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),

- 194

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]

517

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]

See "ESCHEAT."

NEW CONTRACT.

See "LOAN."

NEW EVIDENCE,

On appeal to the High Court.

See" EVIDENCE," 1, 7.

241

PLEADING.

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

7

4. Although the Judicial Committee

VOL. XI.

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

РОТТАН.

A Pottah is a generic term, embrac-
ing every kind of engagement be-

X X

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.

PRACTICE.

433

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