11 KNAPP, 226 GORDON o.

~ O O H U M ~ UKHAN
D [I8341

[2B] ON APPEAL FROM THE S U D ~ E RD ~ A D A ~ ~ UOF

T BENGAL.
~ A
GEORGE SAMES GORDON, Executor of Futteh Yab K h ~ , - ~ ~ ~ KIIAUJEH
e Z ~ ~ ~ ~ ~ ;
ABU M O O ~ U ~ M UKHAN
D and Others,---Respondents [January 3, 18341.
A suit instituted in 1817, to recover Altumgha lands in right of an ancestor
who died out of possession of them in 1798, held to be barred by the Bengal
Statutes of Limitations, Regulation 111. of 1793, and 11. of 1805.
“lie facts and previous decisions in this case a r e fully reported in 4th
Macnaghten’s Sudder Dewanny Adawlut Reports, p. 137, m e arguments before the
Judicial Committee by the counsel for the a p p e l l a n ~were principally those used
by the second judge of the Adawlut Court, Courtenay Smith, Esq., in his judgment
below, in which he dissented from his colleagues; and they also endeavoured t o
prove, that according to the true constructio~of the Regulations of 1793 and of
1805, the appellant’s claim was not barred.
Bickersteth (K.C.) and Lushington (Dr.) with whom was Manning, for the Appel-
lants. Spankie (Serjt.) and Lloyd, for the Respondenta.
Vice-Chancellor [Sir Lancelot Shadvvell].-In this case their Lordships are of
opinion, that it is not necessary to hear counsel for the respondents, for they
have all agreed, that in any way of putting the case the appellants are barred by
length of time, according to the terms of the Regulations of the Govern-[226]-ment
of Bengal. If the appellants think that they can rest their claim on the Mahomedan
law of inheritance, independently of the arguments that have been drawn from the
construction attempted to be put on the words of the decree of 1777, then it appears
that Nadira B e p m died in the year 1798, and there is n o reason whatever why
her heirs might not have brought their suit prior to the year 1817. But if they put
fheir case on the ground that, by the decree of 1777, she is to be considered as
having acquired a right to the fourth part of the inheritancs of her husband, we
must look a t the texms of that decree. Now the decree of 1777, a8 it is set out in the
printed papers, directs, that as to the Altumgha Mehauls, Bahader Khan shall, on
the part of Aulum Beg, hold and keep posstxssion and occupation of them, and shall
annually give to Mussummaut Nadira Begum, during her natural life, three shares
of twelve, as aforesaid, from the produce of them;” and it is remarkable, that on
!ooking a t the case referred to by the counsel for t*heappellants in Macnaghten’s
Adawlut Reports, between Omar Khan and Moohummud Khan,” which was a cause
between the heirs of Aulum Beg, there seems to be a translation from the Persian of
that very decree of 1777, which represents that the Altumgha, according to custom,
were to be delivered over to the charge of Bahader Khan, who was to allow the
widow one-fourth of the produce for her ~ ~ ~ e ~ ~ e .
Their Lordships a r e therefore of opinion, that upon the true constxuction of the
decree of 1177, Bahader [2273 Khan was to be considered as only the depositary
or agent of Aulum Beg, who was the heir of the deceased h u s b ~ n dof Nadira
Begum, liable to the obligation to pay to her, for her life, only the produce of one-
fourth of the inheritance; and it is plain, upon looking a t what took place in the
case of the dispute between the heirs off Aulum Beg, that the right of her heirs to
inherit after the expiration of her life never was in any way acknowledged. Their
Lordships are of opinion, that the regulakion of 1793 directly applies to this case.
It is impossible to bring this case within the fourth section of the Regulation of
1805, because it cannot be truly said that Bahader Khan was a mortgagee or
dcpositary for Nadira Begum, otherwise than as he was subject to pay to her one-
fourth of the proceeds during her life; and this being their Lordships’ opinion,
che consequence is, that the decree of tke court below must be affirmed. A s i t
appears, howev-er, that there wm some variance in the opinions of the judges of the
* 3d M ~ n a g h t e n198.
~ The extracts from t h s proceedings of the Patna Pro-
vincial Council on the occasion in question are set. out verbatim in the above case,
from a copy furn~shedfrom the Record Office at ~ ~ c u t by t a the Secretary to
GovernnJent.
466
 GOPEE ~0~~~ TAKOOR v. RAJA^ ~ A ~ 118341
~ A XI ~KNAPP,
A 22-8
~

court below, and of the r ~ K o x ~upons which the ~ u d ~ e an t p ~ against ~ l was

~
~ y we are of opinion that it should be affirmed w i t ~ o u costs.
~ i l ~ i m a t egiven, t
Mr. Serjeant Spankie observed, that a~ the suit had been e a r r i d on by the East
India Company on the part of the respondents, a t the sugges$ion of the Privy
Council, they ought to recover their costs from. the respclndent. A doubt might
exist on the subject, as they had undertaken this suit before the passing of the last
Privy Council Act,
The court recommended a petition t o be presented on the subject.
[For powers of Judicial Committee as to costs, see now 3 and 4 Will IV., e. 41, S.
15 ; and 6 and 7 Vict., c. 38, s. 12 ; 0. in C, of 13th June, 1853, Stat, R. and 0.
Rev. Vol. iv. p. 306.3
. "

ON ~ P P ~~0~ ~ S~~~~~ ~~~A~~

~ A THE A ~ A OF'
~ ~ ~E ~ ~~ AT L .
OfIUN TIAKUOR and O t h e r s , - ~ ~ ~ ~RAJAH
~ ~ n ~ ~A ; I ) ~ ~ ~ ~ T ,
[Jan. 4, 6 , 8, 18343,
~~~~~~~~~~

Money advanced to the guardian and agent of aa infant zemindar to pay the
arrears due to Government on account, of his z e ~ i n d a r yis recoverable in the
Mofussil Courts from the ze,mindar, although the lenders took a bond in the
English form for i t from his guardian and agent in their own names, with-
out any mention in i t of the zemindar, and sued and ohtained judgment
ngainst them. personally in the Supreme Court a t Calcutta upon the bond,
and took one o f them in execution under it.
A statute restricting courts of justice from hearing and d e t e r m ~ n i 1suits ~~
upon certain contrack not entered into w~thoutthe c o n s ~ n of t Govern~ent,
and not registered in a p a ~ ~ c u l manner,
ar does not render those cmtracts
illegal, and therefore when that statute has been repealed, such conlmcts
may be enforced in courts of justice, a l t h ~ u g hentrtred into whilst the statute
was in force.
The a ~ p ~ were ~ ~the a s~e pt r ~~e n t a t i vof~ Narain Takoor and ~ ~ n ~ r a s s e
Ghose, two m.oney-~end~rs in Calcutta, who on the 22d of March 1786, duriiig the
minority of %heres~ondent,advanced a sum of 60,300 rupees to Janikiram Sing,
his uncle, and the dewan otr manager of his zemindnry, and Sudanund Sircar, his
vakeel a t Calcutta, far the purpose of enabling them to discharge the arrears due
from his aemindary to Government;. It was proved that Narain Takooer and Bana-
rassey Ghose bought for 60,300 rupees a bill for 60,000 rupees from the house of
G u n n ~ sI)oss, a t Cnlcutta, on their house a t M o o r s l ~ e d a b ~p,~ y a b l ethirty days
after sight; that this bill w~b8j ~ n i e d ~ a t e ldelivered
y- ever to Mr. Cooper, the super-
intendent of the Khalsa or Treasury a t Calcutta, and that lie t r a n s ~ n ~ t t eitd to the
r ~d, ~ ~ c h a r gofe the arream of revenue due from the re-
c o l ~ ~ ~aot i~. ~ n a g e p o in
~ . a security for the paymenta of this [2291 sum, Narain
~ p o ~ d e n t 'zse m ~ n ~ a rAs
Takoor and Banarasse~Ghme took a band from Sudanund Sircar. The money was
not paid within the time itppointed in the bond, and on the 6th of June 1187,
Janikirarn Sing and Sudanund Sircar both entered into a joint and several bond,
in the English form, to Hr. Noble Ledlie fbr the s w n of 80,150 rupees, which in-
cluded both the former sum ~dvanced,together with interest upon it, and also other
sums alleged to have been advanced for the service o€ the zernindary, but of the
advanoe of which no proof was given in the suit.
Mr. M l i e executed the same day a declaration, that he; wa8 merely a trust* of
the sum secured by this second band for Narain T&wr and Bmasawey Ghose. No
mention was made in the latter bond (wh~chonly- was p r o d u c ~in evidence in
the oause) of the purpose for which the money was advanced, nor did the name of
the appell&nt o r his aemindary appear on iL, me money still r e m ~ n i n gunpaid,
p r o c e ~ i n g swere taken on %e latter bond a g a ~ n s tJ a n ~ k ~ r aSing
m and S u d ~ u n d
Sircar in the Supreme Court a t ~ ~ l e and u Janikirasa
~ ~ , Sing was taken ia execu-
467