third, that there being no provision in the ruffanamah of wasilat, as admitted by the High Court in its judgment of the 30th of August, 1862, the mere declaration by it on that occasion, that wasilat was realizable in the shape of damages made, as the same was in the execution department, whose legitimate province was to interpret the decree as it stood, could not have the legal effect of supplementing the decree itself. Fourth, that there being no provision for internet or wasilat in the decree, and the High Court having pronounced no opinion on that point on the former occasion, the Lower Court is wrong in awarding the same, under an erroneous impression that all the points in dispute between the parties have been settled by the High Court's judgment of the 30th of August, 1862; and, lastly, that there being cross decrees between the parties, the same ought to have been allowed to be set off, under the provisions of section 209 of the Code of Procedure.
On the 27th of July, 1865, the appeal was heard by the High Court. The judgment of the Court, consisting of Messrs. Loch and Glover, after stating the facts of the case, proceeded as follows:-
"The Principal Sudder Ameen has allowed the Widow of Surbessur to take out execution against the judgment Debtor, on the ground that, as representative of her Husband, she is entitled to his property. This Order would, under ordinary circumstances, be correct, but in the present case the Principal Sudder Ameen appears to us to have altogether ignored the special point at issue. He assumes, that the objections regarding the alleged breach of trust on the part of Surbessur were disposed of by the High Court in the latter's favour, but this is not the case, this Court simply decided the general principal, that a person dispossessed unjustly was entitled to recover not only possession, but mesne profits likewise; it did not take into consideration the special grounds of the Widow's present claim. It declined to go into the question, and referred the parties to a regular suit. The point, therefore, as to whether Surbessur did or did not expend the endowment money in the services of the Idols is still undisposed of. In the present case, it is manifest, that the judgment Creditor, in order to take out execution against her late Husband's Brother (one only of the two appears to have resisted the Widow's demand, the other having paid his quto), must show, that during the time of his alleged dispossession, he kept up the religious services out of his own funds. On no other supposition can the Widow have any claim. Surbessur had no right to the endowment moneys personally, he was a mere Trustee bound to expend all that he received in the service of the Idols, and if for any reason the whole, or any part, of those moneys remained unexpended, the surplus would not belong to Surbessur's estate, but to the endowment. Now, we can find no proof whatever on the record, that the services of the Idols were kept up by Surbessur out of his own resources, it is mere plea advanced by the judgment Creditor, but unsupported by any evidence whatever. The circumstances of the case have been so altered since the High Court's decree, that we find it impossible to give the judgment Creditor the benefit of it. That decree proceeded entirely on Surbessur's right to recover possession of the lands. At the time it was passed Surbessur had that right, but his Widow is not in the same position. The right was personal to the Husbands, as Trustee of the endowment, and did not descent to his heir. The Widow can neither execute the decree for possession nor for wasilat, as the usufruct of the land would be the property of the endowment. As it stands, the decree, so far as she is concerned, is absolutely unfructuous. Under these circumstances, we have no alternative but to decree this appeal with costs on the Respondent, and reverse the Order of the Principal Sudder Ameen. It is still open to the Widow to show, in a regular suit, that during the time of her Husband's dispossession, he, notwithstanding the failure of the trust fund, paid the expense of the Idol services at his own costs. If she can prove this, she will be entitled to whatever sums Surbessur so paid, and can recover them from the judgment Debtor."
Taramonee Dossee presented a petition for a review of this judgment, and, with the view of proving the payment of the costs of the worship by Surbessur out of his own funds, filed a judgment of the High Court delivered on the 2nd of February, 1864, and which judgment is the subject of the second appeal hereinafter mentioned.
This petition was admitted, and on the 10th of January, 1866, the High Court, consisting of Messrs. G Loch and F.S. Glover, after observing that they were not satisfied that the new evidence tendered ought not to have been with the Petitioner's knowledge at the time the case was heard in appeal, nevertheless decided to admit the evidence, held, that that judgment was decisive on the question of payment of the cost of the family worship by Surbessur, and amended their previous judgment by affirming the Order of the Principal Sudder Ameen of the 8th of April, 1865.
From this decision the first appeal was brought.
The suit out of which the second appeal, arose, was instituted by Radha Jeebun in the Court of the principal Sudder Ameen of Zillah Hooghly, the plaint disclosed the same facts, and the Plaintiff sought to recover Rs. 966. 10a. 8p. per annum one-third of Rs. 2,900, as stipulated in the deed of compromise, as the cost of the Deb Sheba and other ceremonies, which he had been compelled to perform at his own expense, contrary to the terms of the compromise. This sum, for the nine years during which he contended Surbessur had left Radha Jeebun's part of the ceremonies unperformed, amounted, with interest, to Rs. 12,388. 10.9.
Surbessur, in his answer, submitted, first, that as Radha Jeebun's objections had been disallowed by the Principal Sudder Ameen of Maherpore on the 29th of November, 1861, he was to longer entitled to insist upon his present claim; and, secondly, that there was no mention in the compromise rendering him liable to pay the expenses of any ceremonies performed by Radha Jeebun, under the existing circumstances. Surbessur also alleged, that jointly with his co-sharer, Lucky Doss Moostuffy, he had regularly performed certain family religious ceremonies which he specified.
The Court fixed the following issue:- "According to the terms of the Solunamah (deed of compromise), can the Plaintiff get the amount claimed or not?"
The Defendant called three of his servants as witnesses, who deposed, that after the deed of compromise, Surbessur solely performed the whole of the religious ceremonies specified therein for one month, and that subsequently Surbessur and Lucky Doss Moostuffy had jointly performed their share of the ceremonies, and that Radha Jeebun had performed his share separately at his own expense. The Appellant examined one witness, whose evidence failed to establish his case. The other witnesses summoned for the Plaintiff did not appear, and he filed a petition praying that the case might be decided by summoning the Defendant in person and taking his deposition. The Defendant was accordingly summoned, and was asked by the Court the following question:- "The Plaintiff has made a claim to get money for the performance of rites and ceremonies relating to his share of the Deb Sheba, together with interest, whether the same is justly due by you or not?" The Defendant answered:- "In my opinion the Plaintiff claim is not due by me. I am not liable for the claim."
The Plaintiff then submitted that he had not intended to abide by the answer of the Defendant, and asked leave to cross-examine him. The Principal Sudder Ameen, Nazirooddeen, refused to put any further questions to the Defendant, or to allow any to be put on behalf of the Plaintiff, and, on the ground, that there was no proof of the Plaintiff's claim, and that his claim had not been proved form the deposition of the Defendant, dismissed the suit with costs.
From this decision the Appellant appealed to the High court of Judicature at Calcutta, and Surbessur, having died before the hearing, Taramonee Dossee, his Widow, was made Respondent in his stead.
The appeal came on for hearing on the 2nd of February, 1864, when the Judges, Mr. Morgan and Sumbhoonath Pundit, although disapproving, as the judgment stated, of "that portion of the case which has resulted in the Defendant coming into Court and giving a statement without any cross-examination or without any other question being asked him by the Court, "and admitting, that in some respects the investigation was not full and satisfactory, nevertheless dismissed the appeal and affirmed the decision of the Lower Court with costs, on the ground, that the remaining evidence, in the absence of the Plaintiff's witnesses and of the evidence, in the absence of the Plaintiff's witnesses and of the evidence of the Defendant in which he relied for his proof, failed, in their opinion, to support the case. And the Court further declared, that it seemed to them doubtful, under the terms of the order, whether even of the family worship he could, under the circumstances, have brought a suit against the Defendant to recover the money so expended.
Against this decision the second appeal was brought.
As the Respondent did not appear in either appeal, the same were heard together ex parte.
In the first appeal, he contended that the original judgment of the High Court was right, as although the Order of the 30th of August, 1862, was final, the Respondent, Taramonee Dossee, was not entitled to the execution sought for. except on proof that her Husband, Surbessur, had performed the religious rites for him at his own expense, and that no evidence of that fact was given; and,
In the second appeal he submitted, that there had been a miscarriage of justice, as the Appellant was entitled to cross-examine the Defendant, and to put to him all such questions as were material to the issue raised between the parties, although the Plaintiff's claim was sufficiently proved from the other evidence.
JUDGMENT
The Right Hon. Sir James W. Colvile :- Their Lordships are of opinion, that no ground has been laid for prolonging this unfortunate litigation by the allowance of these appeals.
It is unnecessary to state earlier proceedings in the first suit. It seems sufficient to begin with the Order of the 30th of August, 1862, which Mr. Cave has admitted to be final. By that Order it was held, that Surbessur has established his right to take out execution for the mesne profits claimed by him, as well as for the possession of the land included in the fourth article of the compromise; and that it was no bar to his execution that it had been alleged that he had broken trust, inasmuch as he had not carried out the terms in accordance with which it was agreed that he should hold possession.
This Order was neither the subject of appeal, nor, in their Lordship's opinion, could have been successfully made so. There is no ground, as it appears to them, for saying, that the proof of the performance of the religious ceremonies was a condition precedent to the enforcement of the claim for the rents which the fourth article of the compromise gave to Surbessur. And without enquiring, whether many of the points which are now taken might not have been raised in the litigation which led to the Order in question, or are concluded by it, it is sufficient to state, that its effect was that as between the two brothers, Surbessur was entitled to take out the execution which he claimed to take out, and that the Respondent, if he had any claim by reason of the non-performance of the religious ceremonies, or any other breach of the agreement, was bound to prefer that claim in a regular suit.
In anticipation of that Order, the younger Brother (the Appellant) had commenced the suit out of which the other appeal has arisen. It will be convenient to consider the nature of that suit, and the right of the party to have the decree that has been made in it reversed or altered, before we proceed to the subsequent proceedings in the original suit.
The suit which was so instituted was not exactly such a suit as that suggested by the judgment of the 30th of August, 1862. What the judges of the High Court said was, that if the Appellant, on the ground of any breach of agreement, claimed a right to dispossess the Respondent's Husband, Surbessur, he might prefer that claim in a regular suit. But the suit really instituted was of this nature. It was a suit in which the party alleged, that by reason of the non-performance of Surbessur of the duty which he had undertaken under the fourth article of the compromise, he, the Plaintiff, had been compelled to perform certain religious ceremonies at his own cost, and that he had a right of action over against Surbessur for the moneys expended in the performance of those ceremonies. It was, therefore expended in the performance of those ceremonies. It was, therefore, essential, in such a suit, that he should show that he really had that right of action; that there not only had been the breach of duty alleged, but that by reason of it he was entitled to recover the damages which he had sustained from his Brother. And he had, of course, to prove the amount of those damages.
Now, as to the proof of the damages, that failed altogether, He produced only one witness, who proved nothing; he called the Defendant, who denied generally that the claim was well founded. Upon that the Judge of the first instance made a decree against him, and dismissed the suit.
The case was carried, by appeal, before the High Court, and they affirmed the decision. They remarked on the miscarriage of the Judge in refusing to allow the Plaintiff to cross-examine the Defendant when called, and their Lordships fully concur in the propriety of that censure. Nevertheless, if the Defendant had been cross-examined, all he could have proved would have been so much of the Plaintiff's case as rested on the performance of the religious ceremonies, and by possibility, though that was not very probable, the cost to which the Plaintiff had been put in the performance of them; but that, in their Lordships' opinion, would not have made out that he had any right of action. For the existence of that right of action you must go back to the original compromise, and, in their Lordships opinion, the Plaintiff had wholly failed to prove that he had such a right of action, because, upon the compromised and the acts of the parties, the case stood thus:- The compromised gave certain lands, and the rents of those lands, to the elder Brother, coupled, we may admit, with the performance of a trust, but a trust of that nature which is constantly vested in the managing or elder Brother of a Hindoo family, a trust which implies some considerable beneficial interest. If the non-performance of that trust, or the non-performance of those ceremonies, could, by any possibility, give such right of action to the Appellant, as that asserted in his suit, it surely was necessary for him to show that it was not by reason of any default of his part that the non-performance of the trust-took place.
Now, the undisputed facts of the case are, that the younger Brother did not perform his part of the agreement, that the retained his share of the rents of the land; and that the elder Brother was put to take out execution under the decree founded on the compromise, in order to get the funds which that compromise gave to him.
Therefore, it seems to their Lordships, that this suit, brought by the Appellant, substantially failed upon the ground which is suggested by the Judges in their judgment of the 2nd of February, 1864, viz., that there was no cause of action at all, and in these circumstances it would be unreasonable to send down that case for a new trial, because the Judge did not allow the cross-examination of a witness, whom, moreover, by reason of his subsequent death, it is now impossible to examine.
These observations, therefore, dispose of the second appeal, and I now revert to the proceedings in the original suit. Surbessur died pending the second suit, and without having taken out execution under the decree of the 30th of August, 1862. His Widow then applied to take out execution, and as she merely sought to take out execution for what which had been adjudged to belong to her Husband, and was, therefore, part of his estate, there seems no ground whatever for disputing her right, or imposing upon her the obligation of proving something which Surbessur had not been called upon to prove.
The Principal Sudder Ameen seems, therefore, in their Lordships' opinion, to have taken a right view of the question. He overruled the objections to the execution, which had been urged by the Appellant.
The case then went by appeal to the High Court, and two of the learned Judges of that Court then took the view which I have just alluded to as being, in their Lordship's opinion, erroneous, saying that she could not stand in her Husband's shoes: that it lay upon her to prove, that Surbessur had actually expended his own moneys in performance of the ceremonies, and they, therefore, in the first instance, overruled the Order and judgment of the Principal Sudder Ameen. There was, then, an application for review before the same learned Judges; and upon their being referred to the decree in the other suit, and to some additional evidence, but principally to the decree in the other suit, they came to the conclusion, that the Widow must be taken to have established, chiefly, if not wholly, by that decree, that of which they had required proof from her, viz., that Surbessur had expended his own moneys in the performance of the ceremonies, that, therefore, their former Order was wrong, and that the final Order to be made was, that she should be entitled to issue execution, - in fact, to affirm the Princpal Sudder Ameen's Order. A subsequent Order was made, declaring her entitled to interest on the amount for which the original execution had been sued out.
Their Lordships are unable to assent to the reasoning of the learned Judges of the High Court. They think, for the reasons which I have given, that the original order, reversing the Principal Sudder Ameen's order, was wrong; but if that Order had been properly made, they would have been unable to adopt the reasoning of the learned Judges, as to the effect of the decree in the suit of the Appellant, which certainly does not prove that Surbessur expended his own moneys in the performance of ceremonies. The utmost which that decree can be taken to prove is, that the Appellant had failed to show that he had performed separate ceremonies upon his own account, or that he was entitled to recover the sum claimed in that suit in respect of those ceremonies.
The effect, however, of the final Orders of the High Court is to give to the Widow that to which their Lordships consider she is entitled; and, therefore, he Order which they will humbly recommended Her Majesty to make is, that both these appeals be dismissed and that the Orders of the Courts below, which are the subjects of them, be affirmed.
.