1856. MODEE CROW KOR MUSJEE υ. COOVER ВНАЕЕ. inheritance, although the deceased's widow and daughter are living. But, unfortunately, my suit of KAIKHOOS- lacs of rupees was dismissed without taking the evidence of my witnesses, and the answer of the Modeejee of the community; consequently, I was helpless. But through the justice of your Honourable Court, I entertain the hope that, should the evidence of the witnesses on my behalf be caused to be taken, and the questions below mentioned be referred to the Modeejee, and other members of the Parsee community at Surat, and their answers thereto taken, I shall obtain my just rights." What was complained of was, therefore, the rejection by the Zillah Judge of the proposal for referring the question to the Modee Punchayet, which, of course, it would not have been proper to do, as the Appellant had, in terms, waived the reference when the case was before the Sudder Ameen. The Appellant's case, therefore, fails upon this third point as completely as it fails upon the other points; and upon the whole case, their Lordships are of opinion that this appeal must be dismissed. It has not escaped their Lordships' attention, that if they had decided this appeal upon the simple question whether the decision of the single Judge rejecting the special appeal was right or not, and had differed from the single Judge upon that point, the Appellant might have been entitled to a further hearing before the Sudder Court; but their Lordships are satisfied that the Appellant could not have succeeded in that Court upon the case as it stands, and that it would not, under the circumstances of this case, have been right, for that Court to have admitted further evidence; they do not think it necessary, therefore, to give any final opinion as to the decision of the single Judge, although, as at present advised, they see no reason to dissent from it. Their Lordships also desire it to be understood, that in what has been said as to the testamentary power of Parsees, they are far from having intended to intimate any doubt as to the extent of that testamentary power, or to give any encouragement to the notion that any such limit as the Appellant has contended for in facts exists. They do not mean in any manner to disturb what has been decided in India upon that subject, and they abstain from giving any opinion upon it only because it does not properly arise, and has not been fully argued in this case. Their Lordships, therefore, will humbly recommend Her Majesty to affirm this judgment, and to dismiss the appeal with costs. 1856. MODEE CROW HOR- v. COOVER BHAEE 29th Nov., THIS 1856. Cross appeal Western Provinces. was an application by the Respondents for special leave to enter a cross appeal against portions allowed from of a decree of the Sudder Court, appealed from to cree of the England, so far as it affected their interests in that part of a de Sudder Court appealed from to England; although the plied in India decree. The petition stated, that by a decree of the Sudder Respondents Dewanny Court of the North-Western Provinces, had not ap dated the 2nd of April, 1855, made on an appeal for leave to from a decree of the Zillah Court of Cawnpore, in a the proper suit in which the Petitioners (the Respondents) were the time; the Respondents Plaintiffs, and the Appellant, Nana Narain Rao, was being mistaken in the the Defendant, that Court decided in favour of the appeal with n practice of the Judicial Committee * Present: Members of the Judicial Committee,-The Right upon a cross Hon. Dr. Lushington, the Right Hon. The Lord Justice Knight appeal. Bruce, the Right Hon. The Lord Justice Turner, the Right Hon. Such cross Sir Edward Ryan, and the Right Hon. Sir John Patteson. appeal directed to be prosecuted and heard upon one printed case, if the principal appeal was proceeded with; but in the event of the principal appeal being dismissed for want of prosecution, liberty was reserved to the Respondents to prosecute the cross appeal as a separate appeal. Petitioners for two-thirds of the two and eight pice share in Mouza Bheekur; also for two-thirds of a two ana share of Mouza Brishur; also for two-thirds of each of the two dwelling-houses and gardens specified in the Appellant's schedule; and also for Rs. 3,10,226. 10. 2., being two-thirds of the value of the property, with interest and mesne profits from the date of the institution of suit to that of obtaining possession, with costs in both Courts; and the Court dismissed the rest of the Petitioner's claim which related to Lallpore and Bulwapore, which the Court found that the Appellant was the sole proprietor of by purchase, and the excess in their valuation of the personal property. That the Appellant appealed from this decree, and that the transcript had arrived in England, but that no steps had yet been taken by the Appellant, who had not put in an appearance. That the Petitioners had applied to the Sudder Court for a review of judgment with regard to the two last portions of the decree regarding the Mouzas Lallpore and Bulwapore, and the finding of the Court as to the whole of the personal or movable estate, which the Sudder Court had rejected. That the Petitioners had instructed agents in England to obtain, at the hearing of the appeal, a reversal of the two portions of the decree affecting them, believing that they would be entitled to state their objections at the hearing, to such two portions of the decree, and to obtain a reversal of the decree, so far as had relation to those portions, without any formal and separate appeal being instituted by them, such being the practice of the Suller Courts in India, when an appeal was brought by one party from the decree of the Zillah Judge to the Sudder Dewanny Adawlut, and that relyG 2 VOL. VI. 1856. ΝΑΝΑ NARAIN RAO V. HURREE PUNT BHAO. 1856. NARAIN V. HURREE PUNT BAO. ing on that practice they had not applied to the Sudder Dewanny Adawlut for leave to appeal against the decree within six months, the time prescribed for presenting a petition of appeal. That they had been advised that they had acted in error, and that it was necessary for them to institute a separate or cross appeal against so much of the decree as related to the two portions aforesaid; and the Petitioners prayed that leave might be granted to them to appeal against such two portions of the decree of the Sudder Court. Mr. Leith in support of the petition. Their Lordships granted the application upon the terms contained in the following Order in Council :"That leave be granted to Hurree Punt Bhao and Shree Newas Rao, to enter and prosecute their cross appeal from so much of the decree of the Sudder Dewanny Adawlut of the 2nd of April, 1855, as regards the Mouzas Lallpore and Bulwapore, and also from the finding and decree of that Court, as to the amount and value of the personal and movable estate and property of Soobadar Ramchunder Punt, upon lodging in the Council Office the certificate of a recognizance to be entered into by some proper person (to be approved by the Registrar of the Privy Council), before one of the Barons of Her Majesty's Court of Exchequer, in the penalty of £300 sterling, conditioned to pay such costs as might be awarded by their Lordships in case the appeal be dismissed, and the cross appeal to be prosecuted and come on for hearing on one printed case, and on the same printed transcript record as the principal appeal in this suit, provided the same be duly proceeded with by the Appellant |