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1836.

PERSAUD
PANDAY

v.

BABooEE

MUNRAJ KoonWEREE

Jeyt Soodee Poornumashee F. S. 1244, conveying to him in usufructuary mortgage the villages Dee Mar, Hunoom anDaree Deha, and Mohunder, also a pottah for the same, bearing the same date ; the consideration for the whole

MUSSUMAT being Rs. 5,000, of which sum Rs. 1,000 was the balance due on the original account, and Rs. 4,000 the amount of incumbrance paid off by the Appellant. In F. S. 1246 a final adjustment of accounts took place between the Appellant and Ranee Degumber Koonweree, in which the items stood as follows:Monies paid by Appellant to Tuhsilduh on account of Government revenue due from the Raj, Rs. 5,186; amount of monies secured by mortgage of Mohunder, Daree Deha, and lands in Dee Mar, Rs. 5,000; amount secured by mortgage of Bundheres, Rs. 1,000; amount secured by three several Bonds of Ranee Degumber Koonweree for Rs. 1,000 each, Rs. 3,000; amount due, being balance of Rs. 1,500 secured by Bond, Rs. 814; making in the whole, Rs. 15,000. On this balance having been ascertained, the Ranee and Lal Inderdowun Singh, then a minor, by a mortgage Bond, dated Assar Soodee Poornumashee F: S. 1246, conveyed to the Appellant in usufructuary mortgage Daree Deha, Dee Mar, Bundeheree, Rajabaree, Mohunder, and Gundherea Faiz, which transaction formed the subject of the present suit. In this Bond the Ranee was described as being possessed of the mortgaged property in proprietary right.

Apart from these transactions of loan and mortgage, Raja Sheobuksh Singh granted to the Appellant in Birt some thirty beegahs of waste land lying in Bundeheree, in consequence of which grant Appellant expended much money in reclaiming the waste, erect

1856.

PERSAUD
PANDAY

v.
MưSSUMAT
BABooEE
MUNRAJ

ing buildings, and otherwise improving the land. HUNOUMAN- Runee Degumber Koonweree afterwards, finding that

Appellant possessed no evidence of his Birt title, compelled him to pay Rs. 500 for a Birt puttee, which she executed. Besides this portion of Birt

lands the Appellant had purchased three and a half koonWEREE.

beegans, lying in Dee Mar, from Gosain Musan Nath Fakir, to whom they had been granted for religious services by Raja Pirthee Pal Singh, the ancestor of the original Plaintiff.

On the 10th December, 1849, Lal Inderdowun Singh, having then attained his majority, filed a plaint in the Zillah Court of the Principal Sudder Ameen of Goruckpore against the Appellant and Ranee Degumber Koonweree, for the possession of Zemindary right, unincumbered by Birt, of Darce Deha, Mohunder, Gundherea Faiz, and of certain lands lyingin Bundeheree, Dee Mar, and Rajabaree; also to set aside the mortgage Bond before mentioned, bearing date Assar Soodee Poornumashee F. S. 1246, and to oust the Appellant. The plaint alleged that Ranee Degumber Koonweree had acted as the guardian of the Plaintiff and managed his affairs for him during his minority; that she being a Purdah Nusheen and totally ignorant of matters of business, had been imposed on and deceived by her servants and agents, who had, without her knowledge or authority, made contracts of loan and mortgage with divers parties, and effected incumbrances on the Plaintiff's property ; that the Appellant, among others, had by collusion and fraud obtained from them, under pretence of mortgage, the possession of certain lands and villages; that the villages and lands so unlawfully possessed by the Ap

1856.

HUSOOMANA
PERSAUD
PANDAY

MUSSUMAT
BABOOEE

MUNRAJ
KooxWEREE.

pellant were component parts of Plaintiff's ancestral Raj, and inalienable by the act of a guardian.

The answer of the Appellant set forth the circumstances above stated under which the debts were contracted and the mortgage Bonds executed, and traversed the allegations respecting the Ranee's ignorance of matters of business and the Appellant's collusion with the Ranee's agents; and alleged that the Plaintiff, in F. S. 1255, after he had attained majority, had personally acknowledged the validity of the mortgage Bond and the debt due under it; that the Appellant in expressing a desire to redeem Gundherea Faiz and Baree (which second village was not included in the suit), had proposed to execute a fresh mortgage of Mohunder, Darec Deha, and the lands in Bundeheree, Dee Mar and Rajubaree, and that the Plaintiff, since attaining majority, had borrowed money on Bond from the Appellant, and the Appellant by his answer finally insisted that the amount of mesne profits was greatly exaggerated.

The answer of the Ranee Degumber Koonweree averred ignorance of the matters in issue, asserting that the Appellant had been for some time employed by her in the capacity of Manager.

Lal Inderdlowun Singh having died, Mussumat Babooee Munraj Koonweree, the Respondent, was admitted by the Court to prosecute the suit as guardian of Lal Seetla Buksh Buhadur Singh, the infant son and heir of Lal Inderdowun Singh.

By a proceeding of the Principal Sudder Ameen of Goruckpore, had on the 3rd of April, 1850, the issues to be disposed of were settled. The first was upon a point of practice arising out of an alleged irregularity of the replication ; the second was, whether the mortgage Bond was the act and deed of Ranee Degumber

1856.

PERSAUD
PANDAY

V.
MUSSUMAT
BABOOEE

MUNRAJ KOONWEREE.

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Koonweree, and whether it ought to have effect against HUNOOMAN- the mortgaged villages ; also if the mesne profits, as

stated, were correct.

Evidence was entered into on both sides, the effect of which is contained in the Sudier Ameen's judgment.

On the 23rd of December, 1850, the suit was heard by the Principal Sudder Ameen, who by his judgment and decree dismissed the suit. The material part of his judgment was as follows :--"My opinion on the second point is this—That the mortgage Bond was written, and that it exists at this time, neither of the parties in their pleadings call it into question ; for the witnesses on both sides depose that it was executed on the part of Ranee Degumber Koonweree and Lal Inderdou'un Singh. The only dispute is, that the Plaintiff avers it was made without the knowledge of Ranee Degumber Koonwerèe, the second-named Defendant; while the first named Defendant declares that Ranee Degumber Koonweree was cognizant of its execution. My opinion is, that the Plaintiff's plea of the Bond having been made without the knowledge of Ranee Degumber Koonweree, the second-named Defendant, is opposed to facts, and on several grounds inadmissible. First; several witnesses, among whom are some who attested the Bond, others who were percipient witnesses of the transaction, have deposed on both sides, especially some who are the servants, dependants, and Malgoozars of the Raja, have deposed to the fact. It is, therefore, impossible that so many persons should be aware of the transaction, and yet the Ranee and Raja remain in ignorance, as stated by the Plaintiff's witnesses. Secondly; had this Bond, by which certain property was mortgaged, been made without the Ranee's knowledge, seeing that she was the Manager of the Raj,

1830.

PERSAUD
PANDAY

V.
MUNSTMAT
BABOOEE

the Defendant would not have been able to get possession of the property mortgaged by the Bond ; for when HUXOOMANthe Defendant attempted to take possession he would have been opposed by the Rance. Thirdly ; that at the settlement the Defendant's name would not have been recorded as mortgagee. Fourthly ; assuming the

MUNRAJ

KOONWEREE. Plaintiff's statement to the effect that the Kurindas colluded with the Defendant, and executed the Bond as he dictated, and that they moreover filed a petition aclmitting the mortgage in the settlement, it is obvious that there was nothing to prevent the Defendant, in collusion with the Kurindus, from fabricating a deed of sale conveying the disputed property to him : he would not, seeing that he had such great influence, have been content with the mortgage Bond. Hence it is clear to me that Ranee Degumber Koonweree, being in want, and also wishing to satisfy former debts in order to preserve the estates in her hands, mortgaged the estates in order to pay the debts and put the Defendant in possession ; otherwise it is not possible to credit, that in the face of such dishonesty on the part of the Karindas, she should refrain from complaining in the Courts, and preventing Defendant from entering upon the estates; for her experience and sagacity are demonstrated by the fact that she has saved the estates of the Raj, and has continued to manage them herself to the present time. Fifthly ; were the plea of the Plaintiff to the effect that the Karindas were ungrateful and dishonest, they would not have given their evidence in favour of the Runce as supporting her statement : they would unequivocally have declared that the Bond was made with the knowledge and sanction of the Rance. These witnesses, after the lapse of so long a period, not having VOL. VI.

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