2. By the Benares school of Hindoo Law, no part of the Husband's estate forms part of his Widow's Stridhun, and she has no power to alienate the estate she succeeds to on her Husband's death, to the prejudice of his heirs, which on her death devolves on them. [Bhugwandeen Doobey v. Myna Baee] 487 3. If advances are necessary to save

the estate, a Hindoo Widow can
charge her Husband's estate, with-
out his heirs' consent. [Cavaly Ven-

cata Narrainapah v. The Collector
of Masulipatam]
- 619

APPEAL.

1. A petition for special leave to appeal contained a general statement of the proceedings in India, and an averment, that they were irregular and contrary to law. Such petition ordered to be dismissed, or to stand over for amendment, as being too general and vague. [Goree Monee Dossee v. Juggut Indro Narain Chowdry] 1 2. Special leave to appeal was granted ex parte. The Appellant made only two of the parties to the suit Respondents. On application by another party to the suit, whose interest was affected by the appeal, the original Petition for leave to appeal was ordered to be amended, and the party applying made a Respondent. [Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum] 3. When the appeal involves only

517

question of fact. Rule of the Privy Council in such a case. [Wise v. Sunderloonissa Chowdranee] 177

See" EVIDENCE," 3, 4, 5.

1. A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgmentcreditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a Benamee transaction; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed.

Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judg

2.

28

ment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only. [Sreemanchunder Dey v. Gopaulchunder Chuckerbutty] Although the habit of holding land Benamee is prevalent in India, such fact does not justify the Court in making every presumption of such holding against apparent ownership. [Moonshee Buzloor Ruheem v. Shumsoonnissa Begum] 551

BENARES

SCHOOL OF HINDOO LAW.

See "HINDOO Law," 2, 5, 6.

BOND.

1. In a suit to recover the amount of principal and interest due upon two several Bonds, one of which alone was forthcoming, the other being referred to and vouched by a note of hand of the Obligor, the issues settled and recorded by the Court below for trial were, first, whether the first Bond was the deed of the deceased Obligor, and, secondly, whether the note of hand was under the seal of the Obligor, and if so, whether it was a valid acknowledgment of the debt claimed on the second Bond, and up to what time and at what rate interest was due. The Court below, notwithstanding that the first Bond actually proved purported to have been given on an

account settled, allowed evidence of the accounts and dealings between the Obligor and Obligees previous to the execution of both Bonds, and having referred the same to an Accountant, repudiated the Bonds, but decreed the Plaintiffs entitled to a considerable sum, with interest upon the account thus taken :-Held on appeal by the Judicial Committee, that the

Courts below had miscarried, first, in allowing the opening of and founding the decrees upon settled accounts, the only question upon the issues recorded for their judgment being the validity of both Bonds, of which they were satisfied, and secondly, that from the frame of the issues neither the Obligees nor their representatives were bound to prove the consideration for the Bonds, but were entitled to recover the whole principal and interest due thereon, which was decreed, and the decree of the Court below amended to that effect. [Shah Koondun Lall v. Rajah Ameer Hussun Khan] 120 2. Circumstances in which it was held, that a female whose estate was under the control of the Court of Wards was not to be considered a disqualified female, and that she had power to contract Bond debts. Where a Plaintiff sued the Obligor

and other Defendants on a Bond, not affecting land, and there was an allegation in the plaint, that the Obligor had transferred the land to those Defendants to avoid judg ments attaching on the land, it VOL. XI.

CODE OF CIVIL PROCEDURE.

1. Act No. VIII. of 1859, secs. 139– 140-1, with respect to the Judge settling and recording issues in the suit to be strictly observed. [Baboo Rewun Pershad v. Jankee Pershad]

25 2. On an appeal to the High Court, that Court acting under the power conferred by section 355 of the Code of Civil Procedure (Act, No. VIII. of 1859), ex mero motu, called for and examined fresh witnesses-Held, that such power should be cautiously exercised. [Sreemanchunder Dey v. Gopaulchunder Chuckerbutty]

3.

28

A judgment of the Judicial Committee in 1863, held in a subsequent suit respecting the same

U U

Zemindary, to operate as res judicata, and came within the provisions of Act, No. VIII. of 1859, sec. 2, as a suit heard and determined by a Court of competent jurisdiction. [Srimut Rajah Moottoo

50

Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver v. Katama Natchiar, Zemindar of Shivagunga] 4. The provisions of the Code of Civil Procedure (Act, No. VIII. of 1859, sec. 355), which requires the Judges who admit fresh evidence on an appeal, to record their reasons, though not a condition precedent to the reception of the evidence, is one that ought to be strictly complied with. [Gunga Gobind Mundul v. The Collector of the Twenty-four Pergunnahs] 345 5. Sec. 7 of Act, No. VIII. of 1859, provides, that if a Plaintiff relinquish or omit to sue for any portion of his claim, a suit for the portion so relinquished or omitted shall not afterwards be entertained. Held, on a construction of this section, first, that the correct test is, whether the claim in a new suit is in fact founded on a cause of action distinct from that which was the foundation of the former suit; and secondly, that it included accidental error and involuntary omission of the subject of the new suit.

A suit cannot be maintained to recover a specific Company's Note when the cause of action in a former suit was the misappropri ation by the same Defendant of

similar Company's Notes, as such. claim for the individual note might have been included in the former suit. [Moonshee Buzloor Ruheem v. Shumsoonnissa Begum] - 551

CONFISCATION

Of lands under Ben. Reg. XI. of 1796, for absconding to avoid process of the Criminal Court, of an undivided Hindoo family, registered in the name of one member only, is confined to the fractional share and interest of that member alone. [Juggomohun Bukshee v. Roy Mothooranath Chowdry] 223

CONJUGAL RIGHTS.

See" RESTITUTION OF CONJUGAL RIGHTS."

CONSIDERATION. See "BOND."

CONSTRUCTION.

Jurisdiction of Collector of the District, where the property is situate, under Act No. X. of 1859, sec. 23, with respect to rent. [Baboo Dhunput Singh v. Gooman Singh] 433

CONTRACT.

See "LOAN."

CONVERSION.

A partition, by deed, of part of estate of a joint Hindoo family, leaving the remaining part of the estate to

COURT OF WARDS. To entitle a female disqualified landholder, whose estate is in charge of the Court of Wards, to take advantage, by way of defence to an action brought against her, of the provisions of Ben. Reg., LII. of 1803, in respect of her non-liability for Bond debts contracted by her, the course pointed out in that Regulation must be strictly followed. The provisions of Ben. Reg., LII. of

1803 (extending Ben. Reg., X. of 1793, to the North-Western Provinces), are identical with the former Regulation. [Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer] - 468

COWL

In Khote tenure. See "LEASE."

See

CRUELTY.

"RESTITUTION OF CONJUGAL RIGHTS."

DAMAGES.

Suit by Lessee in Khote tenure against Government, claiming damages for prohibiting him from cutting Forest Trees for sale, dismissed. [Ruttonji Edulji Shet v. The Collector of Tanna]

DECISIONS, &c.

. 295

(Overruled, observed upon, &c.)

1. The cases of Gardiner v. Fell (1 Jac. & Wal. 22) and Freeman v. Fairlie (1 Moore's Ind. App. Cases, 305), recognized and supported. [Gunga Gobind Mundul v. The Collector of the Twenty-four Pergunnahs] 345 2. The case of Jan Khatoon v. Khwaja Ali Mullah (5 Ben. Sud. Dew. Ad. Rep., 240), founded upon Ben. Reg., X. of 1793, followed. [Mohummud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer]

DECREE

468

Of High Court of Judicature at Bengal, founded on inference and