THAKOOR HURDEO BUX Vs. THAKOOR JOWAHIR SINGH

JUDGEMENT

(1.) WHEN this case was before their Lordships on a former occasion it was remanded with a direction to the Commissioner to try or cause to be tried by the Settlement Officer the following issue, viz., Whether the Respondent had in any and what manner agreed or become bound to hold the villages comprised in the summary settlement or sunnud, or any and what part thereof, or of the rents and profits thereof, in trust for the Appellant and Parbut Singh, or either and which of them.

(2.) THE Commissioner very properly took upon himself the trial of the issue, and correctly disposed of the several objections which were raised in the course of the investigation.

(3.) IN those reasons their Lordships stated that they were of opinion that, up to the time of Lord Canning's proclamation, the whole of the villages mentioned in the summary settlement were the joint family property of the Appellant, the Respondent, and Parbut Singh, and that they were either ancestral or purchased with the proceeds of ancestral estate. Their Lordships also referred to the case of Thakrain Sookroj Koowar v. The Government and Ors. 14 Moore's Ind. App. Ca. 112, and also to the case of Shunker Sahai v. Rajah Kashi Pershad, decided in the Privy Council on the 29th of July, 1873, and since reported Law Rep. 4 Ind. App. 198, as an authority for the proposition " that a person who has been registered as a talookdar under Act I. of 1869, and has thereby acquired a talookdari right, may, nevertheless, have made himself a trustee for another of the beneficial interest in the lands comprised within the talook, and be liable to account accordingly," and they remarked that the Lower Courts in the present case appeared to have decided the case merely upon the ground that the Defendant was protected by the sunnud, without adverting to Section 15, Act. I. of 1869, or inquiring whether, notwithstanding the summary settlement, the sunnud, and the statute, the Plaintiffs or the Appellant had either before or after the passing of Act I. of 1869 acquired or become entitled to a beneficial interest in any part of the property. They said that, looking to the allegations in the plaint and written statements, an issue ought to have been raised to try that question; that on the materials before them they did not feel competent to decide it, and that they had no evidence of the circumstances under which the summary settlement was made, nor of those under which the sunnud was granted, nor of what was done with respect to it or to the property comprised in it before the registration of the Defendant under Act I. of 1869. The issue was accordingly directed, and there can be no doubt, and indeed it has not been disputed, that the evidence adduced upon the trial fully warranted the conclusion at which the Commissioner arrived, that the actual relation of the Appellant, the Respondent, and Parbut Singh remained that of a joint and undivided Hindu family from the date of Lord Canning's proclamation up to the quarrel and removal of the Respondent to Kaswara in 1865. The Commissioner also found, and in their Lordships' opinion correctly found, that the evidence proved that during that period there had been a joint interest in, and common management of, the property. Such an interest could not have existed unless the Defendant had consented that the villages should be held as the joint property of the family.