Judgement

APPEAL from two decrees of the High Court (Jan. 27, 1887) reversing decrees of the District Judge of the 24-Pergunnahs (March 31, 1886), and dismissing the Appellants suit with costs.

The suit was brought in the Court of the Subordinate Judge by the Appellant, a zemindar, against his tenants to recover rent cesses and interest to the amount of Rs.1640. It was founded upon a kabuliyat dated the 21st of June, 1881, alleged to have been executed by the Respondent Rukhit Chunder Purkait for himself and brothers and as guardian of the sons of Abhoy Churn, An ikrar was also produced in evidence by the Appellant signed by Abhoy Churn.

The Subordinate Judge held that the ikrar was proved and did not require registration, and made a decree in its terms.

The District Judge rejected the ikrar for want of registration and founded his decree on the kabuliyat.

Both Courts held that the kabuliyat had been executed as alleged. The Subordinate Judge, however, held that " the terms were so extortionate and hard," and that there was such a surrender by Rukhit without adequate consideration of all previously acquired rights, and an acceptance in their place of such " an unconscionable bargain," the details of which the Subordinate Judge gave, and such apparent want of proper legal advice, that Rukhit was not bound by the kabuliyat. And further that, as Rukhit purported to sign only for himself, and was not guardian de facto or de jure of the infant sons of Abhoy Churn, he could not bind either them or his own brothers.

The District Judge, on the other hand, held, that though " some of the stipulations in the kabuliyat were very hard and even flagrantly unjust," he, the Judge, had nothing then to do with that. But there was no reason to suppose that Rukhit Chunder was not a free agent, or was imposed on by fraud or misrepresentation, when he signed, and that he was therefore bound by the kabuliyat as to the amount of rent, and the area of the land; and that he executed it within the scope of his authority as manager on behalf of his nephews, for whose benefit it was, and that they therefore were also bound by it.

The High Court dismissed the suit, being of opinion that the Appellant had acted fraudulently in taking the kabuliyat, and that it could not be enforced against Rukhit Chunder ; that, even if binding on him, it was not binding either on his major brothers, who were neither parties to the kabuliyat nor to the suit, or on his minor nephews, whose guardian he was not, and whose manager he was not shewn to be, and for whose benefit the kabuliyat decidedly was not entered into.

Branson, and Cave (Sir Horace Davey, Q.C., with them), for the Appellant, contended that as regards the kabuliyat there were concurrent findings of the first two Courts, that it was executed by Rukhit Chunder with sufficient knowledge of its stipulations. The High Court was not justified in finding that the Appellant had acted fraudulently in taking it, or that there had been undue influence or misrepresentation, or that the contracting parties were not of one mind as to what was agreed upon. The ikrar did not require registration, see Act III. of 1877, sect. 17, clauses (b) and (h), and ought to have been taken into consideration.

Doyne, for the Respondents, contended that the ikrar was inadmissible in evidence for want of registration, having regard to the true construction of the clauses referred to. As regards the kabuliyat, that document was not binding on Rukhit Chunder, for the reasons given by the High Court. Nor was it binding on the minor Defendants, for whom he had no authority to act and to whose interests the kabuliyat was highly prejudicial. The decrees of the lower Courts affect also the interests of the brothers of Rukhit. But they were parties neither to the kabuliyat nor to the suit. The suit ought to be dismissed on the ground that the tenure in question being joint the kabuliyat nevertheless did not affect the interests of either the minors