1. A deed of arrangement and release in the English form, between mem- bers of a Hindoo family in respect of certain joint estate, claimed by a childless Hindoo widow of one of the co-heirs, in her character of heiress and legal personal repre- sentative of her deceased husband, declared that she was entitled to the sum therein expressed, as the share of her deceased husband, "for her sole absolute use and benefit."
Held, (reversing the decree of the Supreme Court at Calcutta,) that
those words were not to receive the same interpretation as a Court of Equity in England would put upon them, as creating a separate estate in the widow; but that the deed must be construed with refer- ence to the situation of the parties and the rights of the widow by the Hindoo law, and that, as the deed recited that she claimed and re- ceived the money as her husband's share in the joint estate in her character as his heiress and legal personal representative,such words must be construed to mean, that it was to be held by her in severalty from the joint estate; and as a Hindoo widow she had only a life estate in the corpus, the same at her death devolved as assets of her deceased husband upon his personal representative in succession. [Sree- mutty Rabutty Dossee v. Sibchun- der Mullick]
2. Where a purchase of real estate is made by a Hindoo in the name of one of his sons, the presumption of the Hindoo law is in favour of its being a benamee purchase, and the burthen of proof lies on the party in whose name it was pur- chased, to prove that he was solely entitled to the legal and beneficial interest in such purchased estate. Purchase of a talook in Bengal by a
Hindoo in his eldest son's name, the conveyance, though in the English form of lease and release, held to be a benamee purchase, and the son in whose name it was pur- chased declared to be a trustee for the father, and the talook part of
the father's estate. [Gopeekrist Gosain v. Gungapersaud Gosain]
3. By the Hindoo law a verbal grant or real estate is good, if followed by possession by the grantee. The grantors of real estate were Hin- doos, and the grantees, the East India Company. Held, that as the Hindoo law which governed the grantors' rights allowed a ver- bal grant, the law of the grantees regulated the matter, and, as there was possession under the grant by the grantees, the grant was valid. [Doe dem. Seebkristo v. The East India Company] -
A will by a Hindoo, without male issue, kinsman or coparcener, after providing for the maintenance of his widow, daughters, and female relations, devised ancestral as well as other real and personal estate to trustees upon certain charitable trusts; was impeached by reason, first, that the Testator had author- ised his widow, in an event which happened, to adopt a son, which act would have rendered him in- competent to exercise a testamen- tary power; secondly, that at the time of the execution of the Will the Testator was not of sufficient mental capacity to make a testa- mentary disposition; and thirdly, that the Testator being a Hindoo, had no power by law of devising ancestral estate by Will. Upon appeal,-(Held, affirming the decree of the Sudder Court in India,) First, that although, in the absence
of male issue of the deceased, there
was a strong presumption, arising from religious considerations, in favour of a delegation by the de- ceased to his widow, of authority to adopt a son for him, yet that the evidence entirely failed to prove that fact;
Secondly, that the evidence established his mental capacity at the time of executing the Will; and Thirdly, that by the Hindoo law prevailing in Madras, a Hindoo in possession, without issue male, kinsman, or coparcener, had power to make a Will disposing of an- cestral as well as acquired estate. [Nagalutchmee Ummal v. Gopoo Nadaraja Chetty]
A party in possession under a fraudu- lent deed, to defeat the claim of creditors under a sequestration, is not entitled to any allowance for sums expended by him for im- provements upon the estate. [Mu- sadee Mahomed Cazum Sherazee v. Meerza Ally Mahomed Shoostry]
1. Upon the death of the Ghatwal last seised, the lands descend entire to a male heir, as Ghatwal. [Rajah Lelanund Sing Bahadoor v. The Government of Bengal] 101 2. Family usage for fourteen genera-
tions, by which the succession to the Raj zemindary of Tirhoot had uniformly descended entire to a single male heir, to the exclusion of the other members of the family, upheld.
A custom for the Rajah in possession, in his lifetime to abdicate and assign by deed the Raj title and domain to his eldest son, or next immediate male heir. Held good, and a deed so assigning the Raj to an eldest son (provision being made for Baboo allowances for the younger sons), sustained. [Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh]·
2. By the Act, No. XXXII. of 1839, extending the provisions of the Statute, 3rd & 4th Wm. IV., c. 42, sec. 28, to India, it was enacted, "That upon all debts or sums certain, payable at a certain time, the Court before whom such debt or sums may be recovered, may, if it shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at certain time."
An instrument, in a nature of, though not strictly, a Bond, was executed in 1833, which provided for the liquidation of the amount therein specified by instalments, but no provision was made for the allowance of interest. The con- dition for payment not having been performed. Held, in an action brought in 1849, to recover prin- cipal and interest upon the Bond, that the Act, No. XXXII. of 1839, was retrospective in its operation, and authorised the allowance of interest, although it was not pro- vided for by the Bond. [Rajah Bommarauze Bahadur v. Ranga- samy Mudaly]
3. Upon the adjustment of an account of the principal and interest due upon a Bond, a Kararnamah, or deed of agreement, was entered into by
the parties, in which, besides the original sum, a further sum for interest accrued thereon was de- clared due, and agreed to be paid off by instalments before a given time. Payments were made at irregular periods, which payments the Bondholder claimed to appro- priate to keeping down the interest upon the whole sum composed of both the original principal sum as well as the sum mentioned in the Kararnamah, as accrued thereon for interest. Held, upon the con- struction of the instrument, that the principal sum alone carried interest, and that all payments made in pursuance of the stipu- lations were to be applied in the first instance to satisfy such in- terest, the excess of the payments only being appropriated towards the liquidation of the principal sum due. [Bamundoss Mookerjea v. Omeish Chunder Raee]
Change of place of confinement.
JUDGMENT DEBT (Sale of, by Sheriff).
1. Quare: Whether there is any juris-
diction in the Judicial Committee under sec. 4, of Mad. Reg. VIII. of 1818, to call for security from the Respondent when put in pos- session. [Nagalutchmee Ummal v. Gopoo Nadaraja Chetty]
- 309 2. The Bombay Charter of Justice (Dec. 1823) gives the Supreme Court "full power and authority to admi- nister and execute, within and throughout the town and Island of Bombay, and the limits thereof, and the factories subordinate there- to, &c., upon all persons so de- scribed and distinguished by the appellation of British subjects, as aforesaid, there residing, the Ec- clesiastical law, as the same is now used and exercised in the Diocese of London, in Great Britain, so far as the circumstances and occa- sion of the said town, island, ter- ritories, and people shall admit and require."
Suit on the Ecclesiastical side of the Supreme Court at Bombay by wife against husband for restitution of conjugal rights and for main- tenance. Protest by the husband, that the parties were Parsees pro- fessing the religion of that sect, and that the Court had no juris- diction to administer towards them the Ecclesiastical law as at the date of the Charter was used and exer- cised in the Diocese of London. Upon appeal, Held, (reversing the judgment of the Court below, and maintaining the protest,) that the Supreme Court of Bombay, on its Ecclesiastical side, had no juris- diction to entertain such a suit, as
there existed such a difference be- tween the duties and obligations of a matrimonial union among Par- sees from that of Christians, that the Court, if it made a decree, had no means of enforcing it, except according to the principles govern- ing the matrimonial law in Doctors' Commons, which were in such a case incompatible with the laws and customs of Parsees. Quære: Whether, in such circum- stances, the Supreme Court can, on its civil side, give relief to the wife. [Ardaseer Cursetjee v. Pe- rozeboye]
2. In proceedings by the obligee of a Bond before the Collector's Court in 1844, upon an application for a sequestration of the obligor's es- tates, the obligor filed an account of his liabilities, in which the Bond in question was entered and certain payments mentioned. Held, that such acknowledgment took the Bond out of the operation of the Mad. Reg. of Limitation, II. of 1802, sec. 18, cl. 4. [Rajah Bom- marauze Bahadur v. Rangasamy Mudaly] 232
3. C. a Hindoo, by his Will, appointed G. and others executors, and there- by gave and devised the residue of his estate to his daughter, H., the wife of G. All the Executors proved, but G. alone acted in the trusts of the Will, G.being largely indebted to C.'s estate; and in 1831, he by deed conveyed to H. part of C'.'s real estate as security for his debt. In 1833, G. was declared insolvent under the Statute, 9th Geo. IV., c. 73. H. entered into possession of the property so con- veyed to her, and continued unin- terruptedly to hold the same till the institution of the suit by the official assignee of the Insolvent Court, a period of twenty-two years. Held, in the absence of any proof of fraud in the transaction of 1831, or unfairness against II. in obtain- ing possession, so as to bring the case within the exception in cl. 1, sec. 3, of Ben. Reg. II. of 1805, that the possession by H. for more than twelve years was, by Ben. Reg. III. of 1793, sec. 14, a bar to
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