Ramratan Sukal vs Nandu and another

Watson, J. 1. This is an action brought by the appellant in 1886, before the Court of the Deputy Commissioner, Hoshangabad, in which he has obtained a decree against the respondents as widows and heirs of Khushal, a zemindar, who died in 1878. He was survived by three widows--Mussamut Deo, the senior, who died in January 1881, and the respondents Mussamut Nandu and Mussamut Sheo, who are defendants in the Court below. 2. The action was laid upon a bond dated the 7th November 1881, which appears to have been granted in favour of the appellant by Mussamut Deo, who at that time was the manager of the estate. Various defences were set up by the respondents, which it is unnecessary to notice in this appeal. There was no written statement, but the Deputy Commissioner had the pleaders of the parties before him; and after hearing them he settled issues for the trial of the cause, the third issue being--"Was it," that is, the bond sued on, "executed by Mussamut Deo, patelin; if so, are defendants 2 and 3," that is, the two respondents, "liable for the money due on the bond?" Now it was clearly the duty of the appellant to prove, in order to make his claim under the bond good against the estate in the hands of the respondents, that the senior widow duly executed the bond, because it is her intelligent signature in the capacity of a Hindu widow representing the estate, which alone could give validity to such a document. 3. The Deputy Commissioner found in favour of the appellant on the third issue; but the case was taken by appeal to the Court of the Commissioner, Narbada Division, who found on that issue for the respondents. He intimated an opinion in his judgment, that the case made by the appellant to the effect that the widow executed the bond with her own hand did not stand the test of probability, when the evidence was examined, but he did not embody that view in his finding, which was in these terms: "I hold, therefore, that the bond was not executed by Mussamut Deo with a full knowledge of all the circumstances of the case, and that there was no bond fide execution as far as Mussamut Deo is concerned." It appears to their Lordships that the onus of proving due execution lay upon the plaintiff, who relies upon the signature of a Hindu widow as binding the estate which she represented. That point was made the subject of comment by this Committee in the year 1880 in the case of Karneswar Pershad v. Run Bahadur Singh I.L.R. 6 Cal. 843; L.R. 8 I.A. 8. 4. The case was appealed to the Judicial Commissioner, who expressed an opinion--Their Lordships do not think he meant to pronounce any finding--upon this point. He said: "I may add, however, that it appears to me very probable not only that Mussamut Deo did put her seal to this bond, but also quite understood what she was about." It has now been conclusively settled that the Third Court, which was in this case the Court of the Judicial Commissioner, cannot entertain an appeal upon any question as to the soundness of findings of fact by the Second Court; if there is evidence to be considered, the decision of the Second Court, however unsatisfactory it might be if examined, must stand final. If, therefore, the finding of the Commissioner upon the third issue cannot be successfully impeached by the appellant, his case must necessarily fail. 5. The argument of the appellant''s counsel satisfied their Lordships that the decision of the third issue one way or another mainly depended upon the credit which ought to be given to oral testimony of a conflicting character; and that the finding of the Commissioner upon that evidence was substantially a finding of fact. 6. Their Lordships will therefore humbly advise Her Majesty that the judgment appealed from ought to be affirmed, and the appeal dismissed with costs. The appellant must pay to the respondents their costs of this appeal.