1866. ESHEN CHUNDER ". SHAMACHURN BHUTTO. the Talook executed in the Plaintiff's favour by the Defendants. The plaint stated to the effect, that it was agreed between the Appellant and his co-Defendant, of the one part, and the late Kistomohun Bhutto, the father of the Respondents, Shamachurn Bhutto, Kalichurn, and Bhowaneechurn, and of Oomachurn Bhutto, deceased, of the other part, that the Putnee should be taken jointly by them from the Maharajah, the Zemindar, in the following proportions, viz., a twelve annas share by the Appellant and his co-Defendant, and the remaining four annas share by their father, at a certain annual rent of Rs. 756, exclusive of establishment expenses; the consideration being the sum of Rs. 11,000, payable to the Zemindar; and that an Ekrar (written agreement) to the above effect was executed on 15th Kartick, 1265 (31st October, 1858). The plaint then stated the cause of action to be that the Defendants, in violation of the terms of the Ekrar, had fraudulently got a Putnee lease executed in their own names on the 28th Kartick of that year, and has taken possession of the property; and had refused to make over to them the four annas share, or to take the consideration-money (i.e. the price payable to the Zemindar) for the same. The Ekrar in question was filed with the plaint, and purported to have been signed by the Respondent, Koilaschunder Singh, alone. The translation of this instrument was as follows: "To the adorable Kristomohun Bhutto. I, Koilaschunder Singh, do hereby execute this Ekrar to the following effect-It having been arranged between you and me that a Putnee settlement of Mouzah, Balooka, together with Julkur and Tulkur, as well as all Beels and Koothee, &c., and Mouzah, Srirampore, on an annual rental of Rs. 756, exclusive of establishment expenses, will be taken by us, i.e. four annas share by you and twelve annas share by me, from the Zemindar of the said Mehal, the Maharajah of Kishnagur, for a consideration of Rs. 11,000; I have paid to the said Maharajah a sum of Rs. 2,000, in the shape of earnest-money, and have got a Byna Puttro' executed in my favour on the 12th Kartick of the present year. According to the terms of the Byna Puttro,' the balance of the consideration-money must be paid on the 12th Aughran next. I do, therefore, promise by this agreement, that on your accompanying me in the presence of the said Maharajah, before the said 12th Aughran, with your four annas share of the consideration-money, namely, Rs. 2,750, and on paying the other expenses in proportion to your said share, we will get a joint deed of the Putnee executed. If, however, you do not pay the money within the prescribed time, then you shall have no claim to that share of the said Mehal; and if the Maharajah, according to the conditions of the Byna Puttro, execute a deed for the entire sixteen annas only in my name, and do not execute a Putnee Pottah specifying therein your share, still I will execute in your favour a separate deed after receiving from you your share of the consideration-money of the Putnee, and make you my co-sharer to the extent of four annas. If I wilfully refuse to do so, then this deed will be a deed of your purchase of the said four annas share of the Putnee, and you will take possession of that share of that Mouzah as Putneedar, and my objections against that will be rejected: for this purpose I execute this 1866. ESHENCHUNDER SINGH v. SHAMACHURN BHUTTO. 1866. ESHENCHUNDER SINGH V. SHAMACHURN Ekrar. Dated 15th Kartick, 1265 B.s. Written Koilaschunder Singh, by his answer, submitted first, that the Ekrar, on which the claim was based, was an agreement without any consideration; secondly, that it was a forgery, and moreover was neither drawn on a stamp nor registered; thirdly, that he got a Byna Puttro (earnest Bond or deed) executed by the Maharajah to take the property claimed, in Putnee, with or by means of his brother's (the first Appellant) self-acquired money; and fourthly, that the money belonged to his brother; but that nevertheless, as he (Koilaschunder) was living in commensality with him, was entitled to a share therein. The answer of the Appellant stated, first, that he sent Koilaschunder as his Agent for negotiating the Putnee settlement, which he wanted to take for himself with his own funds, consequently he had no power to dispose of any part of the same; secondly, that Koilaschunder got the Byna Puttro executed in his own behalf, with the object of getting a share of the property; that when he came to learn of this, he procured the cancelment of the same, and got the Putnee Pottah executed in his own name, and was then in possession of the Putnee; that Koilaschunder had no right or interest in the property in question; and thirdly, that the Ekrar propounded by the Plaintiffs was a fabrication; and even if it were genuine, he was not bound by it. The Respondents, the Bhuttos, afterwards presented a petition in the suit, to the Principal Sudder Ameen, which stated, that the Maharajah having taken the earnest-money, Rs. 2,000, from Koilaschunder, he executed the Byna Puttro in Koilaschunder's name; and that the Maharajah having, in contradiction to the terms and conditions thereof, executed a Putnee Pottah of the whole sixteen annas in favour of the Appellant alone, it was necessary to include the Maharajah in the suit. The petition then prayed that an Order might be passed for bringing in the Maharajah as a Defendant, according to secs. 29 and 73 of Act, No. VIII. of 1859. Principal Sudder Ameen, on this petition, ordered the Maharajah to be made a Defendant. The Maharajah did not appear or file any answer in the suit. The The Appellant made a deposition in the suit, wherein he stated, that he carried on trade in Calcutta by means of money given to him by his Motherin-law, and that he took the Balooka Putnee with that money, which was his self-acquired money, and none other had any right to it; that he, being absent in Calcutta, sent the Rs. 2,000, as Byna through the Respondent, Koilaschunder, and afterwards went himself personally, with the remainder of the consideration-money, to the house of the Zemindar, and got from him the Putnee lease in question executed in his own name; and, lastly, that one Birressur Mookerjee was subsequently appointed his general MochIn reply to a question put to him on behalf of the Plaintiffs, the Appellant stated:-"I am not aware whether any proposals about this Putnee were made or not between Biressur and Plaintiffs, Shamachurn and Koilaschunder before taking the Putnee." He then, after being questioned as to the handwriting of some letters, deposed as follows:-"My Brother Koilaschunder never mentioned to me about giving tar. 1866. ESHEN CHUNDER v. SHAMACHURN 1866. ESHEN CHUNDER V. SHAMACHURN the Ekrar: I know nothing about it. Balooka is The Respondent, Koilaschunder, also made a deposition, wherein he stated that he never gave the Ekrar, nor signed it; that the Putnee was taken with Eshenchunder's self-earned money; and that before it was taken he had no proposals with any one about the Putnee; and that he did not go along with the Plaintiff to take the Putnee. The Respondent, Shamachurn Bhutto, made a deposition after the above Defendant's two depositions had been taken. In that deposition he stated, that it was settled between Eshenchunder Birressur, Mookerjee, and himself, on the part of his Father, that the three should take the Putnee of the villages; that afterwards, at the time of making the Putnee settlement, he and Koilaschunder went to the Maharajah's house and settled, as above in the plaint alleged; but he admitted that the earnest-money, Rs. 2,000, was paid by Koilaschunder, and also that the Byna Puttro (earnest Bond or deed) was taken in the name of the latter alone from the Maharajah; and also that the Ekrar was not executed until two or three · days after the execution of the above Byna Puttro. He then proceeded in his deposition as follows:— "A long time before the expiration of the period allowed in the Byna Puttro, Eshen and Koilas (meaning this Appellant and the above Respondent) went to the Rajbatty (the house of the Maharajuh) and got a Pottah of the entire 16 annas executed in |