and that the same had been assigned by her to him by a deed of glft, dated the 4th of December, 1849. 1854. SREEMUTTY SIBCHUNDER The suit came on for hearing on the 14th of Junuary, 1852, together with another suit, in which the Respondent was the Plaintiff, and Sreemutty Rabutty MULLICK, Dossee, Gooroochurn Sain, Sreenauth Sain, and Radanauth Sain, were Defendants, and in which the Respondent, in the event of the money not being treated as being paid for her sole use and benefit, impeached the whole transaction as a fraud upon his daughter, and sought to re-open the accounts, when the Supreme Court dismissed both suits respectively, with costs. A rehearing of the two suits was afterwards ordered. The suit of the Appellant was alone re-heard on the 14th of April, 1852, when the Supreme Court amended the decree of the 14th of January, and deereed separately in that suit. The judgment of the Court upon the rehearing was delivered by the Chief Justice (Sir Lawrence Peel). The material part was in these terms: "It is insisted, that according to the Hindoo law, as laid down in this Court, and affirmed on appeal to the Privy Council, Zoahra Jeebun Dossee was competent to come to an account with the persons accountable for her husband's estate, and to receive and retain during her life, possession of that estate, and that the Plaintiff as reversioner is entitled to follow those assets in the hands of one claiming as done under, or as the representative of, Zoahra Jeebun Dossec. do not dispute these general propositions, or deny that if, upon the construction of the deed and the other evidence in the cause, it appeared that the funds had come to the hands of Zoahra Jeebun Dos We DOSSEE 2'. SIBCHUNDER 1854. see, upon a fair accounting, or even upon a comproSREEMUTTY mise which the Plaintiff saw fit to adopt, as assets RABUTTY of her husband, to be enjoyed by her as his widow and representative, this Bill might be rightly conMULLICK. ceived, and the Plaintiff entitled to follow the funds. in the hands of the Defendant. But if, upon the true construction of the deed and evidence, the monies must be taken to have been paid as the price of a compromise to and for the absolute use and benefit of Zoahra Jeebun Dossee, then the further questions arise, whether the transaction be impeachable at all, and, if impeachable, whether the Plaintiff can impeach it in a suit constituted as this is. We are clearly of opinion that she cannot affirm the transaction for one purpose and impeach it for another. The construction of this deed is, therefore, the principal, if not the only, substantial question in the cause. The deed is made between Zoahra Jeebun Dossee, described as the sole widow, heiress and legal personal representative of Dwarkanauth Sain of the first part, the other co-heirs of Bheemchurn Sain of the second part, and Gooroochurn Sain of the third part. After reciting the circumstances of the family, and the devolution of the property according to the facts above stated, it recites, that disputes and differences had taken place between Zoahra Jeebun Dossee and Gooroochurn Sain, touching the amount in value of her share and proportion in right of her husband; that she had threatened legal proceedings for the recovery of her rights and interest in the premises; that to avoid the expense and delay of legal proceedings, it had been agreed that she should be considered as entitled to Rs. 59,000, in full payment and discharge of all demands, legal and equitable, which 1854. RABUTTY v. SIBCHUNDER MULLICK. she then had or might have against Gooroochurn Sain in respect of the said joint estate, or her part or share SREEMUTTY or interest therein, in right of her husband;' that in consideration of that sum she had agreed to waive all accounts, and that Gooroochurn Sain had paid to her the Rs. 59,000, which it was agreed, not only by him but also by the parties to the deed of the second part, should be the sole and exclusive property of Zoahra Jeebun Dossee, for her own absolute use and benefit; and that in consideration thereof she had agreed to execute the release thereinafter contained. Then follows a recital, that the parties of the second part, having also received their respective shares, had agreed to execute the mutual releases thereinafter contained; and the witnessing part, which, in the consideration clause, again expresses the agreement of all parties that the money was to be the sole, absolute, and proper monies of Zoahra Jeebun Dossee, to her separate use, and contains the mutual releases of all parties to the deed, and also provisions, both empowering the other parties, jointly and severally, to use the name of Zoahra Jeebun Dosse, as the widow and representative of her husband, in any suit that may be necessary for the recovery of the outstandings of the joint estate, and binding them to indemnify against the consequences of such use of her Various arguments, more or less ingenious, have been addressed to us to explain away or control the plain effect of the expressions used in this deed. One of the learned Counsel went so far as to contend, that a declaration that the monies were to be the sole, absolute, and proper monies of the lady to her separate use, might import only something like leave and license, to reside and exercise the right of a name. VOL. VI. B RABUTTY DOSSEE v. 1854. Hindoo widow in respect of her husband's property SREEMUTTY Out of the house of and apart from her husband's family. It appears to us, however, that if there is to be any certainty of construction-if language is to be MULLICK. understood in its plain and natural sense-if the intention of parties is to be inferred from what they have said, and not from that which it is supposed they ought to have said-the conclusion is irresistible, that all the parties to this instrument intended the Rs. 59,000 to become the absolute property of Zouhra Jeebun Dossee; and that it was not the intention, either of him who paid, or of her who received, or of those who sactioned the payment, that the money paid should vest in her only as the widow and representative of her husband, and as part of his estate. It was argued that, if this were the understanding, the parties of the second part (some of whom might reasonably expect to be the heirs of Dwarkanauth Sain, next in succession to his widows) would never have joined in releasing Gooroochurn from all that was coming to Dwarkanauth's estate. We, however, can see nothing in this release which is necessarily inconsistent with the construction derived from the plain expression of the other parts of the deed. There is no mention of what these parties as co-sharers in the estate of Bheemchurn had reecived from Bissumber in his lifetime, or from Gooroochurn since his death. They may have been overpaid, and may, therefore, have had a personal interest in preventing the widow. of Dwarkanauth from unripping the accounts and asserting the legal rights to their full extent. Again, to what end do they join in declaring that the money is to be the sole and exclusive property of the widow, unless it be to bind, so 1854. RABUTTY V. SIBCHUNDER MULLICK far as they can, their reversionary interest in it? If the transaction were merely that of a settlement of SREEMUTTY accounts between Gooroochurn and Dwarkanauth's estate, and payment over to his widow on the usual terms, this stipulation on their part seemed to be quite unnecessary. The power of attorney given by the widow, and the indemnity given to her also, fortify rather than militate against the construction which we put on the deed. These provisions imply that all the other parties were to remain interested in the outstandings (if any) of the joint estate, but she was to receive nothing beyond the sum for which she had sold her rights. "Upon the whole, therefore, we see no ground whatever for departing from the construction which, upon the former hearing, we put upon this instrument, or from the conclusion that the money must be taken to have been received by the widow with the assent of the male members of her husband's family, to buy off her claims, and as her own absolute property. "There is certainly far more difficulty in saying, that this is a valid transaction against the Plaintiff, who is not shown to have been a party to it. But the question is, against whom is her remedy? And in what form is she to seek it? An accounting party dealing with a Hindoo female has, without rendering an account, fixed the amount receivable by her in right of her husband at an arbitrary sum, and has paid it to her by way of compromise in a manner inconsistent with the title, by virtue of which alone she could call him to account. Such a settlement of accounts cannot bind; such a payment can hardly avail as between him and a reversioner. We are disposed to go further, and to concede that the whole |