Imatges de pÓgina

the suit. [Cockrane v. Hurrosoon-
durri Debia]


pleadings were: first, whether a
marriage had taken place between
the deceased and the party in pos-
session, who claimed to be his
widow; and secondly, the validity of
a deed of dower executed by the de-
ceased in her favour. The Courts in
India found these issues in favour
of the widow, and dismissed the suit.
The Judicial Committee in affirm-
ing the Court's decrees upon these
points, held,further, that although
the estate of the husband was hy-
pothecated for the dower, yet, as
the heir-at-law would be entitled
to the residue after satisfying the
widow's claim, he was by right en-
titled to an account, but, as the
plaint was so framed as not to admit
of an account being taken, the ap-
peal was affirmed, without preju-
dice to a suit being brought for
administration of the deceased's
estate, upon the footing of the mar-
riage and deed of dower by the
deceased being admitted in the
suit. [ Ameer-oon-Nissa v. Moorad-



A Mahomedan of the Shiah sect, by

a deed of dower, charged his whole
estate with a certain sum when de-
manded by his wedded wife, but
did not impignorate his estate to
secure the sum put in settlement.
The dower was not demanded
during the lifetime of the husband,
and his widow at his death took
possession of his state in satisfac-
tion of her claim. Held, by the
Sudder Dewanny Court, and such
decision upon appeal affirmed by
the Judicial Committee, that the
widow had a lien upon her deceased
husband's estate as being hypothe-
cated for her dower, and could
either retain property to the amount
of her dower, or alienate part of the

estate in satisfaction of her claim.
Held also, upon appeal, that a de-

mand during the lifetime of the
husband was not necessary, and
that, although more than twelve
years had elapsed from the date of
the deed and the time the widow

her claim for dower, she was
not affected by the provisions of
Ben. Reg. III. of 1793, sec. 14,
and that the limitation there pro-
vided for, formed no bar to her

In a suit by the only brother and

heir-at-law of a Mahomedan of the
Shiah sect, claiming the whole of
the deceased's estate, and for mesne
profits, the issues raised by the


set up

Power to charge ancestral estate.



The power of a Manager for an in-

fant heir to charge ancestral estate
by loan or mortgage, is, by the
Hindoo Law, a limited and quali-

which can only be ex-

ercised rightly by the Manager in No general rule can be laid down
a case of need, or for the benefit of upon whom the onus lies to allege
the estate. But where the charge and prove the bond fidex of a Mana-
is one that a prudlent owner would ger of an estate whose title to
make in order to benefit the estate, alienate is qualified in contracting
a bona fide lenderis not affected by debts, and resorting to loans; the
the precedent mismanagement of presumption proper to be made
the estate. The actual pressure

varies with the circumstances, and
on the estate, the danger to be is regulated and dependent upon
averted, or the benefit to be con- them.
ferred, in the particular instance, But if the mortgagee is enforcing his
are the criteria to be regarded. right against the heir, he must
If that dangerarises from any mis-

allege and prove the facts which
conduct to which the lender has embody the representations made
been a party, he cannot take ad- to him of the alleged needs of the
vantage of his own wrong to sup- estate, and the motives influencing
port a charge in his favour against

the loan.
the heir, grounded on a necessity
which his own wrong has helped

A mortgage Bond to secure a sum of

money lent to a party deceased, in
to cause.

substituticn of a previous deed ex-
A lender, however, in such circum-

ecuted by a former proprietor, by
stances, is bound to inquire into

way of further security for a sum
the necessities of the loan, and to

advanced by the mortgagee to the
satisfy himself as well as he can, widow of the deceased, charging
with reference o the parties with

part of the ancestral estate, de-
whom he is dealing, that the Ma-

scribed the widow as having a
nager is acting in the particular

beneficial proprietary right in the
instance for the benefit of the

mortgaged estates, although, in
estate. If he does inquire, and

fact, she was only the curator of
acts honestly, the real existence of

her son, a minor, the deceased's
an alleged and reasonably-credited

heir. Held, that the description,
necessity is not a condition prece-

though inaccurate, was not such an
dent to the validity of his charge,

assumption of ownership as was
which renders him bound to see to

derogative to the rights of the heir ;
the application of the money. but was to be viewed as an act
The mere creation of a charge by a

done by her as curator on behalf of
Manager securing a proper debt, is the heir; and as the mortgage was
not to be viewed as an improvident beneficial to the estate, it was
act; and a bona fide creditor is not binding upon the heir. [Hunoo-
to suffer when he has acted honest-

manpersaud Panday v. Mussumat
ly and with due caution, but is Babooee Munraj Koonweree] 393
himself deceived.

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credibility of witnesses, unless it is
manifestly clear from the probabi.
lities attached to cer in circum-
stances in the case, that the Court
below was wrong in the conclusion
drawn from such evidence. [D[usa-
dee Mahomed Cazum Sherazee v.

Meerza Ally Mahomed Shoostry] 27
3. In reversing the judgment of the

Court below, the Judicial Commit-
tee remitted the cause with certain
directions, leaving the question of
the allowance of costs in the dis.
cretion of the Court below. [Go-
peekrist Gosain v. Gungapersaud
Gosain] -

4. Appeal restored after being dis-

missed for want of effectual prose-
cution within the time limited by
the 5th rule of the Order in Coun-
cil of the 13th of June, 1853, the
newrules having been only recently
adopted by the Sudder Court at
Calcutta, and the Appellant, in
ignorance of their existence, being
engaged in taking steps to prose-
cute the appeal within the time
and according to the practice pre-
viously existing. [Gudadhur Pur-
shad Tewaree v. Mussumat Soon-

5. Appeal from the Sudder Court in

India, which stood dismissed under
Rule V. of the Order in Council
of the 13th of June, 1853, for
want of effectual prosecution, re-
stored, as the Appellant was in
ignorance of the existence of the
new Rules; the Sudder Court
having served the Appellant (after
the interposition of the appeal)
with notice that two years was al-

Exposition of the principles which in-

duced the Government to recognise
the title of the Zemindars in Ben-
gal, as landowners, and to make
the Settlement with them for a
permanent annual jumma. Rajah
Lelanund Sing Bahadvor v. The
Government of Bengal]



1. Appellant's costs in the Court be-

low allowed, and the suit referred
back to the Master of the Supreme
Court to tax the same. [Sreemutty
Rabutty Dossee v. Sibchunder Mul-

2. Semble : This Court will not dis-

turb a judgment of a Court in
India pon a question of the


T 2


lowed after the arrival of the tran-
script in England for prosecuting

the appeal.
Where Government securities for the

due prosecution of the appeal and
costs were deposited in the Regis-
try of the Sudder Court, the Ju-
dicial Committee, in restoring the
appeal, dispensed with the usual
recognizance in England. [Seto
Luchmeechund v. Seto Zorawur

6. If leave to appeal be obtained ex

parte, the Respondent may, as a
matter of course, present a coun-

terpetition to dismiss.
Where an appeal had been granted

ex parte upon an allegation un-
founded in fact, the Judicial Com-
mittee refused to hear the case, and
dismissed the appeal with costs.
[Sibnarain Ghose v. Hullodhur

7. The Judicial Committee have no
jurisdiction to entertain an applica-
tion for extension of time to appeal
until the petition of appeal is

Where it appeared that an inquiry

was pending before the Master in
the Court below, arising out of the
decree, which was the subject of
the appeal, the result of which
might render the prosecution of
the appeal unnecessary, the Ju-
dicial Committeo enlarged the time
prescribed by Rule V.of the Order
in Council of the 13th June, 1853,
for prosecution thereof, until further
order. [Gungadhur Seal v. Sree-

mutty Radamoney Do88ee3. 209
8. Objections to evidence which ought

to have been taken in the Court.

Held, too late on appeal.
Where there had been an irregularity

in the Court below in the reception
of evidence,the JudicialCommittee,
in affirming the judgment of that
Court, refused to give costs of
appeal. Rajah Bommarauze Ba-

hadur v. Rangasamy Mudaly] 232
9. Costs awarded a successful Appel-

lant upon appeal, and in all the
proceedings in India from the com-
mencement of the suit. The costs
incurred in India to be recovered
there. [Bamundoss Mookerjea v.
Omeish Chunder Raee]

10. Quare: Whether there is any

jurisdiction in the Judicial Com-
mittee under sec. 4, of Mad. Reg.
VIII. of 1818, to call for security
from the Respondent when in pos-
session. [Nagalutchmee Ummal v.

Gopoo Nadaraja Chetty] - 309
11. An appeal was allowed in October,

1854, by the Supreme Court at
Calcutta to England. After the
allowance of the appeal no further
steps were taken by the Appellant.
In March, 1856, the Judicial Com-
mittee, upon a certificate of tho
Registrar of the Supreme Court,
that no further proceedings had
been taken after the Order allow-
ing the appeal, dismissed the
appeal, at the instance of the Re-
spondents, for want of prosecution.
[ Sreemutty Rabutty Dossee v. Ra-

danauth Sein]
12. Cross appeal allowed from part

of a decree of the Sudder Court ap-
pealed from to England ; although
the Respondents had not applied


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See “ SHERIFF," 1.


See “ TENANT FOR Life."


Quære : Whether Ben. Regs. XI. of

1793, and X. of 1800, being con-
fined to cases in which there is no
deed or Will executed, apply to the
case of a Raj. [Baboo Gunesh
Dutt Singh v. Maharajah Moheshur




in India for leave to appeal within
the proper time. The Respondents
being mistaken in the practice of
the Judicial Committee upon a
cross appeal; such cross appeal
directed to be prosecuted and heard
upon one printed case, if the prin-
cipal 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.
[Nana Narain Rao v. Hurree Punt

13. Recognizance entered into to

abide the determination of an ap-
peal vacated upon petition of the
Appellant upon the abandonment
of the appeal. [Reed v. Sreemutty
Gourmoney Dabee]

In circumstances showing conflicting

and opposite decisions by the Sud-
der Court upon the same question
at issue, between the same parties,
an appeal treated under the Sta-
tute, 8th & 9th Vict., c. 30, sec. 2,
as abandoned for non-prosecution,
was restored upon terms of paying
costs and undertaking to lodge
cases forth with, and to lodge secu-
rity or a Bond in England to the

amount of 5007.
Where an appeal has been treated as

abandoned by Statute, 8th & 9th
Vict., c. 30, sec. 2, their Lordships
have no power to grant leave to
institute a new appeal; only a dis-
cretion to allow the original appeal
to be restored, [Ranee burro-
80ondree Debiah v. Pajah Pran
Kishen Sing]


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See “ SHERIFF,” 1.


See “ HINDOO LAW," 2.


Under the provisions of the Decen-

nial Settlement of 1789, the Ben-

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