GOPEE ~0~~~ TAKOOR v.

RAJA^ ~ A ~ 118341
~ A XI ~KNAPP,
A 22-8
~

court below, and of the r ~ K o x ~upons which the ~ u d ~ e an t p ~ against ~ l was

~
~ y we are of opinion that it should be affirmed w i t ~ o u costs.
~ i l ~ i m a t egiven, t
Mr. Serjeant Spankie observed, that a~ the suit had been e a r r i d on by the East
India Company on the part of the respondents, a t the sugges$ion of the Privy
Council, they ought to recover their costs from. the respclndent. A doubt might
exist on the subject, as they had undertaken this suit before the passing of the last
Privy Council Act,
The court recommended a petition t o be presented on the subject.
[For powers of Judicial Committee as to costs, see now 3 and 4 Will IV., e. 41, S.
15 ; and 6 and 7 Vict., c. 38, s. 12 ; 0. in C, of 13th June, 1853, Stat, R. and 0.
Rev. Vol. iv. p. 306.3
. "

ON ~ P P ~~0~ ~ S~~~~~ ~~~A~~

~ A THE A ~ A OF'
~ ~ ~E ~ ~~ AT L .
OfIUN TIAKUOR and O t h e r s , - ~ ~ ~ ~RAJAH
~ ~ n ~ ~A ; I ) ~ ~ ~ ~ T ,
[Jan. 4, 6 , 8, 18343,
~~~~~~~~~~

Money advanced to the guardian and agent of aa infant zemindar to pay the
arrears due to Government on account, of his z e ~ i n d a r yis recoverable in the
Mofussil Courts from the ze,mindar, although the lenders took a bond in the
English form for i t from his guardian and agent in their own names, with-
out any mention in i t of the zemindar, and sued and ohtained judgment
ngainst them. personally in the Supreme Court a t Calcutta upon the bond,
and took one o f them in execution under it.
A statute restricting courts of justice from hearing and d e t e r m ~ n i 1suits ~~
upon certain contrack not entered into w~thoutthe c o n s ~ n of t Govern~ent,
and not registered in a p a ~ ~ c u l manner,
ar does not render those cmtracts
illegal, and therefore when that statute has been repealed, such conlmcts
may be enforced in courts of justice, a l t h ~ u g hentrtred into whilst the statute
was in force.
The a ~ p ~ were ~ ~the a s~e pt r ~~e n t a t i vof~ Narain Takoor and ~ ~ n ~ r a s s e
Ghose, two m.oney-~end~rs in Calcutta, who on the 22d of March 1786, duriiig the
minority of %heres~ondent,advanced a sum of 60,300 rupees to Janikiram Sing,
his uncle, and the dewan otr manager of his zemindnry, and Sudanund Sircar, his
vakeel a t Calcutta, far the purpose of enabling them to discharge the arrears due
from his aemindary to Government;. It was proved that Narain Takooer and Bana-
rassey Ghose bought for 60,300 rupees a bill for 60,000 rupees from the house of
G u n n ~ sI)oss, a t Cnlcutta, on their house a t M o o r s l ~ e d a b ~p,~ y a b l ethirty days
after sight; that this bill w~b8j ~ n i e d ~ a t e ldelivered
y- ever to Mr. Cooper, the super-
intendent of the Khalsa or Treasury a t Calcutta, and that lie t r a n s ~ n ~ t t eitd to the
r ~d, ~ ~ c h a r gofe the arream of revenue due from the re-
c o l ~ ~ ~aot i~. ~ n a g e p o in
~ . a security for the paymenta of this [2291 sum, Narain
~ p o ~ d e n t 'zse m ~ n ~ a rAs
Takoor and Banarasse~Ghme took a band from Sudanund Sircar. The money was
not paid within the time itppointed in the bond, and on the 6th of June 1187,
Janikirarn Sing and Sudanund Sircar both entered into a joint and several bond,
in the English form, to Hr. Noble Ledlie fbr the s w n of 80,150 rupees, which in-
cluded both the former sum ~dvanced,together with interest upon it, and also other
sums alleged to have been advanced for the service o€ the zernindary, but of the
advanoe of which no proof was given in the suit.
Mr. M l i e executed the same day a declaration, that he; wa8 merely a trust* of
the sum secured by this second band for Narain T&wr and Bmasawey Ghose. No
mention was made in the latter bond (wh~chonly- was p r o d u c ~in evidence in
the oause) of the purpose for which the money was advanced, nor did the name of
the appell&nt o r his aemindary appear on iL, me money still r e m ~ n i n gunpaid,
p r o c e ~ i n g swere taken on %e latter bond a g a ~ n s tJ a n ~ k ~ r aSing
m and S u d ~ u n d
Sircar in the Supreme Court a t ~ ~ l e and u Janikirasa
~ ~ , Sing was taken ia execu-
467
XI KNDP, 230 COPEE OH^^ TAKOOR 2). RAJAH ~ A ~ H A ~[1834]
A T

tion under them, and died in gaol, The a p p e l l a n ~then c o ~ e n acsuit ~ against
t.he respondent in the Zillah Court of Dinagepore, which, on the 17th of February
1’797, dismissed their suit with costs. They &en appealed t o the Provincial Court
of ~ o o r s h ~ & b awhich,
d, after taking further evidence, reversed, an the 17th Feb-
ruary 179’7, the decree of the Zillah Court, and adjudged t o the appellants repay-
ment of the 60,300 rupees, toget.her with interest and costs thermn, amounting
al~ogetherto 122,331 rupees ’7 a n a s . The present ~ ~ p o n d ethen n t a p p m l d to the
Court of Sudder Dewanny Adawlut, who, on the 4th of December [230] 1799, re-
versed the decree of the Provincial Court, and from their decree the preserAt appeal
was instituted.
The principal questions in the case arm0 on the con~ructionof the 20th section
~ n sthe a d m i n i s t r a t ~ aof~ justice in the courts of Mafussil and
of the? ~ c g u l a t ~ for
Sudder Dewanny Adawlut, passed in Council the 5th day of July 1781, but not
printed till the 5th of July 1783, by which it waa resdved, &er d k , I‘ That the
powers and authorit~eshereby given and deputed do in nowise extend to, or be
coii~truedto extend to authorize any court of ~ o f u ~Dewanny i l Adaw~utto hear,
try, and determine any suit whatsoet.er against any zemindar, talookdar, chovdry,
or other holder of land, being ma~guzary,for any sum of money or other valuable
consideration, or any debt, contract, or duty c o n t r a c ~by his predecessor, unless
it shall be proved to the satisfaction of the court that the money originally lent or
arising from such other ~a~uable.considerati~n was for the service of the zem~ndary,
talookdary, chowdry, or other land, and actually paid to the government as part
of the revenues thereof; nor in any case of part having been paid, to decree the
plaintiff more than such part, with i n t e r ~ for t such part, at the rate hereinafter
mentioned; nor pass any decree in my suit against such zemindar, taloakdar,
chowdry, or other landholder, on the proof arising from any bond, note, or instru-
ment only, wit~ioutdirect proof, t o the s a t ~ ~ a c t i oofn the court, that the pr~ncipal
sum sued for really and Bona fide was lent and paid in ready money ; nor to decree
any interest en any debt due from a y such zemindar, talookdar, chowdry, or other
landholder, beyond the simple interest of 8 per cent. per annum, to be calculated
from the time the interest first began to accrue to the 30th of Chout o r E2311
ths 30th of Rhadun next ensuing the date of the decree, according to the period
respectively ~ t a b l i s h e dfor t b close of the year in the province or soubah to which
the zemindary, taloolrdary, chowdry, or other land shaII belong; so that the aggregate
sum produced by the interest thus added ta the principal shll be, and shall be
considered, the only debt due from such zemindar, talookdar, chowdry, or other
landholder; nor except the decree do provide that the same be paid by yearly
instalment, which the judge, according to his discretion, is hereby a.uthorized to
limit and appoint; nor to authorize any decree by which any sum of money is
decreed to be paid by any such zemindar, tdookdar, chowdry, o r other landholdgr,
to be othorwisa enforced or executed than in the mann%r therein m ~ n t ~ o (they ~ ~ ; ”
being set out a t considerable length) ‘‘ nor concerning any debt, contract, bond, or
other engagement entered into or concluded by any such zemindar, talookdar, chow-
dry. or other landholder, after the 1st of August 13’81, unless it shall be proved to the
court that the same shall have been contracted with the previous sanction and
consent of the commitkm 0;e revenue, and that a note or ~ e m o r a n d u mspecifying
such sanction and cons~ntshall have been registered in the Sudder C a ? i ~ n g ooffice; e
nor to any debt, contract, bond, or other engagement entered into oz concluded by
any such zeniindar, talookdar, chowdry, or other landholder, with any Europeai~or
with any native officers employed in the collection of revenues, or in any courts of
justice, whether a memorandum of the same be or not be registered.”
These1 restrictions on the Mofussil courts not to entertain suits againsk zemindars,
etc. except on contracts, contracted and registered as mentioned in the Regula-
[232]-tion of the 5th July 1781, were reenacted by the 20th article of the Eegula-
tion of the overn nor-General in Council of the 27th of June 1787. On the 29th of
October 1790, however, an order was issued by the Gover~or-~eneral in Council in
the Revenue department that the following clause in the 20th article of the Regula
tions for the admin~strationof justice be rescinded: <‘Nor concerning any debt,
contract, bond, or other engagement, entered into or concluded by any such
zemindar, talookdar, or other I a n d ~ I d e r ,after the 1st of August 1’781, unless it
468
 GOPEE MOEUN TAKOOR ‘U. RAJAH RADHhNAT [1834] I1 XNAPP, 233

shall be prayed to the court that the same shall have b e n co~~tracted vith the
previous ~ a I ~ c t and
i o ~consent
~ of the c o ~ ~ ~ m or
i t Board
t ~ , of Revenue, and that a
note or mei~orandums p ~ ~ f such ~ ~ g and conseut. shall have been regis-
y ~ sanction
tered i n the udder ~anoongoeoffice.”
By the 28th Regulat~oiiof 1193, which i s entitled, “ A ~ ~ u ~ a tfor i o re-enact-
n
ing, with ~ n o d ~ ~ c a such n s ~ of the rule passed on the 27th June 1787 as
~ ~ oparts
pro?& its covenaated civil servants of the ~ o n i p a n yemployed in the administra-
tion of justice or the collection of public revenue lending money to zeinindare, in-
dependent talookdars, or other actual proprietors of land,” the judicial and revenue
oHicers and all covenanted servants of thc Company were prohibited from lending
money to zemindars and other proprietors of Itznd, and such loans were declared
not recoverable in courts of justice. There was BO provision i l k t h i s ~ e ~ ~ l l ~ ~ t i
however, in any way re-enacting those parts of the lteguliation of 1181 and 1787 afi
were repealed by the Order of the 29th of October 1790,
&fillerand ~ ~ ’ i ~ r afor
r n ,the ~ppellaii~s.--~t is obvious, from the I a I ~ ~ u a gofe the
first part of [233] the ~ e g u ~ ~ tofi o1181,
~ z that ~ e ~ 3 ~ i ~a~r edliablea r s by the la\y of
India to pay nioney lent i n order t o satisfy the a r r e a r ~of revenue due to Govern-
ment in rapeet of their estates. This principle was a c ~ n o w l e din~G~ o ~ ~ ~
~ 4 c v. Skeoo
~ a ~ ~ ~ S k~g~(2 ~ ~ a c K s ~a?g60), l i case there \viis not
~ ~a~tl et l~~~o, ~in~ that
suHicie~tproof of the ~ u n e yhaving been advanced for the purpose of d e ~ r a y ~ i i g
Governnzent charges, and co~sequentlytha decree was made against. the agent who
had borrowed it. Here the money i s clearly proved to have been lent t o pay off the
arrears due from the respondent, whose zemindary, had it not been so advanced,
must have been sold to have discharged them, and he i s bound, both in law and in
conscience, to repay the appdlants the Ioan, by means of which his estate WCVILJ
Tbe action by the appellants in CaIcutta against the respondent’s manager and
vakeel, who gave as sureties a bond to a trustee for them, is n o bar to their bring-
ing the present suit against the respondent as principal; if indeed itewould have
been so, he ought t o have pleaded it, and he has not done so. The latter part, of
e d , never could be coi~struedto pre-
the R ~ u l a ~ i oofn 1781 never was ~ n t e ~ ~ d and
vent any one from lending money, or enter in^ into any debt, bond, c o ~ ~ t r or a c en-
~
gagement with zemindars : the only effect of i t was to prevent the suiiig them in the
native courts upon those contract^. It is, in t<ruth,a ~ e g u l a t i o naddressed to the
courts and not to the parties, and a colitrary interpretat~onof it would rendes the
Government guilty of great injustice; for i t was not printed till t w o years after i t
was passed, and thus would be made to invalidate transactions entered [234] into
between parties who, when they entered into them, must have been in ignorance of
their having been prohibited. I n the) construction o f our own statutes, the dis-
tinction i s well known between e ~ a c t ~ e nthat t s i n v a ~ ~ ft.
d acontract
~ and those
&ich nierely prevent the parties from suing upon it. %%us in ~~o~~~~~~~~ v. Price
(5 Vesey, 2 3 ~ ~ , w hthere
e r ~ were two clauses in the Annuity Act then in force, and
the first of them provided, that all bonds for securing annuities which should be
executed after the passiug- of the Act, and of which a meinorial should not be en-
roiled within twenty days after their exec~ition,should be null and void ; and the
second prov~ded,that all proceedings in any action b r o u ~ h upon t any bond for
s e c ~ r i na n~ annuity executed before the passing of the statute, and not enrolled,
should be null and void ; the aster of the Eolls not. only held, that an ~ ~ n e n r o l l e ~
snnuity bond, executed before the statute, of which no memorial had been enrolled,
was perfectly good, but also admitted the creditor to prove the loss of it, and to
yIyjover the sum secured by it. Directly, therefore, the Regulation now in question
was repealed, t,here was nothing to prevent the appellants from instituting their
s u i t in the Xofussit courts; for a repealed statute i s considered in law as i f i t had
never existed, Sztrtees v, ~~~~~o~(9 Bar. and a e s . 750), ~~~~~~~~~s v. ~ ~ p ~ (10 , o o ~
B. and G. 30), Miller’s case (1 WEB.Blacksb. 351). In the late case of ~ ~ ? ~ v. r c ~ t ~
Crease (5 Wing. 177), 8 boma fide payment by a bankrupt after an act of bank-
ruptcy, which was invalid under the statutes of bankruptc~yin force a t the time it
was made, was held t o be protected by the 6th Geo. 4, c. IG, which came into [23fi]
operation before the trial, and the 82d Rection of which provided, that aXt &o?wz f;&
469
11 KNAPP, 256 GOPEE MOHIJN TAKOOR v. RAJAH RAREANAT [1834]

paynents made, or thereafter to be made, should be deemed valid. Whenever, in-

deed, a r ~ t r i c t i o upon
i ~ suing is removed, a party may i m I ~ ~ ~ i a t either
e l y corn-
111ence o r prosecute his suit, who had beconie possessed of a title to do so previously
to its renioval. ~~~~~~~s v. ~ ~ ~(2 Bar. ~ ~anduAd.r11461, ~ Ts ? . ~ ~ ~ ~ v. B%We
~ - ~ ~ u . ~
(2 Sim. 411).
S p a r ~ k (Serji.)
~e i ~ the face
and Lloyd, for the ~esponde~its.-There is i i o t h ~ l ou
of the bond to show that the ~ioI~ey-lenders looked to any other than the personal
security of the respondent’s guardian and manager, between whoni and the appel-
lants there appoar to have been other nioiiey transactions. ?So proof has been
attempted to be ~ ~ ~ ~that o uthe
g ~re~nainder
~ t ~ of the money for which the bond was
originally given had been advanced for the purposes of the zcinindary, and the
itringing tlie present action a t the latest period the law would perinit them was
clearly an after-thou~litof the appellants, when they had failed to obtain anfihing
iti their action in the Supreme Court against the persons t o whom they had in fact
advanced the money. If it was intended that the zemindary should be liable, why
‘vas it not stated on the face of tlie bond! wIrert. it was the interest of all parties t o
have done so; of the lenders, to have got a better security; of the bor~owers,to
sam the~iiselvesfrom the consequences of being liable for another person’s debt.
The mere circuinstances of the f o ~ i ~ ~ ~ requiredl i ~ i e s by tlie Regu~at,~ol~s in force
iiot having beeu observed, shows that tlie zeinindary was never looked for as a
fiecurity at the t h e of the loan.
[2361 The end of the Regulations of 1781 and 1787 was t o prohibit the contracts
themselves, and that this has always been considered as their object is shomn by the
language of tlio title of the Regulation of 1793, and the Order of 1791, which r e
pealed them, i s clearly prospective. The decisions which have been cited upon
Eiiglidi statutes do not apply, because those statutes only relate to ~ r o ~ i i b i t of io~~
rernediw; here, we contend, the Regu~ationforbids the contract itself. Ailany of
those decisions, indeed, as C ~ v. Creirse
~ [5 Jning.
~ 1771,
~ turn~ ~ ~ on the
r ~ ~ L
construction of the particular words of tile Act of Parliament i n question in them.
Fifilicr, in reply.
Mr J. Bosanquet.-In this case a suit Fyas commenced, in the year 1796, in the
Zillah Court of ~ i n a g e i ~ o rbye the a I ~ p e l ~ a nrepresenting
t~, Burp Narain Takoor
and Banarassey GIiose, who vere money-lenders at Calcutta, agairist Zernindar Baja
~ a d ~ a n atot , recover a large suni of nioney, a ~ ~ o ~ it o~ 80,150~ t ~ nrupees,
g alleged
to have been advanced by them in 1780 for the use of the zeniindary, during the
minority of the zernindar, to t w o persons named Sanikiram Sing and Sudanund
Sircar, who were the lawfully appointed manager and vakeel of the zemindary.
The principal part of this sum was said to have been advanced for the purpose
of ~ ~ i a ~ ~those
i x i gpersons to pay the k k t then due from the ~ ~ n i i r ~to d ~Govern-
z-
ment, and to haTre been actually received by Governnient in the discharge of the
kist .
To s e ~ ~ the r e money t h u s advanced in 1786, a bond, in the English form, was
given by Sndanund Sircar, 12373 the vakeef at Calcutta, to an Exrglish gentleman,
as a t r ~ ~ s for
~ e the
e lenders, and the a i ~ o not u ~heing
~ ~ paid, another bond was given
f o r the same amount, with interest, in 1787, by Janikiram Sing and Sudanund
Sircar to the same trustee, who, in each case, signed a d ~ ~ a r a t of i otrust
~ in
famur of the lenders. The first bond was not put in suit, having been given up ;
but the money nut having beexi paid, the two obIIigors in the last h i i d were sued
upon it in the Supreme Court, and taken in execution, and Janikiraiii Sing died in
gaol.
The Zillizh Court dismissed the suit against the1 zemindar. On an appeal from
the decree of the Zillah Court to the Prouincial Court, much evidence was given
which had not been laid before the Zillah Court, the foriner decree was reversed,
with costa, and the Provincial Court d e t e r ~ ~ that ~ e dthe zeniindar r a s liable .to
pay the sum of 60,300 rupees (the amount, for which the boiid wae given), together
with interest equal to the whole p r ~ n c i ~ amaking l, to~etli6r120,600 rupees (the
amount o f the penalty of the bond); that court being of opinion, that whatever
loan Itorrowed in the time of J a n i k i r a ~Sing, ~ ~ o r of any other S u r ~ u r ~ of k ethe
~
zeniindary, sliould be proved to have been actually paid into the Treasury, was
470
 GOPEE MOHUN TAKOOR 21. RAJAH RADWANAT [183 41 I1 KNAPP, 238

payable by the zernindar from the z e m i n d a r ~ ;and being also clearly of opinion
that 6 0 , 0 ~ 0rupees, paid by the money-lenders, was received into the Treasury on
account of the zemindary. The sum of 300 rupees in addition to the 60,000 rupees,
the amouiit of the loan, appear to have been the expenses attending the transaction,
being just one-half per cent. upon tire h a i r ; aiid the Provincial Court seems to
have c o ~ ~ ~ i the ~ ~ae~ ri oeu~i ~oft the o ~ ~ ~ i ~upon a t ~the
o i zeniindar
~ as con~-[238~-
mensurate \.i.itli the penalty of the bond. On appeal to the Sudder Uewanny
Adawlut, tlze decrce of the Provincial Court was reversed and that of the Zillah
Court affirm ed.
The only reason for this reversal, wlrictr i s distinctly expressed by the judges of
the Sudder Dewaiiny Adawlut, is f o u ~ ~ d eupon d the latter part of article 20 of t i l e
Regulations of July 1781 and June 1157, which they say was overlooked by the
Provincial Court, when referring to that article, which, after prohibiting the courts
of justice f roin d e t e r m i n i n ~any suit against any zemindar, talookdar, chowdry,
or other holder of land, being i ~ a l g u z a unless ~, it should be proxrcd. to the satis-
faction of the court, that the money originally lent o r arising from such other valu-
able consideration was for the service of tlie zeniindary, talookdary, chowdry, or
other land. and actually paid t o tlie Government as part of the revenues thereof,
proceeds expressly t o prohibit. the courts of justice froin passing ally decree iii any
suit against a zeniiiidar or other landho~derof tnalpzary land c o ~ ~ c e rany ~i~i~~
dei%, (witract, bond, or other engagenient, concluded by thein after tlie 1st August
3781, unless proved to have been contracted with the previous sanction and coizsent
of the Committee of Revenue, and that a note o r memoranduni specifying such
consent had been registered in the1 Sudder Cairoongoe office.
The ,judges of the Sudder Dewanny Adawlut do not express any opinion upon
the effect of the evidence, o r any d i s s a ~ ~ s f a c t iwith o ~ i the conclusion drawn from it
by the Provincial Court, but found their decree of reversal upon the clause of the
~ e ~ ~ ~ ~which a t ihad o ~not~ sbeen noticed by tlie Provincial Coui-t;, and they state
no particular o ~ j ~ ~toj the o ~p sr i ~ ~ c ofj ~the
~ ede-~Z3~]-c~sio~i of the Provincial
Court ; they simply add a remark ~ p o ~ s ~ band l y , I think most probably, in allusion
t o the effect of the clause supposed to offer an ~ n s ~ i ~ ~ e~r m a b~~e ed i i ~ to
e i ithe
t suit),
that the suit n-as not instituted until Janikiram Sing had died in gaol, where he
was confirred en account of a decree obtained against him in the Suprenie Court
for the aimunt of the bond, the subjwt of the present action, and that the natural
iiifere~iceto be drawn from this fact i s , that the resr~o~~derIts (in that court) d i d not
at that time conceive that they could rriaintain any suit at law oil account thereof
against the appellant.
The cam has been argued both upon the effect of the evidence and upon the
law. The evidence i s alleged by the respondents to be insufficient to support the
conclusion of the- Provincial Court, and the app~llaiz~s insist that. the clause of the
Regulations relied upon by the Sudder Dewanny Adawlut was rescinded a t the
time when the suit was commenced, and consequently that the appellants were a t
liberty to pursue their remedy as if the clause never had existed.
Tlieir ~ o r d s ~ ~are i I ~ofs o p ~ ~ that ~ o nthe evidence laid before the Provincial
e d the. sum of 60,000 rupees was advanced by the
Court s u ~ c i e ~ i t l~yt a b l ~ s ~that
persons d i o n i the appellants represent, by the means of a hoondy or bill of ex-
change, drawn ilk the name of GUnneSS Doss Of Calcutta, in favour of the coIlector
at, ~ ~ o o r s l ~ e ~and ~ a d , into the Treasury of the Gmwmnend on accoullt of
a ~ received
the kist dire from tlre zeniindary of Raja Rad~zaiiat,and paid when due; and they
are also of opinion, that, upon the evidence, this sum niust be taken to have beell
advanced, not t o Janikiram Sing and Sudanund Sircar, o r either of them, in their
individual characters, or upon their own account, [240] hut advanced to them as
maliagev and vakeel of the zernindary, and consequently, according t u the law pre-
vailing among the natives of India, became the subject of demand upon the zemin.
d s r for whose benefit it was advanced. The hoondy was given by the shroffs, op
money-leIiders, at Calcutta to Sudanvnd Sircar, vrho was th0 vakeel of the zeniin..
dary ; l3oi.h tlie ~ ~ o ~ e y - l e I ~went
d e r swith him to the Khalsa, or Treasury, t o see the
hoondy delivered to the proper officer of the revenue, and tlre vakeel alone, in the
firsLinstance, gave any bond by soap of security to the lenders. The payee named in
the bond was an English gentleman, a nlere trustee to the money-lenders, wllose
471
11 KNMP, 241 GQPEE ~ O TAKOOR
~ ' .U RAJAH
U ~ ~ ~ [I8343~ ~

mime was introduced for the purpose of euabling the parties interested to sue in the
Supren~eCourt, and the oil~issionof the Rajah's nanie, and of any mention of the
zernindary in the bond, 8s well as the omission to obtain and register the consent of
the ~ o i ~ Ior~ Board ~ t tof~Revenue, may well bc accou~itedfor from the appre-
hension that the introduction of any matter apparently relatiilg to the rewnue
might prejud~cethe right to sue in that court, and ~ o n s e ~ u eretard ~ i t ~tlre
~ remedy
there of a judginent on the bond.
It has not been suggested, that the money was advarccedon the personal account
of Sudanund Xircar, the vakeel, uor is i t likely that it should have been SO ad-
vanced; and if it was to be advanced for the personal benefit of ~ ~ ~ n i ki ti is r a ~ ~
b l e the bond should have been taken from the xrakeel of the
very ~ n i p r o ~ ~ a that
zemindary only. The bond not having been discharged, another bond -isas required
in the foIlowing year from both Janikiram and Sudanund Sircar; but the question
t o be d e t ~ r n ~ ~ r~ei el ad t ~to the rnoxiey a d ~ ~ a in n c1786,
~ for if the money then
s u p p ~ ~ ewas
d advanced on account of the zernindary, the joint and several
bond give11 as a fiecurity in the ensuing year will not vary the nature of the Koarl,
or discharge the l~abilityof the ~ e ~ ~ ~ d a ~ . .
No evideuce was adduced on the part of the r e s p o ~ ~ d eto ~ irebut
t the inference
that* the money so a ~ v a n c e dto the vakeel, with which the kist of the ~ e ~ ~ i ~ d
was act,ual~yd ~ s c ~ i a r ~was e d , advanced for the benefit and on account of the zemiw
dary; and though i t has been remarked that the delay of the money4enders to
commence any suit against the zernindar, after the death of Janikiram, affords
reason to suppose that they thought they Bad no right to do so, we do not know when
the Raja came of age, or what was the condition of the zemindary from that tiizie
t o the c ~ ~ m m e n c eof~ ethe t by the appe~lantsin 1796, about four years after
~ ~suit
the death of Janik~ram,or what was the state of the families of the leaders, who
died between the time of the loan and the c o ~ ~ e n c e ~ofe nthe t suit, or how soon
the parties were apprized that they might sue the zeinindar with a prospect of
success, in conseq~ienceof the i n ~ p e d i n ? eto ~ ~their
t suit, which existed at the time
of the transaction, having been. removed. T"hc real. question is, whether the mouey
was expressly a d ~ f a ~ ~ for c e dthe use of the ~ e ~ i n d a or y r ~ e ~ ~ rfor a lthe
~ yuse of
those who received it, to be applied as they might think fit; and their Lordships
are of o p ~ ~ l that
~ o ithe~ c i ~ c u n i s ~ a n which
e e ~ a c c o ~ ~ ~ p a nthe~ eloan
d in the first in-
stance, when the only security SO required was that of the vakeel of the zemindary,
a person of very ~ r ~ f e r i station,
or when compared with that of ~ a r ~ i ~ i r a$he i n ,uncle
of the zernindar, and the precaution taken by the1 money-lenders of accompanying
Sudanund Sircar to the [242] Khatsa to see the hooridy deIivered to the proper
oEcer of re'vmue, a r e suacient to decide this que&ion, and to show the transaction
t o have been of the f ~ ~ character. m ~ r If, then, the c i r c u m s t ~ n c eof~ the case
establish that the money was borrowed on account of the zemindary, and was paid
to the ~ o v e r n m e on~ t that aecaunt, the bond given by Xudanund Sircar to a trustee
f o r the lenders, ia the English form, for the purpose of enabling them to enforce R
~ e r s o ~e n~~aa ~~ e m e of n t the vakeel in the Supreme Court, mill not deprive the
lenders of their rights, under the l a v ~ ~ r e ~ r a i among l ~ n g the natives in matters of
contract, to sue the ~ e ~ ~ ? i n dina the i , courts of the ~ o f u s s ~ l ~
The remaining point to be considered is, whether the ~ o ~ ~ r nR~e ~e u~~ 3a t ti o t ~
of 1781, which was in force; at the date of the loan, and that of 1187, by which it
was continued until 1790, had the eEcct of depriving the appellants of their right
to sue the respondent in 1796. E, a c c o r d ~ to ~ true intent and n ? e a n i ~of~
i ~ the
the Regulation of 1781, it operated as a prohibition of any such loan as that upon
which the suit i s founded, without the consent of the C?ommittee o r Board of Revenue,
re~isteredas therein mentioned~the loan itself was illegal, and the subsequent
repeal o f the ~ e ~ u l awould ~ give a right t o sue upon it; but if it a ~ u u n t e ~
t ~ o not
to nothing more than a restriction upon the ~urisdictionof the court over trang
actions of this descript~on,unless sanct,~onedand registered as aIso m e ~ t ~ o ~ e d ,
the repeal of the restriction will open t o the parties the righk to seek any remedy
in the court vhieh, accord in^ to the general princip~eof the law, would he appxi-
cable to theiy case.
There is n o t ~ in~ the i ~~ ~e ~ u ~ a of~ 1781~ o nors 1787 which, either in the terlrls
O Y the spirit of them, ~ ~ - f 2 ~ 3 ] - p e a tor stheir Lordships t o make i t illegal for a
472
 BANK OF BENGAL v. EAST INDIA COY. [1834] 11 KNAPP, 244

zeniindar to contract a del&, or for any other native to take a n obligation from a
zemindar without the consent of trhe oacers of revenue. Such an obligation, i f
founded on a, valuable consideration, would have been equally binding upon the
consc~enceof the z e i ~ i i ~ ~ and d a ~ the
, d e i n a ~ ~and
d the payment would be equally
legal as if such consent had been olhined and registered, though no court of justice
might have jurisdiction to enforce the right. Whatever may have been the notions
of public policy upon which the native courts were for some time r ~ t r a ~ n efrom d
taking cognizance of such traiisactj~ns,those notions have not been deemed, upon
experience, to have been well founded, sirice those parts of the 20th ariicles of the
Regulations of 1781 and 1787, upon which the Court of Sudder Devanny Adatvlut
rely, have been expressly rescinded by the R e ~ u l a t i oof~ the 29th of October 1790.
The title of a Regulation passed in 1793, No. 38, has been referred to, which
co~mencesin these terms : “A regulation for re-enacting, with modifications, such
parts of the rule passed on the 27th of June 1787 as p r o ~ ~ ~covenanted b~ts civil
servants of the Company employed in the adn~~nistration of justice, or the coilection
of public revenues, lending money to zemindars, iridependant talookdars, or other
actual proprietors of Iand.”
The language of this title appears to treat the restrictions contained in the
Regu~ationsof the 27th of June 1787, as a m o u n t ~ nto~ pro~iibit~ons, and, in a
popular sense, the Iaw which deprives a creditor of h i s remedy may be considered
as proh~bitinghim from taking an ob~igationto pay him ; but unKess such be the
true c o ~ s t r u e t ~ofothe
~ ~R e g u ~ a ~ ~
itself,
o x ~ that sense cannot be imposed upon
it by the language of a subsequent, Regulation not expressly declaratory, much less
by the title of a Regulation only. The Regulation of 1793, in iuodifyiiig that of
1787, prohibits, in express terms, mhatever is intended to be forbidden; those of
1181 and 1787 are only restrictive of jurisdiction, and if they were construed as
amounting tu p r o h ~ b i t ~ o n the
, extent of transactions which they embrace- would
lead to consequences highly ~ n c o n ~ e n i e and n t unjust. Their r,ords~lips~ therefore,
are of opinion that a report should be made to Eis Xajesty by the Judicial Com-
mittee, reco~mendingthat the decree o f the Sudder Deqanny Adawlut Court be
reversed, and that the: Court of Sudder Dewanny Adawlut be directed to affirni the
decision of the P~.ov~ncia,~ Court, but without costs, as a diEerence of opinion has
prevailed amongst the courts below, and that, for the same reason, ea& party
should bear his owii costs of this appeal. The order must proTide for the reim-
t the costs incurred by the East India Company in prose cut in^ and
b u r s e ~ e n of
defending the appeal.
[On point (i.) ap, to whether imposition of statutory restriction on suits for loans
rendered such loans illegal, cf. M e l l i w v. S h k l e y Locrtk Board, 1885, 16 Q.B.D.
446, 481, 453, 454 ; 3fusgrotle v. C h u ~TreorLy Toy, 1891, A.C. 272 ; Letrrnyd
v. Bracken (1891), Q.B. 114 : (ii.as )to effect of repeal, see Interpretatio~~ Act,
1889 (52 and 53 Vict. G . 63) s, 38 (2), and Indian Genera1 Clauses Act, 1897
(Act x. of 1897), S. 6.1

r z d ~ j ~ON A ~ P ~~0~
~ A TBE
~ s ~ COURT~ AT ~ A
~ ~ c u~T ~ ~ ~.
The BANK QF ~ E ~ ~ A The~ EAST, -INDIA
~ ~ ~Q ~~ ~ A~ ~ ~ ~ ~, - ~~
dents [January 6 and 8, 18341.
In an action against the East India Company by the holder of a forged imita-
tion of one of their promissory notes issued by the Governor-general in
Council a t Calcutta, held that the C o ~ p a n ywere not bound by the ac-
~ as genuine by a clerk in their Accountant~~eneral’s
k R o ~ l e d g ~ y ~ofe nit
office, who was authorized by the ~ c c o u n ~ ~ ~ ~ t -to n e r a ~ all such
~ ecompare
notes wit.21 the register, but not a u ~ h o ~ i z eto
d certify their g e ~ ~ ~ ~ i ~ e n e s s
aIthough i t appeared that it v a s his practice to do so.
The facts of this case are so fully stated in the judgment as to render any re-
473