1856. บ. difficulties which occur to us were brought promiARDASEER nently before that Court, or that, after duly conCURSETJEE sidering them, the Judges came to the conclusion that PEROZEBOYE they were unimportant. There is no such course of decision as should make us hesitate in giving effect to our own opinion. We think that the protest should be sustained, and the judgment reversed on the grounds we have stated, and we do not deem it necessary to enter upon a discussion which chiefly occupied the time of the Court below, whether the parties to this suit were or were not persons who, prior to the date of the Letters Patent establishing the Court, were described and distinguished in the Royal Charters of Justice. by the appellation of "British subjects." Whatever may, in such respect, be their description, our opinion is that this suit cannot be entertained. The Lords of the Committee will, therefore, humbly report to Her Majesty as their opinion, that the Order of the Supreme Court of Judicature at Bombay, of 5th July, 1854, whereby the protest of the Appellant was overruled, ought to be reversed, each party paying his and her own costs of this appeal. On appeal from the Sudder Dewanny Adawlut at Agra, THIS was an appeal from a decree of the Sudder * Present: Members of the Judicial Committee, The Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. the Lord Justice Turner, and the Right Hon. Sir John Patteson. Assessor, The Right Hon. Sir Lawrence Peel. otherwise, the recorded issues do not enable the Court to try the whole case on the merits, the suit ought not to be disposed of, but an opportunity should be afforded by amendment, and, if need be, by adjournment, for decision upon the real points in dispute. The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindoo law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that a prudent owner would make in order to benefit the estate, a bonâ fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the VOL. VI. x 1 1856. Singh, since deceased, and now represented by the HUNOOMAN- Respondent, his son, against the Appellant, the chief Defendant, and Ranee Degumber Koonweree. PERSAUD PANDAY υ. MUSSUMAT BABOOEE MUNRAJ KOONWEREE. The object of the suit was, first, to recover possession of certain ancestral estates called Daree Deha, Mohundur, &c., situate in the Pergunnah Nugger Bustee, in the District of Goruckpore, with mesue profits and interest; and secondly, to set aside a mortgage Bond, dated Assar Soodee Poornumashee, Fuslee (July, 1839), and to cancel the Appellant's name as mortgagee in the Collector's records. lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause. A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably-credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money. The mere creation of a charge by a Manager securing a proper debt, is not to be viewed as an improvident act; and a bona fide creditor is not to suffer when he has acted honestly and with due caution, but is himself deceived. No general rule can be laid down upon whom the onus lies to allege and prove the bona fides of a Manager of an estate whose title to alienate is qualified in contracting debts and resorting to loans: the presumption proper to be made varies with the circumstances, and is lated and dependent upon them. regu But if the mortgagee is enforcing his right against the heir, he must allege and prove the facts which embody the representations made to him of the alleged needs of the estate, and the motives influencing the loan. A mortgage Bond to secure a sum of money lent to a party deceased, in substitution of a previous deed executed by a former proprietor, by way of further security for a sum advanced by the mortgagee to the widow of the deceased, charging part of the ancestral estate; described the widow as having a beneficial proprietary right in the mortgaged estates, although, in fact, she was only the curator of her son, a minor, the deceased's heir: Held, that the description, though inaccurate, was not such an assumption of ownership as was derogative to the rights of the heir, but was to be viewed as an act done by her as curator on behalf of the heir; and as the mortgage was beneficial to the estate, it was binding upon the heir. Mode of taking account when the mortgagee was in possession of the estates as mortgagee, and also as lessee under a lease. The circumstances under which the suit arose were these:-- 1856. HUNOOMAN PERSAUD บ. MUSSUMAT ВАВООБЕ MUNRAJ The Appellant, a Banker, carrying on business in the District of Goruckpore, was in the habit of making advances and loans to the neighbouring landholders. His father, Buccus Panday, before him, had been en- KOONWEREE. gaged in the same business, and in the course of the latter's transactions he had advanced the sum of Rs. 8,002, to Raja Jobraj Singh, the paternal ancestor of Lal Seetla Buksh Bahadur Singh, of whom the Respondent was guardian. On the occasion of this advance, Raja Jobraj Singh executed several deeds, conveying certain villages, part of his estate, by way of usufruct mortgage, to the Appellant's father. In 1235, Fuslee, after the death of Raja Jobraj Singh, an adjustment of accounts took place between Appellant's father and Raja Sheobuksh Singh, the son and heir of Raja Jobraj Singh, when a balance of Rs. 5,252, as against Raja Sheobuksh Singh, was agreed on. For this sum Bonds were given and certain lands and villages were assigned to Appellant's father by Raja Sheobuksh Singh by way of usufruct mortgage. Raja Sheobuksh Singh died shortly after this transaction, leaving an only son, Lal Inderdowun Singh, an infant, whereupon his widow, Ranee Degumber Koonweree, assumed the proprietorship of the estates of her late husband, and the guardianship of his infant son. Her name was registered with that of Lal Inderdowun Singh, the infant, on the records, until he attained his majority, when a deed of gift having been executed by the Ranee in his favour, her name was removed from the Government register of landowners by a petition for mutation in the ordinary way. In 1239, Fuslee, after the death of Raja Sheobuksh Singh, 1856. PANDAY บ. MUSSUMAT BABOOEE MUNRAJ KOONWEREE. another adjustment of accounts took place between HUNOOMAN- the Appellant (who had in the meantime succeeded PERSAUD to the business and property of his father, then deceased) and Ranee Degumber Koonweree, as the representative of her late husband, in which a balance of Rs. 3,200 was agreed to be debited to the Ranee. In the same year, the family estates being in arrear of the revenue payable to Government, and in danger of sequestration by reason of such arrear, the Appellant, under authority of an order from Ranee Degumber Koonweree, paid into the local Collectorate, to the account of such arrears, Rs. 3,000, for which sum the Ranee afterwards executed three several Bonds, of Rs. 1,000 each, and bearing date respectively Phagoon Soodee Poornumashee F. S. 1243, Assar Soodee Poornumashee F. S. 1243, and Katikbudee Poornumashee F. S. 1244. Previous to executing the abovementioned Bonds, the Ranee had, in consideration of Rs. 1,200, part of the balance before found to be due to the Appellant, and of a further loan of Rs. 600 from Goordial Panday (which was afterwards repaid by the Appellant), executed to the Appellant and Goordial Panday a Bond and deed of mortgage, conveying to them the Mouzas Mohunder and Dee Mar in usufruct, granting at the same time a lease of the same to him for the whole term of the mortgage. In the month Sawun, in the same year, the Ranee executed a mortgage to the Appellants, charging 200 beegahs of land lying in Bundeheree, in consideration of Rs. 1,000, part of the balance of Rs. 2,000, then remaining unsecured. In F. S. 1244, In F. S. 1244, the Appellant, having paid off certain incumbrances to the amount of Rs. 4,000, which the Ranee had previously effected on the lands of the Raj, received from her a Deed dated |