case that no such marriage had taken place. Held, by the Judi- cial Committee, reversing such decree, that although in a question of disputed fact regarding the credit due to witnesses, irrespec- tive of the probabilities of the case, the appellate Court is re- luctant to compare the conflict- ing decisions of the two Courts, and decide the case on a conflict of testimony nearly balanced by a preponderance of probabilities, yet that, in the circumstances, though the native testimony was open to suspicion, the duty of the Court of ultimate appeal was to judge from the evidence, and not to infer from probabilities. [Wise v. Sunduloo- nissa Chowdranee] - 177 3. A Mahomedan cohabited for many years with a Mahomedan woman who had been a prostitute and who lived in his house. At his death she claimed to be his Wife, and called witnesses to prove an actual marriage, but which fact she failed to establish. Held, that the Court of last resort could not presume, in such circumstances, that a woman, once a Concubine, had, merely by lapse of time and pro- priety of conduct, become a wife, and that the ordinary legal pre- sumption was, that there had been no marriage. [Mussumat Jariut- oll-Butool v. Mussumat Hoseinee Begum] 4. A gift inter vivos of Government promissory Notes, negotiable secu- rities, by a Father to his only Son (Mahomedans of the Sheah sect),
accompanied by delivery of posses- sion, and a transfer into the Son's name, without any reservation of the dominion over the corpus by the Donor, except a stipulation for the right to the accruing interest on the Notes during the Donor's life, to be applied by him to certain religious and charitable purposes, is a valid gift by the Mahomedan law of the Sheah school, and creates a trust on the Donee to pay the interest to the Donor during his life.
Whether the non-assent of the heirs
vitiates a Will of a Mahomedan made in favour of one heir to the prejudice of the other heirs. Quare? [Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum]
5. A suit for restitution of conjugal rights will lie in a Civil Court by a Mahomedan Husband to enforce his marital rights.
By the Mahomedan law, such a suit
is in the nature of a suit for spe- cific performance, being founded on a contract of marriage, the Mahomedan law regarding it as a civil Contract, and the Court will enforce all the obligations which flow from such contract.
If, however, there be cruelty to a degree rendering it unsafe for the Wife to return to her Husband's dominion, the Court will refuse to send her back to his House; so also, if there be a gross failure by the Husband of the performance of obligations which the marriage contract imposes on him for the
Section 9 of Act, No. I. of 1845, enacts, that Collectors shall, at any time before sunset of the latest day of payment, receive as a de- posit from any party, not being a proprietor of the estate in arrear, the amount of the revenue due from it, to be carried to the credit of the said estate at sunset afore- said, unless before that time the arrear shall have been liquidated by a proprietor of the estate. And in case the party deposit- ing, whose money shall have been
credited to the estate as aforesaid, shall prove, before a competent Civil Court, that the deposit was made in order to protect an in- terest of the said party, which would have been endangered or damaged by the sale of the estate, he shall be entitled to recover the amount of the deposit, with in- terest, from the proprietor of the said estate. Held, upon a con- struction of this section, that it only gave a personal right of ac- tion against the proprietor, and did not create a lien on the estate. A. mortgaged his estate to B. The
Mortgagor died, leaving a childless Widow his heir. A. had children, living, at his death, by a former deceased wife. The widow of the mortgagor, who was in possession, let the estate fall into arrears for Government revenue, when the representative of the mortgagee, in order to save the estate from public sale, paid the arrears. The Mortgagee's representative after- wards brought a suit against the widow to recover the amount so paid, which suit did not raise any claim against the estate itself, but sought only to make the Widow personally liable, and a decree was obtained against her to that effect. When execution of the decree was sought to be enforced against the widow, by sale of the estate, the mortgagor's contingent reversion- ers intervened, and the Court held that execution could not issue against the estate of the Mort- gagor, which was not liable. A
supplemental suit was then brought by the mortgagee's representative, to recover the amount of the de- cree so obtained, with interest, and for sale of the estate. The High Court held, upon the construction of the 9th section of the Act, No. I. of 1845, that the action to en- force the decree was confined to the Widow's interest in her hus- band's estate, which estate could not be sold.
Upon appeal the Judicial Commit- tee, in affirming the judgment, held, that the decree so obtained against the widow in possession, could only be enforced against her property in respect of such interest in her deceased Husband's estate as she possessed. Held, further, that there were two courses open to the Mortgagee's representative, first, to have insti- tuted a suit to enforce the mort- gage, and to tack to the mortgage the amount of the arrears of reve- nue paid to save the estate, and for a sale; or, secondly, to have proceeded under the 9th section of the Act, No I. of 1845, in a per- sonal action. [Nugenderchunder Ghose v. Sreemutty Kaminee Dossee]
NEW CONTRACT.
See "LOAN."
NEW EVIDENCE,
On appeal to the High Court.
See" EVIDENCE," 1, 7.
1. It is incumbent upon a party ap- plying for special leave to appeal, to set out in the petition a full statement of the facts and legal grounds to show that there is a substantial case on the merits, and a point of law involved, proper to be determined by the appellate Court. [Goree Monee Dossee v. Juggut Indro Narain Chowdery] 1 2. A decree of the High Court of Judicature at Calcutta was founded on an assumed state of facts, con- tradictory to the case alleged in the plaint and of the evidence ad- duced in support of it; upon appeal, such decree reversed with costs. The Judicial Committee holding (1) that it was incorrect to con- clude parties by inferences of fact, not only inconsistent with the alle- gations in the plaint, constituting the case the Defendants had to meet, but which were in reality con- tradictory to the case made by the Plaintiff in the Court below; and (2), that the legal conclusions deduced by the High Court were from assumed facts, which were not consistent with settled principles of law or equity. [Eshenchunder Singh v. Shamachurn Bhutto] 3. Held, that from the frame of the suit the Plaintiff could only suc- ceed by force of his own title, and not by the infirmity or illegality of the Defendant's title. [Greedharee Doss v. Nundokissore Doss, Mohunt] 405
4. Although the Judicial Committee
1. Where a summary suit is insti- tuted to enforce a claim to pos- session of property, and the ques- tion in dispute necessarily involves the right, the Claimant ought to be directed at once to proceed in a regular suit, and not to be left to proceed under the Acts, Nos. XIX. and XX. of 1841, and X. of 1851, which do not determine the right, but only give possession to the prima facie heirs. [Ashrufood Dow- lah Ahmed Hossein Khan Baha- door v. Hyder Hossein Khan] 94 2. Under a summary Order made by a Judge under Act, No. XIX. of 1841, effect of. [Bhugwandeen Doobey v. Myna Baee] - - 487 3. Necessary by Mahomedan law of subject of gift. [Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum] - 517
A Pottah is a generic term, embrac- ing every kind of engagement be-
tween a Zemindar and his tenants,
or Ryots. If the Pottah does not contain the term " Mocurrery," or equivalent words of limitation, as "from generation to generation," it is not prima facie to be assumed to grant a Mocurrery-istimrary, or perpetual tenure, but evidence of long uninterrupted enjoyment, at a fixed unvarying rent, will supply the want of words of limitation in such Pottah.
Where, therefore, a Pottah, dated in
1792, was granted to the predeces- sor in title of A. by the predeces- sor in title of B., addressed to him as "Moostager" or Farmer, without any words of limitation, and the property comprised in the Pottah remained in the uninterrupted pos- session of the Lessee and his suc- cessors at a fixed rent up to the year 1861, it was held, that such long and uninterrupted possession conferred a sufficient title to defeat the right of the then Landlord to an enhancement of rent under the provisions of Act, No. X. of 1859. [Baboo Dhunput Singh v. Gooman Singh] -
POWER OF ATTORNEY. See "ATTORNEY, POWER OF." "EVIDENCE," 6.
1. It is incumbent upon a party ap- plying for special leave to appeal, to set out in the petition a full statement of the facts and legal
grounds, to show that there is a substantial case on the merits, and a point of law involved, proper to be determined by the appellate Court.
On an amended petition, stating in detail the facts, and specifically showing legal grounds of objection to the decrees and Order of the Court below refusing leave to ap- peal, special leave to appeal was granted. [Goree Monee Dossee v. Juggut Indro Naran Chowdery] 1 2. Upon a question of fact depend- ing 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 below were in error. [Mussumat Jariut-oll-Butool v. Mussumat Ho- seinee Begum]
194 3. When the issue is one of facts only, and there has been concur- rent judgments by the Courts in India, the Judicial Committee will not disturb such findings, unless they are satisfied that the Courts below were wrong in the conclu- sions they arrived at from the evi- dence. [Meethun Bebee v. Busheer Khan] 213
4. The rule of the appellate Court is, that it will not, on a question of fact, reverse an unanimous judg- ment of the Courts in India, unless the very clearest proof is shown that such decision is erroneous. [Tareeny Churn Bonnerjee v. Mait- land] • 317
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