Judgement

IN this case the issue mentioned in the judgment printed below was referred by their Lordships on the 9th day of June, 1877, to be tried by the Commissioner of Seetapore (1 Law Rep 4 Ind. App. 178). On the 13th of December, 1877, the Commissioner found that " there is no proof of any fresh act or agreement on the part of the Respondent, by which he became bound to hold the villages alluded to in the issue set in trust for the Appellant and Parbut Singh, but that they were an undivided Hindu family up to 1865, and that the joint interest extended to the whole estate then in possession, ancestral and acquired. I am bound, however, to say that the evidence shews that the acquired villages, other than the recovered ones, were the fruit of the energy and good management of the Respondent and his father, Bhawani Singh."

Leith, Q.C., and C. W. Arathoon, for the Appellant. Doyne, for the Respondent.

The judgment of their Lordships was delivered by Sir Barnes Peacock —

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.

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.

The nature of the present suit, the circumstances under which it was instituted, the effect of the decision of the Settlement Officer, and of that of the Commissioner from which this appeal was preferred, are fully stated in the reasons expressed by their Lordships in recommending a remand of the case for the trial of the above-mentioned issue. The case is reported in Law Rep. 4 Ind. App. 178.

In those reasons their Lordships stated that they were of opinion that, up to the time of Lord Cannings 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 Others ((1) 14 Moores 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 ((2) 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 H 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 sect. 15, Act. I. of 1869, or inquiring whether, not withstanding 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 issu