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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
set up 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
claim.

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

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-
oon-Nissa]

MANAGER.

211

Power to charge ancestral estate.
See" MORTGAGE."

MORTGAGE.

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-
fied power, which can only be ex-

ercised rightly by the Manager in
a case of need, or for the benefit of
the estate. But where the charge
is one that a prudent owner would
make in order to benefit the estate,
a bona fidelender is not affected by
the precedent mismanagement of
the estate.

The actual pressure

on the estate, the danger to be
averted, or the benefit to be con-
ferred, in the particular instance,
are the criteria to be regarded.
If that dangerarises from any mis-
conduct to which the lender has
been a party, he cannot take ad-
vantage of his own wrong to sup-
port a charge in his favour against
the heir, grounded on a necessity
which his own wrong has helped

to cause.

A lender, however, in such circum-
stances, is bound to inquire into
the necessities of the loan, and to
satisfy himself as well as he can,
with reference o the parties with
whom he is dealing, that the Ma-
nager is acting in the particular
instance for the benefit of the
estate. If he does inquire, and
acts honestly, the real existence of
an alleged and reasonably-credited
necessity is not a condition prece-
dent to the validity of his charge,
which renders him bound to see to
the application of the money.
The mere creation of a charge by a
Manager securing a proper debt, is
not to be viewed as an improvident
act; and a bona fide creditor is not
to suffer when he has acted honest-
ly and with due caution, but is
himself deceived.

No general rule can be laid down
upon whom the onus lies to allege
and prove the bona fides of a Mana-
ger of an estate whose title to
alienate is qualified in contracting
debts, and resorting to loans; the
presumption proper to be made
varies with the circumstances, and
is regulated and dependent upon
them.

But if the mortgagee is enforcing his

right against the heir, he must
allege and prove the facts which
embody the representations made
to him of the alleged needs of the
estate, and the motives influencing
the loan.

A mortgage Bond to secure a sum of
money lent to a party deceased, in
substitution of a previous deed ex-
ecuted by a former proprietor, by
way of further security for a sum
advanced by the mortgagee to the
widow of the deceased, charging
part of the ancestral estate, de-
scribed the widow as having a
beneficial proprietary right in the
mortgaged estates, although, in
fact, she was only the curator of
her son, a minor, the deceased's
heir. Held, that the description,
though inaccurate, was not such an
assumption of ownership as was
derogative to the rights of the heir;
but was to be viewed as an act
done by her as curator on behalf of
the heir; and as the mortgage was
beneficial to the estate, it was
binding upon the heir. [Hunoo-
manpersaud Panday v. Mussumat
Babooee Munraj Koonweree] 393

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credibility of witnesses, unless it is
manifestly clear from the probabi-
lities attached to certain circum-
stances in the case, that the Court
below was wrong in the conclusion
drawn from such evidence. [Musa-
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] -

53

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
new rules 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 timo
and according to the practice pre-
viously existing. [Gudadhur Pur-
shad Tewaree v. Mussumat Soon-
derkoomaree]
201

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-

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
Mull]
204
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

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Where there had been an irregularity
in the Court below in the reception
of evidence, theJudicial Committee,
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 Race]
- 289
10. Quære: 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 the
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

346

464

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
Bhao]
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 forthwith, and to lodge secu-
rity or a Bond in England to the
amount of 5007.
Where an appeal has been treated as

490

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 Hurro-
soondree Debiah v. Rajah Pran
Kishen Sing]

-

491

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