By an Order of the Governor-General of India in Council, dated the 21st February, 1860, claims of loyal subjects of the British Government against the Ex-King of Delhi, or his estate, were to be heard and adjudicated upon by the ordinary judicial Tribunals of the British Government, with the view of the Government eventually paying such claims as might be proved, out of his estate in possession. Under this Order, where a claim was made and was justly and fairly substantiated against the Ex-King in the investigation before the Judicial Commissioner, held, that such claim ought to have been allowed, irrespective of technical difficulties which might have attended legal proceedings against the Ex-King to recover the debt during his Sovereignty. [Lalla Narain Doss v. The estate of the Ex-King of Delhi] ·

DELIVERY

277

And possession of subject of gift, is necessary by the Mahomedan Law

of the Sheah school. Umjad Ally Khan v. Mohumdee Begum]

DIVISION.

1. Of part of the estate of a joint Hindoo family is a partition protanto. [Appovier v. Rama Subba Aiyan] 75 2. The entry of the name of one member of a joint family, as Lumbadar (the party liable for the assessment of the revenue) on the Registry, being for fiscal purposes, is not per se sufficient evidence to establish the exclusive proprietary right of the party whose name is so registered, and the rights of copartners inter se are not affected by such registration. [Mussumat Cheetha v. Baboo Miheen Lall] 369 See "HINDOO LAW," 1.

DONOR AND DONEE. See "MAHOMEDAN LAW," 4.

EJECTMENT.

The relation of Government in respect of the Twenty-four Pergunnahs, as Landlord and Tenant, in a suit respecting boundaries with the Tenant and another in possession. of the land, is such, that the Tenant cannot take advantage of the Government title of prescription of sixty years. [Gunga Gobind Mundul v. The Collector of the Twenty345 four Pergunnahs]

ENDOWMENT

For religious purposes. See "RELIGIOUS ENDOWMENT."

ENHANCEMENT OF RENT, Under Act, No. X. of 1859. See" JURISDICTION," 2.

"POTTAH."

EQUITY.

On a Bill' filed by Assignees of an Insolvent to cancel a Deed made by the Insolvent as being fraudulent and void as against Creditors, the property charged by the Deed being immoveable, and the Defendants claiming a lien thereon for bond fide debts, the remedy, if any equity exists independent of the deed, is by cross Bill. [Ta reeny Churn Bonnerjee v. Maitland] 317

EQUITY OF REDEMPTION.

See "ESCHEAT."

ESCHEAT.

A. made advances to a Hindoo Widow in possession, which were secured by a mortgage on the immoveable estate of her late Husband, and the advances were applied by her to purposes for which she had power by the Hindoo law to charge or alienate her Husband's estate without his heirs' consent. Held, that A. was entitled as against the Crown, who took the estate by escheat on the death of the Widow for want of heirs, to possession of

the estate under the mortgage, as security for the amount advanced and interest, subject to the equity of redemption by the Crown. The onus probandi lies on the Mortgagee to prove, first, that the charge on the estate was the act of the Widow; and, secondly, that the debt so charged was a competent act of the Widow; but the rule which throws the burthen of proof on the party who alleges payment to prove it, or that the debt is presumed to be satisfied, unless the contrary is shown by the Creditor, is not always to be strictly enforced, but is to be governed by the circumstances and probabilities of the case. [Cavaly Vencata Narrainapah v. The Collector of Masulipatam] 619

EVIDENCE.

1. 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, and the reasons for exercising it recorded or minuted by the High Court on the proceedings; as, first, the witnesses may be such as the parties to the suit do not wish to call; and, secondly, the new evidence may not be sufficiently extensive to satisfy the ends. of justice. [Sreemanchunder Dey v. Gopaulchunder Chuckerbutty] 28

2. A deed of gift of immoveable and moveable estate, alleged to have been executed by a Hindoo Widow, which was registered, set aside, as, without deciding that there had been conspiracy, perjury, and forgery, in respect to such deed on the part of the Grantee and others, yet that the suspicious circumstances attending its alleged execution and registration had not been removed by sufficient proof to support the affirmative issue on the Grantee, and to establish it as a genuine instrument. [Mussumat Thakoor Deyhee v. Rai Baluk Ram] 139 3. Although in a question of disputed fact, regarding the credit due to witnesses, irrespective of the probabilities of the case, the Appellate Court is reluctant to compare the conflicting decisions of the two Courts, and decide the case on a conflict of testimony nearly balanced by a preponderance of probabilities, yet, though the native testimony is open to suspicion, the duty of a Court of ultimate appeal is to judge from the evidence and not to infer from probabilities. [Wise v. Sunduloonissa Chowdranee] 4. Upon a question of fact depending on the effect to be given to parol evidence, and the credit due to witnesses, where the Courts in India have all concurred in one opinion, the Judicial Committee will not disturb the finding, unless it is clearly shown that the Courts were in error.

177

5. Where the issue is one of fact only, and there has been concurrent judgments by the Courts in India, the Judicial Committee will not disturb such finding, unless they are satisfied that the Courts below were wrong in the conclusions they arrived at from the evidence. [Meethun Bebee V. Busheer Khan] 213 6. It is necessary that a Plaintiff who sets up a Mookternamah, purporting to have been executed by a Hindoo Widow, appointing a Mookter to do certain acts on her behalf, should establish such instrument by strict legal proof of its due execution. The absence of such proof is not compensated by any legitimate conclusions to be drawn from the other facts and circumstances in the case. [Seetul Pershad v. Mussumat Doolhin Badam Konwur]

268 7. The provision 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 yet one that ought to be strictly complied with. [Gunga

Gobind Mundul v. The Collector of the Twenty-four Pergunnahs] 345 8. The entry of the name of one member of a joint family as Lumbadar (the party liable for the assessment of the revenue) on the Registry, being for fiscal purposes, is not per se sufficient evidence to establish the exclusive proprietary right of the party whose name is so registered, and the rights of copartners inter se are not affected by such registration. [Mussumat Cheetha v. Baboo Miheen Lall] 369

FRAUD.

A.

1. A. by Deed of trust charged real estate to secure, among other things, a debt alleged to be due by him to his grandfather's estate, on account of sums received by him from a debtor to that estate. at that time was in a state of indebtedness, which occasioned his afterwards becoming an Insolvent. Such Deed, in the circumstances, held, so far as related to A.'s alleged debt, fraudulent and void as against his Creditors. [Tareeny Churn Bonnerjee v. Maitland] - 317 2. In a suit by a Wife (a Mahomedan woman) against her Husband to recover the value of Company's paper, and personal estate, &c., the plaint alleged, that such paper, being her separate property, had been, as she lived in seclusion, indorsed and handed over by her to her Husband for the purpose of receiving the interest thereon. The defence of the Husband was, that

he had purchased such paper from his Wife, and on the indorsement and delivery had paid the full value to his Wife, who had appropriated the proceeds to her own use. Held, upon a review of the evidence, that although the Wife failed to prove affirmatively the precise case alleged by her in the plaint, the Husband was bound to show something more than the mere indorsement and delivery of the Company's paper, and that from the relations subsisting between the parties, the onus probandi was upon him to establish, first, that the transaction which he set up was a bona fide sale; and, second, that he gave full value for the Company's paper so received from his Wife.

Held, further, that in the absence of proof of the Husband having the means of purchasing the Company's paper, he being at the time in embarrassed circumstances, and the condition of the Wife, a secluded woman, that no purchase had taken place, and that the transaction was fraudulent as against her. [Moonshee Buzloor Ruheem v. Shumsoonnissa Begum] 551

FRAUDULENT PURCHASE, See "BENAMEE," 1.

GIFT.

See" EVIDENCE," 2.

"MAHOMEDAN LAW," 4.

GOVERNMENT.

Government, in cases in which it has taken upon itself, under the Order of the Governor-General of India in Council of the 21st February, 1860, to provide payments of debts, claimed against the estate of the Ex-King of Delhi, when such claims are barred by Regulation or Act, is entitled to the benefit of the rule of limitation barring the claim. [Lalla Narain Doss v. The estate of the Ex-King of Delhi] 277

See" DAMAGES."

"DELHI, ESTATE OF EX-KING OF." "ESCHEAT."

HINDOO LAW. ·

1. According to the true constitution of an undivided Hindoo family, no individual member of the family, whilst it remains undivided, can predicate of the joint and undivided property, that he has a certain definite share.

The proceeds of undivided property

must be brought to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of the family. But if the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and each member has thence

forth a definite and certain share in the estate, which he may claim to receive and enjoy in severalty, although the property itself has not been actually severed and divided.

Where, therefore, a deed of partition was made and executed by the members of an undivided family, dealing with and making actual partition of a portion of the joint estate, but leaving the remainder to be divided at a future period in the same manner; held, by the Judicial Committee (affirming the judgment of the Courts below), that such deed, being a division of right, operated as a conversion of the tenancy and a change of status in the family, quoad the property specified, changing, as it were, the joint tenancy thereof into a tenancy in common; and by operation of law making the members of the previously undivided family a divided family, in respect of such property. [Appovier v. Rama Subba Aiyan]

75 2. By the Hindoo law, as laid down in the Benares or Western schools, although a Widow may have power of disposing of moveable property inherited from her Husband, which she has not under the law of Bengal, yet she is by both laws restricted from alienating any immoveable property which she has so inherited; and on her death the immoveable property, and the moveable, if she has not otherwise disposed of it, will pass to the next heirs of her Husband. There is