PERSAUD v. MUSSUMAT BABOOEE MUNRAJ KOONWEREE. 1856. the fear of eternity before their eyes, depose that they HUNOOMAN- acted under the tutorage of Defendant, and did not acquaint the Plaintiff with the transaction. Then what more is required to prove their attachment and subservience to the Ranee? Indeed, from the fact that the Defendant has been in that possession, the settlement was concluded with him, that Ranee Degumber Koonweree and Lal Inderdowun Singh, deceased, remained silent for so long a period, it is clearly inferred that the statement of the Defendant and his witnesses is true. On these grounds my opinion is, that there can be no doubt that the Bond was made with the knowledge of Ranee Degumber Koonweree, the Manager of the Raj, and that the statement of Plaintiff and of her witnesses is made with dishonest intentions. Several witnesses have been adduced on the part of the Plaintiff, who state that Ranee Degumber Koonweree and her predecessors had no occasion to borrow money. This assertion is sufficiently rebutted by the exhibits filed on the part of the first-named Defendant. It is opposed to common sense to suppose that although the Buy was to be maintained and that the expenses of the Rajas were great, and moreover that a woman was the manager, that there should have been no occasion to borrow money. Indeed, copies of papers obtained from the office of Register of Deeds, and more especially the decree of the Moonsif of Captain Gunj, dated 21st of September, 1847, is conclusive evidence to prove the Plaintiff's statement to be false. The second point remains to be considered, namely, whether the mortgage pleaded by Defendant is valid and of effect touching the villages in dispute. The record shows that Ranee Degumber Koonweree was the manager of the Raj PERSAUD v. MUSSUMAT MUNRAJ KOONWEREE during the infancy of Lal Inderdowun Siugh, and that 1856. all her acts and deeds are recognised in the Revenue HUNOOMANDepartment and in the Special Commission. During her management, with the object of saving the estates, of paying the debts of her predecessors, and of satisfy- BABOOEE ing the claims of Mahajuns, the mortgage Bond was executed. Seeing, moreover, that the settlement was also made with the Defendant by the Settlement Officer, that a Bond of this nature does not extinguish the title of the infant, it follows then, as a matter of justice and equity, that the Bond is valid and of effect. For if it be held to be invalid, two difficulties will arise-First, that when the Raj is under the management and guardianship of a person, should necessity arise to take money on loan in order to pay the Government Malgoozaree and to pay other necessary expenses of the Raj, no person will be willing to lend the money, and the loss of the estates will be the consequence. Secondly, should any person, on the faith. of the Raj, and satisfied that there are assets sufficient to liquidate his loan, advance money to the manager of the Raj, and save the Raj from being lost, and subsequently, should this fact be proved, and on the suit of the proprietor, on his attaining his majority, he should be able to repudiate the loan, it would be gross injustice. There next remains to consider the fact that the name of Lal Inderdowun Singh is associated with that of Ranee Degumber Koonweree in the mortgage Bond. I remark that this is not a suit brought by the Defendant, consequently this point need not be tried and disposed of, since in my opinion the claim must be dismissed; and precedents adduced by the Plaintiff do not apply to this case: on the contrary, it is a legitimate inference that these precedents support my 1856. PERSAUD view of the case. Finally, since the Plaintiff's claim HUNOOMAN- is dismissed by me, there remains no necessity for an inquiry into the matter of mesne profits. On the ground above stated, it is ordered, that the Plaintiff's claim be dismissed, with costs." v. MUSSUMAT BABOOEE MUNRAJ KOON WEREE. From this judgment the Respondent appealed to the Sudder Dewanny Adawlut at Agra. The principal grounds of appeal were, that Lal Inderdowun Singh, at the time the Bond was made, was a mere child, that the Rance was not designated as guardian in the Bond, but as proprietor, and that the Bond, therefore, was totally invalid, since, under the Regulations, or the Hindoo law, a deed made by an infant could have no effect or force; that even admitting the Bond to be genuine, Rance Degumber Koonweree was not competent by the Hindoo law to make such a Bond; that under the law of the Shastras, the son of the deceased living, the Rance Degumber Koonweree could have no personal title to the property, but as the son was an infant she was competent to act as guardian; but as such she was not competent to make such a transfer of the property as had been made; and, lastly, that the Rance was not cognizant of the Bond being executed or of the transaction. The appeal, which was referred to the full Court, came on for hearing on the 22nd of January, 1852, when the Messrs. Begbie, Deane, and Brown, the Judges of the Sudder Dewanny Court, by their judgment, held, that the question which the Court had to deal with, related to the right of the Ranee to exccute the deed before them. They remarked that the deed itself assigned to the Rance a proprietary character, and that it was not among the Defendant's pleas that the Rance acted as her son's guardian, but 1856. PERSAUD V. MUSSUMAT BABOOEE MUNRAJ KOONWEREE. that he claimed for her the proprietary character both in his answer to the plaint, and still more broadly and HUNOOMANunreservedly in his answer to the pleadings in appeal. That the Plaintiff, on the other hand, had, throughout, argued for the avoidance of the Bond by denying the Runee's proprietary right in any way; and such being the issue joined between the parties, the Court, looking to the fact that the estates in dispute unquestionably devolved on the Plantiff, to the exclusion of the Rance on the death of the Plaintiff's father, Raja Sheobuksh Singh, had no hesitation in declaring that even on the assumption that the Rance voluntarily executed the Bond and received full consideration for it, the Bond was not binding on the Plaintiff, and that neither he nor his ancestral property could be made liable in satisfaction of it. That it was needless for the Court, their inquiries being thus stopped in limine, to enter on the real merits of the transaction as between the Rance and IIunoomanpersaud Panday; but that a final judgment could not then be pronounced, the amount of the waisilat (mesne profits) being disputed, and no investigation on that point having been made by the Court below. The Court, therefore, decreed to the Plaintiff, in alteration of the Principal Sudder Ameen's judgment, so much of his claim as related to the avoidance of the Bond, and remitted the suit, with directions, to the Principal Sudder Ameen, that he determined what amount of mesne profits from the date from which they were claimed the Plaintiff was entitled to recover. It was ordered, therefore, " that the judgment of the Principal Sudder Ameen of Goruckpore, dated 23rd of December, 1850, be amended ; that the Bond set up by the Defendant be set aside; and that a decree do pass in favour of Plaintiff, and 1836. that the costs be awaided in the decree to the extent HUNOOMAN- of the jumma of the property claimed." PERSAUD บ. PANDAY Against this decrce the present appeal was MUSSUMAT brought. BABOOEE KOONWERES. Mr. R. Palmer, Q.C., and Mr. Leith, for the Mr. Wigram, Q.C., Mr. Bagshaw, Q.C., and Mr. The Principal points submitted to the Court in the argument, were: First. As to the validity of the mortgage Bond, whether it was executed by the Rance at all, and further, as the Bond purported to be executed by her in a beneficial character, if it constituted a valid incumbrance on the Raj. Second. Whether the incumbrance created by Raja Sheobuksh Singh entitled the Appellant to retain possession of the villages and lands in the mortgage Bond executed by him until such incumbrance was paid off, or whether it was a personal charge only on the heir; and the Appellant had not a right to stand in the place of the Rance in respect of the monies he had advanced. Third. Whether it was competent by the Hindoo law to the Rance, as the registered proprietor of the family estate and curator of the infant's property, to charge ancestral estates by way of mortgage, in consideration of the advances made for the benefit of the minor's estate, to prevent a sequestration and probable confiscation. Fourth. Whether after the fuctum of the mortgage |