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![handle is hein.slavery/ssactsengr0618 and id is 1 raw text is: XII MOORE IND. APP., 522 . NEELKISTO DEB BURMONO
viz., the Act, No. XIV. of 1859, which, on the facts alleged, furnishes no ground
whatever for it.
Then there is another objection founded on the want of a Certificate. This
appears not to have .been taken in the Court below, and is entirely inapplicable to
a suit of this character.
The Act which provides for the granting of a Certificate is intended for the pro-
tection of Debtors to a deceased's estate; but Sah Bunarsee Doss was never a Debtor
of the Mother, nor did his taking the share, or property, or part of the share, or
property, of the Plaintiff, by an invalid title, constitute him a Debtor to the estate.
The right of action is founded entirely on wrong, and not on privity of contract.
Their Lordships, therefore, must humbly advise Her Majesty to allow this appeal,
and direct that both decrees be reversed, and that the cause be referred back to the
Judicial Commissioner, in order that he may give the necessary directions that it
be reheard by the Civil Judge of Court of Lucknow, with liberty to either party' to
add to or amend the pleadings; and that the costs of the appeal on both sides should
be taxed, and be costs in the suit, and abide the result of the suit.
In arriving at this conclusion, their Lordships have no intention whatever of
giving any judgment on the merits. They are simply of opinion, that the facts
bught to be inquired into on proper pleadings and evidence, including the first
Defendant's Letter of the 30th of January, 1855, if the Plaintiff so desires it; and
if the Plaintiff should prove his title as against the first Defendant to the whole or
part of the Notes., then that the first Defendant ought to be called on to show, if he
can, either title in himself, or some [522] grounds displacing the Plaintiff's right
to complain of his acts; and that thus the facts and the real merits of the case should
be arrived at.
Their Lordships are further of opinion, that the second Defendant ought not
to have been dismissed; for if the Plaintiff has any right against the first Defendant,
it may be that the first Defendant, if he makes satisfaction to the Plaintiff, ought
to have the benefit of any subsisting judgment against the second, or, at all events,
to have some remedy by way of indemnity or otherwise over against him; it must
in this point of view be obviously for his benefit 1hat the second Defendant should
be bound by all the proceedings in this suit; the Plaintiff having brought the second
Defendant before the Court, he, under the circumstances, ought not to be dismissed
unless the whole suit should eventually fail on the merits against the first Defendant.
[523] NEELKISTO DEB BURMONO,-Appellant; BEERCHUNDER THAKOOR
and Others,-Respondents * [Mareh 8, 9, 15, 1869].
On appeal from the High Cowrt of Judicatuire at Fort William?. in Bengal.
The normal state of every Hindoo family is joint, the presumption in the absence
of proof of division being, that the family is joint in food, worship, and
estate [12 Moo. Ind. App. 540].
Where a family custom of descent to a single heir, as in the case of a Raj, is
proved to exist, such custom supersedes the general Hindoo law, which still
however regulates all beyond the custom [12 Moo. Ind. App. 542].
Suit in the nature of an ejectment by N., the half brother of the late Rajah of
Tipperah, to recover from B., his uterine Brother, in possession as Rajah,
a zemindary forming part of the Raj of Tipperah, impeaching the title of
B. as not having been validly appointed Jobraj (or young Sovereign), accord-
ing to the family custom, by the late reigning Rajah on grounds first, of an
alleged promise by a former Rajah, that N. should succeed, and secondly,
* Present: Members of the Judicial Committee,-The Right Hon. Lord Chelms.
ford, the Right Hon. Sir James William Colvile, the Right Hon. Sir R. Phillimore
(The Judge of the Court of Admiralty), and the Right Hon. the Lord Justice Selwyn.
Assessor,-The Right ion. Sir Lawrence Peel.
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