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]
Power to charge ancestral estate. See" 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
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
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] -
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-
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
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, 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
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
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]
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