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Thakur Shere Bahadur Singh Vs. ThakuraIn Dariao Kuar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal645
AppellantThakur Shere Bahadur Singh
RespondentThakuraIn Dariao Kuar
Excerpt:
estate in oudh - title under sanad from government-trust. - .....the proper issues, and determine the questions according to the law as now laid down.4. their lordships think it right to add that the delay of the plaintiff in not having brought the action until ten years had passed after he had become of age, and his laches in this respect will not entitle him to an account for a period before the commencement of this suit.5. their lordships will therefore humbly recommend her majesty to discharge the decree and orders appealed from, and to remand the suit to the court of the commissioner of roy bareilly for him to re-try and determine the same, each party being at liberty to propose such issues as they may think material to be settled for trial by the commissioner.6. the costs of both parties of the appeal will ho taxed, and a certificate sent.....
Judgment:

R.P. Collier, J.

1. This case has not boon tried in a manner altogether satisfactory. Without, however, referring to the previous proceedings, their Lordships think it enough to advert to the final judgment appealed against. The learned Commissioner gave his judgment in these terms: 'Basant Singh died during the Rebellion of 1857, and the alleged adoption of the plaintiff is said to have taken place in April 1858. Before this the general confiscation of the land of Oudh had been declared by the British Government, and it was only in May 1858 that a summary settlement was made with the defendant. At the time, therefore, of the alleged adoption, the title to the estate vested neither in the deceased Basant Singh nor in the plaintiff, nor in the defendant, but in the British Government. Even if it be allowed that there was adoption of plaintiff', and that this, in accordance with Hindu law, conferred upon him all the right of a posthumous son of Basant Singh, still neither he nor Basant Singh himself, if he were to rise from the dead, can assail the title under which the defendant holds.' So far their Lordships agree with the learned Commissioner, but they are not able to agree with him in the view which he expresses in the second paragraph of his judgment. The learned Commissioner appears not to have been sufficiently acquainted with the tenor of some recent decisions, whereby, although undoubtedly the doctrine if affirmed that the title conferred by the Government is absolute and overrides all other titles, nevertheless it has been held that the grantee under the Government may, by an express declaration of trust, or by an agreement to bold in trust, constitute himself a trustee. The learned Commissioner proceeds in these terms: It has, however, been held by the Courts on various occasions that a free gift was made by the Government, and I am entirely of this opinion. The adoption of two letters, said to have been written by the defendant, both of which are set forth in the plaint, place, it is contended, the defendant in the position of trustee. One letter addressed to the plaintiff implies nothing more than a promise to put him in possession of the estate on his becoming of age. The second letter, addressed to Babu Umrez Singh, between whose daughter and plaintiff a marriage was arranged, is to the same effect as the letter addressed to the plaintiff. I can see nothing in these letters to place the plaintiff and defendant in the position respectively of beneficiary or cestui que trust and trustee.'

2. Their Lordships are of opinion that the letters here referred to if proved (and, as far as they are at present informed, they do not seem to have been proved or disproved), may, coupled with surrounding circumstances, constitute sufficient evidence on which the Court would be justified in holding that the defendant bat declared herself or had agreed to he a trustee on behalf of the plaintiff. They think it desirable, therefore, that the suit should be sent back to the Courts in Oudh for the purpose of determining this question. Those Courts will inquire, in the first place, whether the letters are genuine; in the next place, as to the date on which they were written; and thirdly, as to the circumstances under which they were written and other surrounding circumstances; and among those circumstances undoubtedly will be the question of the adoption or non-adoption by the defendant of the plaintiff under the will of her husband;--this question being, as before explained, material only as a circumstance bearing upon the question of whether or not she has agreed to be or declared herself to he a trustee, but not in itself constituting any title on the part of the plaintiff.

3. Their Lordships, in the imperfect acquaintance which they have at present with the facts of the case, think it more convenient to remand the case in those general terms than to settle issues themselves, Either party will be at liberty to propose for the consideration of the Court any issues which they may think material to raise the questions which have been just indicated, and the Court will doubtless raise the proper issues, and determine the questions according to the law as now laid down.

4. Their Lordships think it right to add that the delay of the plaintiff in not having brought the action until ten years had passed after he had become of age, and his laches in this respect will not entitle him to an account for a period before the commencement of this suit.

5. Their Lordships will therefore humbly recommend Her Majesty to discharge the decree and orders appealed from, and to remand the suit to the Court of the Commissioner of Roy Bareilly for him to re-try and determine the same, each party being at liberty to propose such issues as they may think material to be settled for trial by the Commissioner.

6. The costs of both parties of the appeal will ho taxed, and a certificate sent with a direction to the Court below to deal with them as costs in the cause.


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