On appeal from the High Court of Judicature at Fort William, in Bengal.
For the Appellant:- Sir R. Palmer, Q.C. and Mr. Leith. In a suit two of the Defendants, in their answer, made a statement in respect of an alleged mortgage transaction with the object of defeating the Plaintiff's claim, which was false - A foreclosure suit was afterwards brought by one of these Defendants against the other founded on such alleged mortgage - Held, that it was competent to the Defendant to plead that the statement in the joint answer in the former suit was false and intended as a fraud on a third party, and that the admission in the answer did not amount of an estoppel as between the parties to the second suit. [Para ] The Appellants instituted this suit against the two first Respondents, to recover possession of the lands mentioned in the plaint, with mesne profits, on the ground that they had, on the 25th of November, 1837, in consideration of the sum of Rs. 55,000 advanced to them to pay ancestral debts and perform obsequies, executed in favour of the first Plaintiff a deed of conditional sale of the lands, whereby that sum was made repayable at the end of Joistee, 1251, F.S.; and it was alleged that the Defendants having failed to pay at the expiration of that term, the first Plaintiff was about apply for a foreclosure, but was then prevented by the Defendants obtaining possession of the Deed by means of practising with his servants, of which the First Plaint gave notice to the Police and Magistrate, and having obtained a copy of the Deed applied, on the 25th of August, 1851, to the Judge for foreclosure. The Plaintiff contained no allegation that notice was issued by the Judge under Reg XVII of 1806, section 8, or served on the Defendants, as is required by that section, but simply submitted, that as the consideration was not repaid within the fixed period, the lands became foreclosed and the property of the first Plaintiff on the 25th of August, 1852, when, as the Plaintiff contended, the year of grace expired, and his cause of action accrued. The plaint proceeded to allege, that the Plaintiff was so much occupied as to be unable to obtain a copy of the foreclosure proceeding and institute a regular suit before those papers, with other records, were burnt during the Indian mutiny; that he had on the 21st of August, 1861, and again the 10th of May, 1862, made application to have the foreclosure proceedings furnished him, but that on the opposition of the Defendants, who set up an Ikrarnamah (or agreement) and an application to the Judge, both purporting to proceed from the Plaintiff, but which he denied, his applications were struck off, and he was rendered to a regular suit. That, to find means to sue, he had given a half-share in the suit to the second Plaintiff, and they both now sues for possession in equal shares, with mesne profits to the second Plaintiff exclusively, and costs to both. The first Respondent, by her written statement, or answer, alleged that the deed of conditional sale was not formally executed, that no consideration whatever was given, nor had the Plaintiff any means to do so: that the deed was never delivered to him, but remained in her hands. That the reason of the execution of the deed nominally to the Plaintiff, who was her Brother, living under her roof in entire dependence on her and without any means, was that after her Husband's death was threatened with litigation by her Husband's heirs, and to save the property from them she prepared the Deed, gave notice of it to the Court, and then got it back, but that no actual execution ever took place. That in the suit, "Arhut Singh v. Mussumat Pran Peary, Mussumat Rakaba, and Ram Surun Singh," brought by her Husband's heirs, the Deed was held to be invalid, and that the Plaintiff did not appeal then against such ruling. That in the year 1851, when the Plaintiff applied for foreclosure, she met him by a statement of the facts, and that then the Plaintiff and the Defendants having arranged matters, such agreement was embodied in an Ikrarnamah, dated the 30th of January, 1852, which the Plaintiff executed, and acknowledged in court in the foreclosure suit, and that on the strength of that arrangement the foreclosure suit was struck off, and submitted that the Plaintiff could not now claim contrary to this Ikrarnamah; and the Defendant further submitted, that according to the terms of the Ikrarnamah, the Plaintiff had forfeited all claims even after death, by his conduct, and referred to the long delay in suing, as corroborative of her case. The second Respondent put in her written statement, which was, in substance, to the same effect, and asserted that the Plaintiff's allegation as to the foreclosure having been effected in 1852, was untrue. The Plaintiff, in his replication, asserted the bona fides of the conditional sale, the payment of, and his competency to pay, the consideration money, and again denied his execution of the Ikrarnamah or presentation of the petition of 1852, and contended that Defendants ought not to be allowed to allege facts contrary to their statements in Arhunt Singh's case. Afterwards the Respondent, Imrit Lall, intervened, and was admitted to defend his interest as lessee of the female Defendants. The Plaintiff called no witnesses, but gave his own depositions as to the execution of the mortgage Deed, the payment of the consideration money by him, and the former possession of the Deed, and he relied on the estopped for the Defendants by reason of their having pleaded that the Deed was bona fide executed. The Plaintiff filed the decision of the Sudder Dewanny Court, of the 27th of December, 1841, in the suit of Arhut Singh v. Mussumat Pran Peary. Mussumat Rakaba, and Ram Surun Singh, and the Plaintiff and others, for the purpose of establishing the estoppel on which he relied. That decision, in substance, so far as is material to state, was to the effect, that the Plaintiffs, Arhut Singh and others, sued for possession of the same lands on the ground that they had been ancestral joint property of their ancestor and the female Defendant's husband: that the female defendants, therefore, had no right to them after their Husband's death, and they charged that a conveyance of Ram Surun Singh, the now Appellant, was made to deprive them to their rights. That the female Defendants denied that the property in suit was ancestral, and asserted it came rightfully to them from their Husband, and insisted that they had power to alienate to meet urgent requirements under the Hindoo law, and that they had accordingly executed a conditional sale to the Appellant, Ram Surun Sing, to pay debts and expenses of obsequies, and that Ram Surun Singh was not not so poor as the Plaintiffs alleged. Ram Surun Singh also put in an answer to the same effect, in which he showed how to consideration was made up. The Principal Sudder Ameen tried the case as one depending on the question of whether the property in suit was joint, and decreed in favour of the Plaintiffs for certain of the properties in suit after the death of the female Defendants, and declared the right of the latter to alienate other portions, and held that the alienation to the Appellant was invalid, as being of ancestral property, and left him to pay him own costs. That from this decision the Plaintiffs in that suit appealed, the Appellant acquiescing therein, and the Sudder Dewanny Court, on the 27th of December, 1841, reversed the decree of the Lower Court, and dismissed the Plaintiffs suit on the ground, that they had failed to show the property in suit was joint, and could, therefore, have no right to claim during the lifetime of Sheodyal's Widows (the Defendants, the present Respondents), and the Judges of the Sudder Court expressly stated that they decided nothing else than the above. The Plaintiffs case was, that no such repayment was made him on or before the month of Jeyt, 1215, F.S., and that he made no application to foreclose until above seven years after the last mentioned date, when, on the 25th of August, 1851, he filed a petition for foreclosure, in which he gave as a reason for not proceeding earlier, that his deed and receipt were missing, having been either lost by him, or stolen from his by one Munnoo Singh, the Respondents servant, of which he had given notice to the police. The Plaintiff offered no evidence from the police-office as to any such loss or notice, and the evidence given by the Respondents showed the falsehood of the statement as to either of those documents having been ever in his possession, and that they all along remained in that of the Respondents, who procured them. The evidence of the Vakeels employed by the Plaintiff and the Defendants during the foreclosure proceedings and compromise of them, as also that of several other Witnesses, showed that the documents were during the foreclosure proceedings in 1851-2 produced by the Respondents' servants, and were returned to them, and that the Appellant at that time gave no evidence of the Witness, Mohunt Gossain Sheo Churn Geor (the spiritual adviser of the family of the Respondent, Imrut Lall, then the female Respondent's legal adviser, and Writer of and attesting Witness to the Ikrarnamah of 1837), of Nurkoo Sing, the Respondent's Nephew, and an attesting Witness,and that of several others, was to the same effect as to the retention of the deed and receipt and Ikrarnamah by the female Respondent, and proved that no consideration whatever passed, and that at that time the Plaintiff was entirely without means, and a dependent for support on the bounty of the first Respondent, his Sister, which was in part admitted by the Plaintiff himself in his deposition. As to the execution of the Ikrarnamah of the 30th of January, 1852, and the petition to the Judge to give effect to it, the evidence given by the Defendants was conclusive, and beyond a simple denial by himself in his deposition, the Plaintiff offered no evidence in opposition, or to explain how that petition came to be presented; or why he, having petitioned for foreclosure in August, 1851, took no further action in that matter until the 5th of September, 1862. The Principal Sudder Ameen (Moulvie Iradut Alby Khan) by his judgment, dated the 15th of February, 1864, found against the Plaintiff on all the issues, from which the Appellants on the 13th of May, 1864, preferred their petition on appeal to the High Court. The Plaintiff did not therein rely on his own evidence, or take exception to its rejection by the Court of first Instance, but relied on estoppel alone as to the character of the transaction of conditional sale and passing of the consideration. He to some extent admitted he had been unable to prove the foreclosure, but contended that it should be taken as proved. He also impugned the second Ikrarnamah and petition thereon as forgeries. On the 21st of September, 1864, a Division Bench of the High Court, consisting of Messrs. C. Steer and E.P. Levinge, affirmed the judgment of the Principal Sudder Ameen and dismissed the appeal. The Division Bench dealt with no other question than that of the estoppel contended for by Appellant; and from the judgment of Mr. Justice Steer it appeared that the Appellant abandoned all other contention before the High Court. On the point of estoppel, the Division Bench held there was none, and that on the evidence they were quite satisfied that the alleged mortgage was fictitious and fraudulent. The appeal was from this decree. We submit that the decree is wrong, the High Court ought to have held that the Defendants (the two first Respondents) were estopped and concluded by their own pleading and admissions in record in their answer in the suit of "Ahrut Singh v. Mussumat Pran Peary and others," in which they pleaded, and are in evidence, the two instruments, constituting a conditional mortgage, and cannot now deny or contest the validity and legal effect and operation of those instruments. They could not legally set up their own alleged fraud, as a defence to prevent the operation of their own Deed of conditional sale and conveyance of the Talooks and Mouzahs executed in favour of the Appellants. Even if the Courts were right in deciding that the two first respondents were not estopped from sitting up such defence, yet the Courts were wrong in shifting the onus of proof on the Appellants, inasmuch as the making and execution of the Deed of conditional sale and the receipt for the consideration therein were admitted by them, the onus of providing the statements relied on by the latter, to establish the invalidity of the Deed lay on them. The Court ought, therefore, to have decided that the evidence adduced by them was insufficient to prove the statements, so far as the same were in contradiction of their admission in the answer, and decreed in favour of the validity of the deeds. Mr. Dyone, appeared for the two first Respondents, but was not called on to address their Lordships.