25:[JULY 8,

M*) PRIVY COUNCIL JUDGMENTS

*HUNOOMANPERSAUD PANDEY,” Appellant,

and

MUssu MAT BABOOEE MUNRAJKOONWEREE,

By their very constitution, the Court in Indiaare to decide according to equity and good conscience. The substance and merits of the case areto be kept constantly in view. The substance andnot the mere literal wording of the issues is to beregarded; and if

,

by inadvertence, or

other cause,the recorded issues do not enable the Court to

try the whole case on the merits, an opportunityshould b

e

afforded by

amendment, and, if needbe, by adjournment, for the decision o

f

the realpoints in dispute.Deeds and contracts o

f

the people of India

ought to be liberally construed. The form of ex

pression, the literal sense, is not to be so muchregarded a

s the real meaning of

the parties whichthe transaction discloses.The terms o

f “proprietor” and of “heir,” when

they occur, whether in deeds or pleadings, or do

cumentary proofs, may, indeed, by a mere adherence to the letter, be construed to raise the conclusion o

f

an assumption of ownership, in the

sense of

beneficial enjoyment derogatory to therights o

f

the heir; but they ought not to be so

construed unless they were so intended.Where, therefore, a Ranee, without claimingany beneficial interest in the property o

f

herminor son, described herself a

s “proprietor” or

“heir,” and the Collector remarking upon thedescription a

s improper continued her name as

“Sarbarakar”:–Held that she must be viewed

asa Manager, inaccurately and erroneously des

cribed as “proprietor” or

“heir.” -Under the Hindoo law, the right o

fa bonafide

incumbrancer who has taken from a de factoManager a charge o

n lands created honestly, forthe purpose o

f saving the estate, or

for the benefit

of

the estate, is not (provided the circumstanceswould support the charge had it emanated from

a de facto and de jure Manager) affected by thewant o

f

union of

the de facto, with the de jure title.The question, whether a prima facie case of a

subsisting charge by a deed is made out, involvesthe consideration o

f

two points; first, the actualfactum o

f

the deed; and next, the considerationfor it.The question o

n whom does the onus of proof

lie in such a suit as that of a mortgagee claimingunder a mortgage executed by the Manager of

an

estate during the infancy of

the heir, is onenot capable o

fa general and inflexible answer.

The presumption proper to be made will varywith circumstances, and must be regulated b

y

and dependent on

them. The presumption in thecase where the mortgagee himself with whomthe transaction took place, is setting up a charge

in his favour made by one whose title to alienate

}

Respondent.

* 6,

Moore's I. A., p.

393.

he necessarily knew to be limited and qualified;

remarked upon.

It is to be observed that the representations

by

the Manager accompanying the loan as part

of

the res gestie, and as the centernporaneous declarations o

f

an agent, though not actually selec

ted by the principal, have been held to be evidence against the heir; and such prima facieproof has been generally and reasonably andrightly required in the Supreme Court o

f Calcutta between the lender and the heir, where thelender is enforcing his security against the heir.

It is obvious, however, that it might be unrea.sonable to require such proof from one not anoriginal party, after a lapse o

f time, and enjoyment and apparent acquiescence.

The power of

the Manager for an

infant heir

to charge an estate not his own, is,

under theHindoo law, a limited and qualified power. It

can only be

exercised rightly in a case of need,

or for the benefit of the estate. But where, in the

particular instance, the charge is one that a prudent owner would make, in order to benefit theestate, the boma fide lender is not affected by theprecedent mismanagement o

f

the estate. Theactual pressure o

n the estate, the danger to beaverted, o

r

the benefit to be conferred upon it,

in the particular instance, is the thing to be regarded. But of course, if that danger arises o

r

has arisen from any misconduct to which , thelender is o

r

has been a party, he cannot take adVantage o

f

his own wrong, to support a charge

in his own favour against the heir, grounded on

a necessity which his wrong has helped to cause.

The lender is bound to inquire into the necessities for the loan, and to satisfy himself as well

as

he can, with reference to the parties with

whom heis dealing, that the Manager is acting

in the particular instance for the benefit of theestate. If he does so inquire and acts honestly,the real existence of

an alleged sufficient andreasonably credited necessity is not condition precedent to the validity of

his charge, ard, undersuch circumstances, he is not bound to see tothe application o

f

the money.

The mere creation ofa charge securing a pro

per debt cannot be viewed as unprovident

management; and a bona fide creditor should notsuffer when h

e has acted honestly, and with duecaution, but is himself deceived.

Mode of taking account when the mortgagee

was in possession of

the estates as

mortgagec,and also as lessee under a lease.

26th July, 1856.

THE RIGHT HON. THE LORD JUSTICEKNIGHT BRUCE :

THE complainant in the original suit,was Lal Inderdowun Singh, described in

393 & 408

1856.] ox .»\Pl‘l§.»\L5 ‘Y!CrOJl“ltOl\[ IN DTAL

the plaint as proprietor of the Raj ofPergwn-nah Munsoor Nnggur Bustee. Thesuit was against the present Appellant,the chief Defendant, and Rnnee Degnmher Koonweree, the second Defendant-, themother of the complainant. The complainant sought by his plaint the possession of certain immoveable property described in his claim, the particulars ofwhich it is unnecessary to state. Hesought also to set aside a mortgage Bondbearing date Assar Soodee Poorunmashee,1246 Fuslee, set up by the Appellant; tooust the Appellant, to cancel the name ofthe Appellant as mortgagee_in the Collector's records, and to recover mesne

profits.To this suit the Defendant put in hisanswer. The title of the complainant tothe lands as heir was not denied by theanswer; but the Defendant alleged histitle as mortgagee (except as to some Birtlands, the claim to which was abandonedin the suit, and to which it is unnecessaryfurther to refer). The substantial dispute between the parties was, as to thelands for which the suit proceeded,whether the Defendant could resist, underhis title as mortgagee to the extent ofthat interest, the title of the complainant as heir and proprietor of the lands.It is unnecessary to enter in detail intothe pleadings 01- proceedings in the suit.It is suflicient to state, that in the resultthe Sudder Ameen decided in favour ofthe security, and dismissed the claimgenerally, but that on appeal from thatdecision, the SudderCourt decided againstthe security, and in substance grantedthe relief asked'by the plaint, except inso far as it was abandoned.The reasons for the decision of the appellate Court are contained in theirjudgment. The Court says, “The questionwith which the court have first to deal,respects the right of the Rance to executethe instrument before them.” They thenremark, “that the Bond itself assigns tothe Ranee a; proprietary character, andthat it was not amongst the Defends:-nt’spleas that the Ranee acted as herson’sguardian, but that he has claimed for herthe proprietary character, both in his

answer to the plaint, and still more broad

ly and uureservedly in his answcr to thepleadings in appeal. The Plaintiff, onthe other hand, has throughout arguedfor the avoidance of the Bond. by denying the Renee’s proprietary title in anyway; and such being the issue joined between the parties, the Court, looking tothe fact tlfzit the estates in dispute unquestionably devolved on the Plaiutilf,to the exclusion of the Rance, on thedeath of the Plaintifi"s father, Rajah Sheobuksh Singh, have no hesitation in declaring that, even on the assumption thatthe Rance voluntarily executed the Bondand received full consideration for it, theBond is not binding on the plaintiff, andthat neither he nor his ancestral propertycan be made liable in satisfaction of it.It is needless for the Court, their inquiries being thus stopped in l1'mz'ne, to enteron the real merits of the transaction asbetween the Rance and Hunoomanpersand Panday.”Their Lordships collect from this judgment that the Court thonght that a barwas interposed by the pleadings, and bythe Ranee's act of assumption of proprietorship, to the further consideration whether the Appellant's charge could in anycharacter be sustained against the estate.The Court did not enter upon thequestion of the validity of the charge, inwhole or in part, as a. charge eifected bya de facto Manager, or proprietor, whetherby right or by wrongful title, nor advertto the fact that the charge included someitems of former charge wholly irnafliectedby the objection which they consideredof so much weight.The judgment may be considered under the following points of view :

First. Did the appellate jurisdictionrightly construe the pleadings, and takea right view of the issues framed underthe direction of the Judge, according tothe practice of those Courts E’

Secondly. Did it take a right view ofthe relation in which the Rnneeintendedto stand to her son’s est:-t>? And,Thirdly. Did it consider the point,whether the rights of these parties couldwholly depend upon the question whether

Vol. I. 70 408—41O

554 PRIVY COUNCIL JUDGMENTS gm 8,

that relation was duly or unduly constituted ?On the first point their Lordships thinkit right to observe, that it is of the utmost importance to the right administration of justice in these Courts, that itshould be constantly home in mind bythem that by their very constitution theyare to decide according to equity andgood conscience; that the substance andmerits of the case are to be kept constantly in view ; that the substance and notthe mere literal wording of the issues isto be regarded;and that if, by inadvertence, or other cause, the recorded issuesdo not enable the Court to try the wholecase on the merits, an opportunity shouldbe afforded by amendment, and, if needbe, by adjournment, for the decision ofthe real points in dispute.But their Lordships think that if thewording of the issues be carefully considered, it will be found that the issue insubstance is, whether the charge underthe instrument bound the lands. Thewords in which the Principal SudderAnieen states the issue on this point are:“whether it (the mortgage Bond) Oughtto have eitect against the mortgaged villages.” [It was not an issue limited tothe particular description or character inwhich this act was done, and a misdeecription or error in that respect wouldnot have been fatal to the charge. Consequently, their Lordships cannot agreewith the Sudder Dewanny Adawlut, uponthe first point, that the real question in

dispute between these parties, namely,whether the charge bound the lands inthe hands of the heir, was not substantially included in the issues, which wereevidently intended to raise it. Neithercan their Lordships adopt the reasoningor the conclusion of the Sudder DewannyAdawlut, upon the second point, as to therelation in which the Ranee meant tostand, and substantially stood, to theestate of her son.Deeds and contracts of the people of

India ought to be liberally construed.The form of expression, theliteral sense.ii not to be so much regard:d as the realmeaning of the parties which the transac

tion discloses. Now, what is meant bythe assumption of proprietorship on t-hepart of the Rance, which the judgmentascribes to her ? It is not suggested thatshe ever claimed any beneficial interest in

the estate as proprietor ;had she done so,it would have been, pro Ianto, a claim adverse to her son; and it is conceded bythe Respondent’s counsel that she did notclaim adversely to her son. The termsof “proprietor” and of “heir,” when theyoccur, whether in deeds or pleadings, ordocumentary proofs, may, indeed, by a

mere adherence to the letter, be construedto raise the conclusion of an assumptionof ownership, in the sense of beneficialenyoyment derogatory to the rights of theheir; but they ought not to be so con

strued unless they were so intended, andin this case their Lordships are satisfied

that they were not so intended. Theyconsider that the acts of the Ra-nee cannot be reasonably viewed otherwise thanas acts done on behalf of a-nother, what-‘ever description she gave to herself, or

others gave to her; that she must heviewed as a Manager, inaccurately anderroneously described as “proprietor,” or“heir;” and it is to be observed, that theCollector takes this view, for, whilst heremarks on the improper description ofher as heir, or proprietor, he continuesher name as “Sm-bemkar.” If the wholecontext of all these documents and pleadings be taken into consideration, and theconstruction proceed on every part, andnot on portions of them, they are sulficient, in their Lordships’ judgment, to

slfiowthe real character of her proprietor

s ip. .

Upon the third point, it is to be observed that under the Hindoo law, theright of a bond fide incumbraneer who hastaken from a de factn Manager a chargeon lands created honestly, for the purposeof saving the estate, or for the benefit ofthe estate, is not (provided the circumstances would support the charge hadit emanated from a de facto and de juremanager-)affected by the want of unionof the de facto, with the de ju-re title.Therefore, had the Rance intruded intothe estate wrongfully, and even practised

41O —l3

1856.] on APPEAJJS FROM INDIA. 555

a deception upon the Court of Wai-(ls, orthe Collector, exercising the powers ofa Court of Wards, by putting forth a caseof a joint proprietorship in order to defeatthe claim of a Court of Wards to thewardship, which is the case that Mr. Wigram supposed, it would not follow thatthose acts, however wrong, would defeatthe claim of the incumbrancer. The objection, then, to the Ranee’s assumptionof proprietorship, in order to get the management into her hands, does not reallygo to the root of the matter, nor necessarily invalidate the charge ; consequently, even had the view which the SudderDewanny Adawlut took of the characterof the Ranee’s act, as not having beendone by her as guardian, been correct.their decision against the charge withoutfurther inquiry would not have been wellfounded. It would not have been accordant with the principles of the Hindoolaw, as declared in Coleb. Uig., vol. i., p.302, and in the case of Gopee ChurunBurralvs. Mussummaut Ishwurec LukheeDibia, (3 Sud. Dew. Adaw. R-ep. 93,)and as illustrated by the case cited forthe Appellant in'tl1e argument, against

1ng _This question involves the considerationof two points: first, the actual factum ofthe deed; and, next, the considerationfor it.

the authority of which no opposing decision was cited. Their Lordships, however, must not be understood to say, thatthey see any ground of probability for theassertion, that the Ranee really meant todeceive the Court of Vlfards, or the Collector exercising its authority, by any

other character to her acts than thatwhich the plaint ascribes to them, notwithstanding the use of terms inconsistent with it. For these reasons, theirLordships think that the judgment ofthesupported on the grouhds which thatCourt has assigned.

Sudder Dewanny Court cannot be

It then remains to be considered whether the judgment is substantially right,though the reasons assigned for it arenot satisfactory or snfiicient.

V

If the evidence discloses, as it is contended for the Respondents that it doesdisclose, no primii fucie case of charge atall on this ancestral estate, then, as theonly .bar to the resumption by the heirof his estate is the alleged mortgage title0

mortgagee, the complainant’s title to theestate, to the mesne profits, and to theother relief, is made out; but if, on the

0

primvi facie case of charge, some inquiryat least ought, as it seems to their Lordships, to have been directed.

ver it, the proof of which lies on the

ther hand, the evidence discloses even a

The question then next to be considereds, whether a primtifacie case of a subsistcharge is made out by the Appellant

First, as to the fa.<-tum. The execution of the Bond by the Ranee is stated‘

consciously false description of herself.The title to this Raj cannot readily besupposed to have been unknown in theCollector's oifice, nor is it probable thatthe Rance could have deceived the officeby such a false description of herself.It is abcircumstanee worthy of remark,too, that the complainant does not ascribe this conduct to her in his plaint.The case that the plaint makes is not thatshe intruded upon him and assumed-proprietorship ; the plaint itself says she hadpossession as guardian, that is, as managing in that character; and on a review ofthe whole pleadings and documentaryevidence, and of the probabilities of thecase, their Lordships think it a strainedand untrue construction to assign any

by several of the attesting witnesses. Itwas argued, however, on behalf of theRespondent, that the Court ought not toact on their evidence. Some discrepancies,—snch, however, as are not unfrequentlyfound in honest cases in native testimony,—were dwelt upon. The Sudder Ameen,who decided this case originally, has madesome pertinent remarks on the confirmation which circumstances give to the oralevidence that the Bond is the deed of theRance. The decision by a native Judge,possessing the intelligence which thisjudgment of the Sudder Ameen cvinces,on a question of fact in issue before him,is, in the opinion of their Lordships, entitled to respect ; he must necessarilypossess superior knowledge of the habits

70 __2 413-~15

556 PRIVY COUNCIL JUI}(|MENTS [JULY 8,

and course of dealing of natives, and thatknowledge would be likely to lead him toa right conclusion upon a question of disputed fact. The Sudder Ameen observes,in substance, that possession went alongwith this Boud, and that the mortgageewas inscribed in that character as proprietor on the records of the Collector.He was, therefore, put in possession asmortgagee, and was publicly known asmortgagee in the Collector's office.It is to be observed further, that hisreceipt of the rents and profits of thelands included in this conveyance woulddiminish, pro tauto, the annual income ofthe estate, which would come to be administered by the Ranee, and that this

state of things continued for several yearsafter the execution of the Bond. TheRanee's ignorance, then, of such title,possession, recept, and diminution, is

,as

the Sudder Ameen justly observes, not a

probable supposition. It could be ra

tionally accounted for only on one sup

position—that the Ranee was a merecypher, and entirely ignorant o

f thatwhich was done in her name. This, however, does not appear to have been thecase: she herself denied it on a subsequent contest as to the managership; andthe act o

f

the Collector in his decisionupon that dispute, in putting her into themanagement, confirms her own statement

of

her capacity. Had her incompetencybeen o

f

so flagrant a character, as the

above hypothesis demands to be attribut

ed to her, it is not reasonable to supposethat it would have been unknown in theCollector's o!'ice, nor is it reasonable to

suppose that the management would havebeen confided to her had such been hercharacter. It was argued, indeed, thatshe may have become b

y

that time capaable; but it is to be observed that a longcourse o

f neglect and mismangement,

which is attributed to her, would not be

a school of improvement.

It was angued that the complainantwas not to be bound by the Rance's alleg itions of

her own competency: thatshe had tasted the sweets of management.

and would desire their continunnce. Certainly the complainant is not to be bound .

by her assertion; but it is not the assertion that is relied on as confirmation.What is relied on is the result of thecontest, and the acknowledgment o

f

her

as

one competent to the management of

the estate by

an

officer interested in its

right administration.Their Lordships cannot but concurwith the Sudder Ameen in thinking thatthese circumstances d

o materially confirm the story o

f

the attesting witnessesas to the Ranee's execution of the deed.

The story of

her non-execution of it is

based, in a considerable degree, on a supposition o

f

her incapacity. That the deed

is hers, is,

in the opinion of

their Lordships, further confirmed b

y

the great im:probability of the history which some of

the witnesses of

the Respondent give as to

the factum of

the instrument. The storytold b

y

the witnesses, Heera Lal andGyapershad Patuk, is so destitute of probability, so little in harmony with theordinary conduct of men in like circumstances, that their Lordships can place

no

reliance upon it. According to the

case of

the Respondent, this Bond wasfraudulently executed in the name of theRanee, without her sanction or knowledge, in order to fi

xa false charge of

Rs. 15,000 in the Defendant’s favour

on the property of

the infant Rajah. TheDefendant and several associates were,according to this story, conspiring together for this object. According to thewitnesses, who give nearly verbatim thesame account o

f

the transaction, theseconspirators had witnesses ready, thoughnot present, who were to attest conscious

ly the false deed as true; yet such is at

once the impatience and the folly of theseconspiring parties, that every one of th

e

witnesses, each of

whom is described as

dropping in by

chance as it were, is solicited without any assigned adequate motive, and with n

o previous sounding, to

become a party to this fraud by consciously attesting the false deed a

s

true.Each witness declines, and each is entreated to secrecy; and each preserves

the secret inviolate, contrary to duty, andwithout any assigned motive for secrecy.The communication and the concealment

115- -17

\_4"O ;vzG) FROM lXl)lA. 557ON APPEA LS\_4

are both without motive according to theaccount which is given us. And thestory of this utterly needless communication of his crime, is told of aman usedto business, intelligent, and described bythe Respondents as the habitual accomplice of crafty and designing men, theKarindas, in acts of fraud.Taking the whole circumstances as tothe factum of this instrument into consideration, their Lordships concur in thefinding by the Sudder Ameen as to it.Next, as to the consideration for theBond. The argument for the Appellantin the reply, if correct, would indeed reduce the matter for consideration to avery short point; for according to thatargument, if the favtum of a deed ofcharge by a- manager for an infant be established. and the fact of the advance beproved. the presumption of law is prinui

farie to support the charge, and the onusof disproving it rests on the heir. Fortbis position a decision, or rather a. rlicfumof the Sudder Dewanny Adawlut at Agra,in the case of Oomed Rai rs. Hcera. Lall(6 Sud. Dew. N. W. P. 218), was quotedand relied upon. But the dfclu~m there,though general, must be read in connection with the facts of that case. It mightbe a. very correct course to adopt withreference to suits of that particular character, which was one where the sons ofa living father were, with his suspectedcollusion, attempting, in a suit against ncreditor, to get rid of the charge on anancestral estate created by the father, onthe ground of the alleged misconduct ofthe father in extravagant waste of theestate. Now, it is to be observed that alender of money may reasonably be expected to prove the circumstances connected with his own particular loan, butcannot reasonably be expected to knowor to come prepared with proof of theantecedent ec-onomy and good conduct ofthe owner of an ancestral estate; whilstthe antecedents of their fathcr’s careerwould be more likely to be in the knowledge of the sons, members of the somefamily, than of a. stranger; consequently,

II

and proof of facts, presumably in hisbetter knowledge, is to be looked for fromthe party who possesses that better knowledge, as well as on the obvious groundin such suits of the danger of collusionbetween father and sons in fraud of thecreditor of the former. But this case isof a description wholly different, andthe dictum does not profess to be agencral one, nor it is so to be r arded. TheirLordships think that fi

e

question onwhom does the (mu-s of proof lie in suchsuits as the present, is one not capableof a general and inflexible answer. Thepresumption proper to be mad will varvwith circumstances, and mustge regulated by and dependent on them. Thus,where the mortgagee himself with whomthe transaction took place, is setting upa. charge in his favour made by one whosetitle to alienate he necessarily knew to belimited and qualified, he may be reasonably expected to allege and rove factspresumably better known to liim than tothe infant heir, namely, those facts whichembody the representations ma-de to himof the alleged needs of the estate, and themotives inlluencing his immediate loan.It is to be observed that the representations by the Manager accompanyingthe loan as part of the res gesfée, and asthe contemporaneous declarations of anagent, though not actually selected by theprincipal, have been held to be evidenceagainst the heir; and as their Lordshipsare informed that such prinui fucie proofhas been generally required in the Supreme Court of Calcutta between thelender and the heir, where the lender is

enforcing his security against the heir,they think it reasonable and right that

it should be required. A case in the timeof Sir Edward Hyde East, reported in hisdecisions in the 2nd volume of Morley's“ Digest," seems the foundation of thispractice. ($ce also the case of Brownrs. Ram Kunaee Dutt, ll Sud. Dew.Adaw. Rep. 791.)It is obvious, however, that it mightbe unreasonable to require such prooffrom one not an original party, after a

ll

l

this rliclum may perhaps be supported onthe general principle that the allegation

lapse of time, and enjoyment and apparent ncquiescencc; consequently. if, as is

_ 418-20

{ass PRIVY COUNCIL JUDGMENTS [am s,

the case here as to part of the charge, itbe created by substitution of a new security for an older one, where the consideration for the older one was an old precedent debt of an ancestor not previouslyquestioned, a presumption of the kindcontended for by the Appellant would bereasonable. The case before their Lordships is one of a mixed character; theexisting security represents loans andtransactions at various times and undervarying circumstances: it is a consolidating security; and as to part, at least—namely, the ancestral debt—there is, inthe opinion of their Lordships, ground toraise a primri facie presumption in theAppellant's favour of a consideration thatbinds the estate. It is unnecessary to thedecision to pursue the inquiry as to theother items of charge, but that part of itwhich relates to the advance for paymentof the revenue seems to be at least

facie proved as against the estate. And,as to the whole charge, there is also atleast primd facie evidence in the admissions of the Plaintiff, proved by severalwitnesses, uncontradicted on the point.As to the debt of the ancestors, it wassaid that it was already secured. and thatthe estate being ancestral, could not, according to the law current in the NorthWestern Provinces, be charged, in thehands of the heir, for an ancestor’s debt.But it is to be onserved as to the changeof security, that there was areduction ofinterest; it is, therefore, a transaction,prirn-ti facie, for the benefit of the estate;and though an estate be ancestral, it maybe charged for some purposes against theheir, for the father’s debt, by the father,as, indeed, the case above cited from the6th volume of the Decisions of the Sudder Ddwanny Adawlut, North-WesternProvinces, incidently shows. Unless thedebt was of such a nature that it was notthe duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act ofpious duty in the son. By the Hindoolaw, the freedom of the son from the obligation to discharge the father’s debt.has respect to the nature of the debt, andnot to the nature of the estate, whether

aneestral or acquired by the creator ofthe debt. Their Lordsh ips, therefore, areclearly of opinion that a primri fccie caseof charge for something was made out;and it is not necessary to determine, nor,indeed, have their Lordships the necessary facts before them to enable them todetermine, for how much, if for anything,this deed must ultimately tand as asecurity.One point remains to be considered,namely, whether, in taking the accountbetween these parties, the Defendant isto be charged, as mortgagee in possession, with the actual rents and profits, oronly with the rent fixed by the pottah. Itis said for the Appellant, that the SudderDewanny Adawlut did not set aside thepottah. In terms they certainly did not.But their Lordships think that it waspart of one mortgage-security, consistingof several instruments of equal date withthe mortgage Bond; and that it was intended to create, not a distinct estate,but only a security for the mortgagemoney. Mr. Palmer contended that astipulation such as this pottah evidences,may stand in India between mortgagorand mortgagee, and that the Regulationsas to interest do not touch such a case.The Regulations provide for the case ofan evasion of the law as to interest byinvalidating the mortgage security, andforfeiting the claim of the mortgagee tohis principal and _interest:. but Mr.Palmer contends that where there is nosuch evasion, and a bond fide and fair rentis fixed upon as representing, communibuaannis, the rents and profits of the estate,the Court ought to stand on that, theagreement of the parties, and not todirect to taking of the accounts betweenmortgagor and mortgagee on any otherbasis. It is certainly possible that, byreason of the provision that‘ the rentshall be a fixed one, notwithstandinglosses and casualties, the mortgageemight be a loser, in his character oflessee, on an account calculated on thisbasis; but, notwithstanding that contingency, their Lordships think that, as itwas not meant that the principal shouldbe risked, it was virtually a provision to

i

l

I

420-—-22 G

v U)U!9‘ (,1Ur<0

ON APPEALS\_J FROM INDIA.

exclude an account of the rents andprofits, and that the decree of the SudderDewanny Adawlut, directing an accountof the actual rents and profits, therefore,proceeds on the right principle, and is inaccordance with the true nature of thesecurity and the spirit of the Regulations.In the case of Roy Juswnnt Lall vs.Sreekishen Lal], reported in the decisionsof the Sud. Dew. Adaw. in 1852, vol. 14,p. 577, the Court seems to have thoughtthat where a mortgage lease was granted,and whilst the term was running, themortgage account could not be taken;but it appears from that case, that informer decisions of that Court not reported, where the lease had expired, theCourt directed the account to be takenon the ordinary footing of the receipt ofrents and profits of the mortgaged estate.Their Lordships think that, under theRegulations unless the principal is

meant to be risked, and is put in therisk, the estate created as part of amortgage security, whatever be its formor duration, can be viewed only as asecurity for a mortgage debt, and mustbe restored when the debt, interest, andcosts are satisfied by receipts.Upon the whole, their Lordships are ofopinion that the cause must be sent backfor further inquiry. They think it desirable, however, in order to prevent afuture miscarriage, to state the generalprinciples which should be applied tothe final decision of the case.The'power of the Manager for an infantheir to charge an estate not his own, is,under the Hindoo law, a limited and qualified power. It can only be exercisedrightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that aprudent owner would make, in order tobenefit the estate, the band fide lender is

not afiected by the precedent mismanagement of the estate. The actual pressureon the estate, the danger to be averted,or the benefit to be conferred upon it, inthe particular instance, is the thing tobe regarded. But of course, if that dangerarises or has arisen from any misconductto which the lender is or has been a party,

Q

he cannot take advantage of his ownwrong, to support a charge in his ownfavour against the heir, grounded on anecessity which his wrong has helped tocause. Therefore, the lender in this case,unless he is shwon to have acted maldfide, will not be afiected, though it beshown that, with better management, theestate might have been kept free fromdebt. Their Lordships think that thelender is bound to inquire into the necessities for the loan, and to satisfy himselfas well as he can, with reference to theparties with whom he is dealing, thatthe Manager is acting in the particularinstance for the benefit of the estate. Butthey think that if he does so inquire, andacts honestly, the real existence of analleged sufiicient and reasonabl y-credi tednecessity is not a condition precedent tothe validity of his charge, and they donot think that, under such circumstances,he is bound to see to the application ofthe money. It is obvious that money tobe secured on any estate is likely to beobtained on easier terms than a loanwhich rests on mere personal security,and that, therefore, the mere creation ofa charge securing a proper debt cannotbe viewed as improvident management;the purposes for which a loan is wantedare often future, as respects the actualapplication, and a lender can rarely have,unless he enters on the management, themeans of controlling and rightly directing the actual application. Their Lordships do not think that a bond fide creditor should sufier when he has actedhonestly and with due caution, but ishimself deceived.Their Lordships will, therefore, humbly report to Her Majesty in the followng terms :—“Their Lordships are of opinion thatthe Ranee ought to be deemed to haveexecuted the mortgage Bond, datedAssar Soodee Poornumashee, in the pleadings mentioned, as and in the characterof guardian of the infant Lal InclerdowunSingh.“And their Lordships are of opinionthat the validity, force, and efiect of theBond, as to all and each of the sums, of

4122-25

560 [July 11,PRIVY COUNCIL JUDGMENTS

which the sum of Rs. 15,000, thereby

purporting to be secured, is composed,

depend on the circumstances under

which the sums, or such of them as were

advanced by the Appellant, were respec

tively so advanced by him, regard being

had also, in so far as may be just, to thecircumstances under which the same

were respectively borrowed.

“And their Lordships are also of opi

nion that, assuming the Bond to be invalid and ineffectual, the Appellant

would, nevertheless, be entitled to the

benefit of any prior mortgage or mortg

ages paid off by him affecting the property comprised in the Bond, if and inso far as such prior mortgage or mortgages was or were valid and effectual.

“And their Lordships, therefore, areof opinion that the decrees of the Zillah

and Sudder Courts respectively ought tobe reversed, and the cause remitted to

the Sudder Court, with directions thatinquiry be made into the several mattersaforesaid, and that all such accounts be

taken and such other inquiries made as,

having regard to such matters and to

the circmmstances of the case, may be

found to be necessary and proper, withdirections also that the Sudder Court do

proceed therein as may be just, both

with respect to the said mortgage Bondand the several instruments of even date

therewith ; and that the costs of theappeal be costs in the cause, to be dealt

with by the Sudder Court.”

11th July, 1856.

PRESENT :

Members of the Judicial Committee, -TheRight Hon. T. Pemberton Leigh, theRight Hon. Sir Edward Ryan, theRight Hon. Sir John Dodson, and theRight Hon. Sir William H. Maule.Assessor, -The Right Hon. Sir LawrencePeel.

On Appeal from the Governor in Councilof Bombay.

BODHRAO HUNMONT* ... Appellant,

and

NURSING RAO and others ... Respondents.

The terms of

the sunnund being absolute,certain Enam villages in the Southern Mahrat

ta Country were held, in a partition suit, to be

governed by

the general principles of

theHindoo law respecting partition o

f

the father'sestate among his heirs.

THE RIGHT HON. T. PEMBERTON LEIGH:

THERE appears no

reason why theEnam villages in question should not be

governed by

the general principles of

the Hindoo law respecting partition of

the father's estate among his heirs. Theterms of the sunud are absolute. There

is nothing peculiar in the case; it is an

ordinary partition suit, which is an

everyday's occurrence in India, and thedivision must be according to the Hindoo law. The mode of collecting therevenue has nothing to do with thequestion. We, therefore, must reversethe decree o

f

the Governor in Council of

Bombay, and consequently, affirm thedecree o

f

the Political Agent of

theSouthern Mahratta Country, o

f

the 6th

of October, 1852, with costs, as

well

here as of

the appeal to the Governor in

Council of Bombay.

* 6,

Moore's I.A., p.

426.425–26