1854. RABUTTY SIBCHUNDER of one Dwarkanauth Sain, a Hindoo inhabitant of SREEMUTTY Calcutta, deceased; she was also the widow of Bheemchurn Sain, the father of Dwarkanauth Sain. Bheemchurn Sain at his decease left Radanauth Sain, his MULLICK. grandson, and Obhoychurn Sain, Sreenauth Sain and Dwarkanauth Sain, his sons, his joint-heirs and legal personal representatives by the Hindoo law, him surviving. Bheemchurn Sain was in his lifetime, and up to within a short period before his death, jointly seised in estate with his only brother, Bissumber Sain, since deceased. These two brothers mutually agreed to make a partition and division of all their joint, real and personal estate, property and effects, the particulars of which partition and division were then fully agreed upon and defined. The share of Bheemchurn Sain in the personal estate to be so held by him in severalty, amounted to Rs. 180,000, and in addition certain parcels of the joint real estate were at the same time apportioned to him, to be also held in severalty. Before receiving actual possession in severalty of such real and personal estate, Bheemchurn Suin died, having first made his Will, whereof he appointed Bissumber Sain, his brother, sole executor; where the situation of the parties and the rights of the widow by the Hindoo law, and that, as the deed recited that she claimed and received the money as her husband's share in the joint estate in her character as his hoiress and legal personal representative, such words must be construed to mean, that it was to be held by her in severalty from the joint estate; and as a Hindoo widow she had only a life estate in the corpus, the samo at her death devolved as assets of her deceased husband upon his personal representative in succession. In reversing such decree, the Judicial Committee directed that interest, at the usual rate allowed by the Supreme Court, should be allowed from the death of the widow. Appellant's costs in the Court below allowed, and suit referred back to the Master of the Supreme Court to tax the same.. 1854. RABUTTY SIBCHUNDER upon the Appellant, as the widow of Bheemchurn Sain, by the Hindoo law became entitled to main- SREEMUTTY tenance out of and as a charge on the whole of the share apportioned to him of the joint estate and effects, and also, on a partition of such shares among the grandson and sons of Bheemchurn Sain, to a share, equal to the share of each of them as such heirs and personal representatives of Bheemchurn Sain, subject only to the provisions contained in the Will. Bissumber Suin, in whose possession such share of the joint, real and personal estate had continued, paid to Radunauth Sain, Obhoychurn Sain, and Sreenauth Sain respectively, as three of the heirs and personal representatives of Bheemchurn Suin deceased, one-fourth share each of the estate so apportioned to Bheemchurn Sain; but the payment and delivery of the remaining one-fourth, constituting the share of Dwarkanauth Sain, was postponed in consequence of his minority. In 1841, Dwarkanauth Suin died intestate, without issue, and still a minor, leaving Zoahra Jeebun Dossee, his sole widow and immediate heiress-at-law and personal representative, him surviving. Some time in the year 1843, Bissumber Sain died intestate, leaving Gooroochurn Sain (who was also a son of Bheemchurn Suin) his adopted son, and as such his sole heir and personal representative. On his death, Gooroochurn Sain took possession of the whole of the estate, property and effects, including the share of Dwarkanauth Sain, which had remained in the possession of Bissumber Sain up to the time of his decease. Some time after this event, Zoahra Jeebun Dossce, DOSSEE ν. SIBCHUNDER 1854. as the widow and heiress of Dwarkanauth Sain, apSREEMUTTY plied to Gooroochurn Sain for payment and delivery RABUTTY of the share and proportion to which she, in right of her deceased husband, was entitled to out of the MULLICK. share and proportion belonging to Bheemchurn Sain. Disputes and differences took place between them as to the exact value of her share and proportion in right of her deceased husband in the joint estate, and she threatened to institute legal proceedings for the recovery thereof. With the view to avoid the expense and delay of legal proceedings, it was agreed by her and Gooroochurn Sain that it should be taken and admitted that she should be considered as entitled to the sum of Rs. 59,000 in full payment and discharge of all demands, legal and equitable, which she then had or could have against Gooroochurn Sain in respect of the joint estate, or her share therein in right of her deceased husband, and in consideration of such sum she agreed to waive the taking an account of the joint estate, and to forego all legal proceedings. Accordingly, and in order to carry out and give effect to this agreement, an indenture of compromise and release in the English form, dated the 24th of April, 1849, was made by Zoahra Jeebun Dossee and Gooroochurn Sain, and in that indenture the representatives, immediate and in reversion of the several shares of Bheemchurn Sain and Bissumber Sain deceased, with the exception of the Appellant, joined as releasing and executing parties. This deed, after reciting to the effect before mentioned, went on to recite, that Zoahra Jeebun Dossec, as the widow and heiress of Dwarkanauth Sain de RABUTTY V. SIBCHUNDER ceased, had applied to and requested Gooroochurn 1854. Sain to pay and deliver to her the share and propor- SREEMUTTY tion to which she in right of her deceased husband Dwarkanauth Sain was entitled to out of the share and proportion belonging to Bheemchurn Sain as MULLICK. aforesaid that disputes and differences had taken place between Zoahra Jeebun Dossee and Gooroochurn Sain as to the exact amount in value of her share and proportion in right of her deceased husband, and she had threatened to institute legal proceedings for the recovery of her rights and interests in the premises; that with the view to avoid the expenses and delay of legal proceedings, it had been mutually proposed and agreed by and between Zoahra Jeebun Dossee and Gooroochurn Sain, that it should be taken and admitted on both sides respectively, that Zoahra Jeebun Dossee should be considered as entitled to the sum of Rs. 59,000 in full payment and discharge of all demands, legal and equitable, which she, Zoahra Jeebun Dossec, then had, or could, should or might have against Gooroochurn Sain in respect of the joint estate, or her part and share or interest therein in right of her deceased husband; that in consideration of such sum of Company's Rs. 59,000, to be paid to her by Gooroochurn Sain as thereinafter mentioned, she, Zoahra Jeebun Dossee, had agreed to waive the taking of a full and general account of the joint estate, and to forego all legal proceedings; and it then went on to declare that Gooroochurn Sain, previously to the execution of these presents, had paid into the hands of Zoahra Jeebun Dossee the full sum of Rs. 59,000, which sum was thereby mutually declared and agreed by and between all the parties respectively to those presents to be 1854. the sole and exclusive property of Zoahra Jeebun SREEMUTTY Dossee, "for her own absolute and separate use;" RABUTTY and in consideration thereof she had agreed to exccute such release, which was in the usual form of a MULLICK. mutual and general release of all claims. DOSSEE V. SIBCHUNDER The sum of Rs. 59,000 was paid to Zoahra Jeebun Dossee by Gooroochurn Sain. On the 3rd of January, 1850, Zoahra Jeebun Dossee died without issue, leaving the Respondent, her father, her heir and personal representative, who possessed himself of this sum of Rs. 59,000, claiming to be entitled thereto under a deed of gift made in his favour by Zoahra Jeebun Dossee. In consequence of the claim of the Respondent, the Appellant, as the heiress-at-law and representative of Dwarkanauth Sain, filed a Bill against him in the Supreme Court at Calcutta, alleging that the sum of Rs. 59,000 was received by Zoahra Jeebun Dossee, as a Hindoo widow, to be held by her in such capacity, and not otherwise; that upon her death the Respondent claimed the same under a deed of gift from her, and wrongfully treating it as her absolute property, appropriated the same, and the securities upon which the same was invested; and the Bill prayed, that the Appellant might be declared to be entitled, as the mother and heir in reversion upon the death of Zoahra Jeebun Dossee, to the sum of Rs. 59,000, and the Respondent decreed to account to her for the same. The Respondent, by his answer, admitted possession of the sum in question, which he submitted was the absolute property of Zouhra Jeebun Dossee in her lifetime, under the deed of compromise and release, and formed no part of her deceased husband's estate, |