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1872

DHAR

V.

THE GOVERN

MENT OF

BENGAL,

in discovering exactly what was the mode of giving a receipt when LALA BANSHI- the payment really was made by a transfer. Although there is perhaps no direct evidence of what the form of it was when the payment was made into the treasury by deposit, whether it was the treasury at Mirzapore, or the treasury at Benares, no doubt some receipt, acknowledging that payment, must have been given. Several of the witnesses who were examined upon the part of the Government stated that no receipt at all was given when a deposit was transferred, at the time when the transfer was made. In the judgment of the Sudder Court, which appears to have been taken principally from the allegations in the plaint, which are not certainly specifically, if at all, denied by the answers, it is stated that at some time or other, whether the practice was first introduced by this particular treasurer, or whether it was introduced before, is not perfectly clear; but, at any rate upon many occasions, a receipt was given, but that alterations were made in the form of it, as one would suppose would be the case, as otherwise it would represent what was positively untrue; and that it would contain a reference in the body of it, not merely after the signature at the end, to show that it was merely a receipt for a transfer, and that no money was paid at all at the time when it was given. Therefore the receipt forms the first evidence and very strong evidence against the treasurer.

Then that is confirmed in a great variety of instances by evidence upon the part of the village authorities, the canungoes, who say that, as respects those villages, they have no deposit accounts, that it was the ordinary practice to pay in cash; that, secondly, confirms the statement that the payment was in cash. Then there is no entry of a receipt in cash in the Hindi siáhá, which would make it clear, and which in fact is not seriously denied, that, if it was paid in cash, beyond all question, the treasurer was a party to the embezzlement. Then in the Persian siáhá they are entered upon the day upon which the payment was made, and it is very important to observe that they are entered as paid in cash. In examining the items, it is quite plain that in the body of the siáhá they are entered as paid in cash; but, of course, if they had been summed up in the abstract of the day's proceedings as having been paid in

1872

DHAR บ.

THE GOVERN

MENT OF
BENGAL.

cash, then the amount of cash in the Persian siáhá would have differed from that in the Hindi siáhá, and then, when the Col- LALA BANSHIlector came to examine the books, the fraud would have been discovered directly. Therefore, though they are stated in the body of the Persian siáhá as received in cash, yet in the summing up they are not summed up in the cash column, but they are summed up as a part of those sums which were received by transfer of deposit. We also find in these Persian siáhás that day by day, not only is the ultimate balance signed by the treasurer, but the pages are also signed. It is said that he does not understand the Persian language, but there is no satisfactory evidence of this, and it is very improbable that the Persian clerks should have dared to go on day by day making those false entries which the treasurer could have discovered at any time. Then, besides that, there was another clerk, who kept a book of receipts, called the dákhilá account, in which nothing was entered, except payments in cash, and in which we find these entries as being received in cash. Now, taking all that evidence of the payments being received in cash, are we to believe that the landowner or his agent who brought the money, the village authorities, the Persian clerks, the persons who kept the dákhilá books (of whose guilt there is no evidence whatever) were all combined to cheat the treasurer, and that they should succeed during this long period of years in cheating the treasurer, though, at the very time they cheated him, they brought these documents day by day to him for his signature, thus giving him an opportunity of detecting them?

Moreover, if one looks at the accounts kept at the time, it will be seen that there is no reference in them to the deposit accounts from which the sums embezzled were fraudulently pretended to be taken. There is no reference to them in the Hindi siáhá, or the Persian siáhá, or in the dákhilá book. The only place in which you find any reference to them is in the receipts themselves in the hand-writing of the treasurer himself. There you find a reference to the alleged transfer, and that is not denied. It is admitted by the accountants of the defendant that in reality these transfers were all false and fictitious, because in reality they were not transfers from the

1872

LALA BANSHI

DHAR v.

MENT OF

BENGAL

accounts of the landowner who made the payments, but were in reality transfers from totally different accounts which had THE GOVERN- nothing to do with these particular receipts; but being afterwards, as it appears, made up in some other way, which it is not necessary to inquire into, the Courts below agreed in the belief that the money was really received in those cases, and their Lordships certainly do not see any ground at all for differing from that opinion.

This morning Mr. Forsyth has taken us through two selected instances, and we have examined and traced these two cases all through, so as to enable us to see what was the effect of the entries; and that which has been stated has been proved in these cases. We have not thought it necessary to go beyond that; nor is it necessary to consider in detail whether there is sufficient evidence in those cases in which the entries are not produced, but only the copies of the receipts, their Lordships must consider them as copies of the receipts;-nor is it necessary to go into the detail of those cases where no receipts at all are produced, because it is quite clear that the whole of the frauds are upon one system from beginning to end; and when it is once shown and proved that there were frauds to this amount, and how they were concocted and carried out, and when it is further shown clearly from certain instances that there is evidence, beyond all question, that the treasurer was a party to them, the inference is very strong indeed that he was a party to all the frauds. It never could be believed that some of the frauds were committed with the knowledge of the treasurer, he receiving the money, and that the rest of the frauds were not practically committed in the

same way.

Upon these grounds, therefore, their Lordships have come to the conclusion that the judgment of the Court below was right, and that it was fully supported by the evidence, and hence they will recommend to Her Majesty that this appeal should be dismissed with costs.

Agent for appellant: Mr. Wilson.

Appeal dismissed.

Agents for respondent: Messrs. Lawford and Waterhouse.

[PRIVY COUNCIL.]

JATINDRA MOHAN TAGORE AND ANOTHER (DEF end-
ANTS) v. GANENDRA MOHAN TAGORE

(PLAINTIFF).

GANENDRA MOHAN TAGORE (PLAINTIFF) . JA-
TINDRA MOHAN TAGORE AND ANOTHER (Defend-
ANTS).

ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT
FORT WILLIAM IN BENGAL.

Hindu Will-Deeds of Gift-Construction, Rules for-Maintenance of Son-
Trusts-Life-estates-Estates tail.

In construing transfers by gift among Hindus, a benignant construction is to be used, and the donor's intention carried out, if ascertainable, to the extent and in the form which the law allows. Thus, if an estate be given by a Hindu to A without words of inheritance, it will, in the absence of a conflicting context, give an estate inheritable as the law directs; if to it be added an imperfect description of it as a gift of inheritance not excluding the inheritance imposed by law, an estate of inheritance would pass; if a gift be in terms of an estate inheritable according to law, with superadded words restricting the power of transfer which the law annexes to that estate, the restriction is to be rejected; if a gift be to A and his heirs to be selected from a line other than that specified by law, and expressly excluding the legal course of inheritance, the gift is only good so far as consistent with the law-A would take a life-estate, and the other limitations would fail. All estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance, are void as such, and by Hindu law no person can succeed as heir to estates described in terms which in English law would designate estates tail.

In order to make a gift under a will good by Hindu law, the donee, except in the case of an adopted child, or a child en ventre sa mère, must be a person in existence capable of taking at the time when the gift takes effect. A child adopted after

* Present:-THE RIGHT HON'BLE SIR JAMES W. COLVILE, LORD JUSTICE JAMES, LORD JUSTICE MELLISH, MR. JUSTICE WILLES, SIR MONTAGUE SMITH, SIR R. P. COLLIER, AND SIR LAWRENCE PEEL,

P. C.* 1872 Feby. 20, 22, & 23, & July 5.

1872

JATINDRA

MOHAN
TAGORE

V.

MOHAN

a man's death, in pursuance of a power given by him, is in contemplation of law begotten by that man.

The law of wills among Hindus is analogous to the law of gifts; and even if wills are not universally to be regarded in all respects as gifts to take effect upon GANENDRA death, they are generally so to be regarded as to the property which they can transTAGORE. fer, and the persons to whom it can be transferred. A person capable of taking under a will must be such a person as could take a gift inter vivos, and therefore must, either in fact or in contemplation of law, be in existence at the death of the testator. Sreemutty Soorjeemoney Dossee v. Denobondoo Mullick (1) distinguished. Trusts are not unknown to Hindu law; they can be created for carrying out such intentions as the law recognizes.

GANENDRA

MOHAN TAGORE

v.

JATINDRA

MOHAN TAGORE.

There is no reason why a Hindu should not, by will, create an estate for life. Where the testator left his property to A for life with remainders, showing that A should have no more than a life-estate, but that the testator wished to tie up the estate by provisions in tail, held, that A could not be declared entitled to more than a life-estate.

Where a testator directed his property to go in a certain way on the "failure or determination" of estates created by him, it was held that such words contemplated the fact of those estates being legal and valid; and that as they were illegal and invalid, no effect could be given to the directions as to the further devolution of the property.

The will directed that, as to the personalty, the trustees were, after all annuities and legacies had fallen in and been satisfied, to stand possessed of, and interested in, the corpus in trust absolutely for the person or persons entitled under the limitations in the will to the beneficial or absolute enjoyment of the real property. The High Court gave the tenant for life the surplus of the interest remaining in the hands of the trustees after payment of the legacies and annuities, but excluded him from any right to the subsequently accruing interest: held, that he was entitled to the interest of the personalty after such falling in and satisfaction.

Where a son had received as a gift from his father property producing at the time Rs. 7,000 a year, their Lordships, without deciding whether a son could be deprived of maintenance, considered that he had received an adequate maintenance.

All the existing parties interested in a will being before the Court, a decree can be made as to the rights of all parties. Lady Langdale v. Briggs (2) distinguished.

THESE were cross-appeals from the decision of the High Court (Peacock, C. J., and Norman, J.), dated 1st September 1869, reversing the decision of Phear, J., as to the construction of the will of Prasanna Kumar Tagore. The will and the judgments of the three learned Judges are fully set out in the report of the case when before the High Court (3).

The two tenants for life, Jatindra Mohan and Surendra

(1) 9 Moo. I. A., 123.

(2) 8 De G. M. & G., 391. (3) 4 B. L. R., O. C., 103.

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